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JARED HERRICK v. THE MONKEY FARM
CAFE, LLC, ET AL.
(AC 37218)
Lavine, Alvord and Bishop, Js.
Argued October 27, 2015—officially released February 9, 2016
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
Hugh D. Hughes, with whom, on the brief, was Erica
W. Todd-Trotta, for the appellant (plaintiff).
Sylvia K. Rutkowska, for the appellees (defendants).
Opinion
BISHOP, J. The plaintiff, Jarred Herrick, appeals from
the trial court’s judgment of nonsuit on his complaint
in favor of the defendants, The Monkey Farm Cafe, LLC,
Laura Corning, and Kevin Fisher, for the failure of the
plaintiff’s counsel to pay a $500 sanction imposed by
the court on the plaintiff. We reverse the trial court’s
judgment.
On February 8, 2013, the plaintiff commenced this
action against the defendants with an eight count com-
plaint setting forth several causes of action including,
inter alia, violations of the Dram Shop Act, General
Statutes § 30-102, negligent supervision, and reckless
service of alcohol. Factually, his core allegation was
that at approximately 2:00 a.m. on February 10, 2012,
two assailants injured him during an altercation outside
The Monkey Farm Cafe, a bar owned by the named
defendant. On July 31, 2013, the defendants filed a
request to revise the initial complaint and, on November
4, 2013, the court, overruling the plaintiff’s objection,
ordered the plaintiff to revise his complaint.
During the ensuing year, the plaintiff filed seven
revised complaints and/or motions to amend the revised
complaints.1 Following the plaintiff’s first four attempts
to revise, the defendants filed a motion for nonsuit on
March 27, 2014 on the basis of their claim that the
plaintiff had failed to comply with the court’s November
4, 2013, order to revise his complaint.
On May 19, 2014, the court, Aurigemma, J., heard
oral argument on the defendants’ motion for nonsuit.
At that hearing, the defendants’ counsel asked the court
to impose sanctions on the plaintiff on the basis of
the number of hours that she had spent making and
pursuing the multiple requests to revise the complaints.
In conjunction with this motion for nonsuit, the defen-
dants’ counsel submitted an affidavit attesting that she
had spent nine hours of work on the various requests
to revise, totaling, at the rate of $300 per hour, $2700
in attorney’s fees. In response, the court awarded the
defendants $500 in attorney’s fees as a sanction.
Although the court’s order2 did not specify when the
sum was to be paid, the plaintiff’s counsel indicated
that it would be paid by the end of the week.
On July 11, 2014, the defendants filed another motion
for nonsuit. In this motion, the defendants claimed that
their counsel had not received the $500, despite having
made multiple inquiries of the plaintiff’s counsel regard-
ing payment. On August 4, 2014, the plaintiff filed an
objection to the motion for nonsuit. In the objection,
the plaintiff alleged that his counsel had attempted to
pay the sanction, but that the defendants’ counsel must
not have received the check in the mail. The objection
also stated that the plaintiff’s counsel had paid the sanc-
tion that day, rectifying the initial mailing error, by
ordering a money order for the $500 and mailing it
overnight, via Federal Express, to the defendants’ coun-
sel. The plaintiff attached the receipt for a $500 money
order paid to the firm of the defendants’ counsel to his
written objection.
Notwithstanding these representations regarding the
efforts of the plaintiff’s counsel to pay the required sum
and her ultimate payment of it, the court overruled the
plaintiff’s objection and granted the defendants’ motion
for nonsuit. The court reasoned that the $500 sanction
had been lenient and found, as well, that the plaintiff’s
counsel had not paid, or attempted to pay, this sum for
more than two months following the date of its order.
Although counsel had already paid the sanction prior
to the judgment of nonsuit, the court noted that ‘‘[i]f
the plaintiff can produce something which proves that
the $500 ordered by the court was paid (or attempted to
be paid) promptly, the court will reconsider [its] ruling.’’
Thereafter, on August 15, 2014, the plaintiff filed a
motion for reconsideration to which he attached the
affidavit of his counsel describing his counsel’s attempt
promptly to pay the sanction amount and his counsel’s
ultimately successful payment of the required sum. In
the affidavit, the plaintiff’s counsel stated that on May
23, 2014, four days after the sanction was imposed, she
had e-mailed the defendants’ counsel, requesting the
information needed to write the $500 check, and that the
defendants’ counsel had responded with the necessary
information on May 27, 2014. The plaintiff’s counsel
stated in the affidavit, as well, that the next day, she
had ordered a check from her bank, First Niagara Bank,
and mailed it to the law firm of the defendants’ counsel.
In addition to the affidavit, the plaintiff documented
his counsel’s attempt to pay and ultimate payment of
the sanction by attaching a copy of the e-mails between
counsel and copies of records from his counsel’s bank
reflecting that the check was written, but never depos-
ited. Finally, the plaintiff’s counsel attached a copy of
the money order that ultimately successfully paid the
required sum. Notwithstanding this information, the
court denied the motion for reconsideration. This
appeal followed.
On appeal, the plaintiff claims that the trial court
abused its discretion by rendering a judgment of nonsuit
against him for the failure of his counsel to pay the
underlying sanction. Specifically, the plaintiff argues
that his counsel made a good faith effort to comply
with the court’s order and that the judgment of nonsuit
was a disproportionate response to his counsel’s failure,
promptly, to effectuate the payment of $500 to the
defendants’ counsel. The defendants counter that the
trial court acted within its discretion because the judg-
ment of nonsuit, in this instance, was in proportion to
the failure of the plaintiff’s counsel to timely comply
with the court’s sanction order. Notwithstanding our
sensitivity to the court’s evident frustration with the
halting attempts by the plaintiff’s counsel to comply
with its modest sanction order, we conclude, under
these circumstances, that the judgment of nonsuit dis-
proportionately punished the plaintiff for his counsel’s
untimeliness in complying with its sanction order.
‘‘We . . . review the trial court’s decision to deter-
mine whether it abused its discretion in granting the
. . . motion for judgment of nonsuit. . . . Parties fail-
ing to plead according to the rules and orders of the
court may be nonsuited or defaulted, as the case may be.
Generally speaking, a nonsuit is the name of a judgment
rendered against a party in a legal proceeding upon his
inability to maintain his cause in court, or when he is
in default in prosecuting his suit or in complying with
orders of the court.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Rodriguez v.
Mallory Battery Co., 188 Conn. 145, 149–50, 448 A.2d
829 (1982); see General Statutes § 52-119.3
‘‘As with any discretionary action of the trial court,
appellate review requires every reasonable presump-
tion in favor of the action, and the ultimate issue for
us is whether the trial court could have reasonably
concluded as it did. In reviewing a claim that the court
has abused this discretion, great weight is due to the
action of the trial court and every reasonable presump-
tion should be given in favor of its correctness . . . .
‘‘[D]iscretion [however] 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. The design of
the rules of practice is both to facilitate business and
to advance justice; they will be interpreted liberally in
any case where it shall be manifest that a strict adher-
ence to them will work surprise or injustice. . . . Rules
are a means to justice, and not an end in themselves.
. . . 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.’’ (Citations omitted;
internal quotation marks omitted.) Millbrook Owners
Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 15–17,
776 A.2d 1115 (2001); see also Usowski v. Jacobson,
267 Conn. 73, 91–92, 836 A.2d 1167 (2003). Also, in
assessing the correctness of the court’s action in the
present case, we note, as a threshold matter, that the
court did not find the failures of the plaintiff’s counsel
to be wilful or contemptuous. Nor did the court find
that counsel’s failures showed a deliberate and repeated
disregard for the court’s authority. Such findings often
will support such a harsh response from the court as
a judgment by nonsuit. See Millbrook Owners Assn.,
Inc. v. Hamilton Standard, supra, 257 Conn. 16–17;
Dauti v. Stop & Shop Supermarket Co., 90 Conn. App.
626, 634–35, 879 A.2d 507, cert. denied, 276 Conn. 902,
884 A.2d 1025 (2005). Additionally, we are not insensi-
tive to the apparent harshness of any decision by a
court that may be perceived as punishing the client for
the transgressions of his or her attorney. See Thode v.
Thode, 190 Conn. 694, 698, 462 A.2d 4 (1983). That is,
the nonsuit in the present case was not for the failure
of a party to plead properly but, rather, for his counsel’s
failure to timely pay a sanction levied against the plain-
tiff. ‘‘Although our adversarial system requires that the
client be responsible for acts of the attorney-agent
whom the client has freely chosen . . . the court is
not without the power to take action directly against
the errant attorney.’’ (Citation omitted.) Id. In such a
circumstance, we believe that it is particularly appro-
priate to assess whether counsel’s failure timely to com-
ply with an order, directed solely to counsel, should
result in the loss of a party’s ability to pursue his or
her claim in court where other less drastic measures
directed toward counsel could cause counsel’s adher-
ence to the court’s order without prejudice to an inno-
cent litigant.
From the record, we believe that the ultimate sanc-
tion of a judgment of nonsuit was not necessary as a
last resort, as the judgment of nonsuit was not the
only reasonable response left to the court faced with
counsel’s ineffectual efforts and ultimately tardy pay-
ment of the sanction order. At the outset, we note that
the record is clear that the dilatory behavior found
offensive by the court involved only counsel and not
the plaintiff. In addition, as noted, the court made no
finding that counsel’s failures were wilful. Under these
circumstances, we conclude that any response by the
court to the failure of the plaintiff’s counsel to timely
comply with its sanction order would have more appro-
priately been directed to counsel. In that regard, the
court had a range of available alternative responses
that would not have resulted in a forfeiture of the plain-
tiff’s claims.4
As it occurred, however, the failure of the plaintiff’s
counsel to pay the sanction timely, an indiscretion
uniquely counsel’s and unrelated to the merits of the
case, resulted in the plaintiff’s disenfranchisement from
court, a punishment that was disproportionate to coun-
sel’s failure of timely compliance. See Armstrong v.
Smith, 53 App. Div. 2d 752, 753, 384 N.Y.S. 2d 266 (1976)
(‘‘attorney’s neglect or inadvertent error should not
deprive his client of his day in court’’).
The judgment is reversed and the case is remanded
for further proceedings.
In this opinion LAVINE, J., concurred.
1
The plaintiff filed the first revised complaint on October 2, 2013. On
December 10, 2013, the defendants moved for a judgment of nonsuit due
to that first revised complaint’s failure to address the requests ordered by
the court. In response, the plaintiff filed a second revised complaint on
December 12, 2013. On March 3, 2014, after the second revised complaint
was filed, the court considered the motion for nonsuit and ordered the
plaintiff to file a new revised complaint that complied with the defendants’
requests to revise by March 17, 2014, and if the plaintiff did not, the defen-
dants could refile the motion for nonsuit. Accordingly, the plaintiff filed a
third revised complaint on March 17, 2014. That complaint did not comply
with the court’s order and, perhaps anticipating this, the plaintiff accompa-
nied the third revised complaint with a motion to amend the third revised
complaint. On March 31, 2014, the plaintiff filed his second amended third
revised complaint, attached to this motion to amend. Finally, on April 1,
2014, the plaintiff filed his final complaint, the seventh installment and the
operative complaint.
2
The order stated: ‘‘ORDER: After argument court awards the defendant
$500 in attorney’s fees as sanctions.’’
3
General Statutes § 52-119 provides: ‘‘Parties failing to plead according
to the rules and orders of the court may be nonsuited or defaulted, as the
case may be.’’
4
For example, the court could have ordered the plaintiff’s counsel to
compensate the defendants’ counsel for any prejudice stemming from the
late payment by ordering the plaintiff’s counsel to pay a larger sum than
originally ordered with, if deemed appropriate under the circumstances, a
contingent order affecting counsel’s continuing right to practice law. See
In the Matter of Presnick, 19 Conn. App. 340, 350, 563 A.2d 299, cert. denied,
213 Conn. 801, 567 A.2d 833 (1989) (upholding suspension of attorney for
failure to pay $500 sanction by date of court’s order). In either case, the
sanction would address counsel’s failings without depriving the plaintiff of
his day in court.