Harris v. Neale ( 2020 )

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VICTOR HARRIS ET AL. v. CHRISTINE
NEALE ET AL.
(AC 42301)
Alvord, Moll and Beach, Js.
Syllabus
The plaintiffs, H, a minor, through his next friend, A, his mother, sought
to recover damages allegedly sustained as a result of the defendants’
negligence. Following certain noncompliance with discovery, the plain-
tiffs’ attorney sought and was granted a withdrawal from the case.
Thereafter, A withdrew her claims. When H did not appear in court on
the date trial was set to begin, the trial court rendered a judgment of
dismissal. Subsequently, counsel appeared for H and filed a motion to
open the judgment, which the trial court denied. H appealed to this
court, claiming that the trial court abused its discretion in denying his
motion to open. Held that the trial court did not properly exercise its
discretion in denying H’s motion to open the judgment, as H satisfied
his burden of demonstrating that he was prevented by reasonable cause
from prosecuting the action; the trial court’s finding that H’s negligence
prevented him from prosecuting the action was clearly erroneous, and,
to the contrary, the unique challenges H faced in the months leading
up to the dismissal of his action, including that he, as a minor, lacked
consistent familial support to enable him to prosecute his action and
his relationship with A had broken down and was undisputedly plagued
by conflict, established reasonable cause that prevented him, a minor
allegedly suffering from a major neurocognitive disorder as a result of
a traumatic brain injury, from prosecuting his action.
Argued January 22—officially released April 28, 2020
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligence, brought to the Superior Court
in the judicial district of Fairfield, where the court,
Bellis, J., granted the motion of the plaintiffs’ attorney
for permission to withdraw his appearance; thereafter,
the plaintiff Andrea Hill withdrew her claims; subse-
quently, the court, Bellis, J., rendered a judgment of
dismissal; thereafter, the court denied the named plain-
tiff’s motion to open the judgment, and the named plain-
tiff appealed to this court. Reversed; judgment directed;
further proceedings.
John C. Turner, Jr., for the appellant (named
plaintiff).
Ashley A. Noel, with whom, on the brief, was Kevin
R. Kratzer, for the appellees (defendants).
Opinion
PER CURIAM. The plaintiff Victor Harris appeals
from the judgment of the trial court denying his motion
to open the judgment of dismissal rendered in favor of
the defendants, Christine Neale and Christopher Neale.
On appeal, Harris claims that the court abused its dis-
cretion in denying his motion to open. We agree and,
accordingly, reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of Harris’ appeal. On October 15,
2016, Harris’ mother, Andrea Hill, acting as both Harris’
next friend1 and coplaintiff, commenced the present
action against the defendants.2 The plaintiffs, who were
represented by Attorney John Cirello, alleged that Har-
ris, who was a minor both at the time of the injury and
the commencement of the action, had sustained injuries
in October, 2014, while riding a dirt bike over a ramp
in the defendants’ backyard. Hill sought to recover med-
ical expenses she had paid on behalf of Harris. On
March 10, 2017, the court, Kamp, J., approved a sched-
uling order, inter alia, requiring the completion of dis-
covery by September 30, 2017, setting a pretrial confer-
ence for January 24, 2018, and scheduling trial to begin
in February, 2018. Following the defendants’ filing of
a request to revise, the plaintiffs filed the operative
complaint on March 21, 2017. In the four count operative
complaint, each plaintiff alleged one count of negli-
gence on the basis of parental liability and one count
of premises liability. On April 21, 2017, the defendants
filed an answer and special defenses.
On April 27, 2017, the plaintiffs sought and received
a sixty day extension of time to respond to the defen-
dants’ interrogatories and requests for production dated
February 17, 2017. On September 27, 2017, the defen-
dants filed a motion to compel the deposition of Harris,
arguing that they twice had been required to mark off
Harris’ noticed deposition because they had not
received the plaintiffs’ discovery responses. They repre-
sented that they had not received any subsequent dates
from the plaintiffs to conduct Harris’ deposition, despite
having made numerous requests. The defendants repre-
sented that they had renoticed the deposition for Octo-
ber 17, 2017, and sought an order from the court compel-
ling Harris to appear on that date or within thirty days
of the filing of the motion to compel. On October 10,
2017, the court, Kamp, J., granted the motion and
ordered Harris to submit to a deposition on or before
October 31, 2017, or be subject to a nonsuit on motion
from the defendants.
On November 24, 2017, the defendants filed a motion
for order of compliance, in which they alleged that the
plaintiffs had failed to produce records critical to the
evaluation and defense of the plaintiffs’ claims against
them. They requested, inter alia, that the court compel
the plaintiffs to comply with the defendants’ standard
discovery requests and, in the event that the plaintiffs
failed to comply fully on or before December 6, 2017,
that the court enter a judgment of nonsuit and/or dis-
missal. On November 30, 2017, the defendants filed a
motion for nonsuit, claiming that the plaintiffs had
failed to comply with two court orders, the order requir-
ing Harris to submit to a deposition by October 31,
2017, and the order granting the plaintiffs an extension
of time, through May 18, 2017, to respond to the defen-
dants’ discovery requests. With respect to the deposi-
tion, the defendants represented that it had been further
delayed, first at the plaintiffs’ request because Harris’
father was in critical medical condition and was to be
placed in a medically induced coma, and second, at
the request of the plaintiffs’ counsel due to his trial
schedule. According to the defendants, they had reno-
ticed Harris’ deposition for November 27, 2017, and
the plaintiffs failed to appear on that date. Neither the
defendants’ motion for order of compliance nor their
motion for nonsuit was ruled on, and both were marked
off by the court, Bellis, J.,3 on January 16, 2018.
By motion filed on November 20 and amended on
December 22, 2017, Cirello sought to withdraw his
appearance on behalf of the plaintiffs on the basis that
a conflict of interest had arisen with and between the
plaintiffs.4 Specifically, Cirello represented that the
plaintiffs had ‘‘recently been feuding and refuse to speak
or be in the same building as one another.’’ He further
stated that Harris had requested that he remove Hill as
a plaintiff. He represented that the deteriorating rela-
tionship between the plaintiffs had resulted in a lack
of communication between the plaintiffs and himself
and had materially limited his ability to adequately rep-
resent each of their interests. Accordingly, he requested
that the court withdraw his appearance on behalf of
both plaintiffs and stay the proceedings for three
months or other reasonable time to provide the plain-
tiffs with sufficient time for each to retain independent
counsel. The motion was scheduled for a hearing on
January 16, 2018, on which date the court granted the
motion. Three days later, the defendants filed a motion
for default against the plaintiffs for failure to appear,
which was not ruled on by the court.
On January 23, 2018, the defendants filed a caseflow
request, in which they stated that ‘‘[t]he plaintiffs are
not represented at this time and a status conference
has been scheduled for January 30, 2018, the defendants
request that this pretrial be marked off and rescheduled
for a date chosen by the court. Please note proper
consent has not been given due to the plaintiffs’ nonrep-
resentation.’’ The court’s order on the caseflow request
stated: ‘‘The status conference will go forward on [Janu-
ary 30, 2018,] as scheduled. The case will be dismissed
if the plaintiffs remain nonappearing. The pretrial is
cancelled.’’ The plaintiffs then sought to have the status
conference postponed to February 24, 2018. In support
of their motion for a continuance, the plaintiffs stated:
‘‘Self-represented party kindly requests continuance to
allow action to be taken on motion to open judgment
regarding motion to withdraw appearance and time to
procure counsel.’’ The court denied the plaintiffs’
motion for a continuance.
By motion filed January 24 and amended January 25,
2018, the plaintiffs sought to vacate the court’s order
permitting Cirello to withdraw his appearance. In sup-
port of their motion, the plaintiffs argued, inter alia,
that neither Hill nor Harris had been served with notice
of the hearing on the motion to withdraw, that Hill
did not appear at the hearing because of a medical
emergency, and that Harris was concerned regarding
‘‘erroneous proceedings against a minor or person of
unsound mind.’’ Also on January 24, 2018, Hill filed an
appearance as a self-represented party, and the next
day, Harris did the same. On January 29, 2018, Harris
filed a caseflow request again seeking that the January
30, 2018 status conference be rescheduled, stating: ‘‘Vic-
tor Harris is a minor with major neurocognitive disorder
due to traumatic brain injury with behavioral distur-
bance who filed an appearance per instruction of prior
counsel in order case is not dismissed for failure to
appear still on day before court, kindly request status
conference to instead be scheduled once minor is repre-
sented by counsel or following ruling on motion to
vacate order.’’ On January 30, 2018, the court sua sponte
entered an order that provided: ‘‘The attempted appear-
ance and any filings filed on behalf of the minor plaintiff
Victor Harris are improper and are hereby stricken, sua
sponte, by the court. Only an attorney may represent
him as he is a minor.’’
On February 13, 2018, Hill filed a caseflow request
seeking to have the trial continued. In support of her
request, she stated that she needed time to prepare for
trial following her counsel’s withdrawal in January. She
also informed the court that a guardianship proceeding
had been commenced that day in the Bridgeport Pro-
bate Court and represented that such matters are gener-
ally resolved in sixty days. On February 20, 2018, the
court entered an order with respect to Hill’s caseflow
request: ‘‘This will be addressed on [February 27, 2018,]
as caseflow does not have the plaintiffs’ telephone num-
bers to schedule a status conference prior to that.’’ On
February 27, 2018, the trial was continued to May 24,
2018, to afford the plaintiffs additional time to obtain
counsel, and a status conference was scheduled for
April 3, 2018.5
On April 2, 2018, the plaintiffs filed a motion to substi-
tute Harris’ stepmother, Mildred Mutape, ‘‘as a named
party’’ in place of Hill. In support of their motion, the
plaintiffs attached a March 19, 2018 order from the
Bridgeport Probate Court, which indicated, inter alia,
that Hill had consented to the appointment of a tempo-
rary custodian of Harris and that Mutape had been
appointed his temporary custodian.
Also on April 2, 2018, the defendants filed a motion
for nonsuit as to Hill, pursuant to Practice Book § 13-
14, alleging that Hill had failed to comply with the
court’s order requiring Harris to submit to a deposition
and its order granting the plaintiffs an extension of time
to comply with the defendants’ discovery requests. On
April 3, 2018, Hill filed a withdrawal form indicating
that she sought to withdraw from the action as a party
plaintiff.6 In an April 11, 2018 order, the court acknowl-
edged that Hill was ‘‘no longer a party in this case by
virtue of a withdrawal filed [April 3, 2018].’’
On May 24, 2018, the date trial was set to begin,
Harris did not appear in court. Mutape attended the
proceeding, identified herself as ‘‘the recently court-
appointed guardian for . . . Harris,’’ and stated that
she was seeking to intervene in the case. After the court
explained that it would not address Mutape because
she was not a party to the case, Mutape responded that
she understood and that she only attended to prevent
the case from being dismissed. After reciting the previ-
ous continuances that Harris had been afforded in order
to permit him to retain counsel, the court stated: ‘‘Well,
I think because the plaintiffs are nonappearing that I
have no choice but to dismiss the case. Now whether—
whether they ultimately retain counsel and try to file
an [action pursuant to the] accidental failure of suit
statute or a new lawsuit or try to revive this case, I’m
not going to speak to that. But I do have no choice now
since they are nonappearing. So I am going to dismiss
the case.’’ The court rendered a judgment of dismissal
pursuant to Practice Book § 14-3 on the basis that ‘‘the
plaintiffs are nonappearing for their second trial date.’’
On September 21, 2018, counsel appeared for Harris
and filed a motion to open the judgment of dismissal.
Harris argued reasonable cause prevented him from
prosecuting the action in a timely manner, which he
alleged included his serious injuries from the dirt bike
accident, his father’s illness, Hill’s withdrawal from the
case, and Cirello’s withdrawal from the case. Harris
maintained that his case remained viable as to liability
and damages and expressed his understanding of the
importance of cooperating with discovery requests,
should the judgment be opened. He also requested that
the court cite in Mutape, whom he stated had been
appointed his temporary guardian, as his next friend.
On October 4, 2018, the defendants filed an objection
to the motion to open, arguing that Harris had failed
to show reasonable cause for opening the judgment.
On October 9, 2018, the court summarily denied the
motion to open the judgment. Harris subsequently filed
a motion to reargue pursuant to Practice Book § 11-
12 and attached thereto an affidavit of Mutape. The
defendants filed an objection, and the court summarily
denied the motion to reargue. This appeal followed.
On November 27, 2018, Harris filed a motion for artic-
ulation. On December 3, 2018, the court filed its articula-
tion, in which it stated that the ‘‘motion to open and
motion to reargue were denied by the court, given [Har-
ris’] own negligence, and lack of good cause to open
the judgment.’’ Noting that Harris was represented by
counsel from the time of the filing of the action in
October, 2016 through January 16, 2018, when counsel
withdrew, the court stated that Harris had failed to
appear for his scheduled deposition and did not provide
full and fair discovery compliance. It further explained
that, following the withdrawal of Harris’ counsel, ‘‘Har-
ris was unrepresented from January 16, 2018 through
September 21, 2018, which was nearly four months after
the case was dismissed,’’ and that such delay prevented
the defendants from obtaining the depositions and dis-
covery needed to defend the action. In sum, the court
stated that Harris ‘‘failed to diligently pursue the case
when represented by counsel, failed to comply with
standard discovery, ignored court orders, refused to
communicate with his attorney, and was nonappearing
for his trial dates.’’7
On appeal, Harris claims that the trial court improp-
erly denied his motion to open the judgment.8 We agree.
‘‘Disciplinary dismissals pursuant to Practice Book
§ 14-3 . . . may be set aside and the action reinstated
to the docket upon the granting of a motion to open filed
in accordance with Practice Book § 17-43 and [General
Statutes] § 52-212.’’ Bank of New York Mellon v. Horsey,
182 Conn. App. 417, 429, 190 A.3d 105, cert. denied, 330
Conn. 928, 194 A.3d 1195 (2018); cf. Pump Services
Corp. v. Roberts, 19 Conn. App. 213, 216, 561 A.2d 464
(1989) (concluding that ‘‘proper way’’ to open judgment
of dismissal rendered pursuant to predecessor to Prac-
tice Book § 14-3 is to file motion to open pursuant to
predecessor to Practice Book § 17-4, which parallels
General Statutes § 52-212a).9 ‘‘Practice Book § 17-43
provides in relevant part that the disciplinary dismissal
of an action may be set aside within four months upon
the written motion of any party or person prejudiced
thereby, showing reasonable cause, or that a good cause
of action in whole or in part existed at the time of the
rendition of such judgment . . . and that the plaintiff
. . . was prevented by mistake, accident or other rea-
sonable cause from prosecuting the action. Section 52-
212 contains nearly identical language. A motion to
open . . . is addressed to the [trial] court’s discretion,
and the action of the trial court will not be disturbed
on appeal unless it acted unreasonably and in clear
abuse of its discretion.’’ (Internal quotation marks omit-
ted.) Bank of New York Mellon v. Horsey, supra, 429–30.
‘‘The court’s discretion, however, is not unfettered; it
is a legal discretion subject to review. . . . [D]iscretion
imports something more than leeway in decision-mak-
ing. . . . It means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice. . . . In addition, the court’s discre-
tion should be exercised mindful of the policy prefer-
ence to bring about a trial on the merits of a dispute
whenever possible and to secure for the litigant his day
in court.’’ (Citation omitted; internal quotation marks
omitted.) Multilingual Consultant Associates, LLC v.
Ngoh, 163 Conn. App. 725, 735, 137 A.3d 97 (2016).
We begin by noting that the court did not determine,
in either its summary ruling denying the motion to open
the judgment or its articulation, that Harris had failed
to demonstrate the existence of a good cause of action.
In support of his motion to open the judgment, Harris
argued that he had alleged a viable cause of action
against the defendants. Harris asserted that he was seri-
ously injured when he fell from the dirt bike he was
riding over a ramp on the defendants’ property. He
cited the allegations of his complaint that the ramp was
dangerous and defective and that the defendants failed
to supervise his biking activity and ensure his safety.
Harris maintained that he suffered several injuries from
the fall, including ‘‘postconcussive syndrome, cervical
sprain, acute anxiety, and chronic headaches that have
adversely affected his lifestyle and well-being.’’
Harris attached to his motion to open the judgment
an October 19, 2017 letter authored by Kathryn A. McVi-
car, a pediatric neurologist and assistant professor of
pediatrics and neurology, stating that Harris ‘‘had a
traumatic neck and head injury that has caused
sequelae.’’ The letter further stated that Harris had been
diagnosed with ‘‘[m]ajor neurocognitive disorder due
to traumatic brain injury, with behavioral disturbance,’’
‘‘[u]nspecified Attention-Deficit/Hyperactivity Disor-
der,’’ ‘‘[r]efractory migraine with aura,’’ ‘‘[v]ertigo,’’
‘‘[c]ervical neck pain,’’ and ‘‘[s]leep disturbance.’’ The
letter stated that Harris had ‘‘been recommended to
receive inpatient services at Gaylord Specialty Health-
care, in addition to contacting the Brain Injury Alliance
of Connecticut for additional service support.’’
In light of the foregoing, we agree with Harris that
his motion to open the judgment made the required
showing that a good cause of action existed, and the
court understandably did not conclude to the contrary.10
See Bridgeport v. Grace Building, LLC, 181 Conn. App.
280, 299, 186 A.3d 754 (2018). In its articulation, the
court stated that it denied the motion to open ‘‘given
[Harris’] own negligence, and lack of good cause to
open the judgment,’’ concluding that Harris had failed
to satisfy the second prong of § 52-212 (a). Having
reviewed closely the procedural record below, we con-
clude that the court’s finding that Harris’ negligence
prevented him from prosecuting the action is clearly
erroneous.11 To the contrary, the unique challenges Har-
ris faced in the months leading up to the dismissal of
his action establish reasonable cause that prevented
him from prosecuting his action.
Specifically, the record reflects that Harris, a minor,
lacked consistent familial support to enable him to pros-
ecute his action. His father was reportedly critically
ill and, for some period of time, comatose,12 and his
relationship with Hill, his next friend, was undisputedly
plagued by conflict. The discord between Harris and
Hill was described in Cirello’s motion to withdraw, in
which he represented that the two were ‘‘feuding’’ and
that Harris had requested that he remove Hill as a plain-
tiff. Despite the breakdown in their relationship, the
plaintiffs sought continuances from the court in order
to obtain new counsel. Around the same time, Hill
advised the court that a guardianship proceeding had
been filed with respect to Harris. Mutape was appointed
Harris’ temporary custodian in March, 2018, and Hill
withdrew from the case in April, 2018. Just before with-
drawing from the action, the plaintiffs sought to have
Mutape substituted for Hill, representing to the court
that the Probate Court had scheduled a hearing for
May 18, 2018, regarding the removal of Hill as Harris’
guardian. As of May 24, 2018, when the action was
dismissed, Harris, a minor, lacked a next friend and
was unrepresented by counsel. The record reveals that
it was these circumstances, which were largely beyond
the control of Harris, a minor allegedly suffering from a
major neurocognitive disorder as a result of a traumatic
brain injury, that impeded his ability to diligently pursue
the action.13
Accordingly, we conclude that Harris satisfied his
burden of demonstrating that he was prevented by rea-
sonable cause from prosecuting the action. Under the
circumstances of this case, we cannot conclude that
the court properly exercised its discretion in denying
Harris’ motion to open the judgment.
The judgment is reversed and the case is remanded
with direction to grant Harris’ motion to open the judg-
ment of dismissal and for further proceedings according
to law.
1
‘‘A next friend is a person who appears in a lawsuit to act for the benefit
of . . . [a] minor plaintiff . . . . It is well established that a child may bring
a civil action only by a guardian or next friend, whose responsibility it is
to ensure that the interests of the ward are well represented.’’ (Citation
omitted; internal quotation marks omitted.) Lowe v. Shelton, 83 Conn. App.
750, 755, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004).
2
Hill withdrew her claims on April 3, 2018, and is not a party to this
appeal. We refer herein to Harris and Hill collectively as the plaintiffs and
to each individually by name, where appropriate.
3
Unless otherwise noted, all references to the trial court hereinafter are
to Judge Bellis.
4
On December 15, 2017, Harris filed a motion for a continuance of the
hearing on the motion to withdraw appearance, which had been scheduled
for December 18, 2017. In support of his request, Harris represented that
his father was in a comatose state, there was no ongoing parent-child rela-
tionship between Hill and himself, the Department of Children and Families
had opened an investigation on November 6, 2017, and a guardianship pro-
ceeding was soon to be filed in the Bridgeport Probate Court.
5
On February 28, 2018, the defendants filed a motion for default for failure
to appear as to Harris, which motion was denied on March 7, 2018.
6
On the withdrawal form, Hill indicated that she alone sought to withdraw.
The defendants then filed a motion for default for failure to appear, on the
basis that Harris’ attempted appearance had been stricken by the court and
Hill had filed a withdrawal of her appearance. The motion was denied.
7
On January 7, 2019, Harris, acting through Mutape as next friend, com-
menced a new action pursuant to the accidental failure of suit statute,
General Statutes § 52-592. See Harris v. Neale, Superior Court, judicial
district of Fairfield, Docket No. FBT-CV-XX-XXXXXXX-S. In that action, the
defendants filed a motion to strike the complaint on the basis that a plaintiff
who is nonsuited may not file both an appeal from the judgment of dismissal
and a new action pursuant to § 52-592. The court, Kamp, J., granted the
defendants’ motion to strike the complaint. Following Harris’ failure to file
a substitute pleading, the court rendered judgment in favor of the defendants
on May 20, 2019. Harris did not file an appeal from that judgment.
8
Harris also claims that the court improperly denied his motion to reargue
the court’s ruling on the motion to open the judgment. Our conclusion that
the court abused its discretion in denying the motion to open the judgment
makes it unnecessary to address his claim with respect to the motion to
reargue. Because we do not address the motion to reargue, we do not
consider Mutape’s affidavit attached thereto.
Moreover, we note that, because Harris filed his motion to open the
judgment more than twenty days after the judgment of dismissal, our review
is limited to determining whether the court abused its discretion in denying
that motion and does not involve a review of the underlying judgment of
dismissal. See Langewisch v. New England Residential Services, Inc., 113
Conn. App. 290, 294, 966 A.2d 318 (2009).
9
We recognize that there is a conflict in our case law as to whether a
motion to open a judgment of dismissal rendered pursuant to Practice Book
§ 14-3 is governed by § 52-212 and Practice Book § 17-43 or § 52-212a and
Practice Book § 17-4. We need not resolve this conflict at this time because
it does not affect the outcome of our analysis. Additionally, on appeal, the
parties have not addressed this conflict; rather, they rely on § 52-212 and/
or Practice Book § 17-43 in analyzing the court’s denial of Harris’ motion to
open. Accordingly, in resolving this appeal, we presume, without concluding,
that § 52-212 and Practice Book § 17-43 govern Harris’ motion to open.
10
We note that the defendants, in their objection to Harris’ motion to
open the judgment, did not argue that Harris had failed to make the required
showing that a good cause of action existed, but, instead, argued only that
Harris had failed to establish reasonable cause to open the judgment.
11
‘‘[I]n order to determine whether the court abused its discretion [in
ruling on a motion to open], we must look to the conclusions of fact upon
which the trial court predicated its ruling. . . . Those factual findings are
reviewed pursuant to the clearly erroneous standard . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) Bridgeport v. Grace Building, LLC,
supra, 181 Conn. App. 301.
Because we conclude that the court’s finding that the failure to prosecute
the action was attributable to Harris’ own negligence is clearly erroneous,
we need not reach the defendants’ argument that a trial court lacks authority
to set aside a judgment of nonsuit upon a finding of negligence. See Jaconski
v. AMF, Inc., 208 Conn. 230, 238–39, 543 A.2d 728 (1988) (concluding that
court was within its discretion in finding plaintiffs negligent in failing to
file revised complaint and respond to discovery requests, and court correctly
concluded that it lacked authority to set aside judgment of nonsuit because
plaintiffs failed to meet statutory requirements of § 52-212).
12
The plaintiffs had attached to various motions, including their January
25, 2018 motion to open the court’s order permitting Cirello to withdraw
his appearance, an October 4, 2017 letter authored by Antonio Constantino
Jr., a physician, which stated that Harris’ father remained admitted at Bridge-
port Hospital where he was receiving ‘‘advanced critical care therapy includ-
ing, but not limited to mechanical ventilation and advanced life support.’’
13
The defendants do not dispute that Harris was without counsel or next
friend at the time the court dismissed the action but argue, as the trial court
found, that Harris’ own negligence caused his failure to pursue the action.
They challenge Harris’ reliance on Cirello’s withdrawal, arguing that Harris
had abused the discovery process, including by failing to provide full discov-
ery responses and to appear for his deposition, before Cirello withdrew. They
further suggest that Cirello’s withdrawal was due to Harris’ own conduct,
including his refusal to communicate with Hill. The defendants also point
to the time period following the withdrawals of Cirello and Hill, emphasizing
that Harris offered no explanation for the eight month delay in retaining
new counsel, and stating that Mutape had become Harris’ ‘‘legal guardian’’
in March, 2018, more than two months prior to the scheduled trial date. We
disagree that the challenges faced by Harris were of his own making, such
that he failed to establish that reasonable cause prevented him from prose-
cuting his action.
The defendants rely on Biro v. Hill, 231 Conn. 462, 650 A.2d 541 (1994),
and Kung v. Deng, 135 Conn. App. 848, 43 A.3d 225 (2012) in support of
their argument that the court in the present case did not abuse its discretion.
We find both cases distinguishable. In Biro v. Hill, supra, 464–66, our
Supreme Court affirmed the trial court’s denial of a motion to set aside a
judgment of nonsuit rendered on the basis of the plaintiffs’ failure to respond,
even partially, to discovery requests. In moving to set aside the judgment,
the plaintiffs stated that they failed to comply with the three previously
entered deadlines for discovery responses because they had decided to
retain new counsel and they believed it would be unfair to bind new counsel
with responses to discovery requests before he had the opportunity to
evaluate the case. Id., 466. In Kung v. Deng, supra, 849–50, this court affirmed
the trial court’s denial of a motion to open a judgment of dismissal rendered
on the basis of the plaintiffs’ failure to comply with discovery, despite having
more than two years to respond and receiving two court orders requiring
them to provide the medical records requested. The plaintiffs had argued
that they were not able to obtain all the requested records. Id., 850.
Both Biro and Kung involved dismissals of actions on the basis that the
plaintiffs had failed to comply with discovery orders. In seeking to open
the judgment, the plaintiffs in each case neither offered nor established
reasonable cause preventing them from complying with the discovery orders.
In contrast, the record in the present case abounds with challenges experi-
enced by Harris that prevented him from prosecuting his action.