Opinion
UWYCV156028359S
03-02-2016
Maria Ugalde, Administrator of the Estate of Richard Ugalde v. Saint Mary's Hospital, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO SET ASIDE NONSUIT (#120)
Robert B. Shapiro, J.
This medical malpractice matter is before the court concerning the plaintiff's motion to set aside nonsuit (motion to set aside), which was heard at the short calendar on February 16, 2016. After consideration, for the reasons stated below, the motion is denied.
I
Background
In her complaint, dated August 6, 2015, the plaintiff alleges that in May 2013 Richard Ugalde, the decedent, was treated at St. Mary's Hospital by defendant Dr. Shady Macaron (Macaron), a general surgeon, where a robot assisted sleeve gastrectomy was performed, after which the decedent suffered a post-operative gastric leak while he was hospitalized, resulting in his death.
On September 21, 2015, Macaron filed a notice stating that he had directed interrogatories and requests for production to the plaintiff (discovery request). See #101. The plaintiff did not seek an extension of time to respond or file objections thereto within the requisite thirty-day period. See Practice Book § § 13-7; 13-10. Thus, pursuant to the Practice Book, discovery responses were due in October 2015.
When discovery responses were not received, Macaron filed a motion for nonsuit (#111). The plaintiff did not respond to this motion. In its order dated November 9, 2015 (#111.10), the court afforded the plaintiff additional time to comply with the discovery request and stated: " Discovery compliance by December 4, 2015 is directed. If compliance does not occur, the movant may apprise the court by motion and a nonsuit may be considered." Thus, the plaintiff was put on notice that compliance was required and that failure to comply could result in a nonsuit.
On December 7, 2015, Macaron filed a motion for order (#117), in which he stated that the plaintiff had failed to comply with the court's order by again failing to provide discovery responses. Macaron again moved for a nonsuit. The plaintiff filed no response to this second motion for nonsuit and did not provide discovery responses before the court considered the motion.
By order dated December 21, 2015 (#117.10), the court noted that discovery compliance is necessary to afford a defendant a fair opportunity to prepare a defense and, in the exercise of its discretion, found that a nonsuit was warranted. The court also stated, " If compliance occurs by January 15, 2016, the court would consider setting aside the nonsuit. See Biro v. Hill, 231 Conn. 462, 464-66, 650 A.2d 541 (1994)."
On December 30, 2015, the plaintiff filed a notice of compliance (#119), in which she stated that she had complied with the court's December 21, 2015 order by furnishing her discovery responses. On the same date, she filed her motion to set aside (#120). Therein, she stated that she had provided " good-faith compliance with the order weeks before it was due" and that the defendant is simply not prejudiced by the timing of the disclosure. See motion to set aside, p. 1.
On January 6, 2016, Macaron filed his objection to the plaintiff's motion to set aside and his motion for costs. See #121. Therein, Macaron asserted that the plaintiff had failed to answer Interrogatories 75-78, pertaining to expert witnesses, by stating that she would provide the requested information " in a timely fashion in accordance with any case specific scheduling order or similar discovery order and the Rules of Practice." See objection, p. 4. This response by the plaintiff ignored this court's two previous orders, discussed above, in which the plaintiff was specifically directed to provide discovery compliance.
In addition, Macaron cited other alleged deficiencies in the responses. See objection, pp. 5-7.
The plaintiff and co-defendant St. Mary's Hospital, Inc., submitted a proposed scheduling order (#123), which was filed on January 7, 2016. This proposed scheduling order was not signed by Macaron's counsel and has not been approved by the court.
On January 15, 2016, the plaintiff filed a notice of supplemental compliance, objections to Macaron's interrogatories, and a reply to Macaron's objection to the motion to set aside. See ##125, 126. In the objections to the interrogatories concerning expert witnesses, the plaintiff states that she " Objects on the grounds that the scheduling order trumps the Interrogatory request and provides until April 1, 2017 to do so." See #125. As stated above, the proposed scheduling order has not been approved by the court. It is not a court order.
II
Discussion
A
The plaintiff does not challenge the court's previous entry of a nonsuit as to her claims against Macaron. Rather, she argues that the nonsuit should be set aside since she has complied with the discovery request. " The power of the court to set aside a judgment of nonsuit is governed by General Statutes § 52-212 . . . To obtain relief, a plaintiff must establish both 'that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause.' Biro v. Hill, 231 Conn. 462, 467, 650 A.2d 541 (1994); see also Practice Book § 17-43(a)." (Footnote omitted.) Moore v. Brancard, 89 Conn.App. 129, 132, 872 A.2d 909 (2005).
Section 52-212(a) provides, in relevant part:
" Since the conjunctive 'and' meaning 'in addition to' is employed between the parts of the two-prong test, both tests must be met." (Internal quotation marks omitted.) Berzins v. Berzins, 105 Conn.App. 648, 654, 938 A.2d 1281, cert. denied, 289 Conn. 932, 958 A.2d 156 (2008); see Flater v. Grace, 291 Conn. 410, 419, 969 A.2d 157 (2009) (§ 52-212(a) sets forth two requirements). Practice Book § 17-43(a) contains similar terms.
Section 17-43(a) provides, in relevant part, " Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant's attorney . . ."
Where a plaintiff has " not fulfilled the statutory prerequisites for setting aside a nonsuit, the trial court . . . ha[s] no authority to set aside the nonsuit." Jaconski v. AMF, Inc., 208 Conn. 230, 238, 543 A.2d 728 (1988). Section 52-212 embodies the legislative determination that " not all deviations from ideal performance constitute negligence, and that a limited class of deviations may be excusable because they were the result of 'mistake, accident or other reasonable cause.' . . . In those cases, the trial court may exercise its discretion and set aside a judgment of nonsuit." (Citation omitted.) Id., 239.
" The first prerequisite to the granting of a motion to open a judgment is a showing that a good cause of action existed. 'The moving party on a motion to open must not only 'allege, ' but also make a 'showing' sufficient to satisfy the two-pronged test of § 52-212 . . .' (Citations omitted.) Eastern Elevator Co. v. Scalzi, 193 Conn. 128, 133-34, 474 A.2d 456 (1984). A bald assertion that one existed is inadequate." Moore v. Brancard, supra, 89 Conn.App. 132. See Pantlin & Chananie Dev. Corp. v. Hartford Cement & Bldg. Supply Co., 196 Conn. 233, 241, 492 A.2d 159 (1985), where, although the movant presented a motion and affidavit, a deficiency remained as to the first part of the test because the defendant did not offer any evidence showing that a good defense existed. " Consequently, the trial court could make no finding as to the validity of the defense." Id.
Here, the plaintiff has made no showing that a good cause of action existed. The court has no basis on which to make a finding as to the validity of the cause of action.
Concerning the second part of the two-pronged test, as stated above, the movant must establish that she was prevented from prosecuting the action " by mistake, accident or other reasonable cause . . ." See General Statutes § 52-212(a). At oral argument, the plaintiff asserted that her counsel's office omitted seeking an extension of time to respond to the discovery request and missed the date set by the court for court-ordered discovery compliance.
The second motion for nonsuit (#117) clearly stated that the basis therefor was the plaintiff's failure to provide discovery compliance. Review thereof when the motion was received or even when it appeared on the short calendar would have made it clear it was addressed to the failure to timely comply with the discovery request.
The Supreme Court has " long held that negligence is no ground for vacating a judgment, and that the denial of a motion to open a nonsuit judgment should not be held an abuse of discretion where the failure to prosecute the claim was the result of negligence." Jaconski v. AMF, Inc., supra, 208 Conn. 238. Under the circumstances here, plaintiff's counsel concedes that the plaintiff's failure to timely comply was due to inattention. See Moore v. Brancard, supra, 89 Conn.App. 133.
Thus, the plaintiff's motion to set aside does not meet the statutory and Practice Book requirements. " [A] court may decline to grant a motion to set aside a judgment of nonsuit that fails to conform to the requirements of § 52-212 or Practice Book § 17-43." Baris v. Southbend, 68 Conn.App. 546, 554, 791 A.2d 713 (2002).
B
In her reply (#126), paragraph 14, the plaintiff states that she filed objections to certain of the interrogatories (Nos. 75-78, concerning disclosure of experts) as to which the court previously ordered compliance. See plaintiff's objections, dated January 15, 2016 (#125), discussed above.
These objections were filed in January 2016, long after the thirty-day period afforded to the plaintiff by Practice Book Sec. 13-7(a), which provides that interrogatories shall be answered under oath within thirty days unless " (4) Objections to the interrogatories and the reasons therefor are filed and served within the thirty-day period." The plaintiff's objections to the interrogatories are untimely.
Also, the plaintiff's reliance on Practice Book § 13-4(g), to argue that Macaron's interrogatories concerning expert witnesses are premature, is misplaced. Section 13-4(g) states that the schedule for expert discovery set forth therein applies " [u]nless otherwise ordered by the judicial authority . . ." Here, as discussed above, the court's orders directed the plaintiff to comply with the discovery request.
It is evident that the plaintiff still has not provided the full discovery compliance which was ordered by the court. A party may not be permitted to selectively comply with the court's orders and the Practice Book. " It is axiomatic that a person may not pick and choose which court orders he will obey . . . A party's opinion concerning the necessity for a particular order does not excuse his disobedience . . ." (Internal quotation marks omitted.) Hibbard v. Hibbard, 139 Conn.App. 10, 19, 55 A.3d 301 (2012).
CONCLUSION
1. For the foregoing reasons, the plaintiff's motion to set aside nonsuit is denied.
2. At oral argument, Macaron's counsel stated that Macaron was seeking costs only if the court granted the plaintiff's motion to set aside. In view of this statement, since the motion to set aside is denied, the court has not considered Macaron's motion for costs, which is deemed to be withdrawn.
It is so ordered.
(a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense. (b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear.The plaintiff's motion to set aside does not comply with General Statutes § 52-212(b)'s requirement of a verification under oath.