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ADRIENNE BROCHU, EXECUTRIX (ESTATE OF

ADRIEN BROCHU) v. AESYS

TECHNOLOGIES ET AL.

(AC 36483)

Gruendel, Sheldon and Prescott, Js.

Argued March 16—officially released September 8, 2015

(Appeal from Superior Court, judicial district of

Fairfield, Bellis, J.)

Marc P. Kunen, pro hac vice, with whom were Robert

M. Cheverie, and, on the brief, Dino G. Galardi, pro

hac vice, for the appellant (substitute plaintiff).

Patrick J. Glinka, with whom, on the brief, was

Kimberly Hammond, for the appellee (defendant
Crane Co.).

James A. Hall, with whom, on the brief, was James

R. Oswald, for the appellee (defendant Foster

Wheeler Corp.).

Kevin C. McCaffrey, for the appellee (defendant

Goulds Pumps, Inc.).
Opinion

PRESCOTT, J. In this appeal, the primary issue is

whether, following the death of the original plaintiff,

an unjustified delay of more than four years in substituting a representative of the decedent’s estate as the party

plaintiff supports the trial court’s dismissal of the action

for failure to prosecute with due diligence. A few weeks

prior to his death in August, 2009, the original plaintiff,

Adrien Brochu, commenced the present action alleging

injuries sustained from exposure to asbestos or asbestos containing products attributable to numerous defendants.1 The current plaintiff, Adrienne Brochu, was

appointed as executrix of the decedent’s estate in September, 2009, but did not move to substitute herself in

as the party plaintiff in this action until December, 2013,

more than four years later. The plaintiff2 now appeals

from the trial court’s judgment dismissing the action

sua sponte on the ground that she failed to prosecute

the action with due diligence. The plaintiff claims that,

despite the lengthy delay in substituting herself in, the

court improperly dismissed the case for lack of diligence because the case was scheduled for trial and

she appeared on that trial date ready to proceed. We

conclude thatthe court properly exercised its discretion

by dismissing the action for lack of diligence and,

accordingly, affirm the judgment of the trial court.3

The record reveals the following facts and procedural

history relevant to our consideration of the plaintiff’s

appeal. The decedent was diagnosed in May, 2009, with

terminal malignant mesothelioma, a form of cancer.

At the beginning of August, 2009, he commenced the

present action, which sought damages from the defendants based on allegations that his exposure to the

defendants’ asbestos or asbestos containing products

contributed in whole or in part to his cancer.4 The decedent died from his illness on August 14, 2009. The plaintiff was appointed as executrix of the decedent’s estate

on September 2, 2009, less than a month later.

On November 2, 2012, the court issued notice that

the matter had been scheduled for a trial date of January

14, 2014.5 On November 12, 2013, the defendants, with

the consent of all parties, filed a motion seeking a continuance of the trial date to October 8, 2014.6 The defendants provided the following explanation for the

requested continuance: ‘‘[The decedent] died in 2009

and probate has not been resolved. Furthermore, no

witnesses have been disclosed or produced and as such

defendants have been unable to depose witnesses or

complete any meaningful discovery.’’ Prior to this

motion for continuance, the court had not been provided with notice of the decedent’s death.

The court, Bellis, J., recognizing that the court could

not try the matter without a proper plaintiff, issued

notice on November 26, 2013, denying the motion for
continuance without prejudice, stating: ‘‘The court, sua

sponte, has raised the issue of subject matter jurisdiction, which will be addressed by the court on the first

day of trial.’’ The court later directed the clerk to

instruct the plaintiff to file a motion to substitute in the

estate, with which the plaintiff complied by properly

moving to substitute herself in as the party plaintiff on

December 19, 2013. The plaintiff provided no explanation in the motion to substitute for why she waited until

the eve of trial to file the motion to substitute, and then

only after she was asked to do so by the court. The

plaintiff stated only that the defendants would not be

prejudiced by allowing the substitution because ‘‘it has

no effect on the allegations made in the original complaint or the factual predicate upon which it is based.’’7

On December 23, 2013, the plaintiff filed a caseflow

request asking the court to hear her motion to substitute, and to rehear the motion for continuance, before

the scheduled trial date of January 14, 2014. A hearing

was held on either January 6, 2014, or January 10, 2014,

at which time the trial court deferred ruling on the

plaintiff’s renewed request for a continuance and indicated its inclination to dismiss the matter for lack of

diligence in prosecuting the action.8

On January 14, 2014, the date set for trial, the parties

again appeared before the court. The court first chose

to address the plaintiff’s motion to substitute, indicating

that it saw no reason not to grant the motion, ‘‘not to

say that it shouldn’t have been filed three and a half

years ago.’’ None of the parties voiced any objections,

and the court granted the motion without further

comment.

The court next turned to the issue that it had raised

sua sponte, namely, whether the case should be dismissed because of the plaintiff’s failure to prosecute

the action with reasonable diligence.9 The plaintiff did

not provide a direct response to the court’s request for

a reason why she had not filed her motion to substitute

in the past three and one-half years. The plaintiff,

instead, argued that the defendants also had known

since 2009 about the decedent’s death and, effectively,

had sat on their hands, failing to raise the issue before

the court. She also argued thatratherthan doing nothing

to prosecute the present action, she had focused on

investigating and preparing the case for trial, and that

even if she had been ‘‘less than forthright’’ in seeking

to substitute herself in, which she freely admitted that

she should have done sooner, she construed General

Statutes § 52-599 as giving her up until the trial date to

accomplish that task.10 She further argued that she had

filed the motion to substitute immediately after the

court directed her to do so, and that the defendants

were not prejudiced by the delay, citing the defendants’

consent to a further continuance of the trial date as

her primary evidence. The plaintiff also indicated that
she was ready to proceed with the trial if that was what

the court wished to do, although she recognized that

the defendants likely would need an opportunity to

depose certain recently discovered fact witnesses.

The defendants argued that despite the plaintiff’s suggestion that they could not claim prejudice due to any

lack of diligence because they had sat on their own

hands, they in fact were substantially prejudiced. In

particular, the defendants argued that because there

had not been a substitution, and, thus, no valid plaintiff

to prosecute the action, they had not had an opportunity

to file discovery motions with the court or ‘‘to seek

any sort of judicial intervention by way of dismissal,

summary judgment or otherwise.’’ In other words, the

court’s inability to entertain substantive motions while

there was no plaintiff and the defendants’ associated

inability to conduct discovery tied their hands. The

defendant also noted that, to date, they had received

very little discovery from the plaintiff and the plaintiff

had not provided them with a list of witnesses. Finally,

the defendants argued that because evidence begins

to dissipate in asbestos litigation from the date of a

plaintiff’s diagnosis, the lengthy delay in prosecuting

the present case, coupled with their inability to conduct

discovery, was highly prejudicial.

After hearing the parties’ arguments, the court rendered an oral decision denying the motion for continuance and dismissing the action on the basis of the

plaintiff’s failure to substitute herself in as the party

plaintiff in a timely manner and, thus, to prosecute the

action with due diligence.11 The court later issued the

following written notice: ‘‘The request for continuance

is denied due to the age of the case. After hearing on

this date, the court is dismissing the matter for the

plaintiff’s failure to timely substitute the estate, and for

failure to prosecute this matter with due diligence. As

articulated by the court following the hearing, it is

incumbent upon the plaintiff to prosecute the action

with due diligence. Here, the plaintiff’s failure to timely

file a motion to substitute herself as the party plaintiff,

although the estate had been opened in September of

2009 following the decedent’s death on August 14, 2009,

unnecessarily deprived the court of subject matterjurisdiction for an unreasonable period of time, prevented

the defendants from pursuing any discovery motions,

and prejudiced the defendants as they could not properly file motions for summary judgment which are filed

routinely as a matter of course by asbestos defendants.’’

The court subsequently denied the plaintiff’s motion to

set aside the dismissal and for reargument. This

appeal followed.

The plaintiff claims that the court abused its discretion by dismissing the action for lack of diligence. In

support of that claim, the plaintiff first observes that

the case had been scheduled for trial and that she
appeared on that date prepared to proceed with the

trial. Second, she argues that until the court indicated

its inclination to dismiss the case for lack of diligence,

the defendants never sought dismissal of the action

for lack of diligence or otherwise claimed prejudice

resulting from the plaintiff’s delay in substituting herself

in as representative of the estate. In fact, she argues,

the defendants were complicit in seeking a continuance

of the trial date.

The plaintiff, however, never provided the court with

a compelling reason for her failure to substitute herself

in, despite having years in which to do so, nor has she

done so on appeal. That failure demonstrated a lack

of diligence warranting dismissal because it severely

inhibited the forward pace of the litigation, preventing

the court from properly considering substantive

motions and interfering with the defendants’ efforts to

obtain necessary discovery. Accordingly, we are not

persuaded that the court acted improperly by dismissing the action.

‘‘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

with costs.’’ Practice Book § 14-3 (a). ‘‘Practice Book

§ 14-3 reflects the judicial branch’s interest in having

counsel prosecute actions with reasonable diligence.

Judges, faced with case flow management concerns,

must enforce the pace of litigation coming before the

court, rather than allowing the parties to do so.’’ (Internal quotation marks omitted.) Gillum v. Yale University, 62 Conn. App. 775, 786, 773 A.2d 986, cert. denied,

256 Conn. 929, 776 A.2d 1146 (2001). ‘‘Our judicial system cannot be controlled by the litigants and cases

cannot be allowed to drift aimlessly through the system.’’ (Internal quotation marks omitted.) Gionfrido v.

Wharf Realty, Inc., 193 Conn. 28, 32–33, 474 A.2d 787

(1984). This court has previously established that

‘‘lengthy periods of inactivity by the plaintiff’’ constitute

sufficient grounds for a trial court to determine that

the plaintiff has failed to prosecute an action with reasonable diligence. Bobbin v. Sail the Sounds, LLC, 153

Conn. App. 716, 729, 107 A.3d 414 (2014), cert. denied,

315 Conn. 918, 107 A.3d 961 (2015); see Kalb v. Aventis

Cropscience, USA, Inc., 144 Conn. App. 600, 604–606,

74 A.3d 470 (affirming trial court’s decision to deny

motion to open asbestos litigation that was dismissed

forlack of diligence because surviving spouse had failed

to take action in case for three and one-half years),

cert. denied, 310 Conn. 932, 78 A.3d 858 (2013).

‘‘The ultimate determination regarding a motion to

dismiss for lack of diligence is within the sound discretion of the court. . . . Under [Practice Book § 14-3],

the trial court is confronted with endless gradations of

diligence, and in its sound discretion, the court must
determine whether the party’s diligence falls within the

reasonable section of the diligence spectrum. . . .

Courts must remain mindful, however, that [i]t is the

policy of the law to bring about a trial on the merits of

a dispute whenever possible . . . and that [o]ur practice does not favor the termination of proceedings without a determination of the merits of the controversy [if]

that can be brought about with due regard to necessary

rules of procedure. . . .

‘‘We review the trial court’s decision for abuse of

discretion. . . . In determining whether a trial court

abused its discretion, the unquestioned rule is that great

weight is due to the action of the trial court and every

reasonable presumption should be given in favor of its

correctness. . . . In determining whether there has

been an abuse of discretion, the ultimate issue is

whether the court could reasonably conclude as it did.

. . . The trial court’s discretion imports something

more than leeway in decision making and should be

exercised in conformity with the spirit of the law and

should not impede or defeat the ends of substantial

justice. . . .

‘‘A trial court properly exercises its discretion to dismiss for failure to prosecute if the case has been on

the docket for an unduly protracted period or the court

is satisfied from the record or otherwise that there is

no real intent to prosecute . . . .’’ (Citations omitted;

internal quotation marks omitted.) Bobbin v. Sail the

Sounds, LLC, supra, 153 Conn. App. 726–27. Here,

because the court determined that the plaintiff failed to

prosecute the present action with reasonable diligence

based largely on the plaintiff having waited for more

than four years after her appointment as executrix to

move to substitute herself in as the representative of the

decedent’s estate, we turn briefly to the law governing

substitutions following the death of a party plaintiff.

General Statutes § 52-599 (b) provides in relevant

part: ‘‘A civil action or proceeding shall not abate by

reason of the death of any party thereto, but may be

continued by or against the executor or administrator

of the decedent. If a party plaintiff dies, his executor

or administrator may enter within six months of the

plaintiff’s death or at any time prior to the action commencing trial and prosecute the action in the same

manner as his testator or intestate might have done if

he had lived. . . .’’

‘‘Although at common law the death of a sole plaintiff

or defendant abated an action . . . by virtue of § 52-

599, Connecticut’s right of survival statute, a cause of

action can survive if a representative of the decedent’s

estate is substituted for the decedent. It is a well established principle, however, that [d]uring the interval . . .

between the death and the revival of the action by the

appearance of the executor or administrator, the cause

has no vitality. The surviving party and the court alike
are powerless to proceed with it. . . . Moreover, the

language of § 52-599, and its predecessor, has been construed to mean that the fiduciary may be substituted

as a matter of right within the time prescribed by the

statute, but the court in its discretion may permit the

fiduciary to be substituted after the time described for

good cause shown.’’ (Citations omitted; internal quotation marks omitted.) Negro v. Metas, 110 Conn. App.

485, 497–98, 955 A.2d 599, cert. denied, 289 Conn. 949,

960 A.2d 1037 (2008). Section 52-599 places the decision

of whether to proceed with a civil action following the

death of a plaintiff directly in the hands of the duly

appointed representative of that plaintiff’s estate; it is,

after all, the fiduciary duty of the representative to

decide whether a continuation of any legal proceedings

would be in the best interest of the estate. See Hall v.

Schoenwetter, 239 Conn. 553, 564, 686 A.2d 980 (1996).

The time for making that decision, however, cannot be

without limitations.

The court determined that the plaintiff failed to prosecute the present action with reasonable diligence based

primarily upon the plaintiff’s unexplained decision to

wait for more than four years before exercising her

right to substitute herself in as representative of her

decedent’s estate, during which time both the court

and the defendants were left ‘‘powerless to proceed.’’

(Internal quotation marks omitted.) Negro v. Metas,

supra, 110 Conn. App. 498, citing Barton v. New Haven,

74 Conn. 729, 731, 52 A. 403 (1902) (holding that until

proper substitution for deceased plaintiff was made,

court was left with ‘‘dormant proceding’’ and ‘‘effective

action could not be taken until it was given new life

by the appearance of a party plaintiff qualified to proceed with it’’). The plaintiff’s inaction unquestionably

caused the case to languish on the court’s docket with

no appreciable activity for several years, which the

court reasonably could have construed as an unduly

protracted period of dormancy warranting dismissal.

Further, the lack of a party plaintiff tied the defendants’

hands such that they could not effectively proceed with

their defense of the action. They were prejudiced by

their inability to effectively engage in discovery or to

file substantive motions with the trial court. Accordingly, the lengthy period of inactivity by the plaintiff,

coupled with the prejudice to the court and the defendants, demonstrates that the plaintiff’s efforts fell well

outside the spectrum of reasonable diligence. See Bobbin v. Sail the Sounds, LLC, supra, 153 Conn. App. 726.

The plaintiff seeks to deflect her own lack of diligence

by pointing out what she construes as the defendants’

lack of effort to push the litigation forward. It is the

obligation of the plaintiff, however, the party who set

the wheels of justice in motion, to ensure the forward

momentum of the case. Although the defendants had

the means to raise the issue of the plaintiff’s failure to

prosecute to the court earlier than they did, the plaintiff
has cited no authority forthe proposition that the defendants’ failure to do so should excuse the plaintiff’s own

lack of diligence.

Even if the plaintiff is correct that she was under no

statutory obligation to perfect a substitution prior to

trial, an issue that we leave for another day; see footnote

three of this opinion; this does not mean that her choice

to wait for several years before filing the motion to

substitute cannot form the basis of a dismissal for lack

of diligence in prosecution. Inaction that suspends any

proper activity by the court or by other parties to move

a case forward toward a resolution and off of the court’s

dockets is precisely the type of situation warranting a

court’s exercise of its discretion to dismiss an action

for lack of diligence.

On the basis of our review of the record, we conclude

that the court properly exercised its discretion by dismissing the present action for lack of diligence in prosecuting the matter. The matter was commenced in

August, 2009, and thus had been on the court’s docket

for more than four years at the time it was dismissed.

More importantly, for the majority of that time period,

the case was in limbo and could not properly progress

because the decedent had died and, although the plaintiff had been appointed as executrix of his estate within

a month of his death, she did not notify the court of

the death and, without any explanation, did not move

to substitute herself in as representative of the estate

for several years. In fact, despite the plaintiff receiving

notice in November, 2012, that a trial date had been

scheduled for January, 2014, the plaintiff still did not

file a motion to substitute until December, 2013, and

then only at the behest of the court. The defendants,

like the court, were powerless to act prior to the substitution. Accordingly, they were prejudiced by an inability

to file motions for summary judgment or other substantive motions and to effectively engage in discovery. The

plaintiff failed to provide the court with any reasonable

explanation for why she allowed the matter to languish

on the docket or why she waited until the eve of trial

to effectuate a substitution.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The initial complaint was brought againstthe following defendants:Aesys

Technologies; Alfa Laval, Inc.; Allis Chalmers Corp. Product Liability Trust;

American Optical Corp.; American Standard, Inc.; A. O. Smith; Aurora Pump

Co.; Bayer Cropscience; Bell & Gossett Co.; Boise Cascade; Bondex International, Inc.; Buffalo Pumps, Inc.; Burnham Corp.; Burnham Holdings, Inc.;

Carrier Corp.; CBS Corp.; Columbia Boiler Co.; Crane Co.; Cummings Insulation Co.; D & N Insulation Co.; Elliott Turbomachinery Co., Inc.; Fairbanks

Morse Engines; Foster Wheeler Corp.; Garlock Sealing Technologies, LLC;

General Electric Co.; Georgia Pacific Corp.; Goodyear Tire & Rubber Co.;

Goulds Pumps, Inc.; Homasote Co.; IMO Industries, Inc.; Ingersoll-Rand Co.;

Kaiser Gypsum Co., Inc.; Lamons Gasket Co.; Leslie Controls, Inc.; Melrath

Gasket; Mobil Corp.; New England Insulation Co.; Peerless Heater Co.; Riley

StokerCorp.;R.W.BeckettCorp.; Scapa Dryer Fabrics,Inc.; SearsRoebuck &

Co.; Union Carbide Corp.; Uniroyal Holding, Inc.; Victor Reinz Corp.; Viking

Pump, Inc.; Warren Pumps, Inc.; Weil-McLain Co., Inc.; Womco Insulation,
Inc.; Wm. Powell Co.; Yarway Corp.; York Shipley Global; and Zurn Industries, Inc.

The action eventually was withdrawn or otherwise disposed of with

respect to all defendants except three: Goulds Pumps, Inc., Foster Wheeler,

LLC, and Crane Co. Accordingly, we refer to those three companies collectively as the defendants.

2 Hereafter, we refer in this opinion to Adrienne Brochu as the plaintiff

and to Adrien Brochu as the decedent.

3 The plaintiff raises as a separate claim of error that the court abused

its discretion by also dismissing the case on the ground that she failed in

timely fashion to substitute herself in as the legal representative of her

decedent’s estate. According to the plaintiff, she properly moved to substitute herself in prior to the commencement of the trial, which she argues

was all that she was required to do to comply with General Statutes § 52-

599 (b). She further notes that the court did not deny the motion to substitute

on the ground that it was untimely filed, but rather granted the motion,

which was inconsistent with its subsequent dismissal of the action. Because

we conclude that the court properly dismissed the action for lack of diligence, we do not address this additional claim of error. Nor is it necessary

for us to construe § 52-599 to determine whether the plaintiff’s motion to

substitute was filed within the time frame set forth therein. For purposes

of our analysis, we construe the court’s statement that the motion to substitute was not timely filed as conveying that the motion was not filed with

reasonable diligence following the death of the decedent, not that the motion

technically was late.

4 At the time the action was filed, the decedent was represented by Attorney Robert Cheverie, who now represents the estate.

5 We note that a certificate of closed pleadings was never filed in this

matter, and therefore, the case was never assigned for a judicially supervised

pretrial. See Practice Book §§ 14-8 and 14-11.

6

In its appellee’s brief, Foster Wheeler, LLC, asserts that the motion for

continuance was ‘‘filed by the plaintiff alone’’ and that ‘‘no defendant joined

in that motion.’’ Goulds Pumps, Inc., similarly states in its brief that the

motion was filed by the plaintiff. The record before this court shows, however, that the motion for continuance was signed by defense liaison counsel,

purportedly on behalf of all the defendants.

7 The motion to substitute erroneously stated that the plaintiff had not

been appointed as executrix until November 26, 2013. At the hearing on the

motion, counsel for the plaintiff acknowledged that the November 26, 2013

date was inaccurate, attributing the mistake to his staff and admitting that

the appointment had, in fact, occurred in 2009.

8 The defendants state that the hearing at which the court sua sponte

raised the possibility of dismissal for lack of diligence occurred on January

10, 2014. The plaintiff asserts that the hearing was held on January 6, 2014.

We are unable to verify the date or what transpired because the record does

not include a transcript of those proceeding.

9 After the court had raised the issue of lack of diligence to the parties,

the defendants filed motions to dismiss or motions for summary judgment

raising the same issue. It is clear from the record, however, that the court’s

judgment of dismissal was rendered on the court’s own motion; no orders

were rendered on the motions filed by the defendants.

10 The Florida attorney who appeared pro hoc vice on behalf of the plaintiff

told the court: ‘‘[I]n [asbestos litigation] we do this all the time, Your Honor.

People die of mesothelioma between the time of filing and the suit and the

trial. That doesn’t mean everything comes to a screeching halt in terms of

having to substitute that party. It’s a perfunctory procedure that pretty much

dealt with, and unless the court has to address anything, there is no reason

for subject matter jurisdiction to come up because all defense counsel

knows. We do this all the time. We take depositions. We do discovery. We

put up coworkers. We do this kind of work all the time.’’ The plaintiff’s

counsel revisited this theme in his rebuttal argument, indicating to the court

that failure to substitute ‘‘in the asbestos world, happens all the time.’’ The

court responded: ‘‘That may be but that’s not what the law is. What you

might do in your asbestos world is one thing, but what the law requires and

what this court is held to is another thing.’’

11 The court stated as follows: ‘‘So with respect to the motion for continuance, I am going to deny the motion for continuance. I do understand that

when it was filed it was indicated that it was by consent. However, at the

end of the day, it’s the court’s job to manage the cases and as presiding

judge that’s what I do. This case is a 2009 case. Although it’s only had one
trial date, which I’m not even sure it should have had any trial date because

there was no subject matter jurisdiction, but regardless, it is too old and it

should have been tried before today and there’s—the court’s unwilling and

finds it unreasonable to continue the case to allow the defendants to now

do the discovery they need, to pursue motions for summary judgment, to

have objections filed and then continue it four months for a decision on the

summary judgment. So I am—I’m going to deny the motion for continuance.

‘‘I would note that it is incumbent upon the plaintiff to prosecute its—

prosecute its actions. By failing to substitute the estate in a timely manner,

the court has been unnecessarily deprived of subject matter jurisdiction

and, moreover, the defendants have been prejudiced because they have

effectively been shut out of court. They would be unable to have any discovery motions adjudicated and they would be unable to have any summary

judgment motions decided.

‘‘So for those reasons, the court is going to dismiss the action for the

plaintiff’s failure to substitute the estate in a timely manner and for the

failure to prosecute the action with the due diligence that’s required.’’