McDonnell v. Roberts

312 A.3d 1103

224 Conn.App. 388

Patricia A. MCDONNELL

v.Norman A. ROBERTS II et al.

(AC 45261)

Appellate Court of Connecticut.

Argued December 5, 2023

Officially Released March 26, 2024

Brian S. Mead, with whom was Curran R. Mead, for the appellant (plaintiff).

Karen L. Allison, with whom, on the brief, was Ryan V. Nobile, for the appellees (defendants).

Bright, C.J., and Cradle and Schuman, Js.

CRADLE, J.

₃₉₀In this action, the plaintiff, Patricia A. McDonnell, appeals from the trial court’s denial of her motion to open and set aside the judgment of nonsuit rendered in favor of the defendants, Norman A. Roberts II, the Law Offices of Norman A. Roberts, LLC, and GraberRoberts, LLC. The plaintiff claims that the court abused its discretion in denying her motion to open and set aside the judgment of nonsuit on the grounds that the court erred in finding that she failed to show that a good cause of action existed at the time of the judgment of nonsuit and that she was prevented by mistake, accident or other reasonable cause from prosecuting the action. We affirm the judgment of the court.

The following undisputed factual and procedural history is relevant to our review of the plaintiff’s claims on appeal. On June 1, 2020, the plaintiff, who was then self-represented, commenced this action against the defendants, alleging legal malpractice, reckless misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., stemming from the defendants’ representation of her in her prior marital dissolution action. On September 8, 2020, the defendants served on the plaintiff a set of interrogatories and requests for production. On September 15, 2020, the defendants filed a request to revise, to which the plaintiff did not respond. On October 19, 2020, the defendants filed a motion for nonsuit based on the plaintiff’s failure to respond to their request to revise. On November 12, 2020, the defendants filed another motion for nonsuit on the ground that the plaintiff failed to respond to the defendants’ September 8, 2020 interrogatories and requests for production. The defendants’ motions were scheduled for a hearing on December 23, 2020. On December 21, 2020, Attorney Brian Mead filed an ₃₉₁appearance on behalf of the plaintiff, and, on December 22, 2020, the plaintiff, through Mead, requested a thirty day continuance, until January 23, 2021, to respond to the defendants’ request to revise and outstanding discovery requests. The court, Auger, J., granted the plaintiff’s request.

On February 23, 2021, the defendants again moved for a judgment of nonsuit against the plaintiff for "her failure to file a revised complaint within the time permitted by Practice Book § 10-37 and for her failure to respond to discovery within the requirements of Practice Book § 13-6 et seq." The plaintiff did not file an objection. On March 12, 2021, the defendants filed a proposed scheduling order, noting that the defendants’ counsel could not reach the plaintiff’s counsel. On March 25, 2021, the court, Lynch, J., issued an order in response to the February 23, 2021 motion for nonsuit, providing that, "[w]ithin thirty days after the issuance of this order, the plaintiff shall file a revised complaint and responses to the defendants’ interrogatories and requests for production. If the defendants do not receive compliance by that date, they may file a motion for a judgment of nonsuit referring to this order. Absent the filing of a revised complaint and proof of compliance with outstanding discovery on file before the motion appears on this short calendar, the motion may be granted by the court and judgment may enter."

On April 23, 2021, the plaintiff filed a revised complaint but did not file a notice of compliance with discovery. On May 24, 2021, the defendants filed another motion for a judgment of nonsuit for failure to respond to discovery pursuant to the court’s March 25, 2021 order. The defendants attached exhibits and an affidavit in support of the motion. On June 1, 2021, the plaintiff filed a notice of compliance with discovery, which the defendants asserted was deficient.

₃₉₂On July 9, 2021, the defendants filed a motion to strike counts two, three, and four of the revised complaint.¹ The plaintiff did not respond.

On July 22, 2021, the defendants filed yet another motion for a judgment of non- suit for failure to fully respond to discovery pursuant to the court’s March 25, 2021 order. The motion alleged that the responses to the outstanding discovery request, due on April 24, 2021, and sent by the plaintiff on May 25, 2021, were substantially deficient. The plaintiff did not file an objection to the defendants’ motion. On August 23, 2021, the court, Lynch, J., granted the defendants’ July 22, 2021 motion and rendered a judgment of nonsuit against the plaintiff.

On September 13, 2021, the plaintiff filed a motion to open and set aside the judgment of nonsuit, which is the subject of this appeal, asserting that there was a bona fide reason for her failure to respond to the defendants’ discovery requests.² On September 22, 2021, ₃₉₃the defendants filed an objection to the plaintiff’s motion to open the judgment of nonsuit, arguing that the plaintiff could not establish that a good cause of action existed at the time the nonsuit was rendered or that she was prevented from prosecuting the action due to mistake, accident or other reasonable cause as required by General Statutes § 52-212. The defendants argued, inter alia, that the plaintiff could not establish a good cause of action because her claims against the defendants were filed beyond the applicable three year statute of limitations. The defendants also noted that the plaintiff continues to be in noncompliance with the court’s March 25, 2021 discovery order. The following day, the plaintiff’s counsel filed an affidavit in support of the motion to open the judgment of nonsuit. The affidavit substantially mirrored the plaintiff’s motion to open the judgment of nonsuit and concluded by stating, "[i]t is counsel’s contention that the plaintiff has good cause under multiple counts."

On January 10, 2022, the court, J. Fischer, J., held a hearing on the plaintiff’s motion to open the judgment of nonsuit. At the hearing, Mead reiterated the reasons stated in the plaintiff’s motion to open for her noncompliance with the court’s March 25, 2021 order and asserted that the plaintiff "has a viable case and viable claims …." In response to the defendants’ contention that the plaintiff’s claims were filed beyond the statute of limitations, Mead disagreed, asserting for the first time that Governor Ned Lamont’s Executive Order No. 7G, which was issued on March 19, 2020, extended all statutes of limitations.³

The court, ruling from the bench, denied the plaintiff’s motion to open. The court ₃₉₄first noted that the motion to open filed by the plaintiff did not contain an assertion that there was a good cause of action. The court concluded that, "under the totality of the circumstances, there’s no good cause here for this…. I haven’t had one affidavit, one bill, one thing that supports what you’ve said, Counsel. So, based on the totality of the circumstances, the fact that there’s, you know, no argument about—no argument presented to the court until this moment about the good cause of action—and there have been four earlier motions for nonsuit—the court finds that, under the totality of the circumstances, the motion should be denied." This appeal followed.

On March 24, 2022, the plaintiff filed a motion for articulation asking the trial court to articulate the legal and factual basis "of there was no good cause found" and "of the totality of the circumstances which supports the court’s decision." The motion was sent in error to Judge Lynch, who issued an articulation on April 14, 2022, that related to her August 23, 2021 order rendering the judgment of nonsuit. The plaintiff subsequently filed a motion for review with this court, asking that the "articulation rendered by Judge Lynch be vacated and removed from both the Appellate and Superior Court records." This court granted review and ordered Judge Fischer to articulate the basis of his decision denying the plaintiff’s motion to open⁴ but denied the plaintiff’s request to vacate the April 14, 2022 articulation issued by Judge Lynch.

₃₉₅On June 16, 2022, the court, J. Fischer, J., issued a written articulation of its decision denying the motion to open. The articulation explained that the court found that "the plaintiff’s motion to open the judgment did not set forth any showing that [she] had a good cause of action, which was mentioned only later in the plaintiff’s affidavit⁵—which came after the defendants] raised that issue in [their] objection. It consists only of a bald statement that the plaintiff ‘has good cause under multiple counts.’ This, considering the pending and unopposed motion to strike, leaves doubt about the existence of said cause of action." (Emphasis in original; footnote added.) The articulation further explained that the "court found no reasonable cause for the plaintiff’s noncompliance with discovery because the affidavit sets forth no particularized circumstance as to why there had not been compliance with the court’s order. Aside from the period immediately before the court’s ruling, the affidavit offers only general references to various medical and other issues of the plaintiff’s counsel without any specific dates, circumstances, or any other substantiation as to what kept him from fully complying with the order since March 25, 2021. As such, it lacks any ‘particularities’ as required by Practice Book § 17-43 and this court found it to be entirely unpersuasive, especially in the context of the his- tory of noncompliance with the court’s explicit order."

[1–3] The plaintiff appeals from the...