******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and in the Connecticut Law Journal and bound volumes

of official reports are copyrighted by the Secretary of

the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal

Publications, Judicial Branch, State of Connecticut.

******************************************************
SAUNDRA MAGANA v. WELLS FARGO

BANK, N.A., ET AL.

(AC 37792)

Gruendel, Lavine and Alvord, Js.*

Argued February 16—officially released April 19, 2016

(Appeal from Superior Court, judicial district of

Hartford, Miller, J.)
Saundra Magana, self-represented, the appellant

(plaintiff).

Kevin P. Polansky, for the appellee (named

defendant).

Elizabeth T. Timkovich, with whom, on the brief, was

Pierre-Yves Kolakowski, for the appellees (defendant

ReconTrust Company, N.A., et al.).
Opinion

PER CURIAM. The self-represented plaintiff, Saundra

Magana, appeals from the judgment of the trial court

granting the motion for nonsuit for herfailure to comply

with discovery requests that was filed by the defendants

Wells Fargo Bank, N.A., as Trustee for the Benefit of

the Certificate Holders of Asset-Backed Pass Through

Certificates Series 2004-MCW1 (Wells Fargo),

ReconTrust Company, N.A., and Bank of America, N.A.

(Bank of America).1 The plaintiff asserts that the court

erred in granting the motion for nonsuit by relying on

the bank defendants’ representations that she failed

to comply with its discovery orders in the absence of

evidence supporting their claim. We agree, and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On July 26, 2013, the plaintiff served

a complaint seeking an injunction against the bank

defendants, as well as the defendants NRT New

England, LLC, Lawrence Gagnon, and Auction.com, Inc.

The plaintiff alleged that Wells Fargo had foreclosed

on property at 67 Regency Drive in West Hartford that

she occupied as a tenant under a lease agreement that

she had entered into with the former mortgagor and

owner. She alleged that the lease agreement included

an option to purchase the property. The plaintiff alleged

that Bank of America offered herthe option to purchase

the property, which she exercised by contacting Gagnon, a representative of Bank of America. The plaintiff

alleged that despite her having accepted the offer to

purchase the property, Bank of America scheduled an

auction sale on Auction.com, Inc.’s website, which prejudiced her option to purchase. In her complaint, she

requested an ex parte, temporary, and permanent

injunction preventing the auction sale that she alleged

was pending at the time the complaint was served.

By October 6, 2014, only the bank defendants

remained as defendants. On October 4, 2013, the bank

defendants had served on the plaintiff their first request

for interrogatories and request for documents. The

plaintiff received an extension until December 13, 2013,

to respond. On September 3, 2014, the bank defendants

filed a motion for an order of compliance requesting that

the court order the plaintiff to respond to the discovery

requests or to enter a judgment of nonsuit against her.

On October 6, 2014, the court issued an order granting

the motion for compliance, stating ‘‘[a] nonsuit shall

enter on November 6, 2014, unless plaintiff responds

to defendants’ discovery requests and files a certificate

of compliance with this order before that deadline.’’ On

October 6, 2014, the plaintiff filed an objection to the

motion. On November 5, 2014, the plaintiff filed a certificate of compliance with the court, stating that she had

complied with the October 6, 2014 order.
On November 19, 2014, the bank defendants filed a

motion for nonsuit, stating that the plaintiff had still

failed to provide the discovery requests and to comply

with the October 6, 2014 order. On December 19, 2014,

the court issued an order stating: ‘‘The defendant is

entitled to discovery compliance, having requested it

over a year ago. The plaintiff shall serve verified

responses to all of the discovery requests in question

on or before February 3, 2015, or a judgment of nonsuit

shall enter. No extensions of time shall be granted without a showing of extreme good cause by the plaintiff.

If there is no compliance by [that date], the defendant

should reclaim this motion and ask that it be referred

to the undersigned for adjudication.’’ The plaintiff filed

a verification of compliance on February 3, 2015. On

February 25, 2015, the bank defendants filed a supplement to their motion for nonsuit, claiming that the plaintiff again had failed to comply with the discovery

requests and court orders.2 The plaintiff filed an objection to the motion for nonsuit, which the court overruled on March 8, 2015. On March 19, 2015, the court

issued an order granting the motion for judgment of

nonsuit. The court stated that ‘‘[a] judgment of nonsuit

shall enter because the plaintiff violated this court’s

earlier orders regarding discovery compliance.’’ This

appeal followed.

Prior to addressing the plaintiff’s claims, we note

the applicable standard of review and legal principles.

‘‘Practice Book § 13-14 provides sanctions for failure

to answer interrogatories, which the court may order

upon motion as the ends of justice require. These orders

may vary in severity from entry of a nonsuit or default

or judgment of dismissal to an award of costs of the

motion, including a reasonable attorney’s fee.’’ Tuccio

v. Garamella, 114 Conn. App. 205, 208, 969 A.2d 190

(2009). ‘‘Decisions on the entry of such sanctions rest

within the sound discretion of the trial court.’’ Rullo v.

General Motors Corp., 208 Conn. 74, 78, 543 A.2d 279

(1988). ‘‘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. . . . 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).

On appeal, the plaintiff does not assert that the trial

court’s orders were not reasonably clear, but rather

claims that the court wrongly placed undue reliance
on representations made by the bank defendants in

deciding to grant their motion for nonsuit. She challenges the trial court’s finding that she failed to comply

with its discovery orders. She claims that the court

erred by relying solely on the unsupported representations of the bank defendants’ counsel that she failed to

comply with the discovery requests.

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

that all the court had before it was the plaintiff’s representations that she complied with the court orders, and

the representations of the bank defendants’ counsel in

their motions for nonsuit that she failed to comply with

them.3

In light of the principle that ‘‘representations of

counsel are not evidence and are certainly not proof’’;

Martin v. Liberty Bank, 46 Conn. App. 559, 562, 699

A.2d 305 (1997); the court did not have before it any

evidence on which it could make a credibility determination. The court had only the parties’ competing representations regarding whether the plaintiff had complied

with the discovery requests and court orders. For this

reason, we reverse the judgment of the trial court and

remand the case for further proceedings. On remand,

the court should hold an evidentiary hearing in which

the parties can present evidence supporting their representations, permitting the court to make a factual finding as to whether the plaintiff has complied with its

orders.

The judgment is reversed and the case is remanded

for further proceedings consistent with this opinion.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 We refer in this opinion to these defendants individually by name where

necessary and, collectively, as the bank defendants.

2 None of the bank defendants’ three motions had any evidence attached

to them supporting their representations that the plaintiff had failed to

comply with the discovery requests and court orders.

3 We reject the bank defendants’ argument that the plaintiff’s brief is

inadequate to challenge the findings of the trial court as clearly erroneous.