Gutierrez v, Mosor

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JULIO GUTIERREZ v. DANIEL MOSOR
(AC 43881)
Alvord, Clark and Sullivan, Js.

Syllabus

The defendant appealed to this court from the judgment of the trial court
rendered for the plaintiff after a trial to the jury on the issue of damages
in which the defendant was precluded from offering evidence as a result
of a prior default the court imposed against him as a sanction for failing
to attend his scheduled deposition. The defendant claimed, inter alia,
that the trial court abused its discretion by imposing and thereafter
refusing to set aside the default. The plaintiff contractor had brought
an action in negligence against the defendant as a result of injuries the
plaintiff suffered after falling from a platform on property where the
defendant allegedly was constructing a house. The self-represented
defendant timely filed an answer and special defense to the plaintiff’s
complaint. More than two years later, the plaintiff filed a reply to the
special defense and, about one year after that, issued to the defendant
a renotice for his deposition at the law office of the plaintiff’s counsel.
Thereafter, the defendant, who had not filed an objection to the plaintiff’s
motion for default, then filed a motion, through counsel, to set aside
the default, claiming that good cause existed to set aside the default
because, as a then self-represented party, he had been confused about
where to appear and what would happen on the date of the deposition.
The trial court denied the motion to set aside the default, noting that
the defendant had failed to file an objection to that motion and conclud-
ing that he failed to demonstrate good cause to set aside the default.
Held that the trial court abused its discretion in granting the plaintiff’s
motion for default, as the sanction of default was not proportional to
the defendant’s single discovery violation when he failed to attend his
deposition: there was an insufficient record from which the court could
have determined that the defendant’s conduct was wilful or in bad faith,
as the motion for default simply alleged that he had notice of and was
aware of the deposition but failed to attend, and the record was devoid
of evidence regarding the cause of his noncompliance or whether his
conduct demonstrated an egregious or continuing pattern of behavior,
or contumacious or unwarranted disregard for the court’s authority;
moreover, the defendant’s failure to object to the motion for default
had no bearing on whether the court’s sanction was proportional to his
violation, the court made no finding of prejudice to the plaintiff, and
nothing in the record showed that, for at least three years of the four
and one-half year pendency of the plaintiff’s action prior to trial, the
delay argued by the plaintiff was in any way attributable to the defendant;
furthermore, the court had available to it a variety of other sanctions
it could have imposed that would have reimbursed the plaintiff for fees
he may have incurred with respect to the deposition and vindicated his
interest in avoiding undue expense during discovery while ensuring that
a trial on the merits of the case could take place; accordingly, the
judgment was reversed and the case was remanded for further proceed-
ings.
Argued May 13—officially released August 24, 2021

Procedural History

Action to recover damages for the defendant’s alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Shapiro, J., defaulted the defendant; thereafter,
the court, Hon. Robert B. Shapiro, judge trial referee,
denied the defendant’s motions to set aside the default
and for permission to file notice as to a hearing in
damages; subsequently, the issue of damages was tried
to the jury before Dubay, J.; verdict for the plaintiff;
thereafter, the court, Dubay, J., denied the defendant’s
motion to set aside the verdict and rendered judgment
for the plaintiff, from which the defendant appealed to
this court. Reversed; further proceedings.
Joseph A. La Bella, for the appellant (defendant).
Deborah V. Jekot, with whom, on the brief, was Jack
G. Steigelfest, for the appellee (plaintiff).
Opinion

SULLIVAN, J. The defendant, Daniel Mosor, appeals
from the judgment of the trial court, rendered in favor
of the plaintiff, Julio Gutierrez, after the defendant was
defaulted for failing to appear at a deposition prior to
a trial to a jury on the issue of damages. On appeal,
the defendant claims that the court abused its discretion
by (1) defaulting him for a single failure to attend the
deposition, (2) refusing to set aside the default, and (3)
sustaining the plaintiff’s objection to the defendant’s
motion for permission to file a notice as to the hearing
in damages, which precluded him from offering any
evidence contesting liability at the trial before the jury.
We agree with the defendant’s first claim and, accord-
ingly, reverse the judgment of the trial court.
The following factual and procedural history is rele-
vant to our resolution of the claims on appeal. The
plaintiff commenced this action against the defendant
on January 12, 2015. In his complaint, the plaintiff
alleged that the defendant was the owner or party in
possession and control of certain real property at 2010
Manchester Road in Glastonbury, on which the defen-
dant was constructing a house. In connection therewith,
the defendant hired various contractors, including the
plaintiff, to perform work. The complaint further
alleged that, ‘‘[o]n or about June 13, 2014, the plaintiff
was standing on a metal staging platform attached to
two ladders on each end that were leaning against the
edge of the roof,’’ and that ‘‘[o]ne or both of the ladders
shifted because the legs of the ladders were located on
a soft, wet and muddy surface, causing the staging to
become unstable and causing the plaintiff to fall approx-
imately [fifteen] to [twenty] feet to the ground.’’
According to the complaint, the plaintiff’s resulting
injuries were caused by the ‘‘carelessness and negli-
gence of the defendant . . . .’’
On January 28, 2015, the self-represented defendant
filed an answer and special defense, in which he denied
that he was the owner or party in possession and control
of the subject property, and asserted the following as
a special defense: ‘‘I subcontracted [the] roof to a sub-
contractor by the name of Jose Flores, who was the
employer of [the plaintiff]. Jose and [the plaintiff] went
on the job site on a rainy day when they had no permis-
sion and should not have been staging a roof [in] that
type of weather conditions. I don’t know who [the plain-
tiff] is, and I don’t know what he was doing on the job
site.’’ Just over two years later, on January 31, 2017,
the plaintiff filed a reply denying the allegations of the
special defense, as well as a claim for a jury trial.1 The
next day, February 1, 2017, the plaintiff also filed a
certificate of closed pleadings and a claim for the
trial list.
Almost one year later, on January 29, 2018, the plain-
tiff’s attorney issued to the defendant a ‘‘renotice’’ of
his deposition, which was to take place on March 14,
2018, at 10 a.m. in the law office of the plaintiff’s attor-
ney. According to the plaintiff’s attorney, the defendant
called the attorney’s office on Monday, March 12, 2018,
to confirm the appointment, although he thought it was
for a court appearance. The plaintiff’s attorney
responded in a call back to the defendant and left a
message, stating that the renotice was not for a court
appearance but for a deposition that was scheduled to
take place at the attorney’s office. The defendant never
responded to that message. On March 14, 2018, the day
of the deposition, the plaintiff’s attorney, again, called
the defendant to confirm his appearance and left
another message for him, but he did not respond to
that message, either.
Thereafter, on March 26, 2018, the plaintiff filed a
motion for default for the defendant’s failure to appear
at his deposition. In support of his motion for default,
the plaintiff attached the deposition notice, as well as
a brief transcript of the deposition’s preliminary pro-
ceeding on March 14, 2018, in which his attorney
recounted the events leading up to the deposition. The
motion simply asserted that the defendant had notice,
and was aware of the scheduled deposition and failed
to appear. In granting the plaintiff’s motion for default,
the court, Shapiro, J., stated: ‘‘The defendant filed no
objection in response to the motion for default. Since
the defendant failed to attend his scheduled deposition,
a default may enter against the defendant.’’ Notice of
the default was issued by the court on April 11, 2018.
On September 27, 2018, counsel filed an appearance
on behalf of the defendant, who, until that point, had
been acting as a self-represented party. The defendant’s
attorney also filed a motion for a continuance of a
hearing in damages that was scheduled to take place
on October 10, 2018. On November 29, 2018, the defen-
dant’s attorney, again, filed a motion for a continuance
of the hearing in damages, which previously had been
rescheduled to take place on December 5, 2018. Both
motions for continuances were granted by the court.
Thereafter, on January 2, 2019, the defendant, through
counsel, filed a motion to set aside the default, in
which he claimed that good cause existed for setting
aside the default. Specifically, he claimed that, as a self-
represented party, he ‘‘was confused about where to
appear and what was happening on the date of the
scheduled deposition,’’ and that he never spoke with
anyone from the office of the plaintiff’s attorney because
they simply left him messages. On that same day, the
defendant also filed a notice as to the hearing in dam-
ages, in which he sought to give notice of his defenses
to the action pursuant to Practice Book § 17-34.2 The
plaintiff filed an objection to the motion to set aside
the default, as well as an objection to the defendant’s
notice of defenses, claiming that the notice was not
timely filed within the ten day period provided for in
Practice Book § 17-35 (b).3
In a memorandum of decision dated January 17, 2019,
the court, Hon. Robert B. Shapiro, judge trial referee,
denied the defendant’s motion to set aside the default,
concluding that the defendant had failed to demonstrate
good cause for setting aside the default. The court deter-
mined that the plaintiff had been ‘‘prejudiced by the
defendant’s delay in attending to this matter,’’ finding
that the defendant never provided an excuse for his
delay in presenting the argument that he was confused
by the notice of deposition, that the defendant’s attor-
ney waited more than three months after filing an
appearance in this matter to file the motion to set aside
the default, and that the defendant did not provide an
affidavit in support of his motion to set aside the default.
The court further stated that ‘‘the defendant’s failure
to respond to the plaintiff’s motion for default may not
be excused,’’ and that, ‘‘[i]f the default were opened
now, almost one year will have passed since the plain-
tiff’s January 29, 2018 notice of deposition. The plaintiff
has been prejudiced also by the defendant’s delay in
that [the plaintiff] consented to a motion to continue
the previously scheduled hearing in damages, only to
face the motion to open, which was filed shortly before
the continuation date of that hearing.’’
Following the denial of his motion to set aside the
default, the defendant filed a motion for permission to
file a notice as to the hearing in damages pursuant to
Practice Book § 17-34. In his motion, he alleged that,
in light of the circumstances as set forth in his attached
affidavit, it would be appropriate for the court to allow
him to contest some of the allegations of the complaint.
In his affidavit, the defendant attested to the following:
he is not an attorney and lacks legal training; he was
prepared to appear in court on March 14, 2018, and did,
in fact appear at the courthouse in Middletown; he
called the plaintiff’s counsel to confirm that he would
be appearing in court on March 14, 2018; he, as a self-
represented party, did not understand the significance
of the notice of deposition at the time it was scheduled;
he did not wilfully disobey the court; he has a good
and valid defense to the plaintiff’s action; and he was
not familiar with a notice of defenses in March and
April, 2018. The court also denied the defendant’s
motion for permission, noting, first, that the defendant
did not file a notice of defenses within the ten day period
required by Practice Book § 17-35 (b), and, second, that,
even though it had discretion to permit a late filing of
a notice of defenses, it ‘‘[was] not persuaded by the
defendant’s statements about his lack of familiarity with
the court process.’’ Specifically, the court found that
‘‘the defendant did not pay proper attention to this
matter,’’ that, even though he was self-represented
through most of the proceedings, ‘‘the rules of practice
[could not] be ignored to the detriment of other parties,’’
that discovery would have to be opened if the court
permitted the defendant’s late filing, and that it did not
credit the defendant’s statement that he appeared at
the courthouse in Middletown given that this matter
had been filed in the Superior Court in Hartford. Accord-
ingly, the defendant was precluded from offering any
evidence as to liability at the hearing in damages.
On September 17, 2019, the case proceeded to a hear-
ing in damages before a jury, which returned a verdict
in favor of the plaintiff, awarding him damages in the
amount of $181,201.81. On January 16, 2020, the court,
Dubay, J., denied the defendant’s motion to set aside
the verdict and rendered judgment in favor of the plain-
tiff, stating: ‘‘While this court may have decided the
issue differently given our law’s preference to have
matters heard on their merits, this court cannot and
will not overrule [Judge] Shapiro . . . by granting this
motion.’’ The defendant’s timely appeal to this court
followed. Additional facts and procedural history will
be set forth as necessary.
The defendant claims that the trial court abused its
discretion in defaulting him as a sanction for his failure
to attend the deposition. Specifically, the defendant
claims that the court’s imposition of the sanction of
default was an abuse of discretion because (1) there
was nothing in the record demonstrating that he acted
in bad faith, that his failure to attend the deposition
resulted from wilful misconduct, or that he engaged in
a repeated pattern of misbehavior, (2) his conduct did
not rise to the level of being contumacious, and (3) the
sanction imposed was disproportionate to the conduct
at issue. We agree.
We first set forth our standard of review and the legal
principles applicable to this claim. ‘‘A trial court’s power
to sanction a litigant or counsel stems from two differ-
ent sources of authority, its inherent powers and the
rules of practice.’’ Lafferty v. Jones, 336 Conn. 332, 373,
246 A.3d 429 (2020), cert. denied, U.S. , 141 S.
Ct. 2467, 209 L. Ed. 2d 529 (2021). The court’s ‘‘inherent
authority permits sanctions for dilatory, bad faith and
harassing litigation conduct’’; (internal quotation marks
omitted) id.; and, pursuant to ‘‘Practice Book § 13-14,
for noncompliance with the court’s discovery orders’’;
id.; or for the party’s failure to appear and testify at a
duly noticed deposition. See also Practice Book § 13-
14 (a). One such permissible sanction under § 13-14 is
‘‘[t]he entry of a nonsuit or default against the party
failing to comply . . . .’’ Practice Book § 13-14 (b) (1).
‘‘[T]he primary purpose of a sanction for violation of a
discovery order is to ensure that the [party’s] rights are
protected, not to exact punishment on the [noncomply-
ing party] for its allegedly improper conduct.’’ (Internal
quotation marks omitted.) Usowski v. Jacobson, 267
Conn. 73, 85, 836 A.2d 1167 (2003).
Our Supreme Court has stated that, ‘‘[i]n reviewing
the portion of the sanctions based on the violation of
discovery orders, we consider three factors. First, the
order to be complied with must be reasonably clear.
In this connection, however, we also state that even an
order that does not meet this standard may form the
basis of a sanction if the record establishes that, not-
withstanding the lack of such clarity, the party sanc-
tioned 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 estab-
lish 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 sanc-
tion 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 discre-
tion. Millbrook Owners Assn., Inc. v. Hamilton Stan-
dard, [257 Conn. 1, 17–18, 776 A.2d 1115 (2001)]. The
determinative 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. . . . Trial court judges face great difficulties
in controlling discovery procedures which all too often
are abused by one side or the other and this court should
support the trial judges’ reasonable use of sanctions to
control discovery.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Lafferty v. Jones,
supra, 336 Conn. 373–74.
In the present case, even though the defendant claims
that he was confused and thought that he was supposed
to be in court on March 14, 2018, the notice of deposition
was reasonably clear and provided that his deposition
was to take place at the law office of the plaintiff’s
attorney in Hartford. Moreover, there is no dispute that
the defendant failed to attend the scheduled deposition.
The defendant’s appellate brief focuses primarily on his
claim that the sanction imposed was disproportionate
to the conduct.
Our Supreme Court previously has set forth the factors
that an appellate court must consider when reviewing
the reasonableness of a sanction imposed by the trial
court. See Yeager v. Alvarez, 302 Conn. 772, 787, 31
A.3d 794 (2011). Those factors include: ‘‘(1) the cause
of the [sanctioned party’s] failure to [comply with the
discovery order], that is, whether it is due to inability
rather than the [wilfulness], bad faith or fault of the
[sanctioned party] . . . (2) the degree of prejudice suf-
fered by the opposing party, which in turn may depend
on the importance of the information requested to that
party’s case . . . and (3) which of the available sanc-
tions would, under the particular circumstances, be an
appropriate response to the disobedient party’s con-
duct.’’ (Internal quotation marks omitted.) Id.
‘‘[I]n assessing proportionality, a trial court must con-
sider the totality of the circumstances, including, most
importantly, the nature of the conduct itself.’’ Ridgaway
v. Mount Vernon Fire Ins. Co., 328 Conn. 60, 76, 176
A.3d 1167 (2018). In Millbrook Owners Assn., Inc. v.
Hamilton Standard, supra, 257 Conn. 1, our Supreme
Court cautioned that a trial ‘‘court’s discretion should
be exercised mindful of the policy preference to bring
about a trial on the merits of a dispute whenever possi-
ble and to secure for the litigant his day in court. . . .
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 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.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 16–17.
Like a dismissal, a default judgment is also one of the
more severe sanctions that a court may impose; see
Forster v. Gianopoulos, 105 Conn. App. 702, 711, 939
A.2d 1242 (2008) (sanction of default judgment imposed
by court is ‘‘most severe a court may impose’’); as ‘‘[a]
default admits the material facts that constitute a cause
of action . . . and entry of default, when appropriately
made, conclusively determines the liability of a defen-
dant.’’ (Emphasis omitted; internal quotation marks
omitted.) Bank of New York v. National Funding, 97
Conn. App. 133, 138, 902 A.2d 1073, cert. denied, 280
Conn. 925, 908 A.2d 1087 (2006), cert. denied sub nom.
Reyad v. Bank of New York, 549 U.S. 1265, 127 S. Ct.
1493, 167 L. Ed. 2d 229 (2007).
In Null v. Jacobs, 165 Conn. App. 339, 341, 139 A.3d
709 (2016), after the plaintiff’s counsel failed to appear
for a court-ordered deposition, the trial court rendered
a judgment of nonsuit as a sanction for the violation
of the court’s discovery order. On appeal, the plaintiff
claimed, inter alia, that the sanction was not propor-
tional to the violation. Id. The trial court in Null based
its decision to grant the defendant’s motion for a judg-
ment of nonsuit on the fact that the failure of the plain-
tiff’s attorney to appear for the deposition ‘‘ ‘was not
an isolated event’ ’’; id., 348; but, rather, ‘‘was part and
parcel of a pattern of noncompliance spanning several
years.’’ Id. The trial court also found that the noncompli-
ance was caused by a ‘‘ ‘lack of due diligence and delib-
erate and unwarranted disregard for the court’s author-
ity.’ ’’ Id., 348–49. Under those circumstances, this court
determined that the trial ‘‘court did not abuse its discre-
tion in concluding that the sanction of nonsuit was
proportional to the plaintiff’s violation,’’ which ‘‘was
part of ongoing discovery misconduct’’ and demon-
strated ‘‘[a] continuing pattern of violations [that war-
ranted] dismissal of the action.’’ Id., 349.
The appellate courts of this state consistently have
upheld nonsuits, defaults or other sanctions imposed
for discovery violations where the noncomplying party
has exhibited a pattern of violations or discovery abuse
demonstrating a disregard for the court’s authority. See
Lafferty v. Jones, supra, 336 Conn. 375, 379, 380 (trial
court did not abuse its discretion in sanctioning defen-
dants for discovery violations when defendants violated
four reasonably clear discovery orders and exhibited
pattern of wilfulness, and sanctions imposed were mea-
sured in relation to defendants’ noncompliance with
limited discovery, and were ‘‘well short of a default or
dismissal, insofar as they [did] not preclude the defen-
dants from having the merits of their cases adjudicated
in a conventional manner, such as by summary judg-
ment or trial’’); Alpha Beta Capital Partners, L.P. v.
Pursuit Investment Management, LLC, 198 Conn. App.
671, 699, 702, 234 A.3d 997 (2020) (trial court’s order
of sanctions did not constitute abuse of discretion when
defendants habitually failed to comply with discovery
orders and court found that ‘‘defendants’ practice of
disobeying its discovery orders was continuous,’’ and
‘‘court’s order of sanctions reimbursed the plaintiff for
the attorney’s fees and other litigation costs that it
incurred in order to compel the defendants to provide
it with certain documents that the court had ordered
they disclose’’ (internal quotation marks omitted));
Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn.
App. 245, 248, 557 A.2d 927 (it was not abuse of discre-
tion for trial court to default defendant for failure to
appear for deposition when deposition was noticed to
defendant’s counsel four times and it was clear from
record that defendant and his counsel knew of sched-
uled deposition), cert. denied, 212 Conn. 802, 560 A.2d
984 (1989).
In contrast, in Usowski v. Jacobson, supra, 267 Conn.
93, our Supreme Court determined that the trial court
had abused its discretion. In that case, the trial court
had dismissed the action due to the plaintiff’s failure
to comply with three separate discovery orders, finding
that the plaintiff ‘‘had engaged in a pattern of discovery
abuse . . . .’’ Id., 92. Our Supreme Court disagreed,
determining that the trial court ‘‘abused its discretion
because the record [did] not establish that the failure
to comply with the discovery orders constituted a con-
tinuing pattern of violations that warranted dismissal
of the action.’’ Id., 93. Specifically, our Supreme Court
concluded ‘‘that the plaintiff’s conduct, considered in
its entirety, [did] not evince a contumacious or unwar-
ranted disregard for the court’s authority . . . that jus-
tified dismissal of the action. Millbrook Owners Assn.,
Inc. v. Hamilton Standard, supra, 257 Conn. 16. Dis-
missal was not the only reasonable remedy available
to vindicate the legitimate interests of the defendants
in avoiding undue expense during discovery. . . .
Accordingly, the plaintiff’s failure to comply with the
three discovery orders did not constitute a pattern of
abuse so egregious as to warrant dismissal, the remedy
of last resort.’’ (Internal quotation marks omitted.)
Usowski v. Jacobson, supra, 95–96.
Similarly, in Blinkoff v. O & G Industries, Inc., 89 Conn.
App. 251, 256, 259, 873 A.2d 1009, cert. denied, 275
Conn. 907, 882 A.2d 668 (2005), this court found that
the trial court abused its discretion by rendering a judg-
ment of nonsuit as a result of the plaintiff’s two month
delay in complying with a discovery order. Specifically,
this court found that the sanction of nonsuit was not
proportional to the discovery violation, as ‘‘[t]he two
month delay [did] not demonstrate a contumacious or
unwarranted disregard for the court’s authority . . . .’’
(Internal quotation marks omitted.) Id., 259. In Blinkoff,
there were no other discovery violations in the record;
id., 259 n.7; and, although this court recognized that
the plaintiff had ‘‘demonstrated a lack of diligence and
adherence to court orders regarding discovery,’’ the
plaintiff did ‘‘in fact later [comply] with the defendant’s
discovery requests in a fashion that the defendant [did]
not claim prejudiced its ability to prepare for trial
. . . .’’ Id., 259.
Moreover, in Tuccio v. Garamella, 114 Conn. App.
205, 206, 969 A.2d 190 (2009), this court found that the
trial court abused its discretion by rendering a judgment
of nonsuit against the plaintiffs as a discovery sanction
for their failure to respond to interrogatories and
requests for production. We noted that ‘‘[t]here [was]
an insufficient record from which to conclude either
that counsel was unable to respond to the interrogato-
ries before he did, or that failure to respond was wilful
or in bad faith, and the [trial] court made neither finding.
There was no evidence of prejudice to the defendant
except for his claim that he was prejudiced by the
lawsuit against him itself.’’ Id., 208. This court con-
cluded that, although ‘‘[t]here was a delay and lack
of diligence on the part of the plaintiffs with no real
explanation for the delay in responding to the interroga-
tories . . . under the circumstances of [that] case . . .
the ultimate sanction of nonsuit was disproportionate
to the violation of the discovery request and therefore
an abuse of discretion.’’ Id., 210; see also D’Ascanio v.
Toyota Industries Corp., 309 Conn. 663, 665, 681, 683,
72 A.3d 1019 (2013) (reversal of trial court’s judgment
directing verdict in defendants’ favor was proper where
court abused its discretion in imposing sanctions
because ‘‘objectionable conduct at issue was an isolated
event and was not one in a series of actions in disregard
of the court’s authority’’); West Haven Lumber Co. v.
Sentry Construction Corp., 117 Conn. App. 465, 474–75,
979 A.2d 591 (trial court did not abuse its discretion in
denying motion for judgment of nonsuit for plaintiff’s
failure to appear for deposition when no evidence was
presented showing that plaintiff wilfully disregarded
discovery order or avoided deposition out of bad faith),
cert. denied, 294 Conn. 919, 984 A.2d 70 (2009).
The present case involves a single violation of a dis-
covery order resulting from the defendant’s failure to
attend a duly scheduled deposition. In Ridgaway, our
Supreme Court explained that ‘‘[o]ur appellate courts
have upheld the imposition of a sanction of nonsuit
when there is evidence of repeated refusals to comply
with a court order’’; (emphasis added) Ridgaway v.
Mount Vernon Fire Ins. Co., supra, 328 Conn. 73; but
acknowledged that it ‘‘has not considered whether a
single act of misconduct could warrant the sanction of
nonsuit . . . .’’ (Emphasis added.) Id., 73–74. The court
further explained that ‘‘courts in other jurisdictions
have concluded that a single act could warrant nonsuit
or dismissal if the act is sufficiently egregious, particu-
larly when the improper conduct involves the perpetra-
tion of a deception on the court.’’ Id., 74. The present
case does not involve any such deception on the court
or egregious conduct by the defendant.
Here, the information before the court regarding the
defendant’s failure to attend the deposition was limited.
The plaintiff’s motion for default simply alleged that the
defendant had notice and was aware of the scheduled
deposition but failed to attend. The court also had
before it the representations of the plaintiff’s counsel
at the outset of the deposition on March 14, 2018, in
which the plaintiff’s counsel discussed for the record
the attempts made to notify the defendant of the loca-
tion of the deposition and recounted confusion on the
defendant’s part whereby the defendant thought the
deposition notice was for a court appearance. There
was nothing before the court demonstrating any kind
of pattern of behavior by the defendant, a wilful disre-
gard of the discovery order, the cause of the defendant’s
noncompliance, or any ‘‘deliberate, contumacious or
unwarranted disregard for the court’s authority . . . .’’
(Citations omitted; internal quotation marks omitted.)
Millbrook Owners Assn., Inc. v. Hamilton Standard,
supra, 257 Conn. 16–17.
In granting the motion for default, the court simply
noted the defendant’s failure to file an objection to
the motion for default and his failure to attend the
deposition as the grounds for its decision. The fact that
the defendant did not file an objection to the motion
for default, however, has no bearing on whether the
sanction imposed was proportional to the violation.
See, e.g., Usowski v. Jacobson, supra, 267 Conn. 87
(‘‘argument that the plaintiff . . . did not object to the
sanction . . . has no bearing on whether the sanction
was proportional to the violation’’). Moreover, although
Practice Book § 13-14 permits the entry of a default
against a party who fails to attend a duly scheduled
deposition, our Supreme Court has cautioned that any
sanction imposed for a discovery violation must be
proportional to the violation. See Lafferty v. Jones,
supra, 336 Conn. 374.
With respect to the issue of prejudice, the court made
no finding of prejudice to the plaintiff in its order grant-
ing the motion for default. In his appellate brief, the
plaintiff points out that the trial in this case commenced
more than four and one-half years after the action was
initiated. When the action was commenced, however,
the defendant timely filed an answer and special
defense. The plaintiff did not reply to the answer and
special defense until two years later and has not pro-
vided any explanation for that delay. Moreover, approxi-
mately one year later, on January 29, 2018, the plaintiff
‘‘renoticed’’ the defendant’s deposition. Nothing in the
‘‘renotice’’ indicates how many times a notice of the
deposition had been provided to the defendant or
whether the deposition previously had to be resched-
uled. Thus, with respect to at least three years of the
four and one-half years since the commencement of
this action to trial, there is nothing in the record to
show that the delay argued by the plaintiff was in any
way attributable to the defendant.
We note that our Supreme Court also ‘‘has refused to
uphold a sanction of nonsuit when there were available
alternatives to dismissal that would have allowed a case
to be heard on the merits while ensuring future compli-
ance with court orders.’’ Ridgaway v. Mount Vernon
Fire Ins. Co., supra, 328 Conn. 75. A default ‘‘was not
the only option available to vindicate the legitimate
interests of the [plaintiff] and the court.’’ D’Ascanio v.
Toyota Industries Corp., supra, 309 Conn. 683. In the
present case, the trial court had available a variety of
sanctions that it could have imposed on the defendant
for his failure to attend the deposition, including a mon-
etary sanction,4 which would have reimbursed the plain-
tiff for any fees that he may have incurred with respect
to the deposition that did not take place and vindicated
the legitimate interests of the plaintiff in avoiding undue
expense during discovery, while still ensuring that a
trial on the merits of this action could take place. See
Alpha Beta Capital Partners, L.P. v. Pursuit Invest-
ment Management, LLC, supra, 198 Conn. App. 685,
702.
Finally, we also must be mindful that the defendant
was a self-represented party at the time that he failed
to appear for the deposition and when the court granted
the plaintiff’s motion for a default. Although self-repre-
sented parties are not excused from complying with
relevant rules of procedural and substantive law, ‘‘[i]t
is the established policy of the Connecticut courts to
be solicitous of [self-represented] litigants and when it
does not interfere with the rights of other parties to
construe the rules of practice liberally in favor of the
[self-represented] party.’’ (Internal quotation marks
omitted.) Deutsche Bank National Trust Co. v. Pollard,
182 Conn. App. 483, 487–88, 189 A.3d 1232 (2018). This
court ‘‘has always been solicitous of the rights of [self-
represented] litigants and, like the trial court, will
endeavor to see that such a litigant shall have the oppor-
tunity to have his case fully and fairly heard so far as
such latitude is consistent with the just rights of any
adverse party.’’ (Internal quotation marks omitted.)
Belica v. Administrator, Unemployment Compensa-
tion Act, 126 Conn. App. 779, 787, 12 A.3d 1067 (2011).
Similar to Usowski, in which our Supreme Court
found an abuse of discretion by the trial court ‘‘because
the record [did] not establish that the failure to comply
with the discovery orders constituted a continuing pat-
tern of violations that warranted dismissal of the
action’’; Usowski v. Jacobson, supra, 267 Conn. 93; the
record in the present case is devoid of any evidence
regarding whether the defendant’s conduct demon-
strated an egregious or continuing pattern of behavior
or ‘‘a contumacious or unwarranted disregard for the
court’s authority . . . .’’ (Internal quotation marks
omitted.) Id., 95. Although ‘‘[t]rial courts should not
countenance unnecessary delays in discovery’’;
Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d
77 (1984); any sanctions imposed must be ‘‘proportion-
ate to the circumstances.’’ Id.; see also Millbrook Own-
ers Assn., Inc. v. Hamilton Standard, supra, 257 Conn.
18.
After examining the totality of the circumstances,
as well as the factors that must be considered when
reviewing the reasonableness of a sanction imposed by
the trial court; see Yeager v. Alvarez, supra, 302 Conn.
787, we conclude that the sanction of default was not
proportional to the defendant’s single discovery viola-
tion of failing to attend the deposition. The determina-
tive question before this court on appeal is not whether
this court ‘‘would have imposed a similar sanction but
whether the trial court . . . reasonably [could have]
conclude[d] as it did given the facts presented.’’
(Emphasis added; internal quotation marks omitted.)
Lafferty v. Jones, supra, 336 Conn. 374. As in Tuccio,
in the present case, there was an insufficient record
from which the court could have determined that the
defendant’s conduct was wilful or in bad faith. See
Tuccio v. Garamella, supra, 114 Conn. App. 208. Nor
was there any evidence of prejudice before the court
at the time it granted the plaintiff’s motion for default.
See id. Under these circumstances, the court abused its
discretion in granting the plaintiff’s motion for default.
Because we agree with the defendant’s first claim, that
the court abused its discretion in granting the plaintiff’s
motion for default, we need not reach his other claims
concerning the denial of his motions to set aside the
default and for permission to file a notice as to the
hearing in damages. See id., 207.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The reason for that two year delay is not clear from the record.
2
Practice Book § 17-34 (a) provides in relevant part: ‘‘In any hearing in
damages upon default, the defendant shall not be permitted to offer evidence
to contradict any allegations in the plaintiff’s complaint, except such as
relate to the amount of damages, unless notice has been given to the plaintiff
of the intention to contradict such allegations and of the subject matter
which the defendant intends to contradict . . . .’’
3
Practice Book § 17-35 (b) provides: ‘‘In all actions in which there may
be a hearing in damages, notice of defenses must be filed within ten days
after notice from the clerk to the defendant that a default has been entered.’’
4
Other sanctions that the trial court could have imposed include, inter
alia, denying the motion for default without prejudice to the motion being
renewed if the defendant failed to attend another properly noticed deposition
within a certain period of time, or ordering the defendant to appear for a
deposition within a certain period of time or a default would enter.