MacCalla v. American Medical Response of Connecticut, Inc. ( 2019 )

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GORDON MACCALLA ET AL. v. AMERICAN
MEDICAL RESPONSE OF
CONNECTICUT, INC.
(AC 40782)
DiPentima, C. J., and Lavine and Moll, Js.
Syllabus
The six plaintiffs, emergency medical responders employed by the defen-
dant, brought this action against the defendant in 2012 alleging claims
for promissory estoppel. After several delays in the production of the
plaintiffs’ discovery responses, depositions of the plaintiffs were sched-
uled to take place at the office of the plaintiffs’ counsel in July, 2017.
On the first day of depositions, counsel for the defendant arrived with S,
a corporate representative for the defendant, and the plaintiffs’ counsel
objected that there was no advance notice given of S’s attendance. After
completing the deposition of the plaintiff M, the plaintiffs’ counsel stated
that S was being considered a trespasser, and the defendant’s counsel
cancelled the remaining depositions and left the premises. Shortly there-
after, the defendant filed a motion for nonsuit or default and entry of
judgment of dismissal or other appropriate sanctions against all of the
plaintiffs except for M. Following a hearing, the trial court rendered
judgment dismissing the case as to all of the plaintiffs, from which the
plaintiffs appealed to this court. They claimed that the trial court erred
in dismissing their case solely on the basis of the conduct of counsel
and in dismissing the claim of M, who had complied with his discovery
obligations and was not named in the defendant’s motion for nonsuit.
Held:
1. The trial court erred in dismissing M’s claim sua sponte; the defendant
never alleged M was noncompliant with a discovery order issued by the
trial court and never sought sanctions against that particular plaintiff.
2. The trial court did not abuse its discretion in dismissing the claims of
the other five plaintiffs: the actions of the plaintiffs’ counsel at the
plaintiffs’ depositions were unprofessional and unacceptable, as the
conduct of the plaintiffs’ counsel in labeling a party’s corporate represen-
tative attending a deposition a trespasser evinced a disregard for the
provisions of the rules of practice and the authority of the court, and
the plaintiffs’ explanation that the accusation against S as a trespasser
was being made out of concern for the fairness of the depositions was
unavailing, as both of the plaintiff deponents stated that they did not
feel physically threatened by S and indicated a willingness to proceed
with their depositions despite S’s presence; moreover, the defendant
sought sanctions for the plaintiffs’ noncompliance with a discovery
order, which was not directed solely to the plaintiffs’ counsel, and the
court’s dismissal was predicated, at least in part, on the plaintiffs’ failure
to prepare their case properly, as the trial court determined that the
case was not ready for trial despite the fact that the plaintiffs had been
afforded more than four years to prepare.
Argued November 26, 2018—officially released March 5, 2019
Procedural History
Action, in the first case, to recover damages for, inter
alia, promissory estoppel, and for other relief, and
action, in the second case, to recover damages for anti-
trust violations, and for other relief, brought to the
Superior Court in the judicial district of New Haven,
where the court, B. Fischer, J., granted the defendant’s
motion to strike the amended complaint in part in the
first case; thereafter, the court, Abrams, J., granted the
defendant’s motion to consolidate; subsequently, the
court granted the defendant’s motion to dismiss and
motion for an order of nonsuit in the first case and
rendered judgment thereon, from which the plaintiffs
appealed to this court; thereafter, the court, Nazzaro,
J., granted the defendant’s motion to dismiss in the
second case and rendered judgment thereon; subse-
quently, the court, Abrams, J., filed an order in response
to this court’s request for rectification. Reversed in
part; further proceedings.
Mark S. Kliger, with whom, on the brief, was Irving
J. Pinsky, for the appellants (plaintiffs).
John M. Barr, pro hac vice, with whom, were Carolyn
A. Trotta and, on the brief, David C. Salazar-Austin,
for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiffs, Gordon MacCalla,
Alexis Scianna, Tyler Grailich, John Cronin, Timothy J.
Yurksaitis, and Cate Saidler, appeal from the judgment
of the trial court dismissing their action against the
defendant, American Medical Response of Connecticut,
Inc., as a sanction for the unprofessional and dilatory
conduct of the plaintiffs’ counsel, Attorney Irving Pin-
sky, during discovery. On appeal, the plaintiffs claim
that the trial court erred in dismissing (1) the plaintiffs’
case solely on the basis of counsel’s conduct and (2)
the claim of MacCalla, who had in fact complied with his
discovery obligations and was not named in defendant’s
motion for nonsuit. We agree with the plaintiffs’ second
claim and reverse the judgment of dismissal as to Mac-
Calla. We affirm the judgment of dismissal in all
other respects.
The following undisputed facts and procedural his-
tory are relevant to this appeal. On December 14, 2012,
the plaintiffs initiated this action (2012 case) against
the defendant. The operative complaint, sounding in
promissory estoppel, alleged that the plaintiffs were
emergency medical responders employed by the defen-
dant and, prior to their employment, the defendant
made a ‘‘clear and unambiguous promise’’ to each of
them that they could retain simultaneous employment
with Valley Emergency Medical Service, Inc. and/or
Danbury Ambulance Service, Inc., while also working
for the defendant. The complaint also alleged that, after
they were hired, the defendant unilaterally withdrew
its approval of simultaneous employment and requested
that they either discontinue working for the other ambu-
lance services or resign. The complaint alleged that
they came to work for the defendant in reliance on
the defendant’s promise and that enforcement of this
promise was ‘‘essential to avoid injustice and detri-
ment.’’ While this case was pending, the plaintiffs initi-
ated a separate action (2016 case) against the defendant
on August 11, 2016, alleging damages as a result of the
defendant’s violation of one or more provisions of the
Connecticut Antitrust Act, General Statutes § 35-24 et
seq. The 2016 case was consolidated with the 2012 case.
On February 7, 2017, the defendant sent six sets of
interrogatories and, purportedly, requests for produc-
tion to Pinsky’s office. On February 16, 2017, each plain-
tiff filed a motion for extension of time, seeking an
additional thirty days in which to respond to the ‘‘inter-
rogatories and requests for production’’; the defendant
did not object. Despite the extension, the plaintiffs
failed to submit responses prior to the date they were
due.1 On April 25, 2017, the defendant filed a motion
for order of compliance as to each of the six plaintiffs.
Contemporaneously, the defendant sought to sched-
ule depositions of the six plaintiffs. The depositions
were noticed originally for May 3 and 4, 2017, in Hart-
ford. The plaintiffs agreed to the dates but requested
that the location be moved to New Haven; the defendant
assented and resent notice of the depositions accord-
ingly. On April 26, 2017, as a result of the plaintiffs’
failure to provide timely discovery responses, the defen-
dant’s counsel, Attorney David Salazar-Austin, e-mailed
Pinsky, informing him that the depositions would not go
forward. The next day, Pinsky replied that the discovery
responses would be provided on or before May 12, 2017,
and that the plaintiffs were available to be deposed on
May 25, 26, and 31, and on June 1, 2017. In response,
the defendant noticed the depositions for May 25 and
26, to be held at Pinsky’s office in New Haven.
On May 12, 2017, the plaintiffs provided responses
and objections to the defendant’s interrogatories. In
response to the defendant’s inquiry as to why the plain-
tiffs did not respond to the requests for production,
Pinsky claimed that he never received any such
requests. In an e-mail sent to Pinsky, Salazar-Austin
was skeptical of this assertion, contending that the
interrogatories and requests for production had been
sent as a single document. In the same e-mail, Salazar-
Austin asked that the plaintiffs respond promptly to the
requests for production and sought to reschedule the
plaintiffs’ depositions. In his reply e-mail, Pinsky iter-
ated that he had not received the requests for produc-
tion and indicated that his clients would not be available
for depositions until sometime between ‘‘very late June
and mid-July.’’ Because jury selection was scheduled
to begin in early August, the defendant was not amena-
ble to this time frame and filed a request for adjudication
of the discovery dispute with the court.
On June 5, 2017, the court held a hearing on the
defendant’s request for adjudication. At the hearing, the
parties agreed that the plaintiffs would provide
responses to the requests for production by July 7, 2017,
and that the plaintiffs’ depositions would be held at
Pinsky’s office on July 17 and 18, 2017. Although the
plaintiffs argue in their brief that this agreement was
never adopted as a court order, the hearing transcript
clearly indicates otherwise:
‘‘[The Plaintiffs’ Counsel]: My understanding is pro-
duction by July 7 and depositions to be taken . . . [on
July 17 and 18]; is that correct?
‘‘[The Defendant’s Counsel]: Yes.
‘‘[The Plaintiffs’ Counsel]: Yes. Okay.
‘‘The Court: Okay. That’s now an order of the court.’’
Consistent with the parties’ agreement and the court’s
order, the plaintiffs, with the exception of Saidler, pro-
vided complete responses to the defendant’s requests
for production, and their depositions, starting with Mac-
Calla, were scheduled for July 17, 2017. On that date,
Salazar-Austin and Attorney John M. Barr arrived at
Pinsky’s office to conduct the depositions on behalf of
the defendant. Accompanying them was the defendant’s
corporate representative, William Schietinger. Upon
learning that Schietinger would be attending the deposi-
tions, the plaintiffs’ counsel, Attorney Mark Kliger,
objected on the ground that the Practice Book required
the defendant to provide prior notice. Following a
review of the Practice Book, the parties agreed that
notice was required only if the deposition was to be
held by remote electronic means.2 Nonetheless, at the
start of MacCalla’s deposition, the following colloquy
occurred:
‘‘[Barr]: Before we get started, opposing counsel
wants to make an objection on the record. So please
go ahead. Did you want to object?
‘‘[Kliger]: Yes, I want to put something on the record.
On behalf of Mr. MacCalla, Attorney Mark Kliger from
Irving Pinsky’s office.
‘‘Mr. Schietinger from [American Medical Response
of Connecticut, Inc.] is present here at the deposition.
He’s sitting at the table where the deposition is being
conducted. Counsel for [American Medical Response
of Connecticut, Inc.] did not tell us in advance that
Mr. Schietinger would be attending the deposition. My
client, Mr. MacCalla, has indicated he feels a sense of
intimidation by Mr. Schietinger’s presence, and so we’re
going to preserve any right we have to object to Mr.
Schietinger’s presence.
‘‘We quoted Section 13-30 in support of our position,
and there may be other Practice Book provisions as
well which apply specifically to the fact that we were
not given notice in advance of Mr. Schietinger’s atten-
dance at the deposition, and we did not consent to
it, and also again bearing in mind Mr. MacCalla has
indicated to me that he feels a sense of intimidation by
Mr. Schietinger’s presence.
‘‘Again, we want to preserve all rights we have with
regard to an objection to this deposition and the way
it’s being conducted. That’s it.’’
Despite Kliger’s objection, Schietinger was present
at MacCalla’s deposition. MacCalla testified that he did
not feel physically threatened by Schietinger and,
although he indicated that he was intimidated
‘‘[s]lightly’’ by Schietinger’s presence, did not object to
proceeding with the deposition. After MacCalla’s depo-
sition, the parties took a lunch break and then recon-
vened for the deposition of Yurksaitis. During
Yurksaitis’ deposition, Kliger stated the following:
‘‘[Kliger]: Okay. Also on that subject, Mr. Pinksy has
asked me to place on the record as part of the objection
that since Mr. Schietinger was not invited on Mr. Pin-
sky’s property, that Mr. Pinsky considers Mr. Schie-
tinger to be a trespasser.
‘‘[Barr]: Well, then we need to leave because if Mr.
Pinsky considers him to be a trespasser, I’m not going
to put my client at risk of arrest, and we’ll just have to
take it up with the judge. You better go talk to Mr.
Pinsky really fast, because if my client is a trespasser,
I am not having him subject to arrest.’’
When Kliger returned after speaking with Pinsky, he
stated the following:
‘‘[Kliger]: Okay. I’ve checked with Mr. Pinsky, and
his position is if Mr. Schietinger is going to be—he
considers Mr. Schietinger to be a trespasser, someone
who’s not invited on the property and was not invited
to participate in the deposition.’’
After a short discussion, in which Yurksaitis stated
that he did not feel physically intimidated by Schie-
tinger, the defendant’s counsel suspended the deposi-
tion, and the two attorneys for the defendant and
Schietinger left Pinsky’s office. Later that day, Salazar-
Austin sent Pinsky an e-mail that attempted to resolve
the issue regarding Schietinger’s presence at the plain-
tiffs’ depositions. In the e-mail, Salazar-Austin indicated
that if the plaintiffs’ counsel was ‘‘willing to drop [his]
insistence that [American Medical Response of Con-
necticut, Inc.’s] designated representative is a tres-
passer,’’ the defendant was willing to conduct the
remaining depositions the next day.
On August 2, 2017, pursuant to Practice Book §§ 13-
143 and 17-31,4 the defendant filed a motion for nonsuit
or default and entry of judgment of dismissal or other
appropriate sanctions against all of the plaintiffs except
for MacCalla. In the memorandum of law accompanying
that motion, the defendant sought dismissal of the plain-
tiffs’ claims or other appropriate sanctions, given their
‘‘complete disregard for their discovery obligations
. . . .’’ The plaintiffs filed an objection to the defen-
dant’s motion, and, on August 11, 2017, the court heard
oral argument. Following argument, the court took a
brief recess before issuing its decision:
‘‘The Court: These type of cases are very complicated
and require thorough preparation, and they are not—
they’re not rearend accident cases.
‘‘The lack of early discovery requests by the defen-
dant does not excuse the failure to prepare one’s case.
The shenanigans surrounding the depositions are
unprofessional and unacceptable.
‘‘The [2012] case is four and [one-half] years old and
it is nowhere ready for trial. I’m dismissing the case.’’
At that time, the court did not dismiss the consoli-
dated 2016 case.5 Following its decision from the bench,
the court granted the defendant’s motion for nonsuit
and entered a judgment of dismissal against the plain-
tiffs, including MacCalla, as to the 2012 case.6 The plain-
tiffs appeal from this decision.
We begin by setting forth our standard of review
for a trial court’s imposition of sanctions pursuant to
Practice Book § 13-14. ‘‘In order for a trial court’s order
of sanctions for violation of a discovery order to with-
stand scrutiny, three requirements must be met. First,
the order to be complied with must be reasonably clear.
In this connection, however, we also state that even an
order that does not meet this standard may form the
basis of a sanction if the record establishes that, not-
withstanding the lack of such clarity, the party sanc-
tioned in fact understood the trial court’s intended
meaning. This requirement poses a legal question that
we will review de novo. Second, the record must estab-
lish that the order was in fact violated. This requirement
poses a question of fact that we will review using a
clearly erroneous standard of review. Third, the sanc-
tion imposed must be proportional to the violation. This
requirement poses a question of the discretion of the
trial court that we will review for abuse of that discre-
tion.’’ (Internal quotation marks omitted.) Krahel v.
Czoch, 186 Conn. App. 22, 32, 198 A.3d 103, cert. denied,
330 Conn. 958, A.3d (2018).
For the ease of discussion, we begin by addressing
the plaintiffs’ second claim on appeal, namely, the con-
tention that the court abused its discretion in dismissing
MacCalla’s claim as a sanction for Pinsky’s actions and
for failing to comply with the court’s June 5, 2017 order.7
As noted previously in this opinion, the defendant’s
motion for nonsuit was not directed to MacCalla, and
the defendant at oral argument before this court and
the trial court8 acknowledged that MacCalla had fully
complied with his discovery obligations and the June
5, 2017 order. Accordingly, we agree with the plaintiffs
that the court’s sua sponte dismissal of MacCalla’s claim
was in error given that the defendant never alleged
MacCalla was noncompliant with the discovery order
and never sought sanctions against this particular
plaintiff.9
Having resolved that the dismissal of MacCalla’s
claim was an abuse of discretion, we now turn to the
plaintiffs’ argument that the court’s dismissal of the
entire 2012 case was a disproportionate sanction given
the noncompliance at issue. The plaintiffs contend that
the court abused its discretion in dismissing the entire
2012 case because their conduct during discovery was
not intended to be dilatory or obstructive and that the
incident on June 17, 2017, was predicated on Pinsky’s
good faith, but mistaken, belief that prior notice of
Schietinger’s attendance was required. Additionally, the
plaintiffs claim that the court erred inasmuch as the
dismissal of the 2012 case constituted a sanction for
conduct solely limited to counsel. In response, the
defendant argues that the plaintiffs repeatedly failed to
comply with discovery deadlines and, with respect to
the plaintiffs’ depositions, Pinsky accused Schietinger
of being a trespasser after both sides had reviewed the
Practice Book and determined that prior notice of a
party’s attendance was not required in this instance.
Thus, according to the defendant, Pinsky’s subsequent
actions during Yurksaitis’ deposition represented a
deliberate indifference to the rules of practice and a
wilful violation of the court’s discovery order.
We have examined the record and conclude that the
court did not abuse its discretion in dismissing the
claims of the other five plaintiffs in the 2012 case. We
agree with the court’s finding that Pinsky’s actions were
‘‘unprofessional and unacceptable.’’ Labeling a party’s
corporate representative attending a deposition a tres-
passer evinces a disregard for the provisions of the
Practice Book and the authority of the court. This court
has held previously that ‘‘where a party [has] show[n]
a deliberate, contumacious or unwarranted disregard
for the court’s authority,’’ dismissal of the entire case
may constitute an appropriate sanction. Emerick v.
Glastonbury, 177 Conn. App. 701, 736, 173 A.3d 28
(2017), cert. denied, 327 Conn. 994, 175 A.3d 1245
(2018). Moreover, we do not accept the plaintiffs’ expla-
nation in their appellate brief that Pinsky made this
accusation ‘‘out of concern for the fairness of the depo-
sitions in light of intimidation felt and expressed by
two of the plaintiffs,’’ as both deponents, MacCalla and
Yurksaitis, stated that they did not feel physically threat-
ened by Schietinger and indicated a willingness to pro-
ceed with their depositions despite his presence. In any
event, the appropriate action, had counsel believed that
the depositions were ‘‘being conducted in bad faith or
in such a manner as unreasonably to annoy, embarrass,
or oppress the deponent or party,’’ would have been to
file a motion with the court to cease or limit the scope
and manner of the depositions. Practice Book § 13-30
(c); see Practice Book § 13-5.
Further, we conclude that it was not an abuse of
discretion for the court to dismiss the claims of the
other five plaintiffs on the basis of their counsel’s
actions. This case is distinguishable from Herrick v.
Monkey Farm Cafe, LLC, 163 Conn. App. 45, 53, 134
A.3d 643 (2016), in which we reversed the trial court’s
decision to dismiss a litigant’s case as a sanction for
his counsel’s conduct. In Herrick, the plaintiff’s counsel
was sanctioned $500 for failing to revise the operative
complaint in accordance with an earlier court ruling.
Id., 47–48. When counsel failed to pay the fine in a
timely fashion, the trial court dismissed the action. Id.,
48. On appeal, this court ruled that the entry of dismissal
was a disproportionate sanction in light of the fact
‘‘that the dilatory behavior found offensive by the court
involved only counsel and not the plaintiff . . . [and]
the court made no finding that counsel’s failures were
wilful.’’ Id., 52. Here, the defendant sought sanctions
for the plaintiffs’ noncompliance with a discovery order,
which was not directed solely to counsel, and the
court’s dismissal was predicated, at least in part, on
the plaintiffs’ failure to prepare their case properly.
Although in some circumstances it may be unduly harsh
to impute counsel’s transgressions to his client, ‘‘our
adversarial system [also] requires that the client be
responsible for acts of the attorney-agent whom [he]
has freely chosen . . . .’’ Thode v. Thode, 190 Conn.
694, 698, 462 A.2d 4 (1983); see Sousa v. Sousa, 173
Conn. App. 755, 773 n. 6, 164 A.3d 702 (‘‘[a]n attorney
is the client’s agent and his knowledge is imputed to
the client’’ [internal quotation marks omitted]), cert.
denied, 327 Conn. 906, 170 A.3d 2 (2017). Unlike in
Herrick, the court in this case found that the conduct
of plaintiffs’ counsel demonstrated a deliberate and con-
tumacious disregard for its authority insofar as Pinsky’s
actions were determined to be ‘‘unprofessional and
unacceptable,’’ and that the noncompliance was not
limited to counsel, given that the case was ‘‘nowhere
ready for trial’’ despite the plaintiffs being afforded
more than four years to prepare. Cf. Herrick v. Monkey
Farm Cafe, LLC, supra, 52–53; see also Faile v. Strat-
ford, 177 Conn. App. 183, 210, 172 A.3d 206 (2017) (court
abused its discretion in dismissing action without find-
ing ‘‘wilful disregard of its orders’’).
The judgment is reversed only as to the dismissal of
MacCalla’s claim and the case is remanded for further
proceedings thereon; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
The defendant asserts that its counsel sent several e-mails to Pinsky,
asking when the discovery responses would be provided, but it received no
response to any of those e-mails.
2
See Practice Book § 13-30 (g) (3).
3
Practice Book § 13-14 provides in relevant part: ‘‘(a) If any party . . .
has failed to appear and testify at a deposition duly noticed pursuant to
this chapter, or has failed otherwise substantially to comply with any other
discovery order made pursuant to Sections 13-6 through 13-11, the judicial
authority may, on motion, make such order as the ends of justice require.
‘‘(b) Such orders may include the following:
‘‘(1) The entry of a nonsuit or default against the party failing to comply;
***
‘‘(5) If the party failing to comply is the plaintiff, the entry of a judgment
of dismissal.’’
4
Practice Book § 17-31 provides in relevant part: ‘‘Where either party is
in default by reason of failure to comply with Sections 10-8, 10-35, 13-6
through 13-8, 13-9 through 13-11, the adverse party may file a written motion
for a nonsuit or default or, where applicable, an order pursuant to Section
13-14.’’
5
The 2016 case was dismissed on November 20, 2017, for lack of subject
matter jurisdiction.
6
Upon review of the trial court file, it was unclear as to whether the
court’s entry of judgment of dismissal was based on its granting of the
defendant’s motion for nonsuit. Following a sua sponte request from this
court, the trial court issued a clarification providing: ‘‘On August 11, 2017,
this court granted the defendant’s motion for nonsuit or default and entry
of judgment of dismissal or other appropriate sanctions (#144). In doing so,
the court entered a judgment of dismissal in this action.’’
7
To the extent the plaintiffs contend that the court never adopted the
parties’ agreement to conduct the depositions on July 17 and 18 as a discov-
ery order, this argument is inadequately briefed and, therefore, does not
merit our review. Ravalese v. Lertora, 186 Conn. App. 722, 724 n.1, A.
3d (2018) (‘‘[c]laims are inadequately briefed when they are merely
mentioned and not briefed beyond a bare assertion’’ [internal quotation
marks omitted]).
8
During argument on its motion for nonsuit, the defendant conceded that
it was able to take MacCalla’s deposition and, therefore, was not seeking
sanctions against him.
9
The defendant contends that the court’s decision constituted harmless
error because MacCalla’s deposition testimony reveals that his promissory
estoppel claim has no evidentiary basis. We decline to address this argument,
however, as it requires us to reach the merits of the underlying case in the
absence of a motion for summary judgment or trial. See Emeritus Senior
Living v. Lepore, 183 Conn. App. 23, 26 n.3, 191 A.3d 212 (2018) (‘‘A court
may not grant summary judgment sua sponte. . . . The issue first must be
raised by the motion of a party and supported by affidavits, documents or
other forms of proof.’’ [Internal quotation marks omitted.]).