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Levine v. Hite

Court of Appeals of Connecticut

April 16, 2019

MICHELLE LEVINE
v.
RANDALL HITE ET AL.

          Argued January 15, 2019

         Procedural History

         Action to recover damages for personal injuries sustained as a result of the defendants' alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Shapiro, J., denied the defendants' motion to compel; thereafter, the court, Sheridan, J., issued certain orders pertaining to trial; subsequently, the court, Shapiro, J., denied the defendants' motion for reargument and reconsideration of its ruling denying the defendants' motion to compel; thereafter, the court, Noble, J., granted the plaintiff's motion for a continuance, granted the defendants' motion for reargument and reconsideration of the denial of their motion to compel, and issued certain orders pertaining to discovery; subsequently, the court, Noble, J., denied the plaintiff's motion for reargument and reconsideration of its orders pertaining to discovery; thereafter, the court, Hon. Constance L. Epstein, judge trial referee, granted the defendants' motion for an order of compliance; subsequently, the court, Hon. A. Susan Peck, judge trial referee, denied the defendants' motion for a judgment of nonsuit and issued certain orders pertaining to discovery; thereafter, the court, Hon. A. Susan Peck, judge trial referee, issued an order of nonsuit and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          Jennifer B. Levine, with whom was Harvey L. Levine, for the appellant (plaintiff).

          William J. Melley III, for the appellees (defendants).

          Alvord, Prescott and Eveleigh, Js.

          OPINION

          ALVORD, J.

         The plaintiff, Michelle Levine, appeals from the trial court's judgment of nonsuit rendered in favor of the defendants, Randall Hite and Tanya Hite, as a result of the plaintiff's failure to comply with three previous orders of the court regarding discovery. On appeal, the plaintiff claims that (1) the court, Noble, J., improperly raised and considered a prior ruling of the court, Shapiro, J., without affording her a fair opportunity to respond, (2) the plaintiff's failure to comply with discovery orders did not warrant the rendering of a judgment of nonsuit by the court, Hon. A. Susan Peck, judge trial referee, and (3) Judge Peck improperly declined to consider the plaintiff's motion for sanctions against the defendants' counsel prior to rendering the judgment of nonsuit. We affirm the judgment of the trial court.

         A review of the following somewhat complicated procedural history is necessary to our resolution of the issues on appeal. In December, 2012, the plaintiff commenced a personal injury action against the defendants claiming that she was operating her vehicle on or about December 6, 2010, when it was struck by another vehicle operated by Randall Hite and owned by Tanya Hite. The matter was scheduled for trial with jury selection to commence on December6, 2016. Because ofscheduling issues raised by the plaintiff's counsel and the defendants' counsel, the parties discontinued jury selection after one day, and the court continued the trial to January 4, 2017.

         Jury selection commenced on January 5, 2017. On January 6, 2017, the defendants filed a ‘‘Motion to Compel And/Or Preclude'' (motion to compel) in response to a Blue Cross/Blue Shield printout, evidencing medical payments that the plaintiff had provided to the defendants on January 4, 2017. In the motion to compel, the defendants claimed that the plaintiff had failed to produce certain designated records. They requested that the court order her to produce those records at least twenty-four hours prior to the start of evidence or else be precluded from entering any evidence of her physical injuries at trial.

         Jury selection was completed on January 11, 2017, and the trial was scheduled to commence on January 18, 2017. On January 12 and 13, 2017, Judge Shapiro heard arguments on the defendants' motion to compel and the defendants' objections to the plaintiff's proposed exhibits that were being premarked by counsel for trial. On January 18, 2017, Judge Shapiro informed the parties that four of the eight jurors selected had written letters to the court requesting that they be excused from serving on the jury. Judge Shapiro stated that the presiding judge had excused those jurors, which left the parties without a jury for trial. Because the case could not proceed at that time, Judge Shapiro indicated that he would put on the record his rulings on the matters previously argued by counsel.

         With respect to the defendants' motion to compel, Judge Shapiro concluded that the motion was ‘‘untimely'' and denied the motion for the following reasons: ‘‘The return date in this matter was January 8, 2013. The plaintiff is proceeding on the original complaint dated November 20, 2012. The plaintiff's deposition was taken in January, 2015.

         ‘‘On October 7, 2015, the court entered a scheduling order. Therein it was stated that written discovery was done and the-all depositions were to be completed by November 15, 2016.

         ‘‘On that same date, October 7, 2015, which is obviously over a year ago, the court-not this court but a court officer-held a pretrial conference. It's undisputed that at that pretrial conference, as part of her written presentation, the plaintiff presented a printout of her medical expenses. See Plaintiff's Exhibit 1 to the January 12, 2017 hearing.

         ‘‘That printout lists dates and services, types of services, and names of medical providers of the plaintiff beginning in December, 2010. The names of providers and dates of services were provided to the defendants, and the bulk of the dates of records they complain of not receiving were made known to them at that time.

         ‘‘Had the defendants wanted more information or records, they could have taken steps to obtain them before jury selection began. For example, they could have asked the plaintiff to provide the additional records well in advance of the trial. They already had a medical authorization to obtain records and could have used it or asked for another from the plaintiff. The defendants could have sought to redepose the plaintiff. . . .

         ‘‘Also, in their motion, the defendants provided no exhibits, such as the plaintiff's previous responses to their written discovery requests.

         ‘‘The defendants could have timely filed a motion to compel long before trial saying that previous discovery compliance was incomplete, that the plaintiff had failed to disclose her medical condition and treatment. They could have asked for a status conference to discuss issues they have belatedly raised in their motion. The court's docket reflects that no motion to compel was filed until January 6, which was after jury selection had begun.

         ‘‘The court finds that the defendants were on notice in October, 2015, of issues which they are raising now in their motion, more than a year later. The defendants' presentation is untimely.''

         On January 20, 2017, the court, Sheridan, J., entered the following order in this case:

         ‘‘Jury selection will commence on March 14, 2017. This is a firm trial date. Both counsel are responsible for ensuring that they and their clients and witnesses are ready for trial on the scheduled date. NO FURTHER CONTINUANCES OF THE TRIAL DATE WILL BE PERMITTED, absent compelling ...


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