Millbrook Owners Ass'n v. Hamilton Standard

VERTEFEUILLE, J.,

concurring in part and dissenting in part. I am disturbed by the majority’s willingness to *37reverse the trial court’s exercise of its discretion in the important matter of imposing sanctions for a violation of trial court orders. I therefore respectfully dissent.

I agree with part I of the majority opinion that the trial court has the authority to impose sanctions against an attorney pursuant to its inherent power and, additionally, the Connecticut rules of practice, namely, Practice Book § 13-14.1 I also agree with part II of the majority opinion that the trial court, Aurigemma, J., in light of its finding that the plaintiff, Millbrook Owners Association, Inc., had not complied with three orders of the court, could properly dismiss the plaintiffs action under either its inherent power or § 13-14. Although I concur with the majority’s modified standard of review with respect to the trial court’s imposition of sanctions in this case, I depart from the majority because of the *38conclusion reached in part III of its opinion that, although the trial court had the authority to do so, the court improperly dismissed the plaintiffs action because its conditional order of dismissal had not been conveyed to the plaintiff with “reasonable clarity.”

An order of the court must be sufficiently clear and specific to allow a party to determine with reasonable certainty what it is required to do. See Dept,.of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488-89, 503 A.2d 1151 (1986); Adams v. Vaill, 158 Conn. 478, 485-86, 262 A.2d 169 (1969); Castonguay v. Plourde, 46 Conn. App. 251, 268, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997); Contegni v. Payne, 18 Conn. App. 47, 59, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989); Dingwell v. Litchfield, 4 Conn. App. 621, 625, 496 A.2d 213 (1985). Contrary to the majority, I conclude that Judge Aurigemma’s order was sufficiently clear for the plaintiff to have understood what the trial court had ordered it to do and that plaintiffs counsel in fact understood the order. I further conclude that the trial court did not abuse its discretion in dismissing the plaintiffs action for noncompliance with the order.

I begin by pointing out that the plaintiff did not clearly articulate in its brief a claim that the trial court’s order was not reasonably clear. Such a claim is not set forth in the plaintiffs statement of the issues on appeal nor in the section headings or subheadings in the argument section of its brief. The only reference I find to such a claim is an isolated statement that the trial court’s reference to Practice Book § 13-4 (4) “did not provide sufficient notice to [the plaintiff] that it should summarize nonexistent testimony in its § 13-4 (4) disclosure.” No argument is developed in support of that single statement. Ordinarily, “[c]laimed errors not adequately briefed and not fully developed will not be considered by this court. See Practice Book § [67-4]; Liscio v. Lis*39cio, 204 Conn. 502, 507, 528 A.2d 1143 (1987); Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 496, 208 A.2d 748 (1965). State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991). We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); Gorra, Realty, Inc. v. Jetmore, 200 Conn. 151, 170-71, 510 A.2d 440 (1986).” (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 400, 662 A.2d 118 (1995); see Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 465 n.11, 704 A.2d 222 (1997). Even if we were to assume that such a claim was properly before us, I would conclude that the trial court’s order was reasonably clear.

As set forth in the majority opinion, Judge Aurigemma held two hearings with respect to the motion for judgment of dismissal2 filed by the named defendant, Hamilton Standard, the first on September 14, 1998, and the second on October 26, 1998. Prior to the hearing on *40September 14,1998, Judge Teller had ordered the plaintiff on September 29, 1997, and again on November 3, 1997, to disclose David Lis and Garry Jacobsen as its experts under Practice Book § 13-4 (4). The plaintiff had not complied with these orders. Instead, the plaintiff had disclosed Lis and Jacobsen as experts under § 13-4 (2)3 in light of its decision not to use Lis and Jacobsen as experts at trial. The § 13-4 (2) disclosure did not disclose the opinions held by Lis and Jacobsen, or the basis for those opinions, disclosures that are required under § 13-4 (4).

At the hearing on September 14,1998, plaintiffs counsel explained to the court that after Lis and Jacobsen *41had attended the depositions held on July 22, 1997, and August 15, 1997, respectively, based on the plaintiffs representation that they would be testifying at trial as the plaintiffs experts, the plaintiff had decided that it would not be calling them as expert witnesses at trial. Plaintiffs counsel then stated: “Now, if the court today wants us to disclose [Lis and Jacobsen] as . . .[§ 13-4 (4)] witness[es], understanding that we have 'no intention of calling them as . . . expert [s] in the case, I will do that. I am troubled by it. I am uncomfortable with it. . . . If the court so orders, I will file a disclosure of [Lis and Jacobsen] under [§ 13-4 (4)] having put on the record that we do not, in fact, intend to call them as expert witnesses.” (Emphasis added.)

This statement clearly demonstrates that plaintiffs counsel understood that the court was contemplating ordering the plaintiff to disclose Lis and Jacobsen as if they were experts who were going to testily at trial pursuant to § 13-4 (4), despite the fact that the plaintiff no longer intended to call them as witnesses at trial. At the end of the hearing, the trial court entered just such an order: “But for violation of Judge Teller’s two orders to disclose [Lis and Jacobsen] as experts and for two agreements on the record with [Hamilton Standard], a judgment of dismissal will enter unless, within one week, [the] plaintiff: files [a § 13-4 (4)] disclosure as to [Lis and Jacobsen]-, makes [Lis and Jacobsen] available within a reasonable time for deposition; pays [Lis and Jacobsen’s] . . . witness fees at the deposition and pays $250 to [Hamilton Standard] for its time associated with this matter.” (Emphasis added.) The trial court’s order was reasonably clear: disclosure was to be made pursuant to § 13-4 (4), the terms of which are clearly set forth in the rules of practice, within one week or the action was to be dismissed.4

*42The terms of Practice Book § 13-4 (4) specifically require disclosure of “the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion . . . On September 15, 1998, the day following the trial court’s order, the plaintiff filed a disclosure which purported to be a § 13-4 (4) disclosure. The disclosure failed, however, to set forth the very heart of the disclosures required under § 13-4 (4), e.g., the substance of the experts’ opinion testimony, together with the basis for their opinions. The plaintiffs disclosure set forth only the full names of Lis and Jacobsen, which were already known by Hamilton Standard, and contained a statement that the plaintiff did not intend to call them at trial, a fact also already known by Hamilton Standard and the court.

On October 26,1998, at the second hearing on Hamilton Standard’s motion for judgment of dismissal, the plaintiffs counsel again demonstrated that he understood the terms of the conditional order of dismissal. At the outset of the hearing, the trial court recounted the history relating to the conditional order of dismissal: “As I understand it, Judge Teller, in 1997, ordered a [§ 13-4 (4)] disclosure of [Lis and Jacobsen] twice .... It was not complied with. Hamilton Standard, then, came before me, renewing the motion. I had ordered that the disclosure be filed by . . . [September 21, 1998] and, in addition, that the [plaintiff] make [Lis and Jacobsen] available [to Hamilton Standard] to be deposed. I see where a document, which is, certainly, not a [§ 13-4 (4)] disclosure, was filed. The document, basically, restated [Lis and Jacobsen’s] names and gave no other information. I consider that to be outrageous and the equivalent of . . . thumbing your nose at the *43court’s order or worse. Obviously, [Hamilton Standard] did not spend all [its] time and [its] money trying to get that which [it] already knew . . . .” Next the trial court asked plaintiffs counsel whether there was an explanation for his failure to file a § 13-4 (4) disclosure. The following colloquy ensued:

“[Plaintiffs Counsel]: . . . At the hearing on September 14th, you may recall there was discussion of whether or not these were [§ 13-4 (2)] or [§ 13-4 (4)] witnesses and I tried to explain to the court that these really were not [§ 13-4 (4)] witnesses and the court clearly felt that, under the circumstances of the case, that you wanted me to make a [§ 13-4 (4)] disclosure so that those depositions could proceed. . . .
“The Court: Do you know what a [§ 13-4 (4)] disclosure is? Have you read the section?
“[Plaintiffs Counsel]: Your Honor, I have read the section.
“The Court: And does it not require you to state the subject matter on which the expert will testify, the substance of facts and opinions to which the expert is expected to testify and a summary of—of grounds of each opinion?
“[Plaintiffs Counsel]: Yes, Your Honor.
“The Court: And that was not in your disclosure.
“[Plaintiffs Counsel]: No, Your Honor . . . .” (Emphasis added.)

Plaintiffs counsel further responded that he thought that the court ordered a § 13-4 (4) disclosure in order for Hamilton Standard to proceed with the depositions of Lis and Jacobsen and again argued, as he had several times before, that he did not think a § 13-4 (4) disclosure was proper because of his decision not to use Lis and Jacobsen as experts at trial. The court then reiterated *44the reasoning and terms of its conditional order of dismissal. “And I advised you that, at this point, given the history of this issue, that [the current status of Lis and Jacobsen] was not relevant. . . . [W]hatever opinion they had given to you was, now, fair game for [Hamilton Standard] and I was ordering you to disclose it.” (Emphasis added.)

Yet again, plaintiffs counsel responded that a § 13-4 (4) disclosure, which had already been ordered by the court, was inappropriate in light of the decision that Lis and Jacobsen would not testify at trial. He stated: “I have not given the substance of their testimony because they will not testify. . . . Your Honor, I feel that we are in—and we have been placed in by the court’s order—an impossible position.

“We are being asked by the court to disclose the testimony of individuals who are not going to testify; and if the court feels that under that circumstance you have to dismiss the case, I don’t know what else I can say. They’re not going to testify. I’ve advised the court they’re not going to testify.” (Emphasis added.)

Faced with the severe sanction of dismissal of his client’s complaint, plaintiffs counsel intractably reiterated an argument already rejected several times previously by the court. The trial court then reasonably explained: “[Although normally . . . the opposing party is not entitled to the opinions of experts consulted but not expected [to testify at] trial, since you’ve already disclosed that [Lis and Jacobsen] are experts—[and] since [Hamilton Standard] has allowed [Lis and Jacob-sen] to . . . remain at a deposition based expressly on your representation that [Lis and Jacobsen] were experts, [then] whatever opinions they have given to you—whether or not they will testify—need to be disclosed. That was not done and, clearly, that was what was being sought. . . . Why would [Hamilton Stan*45dard] need [Lis and Jacobsen’s] names when [it] already has their names and why would [it] need you to file a piece of paper . . . with their names in it, when I already ordered you to make [Lis and Jacobsen] available for deposition? I don’t understand your thinking. Those were two separate things—you were to disclose their opinions—their names, everybody already had.” (Emphasis added.)

Given a last opportunity to explain, plaintiffs counsel stated: “Your Honor, I—it seems to me the court may be under the impression that there is a specific opinion that has been—I—frankly, I’m at a loss.

“I—my understanding was that the reason that the [§ 13-4 (4)] disclosure was—disclosure was wanted was because there are different mechanisms and standards for how much information the parties can get to. My expectation was the [Hamilton Standard’s counsel] wanted to take depositions—that if there were issues as to where we were going on discovery, he wanted to have the latitude that a [§ 13-4 (4)] would permit him in terms of the breadth of where he was going.” After hearing from counsel for Hamilton Standard, the court ordered the action dismissed.

At no time during the October 26, 1998 hearing did plaintiffs counsel claim that he did not understand the terms of the conditional order of dismissal. He complained about not being able to get a transcript of the September 14, 1998 hearing—although he filed his disclosure on September 15, apparently without attempting to obtain a transcript—and he complained about the October 26 hearing being held on short notice. He never contended, however, that he did not know what he needed to do in order to comply with the trial court’s order of dismissal.

Moreover, it is clear from the statements of plaintiffs counsel at the hearing on September 14,1998, and again *46on October 26,1998, as cited previously herein, that he did understand the terms of the court’s conditional order of dismissal.5 The order was not lacking reasonable clarity and was understood by plaintiffs counsel.

I would further conclude that the trial court properly found that the plaintiff violated the court’s order of September 14, 1998, to file a § 13-4 (4) disclosure with respect to Lis and Jacobsen.6 At no time during the October 26, 1998 hearing or at anytime thereafter, did the plaintiff offer to file a disclosure that would satisfy Judge Aurigemma’s order. In fact, to date, the plaintiff has never changed its position that it would not disclose Lis and Jacobsen as experts expected to testify pursuant to § 13-4 (4).7

I would therefore conclude that the trial court’s findings that the plaintiff violated its order of disclosure was not clearly erroneous. It is clear to me that the trial court had no other alternative but to dismiss this action in light of the plaintiffs persistent and intentional refusal to comply with the trial court’s orders to disclose Lis and Jacobsen as § 13-4 (4) experts. See Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144-45, 470 A.2d 246 (1984). “[I]f the disobedient party’s refusal to [comply with an order from the trial court] is intentional, if a sufficient need for the information requested *47is shown by the opposing party, and if it does not appear that the disobedient party, having failed to comply with the order embodied in the rules, is inclined to change his position, then dismissal is an appropriate sanction. In such situations dismissal serves not only to penalize those whose conduct warrants such a sanction but also to deter those who might be tempted to such conduct in the absence of such deterrent.” (Emphasis added.) Id., 145.

I firmly disagree with the majority’s conclusion that the trial court abused its discretion in dismissing the plaintiffs action. In my view, the majority has shown an insufficient degree of deference to the trial court in this case. Where the trial court has imposed sanctions against an attorney for failure to comply with its orders with respect to discovery, we must give that decision great deference and indulge every reasonable presumption in favor of its correctness. See, e.g., Biro v. Hill, 231 Conn. 462, 465, 650 A.2d 541 (1994). The trial court was in the best position to judge the demeanor and attitude of plaintiffs counsel, to interpret and evaluate his explanation for his failure to comply with the orders of the trial court and to decide whether dismissal was an appropriate sanction under all the circumstances. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Id. Judge Aurigemma reasonably could have concluded that plaintiffs counsel knowingly and intentionally failed to comply with the trial court’s orders and that dismissal was an appropriate sanction. Her decision should be affirmed.

Accordingly, I respectfully dissent.

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 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:
“(1) The entry of a nonsuit or default against the party failing to comply;
“(2) The award to the discovering party of the costs of the motion, including a reasonable attorney’s fee;
“(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
“(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
“(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.”

I note, as did the majority in footnote 4 of its opinion, that at the time of the proceedings in this action, an earlier revision of the Practice Book with a different numbering system was applicable. For purposes of clarity, references herein are to the current revision and codification of the rules of practice.

Hamillon Standard’s motion for judgment of dismissal, filed May 6,1998, provides in relevant part: “Pursuant to Practice Book § [13-14 (b) (4)], defendant Hamilton Standard respectfully moves this Court to enter a judgment of dismissal based upon [the] plaintiffs flagrant violation of the Court’s Order dated November 3, 1997 (Teller, J.), which compelled [the] plaintiff to formally disclose David Lis and Garry Jacobs[e]n as Practice Book § [13-4 (4)] expert witnesses by December 3, 1997. [The] [p]laintiff has also breached an agreement with Hamilton Standard that Mr. Lis and Mr. Jacobs[e]n would be disclosed as expert witnesses pursuant to Practice Book § [13-4 (4)], effectively prohibiting Hamilton Standard from conducting the necessary discovery to defend this case. [The] [p]laintiff attempts [to] justify] its disregard of this Court’s Order by making the specious claim that Mr. Lis and Mr. Jacobs[e]n are non-testifying consultants pursuant to Practice Book § [13-4 (2)]. [The] [pjlaintiff only made this claim, however, after the Court ordered [the] plaintiff to disclose its experts pursuant to Practice Book § [13-4 (4)].

“By flouting this Court’s Order, [the] plaintiff has shown complete disregard for the Court’s authority, abused the discovery process, and prejudiced Hamilton Standard. Accordingly, a judgment of dismissal should enter.”

The plaintiffs disclosure of Lis and Jacobsen, filed November 17, 1997, provided in relevant part: “Pursuant to this Court’s order of November [3], 1997, and Practice Book [§ 13-4 (4)] [the plaintiff] hereby makes the following disclosure:

“1. [The plaintiff] has retained Apex Environmental, Inc. (‘Apex Environmental’), to review and provide expert analysis of environmental reports submitted by the Consultants retained by the [defendant Hamilton Standard . . . with regard to Consent Order #069 between Hamilton Standard and the Connecticut Department of Environmental Protection (the ‘Consent Order’).
“2. The expert analysis of Apex [E]nvironmental was deemed necessary and desirable to assist the board members of the [plaintiff] in making informed decisions with regard to the Consent Order and to further assist the [plaintiff] by providing comments on its behalf to the [department of environmental protection].
“3. Mr. Lis and Mr. Jacobs[e]n have assisted in the analysis of information submitted by consultants to the defendant Hamilton Standard which does [relate] to the instant case, however [the plaintiff] has no present expectation of calling either of these men as an expert witness at the trial in this case.
“4. Based upon the foregoing, Mr. Lis and Mr. Jacobs[e]n are experts for the plaintiff only as defined by Practice Book [§ 13-4 (2)].
“5. The pleadings have not been closed, no trial date has been set and no final determination has been made by the [p]Iaintiff as to which, if any, experts will be called to testify at the trial of the above captioned case.
“6. The plaintiff is still awaiting production of documents, first requested in April of this year, from Hamilton Standard .... Further, [the plaintiff] is still awaiting dates for depositions of key witnesses who are employees of Hamilton Standard ....
“7. The information disclosed by Hamilton Standard . . . may form all or part of the factual basis for expert opinions.”

In accordance with our view of the sanction of dismissal as a last resort for trial courts; see Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); Judge Aurigemma was reluctant to penalize the plaintiff for its counsel’s *42actions. The court’s conditional order of dismissal, which allowed the defendant one week to comply with its conditions, demonstrates this reluctance.

Even if we were to assume that plaintiffs counsel failed to comprehend the court order on September 14, 1998, the colloquy between the court and counsel on October 26,1998, clearly established that he certainly understood what was required for compliance on that day.

I recognize that the majority did not reach this issue because of its conclusion that the court’s order was not reasonably clear.

During the plaintiffs oral argument before this court on December 7, 2000,1 asked plaintiffs counsel whether the plaintiff at any time subsequent to Judge Aurigemma’s order of dismissal on October 26, 1998, moved to open the judgment of dismissal and submit a disclosure of Lis and Jacobsen as experts under § 13-4 (4). Plaintiffs counsel answered my inquiry in the negative. To this very day, therefore, the plaintiff has made no attempt to comply with Judge Aurigemma’s order.