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Faile v. Town of Stratford

Court of Appeals of Connecticut

October 17, 2017

DAVID H. FAILE, JR.
v.
TOWN OF STRATFORD PAUL A. LANGE
v.
TOWN OF STRATFORD N759ZD, LLC
v.
TOWN OF STRATFORD

          Argued March 9, 2017

          Paul M. Grocki, for the appellants (plaintiffs).

          Bryan L. LeClerc, for the appellee (defendant).

          DiPentima, C. J., and Mullins and Westbrook, Js.

         Syllabus

         The plaintiffs, F, L, and N Co., owners of aircraft hangars at an airport, filed four appeals from the decisions of the Board of Assessment Appeals of the defendant town of Stratford denying their appeals from the town's assessments of the hangars, in which they had claimed that the town's valuations were excessive. The trial court sent notice to the parties of a pretrial settlement conference, which required, inter alia, that the parties have an attorney with ultimate authority to settle the case attend the conference, and the attendance of each plaintiff or entity that would be testifying. F and G, the attorney representing the plaintiffs, as well as the town's attorney, were present at the pretrial conference, but L was absent due to his hospitalization a few days prior. The settlement conference took place in chambers, off the record, but afterward the court went on the record to consider the town's motions for nonsuit, which were based on the plaintiffs' failure to have someone present at the pretrial conference with authority to settle the matters. Although G repeatedly claimed that he had the ultimate authority to settle the matters, the court chastised G for appearing at the settlement conference without having such authority, stated its belief that L, who was an attorney, had the ultimate authority to settle the matters in one of the appeals, and found that certain paper copies of documents were not brought to the conference as required by the court's notice. Upon questioning G with respect to the appeal involving N Co., G stated that, on the basis of a strict reading of the language of the court's orders, he did not have ultimate authority as required by the notice. Accordingly, the court granted the town's motions for judgments of nonsuit. The plaintiffs thereafter filed motions to open the judgments of nonsuit, which the trial court denied, and this joint appeal by the plaintiffs followed. On appeal, the parties disagreed as to the applicable standard of review of the trial court's judgments of nonsuit. The plaintiffs claimed that this court should apply a more nuanced abuse of discretion standard as set forth in Millbrook Owners Assn., Inc. v. Hamilton Standard (257 Conn. 1), while the town argued that the more deferential general abuse of discretion standard applied. Held:

         1. Even if this court applied the traditionally more deferential abuse of discretion standard, the trial court abused its discretion in rendering the judgments of nonsuit against F, the trial court's findings that F violated its order by not having someone with ultimate authority to settle the matters present at the pretrial settlement conference, and by failing to bring to the conference every physical piece of paper he would offer into evidence at trial having been clearly erroneous: F and his attorney were present at the conference, and F, as the owner of his hangars, had the right to refuse to settle, and his willingness or unwillingness to settle the matter for some amount that the court may have thought was reasonable did not violate the court's order; furthermore, because G had electronic copies of the documents that would be used at trial on his laptop computer, which he brought to court, G and F complied with the court's order, which did not state that the parties needed every physical piece of paper that would be offered into evidence.

         2. Although N Co. failed to establish clear error in the trial court's finding that G did not have ultimate authority to settle N Co.'s tax appeals in light of G's concession that, under a strict reading of the court's order, he did not have that authority, even under the broader traditional abuse of discretion standard, the court improperly rendered judgments of nonsuit against N Co.; L, the principal of N Co. and the person whom the trial court found was vested with the ultimate authority to settle N Co.'s tax appeals, was not in attendance at the pretrial conference because he was hospitalized, the court made no findings of a wilful disregard of its orders or of contemptuous behavior on the part of either G or L, and a dismissal or a nonsuit as a sanction for the failure of L to attend when he was ill and in the hospital did not serve justice or in any way vindicate the legitimate interests of the town and the court.

         Procedural History

         Appeals from the decisions of the defendant's Board of Assessment Appeals, brought to the Superior Court in the judicial district of Fairfield and transferred to the judicial district of New Britain, where the court, Hon. George Levine, judge trial referee, rendereda judgment of nonsuit as to all the appeals; thereafter, the court denied the plaintiffs' motions to open the judgments of nonsuit, and the plaintiffs appealed to this court. Reversed; further proceedings.

          OPINION

          MULLINS, J.

         In this joint tax appeal, the plaintiffs, David H. Faile, Jr., Paul A. Lange, and N759ZD, LLC (LLC), appeal from the judgments of nonsuit, rendered by the trial court, in favor of the defendant, the town of Stratford (town). They also appeal from the court's denial of their motions to open the nonsuits. On appeal, the plaintiffs claim that the court's findings that they violated its orders were clearly erroneous, and that, even if we assume, arguendo, that they did violate the orders, the court abused its discretion in rending judgments of nonsuit. We agree with the plaintiffs.[1] Therefore, we reverse the judgments of the trial court.

         The following facts, garnered from the record, inform our review. At the time this action was commenced, the plaintiffs owned aircraft hangars, known as T-Hangars (hangars), located at Sikorsky Memorial Airport in Stratford. The hangars were located on land that was leased from the city of Bridgeport. Faile owned two hangars, A-9 and B-11; the LLC owned one hangar, A3. Lange is the principal of the LLC and a member of the law firm, Law Offices of Paul A. Lange, LLC, which is counsel of record for the plaintiffs in this case.[2]

         The town assessed and taxed the hangars on the grand lists for 2008 and 2009. The plaintiffs appealed the assessments and their taxes to the Board of Assessment Appeals of the town (board), alleging, in relevant part, that the valuations were excessive. After each appeal was denied by the board, the plaintiffs filed appeals in our Superior Court.[3] Initially, the appeals were stayed pending the Supreme Court's decision in Stratford v. Jacobelli, 317 Conn. 863, 865-66, 120 A.3d 500 (2015) (concluding that hangars are taxable real property rather than personal property). Once the stay was lifted, the court, on October 1, 2015, sent notice to the parties of a pretrial settlement conference. The court assigned that conference for November 3, 2015.

         The notice provided in relevant part: ‘‘This case is assigned for pretrial on [November 3, 2015] at 10 a.m. . . . The following must attend:

‘‘1) The attorney who will try the case, unless otherwise ordered by Judge [George] Levine;
‘‘2) The attorney who has ultimate authority to make a recommendation to the client, if different from the attorney described in #1 above.
‘‘If plaintiff is a person(s), the plaintiff(s) must attend. The assessor must attend. Any appraiser retained must attend but need not complete an appraisal report for pretrial. If plaintiff is a corporation or other type of legal entity, a principal who has ultimate authority to negotiate a settlement must be present. ‘Ultimate authority' means the ability to resolve the case by withdrawing it without any change in assessment, if persuadedit is in plaintiff's best interests, without checking with anyone else. Someone with authority to negotiate a settlement at a preestablished figure does not have ‘ultimate authority.' A person familiar with the finances and management of the subject property must attend.
‘‘If this date is inconvenient, please select other dates with all counsel/pro se parties and e-file a motion for continuance with proposed dates.
‘‘Failure to comply with this order may result in sanctions, including a judgment of nonsuit or default. If no principal can attend, the parties should contact the court.''

         On November 4, 2015, the court issued another order, which provided in relevant part:

‘‘By agreement of the parties, the . . . matter has been scheduled for another pretrial conference, to be conducted on [December 2, 2015] . . . .
‘‘All terms of the original pretrial order remain in effect with the following modifications:
‘‘1) The following must attend: Each plaintiff and/or entity and every person who will be called to testify at trial.
‘‘2) Counsel for all parties must bring every piece of paper which will be offered in evidence.
‘‘3) Counsel for each party must be prepared to state all the testimony to which each witness is expected to testify, on a count by count basis and on a year by year basis.
‘‘4) Failure of any plaintiffs to appear will result in a judgment of nonsuit.
‘‘Failure to comply with these terms may result in sanctions, including nonsuit or default.''

         On November 18 and 19, 2015, the plaintiffs filed motions for continuance of that settlement conference on the ground that discovery was outstanding and the plaintiffs had noticed, but not yet taken, the deposition of the town's tax assessor; the court denied the motions on the same days they were filed. On November 25, 2015, the town filed a motion for extension of time, requesting that the court give it a thirty day extension to respond to the plaintiffs' discovery requests. There is no indication in the record that the court acted on the town's motion.

         On Wednesday, December 2, 2015, the parties appeared for the settlement conference. Lange, however, was absent due to his hospitalization on Sunday, November 29, 2015, just a few days before. Attorney Paul Grocki, an attorney with the Law Offices of Paul A. Lange, LLC, was present on behalf of the plaintiffs. Faile also was present. Appearing on behalf of the town was Byran LeClerc. The settlement conference was held in chambers, off the record, but afterward, the court went on the record to consider the town's motions for nonsuit.

         During the hearing, the court separately addressed each of the plaintiffs' appeals, with the bulk of the discussion occurring in the first matter, CV-09-4025677-S, which is Faile's appeal from the 2009 decision of the board. LeClerc stated that the town was moving ‘‘for nonsuit based upon the plaintiff's failure to have someone present at this morning's pretrial with authority to settle this matter.''

         Grocki first explained to the court that he had filed a motion for a continuance approximately two weeks earlier due to outstanding discovery, which the court had denied. The court asked Grocki if he had been given the ultimate authority to settle this matter. Grocki responded that he had been given such authority. He further noted that Faile also was present at the settlement conference, and that Faile, certainly, had authority to settle his own cases. Grocki acknowledged that Faile wanted to do whatever Lange recommended, but that, ultimately, the parties were taking the advice of counsel, namely Grocki. Grocki explained to the court that the parties just ‘‘couldn't come to an agreement'' regarding settlement. He acknowledged that his clients would not settle for a property tax fair market assessment of more than $9000.

         The court chastised Grocki for appearing at the settlement conference without having the ‘‘ultimate authority'' as set forth in the pretrial notices. Grocki argued, however, that he did have the ultimate authority and that Faile, himself, also had been present at the settlement conference. The court asked Grocki why he had not notified the court that Lange would not be present before the parties convened the settlement conference.[4]Grocki explained that Lange was hospitalized on the Sunday before the pretrial conference, and that they did not know how long he would remain in the hospital. When they realized that he would not be released in time for the settlement conference, it was too late to notify the court. The court then told Grocki that ‘‘the purpose of the language contained in the pretrial notice [was] to make certain that people with unfettered authority [were there] to negotiate a settlement, and further [that it was] required that the attorney, who ha[d] the closest relationship-or . . . who ha[d] ultimate authority to make a recommendation to the client must be [there]. Now that clearly is Mr. Lange. Is that correct?'' Grocki replied that Lange was an attorney but that Lange, in fact, was not the attorney for these matters.

         The court continued to confront Grocki, asking whether Lange actually had the ultimate authority to settle all of these matters, rather than Grocki. Grocki continued to tell the court that he, Grocki, was the attorney for all of the plaintiffs, that Lange was not the attorney for these matters. Grocki further explained that he had the ultimate authority to settle all of these matters, but that the parties would not settle for more than a $9000 fair market assessment.

         Despite Grocki's protestations, the court stated that it believed Lange had the ultimate authority to settle Faile's appeal from the 2009 decision of the board, and, because Lange was not present, despite his hospitalization, ‘‘it was impossible . . . to make a good faith effort at a resolution of this case.'' The court then granted the town's motion for nonsuit in CV-09-4025677-S.

         The court then considered CV-10-6006946-S, Faile's appeal from the 2010 decision of the board. The court asked LeClerc if he wanted to make a motion. LeClerc responded that he was moving for a nonsuit ‘‘based upon [Faile's] failure to have someone present at this morning's pretrial with ultimate authority to settle this matter, and also for not having all documents that will be entered into evidence, specifically the document evidencing one of the three airplane hangars had been sold.''

         Grocki asked the court if it wanted him to reiterate all of the arguments that he set forth for the previous matter. The court asked if they would be the same, and Grocki replied in the affirmative. The court then asked Grocki if he had brought the papers related to the sale of the hangar, and Grocki stated that he had electronic versions of everything with him, which he readily could access on his computer. The court chastised Grocki for not bringing ‘‘every piece of paper [he] intend[ed] to offer into evidence.'' The court then stated that it was granting the motion for nonsuit in ...


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