Opinion
No. CV04-4004807S
November 7, 2007
MEMORANDUM OF DECISION
On August 17, 2006, the defendant, Lowes Home Centers, Inc. (Lowes), filed a motion for nonsuit (#123) after the plaintiff, Linda Wilson, failed to comply with discovery requests on numerous occasions. The court granted Lowes' motion on October 16, 2006. On November 3, 2006, the plaintiff filed a motion entitled "Motion for Reconsideration of Nonsuit" (#125), which the court granted on November 6, 2006. The defendant then contended that notwithstanding the plaintiff's characterization of her motion, the purpose of the motion was to open judgment of nonsuit, and filed an objection to the motion to open judgment of nonsuit (#127) on January 9, 2007. Following oral argument on January 29, 2007, the court allowed the plaintiff to provide case law to support its motion (see January 29, 2007 order attached to #126, which is another motion for reconsideration of nonsuit).
Lowes is spelled incorrectly in the plaintiff's pleadings, and, consequently, on the court docket. The correct spelling is Lowe's.
On February 7, 2007, the plaintiff filed a memorandum of law in support of setting aside nonsuit (#129). In the memorandum, plaintiff's counsel explained that failure to comply with discovery requests was due to: 1) his misguided efforts to conceal his client's failure to file tax returns in order to protect her; and 2) his misguided belief that his client would eventually create a record of treatment for her alleged emotional distress. On February 14, 2007, the defendant filed a reply to the memorandum (#131).
The court looked to the case of Biro v. Hill, 231 Conn. 462, 650 A.2d 541 (1994), in which our Connecticut Supreme Court explained that in order for a motion to open judgment of nonsuit to be successful, "[t] he plaintiff must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause . . . 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." (Citation omitted.) Id., 467-68; see also General Statutes § 52-212 (outlining the same requirements discussed in Biro); Practice Book § 17-43 (same).
The superior courts have frequently denied motions to open judgment where nonsuit was granted because of the plaintiff's failure to respond to discovery requests in a timely fashion, finding that such failure was not due to "mistake, accident or other reasonable cause." Most recently, in Cruz v. National Associated Properties, Inc., Superior Court, judicial district of New Haven, Docket No. CV 05 5000411 (July 20, 2007, Lager, J.), after failing to comply with discovery requests, plaintiff's counsel claimed that the requested documents were irrelevant to the proceedings. The court determined that counsel "could not choose to unilaterally disregard the court's order to provide proper discovery compliance," and sustained the defendant's objection to the plaintiff's motion to open a judgment of nonsuit. Id. See also Fleischer v. Cerino, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 081462 (August 20, 2004, Ronan, J.T.R.) (denying motion to reopen judgment of nonsuit despite plaintiff's eventual substantial compliance with discovery, because plaintiff's noncompliance over a twelve-month period was not due to mistake, accident or other reasonable cause); Weinstock v. Jarmosko, Superior Court, judicial district of Hartford, Docket No. 33 54 11 (July 10, 1990, Maloney, J.) (2 Conn. L. Rptr. 74, 74) (denying motion to set aside dismissal where plaintiff repeatedly failed to comply with discovery orders over a seven-month period, despite warnings that such failure would result in dismissal). See, e.g., Biro v. Hill, supra, 231 Conn. 464; Baris v. Southbend, Inc., 68 Conn.App. 546, 553-54, 791 A.2d 713 (2002); Conway v. Hartford, 60 Conn.App. 630, 634, 760 A.2d 974 (2000).
While the superior courts have occasionally granted motions to open judgment, the parties in those cases have been far more sympathetic than the plaintiff in the present case. For example, in Field Company Builders v. Gordon Evans, Superior Court, Judicial district of New Haven, Docket No. CV 064017867 (August 22, 2007, Lopez, J.), the court granted a motion to open a judgment of default because discovery noncompliance was due to serious medical issues in plaintiff's counsel's family, such as pregnancy complications and multiple amputations, as well as the dissolution of plaintiff's counsel's law partnership.
CONCLUSION
Based upon the foregoing, the defendant's objection is sustained.