Levine v. Hite , 189 Conn. App. 281 ( 2019 )

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MICHELLE LEVINE v. RANDALL HITE ET AL.
(AC 40626)
Alvord, Prescott and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries she suffered
when her automobile collided with a vehicle that was operated by the
defendant R and owned by the defendant T. Prior to trial, the trial court
denied the defendants’ motion to compel the production of certain of
the plaintiff’s medical payment records. The court determined that the
motion to compel was untimely in light of a scheduling order that a
previous trial court had entered more than one year before, which stated
that written discovery was done. The court also noted that the parties
were without a jury, as half of the jurors who previously had been
chosen had been excused from service on the jury. Thereafter, a different
trial court entered an order that included dates for jury selection and
trial, and precluded, inter alia, further continuances, motions and discov-
ery without prior permission from the court. The defendants then sought
reargument and reconsideration of the denial of their motion to compel,
claiming, inter alia, that because the matter had been rescheduled, there
was plenty of time to secure the plaintiff’s medical records. The trial
court that denied the motion to compel denied the defendants’ motion
for reargument and reconsideration, stating that the motion for reargu-
ment and reconsideration had been filed in violation of the court order
that required prior permission from the court to file additional pretrial
motions. When the parties appeared for jury selection, a different judge,
who had been assigned as the trial judge, granted the plaintiff’s motion
for a continuance when her counsel requested a postponement for medi-
cal reasons and, sua sponte, permitted the defendants to continue with
discovery. The trial judge thereafter declined the plaintiff’s motion for
reargument and reconsideration of his decision to allow the defendants
to engage in further discovery, which was based on the plaintiff’s asser-
tion that the trial judge’s ruling deprived her of her due process rights
to notice and an opportunity to be heard, and was contrary to the law
of the case doctrine. After a different trial court granted the defendants’
motion for an order of compliance to procure certain of the plaintiff’s
medical records, the defendants filed a motion for a judgment of nonsuit
in which they claimed that the plaintiff had failed to comply with the
order of compliance. A different trial court denied the defendants’
motion for a judgment of nonsuit without prejudice and ordered the
plaintiff to produce the previously requested medical records. That court
then entered an order of nonsuit after the defendants again sought a
judgment of nonsuit on the ground that the plaintiff had failed to comply
with the courts’ discovery orders. On appeal to this court, the plaintiff
claimed, inter alia, that her due process rights were violated when the
trial judge improperly reconsidered the trial court’s ruling denying the
defendants’ motion to reargue the denial of their motion to compel, and
allowed the defendants to engage in further discovery without affording
her a fair opportunity to respond. The plaintiff further claimed that her
failure to comply with the trial courts’ discovery orders did not warrant
the rendering of a judgment of nonsuit against her. Held:
1. The trial judge did not violate the plaintiff’s due process rights by reconsid-
ering, sua sponte, the defendant’s prior request to obtain additional
discovery and permitting the defendants to engage in further discovery:
the trial judge did not abuse his discretion by permitting additional
discovery, as his ruling was a case management decision, he was aware
of the filings in the case and was willing to accommodate the plaintiff’s
request to postpone trial when her counsel requested a continuance
for medical reasons, and, notwithstanding the plaintiff’s claim that the
rulings of the prior trial court were the law of the case, the trial judge
emphasized that circumstances had changed since the prior ruling; more-
over, because the discovery issue was raised at a hearing that was
necessitated by the plaintiff’s motion to continue the trial for an addi-
tional six to eight weeks, it was not surprising that the trial judge would
raise and decide other issues that were impacted by such a lengthy
delay, the defendants’ ongoing requests to obtain certain of the plaintiff’s
records, although previously determined to be untimely and made with-
out prior permission of the court, could be seen as reasonable in light
of the change in circumstances, the plaintiff made no request for a
recess to review the file and prepare her arguments, there was no
indication as to what the plaintiff would have argued if she had had
advance notice and the opportunity to be heard on the defendants’
request to engage in further discovery, and there was no evidence to
support the plaintiff’s assumption that the trial judge was unfamiliar
with the prior rulings in the case and acted without knowledge of the
contents of the file.
2. The trial court did not abuse its discretion in rendering judgment of
nonsuit against the plaintiff for failing to comply with three previous
orders of the court concerning discovery; the discovery orders of three
different trial courts were reasonably clear, it was undisputed that the
plaintiff failed to comply with those orders, and the court that rendered
judgment properly considered all of the relevant factors in ordering the
nonsuit, and given that the plaintiff chose not to comply with the orders
of three trial courts, she did so at the risk of having her claims fail on
appeal, and the trial judge’s sua sponte decision to allow the defendants
to engage in further discovery was reasonable and proper.
3. The trial court did not abuse its discretion when it ruled on the defendants’
motion for a judgment of nonsuit prior to considering the plaintiff’s
motion for an order of sanctions against the defendants’ counsel; the
court’s decision was one of case management, and the plaintiff cited
no relevant authority that would have required the court to consider
her motion first.
Argued January 15—officially released April 16, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Sha-
piro, J., denied the defendants’ motion to compel; there-
after, the court, Sheridan, J., issued certain orders
pertaining to trial; subsequently, the court, Shapiro,
J., denied the defendants’ motion for reargument and
reconsideration of its ruling denying the defendants’
motion to compel; thereafter, the court, Noble, J.,
granted the plaintiff’s motion for a continuance, granted
the defendants’ motion for reargument and reconsidera-
tion of the denial of their motion to compel, and issued
certain orders pertaining to discovery; subsequently,
the court, Noble, J., denied the plaintiff’s motion for
reargument and reconsideration of its orders pertaining
to discovery; thereafter, the court, Hon. Constance L.
Epstein, judge trial referee, granted the defendants’
motion for an order of compliance; subsequently, the
court, Hon. A. Susan Peck, judge trial referee, denied
the defendants’ motion for a judgment of nonsuit and
issued certain orders pertaining to discovery; there-
after, the court, Hon. A. Susan Peck, judge trial referee,
issued an order of nonsuit and rendered judgment
thereon, from which the plaintiff appealed to this
court. Affirmed.
Jennifer B. Levine, with whom was Harvey L.
Levine, for the appellant (plaintiff).
William J. Melley III, for the appellees (defendants).
Opinion
ALVORD, J. The plaintiff, Michelle Levine, appeals
from the trial court’s judgment of nonsuit rendered in
favor of the defendants, Randall Hite and Tanya Hite,
as a result of the plaintiff’s failure to comply with three
previous orders of the court regarding discovery. On
appeal, the plaintiff claims that (1) the court, Noble, J.,
improperly raised and considered a prior ruling of the
court, Shapiro, J., without affording her a fair opportu-
nity to respond, (2) the plaintiff’s failure to comply with
discovery orders did not warrant the rendering of a
judgment of nonsuit by the court, Hon. A. Susan Peck,
judge trial referee, and (3) Judge Peck improperly
declined to consider the plaintiff’s motion for sanctions
against the defendants’ counsel prior to rendering the
judgment of nonsuit. We affirm the judgment of the
trial court.
A review of the following somewhat complicated pro-
cedural history is necessary to our resolution of the
issues on appeal. In December, 2012, the plaintiff com-
menced a personal injury action against the defendants
claiming that she was operating her vehicle on or about
December 6, 2010, when it was struck by another vehi-
cle operated by Randall Hite and owned by Tanya Hite.
The matter was scheduled for trial with jury selection to
commence on December 6, 2016. Because of scheduling
issues raised by the plaintiff’s counsel and the defen-
dants’ counsel, the parties discontinued jury selection
after one day, and the court continued the trial to Janu-
ary 4, 2017.
Jury selection commenced on January 5, 2017. On
January 6, 2017, the defendants filed a ‘‘Motion to Com-
pel And/Or Preclude’’ (motion to compel) in response to
a Blue Cross/Blue Shield printout, evidencing medical
payments that the plaintiff had provided to the defen-
dants on January 4, 2017. In the motion to compel,
the defendants claimed that the plaintiff had failed to
produce certain designated records. They requested
that the court order her to produce those records at
least twenty-four hours prior to the start of evidence
or else be precluded from entering any evidence of her
physical injuries at trial.
Jury selection was completed on January 11, 2017,
and the trial was scheduled to commence on January
18, 2017. On January 12 and 13, 2017, Judge Shapiro
heard arguments on the defendants’ motion to compel
and the defendants’ objections to the plaintiff’s pro-
posed exhibits that were being premarked by counsel
for trial. On January 18, 2017, Judge Shapiro informed
the parties that four of the eight jurors selected had
written letters to the court requesting that they be
excused from serving on the jury. Judge Shapiro stated
that the presiding judge had excused those jurors,
which left the parties without a jury for trial. Because
the case could not proceed at that time, Judge Shapiro
indicated that he would put on the record his rulings
on the matters previously argued by counsel.
With respect to the defendants’ motion to compel,
Judge Shapiro concluded that the motion was
‘‘untimely’’ and denied the motion for the following
reasons: ‘‘The return date in this matter was January
8, 2013. The plaintiff is proceeding on the original com-
plaint dated November 20, 2012. The plaintiff’s deposi-
tion was taken in January, 2015.
‘‘On October 7, 2015, the court entered a scheduling
order. Therein it was stated that written discovery was
done and the—all depositions were to be completed by
November 15, 2016.
‘‘On that same date, October 7, 2015, which is obvi-
ously over a year ago, the court—not this court but a
court officer—held a pretrial conference. It’s undis-
puted that at that pretrial conference, as part of her
written presentation, the plaintiff presented a printout
of her medical expenses. See Plaintiff’s Exhibit 1 to the
January 12, 2017 hearing.
‘‘That printout lists dates and services, types of ser-
vices, and names of medical providers of the plaintiff
beginning in December, 2010. The names of providers
and dates of services were provided to the defendants,
and the bulk of the dates of records they complain of
not receiving were made known to them at that time.
‘‘Had the defendants wanted more information or
records, they could have taken steps to obtain them
before jury selection began. For example, they could
have asked the plaintiff to provide the additional
records well in advance of the trial. They already had
a medical authorization to obtain records and could
have used it or asked for another from the plaintiff.
The defendants could have sought to redepose the plain-
tiff. . . .
‘‘Also, in their motion, the defendants provided no
exhibits, such as the plaintiff’s previous responses to
their written discovery requests.
‘‘The defendants could have timely filed a motion to
compel long before trial saying that previous discovery
compliance was incomplete, that the plaintiff had failed
to disclose her medical condition and treatment. They
could have asked for a status conference to discuss
issues they have belatedly raised in their motion. The
court’s docket reflects that no motion to compel was
filed until January 6, which was after jury selection
had begun.
‘‘The court finds that the defendants were on notice
in October, 2015, of issues which they are raising now
in their motion, more than a year later. The defendants’
presentation is untimely.’’
On January 20, 2017, the court, Sheridan, J., entered
the following order in this case:
‘‘Jury selection will commence on March 14, 2017.
This is a firm trial date. Both counsel are responsible
for ensuring that they and their clients and witnesses
are ready for trial on the scheduled date. NO FURTHER
CONTINUANCES OF THE TRIAL DATE WILL BE PER-
MITTED, absent compelling circumstances which are
fully beyond the ability of counsel to anticipate, prevent
or control.
‘‘Between now and the commencement of jury selec-
tion, no additional pretrial motions, pretrial discovery,
or designation of additional witnesses or additional
exhibits for trial will be permitted, without the prior
permission of the court based upon a showing of
good cause.’’
On January 27, 2017, the defendants filed a motion
to reconsider Judge Shapiro’s January 18, 2017 denial
of their motion to compel. The defendants, noting that
the matter had been rescheduled for mid-March,
claimed that there was ‘‘plenty of time to secure the
medical records’’ and that the plaintiff’s prior medical
authorization had expired. The defendants requested
that the court order the plaintiff to furnish an authoriza-
tion for the defendants to secure those records. The
plaintiff filed an objection to the defendants’ motion
on February 8, 2017. One month later, on February 27,
2017, Judge Shapiro denied the defendants’ motion to
reconsider, referencing Judge Sheridan’s order requir-
ing prior permission of the court to file additional pre-
trial motions and stating that the defendants’ motion
to reconsider had been filed in violation of that order.
On March 16, 2017, the parties appeared for jury
selection before Judge Noble, now assigned as the trial
judge for this matter. At that time, the plaintiff’s counsel1
presented the court with a physician’s note that indi-
cated she was temporarily ‘‘unable to carry out her
duties’’ because of certain medical conditions. On the
basis of the physician’s note, the plaintiff’s counsel
requested a six to eight week continuance.
Judge Noble then addressed the defendants’ counsel,
Attorney William J. Melley III, with the following ques-
tion: ‘‘You had a motion, Mr. Melley, to reconsider and
to reargue Judge Shapiro’s order denying you the right
to continue discovery; is that correct?’’ Attorney Melley
responded: ‘‘Yes, Your Honor.’’ At that point, Judge
Noble ruled: ‘‘All right. Your motion for continuance is
granted. The motion to reargue is granted. Your motion
to continue discovery is now permitted.’’
When the plaintiff’s counsel objected, stating that she
believed that the court was penalizing her because she
currently was unable to proceed to trial, Judge Noble
provided the following reasons for his ruling: ‘‘So, we
have six to eight weeks. We have a case that is from
2013. We have a case that encountered significant diffi-
culties because of all counsel in getting to trial. We
have one attorney who is unable to continue because
of [a] physical [condition] and another attorney who
claims that he is unable to continue because of physical
disabilities, so I will accommodate both your schedules.
Given the fact that we have now another six to eight
weeks to go, [the defendants’ counsel] has an opportu-
nity to conduct further discovery.’’
On April 5, 2017, the plaintiff filed a motion to reargue
Judge Noble’s decision allowing the defendants to
engage in further discovery. In that motion, the plaintiff
set forth the procedural history of the case, emphasizing
that Judge Shapiro had denied the defendants’ motion
to compel and had denied the defendants’ motion to
reconsider that had been filed in violation of Judge
Sheridan’s order. The plaintiff argued that the court’s
sua sponte reconsideration of Judge Shapiro’s ruling
deprived her of her due process rights to notice and
an opportunity to be heard, and also was contrary to
the law of the case doctrine. The defendants filed an
objection to the plaintiff’s motion to reargue on April
11, 2017. On April 12, 2017, Judge Noble denied the
plaintiff’s motion to reargue and sustained the defen-
dants’ objection to that motion. In sustaining the defen-
dants’ objection, Judge Noble stated: ‘‘The continuance
of the trial date operates to ameliorate the need for
discontinuance of further discovery.’’
On March 30, 2017, the defendants filed a motion
for an order for compliance, seeking specified medical
records from the plaintiff that the defendants claimed
had not been completely disclosed. In the motion, the
defendants represented that, if the plaintiff preferred,
they would accept an authorization to secure those
records. The defendants moved for an order of compli-
ance or, in the alternative, such other relief as the court
deemed appropriate, including, inter alia, the entry of
a nonsuit against the plaintiff. The plaintiff filed an
objection to the defendants’ motion on April 10, 2017,
claiming that her motion to reargue Judge Noble’s deci-
sion should first be considered. She stated that she
was incorporating all of the arguments set forth in her
motion to reargue in her objection to the defendants’
motion. On April 25, 2017, the court, Hon. Constance
L. Epstein, judge trial referee, granted the defendants’
motion for an order for compliance. Judge Epstein’s
order provided: ‘‘Plaintiff must comply with all out-
standing discovery requests for medical records and
billings by May 2, 2017.’’ The plaintiff did not move to
reargue Judge Epstein’s decision.
On May 3, 2017, the defendants moved for a judgment
of nonsuit, claiming that the plaintiff had failed to com-
ply with Judge Epstein’s order. The plaintiff filed an
objection to the defendants’ motion for judgment on
May 11, 2017, again outlining in detail Judge Shapiro’s
prior orders denying the defendants’ request for further
discovery and Judge Sheridan’s order requiring prior
permission of the court to file additional pretrial
motions before jury selection. The plaintiff argued that
the prior rulings had never been vacated and, therefore,
that Judge Noble’s sua sponte ruling allowing the defen-
dants the opportunity for further discovery was made
‘‘without any legal or statutory authority’’ and was
‘‘invalid.’’ The plaintiff further claimed that the rulings
of Judge Noble and Judge Epstein were contrary to the
law of the case. Finally, the plaintiff argued that the
sanction of a nonsuit was not proportional to the ‘‘pur-
ported failure’’ to comply with Judge Epstein’s order.
On May 15, 2017, following a hearing before the court,
Judge Peck ruled on the defendants’ motion for judg-
ment. In the following order, Judge Peck denied the
defendants’ motion without prejudice: ‘‘However, after
review of the several court orders concerning discovery
of certain of the plaintiff’s medical records relating to
this case, as well as the plaintiff’s extensive objection
(#154) to this motion, in accordance with the two most
recent court orders issued, #149.86 (Noble, J.), and
#145.86 (Hon. Constance L. Epstein, judge trial ref-
eree), which have both required production of the docu-
ments at issue, the undersigned can discern no
compelling reason to disturb those decisions, which
now constitute the law of the case. Accordingly, the
plaintiff is hereby ordered to produce the requested
medical records identified in the defendants’ motion
for order of compliance (#145), and more particularly
identified in [their] motion to compel (#122), or produce
appropriate authorization(s) from the plaintiff to the
defendants’ counsel, no later than 5/30/17, authorizing
him to obtain such records directly from the medical
providers in question. The court notes that Judge
Epstein originally ordered that the same records be
produced by 5/2/17. . . .’’
The plaintiff did not move to reargue Judge Peck’s
decision. She filed a notice of intent to appeal the court’s
ruling on May 26, 2017. Additionally, on May 26, 2017,
the plaintiff filed a motion for an order of sanctions
against the defendants’ counsel. After reciting the
extensive factual and procedural history of the case,
the plaintiff argued that the defendants’ counsel had
‘‘consistently misrepresented material facts and the law
of the case to the court . . . .’’ On May 31, 2017, the
defendants again moved that the court nonsuit the plain-
tiff for her failure to comply with the orders of Judge
Epstein and Judge Peck. The defendants represented
that the plaintiff failed to provide the specified medical
records or to produce appropriate authorizations to
secure those records. On June 7, 2017, the defendants’
counsel filed a motion for an extension of time to
respond to the plaintiff’s motion for an order of sanc-
tions. In that motion, the defendants stated that a
motion for judgment was pending before the court and
that the court’s ruling on the defendants’ motion for
judgment could render moot the issues raised in the
plaintiff’s request for sanctions.
On June 8, 2017, the plaintiff filed a ‘‘Reply To Defen-
dants’ Motion For Judgment.’’ In her reply, the plaintiff
again extensively reviewed Judge Shapiro’s rulings,
attaching a transcript of the January 18, 2017 hearing
before Judge Shapiro as an exhibit. The plaintiff then
claimed that she was ‘‘being forced to disclose irrele-
vant information so that the [d]efendants can inappro-
priately cause confusion . . . .’’ The plaintiff
additionally requested that the court rule on her motion
for an order of sanctions before ruling on the defen-
dants’ motion for judgment. Finally, after claiming ‘‘a
gross violation of her due process rights,’’ the plaintiff
requested ‘‘that this action be dismissed at this point
for the purpose of the plaintiff taking an appeal . . . .’’
On June 19, 2017, Judge Peck issued a comprehensive
order on the defendants’ motion for judgment: ‘‘The
court hereby orders a nonsuit as to the plaintiff for
failure to comply with three previous orders of the court
concerning discovery in this case. The discovery in
question was specifically identified in the defendants’
motion to compel (#122). Two such orders (#145.86
[Hon. Constance L. Epstein, judge trial referee,] and
#152.86 [Hon. A. Susan Peck, judge trial referee]), con-
tained deadlines of 5/2/17 and 5/30/17, respectively. The
discovery subject of the motion to compel was origi-
nally authorized by a third order of the court issued on
4/12/17 (#149.86 [Noble, J.]).2 On 1/20/2017, a jury trial
in this case, which was scheduled to commence evi-
dence on 1/18/2017 before Judge Shapiro, was post-
poned after several jurors asked to be excused. In
connection with the postponement of that trial, the
court (Sheridan, J.) issued an order which stated in
pertinent part: ‘Between now and the commencement
of jury selection, no additional pretrial motions, pretrial
discovery, or designation of additional witnesses or
additional exhibits for trial will be permitted, without
the prior permission of the court based on a showing
of good cause.’ See docket entry #137. Since 1/20/17,
despite a notice by Judge Sheridan that no further con-
tinuances of the trial date would be permitted absent
compelling circumstances, the trial of this 2013 case
has been rescheduled numerous times. After a hearing
held on 4/12/17,3 Judge Noble granted such permission
to defendants to obtain additional discovery in the form
of medical record production.
‘‘Jury selection is presently scheduled to recom-
mence on June 20, 2017. Plaintiff’s counsel has repre-
sented that for personal health reasons, Attorney
Harvey Levine is not able to perform as trial counsel.
In addition, some of the trial delay since February has
been due to acknowledged health reasons personal to
Attorney Jennifer Levine. Health issues, notwithstand-
ing, both Attorney Harvey Levine and Attorney Jennifer
Levine have recently submitted pleadings in this case
and have appeared jointly at the hearings that have been
held concerning the issue of discovery compliance. In
contrast to the legitimate reasons communicated by
both counsel relating to trial scheduling, there has been
no legitimate or acceptable reason presented for the
wilful and repeated failure of plaintiff’s counsel to com-
ply with the discovery orders of this court. Counsel
continue to challenge the order of Judge Noble issued
on 4/12/17,4 whereby he authorized the defendants’
request to obtain additional document production or
medical authorizations in this case, despite the fact that
that no motion to reargue or reconsider that decision
was filed.5 In addition, as previously noted, plaintiff’s
counsel have also chosen to ignore the subsequent
orders of Judges Epstein and Peck. Instead, they insis-
tently seek to harken back to a prior order of Judge
Shapiro issued in January, 2017, just prior to the com-
mencement of the evidence then scheduled in this case
and ultimately postponed due to juror unavailability.
The plaintiff, albeit through her counsel, cannot selec-
tively and unreasonably cling to an earlier order of one
judge under circumstances then existing and choose to
ignore the subsequent orders of three different judges
under changed circumstances. Although this court has
been reluctant to impose the sanction of nonsuit until
this juncture, based on counsel’s persistent, wilful disre-
gard for the lawful orders of this court, the undersigned
is left with no viable alternative. A fine would not do
justice to what constitutes ‘deliberate, contumacious
. . . [and] unwarranted disregard for the court’s
authority . . . .’ Herrick v. Monkey Farm Cafe, LLC,
163 Conn. App. 45, 51, 134 A.3d 643 (2016). This affront
to the court, made on behalf of the plaintiff, has been
both unjustified and unnecessary to preserve the rights
of the plaintiff to prosecute her case to a successful
conclusion. Plaintiff’s counsel has not even attempted
[to] articulate any particular prejudice that the plaintiff
will suffer in connection with the production of the
documents in question. Rather, counsel argues that the
production of this information is not relevant to the
plaintiff’s claim, an improper objection to the broad
mandate afforded requests for discovery. See Practice
Book § 13-2. In fact, in a response to the defendants’
motion, the plaintiff concedes that the document pro-
duction in question relates to medical provider records
apparently disclosed in her pretrial memo. See docket
entry #159. For all the foregoing reasons, the court can
find no reasonable alternative to vindicate the court’s
authority other than to issue this order of nonsuit.’’
(Footnotes added.) This appeal followed.
I
The plaintiff’s first issue on appeal is that Judge Noble
improperly raised and considered a prior ruling of Judge
Shapiro without affording her a fair opportunity to
respond. Specifically, she argues that Judge Noble’s
ruling was an abuse of discretion because ‘‘the plaintiff
did not have a fair opportunity to respond to the poten-
tial reconsideration of the defendants’ motion to compel
because she lacked notice that Judge Noble intended
to use the hearing on the plaintiff’s motion for continu-
ance as an opportunity to address Judge Shapiro’s
denial of the defendants’ motion to reconsider. . . .
Indeed, had the plaintiff known that Judge Noble would
act sua sponte in considering Judge Shapiro’s denial of
the motion to reconsider, she would have attempted
to familiarize Judge Noble with the entire procedural
history of the case, including the two days of oral argu-
ments spent before Judge Shapiro and Judge Shapiro’s
extensive ruling on this issue.’’ (Citation omitted.)
The plaintiff’s first claim essentially attacks Judge
Noble’s ruling that allowed the defendants to engage
in further discovery on two grounds: (1) the rulings of
Judge Shapiro and Judge Sheridan constituted the law
of the case, and (2) the plaintiff was denied her due
process rights because she did not know Judge Noble
intended to revisit the defendants’ request for additional
discovery, and, therefore, she had not been prepared
at that time to argue fully the matter. We are not per-
suaded.
Simply put, Judge Noble’s ruling was a case manage-
ment decision. The parties appeared before him on
March 16, 2017, for scheduled jury selection. At that
time, the plaintiff’s counsel presented the court with a
physician’s note indicating that she was temporarily
unable to perform her duties at trial. The plaintiff’s
counsel requested a six to eight week continuance.
Judge Noble clearly was aware of the filings in the case
because he asked the defendants’ counsel whether he
had filed a motion to reargue Judge Shapiro’s ruling
denying further discovery.6 Given that Judge Noble was
willing to accommodate the plaintiff’s request for yet
another postponement of the trial, it was not an abuse
of discretion to permit additional discovery because of
the change in circumstances.
‘‘We review case management decisions for abuse of
discretion, giving [trial] courts wide latitude. . . . A
party adversely affected by a [trial] court’s case manage-
ment decision thus bears a formidable burden in seek-
ing reversal. . . . A trial court has the authority to
manage cases before it as is necessary. . . . Deference
is afforded to the trial court in making case management
decisions because it is in a much better position to
determine the effect that a particular procedure will
have on both parties. . . . The case management
authority is an inherent power necessarily vested in
trial courts to manage their own affairs in order to
achieve the expeditious disposition of cases. . . . The
ability of trial judges to manage cases is essential to
judicial economy and justice.’’ (Citations omitted; inter-
nal quotation marks omitted.) Krevis v. Bridgeport, 262
Conn. 813, 818–19, 817 A.2d 628 (2003).
Nevertheless, the plaintiff argues that Judge Shapiro
had more familiarity with the case and that his rulings
denying additional discovery had never been vacated.
In essence, the plaintiff is arguing that Judge Shapiro’s
prior rulings were the law of the case that were binding
on all subsequent judges. Assuming arguendo that the
law of the case doctrine is applicable here,7 the plain-
tiff’s claim fails for the following reasons.
The law of the case doctrine provides that when ‘‘a
matter has previously been ruled upon interlocutorily,
the court in a subsequent proceeding in the case may
treat that decision as the law of the case, if it is of the
opinion that the issue was correctly decided, in the
absence of some new or overriding circumstance.’’
(Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99,
439 A.2d 1066 (1982). ‘‘The law of the case is not written
in stone but is a flexible principle of many facets adapt-
able to the exigencies of the different situations in
which it may be invoked.’’ (Internal quotation marks
omitted.) McCarthy v. McCarthy, 55 Conn. App. 326,
332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923,
752 A.2d 1081 (2000). ‘‘A judge is not bound to follow
the decisions of another judge made at an earlier stage
of the proceedings, and if the same point is again raised
he has the same right to reconsider the question as if
he had himself made the original decision. . . . [O]ne
judge may, in a proper case, vacate, modify, or depart
from an interlocutory order or ruling of another judge
in the same case, upon a question of law.’’ (Internal
quotation marks omitted.) Wagner v. Clark Equipment
Co., 259 Conn. 114, 130–31, 788 A.2d 83 (2002).
Judge Noble emphasized in his rulings that the cir-
cumstances had changed since Judge Shapiro’s prior
rulings. The plaintiff had just requested a six to eight
week continuance for medical reasons.8 The court was
willing to grant that request, but, in its discretion,
decided that the defendants now could pursue further
discovery because of the trial delay: ‘‘Given the fact
that we have now another six to eight weeks to go,
[the defendants’ counsel] has an opportunity to conduct
further discovery.’’ This ruling was not an abuse of the
court’s discretion. ‘‘Abuse is not present if discretion
is not exercised arbitrarily or wilfully, but with regard
to what is right and equitable under the circumstances
and the law, and [it is] directed by the reason and
conscience of the judge to a just result. . . . And
[sound discretion] requires a knowledge and under-
standing of the material circumstances surrounding the
matter . . . .’’ (Internal quotation marks omitted.)
Krevis v. Bridgeport, supra, 262 Conn. 819.
With respect to the plaintiff’s argument that Judge
Noble violated her due process rights by reconsidering,
sua sponte, the defendants’ prior request to obtain addi-
tional discovery, we note that the discovery issue was
raised at a hearing necessitated by the plaintiff’s motion
to continue the trial for an additional six to eight weeks.
It is not surprising that, given the lengthy postponement,
the judge presiding over the trial would raise and decide
other issues impacted by such a delay. The defendants’
ongoing requests to obtain certain specified records,
although previously determined to be untimely and
made without prior permission by the court as required
by Judge Sheridan’s ruling, now could be seen as rea-
sonable in light of this change in circumstances. If the
plaintiff believed that she was not prepared to argue
this issue, she could have requested a recess to review
the file and prepare her arguments. She made no such
request, instead accusing the court of penalizing her
for the requested continuance.
Moreover, there is no indication as to what the plain-
tiff would have argued if she had had advance notice
and the opportunity to be heard on the defendants’
request to engage in further discovery. She states in
her appellate brief that she would have ‘‘attempted to
familiarize Judge Noble with the entire procedural his-
tory of the case, including the two days of oral argu-
ments spent before Judge Shapiro and Judge Shapiro’s
extensive ruling on this issue.’’ The plaintiff assumes,
without any evidence in the record to support it, that
Judge Noble had not reviewed the file or was unfamiliar
with the prior rulings of the court. There is no founda-
tion for this assumption, and we will not presume that
the court acted without knowledge of the contents of
the file. Accordingly, we conclude that the plaintiff’s
due process rights were not violated by the sua sponte
ruling of Judge Noble.
II
The plaintiff next claims that her failure to comply
with discovery orders did not warrant the rendering of
a judgment of nonsuit by Judge Peck. Specifically, she
argues: ‘‘The trial court abused its discretion in entering
a judgment of nonsuit against the plaintiff. In this case,
the plaintiff deliberately chose to seek appellate review
of the discovery order by failing to comply with the
order and by appealing from the subsequent judgment
of nonsuit. The plaintiff’s conduct, considered in its
entirety, does not evince a continuing pattern of viola-
tions that warranted the judgment of nonsuit against
the plaintiff.’’ We conclude that Judge Peck did not
abuse her discretion by ordering a judgment of nonsuit.
‘‘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 reason-
ably 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 estab-
lishes that, notwithstanding the lack of such clarity, the
party sanctioned in fact understood the trial court’s
intended meaning. This requirement poses a legal ques-
tion 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 discretion.’’ Millbrook Owners Assn., Inc.
v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d
1115 (2001). ‘‘[D]iscretion imports something more than
leeway in decision-making. . . . It means a legal dis-
cretion, to be exercised in conformity with the spirit
of the law and in a manner to subserve and not to
impede or defeat the ends of substantial justice. . . .
In addition, the court’s discretion should be exercised
mindful of the policy preference to bring about a trial
on the merits of a dispute whenever possible and to
secure for the litigant his day in court. . . . Our prac-
tice does not favor the termination of proceedings with-
out a determination of the merits of the controversy
where that can be brought about with due regard to
necessary rules of procedure. . . . Therefore, although
dismissal of an action is not an abuse of discretion
where a party shows a deliberate, contumacious or
unwarranted disregard for the court’s authority . . .
the court should be reluctant to employ the sanction
of dismissal except as a last resort. . . . [T]he sanction
of dismissal should be imposed only as a last resort,
and where it would be the only reasonable remedy
available to vindicate the legitimate interests of the
other party and the court. . . . The reasoning of Mill-
brook Owners Assn., [Inc., applies] equally to nonsuits
and dismissals.’’ (Citation omitted; internal quotation
marks omitted.) Blinkoff v. O & G Industries, Inc., 89
Conn. App. 251, 257–58, 873 A.2d 1009, cert. denied,
275 Conn. 907, 882 A.2d 668 (2005).
In the present case, Judge Peck rendered a judgment
of nonsuit against the plaintiff for her ‘‘failure to comply
with three previous orders of the court concerning dis-
covery . . . .’’ Over the plaintiff’s objection, Judge
Noble authorized the defendants to engage in further
discovery at the March 16, 2017 hearing on the plaintiff’s
request for an extended continuance of the trial. Judge
Noble denied the plaintiff’s motion to reargue that deci-
sion on April 12, 2017. Judge Epstein subsequently ruled
on the defendants’ motion for an order of compliance
and ordered the plaintiff to comply with all outstanding
discovery requests for medical records and billings by
May 2, 2017. When the plaintiff failed to comply with
Judge Epstein’s order, the defendants moved for judg-
ment in their favor. Judge Peck, following a hearing on
May 15, 2017, denied the defendants’ motion without
prejudice. In her order issued that same day, Judge
Peck cautioned the plaintiff by stating that the orders
of Judge Noble and Judge Epstein now constituted ‘‘the
law of the case.’’ Judge Peck ordered the plaintiff to
produce certain identified medical records or to provide
authorizations to the defendants’ counsel to obtain
those records directly from the medical providers no
later than May 30, 2017. When the plaintiff failed to
comply with Judge Peck’s May 15, 2017 order, the defen-
dants again filed a motion for judgment in their favor.
The plaintiff filed a reply to that motion, claiming the
information sought was irrelevant and requesting that
the court dismiss her action ‘‘for the purpose of the
plaintiff taking an appeal . . . .’’
In rendering the judgment of nonsuit, Judge Peck
cited applicable case law relating to the sanction of
nonsuit or dismissal. She recognized that a court should
be reluctant to impose such a sanction, but she con-
cluded that the plaintiff had evidenced ‘‘persistent, wil-
ful disregard for the lawful orders of this court’’ and
that the court was ‘‘left with no viable alternative.’’
Judge Peck stated that a fine ‘‘would not do justice to
what constitutes deliberate, contumacious . . . [and]
unwarranted disregard for the court’s authority . . . .’’
(Internal quotation marks omitted.) As further support
for her decision to render a judgment of nonsuit, Judge
Peck noted that the plaintiff unreasonably clung to the
prior order of Judge Shapiro and chose to disregard
the subsequent orders of three different judges under
changed circumstances. Moreover, according to the
court, the plaintiff had not even attempted to articulate
any particular prejudice that she would suffer by pro-
ducing the documents in question.
In considering the plaintiff’s claim that the judgment
of nonsuit was an improper sanction for her failure to
comply with the previously referenced court orders, we
first note that the orders of Judge Noble, Judge Epstein
and Judge Peck, regarding the discovery requested by
the defendants, were ‘‘reasonably clear.’’ Millbrook
Owners Assn., Inc. v. Hamilton Standard, supra, 257
Conn. 17. Second, it is also undisputed that the plaintiff
repeatedly failed to comply with those court orders.
Finally, under the circumstances as set forth in detail
in Judge Peck’s judgment of nonsuit, we cannot con-
clude that the court abused its discretion in imposing
this sanction. We are convinced that the trial court
properly considered all of the relevant factors in order-
ing the nonsuit.
The plaintiff was adamant in her position that the
orders of Judge Shapiro and Judge Sheridan were the
law of the case and that the subsequent orders of Judge
Noble, Judge Epstein and Judge Peck were improper
and invalid. Although she chose not to comply in order
to have an appealable judgment of nonsuit rendered
against her,9 she did so at the risk of having her claims
fail on appeal. As discussed previously in this opinion,
Judge Noble’s sua sponte decision to allow the defen-
dants to engage in further discovery was reasonable
and proper given the change in circumstances. The
plaintiff has not challenged Judge Epstein’s order and
Judge Peck’s May 15, 2017 order as being unreasonable,
except for the fact that they were based on Judge
Noble’s authorization to the defendants to engage in
further discovery. The plaintiff disregarded the three
court orders at her peril. ‘‘[A] party has a duty to obey
a court order even if the order is later held to have been
unwarranted.’’ Tomasso Bros., Inc. v. October Twenty-
Four, Inc., 230 Conn. 641, 658 n.20, 646 A.2d 133 (1994).
For all of the foregoing reasons, we conclude that
the plaintiff’s claim that the court abused its discretion
in rendering the judgment of nonsuit fails.
III
The plaintiff’s final claim is that Judge Peck improp-
erly declined to consider the plaintiff’s motion for an
order of sanctions against the defendants’ counsel prior
to rendering the judgment of nonsuit. Specifically, she
argues that ‘‘no circumstances existed that justified
such a refusal. Thus, the trial court lacked the authority
to refuse to consider the plaintiff’s motion.’’
As with the plaintiff’s first claim, the court’s decision
as to the order of considering pending motions is one
of case management. ‘‘Deference is afforded to the trial
court in making case management decisions because
it is in a much better position to determine the effect
that a particular procedure will have on both parties.’’
Krevis v. Bridgeport, supra, 262 Conn. 819. The plaintiff
cites no relevant authority that would have required
Judge Peck to consider the plaintiff’s motion first.
Accordingly, we conclude that the court did not abuse
its discretion in ruling on the defendants’ motion for
judgment prior to considering the plaintiff’s motion for
an order of sanctions against the defendants’ counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Two attorneys, Harvey L. Levine and Jennifer Beth Levine, filed appear-
ances on behalf of the plaintiff. Attorney Harvey L. Levine told Judge Noble
that his health issues prevented him from being lead counsel for this jury
trial. When we refer to plaintiff’s counsel in the singular in this opinion, we
are referring to Attorney Jennifer Beth Levine.
2
Judge Noble’s order actually was issued at a hearing held on March 16,
2017. His April 12, 2017 order was a denial of the plaintiff’s motion to reargue
that ruling.
3
See footnote 2 of this opinion.
4
See footnote 2 of this opinion.
5
The plaintiff did file a motion to reargue Judge Noble’s decision on April
5, 2017, which the court denied on April 12, 2017.
6
No one has claimed that Judge Noble did not have access to the court
file at the time he made his rulings.
7
There is some question as to whether the law of the case doctrine applies
to rulings on matters left to the court’s discretion. See McCarthy v. McCarthy,
55 Conn. App. 326, 333–34, 752 A.2d 1093 (1999), cert. denied, 252 Conn.
923, 752 A.2d 1081 (2000).
8
The plaintiff stresses that her request for a continuance was based on
the ‘‘plaintiff’s counsel’s need for accommodation for severe medical compli-
cations . . . which constituted a protected disability under state and federal
law.’’ Judge Noble did not say that her request for a continuance was not
a legitimate request. Even if her condition was a protected disability, she
nevertheless was asking to delay the trial for six to eight weeks. It was
reasonable for the court to conclude that the length of the postponement
of trial constituted a change in circumstances.
9
In her ‘‘reply’’ to the defendants’ motion for judgment, the plaintiff
requested that Judge Peck dismiss her action. She now, however, claims
on appeal that the rendering of the judgment of nonsuit for failure to comply
with the three discovery orders was an abuse of discretion.