Emerick v. Town of Glastonbury

177 Conn.App. 701

173 A.3d 28

Roger EMERICK

v.TOWN OF GLASTONBURY

AC 38646

Appellate Court of Connecticut.

Argued April 13, 2017

Officially released October 31, 2017

Roger Emerick, self-represented, the appellant (plaintiff).

Kristan M. Maccini, for the appellee (defendant).

DiPentima, C.J., and Sheldon and Bear, Js.

DiPENTIMA, C.J.

The trial court possesses the inherent power to impose sanctions on litigants in cases before it, including dismissing the case, both to compel observance of its rules and to bring an end to continuing violations of those rules. D'Ascanio v. Toyota Industries Corp ., 309 Conn. 663, 670–71, 72 A.3d 1019 (2013). This power "rests within the discretion of the trial court and will not be disturbed on review unless there is an abuse of discretion.... Generally, a sanction should not serve as a punishment or penalty.... Such drastic action is not, however, an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority." (Citations omitted.) Fox v. First Bank , 198 Conn. 34, 39, 501 A.2d 747 (1985) ; see also D'Ascanio v. Toyota Industries Corp. , supra, at 672, 72 A.3d 1019 ; Millbrook Owners Assn., Inc. v. Hamilton Standard , 257 Conn. 1, 16–17, 776 A.2d 1115 (2001). In the present case, the self-represented plaintiff, Roger Emerick, appeals from the judgment of the trial court dismissing his case against the defendant, the town of Glastonbury, as a sanction for his actions during trial. On appeal, the plaintiff claims that the dismissal constituted reversible error.¹ We are not persuaded that the court abused its discretion in dismissing the plaintiff's case after his deliberate, continuing, and at times contumacious disregard for the court's authority. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our decision. The plaintiff commenced this action on February 15, 2011. In the operative complaint, he set forth claims against the defendant of private nuisance, reckless and wanton conduct, trespass, violation of General Statutes § 13a–138,² intentional infliction of emotional distress, negligent infliction of emotional distress and breach of fiduciary duty.³ The plaintiff alleged that he owned 580 Hopewell Road in South Glastonbury, a forty acre property with wetlands along Roaring Brook. He claimed that development upstream from his property caused damage to Roaring Brook and his wetlands. The operative complaint was filed on October 29, 2013, and the defendant filed its answer and special defenses on November 13, 2013.

On November 3, 2014, the defendant filed a motion for summary judgment as to all counts. Two weeks later, the plaintiff filed his own motion for summary judgment on all counts. The parties filed various objections and replies to these motions, and the court, Wiese, J ., heard oral argument on the motions on January 26, 2015. On May 14, 2015, the court issued a memorandum of decision granting the defendant's motion with respect to the plaintiff's claims for damages for reckless and wanton conduct, violation of § 13a–138, negligent infliction of emotional distress, intentional infliction of emotional distress and breach of fiduciary duty but denying it as to his claims for damages for private nuisance and trespass, and his claim for injunctive relief for intentional infliction of emotional distress. The plaintiff's motion for summary judgment was denied in its entirety.

The trial commenced on October 27, 2015, before Judge A. Susan Peck.⁴ At the beginning of the trial, the court gave the jury preliminary instructions, including an estimation that the evidentiary phase of the trial would take three to four days. Following opening statements, the plaintiff called himself as a witness. He testified throughout the first and second days and the majority of the third day of the trial. Near the end of the third day, the plaintiff called Daniel A. Pennington, the defendant's town engineer and manager of physical services, as a witness. Pennington's testimony continued into the morning of the fourth day of trial.

On the afternoon of the fourth day, the court excused the jury to consider the defendant's objections to the plaintiff's expert witness, Sigrun N. Gadwa. At the outset of the fifth day of trial, the court permitted Gadwa to testify before the jury. During her testimony, the jury was excused so that the court could consider the objections by the defendant's counsel and the plaintiff's responses thereto. After an extended argument, the court focused on the plaintiff's behavior during the trial, finding that he had been insulting and abusive to the court and the defendant's counsel, resulting in a disruption of the administration of justice. After being interrupted by the plaintiff, the court further found that the plaintiff had exhibited a lack of respect for and refused to follow court rules, procedure and decorum. As a result of his misconduct during the course of the trial, the court dismissed the plaintiff's case. The plaintiff subsequently filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

As an initial matter, we set forth the legal principles and our standard of review. "It is well established that 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 [Practice Book] § 13–14, impose sanctions ...." (Footnote omitted; internal quotation marks omitted.) Evans v. General Motors Corp ., 277 Conn. 496, 522–23, 893 A.2d 371 (2006) ; see also DuBois v. William W. Backus Hospital , 92 Conn. App. 743, 748, 887 A.2d 407 (2005) (trial court has inherent authority to impose sanctions), cert. denied, 278 Conn. 907, 899 A.2d 35 (2006). The sanction of "dismissal serves not only to penalize those whose conduct warrants such a sanction but also to deter those who might be tempted to [engage in] such conduct in the absence of such deterrent. National Hockey League v. Metropolitan Hockey Club, Inc. , 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)." Pavlinko v. Yale–New Haven Hospital , 192 Conn. 138, 145, 470 A.2d 246 (1984).

This case involves the inherent authority of the court to impose reasonable sanctions against a party during litigation. "The decision to enter sanctions ... and, if so, what sanction or sanctions to impose, is a matter within the sound discretion of the trial court.... In reviewing a claim that this discretion 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....

"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 proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.... Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority ... the court should be reluctant to employ the sanction of dismissal except as a last resort.... [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court." (Citations omitted; internal quotation marks omitted.) D'Ascanio v. Toyota Industries Corp ., supra, 309 Conn. at 671–72, 72 A.3d 1019 ; see also Evans v. General Motors Corp ., supra, 277 Conn. at 522–24, 893 A.2d 371 ; Millbrook Owners Assn., Inc . v. Hamilton Standard , supra, 257 Conn. at 15–16, 776 A.2d 1115 ; Pavlinko v. Yale–New Haven Hospital , supra, 192 Conn. at 145, 470 A.2d 246 (dismissal, when party fails to obey court's order, is appropriate and serves as penalty and deterrent).

To determine whether the court's dismissal of the plaintiff's case constituted an abuse of discretion, we must set forth a detailed account of the events that occurred each day of the trial. This account reveals that the plaintiff's confrontations with the court and his refusal to comply with its orders began on the first day of the trial and continued to its end on the fifth day of trial.

FIRST DAY OF TRIAL—OCTOBER 27, 2015

At the outset of the first day, the court instructed that there were to be no "speaking objections" and that it would notify the parties regarding any further argument. The plaintiff inquired if a copy of the "Practice Book" could be made available for his use during the trial, and the court replied in the negative.⁵ The plaintiff then asked if he would be permitted to testify from the counsel table, rather than the witness stand. The court replied in the negative. It reasoned that the jury would need an unobstructed view of the plaintiff as he testified and that "to maintain a proper decorum, each witness should testify from the witness chair." The plaintiff countered that it would be easier for the jury to see him at the counsel table and that, in unrelated cases...