Bongiovanni v. Saxon
Bongiovanni v. Saxon
Opinion of the Court
Opinion
The plaintiff, Michael Bongiovanni, appeals from the judgment of the trial court dismissing his case with prejudice as a sanction for his failure to file properly a certificate of closed pleadings in accordance with Practice Book § 14-8 (a).
On October 7, 2005, the defendants filed a motion to dismiss the plaintiffs action with prejudice, on the ground that he falsely filed a certificate of closed pleadings when the pleadings had not yet been closed. At the time the plaintiff filed the certificate, the defendants had not filed an answer to the plaintiffs amended complaint. A hearing on the defendants’ motion to dismiss with prejudice was scheduled for October 24, 2005.
As a threshold matter, we first consider whether there is an adequate record for review. An adequate record generally includes either a memorandum of decision or a transcript signed by the trial court; Practice Book § 64-1; and the appellant bears the responsibility of providing such. Practice Book § 60-5; Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). The plaintiff did not provide this court with either a written memorandum of decision or a signed transcript, but an unsigned transcript of the proceedings has been provided. On occasion, we have entertained appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions. Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 254 n.5, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003). We have reviewed the transcript of this case and find that it is adequate for our review.
I
The plaintiff first argues that the court had no authority to render judgment of dismissal. Specifically, he argues that the court acted without a proper motion before it. We do not agree.
Practice Book § 14-3 (a) provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action ... or on its own motion, render a judgment dismissing the action
Sections 14-3 and 17-19 apply under the facts and circumstances of the present case, and therefore the plaintiffs first claim has no merit. It is evident from the transcript of the October 24, 2005 hearing that the plaintiff did not prosecute this action with the proper diligence required. In his own words, the plaintiffs counsel stated: “[Apparently, the pleadings were not closed. I assumed that they were, based on the age of this case and the amount of pleadings that had been filed, but apparently I was wrong.” (Emphasis added.) When the court asked if he had any basis to believe that the pleadings were closed and whether he had checked the docket sheet, the plaintiffs counsel responded: “I just took [the June 17,2005 order] literally that I needed to file my certificate of closed pleadings, and I did.” In sum, the plaintiffs counsel was not attentive to the state of the pleadings, and, as a result, he filed a certificate of closed pleadings without knowledge of the status of those pleadings.
The plaintiffs claim loses sight of the fact that the court had the authority to dismiss his case, by virtue of the June 17, 2005 order the court previously had issued, as well as the court’s authority under Practice Book § 14-3, stemming from the plaintiffs violation of
II
The second issue is whether the court improperly dismissed the plaintiffs action with prejudice, as a sanction for the plaintiffs failure to file a certificate of closed pleadings properly. In light of the events in this case, we conclude that the court’s imposition of sanctions was not improper.
We begin by setting forth the applicable standard of review for claims challenging a court’s order for sanctions. “First, the order to be complied with must be reasonably clear. . . . [A]n order that does not meet this standard may form the basis of a sanction if the
As for the first test, the language of the court’s June 17, 2005 order is clear and unambiguous. The order plainly stated that the plaintiffs action would be dismissed if the plaintiff did not file a certificate of closed pleadings within the specified time frame. Further, it is important to note that the order stated that failure to comply “will result in a dismissal of the action . . . .” (Emphasis added.) The order did not state that failure to comply may result in dismissal. As for the second test, it is evident that the order was violated because although the plaintiffs counsel made the required filing, he did so by making false representations to the court that the pleadings were closed. His failure to file an accurate certificate of closed pleadings put him in violation of the court’s June 17, 2005 order and therefore made him subject to sanctions. Indeed, the certification on the certificate of closed pleadings form filed by the plaintiff provides: “I acknowledge that my failure to certify accurately will subject me to sanctions.” (Emphasis added.) We now turn our attention to the third test, which concerns whether the court abused its discretion in imposing a sanction of dismissal of the plaintiffs action with prejudice.
In the present case, the corut reasonably could have found that the plaintiff had no reasonable basis to believe that the pleadings were closed, and, as a result, that the certificate of closed pleadings was not filed properly. We conclude, therefore, that the court did not abuse its discretion in dismissing the plaintiffs action with prejudice, in accordance with the June 17, 2005 order.
Finally, in connection with his claim that the court did not have the authority to impose sanctions upon rendering the judgment of dismissal, the plaintiff further argues that he was not given proper notice that the court would treat the defendants’ motion to dismiss with prejudice as a motion for a judgment of dismissal in accordance with sanctions. We are not persuaded.
“[Bjefore imposing . . . sanctions, the court must afford the sanctioned party or attorney a proper hearing
Finally, the certificate of closed pleadings, in and of itself, provided notice to the plaintiff that his failure to comply would subject him to sanctions. As noted previously, the certification on the certificate of closed pleadings form required the plaintiff to acknowledge the fact that his failure to certify accurately would subject him to sanctions. Accordingly, the very act of filing the certificate provided the plaintiff with notice that the imposition of sanctions could follow from his conduct. Finally, a hearing on the defendants’ motion to dismiss was held on October 24, 2005, at which the plaintiff was given the opportunity to be heard on his reasons for inaccurately filing the certificate of closed pleadings. For all of these reasons, the plaintiffs claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
Practice Book § 14-8 (a) provides in relevant part: “A case shall not be scheduled for trial until a party accurately certifies . . . that the pleadings are closed on the issue or issues in the case as to all parties. . . .” (Emphasis added.)
The claims as stated by the plaintiff are that the court improperly rendered the judgment of dismissal with prejudice because (1) the defendants, William L. Saxon and Maria Vitalis, did not file a motion for sanctions and (2) the plaintiff was not put on notice that the court would consider dismissing his case with prejudice as a sanction for his failure to satisfy the filing requirement of Practice Book § 14-8. The crux of the plaintiffs appeal is
“Our courts have consistently held that the word ‘may’ is discretionary and not mandatory.” Keiser v. Conservation Commission, 41 Conn. App. 39, 43-44, 674 A.2d 439 (1996).
The plaintiff also argued that the defendants violated Practice Boole § 10-31 because they filed a motion to dismiss with prejudice without an accompanying memorandum of law. We note, however, that Judge Peck sufficiently disposed of this claim, when, at the hearing on the defendants’ motion to dismiss, she stated that her perception of the motion was that it was “not a motion to dismiss, pursuant to [Practice Book §] 10-31 ... it is a motion for judgment of dismissal in accordance with the sanctions.”
Reference
- Full Case Name
- MICHAEL BONGIOVANNI v. WILLIAM L. SAXON
- Cited By
- 4 cases
- Status
- Published