KRISTEN KUSELIAS v. ZINGARO & CRETELLA, LLC, ET AL.
AC 45952
Appellate Court of Connecticut
March 12, 2024
Suarez, Clark and Seeley, Js.
Argued November 9, 2023
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Syllabus
The plaintiff sought to recover damages from the defendants, an attorney and the law firm with which he was engaged in the practice of law, for their alleged legal malpractice in connection with their representation of her during certain postdissolution proceedings. The trial court had rendered a judgment of nonsuit in a prior action against these same defendants as a result of the plaintiff‘s failure to comply with certain discovery orders and thereafter denied the plaintiff‘s motion to open the judgment. The plaintiff commenced the present action pursuant to the accidental failure of suit statute (
1. The plaintiff could not prevail on her claim that the trial court improperly rendered summary judgment in favor of the defendants with respect to the legal malpractice and negligent misrepresentation counts of her complaint, which was based on her claim that those counts were not time barred by the applicable statute of limitations (
2. The trial court did not abuse its discretion in denying the plaintiff‘s motion to reargue and reconsider its ruling on the defendant‘s motion for summary judgment: the plaintiff‘s motion did not demonstrate to the trial court that there was some decision or other principle of law that would have had a controlling effect and had been overlooked or that there had been a misapprehension of facts but, rather, was the quintessential example of a party seeking the proverbial second bite of the apple, as the record reflected that the plaintiff used the motion to present a different argument than that on which she had relied in opposing the motion for judgment of nonsuit in the prior action, when she sought to open the judgment of nonsuit, and in opposing the motion for summary judgment in the present action; moreover, the plaintiff submitted certain evidence in support of the motion to reargue and reconsider that contradicted the evidence on which she had relied previously, and the nature of that evidence, which pertained to events that predated the judgment of nonsuit, compelled the conclusion that it was not newly discovered, and, under our rules of practice (§ 17-45), the time to submit relevant evidence in connection with a motion in support of or in opposition to a motion for summary judgment is before the motion is heard, not following an adverse ruling on the motion.
Argued November 9, 2023—officially released March 12, 2024
Action to recover damages for, inter alia, the defendants’ alleged legal malpractice, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Abrams, J., granted the defendants’ motion for summary judgment and rendered judgment thereon; thereafter, the court, Abrams, J., denied the plaintiff‘s motion to reargue and reconsider, and the plaintiff appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Valerie M. Ferdon, with whom, on the brief, was Kerry R. Callahan, for the appellee (defendants).
Opinion
SUAREZ, J. The plaintiff, Kristen Kuselias, brought the civil action underlying this appeal, in which she raised claims of legal malpractice, breach of contract, and negligent misrepresentation against the defendants, the law firm of Zingaro & Cretella, LLC, and Attorney Eugene J. Zingaro. The plaintiff appeals from (1) the judgment of the trial court rendered in favor of the defendants after it granted their motion for summary judgment with respect to all three counts of her complaint and (2) the denial of her subsequent motion to reargue and reconsider. The plaintiff claims that the court erred by (1) granting the defendants’ motion for summary judgment with respect to her claims of legal malpractice and negligent misrepresentation, despite her assertion that these claims could properly be brought pursuant to General Statutes
The following procedural history is relevant to the claims raised in the present appeal. In July, 2021, the plaintiff commenced the underlying action. In the plaintiff‘s
In count one of the plaintiff‘s complaint, sounding in legal malpractice, she alleged that, from approximately August 12 to December 7, 2015, the defendants represented the plaintiff in the postdissolution proceedings. The plaintiff retained the defendants “to perform discovery and schedule a hearing to have the financial orders [that were the product of the dissolution action] opened and redetermined based on the discovery of new and significantly different financial information [than] was produced at the time of the divorce.” The defendants’ appearance was in lieu of another attorney, Michael Perzin. Perzin had successfully litigated a motion to open the August 30, 2012 judgment of dissolution on the basis of alleged fraud committed by the plaintiff‘s former husband during the dissolution proceeding.1 Specifically, following an Oneglia hearing,2 the court determined that the plaintiff had substantiated the allegations of fraud beyond mere suspicion, thus permitting her to engage in discovery.
The plaintiff further alleged that, on or about October 22, 2015, Zingaro filed a second motion to open and vacate the August 30, 2012 judgment of dissolution and requested that the court schedule a hearing on the motion. The court scheduled a hearing for December 7, 2015. In her complaint, the plaintiff alleged that, at the hearing on the motion to open, Zingaro, having failed to conduct reasonable discovery to reveal the nature and extent of the fraud that had occurred in connection with the dissolution action,3 conferred with the
In count two, sounding in breach of contract, the plaintiff, relying on the factual allegations set forth in count one, alleged that “[t]he legal relationship and agreement between the plaintiff and the defendants constituted a contract which was formed by the execution of the retainer agreement and by virtue of the oral agreements and understandings of the parties.” The plaintiff alleged that the contract “was a contract for a specific result, namely, the representation of the plaintiff‘s interests during her postjudgment action.” According to the plaintiff, the defendants breached the terms of the contract, and, as a direct and proximate result of that breach, she suffered a variety of damages.
In count three, sounding in negligent misrepresentation, the plaintiff, relying on the factual allegations set forth in count one, alleged that “[t]he defendants, at various times during [their] representation, made material representations of fact that the defendants knew, or reasonably should have known, were untrue.” These misrepresentations related to the adequacy of the alimony award and property division, the accuracy of the financial information provided by the plaintiff‘s former husband, the adequacy of the stipulation to protect the plaintiff‘s rights in the marital estate and the marital income, the fact that the defendants would conduct reasonable discovery, and the fact that the defendants would obtain for the plaintiff adequate alimony and support. The plaintiff alleged that she reasonably relied on these material factual misrepresentations and that, as a result, she “was damaged and lost the likelihood of additional alimony, additional property, incurred excessive and unnecessary attorney‘s fees, and lost support and interest.”
In their answer, the defendants admitted that they represented the plaintiff in the postdissolution proceedings and that they had advised her and negotiated a settlement on her behalf. The defendants either denied or left the plaintiff to her proof with respect to many of the factual allegations in her complaint. The defendants denied that they breached the applicable standard of care, breached any contract with the plaintiff, or made any misrepresentations to the plaintiff. By way of a first special defense, the defendants alleged that the first and third counts were barred by the three year statute of limitations applicable to tort actions, General Statutes
On January 11, 2022, the defendants filed a motion for summary judgment. The defendants argued in relevant part that “[t]he plaintiff initiated an original action against the defendants three years ago; [Kuselias v. Zingaro & Cretella, LLC, Superior Court, judicial district of New Haven, Docket No. CV-19-6087780-S (Kuselias I)]; alleging legal malpractice, breach of contract, and negligent misrepresentation. Kuselias I resulted in a judgment of nonsuit against the plaintiff for her blatant disregard of court orders. The plaintiff has now [in the present case] filed a nearly identical complaint, Kuselias II,5 seeking to relitigate the same claims. Contrary to the plaintiff‘s contentions, the first and third counts are time barred and cannot be saved by the accidental failure of suit statute . . . .”6 (Footnote added.)
In the defendants’ memorandum of law accompanying their motion for summary judgment, the defendants elaborated on their argument, stating that, as a matter of law, the claims in the first and third counts of the complaint were subject to the three year statute of limitations for tort claims codified in
The defendants argued that there was no genuine issue of material fact with respect to whether the accidental failure of suit statute could be applied to save the claims set forth in counts one and three. Specifically, the defendants argued that the facts in Kuselias I reflect that the judgment of nonsuit was rendered for disciplinary reasons following the plaintiff‘s egregious noncompliance with discovery, not because of a matter of form that would have brought the failure of the prior action to be tried within the purview of the accidental failure of suit statute. In an attempt to demonstrate that the accidental failure of suit statute could not be applied in the present case, the defendants relied on exhibits that they had attached to their memorandum of law. These exhibits detailed the procedural history in Kuselias I and, in particular, the history of the plaintiff‘s noncompliance with discovery that led the court, Wahla, J., on October 26, 2020, to grant the defendants’ motion for a judgment of nonsuit for the plaintiff‘s failure to comply with discovery.
In support of their motion for summary judgment in Kuselias II, the defendants presented evidence that, in Kuselias I, the plaintiff had repeatedly failed to meet deadlines, and then failed to meet extended deadlines, for compliance with a request for production of certain documents, interrogatories, and a request to disclose an expert witness. The defendants presented evidence that, in Kuselias I, in light of the plaintiff‘s repeated noncompliance, they brought a motion for order of compliance before the court, Wilson, J., which granted the motion, thereby affording the plaintiff until March 16, 2020, to comply with discovery.8 The plaintiff did not comply with this deadline, which led the defendants to bring the motion for nonsuit in Kuselias I.
In support of their motion for summary judgment in Kuselias II, the defendants also relied on the fact that, after the court granted the motion for nonsuit in Kuselias I, the plaintiff filed a motion to open in Kuselias I, which is governed by
The plaintiff in Kuselias II filed a memorandum of law in opposition to the defendants’ motion for summary judgment. Not disputing that counts one and three were time barred, the plaintiff attempted to demonstrate that a genuine issue of material fact existed with respect to the applicability of the accidental failure of suit statute. In support of the plaintiff‘s memorandum of law, the plaintiff submitted her own affidavit. Relying on the averments therein, the plaintiff in her objection attempted to demonstrate that, in Kuselias I, she made attempts to comply with the court‘s discovery order but could not do so “[d]ue to the onset of panic attacks and anxiety [and that she] was triggered when she reviewed the documents from her divorce. This inability in the prior action led the trial court to grant [a] nonsuit in favor of the [defendants] without an evidentiary hearing.” The plaintiff attempted to demonstrate that she “simply could not discuss and provide the information [regarding the discovery request at issue] to counsel.” She argued that the averments in the affidavit demonstrated that she attempted to respond to the discovery request, developed anxiety and panic attacks when she attempted to respond to the request, became homeless and unemployed during the period of time at issue, concealed her suffering due to the fear that exposure would affect her children and custody, and “kept this information from her counsel and the court because of fear and embarrassment.” In light of the foregoing, the plaintiff argued that a genuine issue of material fact existed with respect to whether the failure to comply with the court‘s discovery request in Kuselias I was due to excusable neglect, rather than serious misconduct. Thus, the plaintiff argued that the circumstances
On May 16, 2022, the court, Abrams, J., heard oral argument with respect to the defendants’ motion for summary judgment in Kuselias II. On August 29, 2022, the court, in a thorough memorandum of decision, rendered its judgment granting the motion. The court aptly summarized the plaintiff‘s argument, namely, that she was entitled to try her case on its merits because the judgment of nonsuit in Kuselias I had been rendered for a matter of form. The court noted that the plaintiff had attempted to demonstrate that she was unable to comply with discovery “as a result of the emotional turmoil triggered by her attempts to review the documents relevant to discovery. . . . She contends that she could not discuss and provide the information to counsel and that she hid her problem out of fear and embarrassment.” (Citation omitted.) In its analysis of whether the accidental failure of suit statute applied, the court correctly stated that “[t]he critical question is whether the judgment of nonsuit entered in Kuselias I resulted from a ‘matter of form.’ The defendants argue that there is no genuine issue of material fact that the nonsuit did not result from mistake, inadvertence, or excusable neglect. Rather, they contend, the plaintiff blatantly disregarded the court‘s orders with respect to interrogatory responses, document production, and expert disclosure compliance. . . . They specifically point out that the plaintiff has not offered any explanation for her failure to disclose an expert witness. . . . Moreover, they argue that the noncompliance in this case was not a singular, isolated incident, but a pattern that persisted over one year and four months. . . . They point out that, neither the fact [that] the production demanded required review of a large volume of nearly 7000 pages of documents, nor that the plaintiff became confused with respect to timelines will carry the day. . . . Finally . . . they suggest that the explanation the plaintiff offers in her affidavit for discovery noncompliance—that she had a difficult time and her counsel did not understand how to help her—is vague at best.”
The court observed that, setting aside the plaintiff‘s reasons for not responding to requests for production of documents or replying to interrogatories in Kuselias I, there was no genuine issue of material fact that, at the time of the May 5, 2021 hearing on the motion to open the judgment of nonsuit in Kuselias I, the plaintiff had still not disclosed an expert witness. Indeed, the court observed that, at the May 5, 2021 hearing, the plaintiff‘s counsel acknowledged that an expert had not been disclosed because he did not feel it was appropriate to ask his client to pay for an expert witness in light of the fact that a judgment of nonsuit had been rendered. The court stated that failing to disclose an expert witness without a viable explanation is not a matter of form, and that “there is no genuine dispute of material fact that the plaintiff‘s failure to disclose an expert did not result from excusable neglect, mistake, or inadvertence.” In ruling on the motion for summary judgment, the court noted that “the plaintiff‘s only piece of evidence, her affidavit, does not address her failure to comply with expert disclosure, but only her purported inability to address the task of reviewing documents. . . . Nor does the plaintiff address noncompliance with expert disclosure in her brief. In the absence of a genuine dispute of material fact, whether a prior judgment of nonsuit resulted from a matter of form is a legal question for the trial court.” (Citation omitted.) The court concluded that the record in Kuselias I reflected that the failure to disclose an expert
With respect to the issue of noncompliance with discovery in Kuselias I, the court, in ruling on the motion for summary judgment in Kuselias II, noted that the plaintiff had attempted to demonstrate that it was very difficult for her to comply with the defendants’ interrogatories and its request for the production of documents. The court stated, however, that, because the plaintiff did not aver in her affidavit that her failure to respond to the defendants’ discovery requests was the result of a serious illness or a circumstance beyond her control, her affidavit was, itself, proof that Kuselias I was not terminated due to mistake or inadvertence. Although the court noted that the plaintiff had averred that she experienced psychological stress and related mental health symptoms when she attempted to comply with her discovery obligations, the court reasoned that “[a] lack of diligence resulting from being busy, distracted, or otherwise experiencing the stresses of life is not, in and of itself, excusable neglect, inadvertence, or mistake.” The court noted that, although it did not mean to diminish the plaintiff‘s psychological symptoms, it was presented with a situation in which it appeared that the plaintiff‘s counsel did not fulfill his obligation “to step in and address the issues outlined in the plaintiff‘s affidavit” but had, instead, pursued a policy of “simply [standing] back and [waiting] repeatedly [to] throw themselves on the mercy of the court after failure to meet deadline after deadline.”
On September 19, 2022, after the court rendered summary judgment in favor of the defendants with respect to all three counts of the plaintiff‘s complaint, the plaintiff filed a motion to reargue and reconsider pursuant to Practice Book § 11-11 et seq. The plaintiff argued that the court had misapprehended the facts and misapplied the law. On September 27, 2022, the defendants filed an objection to the plaintiff‘s motion to reargue and reconsider. On September 30, 2022, the plaintiff filed a reply to the defendants’ objection. By order dated October 11, 2022, the court denied the plaintiff‘s motion to reargue and reconsider. This appeal from the court‘s rendering of summary judgment and the court‘s denial of the motion to reconsider followed. Additional procedural history will be set forth as relevant.
I
First, the plaintiff claims that the court erred in granting the defendants’ motion for summary judgment with respect to her claims of legal malpractice and negligent misrepresentation because these claims could properly be brought pursuant to the accidental failure of suit statute. We are not persuaded.
We begin by setting forth the following applicable legal principles. “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . When documents submitted in
“[I]n the context of a motion for summary judgment based on a statute of limitations special defense, [the defendants] typically [meet their] initial burden of showing the absence of any genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period. . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute. . . . Put differently, it is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Citation omitted; internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014). In the present case, although the plaintiff relies not on an equitable exception to the statute of limitations, but on a remedial statute, the plaintiff‘s burden in opposing the defendants’ motion for summary judgment is not in dispute. After the defendants set forth uncontroverted facts demonstrating that the claims set forth in counts one and three of Kuselias II were brought outside of the statutory limitation period established by
Section 52-592 (a) provides: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or because the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”
“Deemed a ‘saving statute,’
The plaintiff expressly relies on the portion of
“In concluding that even disciplinary dismissals are not excluded categorically from the relief afforded by
In the present case, the plaintiff was afforded an opportunity to present evidence and make a factual showing that the disciplinary dismissal—the judgment of nonsuit—that occurred in Kuselias I was a matter of form that fell within the ambit of
In its decision rendering summary judgment, the court accurately characterized the evidence before it with respect to the plaintiff‘s failure to disclose an expert in
“In the present matter, there is no genuine dispute of material fact that the plaintiff‘s failure to disclose an expert did not result from excusable neglect, mistake, or inadvertence. Per the original scheduling order in Kuselias I, the plaintiff had a September 20, 2019 deadline, which the court twice extended, to disclose experts. . . . On May 5, 2021, at oral argument on the motion to open, the plaintiff‘s counsel informed the court that, ‘[i]n order for us to put this case on track, we would have to disclose our expert witness. And we have not disclosed an expert because at this point the case is in a [nonsuit state]. I can‘t ask the client to pay for an expert for no reason at this point. But I could promptly do so within [thirty] to [forty-five] days . . . .’ Counsel also pointed out that Kuselias I had not been scheduled for trial. Denying the motion [to open], Judge Wahla elaborated that the plaintiff had not complied with the expert disclosure deadline because she never obtained an expert in the first instance, and still had not done so as of the May 5, 2021 hearing. . . . Rejecting the plaintiff‘s contentions, Judge Wahla chastised the plaintiff‘s counsel: ‘Disclosure is not meant whether it‘s going to be a jury trial or not. Disclosure is meant that the other party can depose, discern where the case stands so that the resolution can be brought.’ For her part, the plaintiff‘s only piece of evidence, her affidavit, does not address her failure to comply with expert disclosure, but only her purported inability to address the task of reviewing documents. . . . Nor does the plaintiff address noncompliance with expert disclosure in her brief [submitted in opposition to the motion for summary judgment].” (Citations omitted; emphasis omitted; footnote omitted.)
It was not in dispute that the plaintiff failed to retain, let alone disclose, an expert witness by the time of the May 5, 2021 hearing on the motion to open the judgment of nonsuit in Kuselias I. In light of the explanation proffered by the plaintiff‘s counsel at the May 5, 2021 hearing on the motion to open, the failure to retain an expert may only be attributed to the plaintiff‘s deliberate goal of avoiding costs. This deliberate strategy was contrary to the plaintiff‘s obligations pursuant to Practice Book § 13-4, which governs the timely disclosure of expert witnesses, and the multiple deadlines for disclosure imposed by the court in Kuselias I. In granting the motion for summary judgment in Kuselias II, the court concluded that a genuine issue of material fact did not exist with respect to the issue of whether “intentional dilatory conduct” led the judgment of nonsuit in Kuselias I, and we agree. This is not a circumstance in which the action was defeated by mistake, inadvertence, or excusable neglect; insofar as it was based on the plaintiff‘s failure to disclose an expert, the judgment of nonsuit resulted from a deliberate disregard for the court‘s authority. Accordingly, the plaintiff did not demonstrate that there was a genuine issue of material fact with respect to whether the accidental failure of suit statute applied.10
In opposing the motion for summary judgment in Kuselias II, the plaintiff submitted her own affidavit, in which she attempted to demonstrate that the judgment of nonsuit was rendered as the result of a matter of form. The reasons set forth in the affidavit, viewed in the light most favorable to the plaintiff, do not suggest mistake or inadvertence. The plaintiff does not dispute that noncompliance occurred but asserts that the noncompliance was the result of excusable neglect in that she experienced negative emotional, physical, and psychological effects when she either considered or attempted to comply with the discovery requests at issue that were made by the defendants. The plaintiff averred that she suffered anxiety, hopelessness, panic attacks, sleep disturbances, poor concentration, flashbacks, painful thoughts, nightmares, increased heart rate, and “severe pressure in [her] head.” She did not, however, describe the frequency or duration of these negative events during the lengthy period in which she failed to comply with discovery orders. Rather, the plaintiff stated in her affidavit that the discovery requests triggered negative emotions and anxiety because they caused her to recall unpleasant facts related to her relationship with her former husband, the representation afforded to her by Zingaro, and the stipulation that Zingaro negotiated on her behalf. The plaintiff explained in the affidavit that she had made some attempts to respond to the discovery requests, but she was “unable to do so.”11 The plaintiff also averred that she was unaware of the importance of her
In granting the motion for summary judgment, the court properly considered these averments in the light most favorable to the plaintiff.13 The court concluded, however, that they did not amount to excusable neglect. Rather, the court, although acknowledging “the severity of the problems the plaintiff encountered,” reasoned that they were largely based on “the personal stress and strain engendered by litigation” related to an acrimonious divorce. The law does not provide an easily applied test to determine what situations amount to excusable neglect. Our case law merely contrasts excusable neglect, or matter of form in general, with conduct that might be deemed to be egregious or conduct that suggests gross negligence. Kuselias I does not reflect an isolated failure to comply with discovery requests, that a mistake was made, or that a delay occurred due to an unfortunate misunderstanding or oversight. Rather, Kuselias I reflects a reoccurring failure to comply timely with discovery obligations due to a lack of diligence by the plaintiff and her attorney. We agree with the court that the events and personal trauma experienced by the plaintiff when she attempted to respond to the court‘s clear and unambiguous discovery orders, although difficult for her to endure, did not amount to excusable neglect. The evidence before the court in connection with the motion for summary judgment reflects a pattern of the plaintiff attempting to comply with the orders at issue, repeatedly being “triggered” by the information related to her former husband and Zingaro, and then simply failing to comply with the orders. The plaintiff‘s affidavit, viewed in the light most favorable to her, reflects that compliance was difficult, but not impossible, and that, although she
The facts of this case are analogous to those that were at issue in Estela v. Bristol Hospital, Inc., 179 Conn. App. 196, 180 A.3d 595 (2018) (Estela II). Estela II followed a prior action between the parties; Estela v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV-11-6013260-S (Estela I); that resulted in a judgment of nonsuit as a result of the plaintiff‘s discovery noncompliance. Id., 200, 210. The plaintiff in Estela II, relying on the accidental failure of suit statute to avoid a claim that the action was time barred, commenced a second, nearly identical action against the same defendant that he had named in Estela I. Id., 201-202. The defendant filed a motion for summary judgment in Estela II on the ground that the action was time barred. Id. Later, the court granted the defendant‘s motion to bifurcate the trial to determine whether
This court, in Estela II, noted that the trial court properly had considered the plaintiff‘s justifications for the discovery noncompliance that had led to the disciplinary dismissal in Estela I and had properly considered whether the plaintiff‘s conduct amounted to a matter of form in accordance with the analysis of our Supreme Court in Ruddock v. Burrowes, supra, 243 Conn. 575-76. Estela v. Bristol Hospital, Inc., supra, 179 Conn. App. 215. After conducting a thorough analysis of the evidence presented to the trial court in connection with the defendant‘s motion for summary judgment in Estela II, this court agreed with the trial court that
We are mindful of the difficulties that the plaintiff experienced in her attempts to comply with discovery in Kuselias I, but there is an element of lackadaisical behavior with respect to the need to either comply with orders or to promptly seek an extension of time once it becomes apparent that compliance is impossible. See, e.g., Gillum v. Yale University, 62 Conn. App. 775, 783, 787, 773 A.2d 986 (concluding that
In light of the foregoing, we conclude that the court correctly examined the evidence before it and correctly determined that a genuine issue of material fact did not exist with respect to whether the conduct that led to the judgment of nonsuit in Kuselias I was a matter of form. Accordingly, we conclude that the court properly rendered summary judgment in favor of the defendants because the plaintiff was unable to demonstrate that she was entitled to the remedial benefit of the accidental
II
Next, the plaintiff claims that the court erred in denying her motion to reargue and reconsider its ruling on the motion for summary judgment. We are not persuaded.
As stated previously in this opinion, after the court rendered summary judgment in favor of the defendants with respect to all three counts of the plaintiff‘s complaint, the plaintiff filed a motion to reargue and reconsider pursuant to Practice Book § 11-11. The plaintiff argued that the court had misapprehended the facts and misapplied the law. Specifically, the plaintiff argued that “[t]he court failed to apprehend or address the facts establishing that the plaintiff in fact cooperated fully in discovery in the underlying action. She was deposed, provided all requested documents, and responded to interrogatories. These facts alone establish a genuine issue of material fact sufficient to deny the motion for summary judgment.”
In connection with the motion to reargue and reconsider, the plaintiff submitted the affidavit of Votre, the attorney who represented her in Kuselias I and Kuselias II. In his seven page affidavit, which sets forth fifty-four separate averments, Votre stated that the plaintiff “in fact substantially complied” with the discovery requests made by the defendants in Kuselias I but that the defendants had “twisted the facts before this court” to demonstrate otherwise. The plaintiff also submitted what is captioned as an “amended and corrected affida- vit . . . in support of motion to reargue.” In the plaintiff‘s affidavit, which is eleven pages long and sets forth seventy-three separately numbered averments, the plaintiff stated that she had “in fact substantially complied, if not completely complied, with the discovery requests in [Kuselias I]. The defendants’ arguments twisted the facts before this court . . . .” She also averred that she had “produced in an organized manner nearly 6000 pages of documents in full compliance with the defendants’ production requests long before any nonsuit was entered.” The plaintiff also averred that, on December 14 and 29, 2020, she had responded to the defendants’ second set of interrogatories, which was nearly a duplicate of the first set of interrogatories that had been submitted to her.
The defendants objected to the plaintiff‘s motion on several grounds, including that (1) the plaintiff‘s contentions were “blatantly false” and the record plainly revealed that the plaintiff had ignored all deadlines and discovery orders until after the judgment of nonsuit had been rendered against her in October, 2020, (2) the motion was an improper attempt by the plaintiff to obtain “a second bite at the
Thereafter, the plaintiff filed a reply to the defendants’ objection. At this juncture, the plaintiff argued that the record did not reflect that the court, in rendering a judgment of nonsuit, relied on the fact that the plaintiff had failed to disclose an expert. The plaintiff argued that “expert disclosure has nothing to do with the status of this case and . . . the court was misled by the defendants [when it granted the motion for summary judgment].” By order dated October 11, 2022, the court summarily denied the motion to reargue and reconsider.
“The standard of review regarding challenges to a court‘s ruling on a motion for reconsideration is abuse of discretion. As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Internal quotation marks omitted.) Fain v. Benak, 205 Conn. App. 734, 746, 258 A.3d 112 (2021), appeal dismissed, 345 Conn. 912, 283 A.3d 980 (2022).
Even though the plaintiff captioned her motion as a “motion to reconsider” that was brought pursuant to Practice Book § 11-11, in the very first paragraph of the motion the plaintiff states that she “moves for reconsideration and reargument pursuant to Practice Book § 11-11.” (Emphasis added.) This court has observed that “[m]otions for reargument and motions for reconsideration are nearly identical in purpose. [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. . . . A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it. . . . While a modification hearing entails the presentation of evidence of a substantial change in circumstances, a reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law. . . . [Reargument] may be used to address alleged inconsistencies in the trial court‘s memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court. . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.” (Citation omitted; footnote omitted; internal quotation marks omitted.) Antonio A. v. Commissioner of Correction, 205 Conn. App. 46, 74-75, 256 A.3d 684, cert. denied, 339 Conn. 909, 261 A.3d 744 (2021).
The plaintiff‘s motion to reargue and reconsider is the quintessential example of a party seeking the proverbial second bite of the apple. The record reflects that the plaintiff has not used the motion for one of the proper purposes discussed previously in this opinion. Rather, the plaintiff used the motion to reargue and reconsider to present a different argument than that on which she had consistently relied when opposing the motion for judgment of nonsuit in Kuselias I, when seeking to open the judgment of nonsuit in Kuselias I, and in opposing the motion for summary judgment in Kuselias II. Moreover, in connection with the motion to
The judgment is affirmed.
In this opinion the other judges concurred.