Superior Court of Connecticut.

Zbigniew S. Rozbicki, Executor of the Estate of Kathleen M. Gisselbrecht v. Eugene Gisselbrecht et al.

LLI CV 09 4008602S

    Decided: January 19, 2012

MEMORANDUM OF DECISION

The court must decide the defendant’s motion for reconsideration (# 125) of the court’s order of December 10, 2011 granting the plaintiff’s motion to exempt this case from dismissal under the dormancy program.   The parties argued this motion at the short calender on January 3, 2012.   For the reasons given, the court must reverse itself and dismiss this case.

This is an appeal from probate challenging the removal of the plaintiff as executor of the estate of Kathleen M. Gisselbrecht.   It was returnable to court on July 21, 2009.   The defendants filed their answer on September 22, 2009.   No certificate of closed pleadings was filed, nor was there was further activity in the file until July 7, 2011 when the court issued a notice, pursuant to a local dormancy program, which states as follows:  “This case is 18 months old, or older and the pleadings are not closed.   The pleadings must be closed and a pretrial or trial scheduled (or final judgment entered) by 12/09/2011 or this case will be dismissed pursuant to P.B. Sec. 14–3.   If the pleadings are closed and a pretrial or trial scheduled, a withdrawal filed or final judgment is entered by 12/09/2011 then the case will not be dismissed.   Motions to exempt must be filed with the clerk’s office no later than 11/09/2011.”

On December 9, 2011 at 5:05 P.M., the court received a motion from the plaintiff entitled:  “Motion To Exempt Case From Dormant List For Dismissal” (# 123) which stated:  “The plaintiff moves the court to exempt the above entitled matter from the dormant list for dismissal.   A trial of the case has been duly scheduled.”   Based upon the plaintiff’s representation that the case had been scheduled for trial, the court granted the motion to exempt on December 12, 2011.

On December 14, 2011 the defendants filed this motion to reconsider.   The defendant’s motion contains a crucial detail:  the plaintiff’s allegation that the case was scheduled for trial was inaccurate.   The case has not been scheduled for trial.   When the court granted the plaintiff’s motion to exempt it relied upon the representation of the plaintiff that the case had been scheduled for trial.   The court did not check the file to determine if the representation was true.   The court feels that it should be able to rely upon representations of the attorneys as to the status of the file.   It is clear that the court would not have granted the motion to exempt if it knew that the case was not scheduled for trial.   The motion was filed more than a month after the date for filing motions to exempt and no reason was given for the failure to file a certificate of closed pleadings.1

The court recognizes that the practice book rules are to be liberally interpreted where it shall be manifest that a strict adherence to them will work surprise or injustice.  Practice Book Sec. 1–8.   But no surprise or injustice will result if the court reverses itself and dismisses this case for failure to comply with the court’s order of July 7, 2011.   The plaintiff is an attorney representing himself in this case.   He had five months from the July 7th order to file a certificate of closed pleadings which would have led to an assignment of a pretrial in compliance with the court’s order.   Failing to file that certificate within that five-month period is inexplicable 2 but, perhaps, with a reasonable explanation, would have been overlooked if a proper motion to exempt had been filed.   But, it is inexcusable that a motion to exempt was filed which contained a false statement which, in turn, led the court to mistakenly grant the motion.

The court’s order granting the plaintiff’s motion to exempt (# 123) is vacated and the motion is denied.   The case is dismissed pursuant to the court order of July 7, 2011.

BY ORDER OF THE COURT,

John W. Pickard

FOOTNOTES

FN1. Practice Book Sec. 14–8 provides that a case shall not be scheduled for trial until a certificate of closed pleadings has been filed.   The filing of a certificate of closed pleadings triggers the scheduling of a pretrial at which time a trial date is selected..  FN1. Practice Book Sec. 14–8 provides that a case shall not be scheduled for trial until a certificate of closed pleadings has been filed.   The filing of a certificate of closed pleadings triggers the scheduling of a pretrial at which time a trial date is selected.

FN2. On January 3, 2012, after the motion to reconsider was argued, the plaintiff filed a certificate of closed pleadings.   The court has not considered this filing in acting on the motion before the court to reconsider the court’s action of December 12, 2011..  FN2. On January 3, 2012, after the motion to reconsider was argued, the plaintiff filed a certificate of closed pleadings.   The court has not considered this filing in acting on the motion before the court to reconsider the court’s action of December 12, 2011.

Pickard, John W., J.

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