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*********************************************** 
MICHELLE LEVINE v. RANDALL HITE ET AL.

(AC 40626)

Alvord, Prescott and Eveleigh, Js.

Syllabus

The plaintiff sought to recover damages for personal injuries she suffered

when her automobile collided with a vehicle that was operated by the

defendant R and owned by the defendant T. Prior to trial, the trial court

denied the defendants’ motion to compel the production of certain of

the plaintiff’s medical payment records. The court determined that the

motion to compel was untimely in light of a scheduling order that a

previous trial court had entered more than one year before, which stated

that written discovery was done. The court also noted that the parties

were without a jury, as half of the jurors who previously had been

chosen had been excused from service on the jury. Thereafter, a different

trial court entered an order that included dates for jury selection and

trial, and precluded, inter alia, further continuances, motions and discovery without prior permission from the court. The defendants then sought

reargument and reconsideration of the denial of their motion to compel,

claiming, inter alia, that because the matter had been rescheduled, there

was plenty of time to secure the plaintiff’s medical records. The trial

court that denied the motion to compel denied the defendants’ motion

for reargument and reconsideration, stating that the motion for reargument and reconsideration had been filed in violation of the court order

that required prior permission from the court to file additional pretrial

motions. When the parties appeared for jury selection, a different judge,

who had been assigned as the trial judge, granted the plaintiff’s motion

for a continuance when her counsel requested a postponement for medical reasons and, sua sponte, permitted the defendants to continue with

discovery. The trial judge thereafter declined the plaintiff’s motion for

reargument and reconsideration of his decision to allow the defendants

to engage in further discovery, which was based on the plaintiff’s assertion that the trial judge’s ruling deprived her of her due process rights

to notice and an opportunity to be heard, and was contrary to the law

of the case doctrine. After a different trial court granted the defendants’

motion for an order of compliance to procure certain of the plaintiff’s

medical records, the defendants filed a motion for a judgment of nonsuit

in which they claimed that the plaintiff had failed to comply with the

order of compliance. A different trial court denied the defendants’

motion for a judgment of nonsuit without prejudice and ordered the

plaintiff to produce the previously requested medical records. That court

then entered an order of nonsuit after the defendants again sought a

judgment of nonsuit on the ground that the plaintiff had failed to comply

with the courts’ discovery orders. On appeal to this court, the plaintiff

claimed, inter alia, that her due process rights were violated when the

trial judge improperly reconsidered the trial court’s ruling denying the

defendants’ motion to reargue the denial of their motion to compel, and

allowed the defendants to engage in further discovery without affording

her a fair opportunity to respond. The plaintiff further claimed that her

failure to comply with the trial courts’ discovery orders did not warrant

the rendering of a judgment of nonsuit against her. Held:

1. The trial judge did not violate the plaintiff’s due process rights by reconsidering, sua sponte, the defendant’s prior request to obtain additional

discovery and permitting the defendants to engage in further discovery:

the trial judge did not abuse his discretion by permitting additional

discovery, as his ruling was a case management decision, he was aware

of the filings in the case and was willing to accommodate the plaintiff’s

request to postpone trial when her counsel requested a continuance

for medical reasons, and, notwithstanding the plaintiff’s claim that the

rulings of the prior trial court were the law of the case, the trial judge

emphasized that circumstances had changed since the prior ruling; moreover, because the discovery issue was raised at a hearing that was

necessitated by the plaintiff’s motion to continue the trial for an additional six to eight weeks, it was not surprising that the trial judge would
raise and decide other issues that were impacted by such a lengthy

delay, the defendants’ ongoing requests to obtain certain of the plaintiff’s

records, although previously determined to be untimely and made without prior permission of the court, could be seen as reasonable in light

of the change in circumstances, the plaintiff made no request for a

recess to review the file and prepare her arguments, there was no

indication as to what the plaintiff would have argued if she had had

advance notice and the opportunity to be heard on the defendants’

request to engage in further discovery, and there was no evidence to

support the plaintiff’s assumption that the trial judge was unfamiliar

with the prior rulings in the case and acted without knowledge of the

contents of the file.

2. The trial court did not abuse its discretion in rendering judgment of

nonsuit against the plaintiff for failing to comply with three previous

orders of the court concerning discovery; the discovery orders of three

different trial courts were reasonably clear, it was undisputed that the

plaintiff failed to comply with those orders, and the court that rendered

judgment properly considered all of the relevant factors in ordering the

nonsuit, and given that the plaintiff chose not to comply with the orders

of three trial courts, she did so at the risk of having her claims fail on

appeal, and the trial judge’s sua sponte decision to allow the defendants

to engage in further discovery was reasonable and proper.

3. The trial court did not abuse its discretion when it ruled on the defendants’

motion for a judgment of nonsuit prior to considering the plaintiff’s

motion for an order of sanctions against the defendants’ counsel; the

court’s decision was one of case management, and the plaintiff cited

no relevant authority that would have required the court to consider

her motion first.

Argued January 15—officially released April 16, 2019

Procedural History

Action to recover damages for personal injuries sustained as a result of the defendants’ alleged negligence,

and for other relief, brought to the Superior Court in

the judicial district of Hartford, where the court, Shapiro, J., denied the defendants’ motion to compel; thereafter, the court, Sheridan, J., issued certain orders

pertaining to trial; subsequently, the court, Shapiro,

J., denied the defendants’ motion for reargument and

reconsideration of its ruling denying the defendants’

motion to compel; thereafter, the court, Noble, J.,

granted the plaintiff’s motion for a continuance, granted

the defendants’ motion for reargument and reconsideration of the denial of their motion to compel, and issued

certain orders pertaining to discovery; subsequently,

the court, Noble, J., denied the plaintiff’s motion for

reargument and reconsideration of its orders pertaining

to discovery; thereafter, the court, Hon. Constance L.

Epstein, judge trial referee, granted the defendants’

motion for an order of compliance; subsequently, the

court, Hon. A. Susan Peck, judge trial referee, denied

the defendants’ motion for a judgment of nonsuit and

issued certain orders pertaining to discovery; thereafter, the court, Hon. A. Susan Peck, judge trial referee,

issued an order of nonsuit and rendered judgment

thereon, from which the plaintiff appealed to this

court. Affirmed.

Jennifer B. Levine, with whom was Harvey L.

Levine, for the appellant (plaintiff).

William J. Melley III, for the appellees (defendants).
Opinion

ALVORD, J. The plaintiff, Michelle Levine, appeals

from the trial court’s judgment of nonsuit rendered in

favor of the defendants, Randall Hite and Tanya Hite,

as a result of the plaintiff’s failure to comply with three

previous orders of the court regarding discovery. On

appeal, the plaintiff claims that (1) the court, Noble, J.,

improperly raised and considered a prior ruling of the

court, Shapiro, J., without affording her a fair opportunity to respond, (2) the plaintiff’s failure to comply with

discovery orders did not warrant the rendering of a

judgment of nonsuit by the court, Hon. A. Susan Peck,

judge trial referee, and (3) Judge Peck improperly

declined to consider the plaintiff’s motion for sanctions

against the defendants’ counsel prior to rendering the

judgment of nonsuit. We affirm the judgment of the

trial court.

A review of the following somewhat complicated procedural history is necessary to our resolution of the

issues on appeal. In December, 2012, the plaintiff commenced a personal injury action against the defendants

claiming that she was operating her vehicle on or about

December 6, 2010, when it was struck by another vehicle operated by Randall Hite and owned by Tanya Hite.

The matter was scheduled for trial with jury selection to

commence on December 6, 2016. Because of scheduling

issues raised by the plaintiff’s counsel and the defendants’ counsel, the parties discontinued jury selection

after one day, and the court continued the trial to January 4, 2017.

Jury selection commenced on January 5, 2017. On

January 6, 2017, the defendants filed a ‘‘Motion to Compel And/Or Preclude’’ (motion to compel) in response to

a Blue Cross/Blue Shield printout, evidencing medical

payments that the plaintiff had provided to the defendants on January 4, 2017. In the motion to compel,

the defendants claimed that the plaintiff had failed to

produce certain designated records. They requested

that the court order her to produce those records at

least twenty-four hours prior to the start of evidence

or else be precluded from entering any evidence of her

physical injuries at trial.

Jury selection was completed on January 11, 2017,

and the trial was scheduled to commence on January

18, 2017. On January 12 and 13, 2017, Judge Shapiro

heard arguments on the defendants’ motion to compel

and the defendants’ objections to the plaintiff’s proposed exhibits that were being premarked by counsel

for trial. On January 18, 2017, Judge Shapiro informed

the parties that four of the eight jurors selected had

written letters to the court requesting that they be

excused from serving on the jury. Judge Shapiro stated

that the presiding judge had excused those jurors,

which left the parties without a jury for trial. Because
the case could not proceed at that time, Judge Shapiro

indicated that he would put on the record his rulings

on the matters previously argued by counsel.

With respect to the defendants’ motion to compel,

Judge Shapiro concluded that the motion was

‘‘untimely’’ and denied the motion for the following

reasons: ‘‘The return date in this matter was January

8, 2013. The plaintiff is proceeding on the original complaint dated November 20, 2012. The plaintiff’s deposition was taken in January, 2015.

‘‘On October 7, 2015, the court entered a scheduling

order. Therein it was stated that written discovery was

done and the—all depositions were to be completed by

November 15, 2016.

‘‘On that same date, October 7, 2015, which is obviously over a year ago, the court—not this court but a

court officer—held a pretrial conference. It’s undisputed that at that pretrial conference, as part of her

written presentation, the plaintiff presented a printout

of her medical expenses. See Plaintiff’s Exhibit 1 to the

January 12, 2017 hearing.

‘‘That printout lists dates and services, types of services, and names of medical providers of the plaintiff

beginning in December, 2010. The names of providers

and dates of services were provided to the defendants,

and the bulk of the dates of records they complain of

not receiving were made known to them at that time.

‘‘Had the defendants wanted more information or

records, they could have taken steps to obtain them

before jury selection began. For example, they could

have asked the plaintiff to provide the additional

records well in advance of the trial. They already had

a medical authorization to obtain records and could

have used it or asked for another from the plaintiff.

The defendants could have sought to redepose the plaintiff. . . .

‘‘Also, in their motion, the defendants provided no

exhibits, such as the plaintiff’s previous responses to

their written discovery requests.

‘‘The defendants could have timely filed a motion to

compel long before trial saying that previous discovery

compliance was incomplete, that the plaintiff had failed

to disclose her medical condition and treatment. They

could have asked for a status conference to discuss

issues they have belatedly raised in their motion. The

court’s docket reflects that no motion to compel was

filed until January 6, which was after jury selection

had begun.

‘‘The court finds that the defendants were on notice

in October, 2015, of issues which they are raising now

in their motion, more than a year later. The defendants’

presentation is untimely.’’

On January 20, 2017, the court, Sheridan, J., entered
the following order in this case:

‘‘Jury selection will commence on March 14, 2017.

This is a firm trial date. Both counsel are responsible

for ensuring that they and their clients and witnesses

are ready for trial on the scheduled date. NO FURTHER

CONTINUANCES OF THE TRIAL DATE WILL BE PERMITTED, absent compelling circumstances which are

fully beyond the ability of counsel to anticipate, prevent

or control.

‘‘Between now and the commencement of jury selection, no additional pretrial motions, pretrial discovery,

or designation of additional witnesses or additional

exhibits for trial will be permitted, without the prior

permission of the court based upon a showing of

good cause.’’

On January 27, 2017, the defendants filed a motion

to reconsider Judge Shapiro’s January 18, 2017 denial

of their motion to compel. The defendants, noting that

the matter had been rescheduled for mid-March,

claimed that there was ‘‘plenty of time to secure the

medical records’’ and that the plaintiff’s prior medical

authorization had expired. The defendants requested

that the court order the plaintiff to furnish an authorization for the defendants to secure those records. The

plaintiff filed an objection to the defendants’ motion

on February 8, 2017. One month later, on February 27,

2017, Judge Shapiro denied the defendants’ motion to

reconsider, referencing Judge Sheridan’s order requiring prior permission of the court to file additional pretrial motions and stating that the defendants’ motion

to reconsider had been filed in violation of that order.

On March 16, 2017, the parties appeared for jury

selection before Judge Noble, now assigned as the trial

judge for this matter. At that time, the plaintiff’s counsel1

presented the court with a physician’s note that indicated she was temporarily ‘‘unable to carry out her

duties’’ because of certain medical conditions. On the

basis of the physician’s note, the plaintiff’s counsel

requested a six to eight week continuance.

Judge Noble then addressed the defendants’ counsel,

Attorney William J. Melley III, with the following question: ‘‘You had a motion, Mr. Melley, to reconsider and

to reargue Judge Shapiro’s order denying you the right

to continue discovery; is that correct?’’ Attorney Melley

responded: ‘‘Yes, Your Honor.’’ At that point, Judge

Noble ruled: ‘‘All right. Your motion for continuance is

granted. The motion to reargue is granted. Your motion

to continue discovery is now permitted.’’

When the plaintiff’s counsel objected, stating that she

believed that the court was penalizing her because she

currently was unable to proceed to trial, Judge Noble

provided the following reasons for his ruling: ‘‘So, we

have six to eight weeks. We have a case that is from

2013. We have a case that encountered significant diffi-
culties because of all counsel in getting to trial. We

have one attorney who is unable to continue because

of [a] physical [condition] and another attorney who

claims that he is unable to continue because of physical

disabilities, so I will accommodate both your schedules.

Given the fact that we have now another six to eight

weeks to go, [the defendants’ counsel] has an opportunity to conduct further discovery.’’

On April 5, 2017, the plaintiff filed a motion to reargue

Judge Noble’s decision allowing the defendants to

engage in further discovery. In that motion, the plaintiff

set forth the procedural history of the case, emphasizing

that Judge Shapiro had denied the defendants’ motion

to compel and had denied the defendants’ motion to

reconsider that had been filed in violation of Judge

Sheridan’s order. The plaintiff argued that the court’s

sua sponte reconsideration of Judge Shapiro’s ruling

deprived her of her due process rights to notice and

an opportunity to be heard, and also was contrary to

the law of the case doctrine. The defendants filed an

objection to the plaintiff’s motion to reargue on April

11, 2017. On April 12, 2017, Judge Noble denied the

plaintiff’s motion to reargue and sustained the defendants’ objection to that motion. In sustaining the defendants’ objection, Judge Noble stated: ‘‘The continuance

of the trial date operates to ameliorate the need for

discontinuance of further discovery.’’

On March 30, 2017, the defendants filed a motion

for an order for compliance, seeking specified medical

records from the plaintiff that the defendants claimed

had not been completely disclosed. In the motion, the

defendants represented that, if the plaintiff preferred,

they would accept an authorization to secure those

records. The defendants moved for an order of compliance or, in the alternative, such other relief as the court

deemed appropriate, including, inter alia, the entry of

a nonsuit against the plaintiff. The plaintiff filed an

objection to the defendants’ motion on April 10, 2017,

claiming that her motion to reargue Judge Noble’s decision should first be considered. She stated that she

was incorporating all of the arguments set forth in her

motion to reargue in her objection to the defendants’

motion. On April 25, 2017, the court, Hon. Constance

L. Epstein, judge trial referee, granted the defendants’

motion for an order for compliance. Judge Epstein’s

order provided: ‘‘Plaintiff must comply with all outstanding discovery requests for medical records and

billings by May 2, 2017.’’ The plaintiff did not move to

reargue Judge Epstein’s decision.

On May 3, 2017, the defendants moved for a judgment

of nonsuit, claiming that the plaintiff had failed to comply with Judge Epstein’s order. The plaintiff filed an

objection to the defendants’ motion for judgment on

May 11, 2017, again outlining in detail Judge Shapiro’s

prior orders denying the defendants’ request for further
discovery and Judge Sheridan’s order requiring prior

permission of the court to file additional pretrial

motions before jury selection. The plaintiff argued that

the prior rulings had never been vacated and, therefore,

that Judge Noble’s sua sponte ruling allowing the defendants the opportunity for further discovery was made

‘‘without any legal or statutory authority’’ and was

‘‘invalid.’’ The plaintiff further claimed that the rulings

of Judge Noble and Judge Epstein were contrary to the

law of the case. Finally, the plaintiff argued that the

sanction of a nonsuit was not proportional to the ‘‘purported failure’’ to comply with Judge Epstein’s order.

On May 15, 2017, following a hearing before the court,

Judge Peck ruled on the defendants’ motion for judgment. In the following order, Judge Peck denied the

defendants’ motion without prejudice: ‘‘However, after

review of the several court orders concerning discovery

of certain of the plaintiff’s medical records relating to

this case, as well as the plaintiff’s extensive objection

(#154) to this motion, in accordance with the two most

recent court orders issued, #149.86 (Noble, J.), and

#145.86 (Hon. Constance L. Epstein, judge trial referee), which have both required production of the documents at issue, the undersigned can discern no

compelling reason to disturb those decisions, which

now constitute the law of the case. Accordingly, the

plaintiff is hereby ordered to produce the requested

medical records identified in the defendants’ motion

for order of compliance (#145), and more particularly

identified in [their] motion to compel (#122), or produce

appropriate authorization(s) from the plaintiff to the

defendants’ counsel, no later than 5/30/17, authorizing

him to obtain such records directly from the medical

providers in question. The court notes that Judge

Epstein originally ordered that the same records be

produced by 5/2/17. . . .’’

The plaintiff did not move to reargue Judge Peck’s

decision. She filed a notice of intent to appeal the court’s

ruling on May 26, 2017. Additionally, on May 26, 2017,

the plaintiff filed a motion for an order of sanctions

against the defendants’ counsel. After reciting the

extensive factual and procedural history of the case,

the plaintiff argued that the defendants’ counsel had

‘‘consistently misrepresented material facts and the law

of the case to the court . . . .’’ On May 31, 2017, the

defendants again moved that the court nonsuit the plaintiff for her failure to comply with the orders of Judge

Epstein and Judge Peck. The defendants represented

that the plaintiff failed to provide the specified medical

records or to produce appropriate authorizations to

secure those records. On June 7, 2017, the defendants’

counsel filed a motion for an extension of time to

respond to the plaintiff’s motion for an order of sanctions. In that motion, the defendants stated that a

motion for judgment was pending before the court and

that the court’s ruling on the defendants’ motion for
judgment could render moot the issues raised in the

plaintiff’s request for sanctions.

On June 8, 2017, the plaintiff filed a ‘‘Reply To Defendants’ Motion For Judgment.’’ In her reply, the plaintiff

again extensively reviewed Judge Shapiro’s rulings,

attaching a transcript of the January 18, 2017 hearing

before Judge Shapiro as an exhibit. The plaintiff then

claimed that she was ‘‘being forced to disclose irrelevant information so that the [d]efendants can inappropriately cause confusion . . . .’’ The plaintiff

additionally requested that the court rule on her motion

for an order of sanctions before ruling on the defendants’ motion for judgment. Finally, after claiming ‘‘a

gross violation of her due process rights,’’ the plaintiff

requested ‘‘that this action be dismissed at this point

for the purpose of the plaintiff taking an appeal . . . .’’

On June 19, 2017, Judge Peck issued a comprehensive

order on the defendants’ motion for judgment: ‘‘The

court hereby orders a nonsuit as to the plaintiff for

failure to comply with three previous orders of the court

concerning discovery in this case. The discovery in

question was specifically identified in the defendants’

motion to compel (#122). Two such orders (#145.86

[Hon. Constance L. Epstein, judge trial referee,] and

#152.86 [Hon. A. Susan Peck, judge trial referee]), contained deadlines of 5/2/17 and 5/30/17, respectively. The

discovery subject of the motion to compel was originally authorized by a third order of the court issued on

4/12/17 (#149.86 [Noble, J.]).2 On 1/20/2017, a jury trial

in this case, which was scheduled to commence evidence on 1/18/2017 before Judge Shapiro, was postponed after several jurors asked to be excused. In

connection with the postponement of that trial, the

court (Sheridan, J.) issued an order which stated in

pertinent part: ‘Between now and the commencement

of jury selection, no additional pretrial motions, pretrial

discovery, or designation of additional witnesses or

additional exhibits for trial will be permitted, without

the prior permission of the court based on a showing

of good cause.’ See docket entry #137. Since 1/20/17,

despite a notice by Judge Sheridan that no further continuances of the trial date would be permitted absent

compelling circumstances, the trial of this 2013 case

has been rescheduled numerous times. After a hearing

held on 4/12/17,3

Judge Noble granted such permission

to defendants to obtain additional discovery in the form

of medical record production.

‘‘Jury selection is presently scheduled to recommence on June 20, 2017. Plaintiff’s counsel has represented that for personal health reasons, Attorney

Harvey Levine is not able to perform as trial counsel.

In addition, some of the trial delay since February has

been due to acknowledged health reasons personal to

Attorney Jennifer Levine. Health issues, notwithstanding, both Attorney Harvey Levine and Attorney Jennifer
Levine have recently submitted pleadings in this case

and have appeared jointly at the hearings that have been

held concerning the issue of discovery compliance. In

contrast to the legitimate reasons communicated by

both counsel relating to trial scheduling, there has been

no legitimate or acceptable reason presented for the

wilful and repeated failure of plaintiff’s counsel to comply with the discovery orders of this court. Counsel

continue to challenge the order of Judge Noble issued

on 4/12/17,4 whereby he authorized the defendants’

request to obtain additional document production or

medical authorizations in this case, despite the fact that

that no motion to reargue or reconsider that decision

was filed.5

In addition, as previously noted, plaintiff’s

counsel have also chosen to ignore the subsequent

orders of Judges Epstein and Peck. Instead, they insistently seek to harken back to a prior order of Judge

Shapiro issued in January, 2017, just prior to the commencement of the evidence then scheduled in this case

and ultimately postponed due to juror unavailability.

The plaintiff, albeit through her counsel, cannot selectively and unreasonably cling to an earlier order of one

judge under circumstances then existing and choose to

ignore the subsequent orders of three different judges

under changed circumstances. Although this court has

been reluctant to impose the sanction of nonsuit until

this juncture, based on counsel’s persistent, wilful disregard for the lawful orders of this court, the undersigned

is left with no viable alternative. A fine would not do

justice to what constitutes ‘deliberate, contumacious

. . . [and] unwarranted disregard for the court’s

authority . . . .’ Herrick v. Monkey Farm Cafe, LLC,

163 Conn. App. 45, 51, 134 A.3d 643 (2016). This affront

to the court, made on behalf of the plaintiff, has been

both unjustified and unnecessary to preserve the rights

of the plaintiff to prosecute her case to a successful

conclusion. Plaintiff’s counsel has not even attempted

[to] articulate any particular prejudice that the plaintiff

will suffer in connection with the production of the

documents in question. Rather, counsel argues that the

production of this information is not relevant to the

plaintiff’s claim, an improper objection to the broad

mandate afforded requests for discovery. See Practice

Book § 13-2. In fact, in a response to the defendants’

motion, the plaintiff concedes that the document production in question relates to medical provider records

apparently disclosed in her pretrial memo. See docket

entry #159. For all the foregoing reasons, the court can

find no reasonable alternative to vindicate the court’s

authority other than to issue this order of nonsuit.’’

(Footnotes added.) This appeal followed.

I

The plaintiff’s first issue on appeal is that Judge Noble

improperly raised and considered a prior ruling of Judge

Shapiro without affording her a fair opportunity to

respond. Specifically, she argues that Judge Noble’s
ruling was an abuse of discretion because ‘‘the plaintiff

did not have a fair opportunity to respond to the potential reconsideration of the defendants’ motion to compel

because she lacked notice that Judge Noble intended

to use the hearing on the plaintiff’s motion for continuance as an opportunity to address Judge Shapiro’s

denial of the defendants’ motion to reconsider. . . .

Indeed, had the plaintiff known that Judge Noble would

act sua sponte in considering Judge Shapiro’s denial of

the motion to reconsider, she would have attempted

to familiarize Judge Noble with the entire procedural

history of the case, including the two days of oral arguments spent before Judge Shapiro and Judge Shapiro’s

extensive ruling on this issue.’’ (Citation omitted.)

The plaintiff’s first claim essentially attacks Judge

Noble’s ruling that allowed the defendants to engage

in further discovery on two grounds: (1) the rulings of

Judge Shapiro and Judge Sheridan constituted the law

of the case, and (2) the plaintiff was denied her due

process rights because she did not know Judge Noble

intended to revisit the defendants’ request for additional

discovery, and, therefore, she had not been prepared

at that time to argue fully the matter. We are not persuaded.

Simply put, Judge Noble’s ruling was a case management decision. The parties appeared before him on

March 16, 2017, for scheduled jury selection. At that

time, the plaintiff’s counsel presented the court with a

physician’s note indicating that she was temporarily

unable to perform her duties at trial. The plaintiff’s

counsel requested a six to eight week continuance.

Judge Noble clearly was aware of the filings in the case

because he asked the defendants’ counsel whether he

had filed a motion to reargue Judge Shapiro’s ruling

denying further discovery.6 Given that Judge Noble was

willing to accommodate the plaintiff’s request for yet

another postponement of the trial, it was not an abuse

of discretion to permit additional discovery because of

the change in circumstances.

‘‘We review case management decisions for abuse of

discretion, giving [trial] courts wide latitude. . . . A

party adversely affected by a [trial] court’s case management decision thus bears a formidable burden in seeking reversal. . . . A trial court has the authority to

manage cases before it as is necessary. . . . Deference

is afforded to the trial court in making case management

decisions because it is in a much better position to

determine the effect that a particular procedure will

have on both parties. . . . The case management

authority is an inherent power necessarily vested in

trial courts to manage their own affairs in order to

achieve the expeditious disposition of cases. . . . The

ability of trial judges to manage cases is essential to

judicial economy and justice.’’ (Citations omitted; internal quotation marks omitted.) Krevis v. Bridgeport, 262
Conn. 813, 818–19, 817 A.2d 628 (2003).

Nevertheless, the plaintiff argues that Judge Shapiro

had more familiarity with the case and that his rulings

denying additional discovery had never been vacated.

In essence, the plaintiff is arguing that Judge Shapiro’s

prior rulings were the law of the case that were binding

on all subsequent judges. Assuming arguendo that the

law of the case doctrine is applicable here,7

the plaintiff’s claim fails for the following reasons.

The law of the case doctrine provides that when ‘‘a

matter has previously been ruled upon interlocutorily,

the court in a subsequent proceeding in the case may

treat that decision as the law of the case, if it is of the

opinion that the issue was correctly decided, in the

absence of some new or overriding circumstance.’’

(Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99,

439 A.2d 1066 (1982). ‘‘The law of the case is not written

in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in

which it may be invoked.’’ (Internal quotation marks

omitted.) McCarthy v. McCarthy, 55 Conn. App. 326,

332, 752 A.2d 1093 (1999), cert. denied, 252 Conn. 923,

752 A.2d 1081 (2000). ‘‘A judge is not bound to follow

the decisions of another judge made at an earlier stage

of the proceedings, and if the same point is again raised

he has the same right to reconsider the question as if

he had himself made the original decision. . . . [O]ne

judge may, in a proper case, vacate, modify, or depart

from an interlocutory order or ruling of another judge

in the same case, upon a question of law.’’ (Internal

quotation marks omitted.) Wagner v. Clark Equipment

Co., 259 Conn. 114, 130–31, 788 A.2d 83 (2002).

Judge Noble emphasized in his rulings that the circumstances had changed since Judge Shapiro’s prior

rulings. The plaintiff had just requested a six to eight

week continuance for medical reasons.8 The court was

willing to grant that request, but, in its discretion,

decided that the defendants now could pursue further

discovery because of the trial delay: ‘‘Given the fact

that we have now another six to eight weeks to go,

[the defendants’ counsel] has an opportunity to conduct

further discovery.’’ This ruling was not an abuse of the

court’s discretion. ‘‘Abuse is not present if discretion

is not exercised arbitrarily or wilfully, but with regard

to what is right and equitable under the circumstances

and the law, and [it is] directed by the reason and

conscience of the judge to a just result. . . . And

[sound discretion] requires a knowledge and understanding of the material circumstances surrounding the

matter . . . .’’ (Internal quotation marks omitted.)

Krevis v. Bridgeport, supra, 262 Conn. 819.

With respect to the plaintiff’s argument that Judge

Noble violated her due process rights by reconsidering,

sua sponte, the defendants’ prior request to obtain additional discovery, we note that the discovery issue was
raised at a hearing necessitated by the plaintiff’s motion

to continue the trial for an additional six to eight weeks.

It is not surprising that, given the lengthy postponement,

the judge presiding over the trial would raise and decide

other issues impacted by such a delay. The defendants’

ongoing requests to obtain certain specified records,

although previously determined to be untimely and

made without prior permission by the court as required

by Judge Sheridan’s ruling, now could be seen as reasonable in light of this change in circumstances. If the

plaintiff believed that she was not prepared to argue

this issue, she could have requested a recess to review

the file and prepare her arguments. She made no such

request, instead accusing the court of penalizing her

for the requested continuance.

Moreover, there is no indication as to what the plaintiff would have argued if she had had advance notice

and the opportunity to be heard on the defendants’

request to engage in further discovery. She states in

her appellate brief that she would have ‘‘attempted to

familiarize Judge Noble with the entire procedural history of the case, including the two days of oral arguments spent before Judge Shapiro and Judge Shapiro’s

extensive ruling on this issue.’’ The plaintiff assumes,

without any evidence in the record to support it, that

Judge Noble had not reviewed the file or was unfamiliar

with the prior rulings of the court. There is no foundation for this assumption, and we will not presume that

the court acted without knowledge of the contents of

the file. Accordingly, we conclude that the plaintiff’s

due process rights were not violated by the sua sponte

ruling of Judge Noble.

II

The plaintiff next claims that her failure to comply

with discovery orders did not warrant the rendering of

a judgment of nonsuit by Judge Peck. Specifically, she

argues: ‘‘The trial court abused its discretion in entering

a judgment of nonsuit against the plaintiff. In this case,

the plaintiff deliberately chose to seek appellate review

of the discovery order by failing to comply with the

order and by appealing from the subsequent judgment

of nonsuit. The plaintiff’s conduct, considered in its

entirety, does not evince a continuing pattern of violations that warranted the judgment of nonsuit against

the plaintiff.’’ We conclude that Judge Peck did not

abuse her discretion by ordering a judgment of nonsuit.

‘‘In order for a trial court’s order of sanctions for

violation of a discovery order to withstand scrutiny,

three requirements must be met.

‘‘First, the order to be complied with must be reasonably clear. In this connection, however, we also state

that even an order that does not meet this standard

may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the
party sanctioned in fact understood the trial court’s

intended meaning. This requirement poses a legal question that we will review de novo.

‘‘Second, the record must establish that the order

was in fact violated. This requirement poses a question

of fact that we will review using a clearly erroneous

standard of review.

‘‘Third, the sanction imposed must be proportional

to the violation. This requirement poses a question of

the discretion of the trial court that we will review for

abuse of that discretion.’’ Millbrook Owners Assn., Inc.

v. Hamilton Standard, 257 Conn. 1, 17–18, 776 A.2d

1115 (2001). ‘‘[D]iscretion 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. . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy

where that can be brought about with due regard to

necessary rules of procedure. . . . Therefore, although

dismissal of an action is not an abuse of discretion

where a party shows a deliberate, contumacious or

unwarranted disregard for the court’s authority . . .

the court should be reluctant to employ the sanction

of dismissal except as a last resort. . . . [T]he sanction

of dismissal should be imposed only as a last resort,

and where it would be the only reasonable remedy

available to vindicate the legitimate interests of the

other party and the court. . . . The reasoning of Millbrook Owners Assn., [Inc., applies] equally to nonsuits

and dismissals.’’ (Citation omitted; internal quotation

marks omitted.) Blinkoff v. O & G Industries, Inc., 89

Conn. App. 251, 257–58, 873 A.2d 1009, cert. denied,

275 Conn. 907, 882 A.2d 668 (2005).

In the present case, Judge Peck rendered a judgment

of nonsuit against the plaintiff for her ‘‘failure to comply

with three previous orders of the court concerning discovery . . . .’’ Over the plaintiff’s objection, Judge

Noble authorized the defendants to engage in further

discovery at the March 16, 2017 hearing on the plaintiff’s

request for an extended continuance of the trial. Judge

Noble denied the plaintiff’s motion to reargue that decision on April 12, 2017. Judge Epstein subsequently ruled

on the defendants’ motion for an order of compliance

and ordered the plaintiff to comply with all outstanding

discovery requests for medical records and billings by

May 2, 2017. When the plaintiff failed to comply with

Judge Epstein’s order, the defendants moved for judgment in their favor. Judge Peck, following a hearing on

May 15, 2017, denied the defendants’ motion without
prejudice. In her order issued that same day, Judge

Peck cautioned the plaintiff by stating that the orders

of Judge Noble and Judge Epstein now constituted ‘‘the

law of the case.’’ Judge Peck ordered the plaintiff to

produce certain identified medical records or to provide

authorizations to the defendants’ counsel to obtain

those records directly from the medical providers no

later than May 30, 2017. When the plaintiff failed to

comply with Judge Peck’s May 15, 2017 order, the defendants again filed a motion for judgment in their favor.

The plaintiff filed a reply to that motion, claiming the

information sought was irrelevant and requesting that

the court dismiss her action ‘‘for the purpose of the

plaintiff taking an appeal . . . .’’

In rendering the judgment of nonsuit, Judge Peck

cited applicable case law relating to the sanction of

nonsuit or dismissal. She recognized that a court should

be reluctant to impose such a sanction, but she concluded that the plaintiff had evidenced ‘‘persistent, wilful disregard for the lawful orders of this court’’ and

that the court was ‘‘left with no viable alternative.’’

Judge Peck stated that a fine ‘‘would not do justice to

what constitutes deliberate, contumacious . . . [and]

unwarranted disregard for the court’s authority . . . .’’

(Internal quotation marks omitted.) As further support

for her decision to render a judgment of nonsuit, Judge

Peck noted that the plaintiff unreasonably clung to the

prior order of Judge Shapiro and chose to disregard

the subsequent orders of three different judges under

changed circumstances. Moreover, according to the

court, the plaintiff had not even attempted to articulate

any particular prejudice that she would suffer by producing the documents in question.

In considering the plaintiff’s claim that the judgment

of nonsuit was an improper sanction for her failure to

comply with the previously referenced court orders, we

first note that the orders of Judge Noble, Judge Epstein

and Judge Peck, regarding the discovery requested by

the defendants, were ‘‘reasonably clear.’’ Millbrook

Owners Assn., Inc. v. Hamilton Standard, supra, 257

Conn. 17. Second, it is also undisputed that the plaintiff

repeatedly failed to comply with those court orders.

Finally, under the circumstances as set forth in detail

in Judge Peck’s judgment of nonsuit, we cannot conclude that the court abused its discretion in imposing

this sanction. We are convinced that the trial court

properly considered all of the relevant factors in ordering the nonsuit.

The plaintiff was adamant in her position that the

orders of Judge Shapiro and Judge Sheridan were the

law of the case and that the subsequent orders of Judge

Noble, Judge Epstein and Judge Peck were improper

and invalid. Although she chose not to comply in order

to have an appealable judgment of nonsuit rendered

against her,9

she did so at the risk of having her claims
fail on appeal. As discussed previously in this opinion,

Judge Noble’s sua sponte decision to allow the defendants to engage in further discovery was reasonable

and proper given the change in circumstances. The

plaintiff has not challenged Judge Epstein’s order and

Judge Peck’s May 15, 2017 order as being unreasonable,

except for the fact that they were based on Judge

Noble’s authorization to the defendants to engage in

further discovery. The plaintiff disregarded the three

court orders at her peril. ‘‘[A] party has a duty to obey

a court order even if the order is later held to have been

unwarranted.’’ Tomasso Bros., Inc. v. October TwentyFour, Inc., 230 Conn. 641, 658 n.20, 646 A.2d 133 (1994).

For all of the foregoing reasons, we conclude that

the plaintiff’s claim that the court abused its discretion

in rendering the judgment of nonsuit fails.

III

The plaintiff’s final claim is that Judge Peck improperly declined to consider the plaintiff’s motion for an

order of sanctions against the defendants’ counsel prior

to rendering the judgment of nonsuit. Specifically, she

argues that ‘‘no circumstances existed that justified

such a refusal. Thus, the trial court lacked the authority

to refuse to consider the plaintiff’s motion.’’

As with the plaintiff’s first claim, the court’s decision

as to the order of considering pending motions is one

of case management. ‘‘Deference is afforded to the trial

court in making case management decisions because

it is in a much better position to determine the effect

that a particular procedure will have on both parties.’’

Krevis v. Bridgeport, supra, 262 Conn. 819. The plaintiff

cites no relevant authority that would have required

Judge Peck to consider the plaintiff’s motion first.

Accordingly, we conclude that the court did not abuse

its discretion in ruling on the defendants’ motion for

judgment prior to considering the plaintiff’s motion for

an order of sanctions against the defendants’ counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Two attorneys, Harvey L. Levine and Jennifer Beth Levine, filed appearances on behalf of the plaintiff. Attorney Harvey L. Levine told Judge Noble

that his health issues prevented him from being lead counsel for this jury

trial. When we refer to plaintiff’s counsel in the singular in this opinion, we

are referring to Attorney Jennifer Beth Levine.

2

Judge Noble’s order actually was issued at a hearing held on March 16,

2017. His April 12, 2017 order was a denial of the plaintiff’s motion to reargue

that ruling.

3 See footnote 2 of this opinion.

4 See footnote 2 of this opinion.

5 The plaintiff did file a motion to reargue Judge Noble’s decision on April

5, 2017, which the court denied on April 12, 2017.

6 No one has claimed that Judge Noble did not have access to the court

file at the time he made his rulings.

7 There is some question as to whether the law of the case doctrine applies

to rulings on matters left to the court’s discretion. See McCarthy v. McCarthy,

55 Conn. App. 326, 333–34, 752 A.2d 1093 (1999), cert. denied, 252 Conn.

923, 752 A.2d 1081 (2000).

8 The plaintiff stresses that her request for a continuance was based on
the ‘‘plaintiff’s counsel’s need for accommodation for severe medical complications . . . which constituted a protected disability under state and federal

law.’’ Judge Noble did not say that her request for a continuance was not

a legitimate request. Even if her condition was a protected disability, she

nevertheless was asking to delay the trial for six to eight weeks. It was

reasonable for the court to conclude that the length of the postponement

of trial constituted a change in circumstances.

9

In her ‘‘reply’’ to the defendants’ motion for judgment, the plaintiff

requested that Judge Peck dismiss her action. She now, however, claims

on appeal that the rendering of the judgment of nonsuit for failure to comply

with the three discovery orders was an abuse of discretion.