Nonsuit for Untimely Sanction Payment Reversed

Nonsuit for untimely sanction payment reversed in a Connecticut Appellate Court decision to be officially released on February 9, 2016.

In Herrick v. The Monkey Farm Cafe, LLC, plaintiff sought recovery for injuries he sustained in a fight outside defendants’ bar. Defendants filed a request to revise the complaint. The trial court overruled plaintiff’s objection and ordered plaintiff to revise its complaint. “During the ensuing year, the plaintiff filed seven revised complaints and/or motions to amend the revised complaints. Following the plaintiff’s first four attempts to revise, the defendants filed a motion for nonsuit … claim[ing] that the plaintiff had failed to comply with the court’s … order to revise his complaint.”

At the hearing on the motion for nonsuit, defendants’ counsel asked the trial court for a $2,700 sanction against plaintiff representing defendants’ attorney’s fees in dealing with plaintiff’s ever-changing complaint. The trial court awarded $500 in attorney’s fees but did not set a payment deadline. Plaintiff’s counsel said it would be paid by the end of the week.

Two months later, defendants filed another motion for nonsuit, because they had not received the payment. Plaintiff explained that his attorney had mailed a $500 check but defendants’ counsel apparently had not received it. “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.”

The trial court overruled the objection and nonsuited plaintiff. “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.'” Plaintiff moved for reconsideration. He submitted his attorney’s affidavit, which explained that the attorney obtained a bank check and mailed it eight days after the court’s original order. The affidavit included supporting documentation from plaintiff’s attorney’s bank showing that the bank wrote the check but it never was deposited.

“Notwithstanding this information, the court denied the motion for reconsideration.”

Plaintiff appealed. The Appellate Court reversed.

Arguments on Appeal

“On appeal, the plaintiff claim[ed] 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 argue[d] 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.”

Appellate Court’s Conclusion

The Appellate Court concluded “that the judgment of nonsuit disproportionately punished the plaintiff for his counsel’s untimeliness in complying with its sanction order.” The Appellate Court noted that the trial 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…. 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.”

“[T]he 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.”

Impact

Do your best to avoid sanctions. If you can’t, pay on time. It’s not worth the trouble.

About the Photo

Sometimes I can’t understand how some things happen in court. On those occasions, I say, “I must be from Mars.”