Brochu v. Aesys Technologies

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ADRIENNE BROCHU, EXECUTRIX (ESTATE OF
ADRIEN BROCHU) v. AESYS
TECHNOLOGIES ET AL.
(AC 36483)
Gruendel, Sheldon and Prescott, Js.
Argued March 16—officially released September 8, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Bellis, J.)
Marc P. Kunen, pro hac vice, with whom were Robert
M. Cheverie, and, on the brief, Dino G. Galardi, pro
hac vice, for the appellant (substitute plaintiff).
Patrick J. Glinka, with whom, on the brief, was
Kimberly Hammond, for the appellee (defendant
Crane Co.).
James A. Hall, with whom, on the brief, was James
R. Oswald, for the appellee (defendant Foster
Wheeler Corp.).
Kevin C. McCaffrey, for the appellee (defendant
Goulds Pumps, Inc.).
Opinion
PRESCOTT, J. In this appeal, the primary issue is
whether, following the death of the original plaintiff,
an unjustified delay of more than four years in substitut-
ing a representative of the decedent’s estate as the party
plaintiff supports the trial court’s dismissal of the action
for failure to prosecute with due diligence. A few weeks
prior to his death in August, 2009, the original plaintiff,
Adrien Brochu, commenced the present action alleging
injuries sustained from exposure to asbestos or asbes-
tos containing products attributable to numerous defen-
dants.1 The current plaintiff, Adrienne Brochu, was
appointed as executrix of the decedent’s estate in Sep-
tember, 2009, but did not move to substitute herself in
as the party plaintiff in this action until December, 2013,
more than four years later. The plaintiff2 now appeals
from the trial court’s judgment dismissing the action
sua sponte on the ground that she failed to prosecute
the action with due diligence. The plaintiff claims that,
despite the lengthy delay in substituting herself in, the
court improperly dismissed the case for lack of dili-
gence because the case was scheduled for trial and
she appeared on that trial date ready to proceed. We
conclude that the court properly exercised its discretion
by dismissing the action for lack of diligence and,
accordingly, affirm the judgment of the trial court.3
The record reveals the following facts and procedural
history relevant to our consideration of the plaintiff’s
appeal. The decedent was diagnosed in May, 2009, with
terminal malignant mesothelioma, a form of cancer.
At the beginning of August, 2009, he commenced the
present action, which sought damages from the defen-
dants based on allegations that his exposure to the
defendants’ asbestos or asbestos containing products
contributed in whole or in part to his cancer.4 The dece-
dent died from his illness on August 14, 2009. The plain-
tiff was appointed as executrix of the decedent’s estate
on September 2, 2009, less than a month later.
On November 2, 2012, the court issued notice that
the matter had been scheduled for a trial date of January
14, 2014.5 On November 12, 2013, the defendants, with
the consent of all parties, filed a motion seeking a con-
tinuance of the trial date to October 8, 2014.6 The defen-
dants provided the following explanation for the
requested continuance: ‘‘[The decedent] died in 2009
and probate has not been resolved. Furthermore, no
witnesses have been disclosed or produced and as such
defendants have been unable to depose witnesses or
complete any meaningful discovery.’’ Prior to this
motion for continuance, the court had not been pro-
vided with notice of the decedent’s death.
The court, Bellis, J., recognizing that the court could
not try the matter without a proper plaintiff, issued
notice on November 26, 2013, denying the motion for
continuance without prejudice, stating: ‘‘The court, sua
sponte, has raised the issue of subject matter jurisdic-
tion, which will be addressed by the court on the first
day of trial.’’ The court later directed the clerk to
instruct the plaintiff to file a motion to substitute in the
estate, with which the plaintiff complied by properly
moving to substitute herself in as the party plaintiff on
December 19, 2013. The plaintiff provided no explana-
tion in the motion to substitute for why she waited until
the eve of trial to file the motion to substitute, and then
only after she was asked to do so by the court. The
plaintiff stated only that the defendants would not be
prejudiced by allowing the substitution because ‘‘it has
no effect on the allegations made in the original com-
plaint or the factual predicate upon which it is based.’’7
On December 23, 2013, the plaintiff filed a caseflow
request asking the court to hear her motion to substi-
tute, and to rehear the motion for continuance, before
the scheduled trial date of January 14, 2014. A hearing
was held on either January 6, 2014, or January 10, 2014,
at which time the trial court deferred ruling on the
plaintiff’s renewed request for a continuance and indi-
cated its inclination to dismiss the matter for lack of
diligence in prosecuting the action.8
On January 14, 2014, the date set for trial, the parties
again appeared before the court. The court first chose
to address the plaintiff’s motion to substitute, indicating
that it saw no reason not to grant the motion, ‘‘not to
say that it shouldn’t have been filed three and a half
years ago.’’ None of the parties voiced any objections,
and the court granted the motion without further
comment.
The court next turned to the issue that it had raised
sua sponte, namely, whether the case should be dis-
missed because of the plaintiff’s failure to prosecute
the action with reasonable diligence.9 The plaintiff did
not provide a direct response to the court’s request for
a reason why she had not filed her motion to substitute
in the past three and one-half years. The plaintiff,
instead, argued that the defendants also had known
since 2009 about the decedent’s death and, effectively,
had sat on their hands, failing to raise the issue before
the court. She also argued that rather than doing nothing
to prosecute the present action, she had focused on
investigating and preparing the case for trial, and that
even if she had been ‘‘less than forthright’’ in seeking
to substitute herself in, which she freely admitted that
she should have done sooner, she construed General
Statutes § 52-599 as giving her up until the trial date to
accomplish that task.10 She further argued that she had
filed the motion to substitute immediately after the
court directed her to do so, and that the defendants
were not prejudiced by the delay, citing the defendants’
consent to a further continuance of the trial date as
her primary evidence. The plaintiff also indicated that
she was ready to proceed with the trial if that was what
the court wished to do, although she recognized that
the defendants likely would need an opportunity to
depose certain recently discovered fact witnesses.
The defendants argued that despite the plaintiff’s sug-
gestion that they could not claim prejudice due to any
lack of diligence because they had sat on their own
hands, they in fact were substantially prejudiced. In
particular, the defendants argued that because there
had not been a substitution, and, thus, no valid plaintiff
to prosecute the action, they had not had an opportunity
to file discovery motions with the court or ‘‘to seek
any sort of judicial intervention by way of dismissal,
summary judgment or otherwise.’’ In other words, the
court’s inability to entertain substantive motions while
there was no plaintiff and the defendants’ associated
inability to conduct discovery tied their hands. The
defendant also noted that, to date, they had received
very little discovery from the plaintiff and the plaintiff
had not provided them with a list of witnesses. Finally,
the defendants argued that because evidence begins
to dissipate in asbestos litigation from the date of a
plaintiff’s diagnosis, the lengthy delay in prosecuting
the present case, coupled with their inability to conduct
discovery, was highly prejudicial.
After hearing the parties’ arguments, the court ren-
dered an oral decision denying the motion for continu-
ance and dismissing the action on the basis of the
plaintiff’s failure to substitute herself in as the party
plaintiff in a timely manner and, thus, to prosecute the
action with due diligence.11 The court later issued the
following written notice: ‘‘The request for continuance
is denied due to the age of the case. After hearing on
this date, the court is dismissing the matter for the
plaintiff’s failure to timely substitute the estate, and for
failure to prosecute this matter with due diligence. As
articulated by the court following the hearing, it is
incumbent upon the plaintiff to prosecute the action
with due diligence. Here, the plaintiff’s failure to timely
file a motion to substitute herself as the party plaintiff,
although the estate had been opened in September of
2009 following the decedent’s death on August 14, 2009,
unnecessarily deprived the court of subject matter juris-
diction for an unreasonable period of time, prevented
the defendants from pursuing any discovery motions,
and prejudiced the defendants as they could not prop-
erly file motions for summary judgment which are filed
routinely as a matter of course by asbestos defendants.’’
The court subsequently denied the plaintiff’s motion to
set aside the dismissal and for reargument. This
appeal followed.
The plaintiff claims that the court abused its discre-
tion by dismissing the action for lack of diligence. In
support of that claim, the plaintiff first observes that
the case had been scheduled for trial and that she
appeared on that date prepared to proceed with the
trial. Second, she argues that until the court indicated
its inclination to dismiss the case for lack of diligence,
the defendants never sought dismissal of the action
for lack of diligence or otherwise claimed prejudice
resulting from the plaintiff’s delay in substituting herself
in as representative of the estate. In fact, she argues,
the defendants were complicit in seeking a continuance
of the trial date.
The plaintiff, however, never provided the court with
a compelling reason for her failure to substitute herself
in, despite having years in which to do so, nor has she
done so on appeal. That failure demonstrated a lack
of diligence warranting dismissal because it severely
inhibited the forward pace of the litigation, preventing
the court from properly considering substantive
motions and interfering with the defendants’ efforts to
obtain necessary discovery. Accordingly, we are not
persuaded that the court acted improperly by dismiss-
ing the action.
‘‘If a party shall fail to prosecute an action with rea-
sonable diligence, the judicial authority may, after hear-
ing, on motion by any party to the action . . . or on
its own motion, render a judgment dismissing the action
with costs.’’ Practice Book § 14-3 (a). ‘‘Practice Book
§ 14-3 reflects the judicial branch’s interest in having
counsel prosecute actions with reasonable diligence.
Judges, faced with case flow management concerns,
must enforce the pace of litigation coming before the
court, rather than allowing the parties to do so.’’ (Inter-
nal quotation marks omitted.) Gillum v. Yale Univer-
sity, 62 Conn. App. 775, 786, 773 A.2d 986, cert. denied,
256 Conn. 929, 776 A.2d 1146 (2001). ‘‘Our judicial sys-
tem cannot be controlled by the litigants and cases
cannot be allowed to drift aimlessly through the sys-
tem.’’ (Internal quotation marks omitted.) Gionfrido v.
Wharf Realty, Inc., 193 Conn. 28, 32–33, 474 A.2d 787
(1984). This court has previously established that
‘‘lengthy periods of inactivity by the plaintiff’’ constitute
sufficient grounds for a trial court to determine that
the plaintiff has failed to prosecute an action with rea-
sonable diligence. Bobbin v. Sail the Sounds, LLC, 153
Conn. App. 716, 729, 107 A.3d 414 (2014), cert. denied,
315 Conn. 918, 107 A.3d 961 (2015); see Kalb v. Aventis
Cropscience, USA, Inc., 144 Conn. App. 600, 604–606,
74 A.3d 470 (affirming trial court’s decision to deny
motion to open asbestos litigation that was dismissed
for lack of diligence because surviving spouse had failed
to take action in case for three and one-half years),
cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).
‘‘The ultimate determination regarding a motion to
dismiss for lack of diligence is within the sound discre-
tion of the court. . . . Under [Practice Book § 14-3],
the trial court is confronted with endless gradations of
diligence, and in its sound discretion, the court must
determine whether the party’s diligence falls within the
reasonable section of the diligence spectrum. . . .
Courts must remain mindful, however, that [i]t is the
policy of the law to bring about a trial on the merits of
a dispute whenever possible . . . and that [o]ur prac-
tice does not favor the termination of proceedings with-
out a determination of the merits of the controversy [if]
that can be brought about with due regard to necessary
rules of procedure. . . .
‘‘We review the trial court’s decision for abuse of
discretion. . . . In determining whether a trial court
abused its discretion, 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 conformity with the spirit of the law and
should not impede or defeat the ends of substantial
justice. . . .
‘‘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 . . . .’’ (Citations omitted;
internal quotation marks omitted.) Bobbin v. Sail the
Sounds, LLC, supra, 153 Conn. App. 726–27. Here,
because the court determined that the plaintiff failed to
prosecute the present action with reasonable diligence
based largely on the plaintiff having waited for more
than four years after her appointment as executrix to
move to substitute herself in as the representative of the
decedent’s estate, we turn briefly to the law governing
substitutions following the death of a party plaintiff.
General Statutes § 52-599 (b) provides in relevant
part: ‘‘A civil action or proceeding shall not abate by
reason of the death of any party thereto, but may be
continued by or against the executor or administrator
of the decedent. If a party plaintiff dies, his executor
or administrator may enter within six months of the
plaintiff’s death or at any time prior to the action com-
mencing trial and prosecute the action in the same
manner as his testator or intestate might have done if
he had lived. . . .’’
‘‘Although at common law the death of a sole plaintiff
or defendant abated an action . . . by virtue of § 52-
599, Connecticut’s right of survival statute, a cause of
action can survive if a representative of the decedent’s
estate is substituted for the decedent. It is a well estab-
lished principle, however, that [d]uring the interval . . .
between the death and the revival of the action by the
appearance of the executor or administrator, the cause
has no vitality. The surviving party and the court alike
are powerless to proceed with it. . . . Moreover, the
language of § 52-599, and its predecessor, has been con-
strued to mean that the fiduciary may be substituted
as a matter of right within the time prescribed by the
statute, but the court in its discretion may permit the
fiduciary to be substituted after the time described for
good cause shown.’’ (Citations omitted; internal quota-
tion marks omitted.) Negro v. Metas, 110 Conn. App.
485, 497–98, 955 A.2d 599, cert. denied, 289 Conn. 949,
960 A.2d 1037 (2008). Section 52-599 places the decision
of whether to proceed with a civil action following the
death of a plaintiff directly in the hands of the duly
appointed representative of that plaintiff’s estate; it is,
after all, the fiduciary duty of the representative to
decide whether a continuation of any legal proceedings
would be in the best interest of the estate. See Hall v.
Schoenwetter, 239 Conn. 553, 564, 686 A.2d 980 (1996).
The time for making that decision, however, cannot be
without limitations.
The court determined that the plaintiff failed to prose-
cute the present action with reasonable diligence based
primarily upon the plaintiff’s unexplained decision to
wait for more than four years before exercising her
right to substitute herself in as representative of her
decedent’s estate, during which time both the court
and the defendants were left ‘‘powerless to proceed.’’
(Internal quotation marks omitted.) Negro v. Metas,
supra, 110 Conn. App. 498, citing Barton v. New Haven,
74 Conn. 729, 731, 52 A. 403 (1902) (holding that until
proper substitution for deceased plaintiff was made,
court was left with ‘‘dormant proceding’’ and ‘‘effective
action could not be taken until it was given new life
by the appearance of a party plaintiff qualified to pro-
ceed with it’’). The plaintiff’s inaction unquestionably
caused the case to languish on the court’s docket with
no appreciable activity for several years, which the
court reasonably could have construed as an unduly
protracted period of dormancy warranting dismissal.
Further, the lack of a party plaintiff tied the defendants’
hands such that they could not effectively proceed with
their defense of the action. They were prejudiced by
their inability to effectively engage in discovery or to
file substantive motions with the trial court. Accord-
ingly, the lengthy period of inactivity by the plaintiff,
coupled with the prejudice to the court and the defen-
dants, demonstrates that the plaintiff’s efforts fell well
outside the spectrum of reasonable diligence. See Bob-
bin v. Sail the Sounds, LLC, supra, 153 Conn. App. 726.
The plaintiff seeks to deflect her own lack of diligence
by pointing out what she construes as the defendants’
lack of effort to push the litigation forward. It is the
obligation of the plaintiff, however, the party who set
the wheels of justice in motion, to ensure the forward
momentum of the case. Although the defendants had
the means to raise the issue of the plaintiff’s failure to
prosecute to the court earlier than they did, the plaintiff
has cited no authority for the proposition that the defen-
dants’ failure to do so should excuse the plaintiff’s own
lack of diligence.
Even if the plaintiff is correct that she was under no
statutory obligation to perfect a substitution prior to
trial, an issue that we leave for another day; see footnote
three of this opinion; this does not mean that her choice
to wait for several years before filing the motion to
substitute cannot form the basis of a dismissal for lack
of diligence in prosecution. Inaction that suspends any
proper activity by the court or by other parties to move
a case forward toward a resolution and off of the court’s
dockets is precisely the type of situation warranting a
court’s exercise of its discretion to dismiss an action
for lack of diligence.
On the basis of our review of the record, we conclude
that the court properly exercised its discretion by dis-
missing the present action for lack of diligence in prose-
cuting the matter. The matter was commenced in
August, 2009, and thus had been on the court’s docket
for more than four years at the time it was dismissed.
More importantly, for the majority of that time period,
the case was in limbo and could not properly progress
because the decedent had died and, although the plain-
tiff had been appointed as executrix of his estate within
a month of his death, she did not notify the court of
the death and, without any explanation, did not move
to substitute herself in as representative of the estate
for several years. In fact, despite the plaintiff receiving
notice in November, 2012, that a trial date had been
scheduled for January, 2014, the plaintiff still did not
file a motion to substitute until December, 2013, and
then only at the behest of the court. The defendants,
like the court, were powerless to act prior to the substi-
tution. Accordingly, they were prejudiced by an inability
to file motions for summary judgment or other substan-
tive motions and to effectively engage in discovery. The
plaintiff failed to provide the court with any reasonable
explanation for why she allowed the matter to languish
on the docket or why she waited until the eve of trial
to effectuate a substitution.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The initial complaint was brought against the following defendants: Aesys
Technologies; Alfa Laval, Inc.; Allis Chalmers Corp. Product Liability Trust;
American Optical Corp.; American Standard, Inc.; A. O. Smith; Aurora Pump
Co.; Bayer Cropscience; Bell & Gossett Co.; Boise Cascade; Bondex Interna-
tional, Inc.; Buffalo Pumps, Inc.; Burnham Corp.; Burnham Holdings, Inc.;
Carrier Corp.; CBS Corp.; Columbia Boiler Co.; Crane Co.; Cummings Insula-
tion Co.; D & N Insulation Co.; Elliott Turbomachinery Co., Inc.; Fairbanks
Morse Engines; Foster Wheeler Corp.; Garlock Sealing Technologies, LLC;
General Electric Co.; Georgia Pacific Corp.; Goodyear Tire & Rubber Co.;
Goulds Pumps, Inc.; Homasote Co.; IMO Industries, Inc.; Ingersoll-Rand Co.;
Kaiser Gypsum Co., Inc.; Lamons Gasket Co.; Leslie Controls, Inc.; Melrath
Gasket; Mobil Corp.; New England Insulation Co.; Peerless Heater Co.; Riley
Stoker Corp.; R.W. Beckett Corp.; Scapa Dryer Fabrics, Inc.; Sears Roebuck &
Co.; Union Carbide Corp.; Uniroyal Holding, Inc.; Victor Reinz Corp.; Viking
Pump, Inc.; Warren Pumps, Inc.; Weil-McLain Co., Inc.; Womco Insulation,
Inc.; Wm. Powell Co.; Yarway Corp.; York Shipley Global; and Zurn Indus-
tries, Inc.
The action eventually was withdrawn or otherwise disposed of with
respect to all defendants except three: Goulds Pumps, Inc., Foster Wheeler,
LLC, and Crane Co. Accordingly, we refer to those three companies collec-
tively as the defendants.
2
Hereafter, we refer in this opinion to Adrienne Brochu as the plaintiff
and to Adrien Brochu as the decedent.
3
The plaintiff raises as a separate claim of error that the court abused
its discretion by also dismissing the case on the ground that she failed in
timely fashion to substitute herself in as the legal representative of her
decedent’s estate. According to the plaintiff, she properly moved to substi-
tute herself in prior to the commencement of the trial, which she argues
was all that she was required to do to comply with General Statutes § 52-
599 (b). She further notes that the court did not deny the motion to substitute
on the ground that it was untimely filed, but rather granted the motion,
which was inconsistent with its subsequent dismissal of the action. Because
we conclude that the court properly dismissed the action for lack of dili-
gence, we do not address this additional claim of error. Nor is it necessary
for us to construe § 52-599 to determine whether the plaintiff’s motion to
substitute was filed within the time frame set forth therein. For purposes
of our analysis, we construe the court’s statement that the motion to substi-
tute was not timely filed as conveying that the motion was not filed with
reasonable diligence following the death of the decedent, not that the motion
technically was late.
4
At the time the action was filed, the decedent was represented by Attor-
ney Robert Cheverie, who now represents the estate.
5
We note that a certificate of closed pleadings was never filed in this
matter, and therefore, the case was never assigned for a judicially supervised
pretrial. See Practice Book §§ 14-8 and 14-11.
6
In its appellee’s brief, Foster Wheeler, LLC, asserts that the motion for
continuance was ‘‘filed by the plaintiff alone’’ and that ‘‘no defendant joined
in that motion.’’ Goulds Pumps, Inc., similarly states in its brief that the
motion was filed by the plaintiff. The record before this court shows, how-
ever, that the motion for continuance was signed by defense liaison counsel,
purportedly on behalf of all the defendants.
7
The motion to substitute erroneously stated that the plaintiff had not
been appointed as executrix until November 26, 2013. At the hearing on the
motion, counsel for the plaintiff acknowledged that the November 26, 2013
date was inaccurate, attributing the mistake to his staff and admitting that
the appointment had, in fact, occurred in 2009.
8
The defendants state that the hearing at which the court sua sponte
raised the possibility of dismissal for lack of diligence occurred on January
10, 2014. The plaintiff asserts that the hearing was held on January 6, 2014.
We are unable to verify the date or what transpired because the record does
not include a transcript of those proceeding.
9
After the court had raised the issue of lack of diligence to the parties,
the defendants filed motions to dismiss or motions for summary judgment
raising the same issue. It is clear from the record, however, that the court’s
judgment of dismissal was rendered on the court’s own motion; no orders
were rendered on the motions filed by the defendants.
10
The Florida attorney who appeared pro hoc vice on behalf of the plaintiff
told the court: ‘‘[I]n [asbestos litigation] we do this all the time, Your Honor.
People die of mesothelioma between the time of filing and the suit and the
trial. That doesn’t mean everything comes to a screeching halt in terms of
having to substitute that party. It’s a perfunctory procedure that pretty much
dealt with, and unless the court has to address anything, there is no reason
for subject matter jurisdiction to come up because all defense counsel
knows. We do this all the time. We take depositions. We do discovery. We
put up coworkers. We do this kind of work all the time.’’ The plaintiff’s
counsel revisited this theme in his rebuttal argument, indicating to the court
that failure to substitute ‘‘in the asbestos world, happens all the time.’’ The
court responded: ‘‘That may be but that’s not what the law is. What you
might do in your asbestos world is one thing, but what the law requires and
what this court is held to is another thing.’’
11
The court stated as follows: ‘‘So with respect to the motion for continu-
ance, I am going to deny the motion for continuance. I do understand that
when it was filed it was indicated that it was by consent. However, at the
end of the day, it’s the court’s job to manage the cases and as presiding
judge that’s what I do. This case is a 2009 case. Although it’s only had one
trial date, which I’m not even sure it should have had any trial date because
there was no subject matter jurisdiction, but regardless, it is too old and it
should have been tried before today and there’s—the court’s unwilling and
finds it unreasonable to continue the case to allow the defendants to now
do the discovery they need, to pursue motions for summary judgment, to
have objections filed and then continue it four months for a decision on the
summary judgment. So I am—I’m going to deny the motion for continuance.
‘‘I would note that it is incumbent upon the plaintiff to prosecute its—
prosecute its actions. By failing to substitute the estate in a timely manner,
the court has been unnecessarily deprived of subject matter jurisdiction
and, moreover, the defendants have been prejudiced because they have
effectively been shut out of court. They would be unable to have any discov-
ery motions adjudicated and they would be unable to have any summary
judgment motions decided.
‘‘So for those reasons, the court is going to dismiss the action for the
plaintiff’s failure to substitute the estate in a timely manner and for the
failure to prosecute the action with the due diligence that’s required.’’