Opinion
No. CV 00-0598476
May 19, 2005
MEMORANDUM OF DECISION
This matter is before the court on the order of the Appellate Court to articulate the reasons for this court's denial of the plaintiffs' Second Motion to Open Judgment of Dismissal (#183) entered on August 31, 2004. The motion was denied because the plaintiffs failed to diligently prosecute the case, significantly prejudicing the defendants. In light of the facts recited herein, the court was unpersuaded by the plaintiffs' claim that they were prevented by mistake, accident or other reasonable cause from prosecuting the case through no fault of their own.
The court found the following facts. This was a medical malpractice action filed with the court on May 1, 2000, with a return date of June 13, 2000. The case was dismissed (Langenbach, J.) nearly four years later on March 23, 2004 for failure of the plaintiffs to proceed with trial on the date they had scheduled nearly a year and one-half earlier. The dismissal occurred at the trial when the plaintiffs' counsel elected not to proceed. The transcript of those proceedings were made part of the record. The gravamen of the plaintiffs' refusal to proceed was that their counsel was not qualified to try the case and was "just keeping the case alive." The plaintiffs retained Attorney Annenberg to represent them in this matter. Attorney Annenberg filed the action and then filed a motion for the admission of Kenneth M. Levine, a member of the Massachusetts bar, to be admitted pro hac vice (#130). That motion was denied by the court (Peck, J.) on November 5, 2001, more two and one-half years before the dismissal. The court denied the motion for the stated reason that Attorney Levine's affidavit failed to comply with Practice Book § 2-16. Specifically, the affidavit did not state that there were no pending disciplinary proceedings against Mr. Levine. In fact, just months earlier on August 30, 2001, a petition for discipline was filed against Attorney Levine in the Commonwealth of Massachusetts and was pending at the time of the denial unbeknownst to the court. (#174).
On November 21, 2001, Attorney Annenberg filed a motion to reargue the motion for admission of Mr. Levine's pro hac vice. The motion was not accompanied by a compliant affidavit. That motion was denied by the court (Peck, J.) on July 10, 2003. Although notice of denial was sent to the plaintiffs' counsel on November 6, 2002, Kenneth Levine appeared at and conducted the deposition of Karen Skinner more than a month later, on December 17, 2001 (Objection to Reargue #131, Tab E).
On July 9, 2003, Attorney Annenberg filed a motion to admit Vivian M. Sparacio admitted pro hac vice. He represented to the court that her appearance was "vital to the prosecution . . . [and that she had] a longstanding relationship with the plaintiffs and possessed specialized skill and knowledge regarding complex medical malpractice litigation." The court (Beach, J.) granted admission on July 19, 2003 (#174). Vivian Sparacio failed to appear at the aborted trial. (Transcript page 6, lines 7-22.) At the aborted trial, Attorney Annenberg stated that Attorney Sparacio was not competent to try the case. No good cause was given for her failure to appear for trial.
The court (Beach, J.) conducted a status conference on April 17, 2002 at which the parties requested a second status conference on January 28, 2004. Plaintiffs' counsel sought and obtained a continuance of the January 28, 2004 status conference by correspondence sent January 27, 2004. A second status conference was rescheduled for February 5, 2004. That conference was also continued and rescheduled for February 13, 2004. The status conference was conducted on that date.
At the hearing on March 23, 2004, Attorney Annenberg said that Mr. Levine's application for admission pro hac vice was denied on "procedural grounds." He was less than candid with the court. Mr. Levine was unable to comply with the Practice Book and accurately stated that he had no disciplinary actions pending against him. The denial of his admission was substantive, a fact Attorney Annenberg must have known, lest he would have filed a compliant affidavit. (Transcript page 2, lines 21-27.)
Mr. Levine also authored a letter to Judge Peck dubiously stating that he had always been "candid and clear" with the court (#174, page 5). The lacuna in his affidavit, otherwise parroting the Practice Book, was clearly intended to mislead the court.
The plaintiffs were aware that they were not competently represented months before the trial, but did not retain competent counsel until months after the trial. In December of 2003, approximately four months before the trial date, Attorney Annenberg informed the plaintiffs of their lack of effective legal representations. (Transcript page 3, lines 26-27.) Despite the knowledge, the plaintiffs did not present any evidence that they had made any effort to retain alternate counsel. Eighteen days before the trial, the plaintiffs sent their file to another firm which declined to accept the case. That firm filed an appearance on May 17, 2004, nearly two months after the trial date.
Mr. Annenberg claimed to have the "experts lined-up," but there are no expert disclosures in the file. (Transcript page 4, line 14-17.) Mr. Annenberg also admitted that he was not diligently prosecuting the case for four years when he made the audacious statement that he was "just keeping the case alive." (Transcript page 5, page 17-21.) The plaintiffs failed to make a timely effort to retain competent counsel through which to prosecute the case.
The defendant has been greatly prejudiced. The court file consists of four over-stuffed volumes containing 192 pleadings. The court has conducted numerous conferences and hearings. The parties have conducted depositions and have retained experts. They have also incurred the substantial legal expense of four years of litigation so that the plaintiffs could merely "keep the case alive," knowing that the plaintiffs were not represented by competent and responsible counsel.
The court is obliged to balance the equities for and against both the plaintiffs and the defendant. While the plaintiffs may have been unwitting victims of Attorneys Levine, Annenberg and Sparacio, they have known of and have not demonstrated to the court that they have made a diligent effort to rectify the situation in the months prior to trial. Parties are free to select counsel of their choice. They bear responsibility for and are bound by the consequences of their selection. Retaining qualified counsel two months after your trial date and six months after becoming aware of the need to do so is not sufficient diligence to outweigh the prejudice to the defendant.
The plaintiffs' argument that it did not hinder the prosecution of the case is both erroneous and beside the point. A plaintiff has an affirmative duty to prosecute, not a neutral duty not to hinder prosecution. The stalling tactics used by plaintiffs' counsel in fact hindered the prosecution as evidenced by the plaintiffs' inability to proceed on their longstanding trial date. The court is bound to do justice to all sides.
"In granting or denying a motion to open judgment the trial court is required to exercise sound judicial discretion and its decision will be set aside only for an abuse of such discretion." (Internal quotation marks omitted.) Bojila v. Shramko, 80 Conn.App. 508, 836 A.2d 1207 (2003), citing Conway v. Hartford, 60 Conn.App. 630, 634, 760 A.2d 974 (2000). In Brehm v. Brehm, 65 Conn.App. 698, 83 A.2d 1068 (2001), the appellate court affirmed the trial court's denial of a motion to open judgment of dismissal where the trial court stated that even if it were to accept the representations of the defendant's counsel that the defendant did not learn until some time in December 2000 that he was required to attend a mandatory workshop on the day of trial, it would not grant the motion to reopen the dismissal because the defendant had ample time before the trial date to inform the court and to seek a continuance. The court indicated that to grant a motion under these circumstances would greatly prejudice the defendant.
In Vitone, Administratrix of the Estate of John Vittone v. Waterbury Hospital et al. (AC 24611), our appellate court stated that there are "three parameters which must be met for a trial court order of sanctions for a violation of discovery order to withstand scrutiny [on appeal]. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning . . . Second, the record must establish that the order was in fact violated. Third, the sanction imposed must be proportionate to the violation. Menna v. Jaiman, 80 Conn.App. 131, 135, 832 A.2d 1219 (2003), quoting Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 7-18, 776 A.2d 1115 (2001). In this case, the trial date in this case was reasonably clear. The parties scheduled the case at a pretrial court proceeding. They received a notice of both the pretrial and the trial management conference sent in the ordinary course of court administration. The plaintiffs were aware of the trial date and what they needed to do to present their case. Both counsel appeared and acknowledged receipt of notice of the trial date. Their very presence was indicative of the fact that they knew and had received actual notice of the trial date. The March 23, 2004 transcript clearly and unequivocally establishes that the plaintiffs violated the court order by failing to proceed with the trial on the longstanding trial date. No good cause for their failure to prosecute has been given. The dismissal of the case is proportionate to the failure to proceed with trial in light of the substantial prejudice to the defendant as articulated in the defendant's objection to the motion to reopen and the transcript of March 23, 2004. The individual plaintiffs are not without fault. "Courts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the [movant] had no opportunity to make defense, or was prevented from so doing by accident, or the fraud or improper management of the opposite party, and [the movant was] without fault on his [or her own part." (Internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 284, 449 A.2d 986 (1982). "Fraud, accident, mistake, and surprise are recognized grounds for equitable interference, when one, without his own negligence, has lost an opportunity to present a meritorious defense to an action, and the enforcement of the judgment so obtained against him would be against equity and good conscience, and there is no adequate remedy at law." (Internal quotation marks omitted.) Hoey v. Investors' Mortgage Guaranty Co., 118 Conn. 226, 230-31, 171 A. 438 (1934). The plaintiffs do not qualify for this safe harbor.
The court has shown leniency toward and consideration for the plaintiffs. The subject dismissal was the second dismissal of this case. The case was also dismissed on May 3, 2002 for failure to diligently prosecute (Langenbach, J.). Notwithstanding the merit of the dismissal and the defendant's objection to plaintiffs' Motion to Open (#161) the court, (Langenbach, J.) granted plaintiffs' Motion to Open (#158) on July 9, 2002.
The court found that the plaintiffs were not prevented by mistake, accident or other reasonable cause from proceeding with trial as scheduled, that the defendants suffered significant prejudice as a result of the plaintiffs' lack of diligence, and that the dismissal of the case was not disproportionate to the prejudice suffered by the defendants.
BY THE COURT
V.L. BRYANT, P.J.