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Emerick v. Town of Glastonbury

Court of Appeals of Connecticut

October 31, 2017


          Argued April 13, 2017

          Roger Emerick, self-represented, the appellant (plaintiff).

          Kristan M. Maccini, for the appellee (defendant).

          DiPentima, C. J., and Sheldon and Bear, Js.


         The self-represented plaintiff landowner brought this action for, inter alia, private nuisance against the defendant town, alleging that development upstream from his property had caused damage to wetlands on his property. The trial court rendered judgment dismissing the action as a sanction for the plaintiff's conduct during the five days of the jury trial, in which the plaintiff, inter alia, refused to accept the court's evidentiary rulings, interrupted and spoke over the court, called the court's rulings ‘‘bizarre, '' remarked that the court was ‘‘incompetent'' and needed ‘‘to go back to law school, '' and accused the trial judge of speaking in ‘‘gibberish'' and nodding her head as if she were ‘‘drugged.'' During the trial, the court employed a series of progressive steps to address the plaintiff's behavior, which included, inter alia, verbal warnings, and instructions to cease making comments about the court's evidentiary rulings and to cease interrupting the court and making insulting or disparaging remarks about the court and the defendant's counsel. The court also fined the plaintiff and advised him on multiple occasions that dismissal of the case was an option it would consider if he continued with his actions. On the plaintiff's appeal to this court, held that the trial court did not abuse its discretion in dismissing the plaintiff's action, as his continuing and deliberate misconduct during the trial, for which he bore sole responsibility, demonstrated such deliberate disregard for the court's orders as to warrant dismissal: the plaintiff did not demonstrate any mitigating factors for his actions during the trial, the court's use of escalating disciplinary steps to compel his observance of its orders proved unsuccessful, which left dismissal of the case as a last resort and the only reasonable remedy, the court's repeated warnings, suggestions and fines had no impact on the plaintiff, as he ignored the court's admonitions and continued to delay the trial, and there was no merit to the plaintiff's claims that the court did not adhere to standards of stare decisis, that the court dismissed the case on the basis of his claims of judicial bias or that the dismissal followed from a finding of contempt, as the dismissal was based on the court's inherent authority to compel observance of its rules and to deal with continuing misconduct; furthermore, the court did not fail to consider the plaintiff's motions for a mistrial or his requests that the court recuse itself, there were instances where the plaintiff raised his voice or challenged the court's evidentiary rulings in front of the jury, the absence of the jury when certain acts of misconduct occurred did not deprive the court of its authority to sanction the plaintiff for his continuing misconduct during the trial and lack of cooperation with the court, and the plaintiff's claim that the dismissal of his case violated his constitutional right to procedural due process was inadequately briefed and essentially restated his previous arguments, which this court had rejected.

         Procedural History

         Action to recover damages for, inter alia, private nuisance, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Wiese, J., denied the plaintiff's motion for summary judgment and granted in part the defendant's motion for summary judgment; thereafter, the matter was tried to the jury before Peck, J.; subsequently, the court, Peck, J., denied the plaintiff's motions for a mistrial and rendered judgment of dismissal; thereafter, the court, Peck, J., denied the plaintiff's motion to reargue, and the plaintiff appealed to this court. Affirmed.


          DiPENTIMA, C. J.

         The trial court possesses the inherent power to impose sanctions on litigants in cases before it, including dismissing the case, both to compel observance of its rules and to bring an end to continuing violations of those rules. D'Ascanio v. Toyota Industries Corp., 309 Conn. 663, 670-71, 72 A.3d 1019 (2013). This power ‘‘rests within the discretion of the trial court and will not be disturbed on review unless there is an abuse of discretion. . . . Generally, a sanction should not serve as a punishment or penalty. . . . Such drastic action is not, however, an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority.'' (Citations omitted.) Fox v. First Bank, 198 Conn. 34, 39, 501 A.2d 747 (1985); see also D'Ascanio v. Toyota Industries Corp., supra, 672; Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 16-17, 776 A.2d 1115 (2001). In the present case, the self-represented plaintiff, Roger Emerick, appeals from the judgment of the trial court dismissing his case against the defendant, the town of Glastonbury, as a sanction for his actions during trial. On appeal, the plaintiff claims that the dismissal constituted reversible error.[1] We are not persuaded that the court abused its discretion in dismissing the plaintiff's case after his deliberate, continuing, and at times contumacious disregard for the court's authority. Accordingly, we affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our decision. The plaintiff commenced this action on February 15, 2011. In the operative complaint, he set forth claims against the defendant of private nuisance, reckless and wanton conduct, trespass, violation of General Statutes § 13a-138, [2] intentional infliction of emotional distress, negligent infliction of emotional distress and breach of fiduciary duty.[3] The plaintiff alleged that he owned 580 Hopewell Road in South Glastonbury, a forty acre property with wetlands along Roaring Brook. He claimed that development upstream from his property caused damage to Roaring Brook and his wetlands. The operative complaint was filed on October 29, 2013, and the defendant filed its answer and special defenses on November 13, 2013.

         On November 3, 2014, the defendant filed a motion for summary judgment as to all counts. Two weeks later, the plaintiff filed his own motion for summary judgment on all counts. The parties filed various objections and replies to these motions, and the court, Wiese, J., heard oral argument on the motions on January 26, 2015. On May 14, 2015, the court issued a memorandum of decision granting the defendant's motion with respect to the plaintiff's claims for damages for reckless and wanton conduct, violation of § 13a-138, negligent infliction of emotional distress, intentional infliction of emotional distress and breach of fiduciary duty but denying it as to his claims for damages for private nuisance and trespass, and his claim for injunctive relief for intentional infliction of emotional distress. The plaintiff's motion for summary judgment was denied in its entirety.

         The trial commenced on October 27, 2015, before Judge A. Susan Peck.[4] At the beginning of the trial, the court gave the jury preliminary instructions, including an estimation that the evidentiary phase of the trial would take three to four days. Following opening statements, the plaintiff called himself as a witness. He testified throughout the first and second days and the majority of the third day of the trial. Near the end of the third day, the plaintiff called Daniel A. Pennington, the defendant's town engineer and manager of physical services, as a witness. Pennington's testimony continued into the morning of the fourth day of trial.

         On the afternoon of the fourth day, the court excused the jury to consider the defendant's objections to the plaintiff's expert witness, Sigrun N. Gadwa. At the outset of the fifth day of trial, the court permitted Gadwa to testify before the jury. During her testimony, the jury was excused so that the court could consider the objections by the defendant's counsel and the plaintiff's responses thereto. After an extended argument, the court focused on the plaintiff's behavior during the trial, finding that he had been insulting and abusive to the court and the defendant's counsel, resulting in a disruption of the administration of justice. After being interrupted by the plaintiff, the court further found that the plaintiff had exhibited a lack of respect for and refused to follow court rules, procedure and decorum. As a result of his misconduct during the course of the trial, the court dismissed the plaintiff's case. The plaintiff subsequently filed a motion to reargue, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

         As an initial matter, we set forth the legal principles and our standard of review. ‘‘It is well established 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 . . . .'' (Footnote omitted; internal quotation marks omitted.) Evans v. General Motors Corp., 277 Conn. 496, 522-23, 893 A.2d 371 (2006); see also DuBois v. William W. Backus Hospital, 92 Conn.App. 743, 748, 887 A.2d 407 (2005) (trial court has inherent authority to impose sanctions), cert. denied, 278 Conn. 907, 899 A.2d 35 (2006). The sanction of ‘‘dismissal serves not only to penalize those whose conduct warrants such a sanction but also to deter those who might be tempted to[engagein] such conduct in the absence of such deterrent. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).'' Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 145, 470 A.2d 246 (1984).

         This case involves the inherent authority of the court to impose reasonable sanctions against a party during litigation. ‘‘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 discretion 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. . . .

         ‘‘At the same time, however, we also have stated: [D]iscretion imports something more than leeway in decision-making. . . . It means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In addition, the court's discretion should be exercised mindful of the policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Rules are a means to justice, and not an end in themselves . . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. . . . Therefore, although dismissal of an action is not an abuse of discretion where a party shows a deliberate, contumacious or unwarranted disregard for the court's authority . . . the court should be reluctant to employ the sanction of dismissal except as a last resort. . . . [T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.'' (Citations omitted; internal quotation marks omitted.) D'Ascanio v. Toyota Industries Corp., supra, 309 Conn. 671-72; see also Evans v. General Motors Corp., supra, 277 Conn. 522-24; Mill-brook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 15-16; Pavlinko v. Yale-New Haven Hospital, supra, 192 Conn. 145 (dismissal, when party fails to obey court's order, is appropriate and serves as penalty and deterrent).

         To determine whether the court's dismissal of the plaintiff's case constituted an abuse of discretion, we must set forth a detailed account of the events that occurred each day of the trial. This account reveals that the plaintiff's confrontations with the court and his refusal to comply with its orders began on the first day of the trial and continued to its end on the fifth day of trial.

         FIRST DAY OF TRIAL-OCTOBER 27, 2015

         At the outset of the first day, the court instructed that there were to be no ‘‘speaking objections'' and that it would notify the parties regarding any further argument. The plaintiff inquired if a copy of the ‘‘Practice Book'' could be made available for his use during the trial, and the court replied in the negative.[5] The plaintiff then asked if he would be permitted to testify from the counsel table, rather than the witness stand. The court replied in the negative. It reasoned that the jury would need an unobstructed view of the plaintiff as he testified and that ‘‘to maintain a proper decorum, each witness should testify from the witness chair.'' The plaintiff countered that it would be easier for the jury to see him at the counsel table and that, in unrelated cases, he had been permitted to testify from the counsel table to accommodate his status as a self-represented party. The court iterated its ruling that the plaintiff would testify from the witness stand.

         After further discussions regarding the plaintiff's testimony, the court stated that he would not be permitted to read from a ‘‘marked up'' copy of an exhibit. The plaintiff voiced his displeasure with this procedure.[6]The court responded that its role was to manage the case, and that if this method proved unwieldy, then a modification could be made. It also noted that the plaintiff could testify in a narrative, or use a question and answer format. The court instructed that he could use marked up copies of exhibits to present his case, but could read only from full exhibits. The plaintiff then asked if the court had any legal authority that required a witness to testify from the witness stand, but the court declined ‘‘to articulate'' on that issue. The plaintiff opined that the court had imposed a hardship on him.[7]

         After a recess, the court informed the jury that the trial likely would last through the middle of the following week. The plaintiff and the defendant's counsel made opening statements and then the evidentiary phase of the trial commenced.

         The plaintiff was the first witness. During his testimony, the defendant's counsel made a hearsay objection. The court sustained the objection and explained to the plaintiff that an out-of-court statement offered in court to prove the truth of the matter, even if made by the plaintiff, constituted hearsay. The following colloquy occurred:

‘‘[The Plaintiff]: This is the first I've heard of that. Exception.
‘‘The Court: I'm sorry, Mr. Emerick.
‘‘[The Plaintiff]: I will take an exception.
‘‘The Court: The objection is sustained. Move on.
‘‘[The Plaintiff]: I've never heard of this.
‘‘The Court: Ask another question.
‘‘[The Plaintiff]: I've never heard of this.
‘‘The Court: Mr. Emerick, I'm going to ask you not to comment-
‘‘[The Plaintiff]: Yes, Your Honor.
‘‘The Court: -on the rulings of the court.''

         After a further comment by the plaintiff, the court reminded him that speaking objections were not permitted. The court then excused the jury and stated: ‘‘I just want to remind you that I specifically directed that there be no speaking objections. And it's not proper for you to challenge my rulings in a way; if it's based on the law, it's one thing, but if it's not your understanding, Mr. Emerick, you are not a lawyer; so I'm going to guess that there are other things that may be not your understanding. But just because it's not your understanding, that doesn't mean that it's admissible in evidence.'' A discussion on whether the plaintiff's out-of-court statements constituted hearsay ensued, with the plaintiff requesting that the court provide a citation to support its ruling. The court declined to do so, and instead suggested to the plaintiff what testimony would be admissible.

         The court stated that it would not explain the rules of evidence to the plaintiff at the cost of the time of the jury. The plaintiff remarked that he was surprised by the ruling and that his concept of what testimony would be permitted had been ‘‘turned . . . on its head.'' The plaintiff also questioned why his complaint had not been stricken, and the court explained that the complaint contained allegations, while the rules of evidence applied to ‘‘things that are being offered into evidence in court.''

         The plaintiff's testimony continued, with the defendant's counsel raising numerous objections, many of which the court sustained.[8] The plaintiff eventually turned his testimony to conversations that he had had with an individual named Peter Stern. The defendant's counsel asked and received permission to raise an objection outside the presence of the jury. The defendant's counsel stated that this topic had been the subject of a motion in limine and that the court previously had informed the plaintiff that he was not permitted to discuss any conversations that he had had with Stern. A dispute between the plaintiff and the defendant's counsel ensued, at which point the plaintiff stated that the defendant's counsel ‘‘lies all the time.''[9] The court instructed the plaintiff and the defendant's counsel to refrain from talking over each other and that argument would be conducted in an orderly fashion. After considering the matter, the court sustained the objection and the plaintiff's testimony resumed.

         The plaintiff subsequently sought to have a document admitted into evidence and the defendant's counsel raised numerous objections, including a lack of authentication. After the court sustained the objection, the plaintiff requested an interruption of his testimony to ‘‘briefly'' call Pennington, the engineer and manager of physical services for the defendant, to authenticate the document. The court rejected this, stating that it was ‘‘not appropriate'' and that the plaintiff could not ‘‘have a witness testify in the middle of another witness' testimony.'' The court then excused the jury.

         The court informed the plaintiff that he needed to ‘‘plan out'' his evidence and testimony. The plaintiff responded that the court's interpretation of the authentication requirement was ‘‘bizarre.'' After a recess, the plaintiff again described the proceedings as ‘‘bizarre.'' Eventually, the jury returned and the plaintiff's testimony continued for the remainder of the day.


         At the outset of the second day of trial, the defendant's counsel noted that several of the photographs that the plaintiff would be seeking to have admitted into evidence contained ‘‘editorial comments.'' The defendant's counsel wanted to raise her concerns about these exhibits outside the presence of the jury because she felt ‘‘like I'm being put in the position where I look like I'm harassing [the plaintiff] by objecting, because the jury doesn't understand what the [Connecticut] Code of Evidence is. I'm repeatedly objecting. It looks like I'm harassing him. It's prejudicial to the [defendant].'' The court ruled that the objections would need to be raised in due course as the plaintiff attempted to introduce each of the photographs into evidence. The discussion then turned to another exhibit, and the court indicated to the plaintiff that this document contained hearsay. The plaintiff responded: ‘‘It is not hearsay. You're making this up.'' During the court's response, the plaintiff interrupted, prompting the following admonition: ‘‘Excuse me. I am talking, Mr. Emerick. I am talking. You may not like it, but my job here is to rule on the evidence that is offered in this case, in accordance with the Code of Evidence, not what you think it should be.''

         After further discussion, the court warned the plaintiff that several of his exhibits were ‘‘problematic'' and subject to objections from the defendant's counsel, and therefore he should refrain from discussing the substance of these exhibits. The plaintiff claimed that all of the objections by the defendant's counsel had been sustained, and that ‘‘lawyers have a right to lie, and I'm getting tired of it.'' The court stated that while the plaintiff was entitled to his opinion, he was not to repeat his derogatory comments about lawyers to the jury.

         The plaintiff resumed his testimony in front of the jury. At one point, the court, after sustaining an objection, reminded the plaintiff that his out-of-court statements, offered for the truth of the matter asserted, constituted hearsay. Outside the presence of the jury, the court inquired as to how long the plaintiff's testimony would last; he replied, ‘‘[m]aybe all month. Excuse me. I tend to be jocular on occasion.'' The court repeated its inquiry, and a dispute ensued.[10] At this point, the plaintiff moved for a mistrial, which the court denied.[11] The court again cautioned the plaintiff about his conduct and raised the possibility of sanctions.[12] It then instructed the plaintiff to prepare a written outline of the remainder of his testimony during the lunch break. In response, the plaintiff again complained about the court's evidentiary ruling and included ad hominem remarks regarding Judge Peck's competence.[13]

         The court restated its order for the plaintiff to compose an outline, and further argument ensued. During this argument, the plaintiff accused the court of giving ‘‘preferential treatment to lawyers'' and was told, on several occasions, to stop speaking. The plaintiff characterized the court's statements as ‘‘ridiculous . . . .'' Before the jury returned, the following colloquy occurred:

‘‘[The Plaintiff]: This is not law.
‘‘The Court: That's it.
‘‘[The Plaintiff]: This is not law. This is an abuse of law at the highest level.
‘‘The Court: I want-you will not say one more word. You will not say one more word. Get on that witness stand.
‘‘[The Plaintiff]: I move to recuse.
‘‘The Court: Mr. Emerick, take the witness stand. Sit down. And you will not make any further comments or raise your voice in front of this jury.
‘‘[The Plaintiff]: I have no respect for you whatsoever.'' (Emphasis added.)

         The plaintiff resumed his testimony. Despite the court's prior rulings, he continuously made reference to photographs and documents that had been ruled inadmissible.[14] At one point, the court inquired if the plaintiff had planned to ask another question, to which he responded, ‘‘Yes, I am, unless you'd rather ask it for me.'' After a few more questions, the court informed the plaintiff that his testimony was not furthering the issues in this case and then excused the jury for lunch. The court reminded the plaintiff to complete his written outline for the remainder of his testimony during the break.

         Before his testimony resumed, the court again warned the plaintiff about his conduct[15] and cautioned him to not raise his voice, even when the jury was not in the courtroom. After an extended discussion regarding the admissibility of various exhibits, the following colloquy occurred:

‘‘[The Plaintiff]: May I be excused and call me back when you and the lawyer here get done talking?
‘‘The Court: No, sir. Exhibit 13.
‘‘[The Plaintiff]: I again request a mistrial. A gross, gross, gross incompetence regarding legal knowledge and understanding what the complaint is about and literally fabricating things that don't make any sense at all. It's bizarre to me, what I'm listening to.
‘‘The Court: I just want to note for the record, Mr. Emerick, that-well, first, it's appropriate to stand when you address the court. You don't have to respect me.
‘‘[The Plaintiff]: I don't.
‘‘The Court: Which you've already indicated on the record before, but you do have to respect the process.
‘‘[The Plaintiff]: And you don't respect me or my complaint, and you're just using your position of power to formulate or promote the business of law, pursuant to Practice Book § 1-8.
‘‘The Court: Your comments are totally inappropriate, Mr. Emerick.
‘‘[The Plaintiff]: No, it's not.
‘‘The Court: And I'm going to direct you to confine your comments to the legal issues that we have to address. These extraneous comments that you're making are totally inappropriate. Okay. Exhibit 13-
‘‘[The Plaintiff]: And the comments that I'm hearing are totally inappropriate. . . . It's a waste of time.''

         As the parties and the court continued to discuss the exhibits outside of the presence of the jury, the plaintiff asked if he would be permitted to voir dire the defendant's counsel regarding her ‘‘math capability'' and stated that the court was ‘‘just nodding your head like you're drugged or something. Yeah, let's move on. This makes no sense.'' After a ruling on a particular exhibit, the plaintiff sarcastically remarked, ‘‘[o]f course it's not coming in, '' and moved for a mistrial because it was ‘‘a waste of time presenting a case'' to the court, which, in his view, was ‘‘incompetent.'' Shortly thereafter, after the court asked him about a particular exhibit, the plaintiff abruptly left the courtroom, without asking permission to do so.

         After a recess, the court made the following statement outside the presence of the jury: ‘‘Mr. Emerick, you've been extremely disrespectful of this process, the court, opposing counsel. You've shouted at me. You have talked over me. You've made snide and insulting comments to me, demonstrating what you have stated to be your lack of respect for me. Your behavior is intolerable, but I want to put you on notice now that you will not comment. I am going to rule on evidence. You will not comment on my rulings. You will not be disrespectful to me or opposing counsel or I will dismiss your case. I want you to understand that.

         ‘‘I will not declare a mistrial. I will dismiss your case. You do not have to like me. I'm not asking you to. But you have to respect this process, or you have no right to be here. You can disagree but you cannot be-you cannot continue to be abusive. Your behavior has been abusive. You must present your case in a proper and respectful manner, in accordance with the rules of decorum and the rules of practice and the rules of evidence of this court, or it will be dismissed.

         ‘‘I want you to understand that. This is the-I should have warned you when we came back from lunch, and I deferred, because I thought maybe we could make some headway. But it's obvious to me after that scene that you just created by rudely turning your back, rushing out of the courtroom, slamming the swinging door against the wall, that you need to know and understand that this is the way it's going to be.

         ‘‘So, what I'd like to do now, if you will agree with what I just said, that you understand what I've just told you, Mr. Emerick, we can proceed. . . . But if you have no intention of behaving in a proper and civilized and nonabusive manner, then I think the sanction of dismissal is an appropriate one. Do you understand?'' (Emphasis added.) The plaintiff responded in the affirmative. Despite the court's statement, the plaintiff again challenged the honesty of the defendant's counsel specifically, and attorneys generally. Later that day, and outside the presence of the jury, the plaintiff raised his voice to the court, and after an objection was sustained, he remarked, ‘‘[n]o kidding.''

         THIRD DAY OF TRIAL-OCTOBER 30, 2015

         On the third day of trial, the court commented on the plaintiff's conduct. ‘‘I just have a few remarks I want to make before we begin. They're directed against the- primarily concerning the disruptive behavior of [the plaintiff] on [October 29, 2015], which needs to be addressed by the court. And I just want to say to you, Mr. Emerick, I know I may have said some of this previously, but it bears repeating.

         ‘‘Because you've chosen to represent yourself, it does not mean that you get to rewrite the rules of court to suit yourself. You are not an inexperienced litigant. This is not the first time that you have represented yourself in a civil proceeding. Your behavior thus far has been extremely disruptive and calculated in an effort to present your case in the peculiar way that you believe you should be entitled to present it, despite warnings that your tactics are improper and unacceptable in a court of law.

         ‘‘This court, the Superior Court, has existed-existed long before you filed your first pleading in this case. It will continue long after this lawsuit is history. Individual litigants do not come here on a blank slate, and you know this, based on your own courtroom experiences. There are rules of courtroom decorum, rules of civil practice, and rules of evidence established by our legislature and judges of the courts of this state that must be followed in fairness and justice to all parties to a litigation, the jury and the public.

         ‘‘You can't ignore the rules based on your own vision of how you should be able to present your case to a jury. Now, my goal is to conclude this trial on the merits, and I make this statement at this point to remark for the record that your behavior has been an outrageous display, disrespectful of opposing counsel, her client, and the jury, and the court, as I have noted. It has delayed the progress of this trial, caused the jury to be excluded from the courtroom for extended periods of time to go over, while we ...

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