68 Conn. App. 785 | Conn. App. Ct. | 2002
Opinion
The plaintiff Frank Usowski
The following facts and procedural history are necessary for our resolution of the plaintiffs appeal. This dispute arises from an alleged oral partnership agreement between the parties.
During discovery, the defendants made several requests for the production of documents and directed interrogatories to the plaintiff, seeking, in essence, the names of those individuals with information about the alleged partnership agreement. In response, the plaintiff produced some documents and answered the interrogatories with a list of fifteen, and then 122 names of individuals, including vendors, employees and customers of Pet Pantry.
We must first set forth the applicable standard of review.
We conclude that the first requirement of Hamilton Standard is not implicated. The record reveals that the order was reasonably clear. We must, therefore, consider whether the plaintiff in fact violated the order and whether the court abused its discretion in ordering a sanction that was not proportional to the violation and greater than that requested by the defendants. We address each issue in turn.
The plaintiff first argues that the court improperly found that there was a violation and that it improperly found that the plaintiff falsely had answered interrogatories with the intent to mislead. We are not persuaded.
“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Premier Capital, Inc. v. Grossman, 68 Conn. App. 51, 59, 789 A.2d 565 (2002).
The record shows that in November, 1999, the defendants filed a motion alleging discovery abuses by the plaintiff, specifically, that the plaintiff was engaged in an effort to ambuscade the defendants with the cost and inconvenience of taking depositions of all 122 people.
After the four depositions were taken, on March 21, 2000, the defendants filed a motion for sanctions against the plaintiff. The defendants argued that the four depositions did not shed light on the plaintiffs claims and, therefore, were evidence of the plaintiffs discovery abuse. The defendants also noted the court’s prior ruling that the plaintiff had failed to produce documents.
The plaintiff argues that the court improperly assessed the testimony in the four depositions that were
The plaintiff next argues that the court abused its discretion because the court’s monetary sanction was not proportional to his discovery violation.
The plaintiff, by leave of the court, modified his interrogatory responses to include only thirty-eight names. The court, therefore, should not have ordered payment for 118 depositions. The order was excessive. It also gave the defendants the option to depose any or all of the individuals at the plaintiffs cost, thus, inviting more abuse and delay. “[Discretion 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.” (Citations omitted; internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16. We therefore conclude that the sanction ordering the plaintiff to pay for the depositions was an abuse of discretion.
The plaintiff argues that the crux of his claim is that the court abused its discretion in ordering the aforementioned sanction. The plaintiff, however, has not appealed from a finding of contempt for failure to comply with a discovery order. Rather, the plaintiff appeals from a judgment of dismissal rendered against him for
In granting the defendants’ motion to dismiss, the court took into consideration the plaintiffs failure to comply with the defendants’ request for documents; see footnote 8; his evasive answers to interrogatories and failure to make the court-ordered payments to the clerk of the court. The plaintiff, however, properly notes that he could not appeal from the discovery order without refusing to pay. See Barbato v. J. & M. Corp., 194 Conn. 245, 250-51, 478 A.2d 1020 (1984). Notwithstanding the court’s citing the plaintiffs failure to pay, we are not persuaded that the court’s dismissal was an abuse of discretion.
The record supports the court’s conclusion that the plaintiff engaged in a pattern of discovery abuse. First, the plaintiff failed to comply with the court’s orders to compel the production of requested documents by providing only certain documents.
The judgment of dismissal is affirmed. The order that the plaintiff pay $72,216 to the clerk of the Superior Court is vacated and the case is remanded for reconsideration, consistent with this opinion, and articulation of the basis of the sanction to be imposed, if any, on the plaintiff for his discovery violation.
In this opinion the other judges concurred.
Douglas C. Staley also was a plaintiff at trial. Because only Usowski has appealed, we refer to him in this opinion as the plaintiff unless otherwise indicated.
The defendants are Barry J. Jacobson, Adam Jacobson, Pet Pantry Super Discount Stores, LLC, and Pet Pantry Warehouse.
The plaintiff Douglas C. Staley also had alleged that he was a partner in the defendants’ business.
The counterclaims subsequently were withdrawn.
We note that the record suggests that the number of names may have been as high as 140.
We note that before oral argument was heard, both parties gave this court notice of the Supreme Court’s decision in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 776 A.2d 1115 (2001). We agree that the standard articulated in that case is applicable here.
The defendants also pointed out that while the plaintiff Douglas C. Staley had made representations in this action that he was part owner of Pet Pantry, in a pending dissolution of marriage action, he failed to list Pet Pantry as an asset and indicated his salary as an employee at Pet Pantry.
On July 17, 1998, the defendants requested the production of several documents, pursuant to Practice Book § 13-9, indicating the existence of a partnership between the parties. Among the specific requests were the plaintiffs tax returns, W-2 forms, capital contributions, and profits and losses of the alleged partnership and communications between the parties. The defendants filed a “Fifth Request for Production and Documents” on November 4, 1998, seeking documents, and a motion to compel the plaintiff to respond to the defendants’ request for documents. On April 12, 1999, the court ordered compliance; however, the plaintiffs compliance was inadequate. The plaintiff produced only a computer printout of his 1997 tax return. As a result, the court ordered that “documents requested but not produced are taken as establishing that both plaintiffs are employees of Pet Pantry and not owners or partners.”
The court ordered the plaintiff to pay the costs for the remaining 118 depositions, an estimated total of $72,216. Upon reargument, the court modified its order such that the plaintiff was required within two weeks to pay to the clerk of the Superior Court $23,256, the cost of thirty-eight depositions (thirty-nine less one deposition already taken among the original four). A
The plaintiff also argues that the sanction was not requested by the defendants and was, therefore, an abuse of discretion. We note that the record does not support that contention. That claim, therefore, does not form the basis of our conclusion.
The defendants filed their motion to dismiss in response to the plaintiffs failure to make court-ordered payments to the clerk of the court.
See footnote 8.
With respect to the interrogatories, one of the plaintiffs responses, dated April 6, 1999, stated, “[M]any past and present employees, vendors and customers of Pet Pantry, including but not limited to . . . Usowski family members and Staley family members [in a list of approximately fifteen specific names].” On April 9, 1999, the defendants filed a motion to compel the plaintiff to provide responsive interrogatory answers. The defendants, through their counsel, also wrote two letters to the plaintiff, requesting compliance and pointing out inadequacies in the plaintiffs production. The defendants filed a second motion to compel, dated September 8, 1999, seeking full compliance with the court’s April 12, 1999 order.