Opinion
No. HHB CV-05-4003507 S
November 16, 2005
MEMORANDUM OF DECISION ON MOTION FOR ORDER CONCERNING DEFENDANT'S RESPONSES TO REQUEST FOR ADMISSIONS (#119)
The plaintiff, Scott A. Smith (Smith), filed a motion, dated October 19, 2005, seeking an order that certain matters as to which he requested admissions be deemed admitted. The motion appeared on the short calendar on November 7, 2005. In the motion, Smith seeks an order from the court deeming Requests 6 through 12 to be admitted. After consideration, and for the reasons set forth below, the court denies the motion.
I Background
In this personal injury action, Smith alleges, in his complaint, that, on May 5, 2004, he was operating a motor vehicle when his vehicle was hit from the rear by a vehicle being driven by the defendant, Ralph J. Largo, Jr. (Largo). The return date was January 25, 2005. In his original answer, dated March 17, 2005 (#106), Largo denied that he was negligent.
On April 1, 2005, Smith filed a notice of service of a request for admissions on Largo (#108). Largo's responses thereto were filed on April 25, 2005 (#110). Request 6 stated: "Admit that at the time of the collision Scott Smith had lawfully applied his right turn signal, decreased the speed of his vehicle and come to a complete stop in order to conduct a right turn." Largo's answer stated, "The defendant admits that the brake lights on the plaintiff's vehicle came on prior to the collision. The plaintiff cannot admit or deny the remainder."
Request 7 stated: "Admit that Scott Smith did not contribute to the collision in any negligent manner." Largo's answer stated, "The defendant cannot admit or deny."
As to Requests 8-12, which sought admissions concerning various topics, including whether Smith assumed the risks of the collision, whether any other party contributed to the collision, whether Smith failed to mitigate his damages, whether Smith's injuries were "contributed" to by any alleged prior condition or ailment, and whether Smith was in fact injured as a result of the collision, Smith's answers were the same to each request. As to each, he stated, "The defendant cannot admit or deny."
Subsequently, on October 6, 2005, Largo filed amended responses to the requests for admission (#113) (the first amended responses). Therein, as to Requests 6 and 7, Largo amended his responses to state denials as to each. On the same date, he filed a request to amend his answer in order to assert special defenses (# 114). These pleadings were filed more than three months prior to the date now scheduled for jury selection, January 11, 2006. Largo's special defenses include various allegations in which he claims that, if Smith was injured as Smith alleges in his complaint, such injuries were the result of Smith's negligence, and not as a result of any negligence on Largo's part.
Smith filed an objection to the request to amend the answer on October 12, 2005 (#115). The instant motion was filed on October 25, 2005.
On October 31, 2005, the court issued its order overruling Smith's objection to Largo's request to amend his answer in order to assert special defenses. Therein, the court noted that, according to Largo's response to Smith's objection to the request to amend the answer, Largo's deposition was taken by Smith after Smith was apprised of the issues raised in the proposed special defenses.
In his motion, p. 3, Smith asserts that Largo's "original responses to Requests 6 and 7 would clearly contradict the Special Defenses he now seeks to assert." Smith also argues that Largo has not alleged any basis in support of the amended responses.
On October 31, 2005, Largo filed another set of amended responses to request for admission (the second amended responses), along with an objection to Smith's motion. In addition to the previous denials to Requests 6 and 7 noted above, the second amended responses include denials to Requests 6 through 12. Smith then filed his objection to Largo's amended responses to the requests for admission and a memorandum in support of his motion, both dated November 2, 2005.
II DISCUSSION
"Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter . . . The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter . . ." Practice Book § 13-23(a). "A party's response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment . . . Once a response has been filed, the party who has requested the admission may file a motion to determine the sufficiency of the answer or objection. See Practice Book § 13-23(b)." (Citations omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 744, 837 A.2d 866 (2004).
"Any matter admitted . . . is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission. The judicial authority may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the judicial authority that withdrawal or amendment will prejudice such party in maintaining his or her action or defense on the merits." Practice Book § 13-24(a).
Concerning amendments to responses to requests for admissions, our Appellate Court has stated that "[o]ur courts have pursued a liberal policy in allowing amendments." Kelley v. Tomas, 66 Conn.App. 146, 177, 783 A.2d 1226 (2001). "[T]he court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party." Id., 178. The standard for allowing amendment is not focused on its impact on the requesting party's chances for prevailing in the case, "but on prejudice at trial. Amendment would be precluded, for example, where reliance on an admission has caused a party not to subpoena a witness who is unavailable at the time of proposed withdrawal of the admission." Patel v. Barot, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 96 0158463-S (June 8, 2000, Hodgson, J.) (27 Conn. L. Rptr 297).
In his memorandum in support of his motion, Smith notes that, in the time which elapsed between Largo's filing of his initial responses to Smith's requests for admission, a pre-trial conference occurred and the matter was claimed to the trial list. He states that the amended answer and the first amended responses were hand-delivered to plaintiff's counsel as Largo and defense counsel arrived for Largo's deposition. See Smith's memorandum, p. 2.
Smith also points out that Largo has not filed a motion, pursuant to Practice Book § 13-24(a), seeking permission to amend his responses. However, Smith states, "[i]n the interest of economy, the undersigned will assume that the Defendant can cure the procedural defect by filing the appropriate motion with the Court and seeking permission of the judicial authority to withdraw or amend his admissions." See Smith's memorandum, p. 3.
In support of his motion, Smith argues that "[t]he plaintiff's preparation for this [Largo's] deposition had been based upon the pleadings, including the Answer on file, and the Defendant's responses to the Requests for Admission." See Smith's memorandum, pp. 3-4. He asserts that, if the amended responses are permitted, Smith will be compelled to perform additional discovery, including a re-deposition of Largo, "to prove facts that had previously been admitted and to seek evidence to counter defenses that had not theretofore existed." See Smith's memorandum, p. 4.
In neither his motion nor in his memorandum does Smith explain what questions were asked of Largo at the deposition or what his testimony was in response thereto. Smith has made no evidentiary presentation as to how his conducting of Largo's deposition was effected by the newly provided first amended responses, which he acknowledges receiving before the deposition commenced. No transcript of Largo's deposition was provided to the court.
Smith has not provided any evidence to the court as to how he has been prejudiced by either the first amended responses or the second amended responses. The argument of counsel is not a substitute for such evidence. See Director, Dept. Of Information Technology v. Freedom Of Information Commission, 274 Conn. 179, 191-92, 874 A.2d 785 (2005); State v. Velasco, 253 Conn. 210, 240, 751 A.2d 800 (2000); People's Bank v. Perkins, 22 Conn.App. 260, 263-64, 576 A.2d 1313, cert. denied, 216 Conn. 813, 580 A.2d 58 (1990), This is not a case in which, for example, the plaintiff even claims that, as a result of relying on the original responses, he was induced "to believe that liability would not be contested, and thus misled not to disclose a liability expert . . ." Estefan v. Rolls, Superior Court, judicial district of Waterbury at Waterbury, Complex Litigation Docket No. X02-CV99-0159309-S (November 15, 2000, Sheldon, J.) ( 28 Conn. L. Rptr. 545).
Smith also contends that there is nothing in the amended responses that was not within Largo's or his counsel's capability to answer initially and there has been no proffer of newly discovered evidence that was not available at the time the initial responses were filed. He asserts, without explanation, that he relied on them, and that to allow them to be amended would mislead him, take unfair advantage of him, and confuse the issues. See Smith's memorandum, p. 4. Scott does not claim that Largo or his counsel was negligent in preparing the initial responses.
As noted above, the focus for the court's review is not on whether the allowance of an amendment will make it more difficult to prove the plaintiff's case, but on whether his ability to prove his case at trial has been prejudiced. As discussed, Smith, the movant, has not shown that "amendment will prejudice such party in maintaining his . . . action . . . on the merits." See Practice Book § 13-24(a).
Likewise, the court is unpersuaded that allowance of the amended responses will cause an unreasonable delay, take unfair advantage of the opposing party, or confuse the issues. Smith received the first amended responses in October 2005, well in advance of the scheduled trial date of January 11, 2006, and in advance of deposing Largo. To the extent that the initial responses, which remained unamended until October 6, 2005, misled Smith, it appears that any negative effect thereof was cured by the provision of the first amended responses and the amended answer and special defenses in advance of Largo's deposition. In the first amended responses, Requests 6 and 7, concerning Smith's conduct at the time of the accident, were denied.
Also, amendment would subserve the presentation of the merits of the action. See Practice Book § 13-24(a). If Largo was deemed to have admitted the matters set forth in Requests 6 to 12, and, therefore, not be able to fully contest this matter on the merits, it would be Largo who would be prejudiced at trial. For example, his special defenses would be negated thereby. Such prejudice would be significant. See Confinante v. First National Supermarkets, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV96 033013S (May 22, 2001, Skolnick, J.); Estefan v. Rolls, supra.
Clearly, Largo's initial responses to Requests 6 through 12 did not comply with the Practice Book. As noted, as to each of these requests, Largo responded that, as to the entire request or part of it (as to Request 6), he "cannot admit or deny." Practice Book § 13-23(a) provides, in pertinent part, "[t]he answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter." Largo provided no reasons as to why he could not truthfully admit or deny. Those deficient initial responses were provided in April 2005. At that point it, if Smith objected to the deficiencies, it became incumbent on him to "move to determine the sufficiency of the answer or objection." See Practice Book § 13-23(b). Scott did not do so until October 2005, after receiving the first amended responses.
The first amended responses were similarly deficient as to Requests 8 through 12.
Notwithstanding the initial lack of compliance with the "precise dictates" of Practice Book § 13-23, East Haven Builders Supply, Inc. v. Fanton, supra, 80 Conn.App. 745, in view of the lack of prejudice, Smith's opportunity to depose Largo after receiving the first amended responses, and the devastating effect that deeming Requests 6 through 12 to be admitted would have on Largo's defense at trial, it would be unjust to deem Requests 6 through 12 to be admitted. In East Haven Builders Supply, Inc. v. Fanton, supra, 80 Conn.App. 745 n. 7, our Appellate Court cited "the governing principle of Practice Book § 1-8, which provides: `The design of these rules being to facilitate business and 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.'"
As noted, Smith properly points out that Largo has not filed a motion seeking the court's permission to withdraw or amend his earlier responses. See Practice Book § 13-24(a). In Largo's objection to the motion, no such permission was sought. On the record before the court, in the absence of a motion by Largo seeking to withdraw or amend the previous responses to the requests, it remains to be determined in the future what use, if any, Smith may make of Largo's previous responses to the requests. Pursuant to its inherent power to compel the observance of its rules, the court, as set forth below, orders Largo to file a motion in compliance with Practice Book § 13-24(a). See Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 9, 776 A.2d 1115 (2001).
CONCLUSION
1. For the foregoing reasons, Smith's motion is denied.
2. Largo is ordered to file a motion to withdraw and/or amend his responses to the request for admissions, in compliance with Practice Book § 13-24(a), by November 28, 2005.
It is so ordered.