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Herrick v. Monkey Farm Cafe, LLC

Appellate Court of Connecticut

February 9, 2016

JARED HERRICK
v.
THE MONKEY FARM CAFE, LLC, ET AL

         Argued October 27, 2015.

          Action to recover damages for personal injuries sustained by the plaintiff as a result of, inter alia, the named defendant's alleged negligence, brought to the Superior Court in the judicial district of Middlesex, where the court, Aurigemma, J., overruled the plaintiff's objection to the defendants' request to revise and issued a certain order; thereafter, the court sanctioned the plaintiff for failure to comply with the court's order; subsequently, the court granted the defendants' motion for nonsuit; thereafter, the court denied the plaintiff's motion for reconsideration, and the plaintiff appealed to this court.

          SYLLABUS

         The plaintiff brought this action against the defendants, seeking to recover damages for personal injuries he allegedly sustained in connection with an altercation that occurred after he had exited a bar owned by the named defendant, during which he was assaulted by two other patrons of the bar. The plaintiff filed an eight count complaint alleging, inter alia, violations of the Dram Shop Act (§ 30-102), negligent supervision, and reckless service of alcohol. The defendants filed a request to revise the complaint, and the trial court, in overruling the plaintiff's objection thereto, ordered the plaintiff to revise his complaint. Following a number of failed attempts by the plaintiff to revise his complaint in accordance with the court's order, the defendants filed a motion for nonsuit on the ground that the plaintiff had not complied with the court's order. At the hearing on the motion, the court, in response to a request by the defendants' counsel, awarded the defendants $500 in attorney's fees as a sanction for the time they had expended pursuing the court-ordered revision of the complaint. The plaintiff's counsel represented to the court that she would pay the sanction by the end of the week. After the deadline for payment had passed, the defendants filed another motion for nonsuit. The trial court granted the motion and rendered a judgment of nonsuit for the failure of the plaintiff's counsel to timely comply with its sanction order. The plaintiff thereafter appealed to this court. Held that the trial court abused its discretion by rendering a judgment of nonsuit against the plaintiff for his counsel's failure to timely pay the sanction of $500 in attorney's fees, the judgment of nonsuit having disproportionately punished the plaintiff for his counsel's untimeliness in complying with the court's sanction order; under the circumstances of this case where the dilatory behavior involved only the plaintiff's counsel and the court did not find that counsel's failure to timely pay the sanction was wilful, the judgment of nonsuit was not necessary as a last resort, as it was not the only reasonable remedy available to the court to vindicate the legitimate interests of the defendants, the court having had a range of available and more appropriate alternative remedies, including sanctioning the plaintiff's counsel directly, that would not have resulted in the harsh result of the forfeiture of the plaintiff's claims, which deprived him of his day in court.

         Hugh D. Hughes, with whom, on the brief, was Erica W. Todd-Trotta, for the appellant (plaintiff).

         Sylvia K. Rutkowska, for the appellees (defendants).

         Lavine, Alvord and Bishop, Js. BISHOP, J. In this opinion LAVINE, J., concurred.

          OPINION

          [163 Conn.App. 46] 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, [163 Conn.App. 47] 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 [163 Conn.App. 48] 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 order[2] 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 regarding 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 ...


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