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KIMBERLY KARANDA v. SHELBY BRADFORD
(AC 43749)
Elgo, Suarez and Vertefeuille, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries that she alleg-
edly sustained during a motor vehicle accident as a result of the defen-
dant’s negligence. Thereafter, the trial court granted the defendant’s
motion for an order of compliance and ordered the plaintiff to comply
with the defendant’s outstanding discovery requests. Subsequently, the
defendant filed motions for an order compelling the plaintiff’s deposi-
tion, which the court granted, and for a judgment of nonsuit on the basis
of the plaintiff’s continued failure to comply with discovery requests.
The court ordered the plaintiff to comply fully with the defendant’s
discovery requests or face the imposition of sanctions. Thereafter, the
defendant filed two motions for a judgment of nonsuit on the bases
that the plaintiff had failed to comply with a substantial portion of the
discovery requests and that the plaintiff had not attended her deposition
as ordered by the court. Following argument, the court granted the
defendant’s motions and rendered judgment dismissing the plaintiff’s
action on July 1, 2019. The plaintiff filed a motion to open the judgment
on October 28, 2019, but did not attach an affidavit as required by statute
(§ 52-212 (c)), and, although the plaintiff filed an affidavit on November
7, 2019, that date fell outside of the four month range permitted by § 52-
212. The court denied the plaintiff’s motion. On appeal, held that the
trial court did not abuse its discretion in denying the plaintiff’s motion
to open the judgment of nonsuit: the plaintiff filed her motion without
the affidavit required by § 52-212 (c), and the affidavit that she subse-
quently filed was untimely; moreover, the court properly determined
that the plaintiff’s affidavit did not meet the substantive requirements
of § 52-212 (a), as the plaintiff merely alleged that she had maintained
a good cause of action but did not show that a good defense existed
at the time the judgment of dismissal was rendered.
Argued October 5, 2021—officially released February 15, 2022
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff as a result of the defendant’s
alleged negligence, brought to the Superior Court in
the judicial district of Hartford and transferred to the
judicial district of Tolland, where the court, Farley,
J., granted the defendant’s motions for a judgment of
nonsuit and rendered judgment dismissing the action;
thereafter, the court denied the plaintiff’s motion to
open the judgment, and the plaintiff appealed to this
court. Affirmed.
Erica A. Barber, for the appellant (plaintiff).
Kelly B. Gaertner, with whom, on the brief, was Car-
mine Annunziata, for the appellee (defendant).
Opinion
ELGO, J. The plaintiff, Kimberly Karanda, appeals
from the judgment of the trial court denying her motion
to open a judgment of nonsuit due to her noncompliance
with a discovery order. The plaintiff claims that the
court did not properly evaluate her motion pursuant to
General Statutes § 52-212a and Practice Book § 17-43.
We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On March 14, 2016, the plaintiff
and the defendant, Shelby Bradford, were involved in
a motor vehicle collision on an on-ramp to Route 2 in
Glastonbury. On March 22, 2018, the plaintiff brought an
action alleging the defendant’s negligence. On August
6, 2018, the defendant filed an answer and a claim for
a jury trial. On August 15, 2018, the plaintiff filed a
certificate of closed pleadings.
On February 13, 2019, the defendant filed a motion
for an order of compliance pursuant to Practice Book
§ 13-14. The defendant alleged that the plaintiff had
failed to respond to several interrogatories and requests
for production and outlined in her motion a comprehen-
sive list of materials that the plaintiff had not yet pro-
vided. On February 25, 2019, the court ordered the plain-
tiff to comply with the defendant’s outstanding
discovery requests ‘‘by March 22, 2019.’’
On March 28, 2019, the defendant filed two motions.
The defendant first moved for the court to compel the
plaintiff’s deposition to take place on June 7, 2019,
relying on the fact that trial was scheduled to begin on
October 1, 2019, and the plaintiff’s deposition already
had been postponed twice.1 The defendant also moved
for a judgment of nonsuit against the plaintiff, pursuant
to Practice Book § 13-14, on the ground that the plaintiff
failed to comply with numerous discovery requests2 in
violation of the court’s February 25, 2019 order. On
April 14, 2019, the court granted the defendant’s motion
to compel the plaintiff’s deposition on the requested
date of June 7, 2019. Shortly thereafter, on April 29,
2019, the court ordered the plaintiff to fully comply
with the defendant’s discovery requests by May 17, 2019.
The court noted that a ‘‘[f]ailure to fully comply’’ with
the order ‘‘may result in the imposition of sanctions.’’
The defendant subsequently filed two additional
motions for judgment of nonsuit. The first such motion,
filed on May 23, 2019, relied in large part on the same
grounds as the defendant’s prior motion for nonsuit
with respect to the plaintiff’s failure to comply with the
defendant’s discovery requests. The defendant added
that, although the plaintiff had filed two notices of com-
pliance between that date and the court’s April 29, 2019
order, the plaintiff still had not complied with a substan-
tial portion of the defendant’s requests. On June 17,
2019, the court scheduled argument on the defendant’s
May 23, 2019 motion for July 1, 2019. The defendant
filed another motion for a judgment of nonsuit on June
19, 2019, on the ground that the plaintiff did not attend
her deposition as ordered by the court on April 14, 2019.
That motion was originally designated to be taken on
the papers, but the court and the parties agreed that it
would be considered together with the defendant’s May
23, 2019 motion for nonsuit.
The court heard argument from the parties on those
motions for nonsuit on July 1, 2019. The plaintiff initially
argued that she continued to seek the requested
records, and that nonresponsiveness on the part of her
health care provider was to blame for the delay. In a
colloquy with the plaintiff’s counsel, the court empha-
sized that it ‘‘had entered an order not that you work
on [complying with the discovery requests], but that
you respond by a certain date and you didn’t do that.
. . . I said you have until next date to get this done
and you didn’t get it done.’’ When asked by the court
why the plaintiff did not attend her June 7, 2019 deposi-
tion, the plaintiff’s counsel conceded that he could not
‘‘really give an explanation for that.’’ Citing the plain-
tiff’s failure to appear at her deposition as ordered by
the court and her failure to fully comply with the defen-
dant’s discovery requests, the court granted the defen-
dant’s motions for a judgment of nonsuit and dismissed
the action.
On October 28, 2019, the plaintiff filed a motion to
open the judgment. The plaintiff alleged, inter alia, that
she was ‘‘ready, willing, and able to be deposed within
the next [thirty] days’’ and that the materials sought by
the outstanding discovery requests did not exist. In her
November 4, 2019 objection to the plaintiff’s motion,
the defendant first argued that, because the plaintiff
did not file her motion in compliance with General
Statutes § 52-212, with an attached affidavit, within four
months from the date that the judgment was rendered,
the court did not have jurisdiction to consider the plain-
tiff’s motion. The defendant further argued that, even
if the court had jurisdiction, the plaintiff’s motion did
not demonstrate (1) the existence of a good cause of
action by the time the judgment was rendered, and (2)
that any mistake, accident, or other reasonable cause
prevented her from complying with the court’s orders.
On November 12, 2019, the court denied the plaintiff’s
motion to open. The plaintiff filed a motion to recon-
sider, which the court denied, and this appeal followed.
Following the commencement of this appeal, the
plaintiff filed a motion for rectification with the trial
court, pursuant to Practice Book §§ 60-2, 61-10, 66-2,
66-3, and 66-5, ‘‘to determine the basis for the trial
court’s [November 12, 2019] [o]rder denying [the plain-
tiff’s] motion to open the judgment of nonsuit.’’ In grant-
ing the plaintiff’s motion, the court explained that,
‘‘[a]lthough captioned and presented as a motion for
rectification, the court construes the plaintiff’s June 26,
2020 motion as a motion for articulation seeking the
basis for the court’s November 12, 2019 denial of the
plaintiff’s motion to open [the] judgment.’’ The court
then articulated the rationale behind its denial of the
motion to open the judgment: ‘‘Th[is] court denied the
plaintiff’s motion to open [the] judgment for several
reasons. The motion was not verified by oath, nor was
it accompanied by an affidavit. Although the plaintiff
subsequently filed an affidavit, because she delayed
filing her motion until the end of the four month statu-
tory period within which the motion had to be filed,
the affidavit was filed after the statutory period expired.
The motion to open [the] judgment was denied because
it did not comply with the statutory requirements. . . .
‘‘Even if the affidavit had been timely filed, the con-
tents of the affidavit failed to adequately establish a
basis upon which the judgment should be reopened.
[Section 52-212] requires the verified motion or, in this
case, the affidavit ‘[show] reasonable cause, or that a
good cause of action or defense in whole or in part
existed at the time of the rendition of the judgment
or the passage of the decree, and that the plaintiff or
defendant was prevented by mistake, accident or other
reasonable cause from prosecuting the action or making
the defense.’ . . . Instead of ‘showing’ that the plaintiff
had a good cause of action at the time judgment was
entered, the affidavit baldly asserts that ‘the plaintiff
has maintained a good cause of action.’ This is inade-
quate. . . .
‘‘The affidavit also did not establish that the plaintiff’s
failure to obey the court’s orders that she comply with
the defendant’s discovery requests and appear at a
deposition were due to ‘mistake, accident or other rea-
sonable cause.’ The explanation advanced in her coun-
sel’s affidavit, that she ultimately determined that the
records sought by the defendant did not exist, is belied
by the fact that additional records were actually pro-
duced after judgment entered. Moreover, the fact that
certain records did not exist should have been part of
a response provided pursuant to the two prior orders
of compliance issued by the court. The affidavit does
not explain what, if any, efforts had been made to com-
ply with the court’s orders prior to the entry of judg-
ment. The documents submitted with her November
25, 2019 motion to reconsider reflect only that a sub-
poena was served in an effort to obtain such records
in October, 2019, three months after judgment entered.
The affidavit also does not establish that the plaintiff
failed to appear for her deposition, pursuant to the
court’s order, due to ‘mistake, accident or other reason-
able cause.’ Counsel’s affidavit states only that the
‘deposition did not happen due to an error in notice
between the undersigned firm and the plaintiff.’ This
reflects mere negligence on the part of counsel or the
plaintiff and is not sufficient to establish a basis to
[open] the judgment.’’ (Citations omitted.)
On appeal, the plaintiff claims that the court erred
as a matter of law in denying her motion to open the
judgment. She claims that the court erred in applying
the standard for opening judgments upon default or
nonsuit set forth in § 52-212 as opposed to the standard
for opening civil judgments as set forth in § 52-212a.3
We note that the plaintiff’s motion before the court is
captioned as a motion to open judgment of nonsuit,
and, beyond referencing Practice Book § 17-4, she does
not refer to any legal authority. The defendant, however,
in her response to the plaintiff’s motion to open, did
object to the plaintiff’s motion to open on the grounds
that it did not comply with § 52-212. The defendant
contends that the court analyzed the plaintiff’s motion
under the applicable statute and did not abuse its discre-
tion in denying her motion. We agree with the defen-
dant.
‘‘Whether to grant a motion to open rests in the discre-
tion of the trial court. . . . In reviewing claims that the
trial court abused its discretion, great weight is given
to the trial court’s decision and every reasonable pre-
sumption is given in favor of its correctness. . . . We
will reverse the trial court’s ruling only if it could not
reasonably conclude as it did.’’ (Citation omitted; inter-
nal quotation marks omitted.) Pachaug Marina &
Campground Assn., Inc. v. Pease, 149 Conn. App. 489,
493, 89 A.3d 423 (2014). Additionally, ‘‘[t]o the extent
that we need to interpret a statute, our review is ple-
nary.’’ Disturco v. Gates in New Canaan, LLC, 204
Conn. App. 526, 532, 253 A.3d 1033 (2021); see also
Trumbull v. Palmer, 161 Conn. App. 594, 598–99, 129
A.3d 133 (2015) (‘‘Whether a court has authority to
grant a motion to open requires an interpretation of
the relevant statutes. Statutory construction, in turn,
presents a question of law over which our review is
plenary.’’ (Internal quotation marks omitted.)), cert.
denied, 320 Conn. 923, 133 A.3d 458 (2016).
We first consider whether the court lacked statutory
authority to consider the plaintiff’s motion to open. This
inquiry is guided by the requirements set forth in § 52-
212, as well as Practice Book § 17-43. See Opoku v.
Grant, 63 Conn. App. 686, 690–91, 778 A.2d 981 (2001).
‘‘[Section] 52-212 (a) provides: [a]ny judgment rendered
or decree passed upon a default or nonsuit in the Supe-
rior Court may be set aside, within four months follow-
ing the date on which it was rendered or passed, and
the case reinstated on the docket, on such terms in
respect to costs as the court deems reasonable, upon
the complaint or written motion of any party or person
prejudiced thereby, showing reasonable cause, or that
a good cause of action or defense in whole or in part
existed at the time of the rendition of the judgment
or the passage of the decree, and that the plaintiff or
defendant was prevented by mistake, accident or other
reasonable cause from prosecuting the action or making
the defense. . . . Subsection [(c)] of § 52-212 addition-
ally requires that [t]he complaint or written motion shall
be verified by the oath of the complainant or his attor-
ney . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) Trumbull v. Palmer, supra, 161 Conn.
App. 599. Practice Book § 17-43 contains similar
requirements.4
In Opoku v. Grant, supra, 63 Conn. App. 686, this
court addressed a similar challenge to a trial court’s
denial of a plaintiff’s motion to open a judgment. Id.,
687. Following the plaintiff’s failure to follow the court’s
order to comply with the defendant’s discovery
requests, the defendant filed a motion for a judgment
of nonsuit, which the court granted on March 8, 1999.
Id., 688. The plaintiff filed a motion to open the judg-
ment of nonsuit on June 2, 1999, to which the defendant
objected, in part, due to the plaintiff’s failure to file the
required affidavit. Id., 688–89. On June 22, 1999, the
court denied the motion to open and sustained the
defendant’s objection. Id., 689. The plaintiff did not file
an affidavit until October, 1999. Id.
In affirming the trial court’s denial of the plaintiff’s
motion to open, this court noted that ‘‘[t]he plaintiff
did not meet the statutory requirements or those of the
rules of practice, and there is no evidence of waiver by
the defendant. The court rendered a judgment of non-
suit on March 8, 1999. The plaintiff filed his motion to
open and set aside the judgment on June 2, 1999. On
June 7, 1999, the defendant objected on several grounds,
including the plaintiff’s failure to file the required affida-
vit. Although the plaintiff thus received notice that the
motion was procedurally flawed, he failed, even then,
to file a timely affidavit. On June 22, 1999, the court
denied the motion and sustained the defendant’s objec-
tion. The plaintiff did not file an affidavit until October,
1999. Accordingly, the court properly denied the plain-
tiff’s motion to open for lack of statutory authority to
grant relief.’’ Id., 691–92.
In our view, this court’s holding in Opoku compels
a similar result in the present case, as the plaintiff filed
her motion without the affidavit required by § 52-212
(c). Although the plaintiff belatedly filed an affidavit on
November 7, 2019, that date fell outside the four month
range permitted by § 52-212. The statutory language
is clear that a motion to open and the accompanying
affidavit must be filed within four months of the judg-
ment of nonsuit. Because the record before us unambig-
uously reflects that the plaintiff failed to timely file her
affidavit, we cannot conclude that the court abused its
discretion in denying her motion to open the judgment.
Additionally, even if the plaintiff had timely filed her
affidavit, the court properly concluded that the affidavit
did not satisfy the substantive requirements of § 52-212
(a). ‘‘To open a judgment pursuant to Practice Book
§ 17-43 (a) and . . . § 52-212 (a), the movant must
make a two part showing that (1) a good defense existed
at the time an adverse judgment was rendered; and (2)
the defense was not at that time raised by reason of
mistake, accident or other reasonable cause. . . . The
party moving to open a [judgment of nonsuit] must not
only allege, but also make a showing sufficient to satisfy
the two-pronged test [governing the opening of judg-
ments of nonsuit]. . . . The negligence of a party or
his counsel is insufficient for purposes of § 52-212 to
set aside a default judgment. . . . Finally, because the
movant must satisfy both prongs of this analysis, failure
to meet either prong is fatal to its motion.’’ (Internal
quotation marks omitted.) Disturco v. Gates in New
Canaan, LLC, supra, 204 Conn. App. 532–33.
We agree with the court’s determination that the
plaintiff’s affidavit does not meet the statutory require-
ments. With respect to the showing of a good cause or
defense, the plaintiff’s affidavit merely states ‘‘[t]hat the
plaintiff has maintained a good cause of action and
is ready to continue prosecuting this action with due
diligence.’’ As we recognized in Disturco, the mere alle-
gation of the existence of a cause of action is insuffi-
cient. See Disturco v. Gates in New Canaan, LLC,
supra, 204 Conn. App. 533; see also Moore v. Brancard,
89 Conn. App. 129, 132, 872 A.2d 909 (2005) (motion
that ‘‘included the bald assertion that a good cause of
action still exists . . . failed to comply with the manda-
tory dictates of § 52-212’’ (internal quotation marks
omitted)).5 For the foregoing reasons, we do not disturb
the trial court’s denial of the plaintiff’s motion to open.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s deposition was originally scheduled for January 22, 2019.
The defendant’s counsel postponed the deposition on account of the plain-
tiff’s failure to ‘‘compl[y] with the defendant’s 7/26/18 standard discovery
requests.’’ The deposition was then rescheduled for March 21, 2019, only
to be postponed again due to a conflict with the plaintiff’s availability.
2
In her motion, the defendant alleged that, ‘‘[s]pecifically, the plaintiff
has failed to provide the following . . . [a]ll records and bills for treatment
with Dr. Tushak and Dr. Miller . . . [c]omplete responses to interrogatories
# 6 and #11–14 . . . [d]ocumentation of any liens in place . . . [r]ecords
for prior treatment for sleep issues . . . [and] [a]ll records and bills for
treatment after 4/24/18,’’ and that, ‘‘[t]o date, the plaintiff has also failed to
comply with the defendant’s supplemental Medicare discovery requests.’’
3
Although the plaintiff does not attempt to demonstrate that she failed
to raise this claim before the court, she does ask that we review her claim
under the plain error doctrine. We emphasize that plain error ‘‘is an extraordi-
nary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved, are of such monumental proportion that they
threaten to erode our system of justice and work a serious and manifest
injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . .
a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine
that this court invokes in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for reasons of policy.
. . . Plain error is a doctrine that should be invoked sparingly.’’ (Internal
quotation marks omitted.) Johnson v. Johnson, 203 Conn. App. 405, 411,
248 A.3d 796 (2021). A finding of plain error requires that an error is ‘‘patent
[or] readily discernable on the face of a factually adequate record . . . .’’
(Internal quotation marks omitted.) Id. Because we conclude that the court’s
application of § 52-212 to the plaintiff’s motion to open the judgment was
correct, the plain error doctrine is inapplicable to the present case. See
State v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004) (‘‘the plain error
doctrine should not be applied in order to review a ruling that is not arguably
incorrect in the first place’’).
4
Practice Book § 17-43 provides in relevant part: ‘‘(a) Any judgment ren-
dered or decree passed upon a default or nonsuit may be set aside within
four months succeeding the date on which notice was sent, and the case
reinstated on the docket on such terms in respect to costs as the judicial
authority deems reasonable, upon the written motion of any party or person
prejudiced thereby, showing reasonable cause, or that a good cause of action
or defense in whole or in part existed at the time of the rendition of such
judgment or the passage of such decree, and that the plaintiff or the defen-
dant was prevented by mistake, accident or other reasonable cause from
prosecuting or appearing to make the same. Such written motion shall be
verified by the oath of the complainant or the complainant’s attorney, shall
state in general terms the nature of the claim or defense and shall particularly
set forth the reason why the plaintiff or the defendant failed to appear. The
judicial authority shall order reasonable notice of the pendency of such
written motion to be given to the adverse party, and may enjoin that party
against enforcing such judgment or decree until the decision upon such
written motion. . . .’’
5
Having determined that the plaintiff’s motion fails under the first prong of
§ 52-212 (a), we need not consider whether the plaintiff’s motion sufficiently
demonstrates that her inaction stemmed from ‘‘mistake, accident, or other
reasonable cause’’ as required by § 52-212 (a) (2). See Disturco v. Gates in
New Canaan, LLC, supra, 204 Conn App. 533.