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ALPHA BETA CAPITAL PARTNERS,
L.P. v. PURSUIT INVESTMENT
MANAGEMENT, LLC, ET AL.
(AC 41986)
Prescott, Devlin and D’Addabbo, Js.
Syllabus
The plaintiff, following the defendants’ appeal from the trial court’s judgment
in the plaintiff’s favor, sought sanctions from the defendants for their
failure to comply with postjudgment discovery orders. The court had
previously granted the plaintiff’s application for a prejudgment remedy,
and, thereafter, granted the plaintiff’s postjudgment motions to increase
the judgment amount and for disclosure of assets to assist it with secur-
ing the additional amount of the judgment. The court ordered the defen-
dants to provide the plaintiff with additional documents, stating that if
the defendants failed to substantially comply with its order, S and C,
the individual defendants who operated the defendant companies, would
each be required to appear for an examination of judgment debtor.
Thereafter, after failing to produce many of the documents they were
required to disclose, S and C were ordered by the court to appear for
an examination of judgment debtor and, subsequently, the defendants
were ordered to provide the plaintiff with supplemental disclosures.
The court thereafter issued an order of sanctions against the defendants
for their failure to comply with the court’s discovery orders, ordering
monetary sanctions comprised of attorney’s fees and litigation costs,
and the defendants amended their appeal and this court severed this
claim from the appeal. Held that the court’s order of sanctions met the
requirements that a trial court must deem satisfied before imposing
sanctions, and, therefore, the court’s order did not constitute an abuse
of discretion: the court’s order was reasonably clear, notwithstanding
the defendants’ claim that there was neither a clear order nor a violation
of any such order, S and C were under oath when testifying during the
examination of judgment debtor, and, having sworn to provide truthful
testimony, understood that they were required to provide such testimony
during the proceeding; moreover, the trial court properly found that the
defendants violated the court’s discovery order, as there was ample
evidence in the record, which purportedly contradicted the testimony
that S and C had provided at the examination of judgment debtor,
from which the trial court reasonably could have inferred that S and C
conducted themselves with obvious dishonesty; furthermore, the court’s
order of sanctions was proportionate to the defendants’ violation of the
court’s discovery orders that occurred after the examination of judgment
debtor, because the court found that the defendants engaged in a continu-
ous practice of disobeying the court’s discovery orders, the plaintiff
suffered harm, including attorney’s fees and litigation costs, as a result
of the defendants’ failure to provide documents that the court had
ordered them to disclose that were pertinent to the plaintiff’s ability to
identify assets that could be used to satisfy the judgment, and the
defendants’ failure to disclose the documents deprived the plaintiff of
information that it needed to collect on the judgment, part of which
was not secured by a prejudgment remedy, and the court’s order of
sanctions was appropriate because it 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, and that the plaintiff needed, to obtain
a remedy to which it was entitled, and, in the absence of the court’s
order of sanctions, the plaintiff unfairly would have borne this cost.
Argued January 13—officially released July 7, 2020
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk and
transferred to the Complex Litigation Docket, where the
defendants filed a counterclaim; thereafter, the court,
Genuario, J., granted the plaintiff’s application for a
prejudgment remedy; subsequently, the matter was
tried to the court, Genuario, J.; judgment in part for
the plaintiff on the complaint and for the plaintiff on
the counterclaim, from which the defendants appealed
to this court; thereafter, the court, Genuario, J., granted
the plaintiff’s motion for sanctions, and the defendants
amended their appeal. Affirmed.
Michael S. Taylor, with whom was Brendon P. Lev-
esque, for the appellants (defendants).
James C. Graham, with whom was Dennis M. Car-
nelli, for the appellee (plaintiff).
Opinion
PRESCOTT, J. This appeal involves a challenge to
sanctions imposed by the trial court to remedy exten-
sive discovery abuses by the defendants that frustrated
the plaintiff’s attempt to collect on a significant mone-
tary judgment. The defendants, Pursuit Opportunity
Fund I, L.P. (POF), Pursuit Opportunity Fund I Master
Ltd. (POF Master), Pursuit Capital Management Fund
I, L.P. (PCM), Pursuit Capital Master (Cayman) Ltd.
(PCM Master), Pursuit Investment Management, LLC
(PIM), Northeast Capital Management, LLC (North-
east), Anthony Schepis, and Frank Canelas, Jr.,1 appeal
from the trial court’s order of sanctions, in which the
court awarded the plaintiff, Alpha Beta Capital Partners,
L.P., attorney’s fees and litigation costs for the defen-
dants’ discovery abuses. On appeal, the defendants
claim that the court’s order of sanctions constituted an
abuse of discretion because the order failed to meet
the three requirements that a trial court must deem
satisfied before imposing sanctions and that this court
must analyze to determine whether the trial court’s
order constituted an abuse of discretion. See Ridgaway
v. Mount Vernon Fire Ins. Co., 328 Conn. 60, 70–71,
176 A.3d 1167 (2018) (citing Millbrook Owners Assn.,
Inc. v. Hamilton Standard, 257 Conn. 1, 17–18, 776
A.2d 1115 (2001)).2 We disagree with the defendants’
claim and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to the defendants’ claims on appeal. In September,
2015, the plaintiff ‘‘filed an application for a prejudg-
ment remedy and a proposed summons and complaint
against the defendants.’’3 Alpha Beta Capital Partners,
L.P. v. Pursuit Investment Management, LLC, 193
Conn. App. 381, 398, 219 A.3d 801 (2019) (Alpha Beta
I), cert. denied, 334 Conn. 911, 221 A.3d 446 (2020). The
plaintiff then filed a seven count amended substitute
complaint against the defendants, alleging ‘‘(1) breach
of contract, (2) breach of the covenant of good faith
and fair dealing, (3) unjust enrichment, (4) conversion,
(5) statutory theft under General Statutes § 52-564, (6)
violation of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., and (7)
civil conspiracy.’’ Id.
In June, 2016, the trial court granted the plaintiff’s
application for a prejudgment remedy in the amount of
$5,421,582. Id., 399. After a bench trial held later that
year, ‘‘the court rendered judgment [partially] in favor
of the plaintiff against PCM, POF, PIM, Schepis,
Canelas, and Northeast in the total amount of . . .
$5,422,540.’’ (Internal quotation marks omitted.) Id.,
401. Then, ‘‘[o]n January 4, 2017 . . . the court granted
the plaintiff’s motion to increase the [judgment] amount
by $947,731 to a total of $6,369,313 . . . . On the same
date, the court granted the plaintiff’s motion for disclo-
sure of assets to assist with . . . securing . . . the
additional [$947,731].’’ Id., 401–402.
Ultimately, ‘‘[t]he defendants appeal[ed], and the
plaintiff cross appeal[ed], from the judgment of the
trial court . . . [In this appeal], the defendants also
[challenged] the [order] of the trial court granting the
plaintiff’s postjudgment motion to increase the amount
of [the judgment] and [the order] granting the plaintiff’s
motion’’ to discover assets that could be used to satisfy
the judgment, $947,731 of which had not been secured
by a prejudgment remedy. Alpha Beta I, supra, 193
Conn. App. 389. This court disposed of that appeal in
Alpha Beta I. See id., 389–90.
At a hearing before the trial court on January 12,
2017, the defendants stated that they would disclose
assets sufficient to satisfy the increase in the judgment
amount within thirty days. Accordingly, the court
ordered the defendants to make these disclosures by
February 14, 2017.
On March 31, 2017, the plaintiff moved the court for
an order requiring the defendants to comply with its
January 12, 2017 order and to impose sanctions against
the defendants because they had failed to make the
disclosures that the court had ordered them to make
by February 14, 2017. In light of the defendants’ failure
to comply with its previous order, the court, on April
12, 2017, ordered the defendants to provide the plaintiff
with documents spanning sixty-six categories. The
court required them to provide these documents by
May 3, 2017. The defendants agreed that they would
provide these documents to the plaintiff by this date.
Moreover, the court stated that, if the defendants failed
substantially to comply with its order by May 3, 2017,
then Schepis and Canelas would be required to appear
for an examination. Instead of complying with this
order, however, the defendants, on May 3, 2017, moved
for a protective order in which they challenged, inter
alia, the court’s authority to order postjudgment asset
discovery. The court denied this motion.
On that same date, the plaintiff served postjudgment
interrogatories on the defendants, in accordance with
General Statutes § 52-351b (a). The defendants’
responses were due to the plaintiff on June 2, 2017.
After the defendants failed to respond by this date,
the plaintiff moved the court to order supplemental
discovery and to compel Schepis and Canelas to appear
in person before the court for an examination of judg-
ment debtor (EJD), in accordance with § 52-351b (c)
and General Statutes § 52-397.4
On August 21, 2017, the court granted this motion.
The court also reiterated that the defendants were obli-
gated to provide the plaintiff with the disclosures that
the court previously had ordered them to make in its
January 12 and April 12, 2017 orders. The court ordered
compliance by October 6, 2017. The court also advised
the defendants that they should begin gathering these
documents and responding ‘‘immediately’’ and that
they should not return to court on October 6, 2017,
claiming that they had insufficient time to comply with
the court’s orders.5 (Emphasis added.) The defendants
again failed to comply.
On October 20, 2017, the plaintiff moved for the court
to order the defendants to produce the required docu-
ments and to appear for an EJD, and requested that
the court impose sanctions against the defendants for
failing to comply with the court’s discovery orders. On
November 6, 2017, the court ordered the defendants to
provide the plaintiff with the disclosures that the court
had ordered them to make in its January 12, April 12,
and August 21, 2017 orders. The court ordered the
defendants to comply with this order by November 16,
2017, or risk being held in contempt of court. The court
also agreed to sanction the defendants and ordered
them to reimburse the plaintiff for the cost of preparing
the plaintiff’s October 20, 2017 motion.6 As for further
sanctions, the court stated that it would ‘‘reserve deci-
sion on the need for [them] depending on the defen-
dants’ compliance with this order.’’ The court also
ordered ‘‘Schepis and . . . Canelas . . . to appear on
November 22, 2017 . . . to be examined as [j]udgment
debtors.’’ The court later granted a motion by the defen-
dants asking the court to move the deadline for docu-
ment disclosures to December 8, 2017, and the date of
the EJD to December 13, 2017.
By the time that the EJDs commenced on December
13, 2017, the defendants had provided the plaintiff with
only a small fraction of the sixty-six categories of docu-
ments that they had agreed to make available pursuant
to the April 12, 2017 agreement and that the court most
recently ordered them to produce in its November 6,
2017 order.7 The defendants told the court that they
had not produced many of the documents that they
were required to disclose because they did not have
them in their possession.
Both Schepis and Canelas testified under oath during
the EJD. Despite being sophisticated investors with sig-
nificant assets, however, Schepis and Canelas claimed
that they were able to recall little information about
their finances. For example, when asked which accoun-
tant prepared his personal tax returns, Schepis repre-
sented that he could not remember who prepared them.
Canelas provided similar answers concerning the tax
returns about which he was asked. For example, he
asserted that he did not know who had prepared the
2016 tax return for one of the entities that he controlled
and operated with Schepis.
Schepis and Canelas were also asked about their
sources of income and where they deposit their earn-
ings. During his testimony, Schepis was presented with
a document purporting to show that he received a dis-
bursement of $931,383 from his former attorney in Sep-
tember, 2015. Schepis claimed, however, that he could
not recall receiving this large sum of money, even
though he received it only two years prior. Schepis also
represented that he could not remember receiving cash
distributions in the past three or four years from the
entities that he controlled and operated and claimed
that he had not received a distribution from Pursuit
Partners, LLC, ‘‘in quite a while.’’ Moreover, he asserted
that he did not know where he deposited earnings from
these distributions when he was receiving them. Indeed,
Schepis claimed that he did not have a checking account
and could not remember the last time he had one.8
Moreover, Schepis represented that he paid for every-
thing in cash.
Canelas provided similarly evasive answers to ques-
tions about his personal finances. He claimed that he
could not recall receiving a $776,000 disbursement from
his former attorney and could not recall whether he
received disbursements from entities that he controlled
and operated. Asked whether he had an account into
which he could deposit money, Canelas asserted that
he could not recall. He also represented that he did not
have a checking account and could not recall the last
time that he had a bank account. In light of this repre-
sentation, the plaintiff’s counsel asked him how he
retrieves cash when he needs it, to which he responded
that he asks his wife for it, whom he described as being
a stay-at-home mother who does charity work and is
his ‘‘sole source of money.’’ He also asserted that his
wife pays his bills and that he does not.
On the same date as the EJD, the court, in light of
the defendants’ evasive and incredible responses during
the EJD and their failure to provide the plaintiff with
the documents that the court, in previous discovery
orders, had required them to disclose, entered new
orders to address these issues.9 First, the court contin-
ued the EJD until February 6, 2018.10 The court also
ordered that, by December 22, 2017, Schepis and
Canelas were to produce the following: ‘‘1. [f]ederal
and state income tax returns for each of tax years 2015
and 2016 identifying the preparer(s)’ name(s); 2. [a]n
unredacted copy of [a document containing financial
information from the defendants’ prior counsel]; 3.
[f]ederal and state income tax returns for the tax years
2015 and 2016, identifying the preparer’s name, for (a)
[POF], (b) [PCM], (c) [PIM], (d) Pursuit Partners, LLC,
and (e) [Northeast].’’ Indeed, the court had, in three
prior orders, commanded that the defendants produce
the tax returns listed in its December 13, 2017 order.
Additionally, the court ordered the defendants’ counsel
to ‘‘submit a responsive pleading’’ to the court’s Novem-
ber 6, 2017 order requiring the defendants to provide
the plaintiff with the documents that, on April 12, 2017,
they agreed to make available to the plaintiff and had
been ordered to disclose several times. The defendants
agreed to comply with this order by the December 22,
2017 deadline that the court imposed.
On January 2, 2018, the plaintiff moved for the court
to order the defendants to comply with the court’s
December 13, 2017 order. In this motion, the plaintiff
stated that the defendants had provided some, but not
all, of the documents that the court’s December 13,
2017 order required them to produce and that they had
failed to submit a responsive pleading to the court’s
November 6, 2017 order, despite being required to pro-
duce all of these items by December 22, 2017.
The plaintiff then filed a second motion on February
13, 2018, in which it requested that the court order
Schepis and Canelas to provide the information that
they claimed that they could not recall during the EJD
and impose sanctions for Schepis’ and Canelas’ conduct
during the EJD. In addition, the plaintiff requested that,
in light of the testimony that Schepis and Canelas did
provide during the EJD and the defendants’ failure to
provide the plaintiff with documents that the court had
previously ordered them to produce, the court compel
the defendants to provide the plaintiff with supplemen-
tal disclosures covering ten categories of information.
Some of the categories of documents requested in this
motion pertained to documents that the court already
had ordered the defendants to produce in prior orders,
such as statements for securities accounts that either
Schepis or Canelas owned, but the motion also con-
tained requests for the defendants to produce docu-
ments covering new categories of information.
On March 8, 2018, the court ordered the defendants
to ‘‘to identify . . . the preparer’s name of the state
income tax returns for the tax years 2015 and 2016, for
(a) [POF], (b) [PCM], (c) [PIM], (d) Pursuit Partners,
LLC, and (e) [Northeast], an[d] the preparer for the
federal tax returns of Pursuit Partners, LLC.’’ With
respect to the ten categories of documents that the
plaintiff asked the court to order the defendants to
provide, the court ordered the parties to conference
to attempt to resolve any issues with respect to the
defendants’ providing these documents. If, however,
the parties were unable to resolve the issues, the court
instructed the plaintiff’s counsel to submit an affidavit
describing the categories of documents that remained
in dispute by March 22, 2018. The court also reserved its
decision on the other orders requested by the plaintiff.
On March 22, 2018, the plaintiff’s counsel submitted
an affidavit to the court in which he averred that the
defendants agreed to produce some, but not all, of the
ten categories of documents that the plaintiff had
requested in its February 12, 2018 motion. On April 4,
2018, the court, having reviewed the affidavit, ordered
the defendants to provide the plaintiff with supplemen-
tal disclosures within the categories of documents that
the defendants’ counsel agreed to produce during the
conference with plaintiff’s counsel by April 20, 2018.11
On April 24, 2018, the plaintiff’s counsel filed an affi-
davit with the court in which he averred that the defen-
dants had provided nothing in the way of compliance
with the court’s April 4, 2018 order. The court, on June
6, 2018, then ordered the ‘‘[p]laintiff . . . to submit a
supplemental filing identifying the outstanding discov-
ery by June 14, 2018, [and that the defendants] respon[d]
to th[is] [supplemental] filing . . . by July 2, 2018. The
court also ordered that ‘‘[a] hearing [be held] to consider
an order for fees and [p]enalties . . . .’’ On June 14,
2018, the plaintiff submitted two affidavits in response
to the court’s June 6, 2018 order. In the first affidavit,
the plaintiff’s counsel averred that the defendants had
only partially complied with the court’s April 4, 2018
order, in which it ordered them to make supplemental
disclosures to the plaintiff. In the second affidavit, the
plaintiff’s counsel sought an award of attorney’s fees,
averring that the plaintiff had incurred $31,610 in attor-
ney’s fees and $1258.05 in other litigation expenses pre-
paring for and taking the December 13, 2017 EJD and
attempting to obtain the defendants’ compliance with
the court’s discovery orders.
In support of the requested attorney’s fees, the plain-
tiff’s counsel averred that he bills at an hourly rate of
$400. He stated that he spent fourteen hours preparing
for the December 13, 2017 EJD; 3.7 hours taking the
December 13, 2017 EJD; 2.8 hours preparing the plain-
tiff’s January 2, 2018 motion; 35.2 hours preparing the
plaintiff’s February 13, 2018 motion; and 1.5 hours
arguing motions related to the defendants’ noncompli-
ance at a June 6, 2018 status conference.
In addition, the plaintiff’s counsel requested that the
plaintiff be awarded $8730 for the services of an attor-
ney from Reed Smith LLP (Reed Smith), who served as
the plaintiff’s cocounsel. The plaintiff’s counsel further
stated that cocounsel from Reed Smith bills at an hourly
rate ranging from $450 to $800 and engaged in 14.4
hours of work on the plaintiff’s behalf.
Thereafter, the defendants filed their response to the
plaintiff’s affidavits. Notably, the defendants filed this
response on July 19, 2018, even though the court
ordered them to file it by July 2, 2018.12 The defendants
essentially made three arguments in their response.
First, they argued that the award of attorney’s fees
that the plaintiff requested for preparing, attending, and
taking the December 13, 2017 EJD was excessive. The
defendants did, however, concede that the plaintiff
should receive an award for some of the fees incurred
for the EJD, stating that ‘‘a reasonable award of attor-
ney’s fees related to the December 13, 2017 EJDs should
be in an amount significantly less.’’ (Emphasis added.)
Second, the defendants argued that the plaintiff should
not be awarded attorney’s fees for work performed after
January 5, 2018, because the defendants filed several
motions opposing the plaintiff’s discovery requests.
Third, the defendants argued that the plaintiff should
not receive the award of fees requested for the work
of cocounsel from Reed Smith because this request
of fees was ‘‘unreasonably excessive and duplicative.’’
Importantly, in their response, the defendants did not
contest that they had failed to comply fully with the
court’s discovery orders, as the plaintiff’s counsel had
averred in his June 14, 2018 affidavit.
On July 23, 2018, the court issued the order of sanc-
tions that is the subject of the present appeal. The
court’s decision to sanction the defendants was predi-
cated on two factual findings. First, ‘‘[t]he court [found]
that an award of [attorney’s] fees and costs [was] appro-
priate because [Schepis and Canelas] conducted them-
selves at the [EJD] on December 13, 2017, before the
court with obvious dishonesty . . . .’’ Second, the
court found that, after conducting themselves with
‘‘obvious dishonesty’’ at the EJD on December 13, 2017,
the defendants ‘‘then . . . engaged in a continuous
practice of disobeying the court’s discovery orders.’’
Having made these findings and determined that an
order of sanctions was appropriate, the court awarded
the plaintiff $17,962.05, which amounted to $16,704 in
attorney’s fees and $1258.05 in litigation costs. The
court calculated the attorney’s fee portion of the award
using an hourly rate of $360 for the hours that both
the plaintiff’s counsel and cocounsel from Reed Smith
billed. Specifically, the court awarded: 3.7 hours, as
requested, for attending and taking the December 13,
2017 EJD, stating that ‘‘[t]he court awards the fees
requested because of the egregious duplicity displayed
by the individual defendants at the EJD before the
court’’; 2.8 hours, as requested, for preparing its January
2, 2018 motion because ‘‘it represent[ed] an effort to
assure compliance with a court order’’; 30.2 hours of
fees for the plaintiff’s February 12, 2018 motion,
deducting five hours from the 35.2 hours of fees that
the plaintiff requested because these five hours were
‘‘spent on matters not caused by [the] defendants’ inap-
propriate conduct’’; and 1.5 hours, as requested, for
the plaintiff’s counsel’s appearance at the June 6, 2018
status conference because ‘‘[t]he motions argued [at
that conference] related to discovery and were necessi-
tated by [the] defendants’ [noncompliance] with court
orders . . . .’’ Moreover, the court awarded the plain-
tiff attorney’s fees for 8.2 hours of work by cocounsel
from Reed Smith, an amount less than the plaintiff had
requested. The court also did not award the plaintiff for
the fourteen hours of work that the plaintiff’s counsel
claimed to have spent preparing for the December 13,
2017 EJD ‘‘because preparation for the [EJD] was
required regardless of [the] defendants’ subsequent con-
duct.’’ This appeal followed.
The defendants thereafter filed a motion for articula-
tion. Specifically, the defendants asked the court to
articulate which discovery orders formed the bases of
the court’s finding in its July 23, 2018 order that the
defendants had ‘‘engaged in a continuous practice of
disobeying the court’s discovery orders’’ and whether
any of these orders were the bases for the court’s March
8, 2018 order of sanctions.13 (Internal quotation
marks omitted.)
In its articulation, the court reiterated that it based
its award of attorney’s fees and costs in its July 23,
2018 order of sanctions on the number of hours and
hourly rate that it deemed reasonable for the time that
the plaintiff’s counsel and cocounsel from Reed Smith
had spent taking the testimony of Schepis and Canelas
at the December 13, 2017 EJD, preparing the plaintiff’s
January 2 and February 12, 2018 motions, and partici-
pating in the June 6, 2018 status conference.
With respect to the March 8, 2018 order of sanctions,
the court stated that the amount that it awarded the
plaintiff in that order reflected the cost of preparing its
October 20, 2017 motion, as stated in its November 6,
2017 order. The court also noted that its November 6,
2017 order ‘‘was directed to the defendants’ failure to
comply with [the discovery] orders previously entered
in 2017 and restated what was outstanding, so that the
[EJD] . . . would be productive.’’ Additional facts will
be set forth as necessary.
The defendants claim that the trial court’s July 23,
2018 order of sanctions was improper because it consti-
tuted an abuse of discretion. In support of this claim,
the defendants argue that the order of sanctions failed
to meet the three requirements that a trial court must
deem satisfied before imposing sanctions and that this
court must analyze to determine whether the trial
court’s order constituted an abuse of discretion. See
Ridgaway v. Mount Vernon Fire Ins. Co., supra, 328
Conn. 71 (citing Millbrook Owners Assn., Inc. v. Hamil-
ton Standard, supra, 257 Conn. 17–18). We disagree
with the defendants.
We begin our analysis of the defendant’s claim by
setting forth our standard review of a court’s order of
sanctions for a party’s failure to comply with that court’s
discovery order. Our Supreme Court has stated 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 . . . . 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 dis-
cretion 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.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Evans v. General Motors Corp., 277 Conn.
496, 522–23, 893 A.2d 371 (2006).14 Our Supreme Court
has described three criteria for evaluating whether a
court’s order of sanctions constitutes an abuse of dis-
cretion. See Ridgaway v. Mount Vernon Fire Ins. Co.,
supra, 328 Conn. 71, citing Millbrook Owners Assn.,
Inc. v. Hamilton Standard, supra, 257 Conn. 17–18.
Specifically, the court has stated that ‘‘a trial court prop-
erly exercises its discretion in imposing a sanction for
a violation of a [court’s discovery] order when (1) the
order to be complied with is reasonably clear, (2) the
record establishes that the order was in fact violated,
and (3) the sanction imposed is proportionate to the
violation.’’ Ridgaway v. Mount Vernon Fire Ins. Co.,
supra, 71. To be upheld on appeal, the order of sanctions
must satisfy each of these three requirements. See Mill-
brook Owners Assn., Inc. v. Hamilton Standard, supra,
17–18. Having reviewed the court’s order of sanctions,
and on the basis of our review of the record, we con-
clude that the order satisfies each of these three
requirements.
I
CLARITY OF THE DISCOVERY ORDER
The defendants first argue that the court’s order of
sanctions constituted an abuse of discretion because
‘‘there [was] neither a clear order nor [did the defen-
dants violate] any such order.’’ Specifically, the defen-
dants assert that the court’s order, which stated, in
relevant part, that ‘‘Schepis and . . . Canelas . . . are
to appear . . . to be examined as [j]udgment debtors’’
did not expressly ‘‘requir[e] [Schepis and Canelas] to
answer any of the EJD questions differently than they
had answered them.’’ In essence, the defendants con-
tend that the court’s ultimate finding that Schepis and
Canelas ‘‘conducted themselves . . . with obvious dis-
honesty’’ during the EJD could not serve as the basis
for imposing sanctions, because the court’s order com-
pelling Schepis and Canelas to be examined as judgment
debtors was unclear as to whether they were required
to provide truthful testimony during the EJD. We are
not persuaded.15
In order for a court to impose sanctions based on a
party’s failure to comply with the court’s discovery
order, ‘‘the [discovery] order to be complied with must
be reasonably clear.’’ Millbrook Owners Assn., Inc. v.
Hamilton Standard, supra, 257 Conn. 17. Moreover,
‘‘even an order that does not meet this standard may
form the basis of a sanction if the record establishes
that, notwithstanding the lack of such clarity, the party
sanctioned in fact understood the trial court’s intended
meaning. This requirement poses a legal question that
we . . . review de novo.’’ Id.
A requirement that a person give truthful testimony
is so patently implicit in any order compelling a person
to testify that the defendants’ argument does not war-
rant much discussion. Indeed, witnesses providing
truthful testimony in judicial proceedings is critically
important to the court’s ability to uncover the truth and
ensure that justice is properly administered. See State
v. Simmons, 188 Conn. App. 813, 831–32, 205 A.3d
569 (2019).
Here, Schepis and Canelas were under oath when
testifying during the EJD, as required by § 52-397.16
Thus, before testifying, Schepis and Canelas, swore to
provide truthful testimony under the penalty of perjury.
See General Statutes § 1-25.17 Therefore, there is no
doubt that Schepis and Canelas, having sworn to pro-
vide truthful testimony, understood that they were
required to provide such testimony during their EJD.
II
FINDING THAT THE DEFENDANTS VIOLATED THE
DISCOVERY ORDER
The defendants next argue that, even if the court’s
order compelling Schepis and Canelas to be examined
as judgment debtors required them to provide truthful
testimony during the EJD, the order of sanctions never-
theless constituted an abuse of discretion because the
trial court improperly found that Schepis and Canelas
had violated this order. In support of their argument
that this finding was improper, the defendants assert
that the court’s underlying factual finding—that Schepis
and Canelas ‘‘conducted themselves . . . with obvious
dishonesty’’ during the EJD—was clearly erroneous.
The defendants assert that ‘‘while the trial court cer-
tainly was within its discretion to discredit and disbe-
lieve the defendants’ EJD testimony, it could not use
that disbelief to conclude that the opposite of their
testimony had been established.’’
In so asserting, the defendants cite to cases in which
our courts have stated that a finder of fact may not
make a finding that is the opposite of what is stated in
one’s testimony if that finding is based solely on the
fact finder’s disbelief of that testimony. See, e.g., Essex
Ins. Co. v. William Kramer & Associates, LLC, 331
Conn. 493, 519–20, 205 A.3d 534 (2019) (‘‘the jury was
not free to conclude from [the] rejection [of the testi-
mony] that the opposite of the testimony [was] true’’
in absence of evidentiary basis in record for arriving
at such conclusion); State v. Alfonso, 195 Conn. 624,
634–35, 490 A.2d 75 (1985) (jury could not conclude
that defendant possessed marijuana from his denial of
possessing it ‘‘without . . . evidence supporting . . .
a conclusion’’ that he possessed it); State v. Coleman,
14 Conn. App. 657, 671, 544 A.2d 194 (‘‘the jury is barred
from directly inferring that a defendant was present at
the scene of a crime from its finding that he was lying
when he denied his presence there’’), cert. denied, 208
Conn. 815, 546 A.2d 283 (1988). In light of these cases,
the defendants assert that the court’s underlying factual
finding was clearly erroneous because there was no
basis in the record to support the court’s conclusion
that Schepis and Canelas provided dishonest testimony
during the EJD other than the court’s disbelief of their
testimony. We are not persuaded.18
In order for a court to impose sanctions based on a
party’s failure to comply with the court’s discovery
order, ‘‘the record must establish that the [discovery]
order was in fact violated.’’ Millbrook Owners Assn.,
Inc. v. Hamilton Standard, supra, 257 Conn. 17. Our
determination of whether an order for sanctions satis-
fies ‘‘[t]his requirement poses a question of fact . . . .’’
Id., 17–18. Thus, to determine whether an order for
sanctions satisfies this requirement, we review the
court’s finding to determine whether it is clearly errone-
ous. Id., 18.
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Powell-Ferri v.
Ferri, 326 Conn. 457, 464, 165 A.3d 1124 (2017). In
applying the clearly erroneous standard of review, we
also are mindful that, ‘‘[b]ecause factual findings . . .
are squarely within the trial court’s purview, [they are]
afford[ed] . . . great deference. . . . In short, the
court, as fact finder, may draw whatever inferences
from the evidence or facts established by the evidence it
deems to be reasonable and logical.’’ (Citation omitted;
internal quotation marks omitted.) Keeley v. Ayala, 328
Conn. 393, 419–20, 179 A.3d 1249 (2018).
First, we note that the defendants failed to preserve
this portion of their claim for appellate review. See
Practice Book § 60-5.19 Indeed, the defendants failed to
assert in their objection to the plaintiff’s application for
attorney’s fees that the defendants’ conduct at the EJD
could not form the basis of the court’s award of attor-
ney’s fees and litigation costs to the plaintiff because
such conduct did not violate the court’s order.
Nevertheless, even if we assume that the defendants
properly preserved this portion of their claim for appel-
late review, we conclude that it is meritless. Indeed,
contrary to the defendants’ assertion, there was ample
evidence in the record from which the trial court could
reasonably have inferred that Schepis and Canelas ‘‘con-
ducted themselves . . . with obvious dishonesty’’ dur-
ing the EJD.
The following additional facts are relevant to this
portion of the defendants’ claim. During the EJD,
Schepis and Canelas made representations, the veracity
of which were undermined by exhibits that the plaintiff
attached to its February 12, 2018 motion and that its
counsel attached to his June 14, 2018 affidavits. For
example, during their EJD testimony, both Schepis and
Canelas claimed that they did not have an IRA account.
Postjudgment interrogatory responses from Fidelity
Management Trust Company purported to show, how-
ever, that both Schepis and Canelas maintained IRA
accounts. Moreover, both Schepis and Canelas asserted
that they each had one motor vehicle in their house-
holds and that the vehicles were owned by their wives.
Municipal tax records updated as of June 14, 2018,
purported to show, however, that Schepis and Canelas
were the sole taxpayers listed for several vehicles.
In addition, the plaintiff’s counsel attached exhibits
to his June 14, 2018 affidavit that undermined the verac-
ity of Schepis’ representation that he did not know
which accountant he used to prepare his tax returns.
First, the plaintiff’s counsel submitted the deposition
of Richard Bangs, who stated that the accounting firm
with which he was employed had performed Schepis’
accounting and tax preparation work for at least fifteen
or sixteen years. Second, the plaintiff’s counsel attached
an e-mail exchange between Bangs and Schepis that
occurred two months before the EJD and contained
‘‘Pursuit Partners’’ as the subject heading. In one e-mail,
Schepis sent Bangs the K-1 form for Pursuit Partners,
LLC. Then, in a subsequent e-mail, Schepis asked Bangs,
‘‘we will not owe anything for 2016, correct?’’ Finally,
the plaintiff submitted to the court a letter from Bangs’
accounting firm addressed to Schepis and his wife. The
letter stated that their 2016 Connecticut income tax
return was attached to the letter and that the firm ‘‘pre-
pared the return from the information [Schepis and his
wife] furnished [to the accounting firm] . . . .’’
(Emphasis added.)
In light of these exhibits, the contents of which pur-
portedly contradict the testimony that Schepis and
Canelas provided during the EJD, we conclude that the
principle in our case law relied on by the defendants
that a finding of fact cannot be based solely on the
disbelief of testimony is inapplicable to the present
case. Indeed, there was ample evidence in the record
from which the court could reasonably have inferred
that Schepis and Canelas ‘‘conducted themselves . . .
with obvious dishonesty’’ during the EJD. Accordingly,
we conclude that the court’s finding that they violated
its order was not clearly erroneous.
III
PROPORTIONALITY OF THE SANCTIONS TO THE
VIOLATIONS
The defendants’ final argument in support of their
claim is that the trial court’s order of sanctions was
disproportionate to the defendants’ violations of the
court’s discovery orders that occurred after the Decem-
ber 13, 2017 EJD. In support of this argument, the defen-
dants assert that the three factors used by our Supreme
Court in Yeager v. Alvarez, 302 Conn. 772, 787, 31 A.3d
794 (2011), to determine whether an order of sanctions
is proportionate to a party’s violation of a court’s discov-
ery order weigh against concluding that the court’s July
23, 2018 order of sanctions was proportionate to the
defendants’ failure to comply with the court’s December
13, 2017 discovery order. We are not persuaded.20
Our Supreme Court has stated that ‘‘the sanction
imposed [for violation of a court’s discovery order] must
be proportional to the violation.’’ Millbrook Owners
Assn., Inc. v. Hamilton Standard, supra, 257 Conn.
18. We review the proportionality of a sanction to the
sanctioned party’s violation for an abuse of discre-
tion. Id.
‘‘In reviewing the proportionality of the trial court’s
sanction, we focus our analysis on the [sanctioned par-
ty’s] violation . . . . Our analysis of the [sanctioned
party’s] violation is guided in turn by the factors we
previously have employed when reviewing the reason-
ableness of a trial court’s imposition of sanctions: (1)
the cause of the [sanctioned party’s] failure to [comply
with the court’s discovery order], that is, whether it
[was] due to inability rather than the [wilfulness], bad
faith or fault of the [sanctioned party] . . . (2) the
degree of prejudice suffered by the [nonsanctioned]
party, which in turn may depend on the importance of
the information requested to that party’s case; and (3)
which of the available sanctions would, under the par-
ticular circumstances, be an appropriate response to
the disobedient party’s conduct.’’ (Citations omitted;
internal quotation marks omitted.) Yeager v. Alvarez,
supra, 302 Conn. 787; see also Krahel v. Czoch, 186
Conn. App. 22, 33–34, 198 A.3d 103, cert. denied, 330
Conn. 958, 198 A.3d 584 (2018). Importantly, when
weighing these factors to determine whether the sanc-
tion is proportionate to the violation, ‘‘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.’’ (Internal quotation marks omitted.) Krahel
v. Czoch, supra, 34.
Before assessing the trial court’s order of sanctions
using the factors set forth by our Supreme Court in
Yeager, we first address the defendants’ contention that
this court, in assessing whether the July 23, 2018 order
of sanctions was proportional to the defendants’ prac-
tice of habitually failing to comply with the court’s
discovery orders, must ignore any improper conduct
that they engaged in prior to December 13, 2017. In
asserting that this court must cabin its proportionality
analysis to conduct in which the defendants engaged
between December 13, 2017, and July 23, 2018, the
defendants incorrectly characterize the conduct on
which the court based its July 23, 2018 order of
sanctions.
Indeed, in its order of sanctions, the trial court found
that, after the December 13, 2017 EJD, the defendants
‘‘then . . . engaged in a continuous practice of dis-
obeying the court’s discovery orders.’’ In its articulation,
the court stated that its July 23, 2018 order ‘‘awarded
a fee . . . for the effort of [the] plaintiff’s . . . counsel
to compel compliance with the November 6, [2017] and
December 13, [2017] orders as discussed at the EJDs
. . . .’’ (Emphasis added.) Importantly, the court also
stated in its articulation that ‘‘[f]urther compliance with
the document production ordered by the November 6,
2017 and December 13, 2017 orders required extensive
effort on the part of the plaintiff and the court, with
mandated meet and confer sessions and status confer-
ences.’’ Thus, the court acknowledged in its findings
that the defendants’ failure to comply with the court’s
orders before December 13, 2017, required the plaintiff
to expend resources after December 13, 2017, to
attempt to compel the defendants’ compliance with
these orders. Accordingly, the defendants’ failure to
comply with the court’s discovery order before Decem-
ber 13, 2017, is relevant in assessing whether the court’s
July 23, 2018 order of sanctions was proportional to
the defendants’ practice of habitually failing to comply
with the court’s discovery orders.
Having resolved this underlying issue in the defen-
dants’ argument, we now assess whether the court’s
sanctions were proportionate to the defendants’ failure
to comply with the court’s discovery orders in light
of the three Yeager factors. Mindful of the significant
discretion that the trial court is afforded in crafting an
order of sanctions for a party’s violation of its discovery
order, we conclude, for the reasons that follow, that
the three Yeager factors weigh in favor of concluding
that the court’s July 23, 2018 order of sanctions was
proportionate to the defendants’ violations of the
court’s discovery orders.
A
With respect to the first factor, the defendants assert
that their ‘‘discovery efforts constituted a good faith
effort to respond to and confront [the] [p]laintiff’s over-
broad discovery efforts, rather than a wilful disregard
of the court’s orders . . . .’’ In support of this assertion,
the defendants point to their March 5, 2018 motion for
a protective order and contend that they were
attempting to prevent certain information from being
revealed that was contained in the documents that the
court ordered the defendants to disclose in its Decem-
ber 13, 2017 order. This assertion is unpersuasive for
two reasons.21
First, at the December 13, 2017 hearing, the court
ordered the defendants to file, no later than January
15, 2018, any motion for a protective order seeking to
redact information from the documents that they were
ordered to produce. The defendants, however, did not
move for a protective order requesting redactions until
March 5, 2018. Thus, the fact that the defendants moved
for a protective order nearly two months after the
court’s deadline for filing such a motion contradicts
their assertion that they made a good faith effort to
comply with the court’s December 13, 2017 order.
Second, although the court, on April 4, 2018, denied
in part the defendants’ March 5, 2018 motion for a pro-
tective order, it did permit some redactions to the docu-
ments that the defendants were ordered to provide.22
Despite the court’s in camera review of the documents,
and its allowance for some redactions to protect certain
information, the defendants still failed to provide all
of the required documents, resulting in the court’s deci-
sion to schedule a hearing on sanctions on June 6, 2018.
The defendants’ failure to provide the plaintiff with the
documents that they were required to disclose, even
after the court, per their request, reviewed these docu-
ments and permitted some redactions, undercuts their
assertion that they made a good faith effort to comply
with the court’s December 13, 2017 order.
Contrary to the defendants’ characterization of their
effort to comply with the court’s discovery orders, the
defendants, in fact, habitually failed to comply with
these orders. In its order of sanctions, the trial court
found that the defendants’ practice of disobeying its
discovery orders was ‘‘continuous . . . .’’ Indeed, the
defendants admit that, despite being ordered to produce
certain tax returns in the court’s December 13, 2017
order and in three prior orders dating back to April
12, 2017, the defendants, as of June 14, 2018, still had
not disclosed all of the tax returns that the court had
required them to make available.
Moreover, despite the court’s April 4, 2018 order com-
pelling the defendants to provide the plaintiff with cer-
tain supplemental disclosures by April 20, 2018, the
plaintiff’s counsel averred on June 14, 2018, that the
defendants had failed to provide any documents to sat-
isfy this order. The defendants do not contest this aver-
ment on appeal, nor did they dispute it in their objection
to the plaintiff’s application for attorney’s fees. Having
considered the defendants’ continuous practice of fail-
ing to comply with the court’s discovery orders, we
conclude that the first factor weighs in favor of conclud-
ing that the court’s July 23, 2018 order of sanctions
was proportionate to the defendants’ violations of the
court’s discovery orders.
B
Regarding the second factor, the defendants assert
that the plaintiff suffered minimal harm—if any—from
their failure to comply with the court’s discovery orders.
In support of this assertion, the defendants point out
that, by June, 2018, they ‘‘had complied in large part’’
with the court’s December 13, 2017 order requiring them
to provide the plaintiff with certain documents and to
respond to the court’s November 6, 2017 order. We are
not persuaded.
Before addressing the harm that the plaintiff suffered
as a result of the defendants’ conduct, we first address
the defendants’ assertion that they substantially com-
plied with the court’s discovery orders. Indeed, in stat-
ing that they ‘‘complied in large part with the [court’s
discovery] orders,’’ the defendants grossly misstate the
extent to which they, in fact, complied with these
orders. Although the defendants may have provided the
plaintiff with most of the documents that the court’s
December 13, 2017 order required them to disclose,
the defendants completely ignore—and, indeed, do not
contest—that they failed to comply fully with the court’s
April 4, 2018 order, which required the defendants to
provide the plaintiff with certain supplemental disclo-
sures by April 20, 2018. Thus, contrary to their assertion,
the defendants did not substantially comply with the
court’s discovery orders.
Having addressed the extent to which the defendants
complied with the court’s discovery orders, we now
assess the harm that the plaintiff suffered as a result
of the defendants’ conduct. Relevant to this assessment
is the harm that the plaintiff suffered as a result of the
defendants’ failure to comply with the court’s discovery
orders and, in the face of these violations, the cost that
the plaintiff incurred in order to attempt to obtain the
defendants’ compliance with these orders. With respect
to the harm that the plaintiff suffered as a result of the
defendants’ failure to provide it with certain documents
that the court had ordered them to disclose, the plain-
tiff’s counsel averred in his June 14, 2018 affidavit that
these documents were pertinent to the plaintiff’s ability
to identify assets that could be used to satisfy the judg-
ment, $947,731 of which had not been secured by a
prejudgment remedy. The defendants do not contest
this averment in their appellate brief. Thus, the defen-
dants’ failure to produce certain documents that the
court had ordered them to disclose deprived the plain-
tiff of information that it needed to collect on the
judgment.
The defendants’ failure to comply with the court’s
discovery orders made it necessary for the plaintiff to
move for the court to compel the defendants to comply
with these orders so that the plaintiff could obtain the
documents that it needed to identify assets that could
be used to satisfy the judgment, $947,731 of which had
not been secured by a prejudgment remedy. Indeed, in
its order of sanctions, the court found that the defen-
dants’ noncompliance with the court’s discovery orders
made it necessary for the plaintiff’s counsel to prepare
the plaintiff’s January 2 and February 12, 2018 motions,
in which the plaintiff asked the court to order that the
defendants comply with the court’s discovery orders.
In addition, the court found that plaintiff’s counsel’s
attendance at a June 6, 2018 status conference was
‘‘necessitated by [the] defendants’ noncompliance with
[the court’s discovery] orders . . . .’’
To attempt to compel the defendants’ compliance, the
plaintiff accumulated attorney’s fees and other litigation
costs. Thus, as a result of the defendants’ failure to
comply with the court’s discovery orders, the plaintiff
expended financial resources so that it could obtain the
documents to which it was entitled and that it needed
to identify assets that could be used to satisfy the judg-
ment, $947,731 of which had not been secured by a
prejudgment remedy. Having weighed the harm that
the plaintiff suffered due to the defendants’ failure to
produce certain documents that they were ordered to
disclose and the financial burden that the plaintiff shoul-
dered in order to compel the defendants’ compliance,
we conclude that the second Yeager factor weighs in
favor of concluding that the court’s July 23, 2018 order
of sanctions was proportionate to the defendants’ fail-
ure to comply with the court’s discovery orders.
C
Finally, with respect to the third factor—whether the
sanction imposed is appropriate in the context of the
case—’’we bear in mind that [t]he primary purpose of
a sanction for violation of a discovery order is to ensure
that the [nonsanctioned party’s] rights are protected,
not to exact punishment on the [sanctioned party] for its
allegedly improper conduct.’’ (Internal quotation marks
omitted.) Yeager v. Alvarez, supra, 302 Conn. 790. In
light of this principle and the financial burden that the
plaintiff suffered in order to attempt to compel the
defendants’ compliance with the court’s discovery
orders, we conclude that the court’s order of sanctions
was appropriate.
Indeed, the 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 and that the plaintiff needed to
obtain a remedy to which it was entitled. In the absence
of the court’s order of sanctions, the plaintiff unfairly
would have borne this cost. Thus, the third Yeager fac-
tor weighs in favor of concluding that the court’s July
23, 2018 order of sanctions was proportional to the
defendants’ violations of the court’s discovery orders.
IV
CONCLUSION
Having reviewed the court’s order of sanctions and
the record, we conclude that the court’s July 23, 2018
order meets the three requirements for such orders
described by our Supreme Court. See Ridgaway v.
Mount Vernon Fire Ins. Co., supra, 328 Conn. 71, citing
Millbrook Owners Assn., Inc. v. Hamilton Standard,
supra, 257 Conn. 17–18. Thus, we conclude that the
court’s order of sanctions did not constitute an abuse
of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘Schepis and Canelas are individuals who reside in Greenwich . . . and
who, together, formed, operated, and controlled all of the other defendants.
At one point in time, the defendants cumulatively managed assets in excess
of $600 million.’’ Alpha Beta Capital Partners, L.P. v. Pursuit Investment
Management, LLC, 193 Conn. App. 381, 390–91, 219 A.3d 801 (2019), cert.
denied, 334 Conn. 911, 221 A.3d 446 (2020) (Alpha Beta I).
2
In its appellate brief, the plaintiff claims that the defendants’ appeal
should be dismissed for lack of subject matter jurisdiction. In making this
argument, the plaintiff asserted that the trial court’s order of sanctions was
an interlocutory order that did not constitute a final judgment. We disagree.
Generally, discovery orders, which include orders of sanctions based on
a party’s failure to comply with discovery, are not appealable final judgments.
See, e.g., Incardona v. Roer, 309 Conn. 754, 760, 73 A.3d 686 (2013) (‘‘prior
to final judgment, we have jurisdiction to hear a challenge to an interlocutory
order sanctioning a party for failure to comply with a discovery order only
upon a finding of contempt for failure to comply with the order’’). This
appeal, however, was filed as an amendment to an existing appeal in accor-
dance with Practice Book § 61-9. Subsequently, this court severed the claim
in the present amended appeal from those brought and decided by this
court in Alpha Beta I.
If an appeal from a final judgment already exists over which this court
properly has jurisdiction, any subsequent rulings by the trial court in the
underlying matter typically are reviewable by way of an amended appeal;
see Practice Book § 61-9; and need not be final judgments themselves. See
RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 687, 899
A.2d 586 (2006) (‘‘[a]s a general rule, jurisdiction once acquired is not lost
or divested by subsequent events’’ (internal quotation marks omitted)); see
also Friedlander v. Friedlander, 191 Conn. 81, 84, 463 A.2d 587 (1983);
Young v. Polish Loan & Industrial Corp., 126 Conn. 714, 715, 11 A.2d 395
(1940). Therefore, because this court had subject matter jurisdiction over
the defendants’ claims concerning the merits of the underlying judgment of
the trial court, it follows that this court maintains jurisdiction over the
defendants’ claim in the present amended appeal, even after severing this
claim from those brought and decided by this court in Alpha Beta I. The
plaintiff acknowledged the soundness of this reasoning at oral argument,
indicating that it no longer sought to pursue its jurisdictional argument on
appeal. In sum, we conclude that this court has subject matter jurisdiction
to address the defendants’ claims.
3
In the underlying dispute with the plaintiff, Pursuit Partners, LLC (Pursuit
Partners) was also a named defendant. See Alpha Beta Capital Partners,
L.P. v. Pursuit Investment Management, LLC, 193 Conn. App. 381, 389, 219
A.3d 801 (2019) (Alpha Beta I), cert. denied, 334 Conn. 911, 221 A.3d 446
(2020). As stated by this court, however, ‘‘Pursuit Partners did not appeal
from the judgment of the trial court and [was] not involved in [Alpha Beta
I].’’ Id., 381 n.1. Like in Alpha Beta I, Pursuit Partners did not participate
in this appeal, and our references to the defendants do not include it.
4
General Statutes § 52-397 provides in relevant part: ‘‘Any judgment
debtor, an execution against whom has been returned unsatisfied in whole
or in part or who has failed to respond within thirty days to any postjudgment
interrogatories served pursuant to section 52-351b, may be examined on oath
. . . concerning his property and means of paying such judgment . . . .’’
5
Specifically, the court stated in relevant part: ‘‘[I]t is the court’s intent
that the defendant[s] work on [the] responses immediately. And the court
states that, so that there is no claim that come September [29, 2017], they
only had a week to respond. So [the defendants] are to begin preparing
their responses now, but they don’t have to actually disclose the information
to the [plaintiff] . . . until October [6, 2017]. But [the defendants] should
not come into the court on October [6, 2017], and say [that] they need more
time, because they only had a week to prepare the responses. They have
over a month to prepare the responses, about seven or eight weeks.’’ (Empha-
sis added.)
6
In a March 8, 2018 order, the court stated that, ‘‘[w]ithout objection, the
court will grant the request for attorney’s fees, as directed by [the court’s
November 6, 2017] order . . . in the amount of [$5120], to be paid by April
4, 2018.’’
7
The court noted the lack of production on the record at the EJD, indicat-
ing as follows:
‘‘The Court: What I understand [the plaintiff’s counsel] is saying is that
all that has been produced are the redacted income tax returns. Is that right?
‘‘[The Defendants’ Counsel]: That is, Your Honor.
‘‘[The Plaintiff’s Counsel]: There are K-1s, so we do have some K-1s. I
don’t want to mislead you.’’ (Emphasis added.)
8
The following exchange between the plaintiff’s counsel and Schepis that
occurred during the EJD exemplifies the absurdity of Schepis’ claim that he
did not know where he would deposit large sums of money that he received:
‘‘[The Plaintiff’s Counsel]: Well, I mean . . . is it fair to say that you
wouldn’t be walking around with hundreds of thousands of dollars of cash
in your pocket, right?
‘‘[Schepis]: Possibly not.
‘‘[The Plaintiff’s Counsel]: Well, if you weren’t going to walk around with
the cash in your pocket, where did it go?
‘‘[Schepis]: I don’t remember.
‘‘[The Plaintiff’s Counsel]: Do you have any records anywhere that would
refresh your recollection as to where moneys went?
‘‘[Schepis]: No.’’
9
After the plaintiff’s counsel examined Schepis, the court reprimanded
him for his evasive responses during the EJD in the following exchange:
‘‘The Court: I think that would help us focus the inquiry a little bit here.
So let’s—so, Mr. Schepis, I assume your lawyer has explained to you what’s
going on here and what the rules are and why you’re sitting here under
oath and people are asking these questions that are uncomfortable questions
and they are.
‘‘But it’s a situation where, you know, there are these judgments and
these orders and the laws of Connecticut allow for this. I mean, they’re not
doing anything they’re not permitted to do. And it is—and you are required
to answer questions.
‘‘[Schepis]: I understand.
‘‘The Court: And if it appears that you’re not answering truthfully, you
know, just saying I don’t recall doesn’t end it because that may not seem
credible.
‘‘And you know you don’t want to [be] found in contempt. I mean, I just
want to say—and I’m not saying that’s what’s going to happen today. But
General Statutes § 52-399 is called commitment of debtor. Commitment
means you’re going into a cell until you purge yourself of the contempt.
Now, please, life’s too short for that kind of thing.
‘‘So it is somehow important to get through this and you know—let me
put it this way, if you can’t remember, you better find out, okay. That’s what
I’m saying. It really—you’re under a big obligation here and there is an
obligation to find out. Okay.’’
10
On January 31, 2018, the plaintiff moved to continue the EJD until
sometime after February 6, 2018, to which the defendants consented. It is
unclear from the record if the EJD ever recommenced before the court
entered its order of sanctions on July 23, 2018.
11
Indeed, the order, in relevant part, provided: ‘‘The court has reviewed the
affidavit of [the] plaintiff’s counsel . . . regarding a discovery conference
on March 20, 2018, with [the] [defendants’] counsel . . . as directed by
the court. The affidavit describes several undertakings by [the defendants’
counsel] on behalf of his clients to comply with some, but not all, of [the]
plaintiff’s discovery requests. The court directs [the defendants’ counsel]
to fulfill these undertakings on or before April 20, 2018, and requests [the
plaintiff’s counsel] to file an affidavit within seven days thereafter advising
the court of any remaining discovery disputes requiring court intervention.’’
12
On June 19, 2018, the defendants requested an extension until July 9,
2018 to respond to the June 14, 2018 affidavits of the plaintiff’s counsel.
There is no indication in the record, however, that the court ever addressed
this motion.
13
As stated previously, the court, in its November 6, 2017 order, stated
that it would sanction the defendants and would award the plaintiff the
amount that it cost the plaintiff to prepare its October 20, 2017 motion. The
court ultimately imposed this sanction by awarding the plaintiff attorney’s
fees in a March 8, 2018 order. In this order, the court stated that it was
awarding these attorney’s fees ‘‘[w]ithout objection . . . .’’ Moreover, the
defendants do not challenge this order of sanctions in this appeal.
14
Practice Book § 13-14 provides in relevant part: ‘‘(a) If any party has
failed to answer interrogatories or to answer them fairly, or has intentionally
answered them falsely or in a manner calculated to mislead, or has failed
to respond to requests for production or for disclosure of the existence and
contents of an insurance policy or the limits thereof, or has failed to submit
to a physical or mental examination, or has failed to comply with a discovery
order made pursuant to Section 13-13, or has failed to comply with the
provisions of Section 13-15, or has failed to appear and testify at a deposition
duly noticed pursuant to this chapter, or has failed otherwise substantially
to comply with any other discovery order made pursuant to Sections 13-6
through 13-11, the judicial authority may, on motion, make such order as
the ends of justice require.
‘‘(b) Such orders may include the following . . .
‘‘(2) The award to the discovering party of the costs of the motion, includ-
ing a reasonable attorney’s fee . . . .
***
‘‘(c) The failure to comply as described in this section may not be excused
on the ground that the discovery is objectionable unless written objection
as authorized by Sections 13-6 through 13-11 has been filed. . . .’’
15
On appeal, the defendants argue only that the court’s order compelling
Schepis and Canelas to testify at the EJD was not reasonably clear. In doing
so, the defendants do not claim that any of the court’s orders compelling
them to provide the plaintiff with certain documents were unclear. Thus, we
do not address whether these orders were reasonably clear in this opinion.
16
General Statutes § 52-397 provides in relevant part: ‘‘Any judgment
debtor, an execution against whom has been returned unsatisfied in whole
or in part or who has failed to respond within thirty days to any postjudgment
interrogatories served pursuant to section 52-351b, may be examined on
oath, in the court location where the judgment was rendered, concerning
his property and means of paying such judgment, before any judge of the
Superior Court or before a committee appointed by such judge. . . .’’
(Emphasis added.)
17
Indeed, the oath administered to witnesses is as follows: ‘‘You solemnly
swear or solemnly and sincerely affirm, as the case may be, that the evidence
you shall give concerning this case shall be the truth, the whole truth and
nothing but the truth; so help you God or upon penalty of perjury.’’ (Empha-
sis added.) General Statutes § 1-25.
18
On appeal, the defendants do not contest the court’s other underlying
factual finding—that, after the December 13, 2017 EJD, the defendants ‘‘then
. . . engaged in a continuous practice of disobeying the court’s discovery
orders.’’ Moreover, the defendants concede that, in June, 2018, when the
court ordered that a hearing on sanctions be held, the defendants had not
provided all the documents to the plaintiff that the court previously had
ordered that they make available. Because the defendants do not contest
the court’s finding that they continually failed to obey its orders to provide
the plaintiff with certain documents, we do not address it.
19
Practice Book § 60-5 provides in relevant part: ‘‘The court shall not be
bound to consider a claim unless it was distinctly raised at the trial or arose
subsequent to the trial. The court may in the interests of justice notice plain
error not brought to the attention of the trial court. . . .’’
20
On appeal, the defendants do not address the award of attorney’s fees
for the 3.7 hours the plaintiff’s counsel spent attending and taking the
December 13, 2017 EJD in their analysis concerning the proportionality of
the court’s order of sanctions to their violations of the court’s discovery
orders. In assessing the proportionality of the sanctions imposed by the court
to the defendants’ violations, we note, however, that all of the violations that
the court found had occurred are relevant. Thus, we reject the defendants’
attempt to compartmentalize the court’s order of sanctions into individ-
ual parts.
21
In addition to the defendants’ March 5, 2018 motion for a protective
order, there are several other motions that the defendants reference in
their appellate brief and in their objection to the plaintiff’s application for
attorney’s fees that they assert support a conclusion that they were ‘‘litigating
bona fide discovery disputes’’ in response to the court’s December 13, 2017
order. (Emphasis omitted.) These motions, all of which the court denied,
include: two motions to quash a subpoena; a May 16, 2018 motion for a
protective order; an April 24, 2018 motion to reconsider the court’s April 4,
2018 order, in which it granted the plaintiff’s motion to permit the plaintiff
to ‘‘share and disclose all postjudgment discovery’’ with Reed Smith; and
an April 24, 2018 motion to reargue, in which the defendants asked the
court to reconsider its decision to deny in part their March 5, 2018 motion
for a protective order.
These motions, however, offer no support to the defendants’ assertion that
they were engaged in ‘‘litigating bona fide discovery disputes’’ in response
to the court’s December 13, 2017 order. (Emphasis omitted.) Indeed, the
motions to quash a subpoena, the April 24, 2018 motion to reconsider con-
cerning postjudgment discovery being shared with Reed Smith, and the May
16, 2018 motion for a protective order, unlike the March 5, 2018 motion for
a protective order, do not challenge the obligation of Schepis and Canelas
to produce the three categories of documents that the court described in
its December 13, 2017 order. Moreover, the April 24, 2018 motion to reargue
merely asked the court to reconsider its untimely March 5, 2018 motion for
a protective order. Thus, we are not persuaded by the defendants’ contention
that these motions demonstrate that they were, in good faith, challenging
the court’s December 13, 2017 order.
22
On April 24, 2018, the defendants moved for the court to reconsider its
decision on the defendants’ motion for a protective order. The court denied
this motion on May 17, 2018.