N759ZD v. Stratford , 177 Conn. App. 183 ( 2017 )

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DAVID H. FAILE, JR. v. TOWN OF STRATFORD
PAUL A. LANGE v. TOWN OF STRATFORD
N759ZD, LLC v. TOWN OF STRATFORD
(AC 38912)
DiPentima, C. J., and Mullins and Westbrook, Js.
Syllabus
The plaintiffs, F, L, and N Co., owners of aircraft hangars at an airport, filed
four appeals from the decisions of the Board of Assessment Appeals of
the defendant town of Stratford denying their appeals from the town’s
assessments of the hangars, in which they had claimed that the town’s
valuations were excessive. The trial court sent notice to the parties of
a pretrial settlement conference, which required, inter alia, that the
parties have an attorney with ultimate authority to settle the case attend
the conference, and the attendance of each plaintiff or entity that would
be testifying. F and G, the attorney representing the plaintiffs, as well
as the town’s attorney, were present at the pretrial conference, but L
was absent due to his hospitalization a few days prior. The settlement
conference took place in chambers, off the record, but afterward the
court went on the record to consider the town’s motions for nonsuit,
which were based on the plaintiffs’ failure to have someone present at
the pretrial conference with authority to settle the matters. Although G
repeatedly claimed that he had the ultimate authority to settle the mat-
ters, the court chastised G for appearing at the settlement conference
without having such authority, stated its belief that L, who was an
attorney, had the ultimate authority to settle the matters in one of the
appeals, and found that certain paper copies of documents were not
brought to the conference as required by the court’s notice. Upon ques-
tioning G with respect to the appeal involving N Co., G stated that, on
the basis of a strict reading of the language of the court’s orders, he
did not have ultimate authority as required by the notice. Accordingly,
the court granted the town’s motions for judgments of nonsuit. The
plaintiffs thereafter filed motions to open the judgments of nonsuit,
which the trial court denied, and this joint appeal by the plaintiffs
followed. On appeal, the parties disagreed as to the applicable standard
of review of the trial court’s judgments of nonsuit. The plaintiffs claimed
that this court should apply a more nuanced abuse of discretion standard
as set forth in Millbrook Owners Assn., Inc. v. Hamilton Standard (257
Conn. 1), while the town argued that the more deferential general abuse
of discretion standard applied. Held:
1. Even if this court applied the traditionally more deferential abuse of
discretion standard, the trial court abused its discretion in rendering
the judgments of nonsuit against F, the trial court’s findings that F
violated its order by not having someone with ultimate authority to
settle the matters present at the pretrial settlement conference, and by
failing to bring to the conference every physical piece of paper he would
offer into evidence at trial having been clearly erroneous: F and his
attorney were present at the conference, and F, as the owner of his
hangars, had the right to refuse to settle, and his willingness or unwilling-
ness to settle the matter for some amount that the court may have
thought was reasonable did not violate the court’s order; furthermore,
because G had electronic copies of the documents that would be used
at trial on his laptop computer, which he brought to court, G and F
complied with the court’s order, which did not state that the parties
needed every physical piece of paper that would be offered into evidence.
2. Although N Co. failed to establish clear error in the trial court’s finding
that G did not have ultimate authority to settle N Co.’s tax appeals in
light of G’s concession that, under a strict reading of the court’s order,
he did not have that authority, even under the broader traditional abuse
of discretion standard, the court improperly rendered judgments of
nonsuit against N Co.; L, the principal of N Co. and the person whom
the trial court found was vested with the ultimate authority to settle N
Co.’s tax appeals, was not in attendance at the pretrial conference
because he was hospitalized, the court made no findings of a wilful
disregard of its orders or of contemptuous behavior on the part of either
G or L, and a dismissal or a nonsuit as a sanction for the failure of L
to attend when he was ill and in the hospital did not serve justice or
in any way vindicate the legitimate interests of the town and the court.
Argued March 9—officially released October 17, 2017
Procedural History
Appeals from the decisions of the defendant’s Board
of Assessment Appeals, brought to the Superior Court
in the judicial district of Fairfield and transferred to
the judicial district of New Britain, where the court,
Hon. George Levine, judge trial referee, rendered a judg-
ment of nonsuit as to all the appeals; thereafter, the
court denied the plaintiffs’ motions to open the judg-
ments of nonsuit, and the plaintiffs appealed to this
court. Reversed; further proceedings.
Paul M. Grocki, for the appellants (plaintiffs).
Bryan L. LeClerc, for the appellee (defendant).
Opinion
MULLINS, J. In this joint tax appeal, the plaintiffs,
David H. Faile, Jr., Paul A. Lange, and N759ZD, LLC
(LLC), appeal from the judgments of nonsuit, rendered
by the trial court, in favor of the defendant, the town
of Stratford (town). They also appeal from the court’s
denial of their motions to open the nonsuits. On appeal,
the plaintiffs claim that the court’s findings that they
violated its orders were clearly erroneous, and that,
even if we assume, arguendo, that they did violate the
orders, the court abused its discretion in rending judg-
ments of nonsuit. We agree with the plaintiffs.1 There-
fore, we reverse the judgments of the trial court.
The following facts, garnered from the record, inform
our review. At the time this action was commenced, the
plaintiffs owned aircraft hangars, known as T-Hangars
(hangars), located at Sikorsky Memorial Airport in
Stratford. The hangars were located on land that was
leased from the city of Bridgeport. Faile owned two
hangars, A-9 and B-11; the LLC owned one hangar, A-
3. Lange is the principal of the LLC and a member of
the law firm, Law Offices of Paul A. Lange, LLC, which
is counsel of record for the plaintiffs in this case.2
The town assessed and taxed the hangars on the
grand lists for 2008 and 2009. The plaintiffs appealed the
assessments and their taxes to the Board of Assessment
Appeals of the town (board), alleging, in relevant part,
that the valuations were excessive. After each appeal
was denied by the board, the plaintiffs filed appeals in
our Superior Court.3 Initially, the appeals were stayed
pending the Supreme Court’s decision in Stratford v.
Jacobelli, 317 Conn. 863, 865–66, 120 A.3d 500 (2015)
(concluding that hangars are taxable real property
rather than personal property). Once the stay was lifted,
the court, on October 1, 2015, sent notice to the parties
of a pretrial settlement conference. The court assigned
that conference for November 3, 2015.
The notice provided in relevant part: ‘‘This case is
assigned for pretrial on [November 3, 2015] at 10 a.m.
. . . The following must attend:
‘‘1) The attorney who will try the case, unless other-
wise ordered by Judge [George] Levine;
‘‘2) The attorney who has ultimate authority to make
a recommendation to the client, if different from the
attorney described in #1 above.
‘‘If plaintiff is a person(s), the plaintiff(s) must attend.
The assessor must attend. Any appraiser retained must
attend but need not complete an appraisal report for
pretrial. If plaintiff is a corporation or other type of
legal entity, a principal who has ultimate authority to
negotiate a settlement must be present. ‘Ultimate
authority’ means the ability to resolve the case by with-
drawing it without any change in assessment, if per-
suaded it is in plaintiff’s best interests, without checking
with anyone else. Someone with authority to negotiate
a settlement at a preestablished figure does not have
‘ultimate authority.’ A person familiar with the finances
and management of the subject property must attend.
‘‘If this date is inconvenient, please select other dates
with all counsel/pro se parties and e-file a motion for
continuance with proposed dates.
‘‘Failure to comply with this order may result in sanc-
tions, including a judgment of nonsuit or default. If no
principal can attend, the parties should contact the
court.’’
On November 4, 2015, the court issued another order,
which provided in relevant part:
‘‘By agreement of the parties, the . . . matter has
been scheduled for another pretrial conference, to be
conducted on [December 2, 2015] . . . .
‘‘All terms of the original pretrial order remain in
effect with the following modifications:
‘‘1) The following must attend: Each plaintiff and/or
entity and every person who will be called to testify
at trial.
‘‘2) Counsel for all parties must bring every piece of
paper which will be offered in evidence.
‘‘3) Counsel for each party must be prepared to state
all the testimony to which each witness is expected to
testify, on a count by count basis and on a year by
year basis.
‘‘4) Failure of any plaintiffs to appear will result in
a judgment of nonsuit.
‘‘Failure to comply with these terms may result in
sanctions, including nonsuit or default.’’
On November 18 and 19, 2015, the plaintiffs filed
motions for continuance of that settlement conference
on the ground that discovery was outstanding and the
plaintiffs had noticed, but not yet taken, the deposition
of the town’s tax assessor; the court denied the motions
on the same days they were filed. On November 25,
2015, the town filed a motion for extension of time,
requesting that the court give it a thirty day extension
to respond to the plaintiffs’ discovery requests. There
is no indication in the record that the court acted on
the town’s motion.
On Wednesday, December 2, 2015, the parties
appeared for the settlement conference. Lange, how-
ever, was absent due to his hospitalization on Sunday,
November 29, 2015, just a few days before. Attorney
Paul Grocki, an attorney with the Law Offices of Paul
A. Lange, LLC, was present on behalf of the plaintiffs.
Faile also was present. Appearing on behalf of the town
was Byran LeClerc. The settlement conference was held
in chambers, off the record, but afterward, the court
went on the record to consider the town’s motions
for nonsuit.
During the hearing, the court separately addressed
each of the plaintiffs’ appeals, with the bulk of the
discussion occurring in the first matter, CV-09-4025677-
S, which is Faile’s appeal from the 2009 decision of the
board. LeClerc stated that the town was moving ‘‘for
nonsuit based upon the plaintiff’s failure to have some-
one present at this morning’s pretrial with authority to
settle this matter.’’
Grocki first explained to the court that he had filed
a motion for a continuance approximately two weeks
earlier due to outstanding discovery, which the court
had denied. The court asked Grocki if he had been
given the ultimate authority to settle this matter. Grocki
responded that he had been given such authority. He
further noted that Faile also was present at the settle-
ment conference, and that Faile, certainly, had authority
to settle his own cases. Grocki acknowledged that Faile
wanted to do whatever Lange recommended, but that,
ultimately, the parties were taking the advice of counsel,
namely Grocki. Grocki explained to the court that the
parties just ‘‘couldn’t come to an agreement’’ regarding
settlement. He acknowledged that his clients would not
settle for a property tax fair market assessment of more
than $9000.
The court chastised Grocki for appearing at the settle-
ment conference without having the ‘‘ultimate author-
ity’’ as set forth in the pretrial notices. Grocki argued,
however, that he did have the ultimate authority and
that Faile, himself, also had been present at the settle-
ment conference. The court asked Grocki why he had
not notified the court that Lange would not be present
before the parties convened the settlement conference.4
Grocki explained that Lange was hospitalized on the
Sunday before the pretrial conference, and that they
did not know how long he would remain in the hospital.
When they realized that he would not be released in
time for the settlement conference, it was too late to
notify the court. The court then told Grocki that ‘‘the
purpose of the language contained in the pretrial notice
[was] to make certain that people with unfettered
authority [were there] to negotiate a settlement, and
further [that it was] required that the attorney, who
ha[d] the closest relationship—or . . . who ha[d] ulti-
mate authority to make a recommendation to the client
must be [there]. Now that clearly is Mr. Lange. Is that
correct?’’ Grocki replied that Lange was an attorney
but that Lange, in fact, was not the attorney for these
matters.
The court continued to confront Grocki, asking
whether Lange actually had the ultimate authority to
settle all of these matters, rather than Grocki. Grocki
continued to tell the court that he, Grocki, was the
attorney for all of the plaintiffs, that Lange was not the
attorney for these matters. Grocki further explained
that he had the ultimate authority to settle all of these
matters, but that the parties would not settle for more
than a $9000 fair market assessment.
Despite Grocki’s protestations, the court stated that
it believed Lange had the ultimate authority to settle
Faile’s appeal from the 2009 decision of the board, and,
because Lange was not present, despite his hospitaliza-
tion, ‘‘it was impossible . . . to make a good faith effort
at a resolution of this case.’’ The court then granted
the town’s motion for nonsuit in CV-09-4025677-S.
The court then considered CV-10-6006946-S, Faile’s
appeal from the 2010 decision of the board. The court
asked LeClerc if he wanted to make a motion. LeClerc
responded that he was moving for a nonsuit ‘‘based
upon [Faile’s] failure to have someone present at this
morning’s pretrial with ultimate authority to settle this
matter, and also for not having all documents that will
be entered into evidence, specifically the document evi-
dencing one of the three airplane hangars had been
sold.’’
Grocki asked the court if it wanted him to reiterate
all of the arguments that he set forth for the previous
matter. The court asked if they would be the same, and
Grocki replied in the affirmative. The court then asked
Grocki if he had brought the papers related to the sale
of the hangar, and Grocki stated that he had electronic
versions of everything with him, which he readily could
access on his computer. The court chastised Grocki for
not bringing ‘‘every piece of paper [he] intend[ed] to
offer into evidence.’’ The court then stated that it was
granting the motion for nonsuit in CV-10-6006946-S on
the same basis as it had granted the motion in CV-09-
4025677-S, and in addition that paper copies of docu-
ments were not brought to the conference.
Next, the court heard the town’s motion for nonsuit
in CV-09-4037511-S, Lange’s appeal from 2009 decision
of the board. See footnote 2 of this opinion. The court
asked the parties if everything that was said previously
also applied to this motion, and the parties replied in
the affirmative. LeClerc then stated that the town was
moving on the ground that the plaintiff had failed ‘‘to
have someone present with ultimate authority to settle
this matter at today’s pretrial.’’ The court asked Grocki
if he had been authorized to settle ‘‘this case for a
fair market value assessment of not more than $9000?’’
Grocki said yes, but there were other terms as well. He
also reiterated that he had the ultimate authority to
settle this matter, but that there was a bottom line, an
amount Lange would not go above for a fair market
assessed value.
The court continued to ask Grocki if he believed he
had the ‘‘ultimate authority’’ to settle these matters as
set forth in the court’s orders. Grocki continued to insist
that he did have such authority and that the plaintiffs
had complied with the orders of the court because he
did not need ‘‘to check with anyone else in terms of
. . . resolving the matter.’’ Grocki argued that the fact
that the parties had established a bottom line did not
mean that he was without ultimate authority. The court
responded that it found Grocki’s insistence ‘‘incompre-
hensible.’’ The court then granted the motion for non-
suit in CV-09-4037511-S.
Finally, the court considered CV-10-6007416-S, the
LLC’s appeal from the 2010 decision of the board. The
town moved for nonsuit in this case on the ground that
the LLC failed ‘‘to have someone present with ultimate
authority to settle this matter at [that day’s] pretrial.’’
The court asked Grocki to identify the principal of the
LLC, and Grocki responded that it was Lange. It asked
if Lange was present, and Grocki responded that he
was not present. Grocki also stated that he would mirror
his prior arguments that he had the ultimate authority
to settle this matter. The court then asked Grocki once
again if he believed he was in compliance with the
court’s orders in the pretrial notice. Grocki began that
‘‘based on [his] interpretation of the circumstances,’’
but the court then interrupted Grocki and stated, in
part, that Grocki was not ‘‘called upon to interpret the
circumstances of a pretrial notice.’’ Grocki asked to
look at the order again. Shortly thereafter, the court
said: ‘‘Let’s go off the record.’’
Upon resuming the on-the-record hearing, the court
asked Grocki whether he had complied with the terms
of the pretrial notice. Grocki then stated that, on the
basis of a strict reading of the language in the court’s
orders, he did not enjoy ultimate authority as required
by the notice. Grocki was also offered to amend his
remarks regarding his authority in the CV-09-4037511-
S case, which he did, to reflect the discussion on the
record in the CV-10-6007416-S case. The court then
granted the motion for a nonsuit in CV-10-6007416-S.
The plaintiffs, twenty days following the court’s judg-
ments, filed motions to open the judgments of nonsuit.
Grocki argued in the hearing on those motions that he
did have the ultimate authority to settle the matters at
the settlement conference. Grocki further argued that,
to the extent that the court did not agree that he had
such authority because it concluded that Lange had the
ultimate authority, any failure to comply was due to
Lange’s hospitalization, which, he argued, established
good cause for any alleged noncompliance. The court
denied the motions. This joint appeal followed.
Although we will consider the appeals for Faile and the
LLC separately, we first discuss our standard of review,
which the parties dispute.
The plaintiffs contend that we should apply the more
nuanced standard set forth in Millbrook Owners Assn.,
Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776
A.2d 1115 (2001), while the town contends that we
should apply the more deferential general abuse of dis-
cretion standard. After a thorough analysis of Millbrook
and its related cases, although we are persuaded that
Millbrook should apply in instances such as this, we
conclude that, under either the more nuanced Millbrook
standard or under the deferential general abuse of dis-
cretion standard, the court abused its discretion in ren-
dering judgments of nonsuit in these matters.
We start by setting forth a brief overview of Millbrook.
In that case, the plaintiff failed to respond to the defen-
dants’ request that it disclose the opinions of two wit-
nesses who were expected to testify at trial. Id., 6. The
defendants thereafter moved to compel disclosure, and,
in response, the trial court ordered the plaintiff to dis-
close those opinions. Id. Thereafter, the plaintiff
decided that those witnesses would not testify at trial,
but that they only would be used to help prepare for
litigation. Id., 6–7; see also Practice Book (2001) §§ 13-
4 (2) and 13-4 (4). After other procedural events, the
defendants filed a motion to dismiss on the ground
that the plaintiff had failed to disclose the witnesses
pursuant to Practice Book (2001) § 13-4 (4), which con-
cerns experts who will be called to testify at trial. Id., 8.
The plaintiff objected on the ground that the witnesses
would not be called at trial. Id. The court heard the
motion to dismiss, and entered a conditional dismissal.
Id., 9. The plaintiff attempted to comply with the condi-
tions, but, apparently, did not do so successfully, and
the defendants renewed their motion to dismiss, pursu-
ant to Practice Book § 13-14, which the court, ulti-
mately, granted. Id., 9, 13–14.
On appeal, our Supreme Court opined that the trial
court could have dismissed the plaintiff’s case for fail-
ure to comply on two different bases. First, the trial
court could have dismissed the case as a sanction pursu-
ant to Practice Book § 13-14, which provides sanctions
for, inter alia, failing to comply with discovery orders.
Id., 14. Second, our Supreme Court opined that the trial
court ‘‘could have seen that same failure [to comply
with the court’s order] as justifying the sanction of
dismissal under the court’s inherent sanctioning
power.’’ Id.
Ultimately, however, our Supreme Court ruled that
it made no difference to its analysis under which grant
of authority the trial court had acted, because the pro-
priety of the trial court’s exercise of its authority under
either or both grants of authority was considered under
the same standard on appeal: ‘‘[A] court may, either
under its inherent power to impose sanctions in order
to compel observance of its rules and orders, or under
the provisions of § 13-14, impose sanctions, including
the sanction of dismissal. In this connection, we agree
with the defendants that, in the present case, the court
was acting under either—or both—grants of authority.
It is not necessary, however, to determine which grant
of authority it acted under, because the standards for
gauging the propriety of its action are the same under
either.’’ Id., 14–15.
The court then stated in relevant part: ‘‘Traditionally,
we have reviewed the action of the trial court in impos-
ing sanctions for failure to comply with its orders
regarding discovery under a broad abuse of discretion
standard. . . . The factors to be considered by the
court include: (1) whether noncompliance was caused
by inability, rather than wilfulness, bad faith or other
fault; (2) whether and to what extent noncompliance
caused prejudice to the other party, including the impor-
tance of the information sought to that party’s case;
and (3) which sanction would, under the circumstances
of the case, be an appropriate judicial response to the
noncomplying party’s conduct. . . . As with any dis-
cretionary action of the trial court, appellate review
requires every reasonable presumption in favor of the
action, and the ultimate issue for us is whether the trial
court could have reasonably concluded as it did. . . .
In reviewing a claim that the court has abused this
discretion, great weight is due to the action of the trial
court and every reasonable presumption should be
given in favor of its correctness. . . . The determina-
tive question for an appellate court is not whether it
would have imposed a similar sanction but whether the
trial court could reasonably conclude as it did given
the facts presented. Never will the case on appeal look
as it does to a [trial court] . . . faced with the need to
impose reasonable bounds and order on discovery.
. . .
‘‘At the same time, however, we also have stated:
[D]iscretion imports something more than leeway in
decision-making. . . . It means a legal discretion, 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. . . . The design of the rules
of practice is both to facilitate business and to advance
justice; they will be interpreted liberally in any case
where it shall be manifest that a strict adherence to
them will work surprise or injustice. . . . Rules are a
means to justice, and not an end in themselves. . . .
Our practice does not favor the termination of proceed-
ings without a determination of the merits of the contro-
versy 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 discre-
tion 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. . . . It is inherent in these
principles that the articulation by the court of the condi-
tions with which the party must comply be made with
reasonable clarity.
‘‘Upon reflection, we conclude that the broad abuse
of discretion standard that we have been employing for
the imposition of sanctions for violation of discovery
orders, and for our appellate review thereof, is inaccu-
rate, because it masks several different questions that
in fact are involved in the question of when a court is
justified in imposing such sanctions. We therefore now
take the opportunity to clarify that standard by articulat-
ing those specific questions. In order for a trial court’s
order of sanctions for violation of a discovery order to
withstand scrutiny, three requirements must be met.’’
(Citations omitted; internal quotation marks omitted.)
Id., 15–17.
Our Supreme Court then proceeded to set forth the
three factors that must be employed when determining
whether the trial court properly exercised its discretion
in ordering sanctions for the violation of a discovery
order under its inherent authority and/or pursuant to
Practice Book § 13-14. ‘‘First, the order to be complied
with must be reasonably clear. In this connection, how-
ever, 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. This requirement
poses a legal question 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.’’ Id., 17–18.
In the present case, the plaintiffs argue that the Mill-
brook standard should be applied to our review of the
sanctions of nonsuit in this case. The town argues that
Millbrook applies only to review of discovery sanctions
and the failure to file a certificate of closed pleadings,
and that the traditional abuse of discretion standard
applies in this case. We conclude that, although Mill-
brook sets forth a standard that appears different in
form and is more nuanced than the traditional abuse
of discretion standard; see Yeager v. Alvarez, 302 Conn.
772, 784, 31 A.3d 794 (2011) (Millbrook provides ‘‘more
nuanced analysis’’ than traditional abuse of discretion
standard, which ‘‘masks several different questions that
in fact are involved in the question of when a court is
justified in imposing . . . sanctions’’ [internal quota-
tion marks omitted]); both standards are quite similar.
See also Ridgaway v. Mount Vernon Fire Ins. Co.,
165 Conn. App. 737, 755–56, 140 A.3d 321 (applying
Millbrook test to determine whether trial court abused
discretion in rendering judgment of nonsuit for noncom-
pliance with court order not involving discovery), cert.
granted, 322 Conn. 908, 140 A.3d 978 (2016); see gener-
ally, D’Ascanio v. Toyota Industries Corp., 309 Conn.
663, 683–84, 72 A.3d 1019 (2013) (after trial court effec-
tively rendered judgment of dismissal as sanction for
expert witness’ action, Supreme Court reversed judg-
ment and, although not specifically employing Mill-
brook test, concluded that trial court had ‘‘abundance
of options at its disposal’’ other than dismissal—thereby
assessing proportionality of court’s sanction to actual
violation).
Even if we were to conclude, however, that the pro-
portionality prong of the Millbrook factors substantively
is different from the deference afforded to the trial
court’s decision by application of the traditional abuse
of discretion standard; see generally Anderson v. Com-
missioner of Correction, 158 Conn. App. 585, 595 n.9,
119 A.3d 1237 (holding that court abused its discretion,
but declining to apply ‘‘narrow’’ Millbrook standard to
habeas court’s imposition of sanction of dismissal with
prejudice), cert. denied, 319 Conn. 927, 125 A.3d 202
(2015); we, nevertheless, would conclude that the first
two factors of the Millbrook test are necessary to any
case in which a reviewing court is called upon to assess
whether the trial court abused its discretion in render-
ing a judgment of nonsuit for violations of the court’s
order.
As to the necessary, although generally unstated, first
factor, our long-standing precedent is well defined: ‘‘An
order of the court must be sufficiently clear and specific
to allow a party to determine with reasonable certainty
what it is required to do. See Dept. of Health Services
v. Commission on Human Rights & Opportunities,
198 Conn. 479, 488–89, 503 A.2d 1151 (1986); Adams
v. Vaill, 158 Conn. 478, 485–86, 262 A.2d 169 (1969);
Castonguay v. Plourde, 46 Conn. App. 251, 268, 699
A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660
(1997); Contegni v. Payne, 18 Conn. App. 47, 59, 557
A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140
(1989); Dingwell v. Litchfield, 4 Conn. App. 621, 625,
496 A.2d 213 (1985).’’ Millbrook Owners Assn., Inc. v.
Hamilton Standard, supra, 257 Conn. 38 (Vertefeuille,
J., concurring in part and dissenting in part).
‘‘The construction of an order is a question of law
over which we exercise plenary review.’’ Gianetti v.
Gerardi, 122 Conn. App. 126, 130, 998 A.2d 807 (2010).
‘‘As a general rule, [orders and] judgments are to be
construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the [order
or] judgment. . . . The interpretation of [an order or]
judgment may involve the circumstances surrounding
[its] making. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The [order or] judgment should admit of a consis-
tent construction as a whole.’’ (Internal quotation marks
omitted.) State v. Denya, 294 Conn. 516, 529, 986 A.2d
260 (2010).
As to the necessary, although generally unstated, sec-
ond factor, our law is equally well-defined: Pursuant to
Practice Book § 17-19, the trial court may enter a non-
suit or default ‘‘[i]f a party fails to comply with an
order of a judicial authority or a citation to appear or
fails without proper excuse to appear in person or by
counsel for trial . . . .’’ (Emphasis added.) Under the
plain and unambiguous language of the rule, before a
nonsuit or default can be entered for a party’s failure
to comply with an order of the court, there necessarily
must be a finding of a failure to comply made by the
trial court. See Housing Authority v. Weitz, 163 Conn.
App. 778, 782–83, 134 A.3d 749 (2016) (reversing court’s
default against defendant who did not appear personally
for trial, but whose attorney did appear, because civil
parties are ‘‘[permitted] to appear through counsel’’;
therefore, court’s finding that defendant failed to appear
and entry of default was erroneous).
If an appellate court is called upon to review the
findings of the trial court ‘‘we apply our clearly errone-
ous standard, which is the well settled standard for
reviewing a trial court’s factual findings. . . . A factual
finding is clearly erroneous when it is not supported
by any evidence in the record or when there is evidence
to support it, but the reviewing court is left with the
definite and firm conviction that a mistake has been
made.’’ (Internal quotation marks omitted.) Richards
v. Richards, 78 Conn. App. 734, 742, 829 A.2d 60, cert.
denied, 266 Conn. 922, 835 A.2d 473 (2003).
As to the third prong of the Millbrook test, namely,
whether the sanction imposed is proportional to the
violation; Millbrook Owners Assn., Inc. v. Hamilton
Standard, supra, 257 Conn. 18; the parties disagree on
whether a proportionality analysis should be employed
when reviewing the propriety of a trial court’s nonsuit
due to a nondiscovery related violation. The plaintiffs
argue that Millbrook should be applied and that the
nonsuits in this case were not proportional to the viola-
tion. The town argues that the proportionality prong
should not be employed and that we must apply the
traditional broad abuse of discretion standard.
In this particular case, we conclude that even if we
apply the traditionally more deferential abuse of discre-
tion standard, the trial court abused its discretion in
rendering judgments of nonsuit in these matters. ‘‘In
reviewing a claim that [the] discretion [of the trial court]
has been abused, 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. . . . [T]he ultimate issue is whether the
court could reasonably conclude as it did.’’ (Internal
quotation marks omitted.) Allstate Ins. Co. v. Mottolese,
261 Conn. 521, 529, 803 A.2d 311 (2002); see also Herrick
v. Monkey Farm Cafe, LLC, 163 Conn. App. 45, 50, 134
A.3d 643 (2016). We now consider the merits of the
plaintiffs’ claims.
I
On appeal, Faile claims that the court improperly
rendered judgments of nonsuit against him. Specifically,
Faile argues that, although he heeded the advice of
counsel, namely, Grocki, he was present himself at the
settlement conference. Indeed, there was no dispute
that Faile owned his hangars. Therefore, he contends,
it is indisputable that there was a person with ‘‘ultimate
authority’’ present. He further argues that he has a ‘‘right
to determine whether and upon what terms to settle
his cases.’’ Accordingly, he argues, it is indisputable
that he did not violate the court’s order by failing to
have someone with ultimate authority present at the
settlement conference.5
As to the court’s ruling in CV-10-6006946-S that Grocki
violated the court’s order by failing to have every physi-
cal piece of paper that he would offer into evidence if
the matter were tried, Faile argues that ‘‘[t]here is no
substantive difference between bringing an electronic
copy of each piece of paper versus bringing the printed-
out piece of paper. Thus, [Grocki] complied with the
order.’’ Therefore, Faile argues, the court’s findings that
he and/or Grocki were in violation of the court’s orders
were clearly erroneous. Accordingly, he argues, the
court erred in rendering judgments of nonsuit. Further-
more, Faile argues, even if ‘‘this somehow constitutes
a violation of the order, it [did] not warrant the harsh,
last resort sanction of a judgment of nonsuit’’ in CV-
10-6006946-S.
Although the town does not dispute that Faile was
present at the pretrial conference, it argues that Faile
essentially had delegated his authority to Lange, who
was not present. Furthermore, the town argues Grocki
did not have ultimate authority to settle these matters
because he was not authorized to settle unless the fair
market assessment value was $9000 or less. Accord-
ingly, it contends that the court properly rendered a
judgment of nonsuit.6 We agree with Faile that the
court’s finding of two violations of its orders was clearly
erroneous, and that the court, therefore, abused its dis-
cretion in rendering judgments of nonsuit against him.
The primary basis for the court’s entry of nonsuits
against Faile was the court’s finding that Faile was in
violation of its order by failing to have a person with
‘‘ultimate authority’’ present at the pretrial conference.
The fact of the matter is that not only was Faile’s coun-
sel present at that pretrial conference, Faile, himself,
was present at that conference. We agree with Faile’s
assertion that simply because a party has a bottom line
and stands firm in his or her position does not mean
that the party does not have ultimate authority to settle
the case. No party can be mandated to settle a case.
See Allstate Ins. Co. v. Mottolese, supra, 261 Conn. 531.
Indeed, an aggrieved taxpayer who appeals from a deci-
sion of a board of assessment appeals ultimately has a
right to a trial de novo. See Chestnut Point Realty, LLC
v. East Windsor, 324 Conn. 528, 533, 153 A.3d 636 (2017)
(taxpayer’s right to appeal municipal property tax
assessment, like other administrative appeals, derives
from statute); Breezy Knoll Assn., Inc. v. Morris, 286
Conn. 766, 776, 946 A.2d 215 (2008) (‘‘[i]f a taxpayer is
found to be aggrieved by the decision of the board of
[assessment appeals], the court tries the matter de novo
and the ultimate question is the ascertainment of the
true and actual value of the applicant’s property’’ [inter-
nal quotation marks omitted]).
‘‘Public policy favors and encourages the voluntary
settlement of civil suits. . . . We view with disfavor,
however, all pressure tactics, whether employed
directly or indirectly, to coerce settlement by litigants,
their counsel and their insurers. The failure to concur
with what a trial court may consider an appropriate
settlement should not result in the imposition of any
retributive sanctions upon a litigant, his or her counsel
or his or her insurer. As our sister state, New York,
has recognized, [t]he function of courts is to provide
litigants with an opportunity to air their differences at
an impartial trial according to law. . . . [The court
should not be able] to exert undue pressure on litigants
to oblige them to settle their controversies without their
day in court.’’ (Citation omitted; internal quotation
marks omitted.) Allstate Ins. Co. v. Mottolese, supra,
261 Conn. 531.
In Mottolese, a case wherein the insurer actually
refused to participate meaningfully in the settlement
conference, our Supreme Court further explained:
‘‘Although we sympathize with the trial court’s concern
that merely attending a pretrial conference while refus-
ing, at the same time, to participate meaningfully in the
negotiation or settlement process is not within the spirit
of the settlement process, the plaintiff’s refusal, on the
basis of a validly exercised right to a trial de novo
. . . does not fall within the parameters of sanctionable
behavior under [Practice Book] § 14-13. To conclude
otherwise would undermine the insured’s . . . right
to a trial . . . .’’ (Emphasis added.) Id., 532.
After reviewing the record in this case, we conclude
that the court’s finding that Faile violated its order by
not having someone with ultimate authority to settle
the matter present at the pretrial conference was clearly
erroneous. Faile, himself, was present for the confer-
ence, and, as the owner of his hangars, his willingness
or unwillingness to settle the matter for some amount
that the court may have thought reasonable did not
violate the court’s order. To be sure, it was his right
to settle or not to settle the matters. Furthermore, his
attorney also was present. Faile had every right to refuse
to settle. See id., 531–32. His decision to exercise that
right is not a violation of the court’s order.
As to the court’s additional basis for finding a viola-
tion of its order, namely, that Grocki failed to bring to
the pretrial conference ‘‘every physical piece of paper’’
he would offer into evidence in the event of a trial,
we also conclude that the court’s finding was clearly
erroneous. The order of the court was that ‘‘counsel
for all parties must bring every piece of paper which
will be offered in evidence.’’ Grocki told the court that
he had all available evidence on his laptop computer,
which was with him at court.7 The court’s order did not
state that the parties needed every physical piece of
paper. There was no mention in its order that the court
expected actual physical pieces of paper. We conclude
that by having electronic copies of the documents avail-
able, Grocki and Faile complied with the court’s order,
and the court’s finding that this was a violation of its
order was clearly erroneous.
Because Faile had ultimate authority to settle his tax
appeal, or not settle his tax appeal, as the case may be,
and his attorney had with him at the pretrial conference
the documentary evidence available in electronic form,
we conclude that the court’s findings that its orders
were violated was clearly erroneous. Accordingly, the
court abused its discretion when it rendered judgments
of nonsuit against Faile.
II
The LLC claims that the court abused its discretion
in rendering judgments of nonsuit against it. The LLC
argues that its attorney, Grocki, did have ultimate
authority. Therefore, it argues, the court’s finding to
the contrary was clearly erroneous.8 In the event that
we agree with the trial court that Grocki did not have
ultimate authority, the LLC argues that, under either
the proportionality prong of Millbrook or under the
broad general abuse of discretion standard, the court,
nevertheless, abused its discretion in rendering judg-
ments of nonsuit. In the alternative, the LLC also argues
that Lange was prevented by illness and hospitalization
from attending the conference, which establishes the
good cause required to open the judgments of nonsuit,
and, therefore, the court improperly denied its motion
to open.9
The town argues that Grocki did not have ultimate
authority to settle these matters because he was not
authorized to settle unless the fair market assessment
value was $9000 or less. Accordingly, it contends that
the court properly rendered judgments of nonsuit. The
town also argues that, although we should not apply
the proportionality prong of Millbrook, under either that
prong or under the broad traditional abuse of discretion
standard, the court properly rendered judgments of
nonsuit.
We conclude that the LLC has failed to establish clear
error in the court’s finding that Grocki did not have
ultimate authority to settle the LLC’s tax appeals. We
further conclude, however, that even if we apply the
broader traditional abuse of discretion standard, the
court improperly rendered judgments of nonsuit against
the LLC in these matters.
The events as set forth in the transcripts of the hear-
ing, and presented in part I of this option, inform our
review. During the hearings, Grocki reiterated consis-
tently that he had the ultimate authority to settle these
matters, but that the parties and he, as counsel, agreed
that they would not settle for an assessment of more
than $9000. When the court considered the motion for
nonsuit in CV-10-6007416-S, it went off the record. Upon
resuming the hearing, Grocki ‘‘conceded’’ that, under
a strict reading of the court’s order, he did not have
ultimate authority to settle the matter.
Specifically, the following colloquy occurred during
the hearing in CV-10-6007416-S: ‘‘[Attorney LeClerc]:
The town would move for a nonsuit based upon the
[LLC’s] failure to have someone present with ultimate
authority to settle this matter at today’s pretrial.
‘‘The Court: All right. Mr. Grocki, is there a principal—
or who is the principal in—
‘‘[Attorney Grocki]: In the LLC, Your Honor? . . .
That’s Paul Lange.
‘‘The Court: Okay. Is he here?
‘‘[Attorney Grocki]: He is not, Your Honor.
‘‘The Court: Okay. And you have some authority
from him?
‘‘[Attorney Grocki]: Correct.
‘‘The Court: And that authority is limited to what?
‘‘[Attorney Grocki]: Nine thousand dollars.
‘‘The Court: And you can’t negotiate a settlement at
a figure above that. Is that correct?
‘‘[Attorney Grocki]: Correct, Your Honor. Unless—
yes. Correct. . . .
‘‘The Court: Do you . . . contend that you have com-
plied with the pretrial notice?
‘‘[Attorney Grocki]: Your Honor, for the reasons we
just discuss[ed] . . . I mirror . . . what was—
‘‘The Court: I’m sorry. I want to be very clear on what
you’re saying.
‘‘[Attorney Grocki]: Yeah. Well, Your Honor, I guess,
and I think, based on my interpretation of the circum-
stances, again, I—
‘‘The Court: Excuse me.
‘‘[Attorney Grocki]: —I think—
‘‘The Court: I don’t know what you’re talking about.
You’re interpretation of the circumstances. You’re not
called upon to interpret the circumstances of a pretrial
notice. You are merely being asked a very direct yes
or no question. . . . Have you complied with the terms
of the pretrial notice?
‘‘[Attorney Grocki]: And, Your Honor, I’m sorry. Do
you mind if I take the paper from you one more time?
‘‘The Court: Not at all.
‘‘[Attorney Grocki]: Is it okay, just to be certain?
‘‘The Court: Let’s go off the record.
‘‘[Attorney Grocki]: Okay.
(Off record.)
‘‘The Court: Let me have those papers.
‘‘[Attorney Grocki]: Sure.
‘‘The Court: Mr. Grocki, you’ve now had an opportu-
nity to read and reread the terms of the pretrial notice.
Now, in light of the fact that the pretrial notice states
someone with authority to negotiate a settlement at a
preestablished figure does not have ultimate authority,
and in spite of the fact that someone with ultimate
authority is required to be here on behalf of a corpora-
tion or other type of legal entity, are you representing
to me that on the face of this pretrial notice, you have
complied with its terms?
‘‘[Attorney Grocki]: Your Honor, after—I, I took
another look at it, after taking it from Your Honor, and
it looks like, based on the strict language of the, of the
pretrial order, that it has not been complied with.
‘‘The Court: Okay. Now, in light of that, do you want
to go back to the argument on Mr. LeClerc’s motion in
the previous case, that is . . . Paul Lange v. Town of
Stratford . . . [CV-09-4037511-S]. . . . In light of
what [you have] just said, do you want to amend your
remarks on the argument—your remarks in the argu-
ment on the motion for nonsuit made by Mr. LeClerc
in the case I have just cited?
‘‘[Attorney Grocki]: Yes, Your Honor. I’d like it to
reflect what we just discussed in . . . the final docket
number with the LLC.
‘‘The Court: That is that you did not—you do not enjoy
ultimate authority as required by the pretrial notice?
‘‘[Attorney Grocki]: Yes, Your Honor, based on the
strict language—
‘‘The Court: And, therefore, you have failed to comply
with the pretrial notice?
‘‘[Attorney Grocki]: Correct, Your Honor.
‘‘The Court: All right. Well, on that ground, the motion
for nonsuit is granted.’’
Although we are somewhat troubled by the colloquy
throughout the hearings, leading to this ‘‘concession,’’
it, nonetheless, was determined by the trial court to be
a concession that Grocki did not have ultimate authority
to settle, and thus failed to comply with the pretrial
notice. Accordingly, the LLC has not met its burden of
establishing clear error in this finding. This, however,
does not end our inquiry.
‘‘In reviewing a claim that the court has abused [its]
discretion, great weight is due to the action of the trial
court and every reasonable presumption should be
given in favor of its correctness . . . .’’ (Internal quota-
tion marks omitted.) Herrick v. Monkey Farm Cafe,
LLC, supra, 163 Conn. App. 50. ‘‘[D]iscretion imports
something more than leeway in decision-making. . . .
It means a legal discretion, to be exercised in confor-
mity with the spirit of the law and in a manner to
subserve and not to impede or defeat the ends of sub-
stantial justice. . . . State v. Martin, 201 Conn. 74, 88,
513 A.2d 116 (1986). . . . Gateway Co. v. DiNoia, 232
Conn. 223, 239, 654 A.2d 342 (1995). 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. Snow v. Calise, 174 Conn. 567,
574, 392 A.2d 440 (1978). The design of the rules of
practice is both to facilitate business and to advance
justice; they will be interpreted liberally in any case
where it shall be manifest that a strict adherence to
them will work surprise or injustice. . . . Rules are a
means to justice, and not an end in themselves. . . .
In re Dodson, 214 Conn. 344, 363, 572 A.2d 328, cert.
denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205
(1990). Our practice does not favor the termination of
proceedings without a determination of the merits of
the controversy where that can be brought about with
due regard to necessary rules of procedure. Johnson
v. Zoning Board of Appeals, 166 Conn. 102, 111, 347
A.2d 53 (1974). . . . Coppola v. Coppola, 243 Conn.
657, 665–66, 707 A.2d 281 (1998). 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; Fox v.
First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); see
also Pavlinko v. Yale-New Haven Hospital, [192 Conn.
138, 145, 470 A.2d 246 (1984)] (dismissal proper where
party’s disobedience intentional, sufficient need for
information sought is shown, and disobedient party not
inclined to change position); the court should be reluc-
tant to employ the sanction of dismissal except as a
last resort. Fox v. First Bank, supra, 39. [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. Pietraroia v. Northeast Utili-
ties, 254 Conn. 60, 75, 756 A.2d 845 (2000).’’ (Internal
quotation marks omitted.) Millbrook Owners Assn.,
Inc. v. Hamilton Standard, supra, 257 Conn. 16–17; see
also Herrick v. Monkey Farm Cafe, LLC, supra, 50–51.
Here, Lange, the principal of the LLC and the person
whom the trial court found was vested with the ultimate
authority to settle the LLC’s tax appeals, was not in
attendance at the pretrial conference because he was
hospitalized. Grocki had been given, if not ultimate
authority, at least limited authority to settle the LLC’s
tax appeals. The court made no findings of a wilful
disregard of its orders or of contemptuous behavior on
the part of either Grocki or Lange. Although the court
appeared frustrated that Lange was not present, no one
disputed that he was hospitalized and unable to attend
the conference. A dismissal or a nonsuit as a sanction
for the failure of Lange to attend when he was ill and
in the hospital does not serve justice or in any way
‘‘vindicate the legitimate interests of the other party
and the court.’’ (Internal quotation marks omitted.) Mil-
lbrook Owners Assn., Inc. v. Hamilton Standard, supra,
257 Conn. 17. Under the facts of this case, we conclude
that the court abused its broad discretion in rendering
judgments of nonsuit against the LLC.
The judgments are reversed and the matters are
remanded for further proceedings.
In this opinion the other judges concurred.
1
Because we agree that the judgments of nonsuit were inappropriate in
each of these matters, we need not consider whether the trial court properly
denied the motions to open the judgments of nonsuit.
2
Although hangar A-3 was owned by the LLC for purposes of both the
2009 and 2010 taxes, the town billed Lange in his individual capacity for
the taxes owed for 2009. The importance of this matter, however, is not an
issue in this appeal. For convenience, we refer to the tax appeals involving
hangar A-3 as the LLC’s appeal except where relevant.
3
In CV-09-4025677-S, Faile appealed from the 2009 decision of the board;
in CV-10-6006946-S, Faile appealed from the 2010 decision of the board. In
CV-09-4037511-S, Lange appealed from the 2009 decision of the board. See
footnote 2 of this opinion. In CV-10-6007416-S, the LLC appealed from the
2010 decision of the board. All of these cases were consolidated for one
pretrial at the trial court.
4
We note that Lange was not a party to either of Faile’s appeals.
5
Faile does not challenge the clarity of the court’s relevant orders.
6
The town does not address the court’s ruling that Grocki also violated
its order by not bringing in every physical piece of paper that he would
offer into evidence.
7
We note that the plaintiffs had filed a motion for continuance of the
pretrial conference on the basis that discovery still had not been completed,
which motion the court had denied.
8
On appeal, the LLC does not contest the clarity of the court’s orders.
9
See footnote 1 of this opinion.