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HERRICK v. THE MONKEY FARM CAFE, LLC—CONCURRENCE
ALVORD, J., concurring. I agree with the result
reached by the majority. I write separately, however,
to emphasize the unique situation that leads to such a
result and to suggest a more appropriate alternative
sanction than the one offered in footnote 4 of the major-
ity opinion.
The plaintiff, Jared Herrick, commenced the present
action against the defendants, The Monkey Farm Cafe,
LLC,1 Laura Corning,2 and Kevin Fisher,3 seeking dam-
ages for injuries he allegedly sustained when he was
physically assaulted after he exited The Monkey Farm
Cafe by two of its other patrons. The complaint was
served on the defendants on February 8, 2013, and, as
noted in the majority opinion, thereafter the defendants
filed several requests to revise the plaintiff’s pleadings
and several motions for nonsuit. One of the motions
for nonsuit was filed by the defendants on March 27,
2014. A hearing was scheduled for May 19, 2014, at
which time the defendants’ counsel requested that the
plaintiff pay attorney’s fees in the amount of $2700 as
sanctions for the time they had expended in pursuing
the court-ordered revisions to the complaint. The court,
exercising considerable patience and compassion after
listening to recitation by the plaintiff’s counsel of cata-
strophic personal issues that explained her repeated
delays, awarded the defendants $500 in attorney’s fees,
which represented a modest 18.5 percent of the
amount requested.
The court and counsel were discussing when the
$500 sanction should be paid, and the plaintiff’s counsel
offered to tender payment by the end of the week. After
the deadline for payment had passed, the defendants
filed another motion for nonsuit on July 11, 2014, citing
the failure of the plaintiff’s counsel to comply with
the court’s May 19, 2014 order. The court granted that
motion on August 4, 2014, and the plaintiff’s counsel
subsequently made several unsuccessful attempts to
persuade the court to reconsider and open the judgment
of nonsuit. Given the circumstances surrounding the
attempts of the plaintiff’s counsel to comply with the
deadline for paying the $500 sanction, and even though
her efforts to make the payment were clearly less than
effective, I concur with the majority that the rendering
of a judgment of nonsuit was a disproportionate punish-
ment for the failure to timely comply with the May 19,
2014 order.
Because the initial court-ordered sanction of $500
was particularly lenient, I believe that a more appro-
priate sanction for the failure of the plaintiff’s counsel
to timely comply with the court’s May 19, 2014 order
would have been an increase in attorney’s fees awarded
to the defendants rather than the sanction of a judgment
of nonsuit. Along with such an increase in the amount
of attorney’s fees, the court’s order could have specified
that failure to make the payment of the additional fees
by a stated date would automatically result in a judg-
ment of nonsuit. I do not agree with the suggestion set
forth in footnote 4 of the majority opinion that the court
could enter ‘‘a contingent order affecting counsel’s right
to practice law’’ if she failed to timely comply. I respect-
fully submit that such a contingent order would be as
harsh an action as the rendering of a judgment of
nonsuit.
Nevertheless, I agree that under the extremely
unusual circumstances in this case, the trial court
abused its discretion in rendering a judgment of nonsuit
for the failure of the plaintiff’s counsel to timely comply
with its May 19, 2014 order. Accordingly, I concur in
the result reached by the majority.
1
The Monkey Farm Cafe, LLC, owned and operated The Monkey Farm
Cafe, an establishment in Old Saybrook at which alcoholic beverages were
sold to the public.
2
Corning was the permittee of The Monkey Farm Cafe.
3
Fisher was employed by The Monkey Farm Cafe as a bartender.