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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 complaint 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 defendants’ 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 counselregarding 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 sanction 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’ counsel. 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 willreconsider[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 thatthe

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 deposited. 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 judgment 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 disproportionately punished the plaintiff for his counsel’s

untimeliness in complying with its sanction order.

‘‘We . . . review the trial court’s decision to determine whether it abused its discretion in granting the

. . . motion for judgment of nonsuit. . . . Parties failing 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 omitted; 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 presumption 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 presumption 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 adherence 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 insensitive 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 plaintiff. ‘‘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 appropriate to assess whether counsel’s failure timely to comply 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 adherence to the court’s order without prejudice to an innocent litigant.

From the record, we believe that the ultimate sanction 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 payment 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 appropriately 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 plaintiff’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 counsel’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 defendants 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 accompanied 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.