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Speer v. Department of Agriculture

Court of Appeals of Connecticut

July 10, 2018

SHERI SPEER
v.
DEPARTMENT OF AGRICULTURE ET AL.

          Argued March 6 2018

         Procedural History

         Appeal from the decision of the named defendant affirming disposal orders for the plaintiff's dogs, brought to the Superior Court in the judicial district of New London and transferred to the judicial district of New Britain, where the court, Hon. George Levine, judge trial referee, rendered judgment of nonsuit; thereafter, the court denied the plaintiff's motion to open, and the plaintiff appealed to this court; subsequently, the court, Hon. George Levine, judge trial referee, issued an articulation of its decision. Reversed; further proceedings.

          Thompson G. Page, for the appellant (plaintiff).

          Denise Lillo Vecchio, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Matthew I. Levine, assistant attorney general, for the appellee (named defendant).

          Scott R. Ouellette, for the appellees (defendant city of Norwich et al.).

          Sheldon, Elgo and Bright, Js.

          OPINION

          BRIGHT, JUDGE

         The plaintiff, Sheri Speer, appeals from the judgment of the trial court denying her motion to open the judgment of nonsuit rendered in favor of the defendants, the Department of Agriculture (department), the city of Norwich (city), and Michele Lombardi, an animal control officer employed by the city. On appeal, the plaintiff claims that the court abused its discretion in denying her motion to open. We agree and, accordingly, reverse the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal.[1] On October 15, 2013, Lombardi, pursuant to General Statutes § 22-358, issued a disposal order to euthanize the plaintiff's two pit bull dogs after finding that the dogs had bitten three people. Thereafter, on October 17, 2013, the plaintiff appealed Lombardi's order to the department, and, following an administrative hearing, the hearing officer for the department issued a proposed final decision recommending that the Commissioner of Agriculture (commissioner) affirm the disposal order to euthanize the plaintiff's dogs. On August 5, 2015, the commissioner issued the final decision affirming the disposal order pursuant to § 22-358 (c).[2]

         On September 21, 2015, the plaintiff appealed to the Superior Court from the final decision of the commissioner pursuant to General Statutes § 4-183. On October 29, 2015, the court issued a notice to the parties ordering that they appear for a pretrial conference on November 16, 2015, at 3:30 p.m. The notice provided in relevant part: ‘‘If a party is an individual, the party must attend. . . . Failure to comply with the terms of this order may result in sanctions, including nonsuit or default.'' Plaintiff's counsel appeared on November 16, 2015, but the plaintiff did not. The plaintiff was available by telephone though, and actually spoke to the court. Nevertheless, on that date, the court rendered a judgment of nonsuit against the plaintiff ‘‘for failure to be present at the scheduled pretrial conference, as required in the pretrial order.''

         On December 9, 2015, after the expiration of the automatic appellate stay, the plaintiff filed her pro se appearance and a verified motion to open and set aside nonsuit, with a verified memorandum of law in support thereof.[3] In her motion to open, the plaintiff claimed that the court should not have rendered a judgment of nonsuit because her failure to appear ‘‘was not contumacious; [p]laintiff's counsel was present at the conference on the scheduled date and at the scheduled time; and [the] [p]laintiff was at all times available by telephone. See [Practice Book] § 14-13 (nonsuit is available at a pretrial conference only if the plaintiff ‘fails to attend or to be available by telephone'). The grounds for this motion are set forth in greater detail in the accompanying memorandum of law filed and served herewith.'' (Emphasis omitted.)

         In the plaintiff's memorandum of law in support of her motion to open, she claimed that ‘‘the [c]ourt telephoned [the] [p]laintiff and spoke to her during the [pretrial conference]. [The] [p]laintiff explained her absence was due to the fact that she did not recall receiving notice that she personally had to attend. The failure was not due to deliberate disregard of a pretrial order.'' In addition, the plaintiff set forth the nature of her cause of action. Specifically, she asserted that she has standing to pursue the administrative appeal, and identified her three claims: ‘‘(1) that [the] [d]efendants have failed to follow the requirements of . . . § 22-358 for dealing with allegedly dangerous dogs; (2) that [the] [d]efendants have deprived [the] [p]laintiff of procedural and substantive due process; and (3) that [the] [d]efendants have violated the automatic bankruptcy stay.''

         The court, without holding a hearing, issued an order denying the plaintiff's motion to open on December 11, 2015. The entirety of the court's order is as follows: ‘‘Practice Book § 14-13 requires parties to attend a pre-trial. The only person who can be ‘available by telephone' is an insurance adjuster.'' Thereafter, on December 31, 2015, the plaintiff filed a motion for reargument and reconsideration of the court's denial, pursuant to Practice Book § 11-12, and the court held a hearing on that motion on March 24, 2016. At the hearing, counsel appeared for the plaintiff, but the plaintiff did not appear. ...


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