Ridgaway v. Mount Vernon Fire Ins. Co. , 165 Conn. App. 737 ( 2016 )

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WILLIAM P. RIDGAWAY, SR., ADMINISTRATOR
(ESTATE OF WILLIAM P. RIDGAWAY, JR.),
ET AL. v. MOUNT VERNON FIRE
INSURANCE COMPANY
(AC 37511)
Gruendel, Lavine and Sheldon, Js.*
Argued March 3—officially released May 24, 2016
(Appeal from Superior Court, judicial district of New
London, Hon. Thomas F. Parker, judge trial referee.)
Wesley W. Horton, with whom was Kimberly A.
Knox, for the appellants (plaintiffs).
Robert B. Flynn, with whom were Dennis M. Carnelli
and Joseph J. Andriola, for the appellee (defendant).
Opinion
SHELDON, J. The plaintiffs, William P. Ridgaway, Sr.,
for himself individually as the father of his deceased
son, William P. Ridgaway, Jr. (decedent), and as admin-
istrator of his son’s estate, and Rita Grant, for herself
individually as the decedent’s mother, appeal from the
judgment of nonsuit rendered against them by the trial
court based upon their counsel’s failure to comply with
the court’s order that they file a copy of a confidential
settlement agreement in a related lawsuit, which coun-
sel claimed to have prevented them from complying
voluntarily with certain discovery requests filed in this
case by the defendant, Mount Vernon Fire Insurance
Company. The plaintiffs claim that the judicial authority
that rendered the judgment of nonsuit lacked jurisdic-
tion or authority to do so by reason of his status as a
judge trial referee, and, that even if it had such jurisdic-
tion and authority, it erred in rendering the challenged
judgment of nonsuit against them because that sanc-
tion, as applied to them, was not proportional to their
counsel’s alleged violation. We reject the plaintiffs’
claim that the judicial authority lacked jurisdiction or
authority, as a judge trial referee, to render the judgment
of nonsuit here at issue, but conclude that it abused its
discretion in imposing that sanction against the plain-
tiffs because rendering a judgment of nonsuit against
them was not proportional to their counsel’s alleged
noncompliance with the court’s order. Accordingly, we
reverse the judgment of the trial court.
The following factual and procedural history is rele-
vant to this appeal. On April 16, 2000, the decedent died
in an automobile accident resulting from the intoxica-
tion of the driver of the automobile, Anthony Sulls,
who had been drinking with the decedent at the Silk
Stockings Bar in Groton. On February 5, 2001, the plain-
tiffs filed a wrongful death action against Silk, LLC
(Silk), as the owner and operator of the bar.1 Five addi-
tional actions concerning insurance coverage disputes
stemming from the underlying death of the plaintiffs’
decedent were thereafter commenced. Those five addi-
tional actions, as set forth and described in the settle-
ment agreement referenced herein, were as follows:
First Specialty Insurance Corp. v. Marion Reed et al.,
X04-CV-06-4035743 (action for declaratory judgment
filed by Silk’s liability insurer [coverage action]); Wil-
liam P. Ridgaway, Sr. Administrator for the Estate of
William P. Ridgaway v. Cowles & Connell of Connecti-
cut, Inc. et al., X04-CV-03-4034704, and Silk, LLC dba
Silk Stockings v. Cowles & Connell of Connecticut, Inc.
aka Cowles & Connell, Inc. et al., X04-CV-03-4034739
(actions filed against agents and brokers for allegedly
failing to procure adequate coverage for Silk [agents
and brokers actions]); Silk, LLC dba Silk Stockings
Bar v. Mount Vernon Fire Insurance Co., X04-CV-02-
4034598; and Estate of Ridgaway et al. v. Mount Vernon
Fire Insurance Company, X04-CV-02-0563699.
As a result of mediation, a stipulated judgment was
entered in the wrongful death action on March 22, 2011,
in favor of the plaintiffs and against Silk in the amount of
$1,000,000. Under the terms of that stipulated judgment,
Silk agreed, in full satisfaction of its payment obligation
thereunder, to assign to the plaintiffs all of its rights to
and interest in insurance coverage, in connection with
the decedent’s death, under its excess and umbrella
insurance policy issued by the defendant. The coverage
action and the agents and brokers actions were also
settled, and that settlement was memorialized in a docu-
ment entitled, ‘‘Confidential Settlement Agreement and
Specified Releases’’ (confidentiality agreement). The
defendant was not a party to that settlement.
On June 7, 2011, the plaintiffs, who were represented
by the Reardon Law Firm, P.C., filed this subrogation
action by way of a three count complaint alleging that
they had obtained a judgment against the defendant’s
insured in a separate personal injury action, but that
the defendant had wrongfully denied coverage and
refused to pay the judgment. The defendant filed an
answer and special defenses, and a counterclaim seek-
ing a declaratory judgment that the insurance policy
did not cover the plaintiffs’ judgment.
On September 26, 2013, the defendant filed a motion
seeking an order to compel the plaintiffs to produce
three documents: the transcript of the June 27, 2002
deposition of Judith Truax and two exhibits from the
later February 12, 2009 deposition of the same depo-
nent.2 In that motion, the defendant explained that when
it had requested those documents from the plaintiffs,
counsel for the plaintiffs responded that: ‘‘Because the
plaintiffs are subject to a confidentiality agreement, I
will not be turning over any documents unless ordered
to do so by the [c]ourt.’’
On October 3, 2013, the plaintiffs filed an objection
to the defendant’s motion and a cross motion for a
protective order to prevent the defendant from compel-
ling the production of the requested documents. In that
motion, the plaintiffs ‘‘steadfastly’’ objected to the pro-
duction of the requested documents, contending that
‘‘production of the documents could expose them to
the risk of litigation for breaching [the aforementioned
confidentiality] agreement.’’ The plaintiffs argued, more
particularly, as follows: ‘‘Production of the documents
requested would cause the plaintiffs to violate the confi-
dentiality agreement entered into with other parties in
separate lawsuits. In this regard, any order by this court
requiring production of these documents would invade
matters that the parties to that agreement fully intended
at the time of execution to remain forever confidential.
If the plaintiffs produce the requested discovery docu-
ments, they could be exposing themselves to the risk
of litigation for being in breach of contract.’’ In that
same motion, the plaintiffs’ counsel cited the Rules of
Professional Conduct in support of his duty to ‘‘chal-
lenge any court order that he believes seeks unneces-
sary disclosure of confidential information.’’ On those
grounds, the plaintiffs asked that the defendant’s
motion for an order compelling production of the
requested documents be denied, or, in the alternative,
that the court issue a protective order so that those
documents could not be discovered.
On October 8, 2013, the defendant filed a reply to the
plaintiffs’ objection to its motion for order to compel
disclosure of the previously requested documents and
an objection to the plaintiffs’ cross motion for a protec-
tive order as to those documents. The defendant argued
that the court should not rely on a confidentiality
agreement to which neither it nor the defendant was
privy as a basis for not ordering the production of, or
granting a protective order with respect to, the docu-
ments at issue. The defendant explained in its motion
that it had been a party to and its prior counsel had
participated in the depositions at issue, but that prior
counsel had misplaced the documents it was requesting
from the plaintiffs. The defendant explained that it had
sought copies of those documents from the court
reporting agency that had transcribed the deposition,
but was informed that the agency no longer had those
documents in its possession.
On October 15, 2013, the plaintiffs filed a sur-reply
to the defendant’s October 8, 2013 reply memorandum.
The plaintiffs argued in that pleading that the confidenti-
ality agreement it had entered into with other defen-
dants in the coverage lawsuits that arose from the
wrongful death action was the basis for their objection
to ‘‘the disclosure of the requested discovery documents
or the terms and conditions of the confidentiality
agreement to [the defendant], a nonparty [to that
agreement], because of the risk that such disclosure
would cause them to breach said confidentiality
agreement.’’ The plaintiffs argued: ‘‘[The defendant]
expects the plaintiffs to cite to the specific language of
the agreement that would serve to bar disclosure of the
requested documents or to append the agreement to
their briefs, which would then become public record,
in order to prove that disclosure of the requested docu-
ments would cause them to violate the confidentiality
agreement. These assertions are preposterous, as dis-
semination of the terms and conditions of the confiden-
tial agreement is precisely the kind of conduct that is
prohibited when an agreement is confidential in nature.
Citing to the specific language in the agreement that
the plaintiffs claim precludes them from producing the
requested discovery documents and/or appending the
contents of the agreement for the world to see on the
public docket would expose the plaintiffs to liability
for breach of contract and would expose plaintiffs’
counsel to liability for doing so.’’ The plaintiffs proposed
that: ‘‘should the court require inspection of the confi-
dentiality agreement before reaching a ruling on
whether the requested discovery documents are subject
to the provisions of the confidentiality agreement, then
the plaintiffs would request an ‘in camera’ inspection
of the agreement by the court only as the agreement
is, itself, confidential, and may not be inspected by [the
defendant] or any other nonparty to the agreement.’’
(Emphasis omitted.) The plaintiffs also argued that the
defendant, which was a party to the depositions at issue,
but was not a party to the confidentiality agreement,
should have had the documents that it was requesting
or that it would have obtained them from another
source that was not bound by the confidentiality
agreement by which the plaintiffs are bound. Puzzlingly,
the plaintiffs also argued that the deposition transcripts
and exhibits were work product, and also that the defen-
dant had not shown that ‘‘it cannot obtain these materi-
als without undue hardship because . . . these
materials are presumably readily available from the firm
that formerly represented the defendant.’’ The plaintiffs
argued that the requested documents were thus also
protected ‘‘by privilege.’’3 The court never ruled on the
proposal by the plaintiffs’ counsel that its right to with-
hold the requested discovery should be decided on the
basis of an in camera review of the confidentiality
agreement.
More than four months later, on February 26, 2014,
the court, Hon. Thomas F. Parker, judge trial referee,
issued an order that: ‘‘[The] plaintiffs shall file a copy
of the confidentiality agreement upon which [they rely]
by March 7, 2014. Dollar amounts may be redacted
from the copy filed.’’ The plaintiffs did not comply with
that order.
Accordingly, on March 14, 2014, the defendant filed
a motion for nonsuit and other sanctions based upon the
plaintiffs’ failure to comply with the court’s February 26,
2014 order to file a redacted copy of the confidentiality
agreement upon which they were relying in their refusal
to produce the documents that the defendant had pre-
viously requested. As legal grounds for its motion, the
defendant relied upon Practice Book § 13-14, which
allows for the imposition of sanctions when a party
fails to comply with a discovery order. On April 10,
2014, the plaintiffs filed an objection to the motion for
nonsuit, in which they claimed that the motion had
become moot because they had complied with the
court’s order by faxing a redacted copy of the confiden-
tiality agreement to counsel for the defendant on April
8, 2014. On April 28, 2014, the court summarily granted
the defendant’s motion for nonsuit.
On May 2, 2014, the defendant filed a reply to the
plaintiffs’ objection to its motion for nonsuit and sanc-
tions for failure to comply with the court’s February
26, 2014 order. The defendant stated therein that it had
received and reviewed the confidentiality agreement,
and determined on that basis that ‘‘the plaintiffs had
no valid basis for withholding the requested documents
in the first place, and delayed the progress of discovery
for six months without any good cause.’’ In support
of that argument, the defendant attached the subject
confidentiality agreement as an exhibit. Referencing
that exhibit, the defendant argued that the ‘‘agreement
on which [the plaintiffs] relied for their confidentiality-
based objection . . . in no way purports to restrict
their ability to produce the requested documents. This
conduct has caused unnecessary delays in this case.
Plaintiffs’ lack of basic courtesy to provide defense
counsel with copies of . . . misplaced or lost deposi-
tion transcript and two exhibits from that deposition
has resulted in an extraordinary waste of time and
resources, necessitating this motion.’’ The defendant
thus asked the court to order the production of the
documents at issue within ten days of the date of its
ruling on the motion, and that a nonsuit enter if the
plaintiffs failed to comply with such order of produc-
tion. The defendant further requested that the court
award it reasonable attorney’s fees in connection with
the preparation of the motion.
On May 8, 2014, although the court had previously
granted the defendant’s motion for nonsuit, it issued a
motion for nonsuit. In its ruling, the court rejected the
plaintiffs’ claim that they had complied with the court’s
order to file the confidentiality agreement by faxing a
redacted copy of that agreement to the defendant. The
court found, to the contrary, that: ‘‘The [February 26,
2014] order is succinct, clear and unambiguous. There
has not been a semblance of compliance.’’
On May 15, 2014, the plaintiffs responded to the
court’s ruling by filing three separate motions. First,
they moved to seal the confidentiality agreement that
they had attached to said motion and were lodging
with the court, pursuant to Practice Book § 7-4B. The
plaintiffs also filed a motion to reargue the defendant’s
motions for a judgment of nonsuit and for other sanc-
tions, and a motion to open the judgment of nonsuit.
In all three of those motions, the plaintiffs explained
that on April 21, 2014, they had sent correspondence to
the signatories of the confidentiality agreement stating
their intention to disclose the requested documents
within ten days absent any objection, and, in fact, that
they did disclose those documents to the defendant on
May 5, 2014. The plaintiffs further asserted: ‘‘Plaintiffs’
counsel did not file a copy of the confidential settlement
with the court due to confidentiality concerns. . . .
Plaintiffs’ counsel took steps to ensure the production
of this document to counsel in the most efficient manner
possible while still honoring their obligation under the
confidential terms of that agreement.’’ Also in each of
those motions, the plaintiffs indicate that they were
then lodging the confidentiality agreement with the
court pursuant to § 7-4B ‘‘in an effort to more fully
comply with the court’s order . . . .’’ (Citation
omitted.)
On May 28, 2014, the defendant filed objections to
the motion to reargue and the motion to open judgment.
In those objections, the defendant argued that the entry
of nonsuit should be upheld because: ‘‘[T]he agreement
on which the plaintiffs relied . . . expressly states that
its confidentiality and nondisclosure provision only
applies ‘except as required by law or court order.’ . . .
As the plaintiffs were subject to this court’s clear order
that they file the agreement with the court, the plaintiffs’
argument that they did not believe that they were
allowed to file the agreement because of its confidenti-
ality and nondisclosure provision is plainly disingenu-
ous. Further, the agreement does not contain any
language limiting the plaintiffs’ ability to produce docu-
ments from their prior litigation, despite their earlier
representation that providing the defendant with its
requested documents would breach the agreement.’’
(Citation omitted; emphasis in original.)
On June 2, 2014, the court held a hearing on the
plaintiffs’ motion to seal the confidentiality agreement,
at which counsel for both parties presented oral argu-
ment. At the conclusion of the hearing, the court
reserved judgment on the motion, indicating that it
would rule after it had the opportunity to review the
transcript of that hearing.
On June 3, 2014, the plaintiffs filed a second motion
to seal, in which they asked the court to seal copies of
the confidentiality agreement that had been filed with
the court as attachments to three of the defendant’s
prior motions. In support of the second motion to seal,
the plaintiffs argued: ‘‘As per the court’s ruling on June
2, 2014, granting [the] plaintiffs’ motion to seal . . .
filed May 15, 2014, the court has found that the [confi-
dentiality agreement] is a confidential document and
should be sealed with the court. Therefore, the attach-
ment of this document to the defendant’s motions is in
direct conflict with the court’s ruling.’’4 (Citation
omitted.)
On June 4, 2014, the court denied the plaintiffs’
motions to seal on the ground that the plaintiffs had
failed to ‘‘set forth any reason to find that the plaintiffs’
grounds for sealing outweigh the presumption that doc-
uments filed with the court shall be available to the
public. Practice Book § 11-20A (a). . . . [N]either the
[plaintiffs’] motion nor the [accompanying] memoran-
dum [of law] articulate or even identify any interest
for which sealing protection is sought. Nor does either
document set forth any reason(s) the unidentified inter-
est overrides the presumption that the document[s] be
available to the public.’’ The court ordered the plaintiffs
to file the confidentiality agreement by June 12, 2014.
On June 11, 2014, the plaintiffs complied with the court’s
order and filed the confidentiality agreement, unre-
dacted, with the court.
On June 9, 2014, the plaintiffs filed a supplemental
memorandum of law in which they raised two new
arguments in support of their previously filed motion
to open judgment of nonsuit. They claimed that the
court’s February 26, 2014 order was ambiguous because
it did not indicate where or how the confidentiality
agreement was to be ‘‘filed,’’ and that, pursuant to Gen-
eral Statutes § 52-434, a judge trial referee did not have
jurisdiction or authority ‘‘to enter a judgment of nonsuit
before trial because the pleadings had been closed and
a jury claim filed, but no written consent [of the parties]
was obtained.’’ The plaintiffs also argued that the judg-
ment of nonsuit should be opened in the interest of
judicial economy because their action would otherwise
be saved by the accidental failure of suit statute, General
Statutes § 52-592. On June 18, 2014, the defendant filed
an objection to the plaintiff’s supplemental memoran-
dum of law, essentially reiterating the arguments pre-
sented in its prior objection to the motion to open.
On June 20, 2014, the plaintiffs filed a second supple-
mental memorandum in support of their motion to open
judgment of nonsuit in order ‘‘to reply to the vitriol and
outrage espoused by defense counsel in his June 18,
2014 . . . opposition to their motion to open judgment
upon nonsuit.’’ The plaintiffs argued that regardless of
‘‘defense counsel’s claimed anger and indignation,’’ the
judgment of nonsuit was not proportional to the alleged
violation of the court’s order since the defendant by
then had received all the documents it had been
requesting.
On August 19, 2014, the court held a hearing on the
plaintiffs’ motion to open judgment of nonsuit at which
counsel for both parties presented oral argument. On
December 16, 2014, the court issued a memorandum
of decision denying the plaintiffs’ motion to open judg-
ment of nonsuit. This appeal followed.
I
The plaintiffs first claim that the motion for nonsuit
and the ensuing motions to open and reargue should
not have been heard by Judge Parker because of his
status at the time as a judge trial referee. Specifically,
the plaintiffs claim that because the pleadings were
closed and the case had been claimed to the jury list
as of April 10, 2014, but the case had not yet been
referred to Judge Parker, and the parties had not con-
sented to such a referral, that Judge Parker lacked juris-
diction or authority, as a judge trial referee, to render
the judgment of nonsuit. We disagree.
‘‘The scope of judicial authority is a matter of law
over which we exercise plenary review. . . . To the
extent that this inquiry involves examining . . . [statu-
tory] provisions [and our] . . . rules of practice, it pre-
sents an issue of statutory interpretation over which we
likewise exercise plenary review.’’ (Citation omitted.)
Yeager v. Alvarez, 302 Conn. 772, 778–79, 31 A.3d
794 (2011).
‘‘The constitution of Connecticut, article fifth, § 6, as
[amended by article eight, § 2] and General Statutes
§ 52-434 (a) make all retired Superior Court judges eligi-
ble for appointment as state referees. From among the
eligible retired judges, appointments are made by the
Chief Justice of the Supreme Court to the position of
trial referee. General Statutes § 52-434 (a). In any case
referred to a state constitutional referee, article fifth,
§ 6, as amended and General Statutes §§ 52-434a (a)
and 52-434b (a) authorize the referee to exercise all the
powers of the referring court. A similar authorization is
contained in Practice Book § [19-3].’’5 (Citation omitted;
footnote omitted.) McCarthy v. Bridgeport, 21 Conn.
App. 359, 362–63, 574 A.2d 226, cert. denied, 215 Conn.
814, 576 A.2d 543 (1990).
Section 52-434 provides in relevant part: ‘‘(a) (1) . . .
The Superior Court may refer any civil, nonjury case
or with the written consent of the parties or their attor-
neys, any civil jury case pending before the court in
which the issues have been closed to a judge trial ref-
eree who shall have and exercise the powers of the
Superior Court in respect to trial, judgment and appeal
in the case . . . . ’’
Section 52-434a further delineates the ‘‘[p]owers of
referees,’’ in relevant part: ‘‘(a) In addition to the powers
and jurisdiction granted to state referees under the pro-
visions of section 52-434, a Chief Justice or judge of
the Supreme Court, a judge of the Appellate Court, a
judge of the Superior Court or a judge of the Court of
Common Pleas, who has ceased to hold office as justice
or judge because of having retired and who has become
a state referee and has been designated as a trial referee
by the Chief Justice of the Supreme Court shall have
and may exercise, with respect to any civil matter
referred by the Chief Court Administrator, the same
powers and jurisdiction as does a judge of the court
from which the proceedings were referred. . . .’’
‘‘Judge trial referees do not sit by specified terms or
sessions but hear cases by special assignments. Many of
these cases are long and complicated and the hearings
continue over an extended period. The less formal and
more elastic method of their hearings is in contrast
with the more rigid requirements which must obtain in
a regular, continuous, daily trial in court. They serve the
very practical purpose of relieving the court’s crowded
dockets of matters which can be more readily and con-
veniently tried in that manner.’’ (Internal quotation
marks omitted.) Great Country Bank v. Pastore, 241
Conn. 423, 428, 696 A.2d 1254 (1997).
The plaintiffs first argue that Judge Parker did not
have jurisdiction or authority to hear or adjudicate these
motions because he was a referee.6 In mounting this
challenge, the plaintiffs have used the terms ‘‘jurisdic-
tion’’ and ‘‘authority’’ interchangeably. It is axiomatic
that those terms are not fungible. ‘‘Although related,
the court’s authority to act pursuant to a statute is
different from its subject matter jurisdiction. The power
of the court to hear and [to] determine, which is implicit
in jurisdiction, is not to be confused with the way in
which that power must be exercised in order to comply
with the terms of the statute.’’ (Internal quotation marks
omitted.) New England Pipe Corp. v. Northeast Corri-
dor Foundation, 271 Conn. 329, 336, 857 A.2d 348
(2004).
Here, §§ 52-434 and 52-434a clearly establish that a
judge trial referee exercises the same jurisdiction as a
judge of the Superior Court. Moreover, the statutes
permit matters to be referred to judge trial referees with
the written consent of the parties or their attorneys. It
is axiomatic that subject matter jurisdiction cannot be
conferred by agreement of the parties. Conversely, a
judge trial referee cannot lack jurisdiction to hear a
particular case simply because it is not referred to him
or her. Thus, any limitations contained in our statutes
or rules of practice regarding the types of cases that
judge trial referees may be involved in do not implicate
the jurisdiction of judge trial referees to hear certain
of those cases, but, rather, concern their authority to
do so.
The plaintiffs also claim that Judge Parker did not
have authority to rule on the matters at issue because
this case was not referred to him, as required by statute
and Practice Book § 19-3. We can infer, however, that
the case was referred to Judge Parker from the simple
fact that he heard it. Moreover, our Supreme Court
has explained that ‘‘[t]he language covering the judicial
authority’s right to refer is permissive, and includes no
specific instructions as to how such referrals are to be
made. Practice Book § [19-3] does provide, however,
that ‘[t]he clerk shall give notice to each referee of a
reference and note in the court file the date of issuance
of the notice. . . .’ ’’ Great Country Bank v. Pastore,
supra, 241 Conn. 431. ‘‘Although the instruction to the
clerk in § [19-3], by the use of the word ‘shall,’ gives
the appearance that a notation in the file was mandatory
to perfect a referral, a more reasonable interpretation of
the section is that it is a directory instruction regarding a
ministerial function.’’ Id. On that basis, the court con-
cluded that ‘‘the clerk’s failure specifically to note the
referral to a judge trial referee in the court file did not
deprive [that referee] of the authority to hear the case.’’
Id. We likewise conclude that the absence of a notation
in the file documenting the referral to Judge Parker did
not deprive him of the authority to rule on the matters
before him.
The plaintiffs also argue that even if the matter prop-
erly had been referred to Judge Parker, they had not
consented to said referral, and their consent was
required because the case had been claimed to the jury
list on April 10, 2014. In addressing the issue of a party’s
consent to referral to a judge trial referee, our Supreme
Court has held that parties ‘‘are deemed to have given
their implicit consent to the referral by failing to raise
their objection in a timely fashion.’’ Bowman v. 1477
Central Avenue Apartments, Inc., 203 Conn. 246, 251,
524 A.2d 610 (1987). It thus rejected the defendants’
argument that they had timely objected to a referral
because ‘‘[t]he defendants ‘utterly neglected’ to raise
the issue of their lack of consent until after the hearing
had ended and the referee had filed his report.’’ The
court noted that ‘‘[t]he appropriate time to object in
this case would have been at the time of the referral,
or at least prior to the commencement of the hearing
before the referee.’’ (Emphasis added.) Id.
Here, the plaintiffs did not challenge Judge Parker’s
authority to adjudicate the matters at hand until June
9, 2014, in their supplemental memorandum of law in
support of their motion to open judgment. That motion
to open was not filed until more than three months after
Judge Parker issued the order to file the confidentiality
agreement and more than one month after the judgment
of nonsuit had entered. By that point, Judge Parker had
already issued the February 26, 2014 order, with which
the plaintiffs had failed to comply and to which the
plaintiffs did not respond in any other appropriate man-
ner, such as asking for guidance as to how to maintain
the alleged confidentiality of the confidentiality order.
Between the February 26, 2014 order and the June 9,
2014 memorandum in which they finally challenged
Judge Parker’s authority to adjudicate the matters
before him, the plaintiffs had submitted several filings
to the court concerning the subject dispute, in none of
which had they claimed that Judge Parker did not have
authority in the matter. Given the untimeliness of their
objection to Judge Parker’s involvement in this case,
we conclude, as the court did in Bowman, that the
plaintiffs implicitly consented to his involvement.
II
The plaintiffs additionally claim that the trial court
erred in rendering a judgment of nonsuit against them
for their alleged failure to comply with the court’s Feb-
ruary 26, 2014 order to file a redacted copy of the confi-
dentiality agreement. The plaintiffs claim that the court
erred in denying their motion to open the judgment of
nonsuit because (1) the order with which they did not
comply was unclear, (2) they substantially complied
with the order, and (3) the nonsuit was not proportional
to their alleged noncompliance with the court’s order.
We agree that the sanction of the entry of a judgment
of nonsuit was not proportional to the plaintiffs’ non-
compliance with the court’s order in this case.
‘‘In ruling on a motion to open a judgment of nonsuit,
the trial court must exercise sound judicial discretion,
which will not be disturbed on appeal unless there was
an abuse of discretion. . . . In reviewing the trial
court’s exercise of its discretion, we make every pre-
sumption in favor of its action.’’ (Citation omitted.) Biro
v. Hill, 231 Conn. 462, 467–68, 650 A.2d 541 (1994). To
assess the propriety of the court’s denial of the motion
to open the judgment of nonsuit, we must examine
the propriety of the court’s imposition of that sanction
under the circumstances presented.
‘‘We . . . review the trial court’s decision to deter-
mine whether it abused its discretion in granting the
. . . motion for judgment of nonsuit. . . . Generally
speaking, a nonsuit is the name of a judgment rendered
against a party in a legal proceeding . . . when he is
in default . . . in complying with orders of the court.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Rodriguez v. Mallory Battery Co., 188
Conn. 145, 149–50, 448 A.2d 829 (1982).
Here, in denying the plaintiffs’ motion to open the
judgment of nonsuit, the trial court explained, ‘‘The
nonsuit was not entered for violation of a ‘discovery
order’ as that term is commonly used in the case law.
The court has not made a ‘discovery order.’ The nonsuit
was entered for [the] plaintiffs’ contemptuous refusal to
comply with the court’s order to file the confidentiality
agreement, which confidentiality agreement [the] plain-
tiffs interjected as part of their efforts to thwart [the
defendant’s] legitimate request for the [subject deposi-
tion] materials.’’ In so explaining, the court referred to
Practice Book § 17-19, which provides in relevant part:
‘‘If a party fails to comply with an order of a judicial
authority . . . the party may be nonsuited . . . by the
judicial authority.’’
‘‘Because the nonsuit here was a penalty for the plain-
tiff[s’] failure to [comply with the court’s February 26,
2014 order to file a redacted copy of the confidentiality
agreement], we apply the modified standard of review
set forth by our Supreme Court in Millbrook Owners
Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17–18,
776 A.2d 1115 (2001), for claims challenging a trial
court’s order for sanctions. First, the order to be com-
plied with must be reasonably clear. In this connection,
however, we also state that even an order that does
not meet this standard may form the basis of a sanction
if the record establishes that, notwithstanding the lack
of such clarity, the party sanctioned in fact understood
the trial court’s intended meaning. . . . Second, the
record must establish that the order was in fact violated.
. . . Third, the sanction imposed must be proportional
to the violation.’’ (Internal quotation marks omitted.)
Burton v. Dimyan, 68 Conn. App. 844, 846–47, 793 A.2d
1157, cert. denied, 260 Conn. 925, 797 A.2d 520 (2002).
Here, the plaintiffs claim that the subject order was
not clear and unambiguous, that they substantially com-
plied with that order, and that the judgment of nonsuit
was not proportional to their alleged noncompliance
with the order. At oral argument before this court,
appellate counsel7 for the plaintiffs essentially con-
ceded their first two arguments, that the order was not
clear and that they had substantially complied with it.
That course was well taken, for there is little merit to
either argument. It is clear from the court’s order, and
the filings leading up to that order, that the court’s
intent was to examine the confidentiality language itself
to determine whether the plaintiffs’ objection to the
disclosure of the subject deposition transcripts was well
founded. The plaintiffs’ counsel never expressed a lack
of understanding of the court’s order; nor did they ever
seek clarification of that order. The plaintiffs did not
file the confidentiality agreement with the court, or take
any other action in furtherance of compliance, by the
March 7, 2014 deadline imposed by the court. Therefore,
as their appellate counsel conceded at oral argument,
‘‘the court would have been perfectly justified in sanc-
tioning counsel for not responding in some way by the
. . . seventh of March.’’ And so it did on April 28, 2014,
by ordering a judgment of nonsuit. Unbeknownst to the
trial court at the time of that ruling, however, was that
the plaintiffs, in the interim, had sent the confidentiality
agreement to the defendant, in what they now claim to
have been compliance with the court’s earlier order. It
cannot reasonably be disputed, however, that an order
to ‘‘file’’ a document means to file it with the court.
One does not ‘‘file’’ a document by sending it to counsel
for one’s opponent.8 Moreover, the plaintiffs did not
send the confidentiality agreement to the defendant’s
counsel until more than one month after the court’s
deadline for compliance. In the end, the plaintiffs did
not file the confidentiality agreement with the court
until May 15, 2014, more than two months beyond the
court’s March 7, 2014 deadline, and when they did so,
they utilized the rules of practice for allowing certain
documents to be lodged with the court under seal while
the propriety of permitting them to be filed under seal
was being determined. It is perplexing that the plaintiffs
did not utilize this procedure before the March 7, 2014
deadline in order to comply with the court’s February
26, 2014 order.9 The record thus supports the court’s
determinations that the plaintiffs failed to comply with
its clear order.
We thus are left with the question of whether the
sanction of the entry of a judgment of nonsuit was
proportional to the plaintiffs’ failure, through their
counsel, to comply with the court’s order. The issue of
proportionality ‘‘poses a question of the discretion of
the trial court that we will review for abuse of that
discretion.’’ Burton v. Dimyan, supra, 68 Conn. App.
847. ‘‘[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. . . . Th[is] reasoning . . .
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).
Having finally had the opportunity to review the lan-
guage of the confidentiality agreement, the court,
clearly incensed by the specious contention of the plain-
tiffs’ counsel that it was applicable to the documents
that the defendant had requested,10 concluded that:
‘‘[The] plaintiffs’ assertion that it would cause [the]
plaintiffs to violate the confidential settlement
agreement, etc., was a false statement of fact to this
court made with the intent to mislead.’’ (Internal quota-
tion marks omitted.) The court found additionally that
the plaintiffs’ failure to file the agreement with the court
was a ‘‘deliberate, calculated, wilful and contemptuous
flouting of the court’s order,’’ which went on for months.
Although findings of wilful or contumacious conduct,
such as those found by the trial court here, often will
support such a harsh response from the court as a
judgment by nonsuit; see Millbrook Owners Assn., Inc.
v. Hamilton Standard, supra, 257 Conn. 16–17; Dauti
v. Stop & Shop Supermarket Co., 90 Conn. App. 626,
634–35, 879 A.2d 507, cert. denied, 276 Conn. 902, 884
A.2d 1025 (2005); the nature of the alleged violation
is not the sole factor to be considered in assessing
proportionality. We must not be ‘‘insensitive to the
apparent harshness of any decision by a court that may
be perceived as punishing the client for the transgres-
sions of his or her attorney. . . . Although our advers-
arial system requires that the client be responsible for
acts of the attorney-agent whom the client has freely
chosen . . . the court is not without the power to take
action directly against the errant attorney. . . . In such
a circumstance, we believe that it is particularly appro-
priate to assess whether counsel’s failure timely to com-
ply with an order, directed solely to counsel, should
result in the loss of a party’s ability to pursue his or
her claim in court where other less drastic measures
directed toward counsel could cause counsel’s adher-
ence to the court’s order without prejudice to an inno-
cent litigant.’’ (Citations omitted; internal quotation
marks omitted.) Herrick v. Monkey Farm Cafe, LLC,
163 Conn. App. 45, 52, A.3d (2016).
Here, although the court was unable to ascertain
whether the plaintiffs themselves had knowledge of or
were complicit in what it described as their counsel’s
‘‘errant conduct,’’ it ultimately concluded that: ‘‘[T]he
misdeeds told herein are attributed solely to [the plain-
tiffs’] attorneys.’’ On the basis of this finding, we do
not believe that the failure of the plaintiffs’ counsel to
comply with the court’s order should cause the plaintiffs
to lose their ability to pursue their action.
Moreover, other than the protracted amount of time
that the defendant was compelled to expend in pursuit
of the documents at issue, it has failed to articulate
how it was otherwise prejudiced as a result of the non-
compliance with the court’s February 26, 2014 order.
The case proceeded while the subject dispute was
awaiting final resolution and the defendant has not
claimed that it was in any way prevented from defending
itself against the plaintiffs’ complaint or pursuing its
own counterclaim against the plaintiffs due to the pro-
longation of the dispute.
On the basis of the foregoing, we conclude that the
ultimate sanction of nonsuit was disproportionate to
the violation of the court’s order, and thus was an abuse
of discretion.
The judgment is reversed and the case is remanded
for further proceedings in accordance with the law.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Also named as party defendants in the wrongful death action were
Marnelreed, Inc., Adele Dodge, Robert Giordano and Norman Costello. Gior-
dano and Costello were the owners of Silk, LLC.
2
It is not clear from the record before us in connection with which action
or actions the depositions of Truax were taken or whether all of the actions
were consolidated.
3
In its later memorandum of decision denying the plaintiffs’ motion to
reargue, the trial court explained that it had rejected the plaintiffs’ request
for an in camera review of the confidentiality agreement because said request
was ‘‘an improper attempt to circumvent the rules prohibiting the sealing
of files and limiting disclosure of documents. See Practice Book §§ 11-20A
and 11-20B.’’
Contrary to the court’s statement, the 2005 commentary to § 11-20A clearly
as otherwise provided by law, there shall be a presumption that documents
filed with the court shall be available to the public.’’ The 2005 commentary
explains, inter alia: ‘‘As used in subsection (a) above, the words ‘Except as
otherwise provided by law’ are intended to exempt from the operation of
this rule all established procedures for the sealing or ex parte filing, in
camera inspection and/or nondisclosure to the public of documents, records
and other materials, as required or permitted by statute; e.g., General Statutes
§§ 12-242vv (pertaining to taxpayer information), 52-146c et seq. (pertaining
to the disclosure of psychiatric records) and 54-56g (pertaining to the pretrial
alcohol education program); other rules of practice; e.g., Practice Book
Sections 7-18, 13-5 (6)–(8) and 40-13 (c); and/or controlling state or federal
case law; e.g., Matza v. Matza, 226 Conn. 166, 627 A.2d 414 (1993) (establish-
ing a procedure whereby an attorney seeking to withdraw from a case due
to his client’s anticipated perjury at trial may support his motion to withdraw
by filing a sealed affidavit for the court’s review). . . .’’
4
Contrary to the plaintiffs’ motion, the trial court had not granted the
motion to seal, but, as noted, had expressly reserved judgment on the motion.
5
Practice Book 19-3 provides: ‘‘The clerk shall give notice to each referee
of a reference and note in the court file the date of the issuance of the
notice. In addition to matters required to be referred to a judge trial referee,
the judicial authority may refer any civil nonjury case or, with the written
consent of the parties or their attorneys, any civil jury case, pending before
such court, in which the issues have been closed, to a judge trial referee,
who shall have and exercise the powers of the superior court in respect to
trial, judgment and appeal in such case, and any proceeding resulting from
a demand for a trial de novo pursuant to subsection (e) of General Statutes
§ 52-549z, may be referred without the consent of the parties to a judge trial
referee who has been specifically designated to hear such proceedings
pursuant to subsection (b) of General Statutes § 52-434. Any case referred
to a judge trial referee shall be deemed to have been referred for all further
proceedings and judgment, including matters pertaining to any appeal there-
from, unless otherwise ordered before or after the reference. The court may
also refer to a judge trial referee any motion for summary judgment and
any other pretrial matter in any civil nonjury or civil jury case.’’
6
The file reflects that Judge Parker had ruled on several other pretrial
motions prior to ruling on the motions here at issue. The court, Hon. Paul
M. Vasington, judge trial referee, likewise ruled on pretrial motions in this
case. The plaintiffs voiced no objection to their involvement in this case
until June 9, 2014, after they were nonsuited.
7
The Reardon Law Firm, P.C., did not represent the plaintiffs on appeal.
8
At oral argument before this court, appellate counsel for the plaintiffs
emphasized the fact that the defendant had sought the production of the
deposition documents, not the confidentiality agreement—that the defen-
dant did not ask for the confidentiality agreement. The plaintiffs’ counsel
recounted that the February 26 mandate was that they produce the confiden-
tiality agreement ‘‘to the court.’’ (Emphasized by counsel at oral argument
before this court.)
9
To be sure, if the trial court had taken the plaintiffs up on their offer
for an in camera review of the confidentiality agreement in October, 2013,
this dispute would not have lingered for the several months for which it
remained unresolved. The court’s failure to do so, however, did not relieve
the plaintiffs from complying with the court’s February 26, 2014 order.
10
It is worth emphasizing the fact that the plaintiffs acknowledged that
the defendant previously had possession of the documents at issue, rendering
the plaintiffs’ repeated assertions of confidentiality all the more puzzling.