*1 not suf- nonconformance, it would hardship claimed no they made because them a variance grant fice to different kind hardship was the claimed showing board’s formal district. The zoning in the from others appli- “the variance was that approving rationale for within the keeping will house be proposed cant’s arbitrary and ille- rationale was footprint.” This existing hardship, finding lack of a only because gal hardship, also because but to address or even the failure suppоrt this court does not to this presented the record intention architect herself stated finding. The within the basically home a new was “construct added.) She (Emphasis house.” footprint existing would be “essen- that the new house later stated clear that the The record is tially” footprint. the same parts in some but the home plan is narrow building footprint the back existing it from the extend that a presented was also no evidence comer. There keeping zoning with the home could not be built рroperty. to this Because regulations applicable “[dis- does not constitute property in the use of appointment Krejpcio v. difficulty hardship”; unusual exceptional or Appeals, supra, 662; Zoning Board of difficulty exceptional or an have not shown an Cullens can- hardship. variance unusual not stand. is remanded is reversed and the case
The judgment appeal. s to sustain the with direction concurred. opinion judges In this the other COMPANY v. SENTRY THE WEST HAVEN LUMBER CORPORATION CONSTRUCTION 29609) (AC C, Flynn, J., Hennessy, Lavine Js. and *2 officially rеleased Argued April 6, 2009 October Rosenthal, appellant G. for Lawrence (defendant). Salvatore, P. appellee (plaintiff).
Genevieve
Opinion Sentry Construction defendant, HENNESSY, J. The trial judgment from the appeals Corporation, *3 Lumber West Haven The plaintiff, the awarding the appeal, On plus taxable costs. Company, $16,731.37 abused its discretion the court claims that defendant a continu- motion for both the defendant’s denying in Additionally, the defen- a nonsuit. and motion for ance failing in court was incorrect claims that the dant would account, which credits to the defendant’s apply plaintiff. to the debt owed the amount of have reduced of the trial court. judgment We affirm the history inform procedural facts and following The in appeal. Beginning of the defendant’s disposition our sold supplies, in plaintiff, building a 2005, the dealer con- defendant, a general materials to the construction the agreement between pursuant to a credit tractor, open payments on this failed alleged Because parties. defen- complaint plaintiff against filed a account, the 2, on October action this collection instituting dant January, 2007, in a Following judgment 2006. default open motion to defendant’s the court granted 2007. March, in pleadings closed judgment. nego discovery and unsuccessful informal Following were noti 2007, parties through September, tiations a date for had set trial in that the court fied October action first since the 12, 2007. For the time December defendаnt formal October, 2006, engaged began discovery by a sending deposition plain notice of tiff on 9, November 2007. requested The defendant depose plaintiffs corporate representative on November response 2007. In deposition notice, filed a protective motion for a order stating busy counsel’s hearing schedule made counsel unavailable for deposition day on requested.1 defendant parties Because the could not an agree alternative date, the defendant filed a motion for continuance.2 Before the court ren dered a decision on the request, continuance granted motion for a protective order, while also ordering “[deposition that a ... be sched mutually uled at convenient time to December 2007.” Because the counsel could not find “mutually convenient time” deposition, to hold a defendant, turn, filed a motion for a nonsuit.
When arrived, the trial date corporate representative deposed. had been Consequently, the defendant’s counsel renewed his motion for a con requested tinuance and that the court rule on the earlier motion for a nonsuit. After the court denied both of thereby these motions, allowing the case to move for *4 ward, the court considered evidence the regarding appropriate amount debt plaintiff. owed to the Because the court “plaintiffs found the evidence and explanations the morе compared credible to [as defendant’s],” the court determined that the defendant was indebted to the plaintiff in the amount of $13,385.11.3 provided Additional facts will be as nec essary. 1 plaintiffs hearing Not did the counsel state that she had on 28, 2007, traveling November Georgia but she also stated that she was hearing previously for a at hearings the end of November and had scheduled 30, on November 29 and and December 4 and 12. 2Although provided, parties by no written notice was were notified clеrk of the court that the defendant’s motion for a continuance was denied. 3 agreed application pay Because the defendant in the credit collection costs, including attorney’s fees, plaintiff, the court determined the $16,731.37. award total to be
469 I court claims that the first appeal, the defendant On request for a continu arbitrarily denying acted defendant states claim, support In ance. corporate represen depose inability defen Spеcifically, the at trial. proved prejudicial tative it left pretrial deposition that the lack of a argues dant invoices, copies of duplicate to confront: unprepared sheet, a revised reconciliation of originals; instead sheet accom reconciliation original of the instead accounting new and the complaint; panied trial, allegedly prepared defendant’s balance deposi information the through arrived at an аmount persuaded We are not have revealed.5 tion would arguments. these governing standards applicable
We first set forth the appeal. “The trial court of the defendant’s our resolution unnecessary interruptions, responsibility to avoid has docket, orderly procedure to maintain the fair administra- with the prevent any and to interference judi- addition, involving . . . In matters justice. tion of control economy, management cial docket [and of] . within particularly . are proceedings courtroom . . a trial Accordingly, province trial court. or denying court holds broad discretion of a trial Appellate for a review motion continuance. governed is denial of a motion for a continuance court’s argument acknowledged oral before this court that The defendant at properly. original was The court’s denial motion for a continuance denied appeal. at trial a continuance raised claim of the second motion for against was inabil ultimate The defendant states that the ity five exhibit five before trial. Exhibit the information in ascertain invoices, plaintiff argues summary outstanding which the *5 of the contains by Because the court relied reflect the balance owed the defendant. award, argues determining the defendant exhibit five of to this information in advance would have allowed access experienced thereby decreasing alleged the defendant for first time at trial. when saw the exhibit 470
by an abuse of discretion that, standard although unreviewable, affords the trial court broad discretion in matters of continuances ....
“A reviewing
is bound
the principle [e]very reasonable presumption in favor
proper
of the
exercise of the trial court’s discretion will
.
be made.
.
.
prove
To
an abuse of discretion,
appellant
an
[bears
burden
showing]
that the trial court’s denial of a
of]
request for a continuance was
arbi
[unreasonable or]
trary ....
Therе are no mechanical
tests
deciding
when a denial of a
arbitrary
continuance is so
as to
violate
process.
due
The answer must be found in the
present
every
circumstances
case, particularly in the
reasons presented to the trial judge at the time the
request
(Citations omitted;
is denied.”
quota
internal
tionmarks omitted.) Peatie v.
Stores, Inc.,
Wal-Mart
Conn. App. 8, 12,
Although single no continuance exists, test “[o]ur Supreme Court has catalogued nonexhaustive list of relevant factors that frequently courts consider when determining whether grant motion for a continu- ance. Courts have considered matters such as: the time- request liness for continuance; likely length delay; of the complexity age case; of other continuances in the past; impact delay on the litigants, witnesses, opposing counsel and the court; perceived legitimacy of the reasons proffered in support request; the defen- [and] personal responsibility dant’s for the timing request . .” (Internal quotation marks omitted.) Haven, Mazurek East v. App. 795, 807, *6 920 A.2d denied, cert. A.2d all court need not consider “Although (2007). may factors every case, and consider these factors mentioned enumeratеd, [previously previously not framework in which provides list useful of factors] Id. discretion.” exercise of its the court’s to consider standard, we conclude foregoing On the basis of of the court’s discretion it was not an abuse that motion for continuance. deny the defendant’s open of an account the collection court reasoned that Accord- complex undertaking. simple matter, is a not necessary it was for the not think ingly, the court did already than it had to any more time case consume renewed motion disposition. denying In arrive at the caveat continuance, however, the court added for a request by a future continuance it would entertain proceed it could not if it believed that the defendant deposed plain- having previously at trial without witnesses. tiffs the continuance response leaving to the court’s
In the issue potentially open, the defendant raised door may along in the prejudice concerns arise further inability depose proceeding, citing again of trial as corporate representative advance argument raised, justification. prejudice With each determined, on the basis of the however, defendant was not disad- presented, that the evidence of in of the lack of advantage light or taken vantaged spe- defendant’s discovery. response In formal associated argument focusing cific plaintiffs exhibit five before having viewed the with yet rejected the continuance court, again, proving bore the burden of request because the Thus, the owed, the amount of debt not the defendant. clearly raised weighed argument the continuance denying request the defendant before proceed. the case to allowing previously though Even mentioned circum- standing adequately support stances alone the court’s *7 continuance, denial the motion for a additional find- ings strengthen the court our determination that the еxample, court’s decision was reasonable. For the court response in stated to the defendant’s motion articulation that counsel from both sides contributed deposition’s delay. party Neither in fact moved depose year to the other for more than one after the complaint Additionally, was filed. found, in its memorandum of decision on the defendant’s motion for a new that the defendant’s counsel had failed perform preparation timely his trial ain fashion. аppeal particular Last, because the defendant claims on prejudice from an exhibit introduced at trial that did not proposed deposition presumption exist at date, the especially previously given exists, the mentioned find- delay by ings court, the that the defendant’s motion legitimacy.6 for a continuance a result, lacks As the proof showing defendant did not meet its burden of in that the court’s denial of its motion for a continuance arbitrary was an or unreasonаble decision.7 adequately We conclude that the court considered the defendant’s motion for continuance and that the denial of the motion was not an abuse of discretion.
II
improperly
The defendant
clams
next
that the court
denied its
motion for nonsuit. The defendant states
6
five,
severely
argues
exhibit
which
defendant
most
prejudiced it,
day
Thus,
was created the
before trial.
it would
have
been
deposition
at a
discussed
before trial.
7
Ramos,
App. 276,
Ramos
The defendant relies on
v.
835 A.2d
(2003),
denied,
(2004),
arguing
cert.
court, in deposition to trial. to be taken order, ordered discovery, was denied Because the defendant argues refusing abused its discretion that the disagree. grant We for a nonsuit. the motion pre- history procedural was recited Because briefly viously highlight the court’s detail, we gave for a motion rise order that grantеd the 2007, the court nonsuit. On November Although protective order. for a motion *8 granted court also ordered motion, court mutually “[deposition at a conve- be ... scheduled a the date set 12,2007,” December nient time not find a could counsel Because the trial. deposition prior to to schedule the time convenient for a nonsuit filed a motion the defendant trial, the defen- At the court denied 3, December 2007. request, determining that it was not dant’s nonsuit depo- anyone penаlizing a hold for the failure to worth sition. judg
“Generallyspeaking,
a
name of
nonsuit is the
party
legal proceeding
against
in a
ment rendered
upon
inability
court,
or
his cause
to maintain
his
prosecuting
in com
his suit or
when he is in default
plying
. .
nonsuit fore
court. .
orders of the
with
prosecution
of
from further
closes the
quotation
(Citation omitted; internal
. .
.
action
App.
omitted.)
Palmer, v.
marks
Trumbull
(2007),
denied, 286 Conn.
cert.
512,
In addressing noncompliance factor, we conclude supports reasonably record that the court could *9 have plaintiffs concluded that the was counsel unable deposition to attend a trial, before trial.8 At schedule, counsel laid her detail, out in in support of her argument mutually that a convenient time to schedule a deposition simply possible.9 was not No evidence exists mutually Because counsel claimed that a convenient time 12, 2007, light schedule, to December did exist in of not her counsel argued disregarding that she was not the court’s order. Because we affirm grounds, given particular case, existing other time constraints in this light record, argument. of the full we need not address this support inability deposition In of her to a reschedule before court, day, counsel stated to the “If I could have found Your Honor, prejudiced my clients, certainly that would not have I other would However, given year, given have done so. the—the time of the the—the timing short with which defendant’s decided to notice [the counsel] his simply possible.” wasn’t when it the order wilfully disregarded plaintiff it or that the possible comply to with was in fact of bad faith.10 deposition out avoided the in the prejudice factor addressed Because we continuance motion for a defendant’s context of the appro- it here. The court briefly discuss claim, we experi- of the found that the extent priately support not by the defendant did enced finding the court’s This is true given a nonsuit. deposition’s to parties for contributed counsel both five, exhibit the exhibit is because delay; it also true defendant, prejudice to the the most causing allegedly thus, would and, trial day before not exist until the did pretrial deposition. at a been discussed not have the court abused factor whether The final nonsuit that, the circum- under determining its discretion appropriate was the no sanction case, of the stances party’s conduct. response noncomplying judicial “ leeway in more than imports something [Discretion discretion, a legal ... It means decision-making. the law conformity spirit with the be exercised impede or defeat subserve and and in manner to addition, ... In justice. the ends substantial exercised mindful should be court’s discretion on the merits about trial prefеrence bring policy possible and secure dispute of a whenever dis- Therefore, although . . . day his in court. litigant where of an not an abuse discretion missal action is unwarranted contumacious or party deliberate, shows a authority . the court’s disregard for of dismissal employ the sanction should be reluctant to of dismissal . . . sanction except as a last resort. [T]he 10 Althougharguably this first nonsuit factor '‘other fault” exists under *10 clarify plaintiff request that the court the intention did not becausе nothing pretrial deposition, order, even if such a clarification mandated supports have reshuffled counsel could then in the record that the unequivocal comply hearing with directive. her schedule to only imposed
should be resort, as last and where it would be remedy reasonable available to vindicate the legitimate interests of party the other the court.” (Internal quotation marks omitted.) Id., 209.11
Under the circumstances of this case, we conclude that the аppropriately court denied against sanctions plaintiff. Provided the time constraints between the originally scheduled and the start of explained counsel that she was unable to schedule deposition. Furthermore, the defendant did persuade court that suffered due deposition. the lack of the Thus, the defen- request dant’s nonsuit disproportion- would have been discovery ate to the id., violation order. See 210. Accordingly, we conclude that the adequately considered the defendant’s motion for a nonsuit and that the denial of the motion was not an of dis- abuse cretion.
Ill
The defendant last claims that the court was incorrect
apply
failing
Specifically,
credits
its account.
argues
defendant
that a number of credits for materials
plaintiff
and later returned to the
charged
were not
accounted for in the
ultimate balance determi-
persuaded.
nation
exhibit five. We are not
Because the determination of whether
appropriately applied
on
credits due
the defendant’s
fact,
account
is a question of
the trial court’s credit
findings are
binding
this court unless such findings
clearly
are
finding
clearly
erroneous. “A
of fact is
erro-
neous when there is no evidence in the record
sup-
port it
...
or when
although there
evidence to
Tuccio,
11 The court determined that
standard for
sanctions
as
Assn.,
Standard,
adopted
Millbrook Owners
Inc. Hamilton
from
v.
1, 16-17,
(2001), applies equally
477 evidence on the entire it, reviewing support a mis- conviction that and firm with the definite is left is the trial . . Because it has been committed. take determine evidence and weigh function court’s . . . findings. to its we deference credibility, great give not examine do findings, In factual reviewing [w]e have could whether record to determine [court] . . . than the one reached. a conclusion other reached .. eveiy presumption reasonable Instead, we make quotation ruling.” (Internal of the trial court’s in favor v. Connecticut New omitted.) marks Hartford Authority, 970 Recovery Resources A.2d (2009). did reveals that the court
Our review of the record incorrectly alleged defendant’s apply refuse to as well as transcript, on the From the credits account. clear that decision, the court’s memorandum testimony and weighed conflicting evidence the court credits involved. After evaluat- the numerous regarding specifically found the credit the court ing arguments, plaintiffs explanations and evidence аs that the owed more credible than the amount were much defendant’s.
Although it is true that the defendant’s cross-exami- into manager ques- nation of the credit called appropriately applied were tion whether some credits five, we are not left with the exhibit has been definite and firm conviction that mistake entirety of the evidence Conversely, committed. supports the court’s determination that strongly example, accurate. For plaintiffs balance was in its deсision that the testi- indicated articulation credits mony president regarding of the defendant’s credible; was not the document admitted in fact, support arguments credit was found president’s “untrustworthy, be “self-serving” the court to give great
in fact, contrived . . . Because we defer- weighing credibility ence to the court’s of evidence and presumptions determinations, and make all reasonable *12 ruling, clearly in favor of its we conclude that was not reject erroneous for the cоurt to the defendant’s arguments. credit judgment is affirmed. opinion
In this FLYNN, J.,C. concurred. concurring. LAVINE,J., In the circumstance, usual counsel’s failure to find the time—even in the midst busy deposition schedule—to attend a court-ordered significant trial would create concerns about proceedings. requiring the fairness of the The order mutually be “a scheduled at convenient plausibly request time” cannot be read as a of counsel deposition only schedule if a convenient time could reading require be found. The reasonable towas deposition. counsel to make herself available for a agree Nonetheless, I that the court’s denial of the Sentry defendant, motions filed Construction Corporation, for a continuance and a nonsuit was not given particular an of discretion, abuse facts of case. This not, decision should however, be read to self-serving interpretations countenance of orders. foregoing respectfully
For the I reasons, concur majority opinion. STATEOF CONNECTICUTv. ANTHONYL. HENRY
(AC 30509) Flynn, J., West, C. and Robinson and Js.