Null v. Jacobs

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WARREN NULL v. ADELE R. JACOBS
(AC 37509)
Lavine, Alvord and Harper, Js.
Argued February 9—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Waterbury, Shapiro, J.)
Robert S. Kolesnik, Sr., with whom, on the brief, was
Stephanie E. Cummings, for the appellant (plaintiff).
David J. Robertson, with whom, on the brief, were
Madonna A. Sacco and Christopher H. Blau, for the
appellee (defendant).
Opinion
HARPER, J. This is a legal malpractice and breach
of contract action. In a previous action, the defendant,
Adele R. Jacobs, rendered legal services to the plaintiff,
Warren Null, which allegedly failed to meet the applica-
ble standard of care. The plaintiff then retained a new
attorney both to replace the defendant in the underlying
action and to pursue the claims in the present case.
During a protracted discovery period in the present
case where many discovery related motions were filed,
the trial court ordered the plaintiff’s counsel to be
deposed because his testimony was necessary to
explore the plaintiff’s malpractice claim. When counsel
failed to appear for a deposition, the court found that
the plaintiff had violated this order and, pursuant to a
motion, rendered a judgment of nonsuit as a discovery
sanction. On appeal, the plaintiff claims that the court
improperly (1) rendered a judgment of nonsuit as a
discovery sanction because, contrary to the court’s find-
ings, his counsel exercised due diligence to comply with
the court’s order and the sanction was not proportional
to the violation; and (2) denied his postjudgment motion
to reargue. We affirm the judgment of the court.
The following facts and procedural history guide our
analysis. The defendant previously represented the
plaintiff in a personal injury action for injuries sustained
in a motor vehicle accident. The matter settled before
trial. The defendant allegedly promised the plaintiff that
after attorney’s fees and costs, he would receive
$175,000 from the settlement proceeds. Subsequently,
the defendant allegedly notified the plaintiff that his
settlement proceeds would be substantially smaller
because of an unpaid medical lien. To ensure payment,
the defendant allegedly held approximately $90,000 in
escrow pending successful negotiation of the lien. Dis-
satisfied with the defendant’s actions, the plaintiff
retained another attorney, Robert S. Kolesnik, Sr., to
negotiate the lien on his behalf. As a result of Kolesnik’s
representation, the plaintiff incurred legal fees in the
amount of approximately $27,883.68. On January 31,
2011, the plaintiff commenced the present action
against the defendant to recover these legal fees as
damages. Kolesnik represented the plaintiff before the
trial court in the present case and represents him in
this appeal.
As early as March 20, 2014, the parties had discussed
the possibility that the defendant might seek to take
Kolesnik’s deposition. Shortly thereafter, the defendant
noticed Kolesnik’s deposition. In response, on April 15,
2014, the plaintiff filed a motion for a protective order,
seeking to preclude the defendant from taking Koles-
nik’s deposition. In support of his motion, the plaintiff
asserted that ‘‘the purpose of the deposition is harass-
ment and an attempt to force counsel to withdraw from
the case.’’ On May 7, 2014, the court, Shapiro, J., denied
the motion for protective order. In its memorandum of
decision, the court noted that Kolesnik was retained in
the underlying matter to negotiate a medical lien for
the plaintiff. It also noted that in the present case, the
plaintiff claimed as damages an amount equal to the
attorney’s fees he allegedly incurred in connection with
the lien negotiation. Under these circumstances, the
court concluded, it was reasonable for the defendant
to depose Kolesnik. The court ordered Kolesnik to be
deposed by July 21, 2014.
Kolesnik failed to be deposed. Consequently, on July
21, 2014, the defendant filed a motion for nonsuit, pursu-
ant to Practice Book § 13-14,1 for failure to comply with
the court’s order. In her memorandum in support of
the motion for nonsuit, the defendant argued that Koles-
nik was a crucial witness whose deposition was neces-
sary for her to prepare a defense. She also represented
that she attempted to obtain dates for Kolesnik’s deposi-
tion on numerous occasions, but he never responded
and never scheduled a deposition date.2 The plaintiff
filed a written objection to the defendant’s motion for
nonsuit on July 31, 2014, in which Kolesnik stated that
‘‘[t]he undersigned attorney, despite due diligence, has
been unable to retain counsel so that he may be
deposed. . . . Plaintiff’s counsel cannot be deposed
until replacement counsel is retained.’’ No motion for
extension of time was filed.
The parties appeared for a hearing on the motion for
nonsuit on September 15, 2014. The plaintiff urged the
court to deny the motion, arguing that he had attempted
to comply with the court’s order, but was unable to
find counsel to replace Kolesnik. On this point, Kolesnik
represented at the hearing that as soon as he realized
that the defendant wished to depose him, he contacted
Bruce Stanger, an attorney who specializes in legal mal-
practice, described the case to him, and sent documents
for him to review. He further represented that Stanger
‘‘gave [him] the impression that he would take the case,’’
but declined at the last minute. Kolesnik stated that
the precise day that Stanger declined the case was the
Thursday before the September 15, 2014 hearing. Thus,
Kolesnik had no record of contact with Stanger from
April 22, 2014, until days before the hearing. Kolesnik
submitted three exhibits to substantiate these represen-
tations: a cover letter addressed to Stanger dated April
15, 2014, which states that relevant documents are
enclosed; an e-mail from his assistant to Stanger dated
April 24, 2014, with an attachment; and a telephone
message invoice, dated September 11, 2014, which
states that Stanger declined the case.
On October 20, 2014, the court, Shapiro, J., issued
a memorandum of decision granting the defendant’s
motion for nonsuit. The court made a number of obser-
vations and findings in support of its decision to render
a judgment of nonsuit. First, the court noted that it
previously had determined that the defendant was war-
ranted in seeking Kolesnik’s deposition because he per-
sonally had participated in the events which resulted
in the plaintiff’s malpractice claim. Second, the court
observed that ‘‘it should have been apparent to [Koles-
nik] at the inception of this matter that it was likely
that he would have to be a witness’’ because it was not
disputed ‘‘that [Kolesnik] was hired by the plaintiff to
represent him for purposes of negotiating the lien and
that the plaintiff is seeking to recover attorney’s fees
that he allegedly paid to [Kolesnik] for negotiating the
lien.’’ Third, notwithstanding the legitimate need to
depose Kolesnik, the court found that: its previous order
requiring Kolesnik to appear for a deposition by July
21, 2014 was clear; the plaintiff had violated that order;
the violation was the result of a lack of due diligence
and disregard for the court’s authority; the violation
was not an isolated event, but instead was part of a
pattern of noncompliance with court orders; and the
violation had prejudiced the defendant’s ability to pre-
pare a defense and prepare for trial. With respect to
the issue of due diligence, the court found that Kolesnik
only solicited a single attorney, namely, Stanger, as
replacement counsel. The court found that Kolesnik
only communicated with Stanger in April, 2014 and
September, 2014, with the latter contact coming six
weeks after the July 21, 2014 deposition deadline.
The plaintiff subsequently filed a postjudgment
motion to open the judgment and/or reargue. The court
denied this motion, and this appeal followed. Additional
facts will be set forth as necessary.
I
The plaintiff first claims that the court improperly
rendered a judgment of nonsuit against him as a sanc-
tion for his noncompliance with a discovery order.
We disagree.
‘‘In order for a trial court’s order of sanctions for
violation of a discovery order to withstand scrutiny,
three requirements must be met. First, the order to
be complied with must be reasonably clear. . . . This
requirement poses a legal question that we will review
de novo. Second, the record must establish 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 sanction
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.) Usowski v.
Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003).
We conclude that all three requirements were satis-
fied. With respect to the first requirement, the court’s
order could not be any clearer: ‘‘the court directs that
[Kolesnik] be deposed in this matter by July 21, 2014.’’
We must, therefore, review whether the plaintiff vio-
lated that order, and whether the sanction imposed was
proportional to the violation.
We review the second requirement, namely, whether
the court order was violated, for clear error. See Usow-
ski v. Jacobson, supra, 267 Conn. 85; see also Santa
Fuel, Inc. v. Varga, 77 Conn. App. 474, 488–89, 823 A.2d
1249 (‘‘The trial court’s findings are binding upon this
court unless they are clearly erroneous . . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed . . . .’’ [Inter-
nal quotation marks omitted.]), cert. denied, 265 Conn.
907, 831 A.2d 251 (2003).
The record supports the court’s finding that the plain-
tiff violated the court’s order. The plaintiff filed his
objection to the defendant’s motion for nonsuit on July
31, 2014—more than one week past the court-ordered
July 21, 2014 deadline. In this objection, the plaintiff
stated that he ‘‘has been unable to retain counsel so
that [Kolesnik] may be deposed’’despite due diligence.
The plaintiff also acknowledged that ‘‘[t]he [c]ourt
ordered that [Kolesnik] be deposed before July 21,
2014,’’ but insisted that Kolesnik ‘‘cannot be deposed
until replacement counsel is retained.’’ Thus, the plain-
tiff did not dispute the fact that the order had been
violated. We cannot conclude that the court’s finding
was clearly erroneous because, by his own statement,
the plaintiff did not comply with the court’s order within
the time prescribed by the court.
Further, ample evidence supports the court’s finding
that the plaintiff failed to exercise due diligence in seek-
ing replacement counsel. As the court noted, the plain-
tiff demonstrated that only one candidate for
replacement counsel was solicited. The plaintiff’s only
documented communications with this attorney were
from April, 2014 and September, 2014. The latter date,
of course, was more than six weeks after the July 21,
2014 deadline for Kolesnik’s deposition. At the hearing
on the motion for nonsuit, Kolesnik represented that
this attorney ‘‘gave [him] the impression that he would
take the case,’’ but he does not claim that this attorney
ever agreed to take the case. Thus, although Kolesnik
was required by court order to be deposed no later than
July 21, 2014, not only did he not appear, but he did
not make contact with the one attorney he solicited to
replace him until weeks after the court order had been
violated. To make matters worse, he did not initiate the
contact; Stanger initiated contact to decline the case.
Although ‘‘[d]ue diligence means doing everything rea-
sonable, not everything possible’’; (internal quotation
marks omitted) Skakel v. State, 295 Conn. 447, 507, 991
A.2d 414 (2010); we cannot conclude that the court’s
finding that the plaintiff acted unreasonably under these
circumstances was clearly erroneous.
Finally, we review, for abuse of discretion, whether
the sanction of nonsuit was proportional to the viola-
tion. See Usowski v. Jacobson, supra, 267 Conn. 85.
‘‘When reviewing claims under an abuse of discretion
standard, the unquestioned rule is that great weight is
due to the action of the trial court and every reasonable
presumption should be given in favor of its correctness
. . . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did. . . . [T]he ques-
tion is not whether any one of us, had we been sitting
as the trial judge, would have exercised our discretion
differently. . . . Rather, our inquiry is limited to
whether the trial court’s ruling was arbitrary or unrea-
sonable.’’ (Citation omitted; internal quotation marks
omitted.) State v. Smith, 313 Conn. 325, 336, 96 A.3d
1238 (2014).
The following additional facts and procedural history,
which are relevant to our resolution of this issue and
which pertain to the plaintiff’s discovery conduct, either
are set forth in the trial court’s memorandum of decision
or appear in the record. On July 8, 2013, the court, Hon.
Barbara J. Sheedy, judge trial referee, entered an order
in response to a previous motion for nonsuit filed by
the defendant.3 This order directed the plaintiff to
appear for a deposition within sixty days, and further
stated that a nonsuit would enter if the plaintiff failed
to appear. The defendant filed another motion for non-
suit on September 9, 2013. In this motion, the defendant
argued that the plaintiff had refused to sit for longer
than two hours at a time for his deposition, thereby
obstructing discovery. In response, the court ordered
the plaintiff’s deposition to be conducted during a full
day at the courthouse no later than October 22, 2013.
On October 18, 2013, the defendant filed yet another
motion for nonsuit as a result of the plaintiff’s continued
failure to complete his own deposition as well as the
deposition of his wife. This motion was denied by the
court on January 21, 2014, but in its memorandum of
decision, the court found that the plaintiff was non-
compliant with a previous court order, and that this
noncompliance had prejudiced the defendant. The
court gave the plaintiff a final opportunity to comply
and ordered that the subject depositions be concluded
by May 1, 2014.
Additionally, on April 15, 2014, the defendant filed a
motion for sanctions for unrelated discovery miscon-
duct on the part of the plaintiff. Although the court
denied this motion, it made the following remarks in
its order issued on June 19, 2014: ‘‘[Kolesnik] is
reminded that he has a duty to obey court orders. . . .
[Kolesnik] is notified that if a violation of a court order
occurs in the future, sanctions will be considered.’’
The court summarized much of this history in its
memorandum of decision on the subject motion for
nonsuit. In light of this history, the court concluded
that Kolesnik’s failure to appear for a deposition ‘‘was
not an isolated event.’’ Instead, the court found, this
failure was part and parcel of a pattern of noncompli-
ance spanning several years. The court also found that
Kolesnik’s noncompliance was not caused by inability,
but, rather, was caused by a ‘‘lack of due diligence and
deliberate and unwarranted disregard for the court’s
authority.’’
We conclude that the court did not abuse its discre-
tion in concluding that the sanction of nonsuit was
proportional to the plaintiff’s violation. The record
establishes that the plaintiff was on notice as early as
March 20, 2014, that the defendant might seek to take
Kolesnik’s deposition. Notwithstanding the court’s
explicit finding that Kolesnik’s testimony was central
to the plaintiff’s claims against the defendant, and the
court’s accompanying order that he be deposed by July
21, 2014, Kolesnik never appeared. Additionally, the
record supports the court’s finding that this failure was
part of ongoing discovery misconduct. A continuing
pattern of violations warrants dismissal of the action.
Cf. Usowski v. Jacobson, supra, 267 Conn. 93. The court
repeatedly warned the plaintiff that sanctions would be
considered if discovery did not move toward comple-
tion. Indeed, on June 19, 2014—approximately one
month before the July 21, 2014 deadline for Kolesnik’s
deposition—the court explicitly warned the plaintiff
that ‘‘if a violation of a court order occurs in the future,
sanctions will be considered.’’ The plaintiff continu-
ously ignored the court’s warnings.
Moreover, at no point did the plaintiff cure his viola-
tion. On this point, this court’s decision in Blinkoff v.
O & G Industries, Inc., 89 Conn. App. 251, 873 A.2d
1009, cert. denied, 275 Conn. 907, 882 A.2d 668 (2005),
a case relied on by the plaintiff, is instructive. The
plaintiff in Blinkoff brought an action to recover dam-
ages for unfair trade practices. Id., 252. During discov-
ery, the defendant served the plaintiff with requests for
production of documents and interrogatories. Id., 254.
When the plaintiff did not fully reply, the defendant
filed a motion to compel. Id., 254. The court granted
the motion. Id. In an order dated March 10, 2003, the
court ordered that a nonsuit would enter if the plaintiff
did not comply within fourteen days. Id. In subsequent
court documents, the plaintiff claimed that she com-
plied with the court’s March 10, 2003 order on May 16,
2003—more than fourteen days later. Id. On October
2, 2003, the defendant filed a motion for entry of a
judgment of nonsuit on the ground that the plaintiff
failed to comply with the court’s March 10, 2003 order
within the prescribed fourteen days. Id., 254–55. The
court granted the motion. Id., 255.
On appeal in Blinkoff, the plaintiff claimed that the
court improperly rendered a judgment of nonsuit as a
discovery sanction. Id., 252. This court agreed, holding
that the sanction was not proportional to the violation.
Id., 259. Specifically, this court noted that ‘‘[a]s of the
filing of the defendant’s motion for nonsuit in October,
2003, [the plaintiff] had complied with all of the court’s
other orders.’’ Id. Thus, although the plaintiff techni-
cally failed to comply within the time frame set forth
in the court’s order, she nevertheless ‘‘later complied
with the defendant’s discovery requests in a fashion
that the defendant [did] not claim prejudiced its ability
to prepare for trial . . . .’’ Id. In other words, the plain-
tiff’s subsequent compliance cured her previous viola-
tion. In view of this fact, this court concluded that ‘‘the
[trial] court’s imposition of the ultimate sanction of
nonsuit was disproportionate to [the plaintiff’s] viola-
tion of its previous order.’’ Id.
In contrast to Blinkoff, the plaintiff in the present
case has not complied with the court’s order. The court
noted in its memorandum of decision that as of Septem-
ber 15, 2014—approximately two months after the pre-
scribed deadline—the plaintiff still had not complied.
Indeed, there is no evidence in the record, and no claim
on the part of the plaintiff in this appeal, that compliance
has since occurred. Further, unlike in Blinkoff, the
defendant here claimed, and the trial court found, that
the plaintiff’s conduct prejudiced her ability to prepare
for trial. See id.; see also Tuccio v. Garamella, 114 Conn.
App. 205, 210, 969 A.2d 190 (2009) (holding sanction of
nonsuit disproportional to violation where compliance
occurred shortly after judgment entered and where
defendant did not claim prejudice).
For the foregoing reasons, we conclude that a judg-
ment of nonsuit was an appropriate sanction for the
plaintiff’s continuing abuse of the discovery process.
II
The plaintiff next claims that the court improperly
denied his motion to reargue. We disagree.
The following additional facts are relevant to our
resolution of this claim. At the September 15, 2014 hear-
ing on the defendant’s motion for nonsuit, the defendant
was permitted to testify about the prejudice she has
suffered as a result of the plaintiff’s discovery miscon-
duct. Specifically, the defendant testified about the diffi-
culty she has faced obtaining affordable malpractice
insurance as result of the protracted lawsuit pursued by
the plaintiff. She testified that her malpractice premium
‘‘had tripled from what it used to be because of the
increasing amount of costs that have been incurred [in]
this case.’’ During the direct examination, the plaintiff
objected to a question posed regarding what the defen-
dant’s insurance broker told her was the reason for
her premium increase on hearsay grounds. The court
overruled the objection, but instructed the defendant:
‘‘Don’t tell us what you were told. Just tell us what
happened.’’
On cross-examination, the plaintiff attempted to elicit
testimony from the defendant. For example, the plaintiff
asked the defendant whether she refused to sit for a
deposition after being noticed multiple times and
whether she failed to settle the case. The defendant
objected to virtually all of the questions posed on the
ground that they were beyond the scope of direct. The
court sustained all of the defendant’s objections. The
court explained to the plaintiff’s counsel that the pur-
pose of the examination was to vet the issue of preju-
dice, not to try the underlying merits of the case. The
court further explained that the plaintiff could argue
the motion at the appropriate time during the hearing,
but not during examination of a witness.
As discussed previously, the court found, among
other things, that the defendant had been prejudiced by
the plaintiff’s discovery misconduct and, accordingly,
granted the motion for nonsuit. In its memorandum of
decision on the motion for nonsuit, the court made the
following remarks: ‘‘As to [the issue of] prejudice, at
the hearing on the motion [for nonsuit], the defendant
testified that, as a result of having to defend this action,
her malpractice premium had increased and it was diffi-
cult for her to obtain renewed insurance coverage. In
the absence of evidence from her carrier, the court does
not base its decision on her contentions.’’ Rather than
basing its finding of prejudice on the defendant’s testi-
mony concerning her malpractice premiums, the court
instead found that ‘‘[t]he defendant has been prejudiced
in her ability to prepare for trial.’’
On October 29, 2014, the plaintiff filed a motion cap-
tioned ‘‘motion to reopen, set aside, and/or reargue.’’
In his memorandum of law in support of this motion,
the plaintiff requested that the court open and set aside
its judgment of nonsuit, schedule reargument, continue
the previously scheduled December 2, 2014 trial date,
permit depositions to continue, and permit the plaintiff
to obtain replacement counsel. With respect to the testi-
monial evidence presented at the September 15, 2014
hearing, the plaintiff stated the following: ‘‘During the
hearing on [the motion for nonsuit] the court allowed
defendant wide latitude on her direct testimony but
severely restricted plaintiff’s counsel in his cross-exami-
nation of her. Counsel has ordered a copy of the tran-
script of said testimony and will be able to present a
more specific argument on this issue upon receipt of
said transcript.’’ The plaintiff never filed a supplemental
memorandum setting forth further argument on this
issue.
In a memorandum of decision issued on December
1, 2014, the court denied the plaintiff’s motion. The
court noted that its ‘‘decision on the motion for nonsuit
was dated October 20, 2014 and cited portions of the
transcript of the [September 15, 2014] hearing, which
was available [to the plaintiff] at that time.’’ The court
also remarked that the plaintiff did not file a supplemen-
tal memorandum—more than one month later—and
that in any event, ‘‘the court did not base its decision
on the defendant’s testimony at the hearing.’’
We set forth the standard of review. We note that in
his motion, which is captioned as a ‘‘motion to reopen,
set aside, and/or reargue,’’ the plaintiff requested that
the court open the judgment of nonsuit and grant rear-
gument. In his appellate brief, however, the plaintiff
has only argued that the court improperly denied rear-
gument. Thus, we will only consider whether the court
improperly denied the plaintiff’s motion to reargue, a
claim which we review for abuse of discretion. See
Spatta v. American Classic Cars, LLC, 150 Conn. App.
20, 27, 90 A.3d 318 (‘‘[t]he standard of review for a
court’s denial of a motion to reargue is abuse of discre-
tion’’ [internal quotation marks omitted]), cert. denied,
312 Conn. 919, 94 A.3d 640 (2014).
In support of this claim, the plaintiff argues that the
court improperly restricted him from fully examining
the defendant during the motion for nonsuit hearing.
Specifically, the plaintiff argues that the court improp-
erly denied him the opportunity to elicit testimony con-
cerning alternative reasons the defendant has been
prejudiced, namely, her failure timely to sit for a deposi-
tion and her failure to settle the case. The plaintiff
also contends that the court improperly considered the
hearsay statements of the defendant concerning her
increased malpractice insurance premiums. The defen-
dant objects, arguing that the plaintiff’s motion was
improper because he simply attempted to reargue the
merits, which is not permitted in a motion to reargue.
‘‘[T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address . . . claims of law that the [movant] claimed
were not addressed by the court. . . . [A] motion to
reargue [however] is not to be used as an opportunity
to have a second bite of the apple . . . .’’ (Internal
quotation marks omitted.) Hudson Valley Bank v. Kis-
sel, 303 Conn. 614, 624, 35 A.3d 260 (2012).
We conclude that the court did not abuse its discre-
tion. To begin with, in his motion to reargue, the plaintiff
simply stated that he was severely restricted from pre-
senting evidence and eliciting testimony from the defen-
dant at the hearing on the motion for nonsuit and that
he would provide a fuller argument on this point at a
later, unspecified time. As the court noted, however,
no supplemental memorandum was ever filed. Thus,
the court was not notified of the specific grounds upon
which the plaintiff relied. On this point, we note that
the judgment of nonsuit was a final judgment. See Bur-
gess v. Vanguard Ins. Co., 192 Conn. 124, 125 n.1, 470
A.2d 244 (1984) (‘‘[a] judgment of nonsuit is a final
judgment from which an appeal lies’’). Consequently,
the plaintiff’s motion to reargue would have delayed
the appeal period and, accordingly, was filed pursuant
to Practice Book § 11-11.4 The plaintiff’s motion does
not conform to this rule; although the plaintiff states
that the court ‘‘severely restricted’’ his cross-examina-
tion of the defendant, he does not explain how or what
the court precluded him from eliciting. In other words,
it does not ‘‘state the specific grounds upon which the
[plaintiff] relies.’’ (Emphasis added.) Practice Book
§ 11-11.
We also note that to the extent the plaintiff claims
that he was aggrieved by the court’s admission of the
defendant’s hearsay testimony, the court explicitly
stated twice that it did not consider such evidence in
making its ruling. On the basis of the foregoing analysis,
we conclude that the court did not abuse its discretion
when it denied the plaintiff’s motion to reargue.
The judgment is affirmed.
In this opinion the other judges concurred.
1
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 . . . the judicial authority may, on motion, make such order
as the ends of justice require.
‘‘(b) Such orders may include the following:
‘‘(1) [t]he entry of a nonsuit or default against the party failing to com-
ply . . . .’’
2
Appended to the defendant’s motion were copies of e-mail correspon-
dence from her counsel’s paralegal to Kolesnik’s paralegal, in which the
former requested potential dates for Kolesnik’s deposition.
3
In this earlier motion for nonsuit, the defendant argued that the plaintiff
failed to appear for his properly noticed deposition.
4
Practice Book § 11-11 provides: ‘‘Any motions which would, pursuant
to Section 63-1, delay the commencement of the appeal period, and any
motions which, pursuant to Section 63-1, would toll the appeal period and
cause it to begin again, shall be filed simultaneously insofar as such filing
is possible, and shall be considered by the judge who rendered the underlying
judgment or decision. The party filing any such motion shall set forth the
judgment or decision which is the subject of the motion, the name of the
judge who rendered it, the specific grounds upon which the party relies,
and shall indicate on the bottom of the first page of the motion that such
motion is a Section 11-11 motion. The foregoing applies to motions to reargue
decisions that are final judgments for purposes of appeal, but shall not apply
to motions under Section 16-35, 17-2A and 11-12.’’