Bobbin v. Sail the Sounds, LLC

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DAVID BOBBIN v. SAIL THE
SOUNDS, LLC, ET AL.
(AC 35596)
DiPentima, C. J., and Keller and Mihalakos, Js.
Argued September 18—officially released November 18, 2014
(Appeal from Superior Court, judicial district of New
London, Hon. Thomas F. Parker, judge trial referee.)
Santa Mendoza, for the appellant (plaintiff).
Opinion
KELLER, J. The plaintiff, David Bobbin, appeals from
the judgment of the trial court granting the defendants’
motion to dismiss his application to compel arbitration
for failure to prosecute with reasonable diligence.1 On
appeal, the plaintiff claims that (1) his application to
compel arbitration, under General Statutes § 52-410, is
not a civil action, and, therefore, is not subject to dis-
missal pursuant to Practice Book § 14-3, and (2) in the
alternative, he did not fail to prosecute his application
with reasonable diligence in violation of Practice Book
§ 14-3. We affirm the judgment of the trial court.2
The following facts, either as found by the court or
apparent in the record before the court, and procedural
history are relevant to this appeal. The defendant Sail
the Sounds, LLC, while in operation, was a company
involved in the boat chartering business.3 The defendant
James Scoggins and his late wife, Teresa Scoggins, were
the sole members of the company. The plaintiff began
working for the company in March, 1998, and entered
into a written contract that entitled him to a share of
the profits from the company’s sailing division. The
plaintiff voluntarily terminated his relationship with the
company in November, 2000.
In 2002, the plaintiff commenced an action against
Sail the Sounds, LLC, and both James Scoggins and
Teresa Scoggins, alleging that he did not receive an
appropriate share of the profits owed to him under the
written contract. In January, 2004, the parties agreed
to have the plaintiff withdraw his pending case and
instead collectively pursue mediation or arbitration.
Upon a joint motion filed by the parties, the court
entered their agreement as an order on January 23,
2004. Under the agreement, the parties had to mediate
their dispute by May 15, 2004. If the mediation was
unsuccessful, the agreement required the parties to par-
ticipate in a binding arbitration proceeding by Septem-
ber 15, 2004. The parties failed to mediate or arbitrate
at any time following the order.
On July 7, 2008, the plaintiff filed an application to
compel arbitration under § 52-410.4 The court scheduled
a hearing on the application for August 11, 2008, but
the plaintiff agreed to mark the hearing off at the defen-
dants’ request.5 On July 7, 2009, the plaintiff filed a form
to reclaim his application on the court’s short calendar
list, but the court did not subsequently schedule a hear-
ing on the matter.
On July 30, 2010, the plaintiff filed a motion for default
for the defendants’ failure to appear, which the court
clerk granted on August 6, 2010. The defendants’ coun-
sel subsequently filed an appearance on August 18, 2010.
Following nearly two years of inactivity, the court
sent a notice to the parties on April 10, 2012, stating
that the court had scheduled a status conference
because there had been no activity in the case for the
previous six months. The notice further stated that the
attorneys could be excused from attending the confer-
ence by, inter alia, withdrawing the action or submitting
a certificate of closed pleadings. In response, the plain-
tiff filed a certificate of closed pleadings on April 27,
2012. The defendants filed an objection to the certificate
and subsequently filed a motion to dismiss the plaintiff’s
application to compel arbitration for failure to prose-
cute with reasonable diligence pursuant to Practice
Book § 14-3.6
The court, Hon. Thomas F. Parker, judge trial referee,
granted the defendants’ motion to dismiss. The court
found that the plaintiff never made any requests to the
defendants for mediation or arbitration, and further
found no evidence to substantiate the plaintiff’s claim
that the defendants had refused to submit to mediation.
In addition, the court noted that the plaintiff’s minimal
activity from August, 2008, to July 30, 2010, and from
August, 2010, to April 27, 2012, ‘‘halted the progress’’
of the case. Finally, the court emphasized that the plain-
tiff’s delays were particularly dilatory in light of the
expedited proceedings mandated under § 52-410. For
these reasons, the court dismissed the plaintiff’s action.
The plaintiff filed a motion for reargument, which the
trial court denied. This appeal followed. Additional facts
will be set forth as necessary.
I
First, the plaintiff claims that the court erred in grant-
ing the defendants’ motion to dismiss because his appli-
cation to compel arbitration is not a civil action for the
purposes of dismissal pursuant to Practice Book § 14-
3. We disagree.
Our review of the applicability of Practice Book § 14-
3 involves a question of law and is therefore plenary.
See Cunniffe v. Cunniffe, 150 Conn. App. 419, 429, 91
A.3d 497 (2014).
As this court succinctly explained in Fishman v. Mid-
dlesex Mutual Assurance Co., 4 Conn. App. 339, 494
A.2d 606, cert. denied, 197 Conn. 806, 807, 499 A.2d 57
(1985), courts generally have viewed arbitration pro-
ceedings as distinct from civil actions. Id., 344; see also
Dayco Corp. v. Fred T. Roberts & Co., 192 Conn. 497,
503, 472 A.2d 780 (1984) (arbitration proceedings are
not civil actions in regard to suit, attachment, and ser-
vice of process on partnerships under General Statutes
§§ 52-112 and 52-57 [d]); Waterbury v. Waterbury Police
Union, Local 1237, 176 Conn. 401, 408, 407 A.2d 1013
(1979) (applications to confirm, modify, or vacate arbi-
tration awards are not civil actions under title 52 of
General Statutes); Skidmore, Owings & Merrill v. Con-
necticut General Life Ins. Co., 25 Conn. Supp. 76, 86,
197 A.2d 83 (1963) (arbitration proceeding is not civil
action within bar of statute of limitations). These cases
indicate that ‘‘whether an arbitration proceeding is a
civil action turns on the purpose for which the legisla-
ture created the proceeding and the most efficacious
way to carry out that purpose. . . . [T]he word action
has no precise meaning and the scope of proceedings
which will be included within the term . . . depends
upon the nature and purpose of the particular statute
in question. . . . What the legislature may have
intended to be a civil action for some purposes may not
be a civil action for others.’’ (Citation omitted; internal
quotation marks omitted.) Fishman v. Middlesex
Mutual Assurance Co., supra, 344.
Relying on Fishman, the plaintiff claims that his
application to compel arbitration cannot be treated as
a civil action that is subject to dismissal pursuant to
Practice Book § 14-3. In Fishman, the plaintiff, an
insured party, filed a complaint seeking an order to
compel the defendant, an insurance company, to partici-
pate in arbitration proceedings pursuant to an arbitra-
tion provision in the plaintiff’s homeowners policy. Id.,
340–41. The defendant filed a motion to dismiss the
action on the ground that, inter alia, it was a civil action
requiring a recognizance for costs, which the plaintiff
did not provide. Id., 341. After the trial court denied
its motion, the defendant filed requests to revise the
complaint, notices of interrogatories, and requests for
production. Id., 341–42. The plaintiff did not comply
with the requests or interrogatories and filed objections,
on which the court did not rule. Id., 342. Subsequently,
the plaintiff filed a motion for an order to proceed with
arbitration under § 52-410. Id. The court granted the
motion following a hearing. Id.
On appeal, this court held that an application to com-
pel arbitration is not a civil action in the context of the
recognizance for costs requirement. Id., 345, 347. This
court explained that our arbitration statutes created
mechanisms for the purposes of ‘‘avoid[ing] the formali-
ties, the delay, the expense and vexation of ordinary
litigation.’’ (Internal quotation marks omitted.) Id., 345.
Subsection (c) of § 52-410 conforms to those purposes
in providing that ‘‘the court or judge shall hear the
matter either at a short calendar session, or as a privi-
leged case, or otherwise, in order to dispose of the case
with the least possible delay . . . .’’ Id., 346. According
to this court, those purposes would be frustrated if a
party ‘‘is able to slow down this favored process not
only by requiring the other party to seek the court’s
intervention, but also by insisting on all the procedural
formalities, delays, and costs of an ordinary civil
action.’’ Id. Consequently, this court determined that
requiring a recognizance for costs to accompany an
application to compel arbitration would ‘‘serve only to
obstruct the legislative intent behind General Statutes
§ 52-410.’’ Id.
Similarly, this court concluded that requests to revise
and discovery procedures were not applicable to the
proceedings contemplated under § 52-410. Id., 349–51.
According to this court, ‘‘[s]ince a proceeding under
General Statutes § 52-410 does not follow the pattern
of an ordinary civil action it cannot be seen as a civil
action for purposes of discovery as well as for purposes
of pleading. . . . The policies behind a proceeding to
compel arbitration are equally frustrated by a delay due
to discovery as a delay due to insistence on pleading
formalities.’’ Id., 351.
Upon our review of Fishman, we are not persuaded
by the plaintiff’s claim that his application to compel
arbitration is not a civil action for the purposes of
applying Practice Book § 14-3. Fishman does not stand
for the broad proposition suggested by the plaintiff that
applications to compel arbitration under § 52-410 are
never treated as civil actions; rather, this court merely
held that such applications are not civil actions in the
context of recognizance for costs requirements, discov-
ery requests, and requests to revise. See id., 345 (‘‘[t]he
purposes for which arbitration was created indicate
that an application to compel arbitration is not a civil
action in the context of the requirements for a recogni-
zance’’ [emphasis added]); id., 351 (‘‘a proceeding under
General Statutes § 52-410 . . . cannot be seen as a civil
action for purposes of discovery as well as for purposes
of pleading’’ [emphasis added]); id., 344 (‘‘[w]hat a legis-
lature may have intended to be a civil action for some
purposes may not be a civil action for others’’). Further-
more, this court designated the narrow parameters of
its decision by leaving open the question of whether
§ 52-410 deprives a party of the right to file a motion
to dismiss or to strike an application to compel arbitra-
tion. Id., 349. The plaintiff reads Fishman too broadly
when he cites the case to assert that his application to
compel arbitration cannot be considered to be a civil
action subject to dismissal pursuant to Practice Book
§ 14-3.
Following our examination of the nature and purpose
of § 52-410, we conclude that the plaintiff’s application
to compel arbitration is a civil action for the purposes of
dismissal pursuant to Practice Book § 14-3. The primary
purpose of § 52-410 is to permit a court to decide
whether to compel arbitration without unnecessary
delays. Fishman v. Middlesex Mutual Assurance Co.,
supra, 4 Conn. App. 345, 351. In stark contrast to recog-
nizance for costs, discovery, and pleading requirements,
a motion to dismiss for failure to prosecute an applica-
tion to compel arbitration with reasonable diligence
supports this purpose. Practice Book § 14-3 is intended
to ‘‘ensure the proper movement of cases and to prevent
a backlog of the docket.’’ Fuller v. Commissioner of
Correction, 75 Conn. App. 814, 818, 817 A.2d 1274, cert.
denied, 263 Conn. 926, 823 A.2d 1217 (2003). A party
or court that in good faith raises the issue of a plaintiff’s
failure to prosecute an application to compel arbitration
is attempting to counter an existing, unreasonable delay
rather than cause a delay.
Furthermore, ‘‘[o]ur judicial system cannot be con-
trolled by the litigants and cases cannot be allowed to
drift aimlessly through the system.’’ (Internal quotation
marks omitted.) Gionfrido v. Wharf Realty, Inc., 193
Conn. 28, 32–33, 474 A.2d 787 (1984). ‘‘The trial court
has a responsibility to avoid unnecessary interruptions,
to maintain the orderly procedure of the court docket,
and to prevent any interference with the fair administra-
tion of justice. . . . In addition, matters involving judi-
cial economy, docket management [and control of]
courtroom proceedings . . . are particularly within
the province of a trial court.’’ (Internal quotation marks
omitted.) Lake Road Trust Ltd. v. ABB Powertech (Pty)
Ltd., 136 Conn. App. 671, 682, 51 A.3d 1109 (2012).
Prohibiting a trial court or a party from invoking Prac-
tice Book § 14-3 in this instance would create the poten-
tial for applications to compel arbitration commenced
under § 52-410, which mandates that applications be
disposed of ‘‘with the least possible delay,’’ to sit idly
on court dockets for indefinite periods of time. Such
an unreasonable result supports our conclusion that
Practice Book § 14-3 applies to actions brought under
§ 52-410. Otherwise, an applicant’s delay would
‘‘obstruct the legislative intent behind General Statutes
§ 52-410.’’ Fishman v. Middlesex Mutual Assurance
Co., supra, 4 Conn. App. 346.
Finally, our Supreme Court has signaled that applica-
tions to compel arbitration may be dismissed for failure
to prosecute with reasonable diligence. In A. Sangi-
vanni & Sons v. F. M. Floryan & Co., 158 Conn. 467,
262 A.2d 159 (1969), the plaintiff filed an application to
compel arbitration under § 52-410 in May, 1960. Id., 468.
The defendants filed an answer, which they amended
for an eighth time on October 25, 1960. Id., 470–71.
The plaintiff failed to file a responsive pleading to the
defendants’ amended answer for nearly seven years.
Id., 475. As a result, the defendants amended their
answer on August 28, 1967, to include a special defense
of laches, arguing that they had been prejudiced by the
plaintiff’s failure to prosecute the application. Id., 474.
Although the court ultimately rejected the defendants’
laches defense, it noted that the defendants properly
could have submitted a motion for a nonsuit or default
for the plaintiff’s failure to file a responsive pleading
within fifteen days of the defendants’ amended answer
that was filed on October 25, 1960. Id., 475. According
to the court, a motion for a nonsuit or default consti-
tuted ‘‘an adequate procedural remedy . . . which
could have been promptly invoked by [the defendants]
for any failure of the plaintiff diligently to prosecute
[his] case after instituting suit . . . .’’ (Citations omit-
ted.) Id., 475–76. Therefore, A. Sangivanni & Sons fur-
ther supports our conclusion that applications to
compel arbitration are subject to the invocation by
defendants of procedural remedies, including dismissal,
to address a plaintiff’s failure to prosecute with reason-
able diligence.
For the foregoing reasons, we hold that the court
had the authority to dismiss the plaintiff’s application
to compel arbitration pursuant to Practice Book § 14-3.
II
In the alternative, the plaintiff claims that the court
erred in granting the defendants’ motion to dismiss
because he did not fail to prosecute with reasonable
diligence in violation of Practice Book § 14-3. We
disagree.
Practice Book § 14-3 (a) permits a trial court to dis-
miss an action with costs if a party fails to prosecute
the action with reasonable diligence. ‘‘The ultimate
determination regarding a motion to dismiss for lack
of diligence is within the sound discretion of the court.’’
Nickerson v. Gachim, 183 Conn. 413, 415, 439 A.2d 379
(1981), overruled in part on other grounds by Morelli
v. Manpower, Inc., 226 Conn. 831, 834, 628 A.2d 1311
(1993). ‘‘Under [§ 14-3], the trial court is confronted
with endless gradations of diligence, and in its sound
discretion, the court must determine whether the par-
ty’s diligence falls within the ‘reasonable’ section of the
diligence spectrum.’’ Jaconski v. AMF, Inc., 208 Conn.
230, 234, 543 A.2d 728 (1988). Courts must remain mind-
ful, however, that ‘‘[i]t is the policy of the law to bring
about a trial on the merits of a dispute whenever possi-
ble’’; Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440
(1978); and that ‘‘[o]ur practice does not favor the termi-
nation of proceedings without a determination of the
merits of the controversy where that can be brought
about with due regard to necessary rules of procedure.’’
(Internal quotation marks omitted.) Millbrook Owners
Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16, 776
A.2d 1115 (2001).
We review the trial court’s decision for abuse of dis-
cretion. Gionfrido v. Wharf Realty, Inc., supra, 193
Conn. 34; Nickerson v. Gachim, supra, 183 Conn. 415.
‘‘In determining whether a trial court abused its discre-
tion, 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. . . . The trial
court’s discretion imports something more than leeway
in decision making and should be exercised in confor-
mity with the spirit of the law and should not impede
or defeat the ends of substantial justice.’’ (Internal quo-
tation marks omitted.) Przekopski v. Zoning Board of
Appeals, 131 Conn. App. 178, 192–93, 26 A.3d 657, cert.
denied, 302 Conn. 946, 30 A.3d 1 (2011).
A trial court properly exercises its discretion to dis-
miss for failure to prosecute ‘‘if the case has been on
the docket for an unduly protracted period or the court
is satisfied from the record or otherwise that there is
no real intent to prosecute . . . .’’ Nickerson v.
Gachim, supra, 183 Conn. 415; see, e.g., id., 414–15 (no
abuse of discretion when trial court dismissed case
after two years of inactivity, numerous appearances
of case on trial list, and party’s failure to answer call
regarding case on dormancy list); see also Gionfrido
v. Wharf Realty, Inc., supra, 193 Conn. 31, 34 (no abuse
of discretion when trial court dismissed case following
party’s failure to return to court following recess); Kalb
v. Aventis Cropscience, USA, Inc., 144 Conn. App. 600,
604, 74 A.3d 470 (2013) (no abuse of discretion when
trial court determined plaintiff lacked diligence on
ground that, inter alia, plaintiff took no action in case
for three and one-half years), cert. denied, 310 Conn.
932, 78 A.3d 858 (2013); Pereira v. Blau, 2 Conn. App.
377, 378–79, 478 A.2d 1044 (1984) (affirming dismissal
and denial of motion to open judgment for failure to
prosecute where counsel failed to appear at final jury
assignment list), cert. denied, 194 Conn. 810, 484 A.2d
943 (1984).
Here, on the basis of the record before the trial court,
we conclude that the court did not abuse its discretion
in determining that the plaintiff failed to prosecute with
reasonable diligence. The record indicates minimal
activity by the plaintiff from the time the court marked
off the August 11, 2008 hearing until the filing of the
plaintiff’s certificate of closed pleadings on April 27,
2012. In a letter dated November 25, 2008, the defen-
dants’ counsel asked the plaintiff’s counsel to clarify
claims presented by the plaintiff in a prior letter.7 The
record contains no evidence of any response by the
plaintiff to that inquiry. On July 7, 2009, the plaintiff
filed a form to reclaim his application on the court’s
short calendar list. Although the court apparently did
not put the matter on its short calendar list, there is
no evidence that the plaintiff formally inquired regard-
ing the status of the matter or filed another reclaim of
the matter at any point thereafter.8 More than one year
later on July 30, 2010, the plaintiff filed his motion for
default for failure to appear, leading the defendants’
counsel to file an appearance. Nearly two additional
years passed with no activity by the plaintiff before the
court sent a notice to the parties scheduling a status
conference, which ultimately led to the defendants’
motion to dismiss. These lengthy periods of inactivity
by the plaintiff constituted sufficient grounds for the
trial court to determine that the plaintiff had failed to
prosecute his action with reasonable diligence.9
The judgment is affirmed.
In this opinion the other judges concurred.
1
Sail the Sounds, LLC, James Scoggins, and Teresa Scoggins were the
named defendants in the initial action. Teresa Scoggins died on February
13, 2013, and no motion to substitute the executor or administrator of her
estate has been filed. In this opinion, we refer to Sail the Sounds, LLC, and
James Scoggins as the defendants.
2
The defendants have not filed a brief in this court and did not appear
at oral argument before this court. Accordingly, we consider the appeal
solely on the basis of the plaintiff’s brief, the plaintiff’s presentation during
oral argument before this court, and the record.
3
The defendants’ counsel has represented to this court that Sail the
Sounds, LLC, is no longer operational and has no assets.
4
General Statutes § 52-410 provides in relevant part: ‘‘(a) A party to a
written agreement for arbitration claiming the neglect or refusal of another
to proceed with an arbitration thereunder may make application to the
superior court for the judicial district in which one of the parties resides
. . . for an order directing the parties to proceed with the arbitration in
compliance with their agreement. The application shall be by writ of sum-
mons and complaint, served in the manner provided by law. . . .
‘‘(c) The parties shall be considered as at issue on the allegations of the
complaint unless the defendant files answer thereto within five days from
the return day, and the court or judge shall hear the matter either at a short
calendar session, or as a privileged case, or otherwise, in order to dispose
of the case with the least possible delay, and shall either grant the order
or deny the application, according to the rights of the parties.’’
5
The court initially scheduled the hearing on the application for July 28,
2008, but marked it off until August 11, 2008, because the defendants’ counsel
failed to appear at the scheduled hearing. Subsequently, the defendants
asked the plaintiff to request that the court mark off the August 11 hearing.
The court then marked off the August 11 hearing at the plaintiff’s request.
6
Practice Book § 14-3 (a) provides in relevant part: ‘‘If a party shall fail
to prosecute an action with reasonable diligence, the judicial authority may,
after hearing, on motion by any party to the action pursuant to Section 11-
1, or on its own motion, render a judgment dismissing the action with
costs. . . .’’
7
In the November 25, 2008 letter, the defendants’ counsel further noted
that James Scoggins would be out of the country for the following six
months. The defendants’ counsel asked the plaintiff’s counsel to supply the
requested clarification and that he would ‘‘endeavor to transmit anything
[the plaintiff’s counsel] provide[d] to [James Scoggins].’’
8
At oral argument before this court, the plaintiff’s counsel stated that she
had spoken orally with the trial court’s clerk regarding her attempt to reclaim
the matter at some point in time. The plaintiff’s counsel conceded, however,
that she had not filed any additional reclaims with the court.
9
Although the trial court did not explicitly mention prejudice in its deci-
sion, the defendants claimed in their motion to dismiss that they were
prejudiced by the plaintiff’s failure to prosecute with reasonable diligence.
See Kalb v. Aventis Cropscience, USA, Inc., supra, 144 Conn. App. 604
(affirming denial of motion to open judgment where plaintiff’s lack of dili-
gence prejudiced defendants and no good and compelling reason justified
opening judgment). In their motion to dismiss, the defendants claimed that
the business records kept by Sail the Sounds, LLC, from 1998 to 2000 were
no longer available, and that James Scoggins and Teresa Scoggins had
moved multiple times across various states and lost various records over
the past decade.