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Null v. Jacobs

Court of Appeals of Connecticut

May 10, 2016


Argued February 9, 2016

Appeal from Superior Court, judicial district of Waterbury, Shapiro, J.

Robert S. Kolesnik, Sr., with whom, on the brief, was Stephanie E. Cummings, for the appellant (plaintiff).

David J. Robertson, with whom, on the brief, were Madonna A. Sacco and Christopher H. Blau, for the appellee (defendant).

Lavine, Alvord and Harper, Js.



This is a legal malpractice and breach of contract action. In a previous action, the defendant, Adele R. Jacobs, rendered legal services to the plaintiff, Warren Null, which allegedly failed to meet the applicable standard of care. The plaintiff then retained a new attorney both to replace the defendant in the underlying action and to pursue the claims in the present case. During a protracted discovery period in the present case where many discovery related motions were filed, the trial court ordered the plaintiff’s counsel to be deposed because his testimony was necessary to explore the plaintiff’s malpractice claim. When counsel failed to appear for a deposition, the court found that the plaintiff had violated this order and, pursuant to a motion, rendered a judgment of nonsuit as a discovery sanction. On appeal, the plaintiff claims that the court improperly (1) rendered a judgment of nonsuit as a discovery sanction because, contrary to the court’s findings, his counsel exercised due diligence to comply with the court’s order and the sanction was not proportional to the violation; and (2) denied his post judgment motion to reargue. We affirm the judgment of the court.

The following facts and procedural history guide our analysis. The defendant previously represented the plaintiff in a personal injury action for injuries sustained in a motor vehicle accident. The matter settled before trial. The defendant allegedly promised the plaintiff that after attorney’s fees and costs, he would receive $175, 000 from the settlement proceeds. Subsequently, the defendant allegedly notified the plaintiff that his settlement proceeds would be substantially smaller because of an unpaid medical lien. To ensure payment, the defendant allegedly held approximately $90, 000 in escrow pending successful negotiation of the lien. Dissatisfied with the defendant’s actions, the plaintiff retained another attorney, Robert S. Kolesnik, Sr., to negotiate the lien on his behalf. As a result of Kolesnik’s representation, the plaintiff incurred legal fees in the amount of approximately $27, 883.68. On January 31, 2011, the plaintiff commenced the present action against the defendant to recover these legal fees as damages. Kolesnik represented the plaintiff before the trial court in the present case and represents him in this appeal.

As early as March 20, 2014, the parties had discussed the possibility that the defendant might seek to take Kolesnik’s deposition. Shortly thereafter, the defendant noticed Kolesnik’s deposition. In response, on April 15, 2014, the plaintiff filed a motion for a protective order, seeking to preclude the defendant from taking Kolesnik’s deposition. In support of his motion, the plaintiff asserted that ‘‘the purpose of the deposition is harassment and an attempt to force counsel to withdraw from the case.’’ On May 7, 2014, the court, Shapiro, J., denied the motion for protective order. In its memorandum of decision, the court noted that Kolesnik was retained in the underlying matter to negotiate a medical lien for the plaintiff. It also noted that in the present case, the plaintiff claimed as damages an amount equal to the attorney’s fees he allegedly incurred in connection with the lien negotiation. Under these circumstances, the court concluded, it was reasonable for the defendant to depose Kolesnik. The court ordered Kolesnik to be deposed by July 21, 2014.

Kolesnik failed to be deposed. Consequently, on July 21, 2014, the defendant filed a motion for nonsuit, pursuant to Practice Book § 13-14, [1] for failure to comply with the court’s order. In her memorandum in support of the motion for nonsuit, the defendant argued that Kolesnik was a crucial witness whose deposition was necessary for her to prepare a defense. She also represented that she attempted to obtain dates for Kolesnik’s deposition on numerous occasions, but he never responded and never scheduled a deposition date.[2] The plaintiff filed a written objection to the defendant’s motion for nonsuit on July 31, 2014, in which Kolesnik stated that ‘‘[t]he undersigned attorney, despite due diligence, has been unable to retain counsel so that he may be deposed. . . . Plaintiff’s counsel cannot be deposed until replacement counsel is retained.’’ No motion for extension of time was filed.

The parties appeared for a hearing on the motion for nonsuit on September 15, 2014. The plaintiff urged the court to deny the motion, arguing that he had attempted to comply with the court’s order, but was unable to find counsel to replace Kolesnik. On this point, Kolesnik represented at the hearing that as soon as he realized that the defendant wished to depose him, he contacted Bruce Stanger, an attorney who specializes in legal malpractice, described the case to him, and sent documents for him to review. He further represented that Stanger ‘‘gave [him] the impression that he would take the case, ’’ but declined at the last minute. Kolesnik stated that the precise day that Stanger declined the case was the Thursday before the September 15, 2014 hearing. Thus, Kolesnik had no record of contact with Stanger from April 22, 2014, until days before the hearing. Kolesnik submitted three exhibits to substantiate these representations: a cover letter addressed to Stanger dated April 15, 2014, which states that relevant documents are enclosed; an e-mail from his assistant to Stanger dated April 24, 2014, with an attachment; and a telephone message invoice, dated September 11, 2014, which states that Stanger declined the case.

On October 20, 2014, the court, Shapiro, J., issued a memorandum of decision granting the defendant’s motion for nonsuit. The court made a number of observations and findings in support of its decision to render a judgment of nonsuit. First, the court noted that it previously had determined that the defendant was warranted in seeking Kolesnik’s deposition because he personally had participated in the events which resulted in the plaintiff’s malpractice claim. Second, the court observed that ‘‘it should have been apparent to [Kolesnik] at the inception of this matter that it was likely that he would have to be a witness’’ because it was not disputed ‘‘that [Kolesnik] was hired by the plaintiff to represent him for purposes of negotiating the lien and that the plaintiff is seeking to recover attorney’s fees that he allegedly paid to [Kolesnik] for negotiating the lien.’’ Third, notwithstanding the legitimate need to depose Kolesnik, the court found that: its previous order requiring Kolesnik to appear for a deposition by July 21, 2014 was clear; the plaintiff had violated that order; the violation was the result of a lack of due diligence and disregard for the court’s authority; the violation was not an isolated event, but instead was part of a pattern of noncompliance with court orders; and the violation had prejudiced the defendant’s ability to prepare a defense and prepare for trial. With respect to the issue of due diligence, the court found that Kolesnik only solicited a single attorney, namely, Stanger, as replacement counsel. The court found that Kolesnik only communicated with Stanger in April, 2014 and September, 2014, with the latter contact coming six weeks after the July 21, 2014 deposition deadline.

The plaintiff subsequently filed a post judgment motion to open the judgment and/or reargue. The court denied this motion, and this appeal followed. ...

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