Opinion
HHDCV165042979
05-15-2017
Adler Law Group, LLC v. George Krawshuk et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
This action arises out of an automobile collision that occurred on or about June 27, 2014, when the defendant, Christopher Hollaway (Hollaway), with his wife and co-defendant, Deborah Hollaway, struck the defendant, George Krawshuk (Krawshuk). The plaintiff, Adler Law Group, LLC (the plaintiff), filed the one-count complaint in this matter on October 6, 2016, against the defendants. From hereinafter, this court's references to the defendant refers only the State of Connecticut, Office of Adult Probation since it is the only defendant that is a party to this motion.
On February 14, 2017, the plaintiff filed a request to amend the complaint. This court does not consider the amended complaint in light of the motion to dismiss. In Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996), it was held that the court must rule on a defendant's motion to dismiss by construing the initial complaint, prior to considering a plaintiff's motion to amend the complaint. Thus the operative complaint for purposes of the motion to dismiss is the original complaint filed on October 6, 2016.
The plaintiff filed the complaint against the following defendants: George Krawshuk; Law Offices of Alfred F. Morrocco, Jr. & Associates; Suisman, Shapiro, Wool, Brennan, Gray, & Greenberg, P.C.; Christopher Hollaway; Deborah Hollaway; USAA Casualty Insurance Company; and the State of Connecticut, Office of Adult Probation.
The complaint alleges the following facts. After the automobile collision on June 27, 2014, Hollaway was brought up on criminal charges related to the incident. Subsequently, Krawshuk entered into a written retainer agreement with the plaintiff to represent him for the injuries and damages suffered in the automobile collision. Pursuant to the agreement, the plaintiff provided numerous legal services, including but not limited to, instituting a civil action for recovery of the injuries and damages suffered, and representing Krawshuk's interests as the victim pursuant to the criminal charges. The plaintiff expended considerable costs and time in prosecuting Krawshuk's claims for injuries and damages. With regard to the criminal case, the plaintiff negotiated an order of restitution to Krawshuk, which included a civil settlement with Hollaway for his obligations beyond his insurance coverage. The distribution of proceeds was to be administered through the defendant. On or about August 16, 2016, Krawshuk, through his present counsel, Law Offices of Alfred F. Morrocco, Jr. & Associates, discharged the plaintiff. In accordance with the contractual agreement, Krawshuk is obligated to pay the plaintiff for all legal fees and costs incurred in its representation of him in the criminal and civil matters. The defendant is obligated to the plaintiff, as it may hold monies due to the plaintiff for services rendered.
On October 27, 2016, the defendant filed a motion to dismiss the complaint as to the defendant, accompanied by a memorandum of law in support and three exhibits. On January 3, 2017, the plaintiff filed a revised objection to the motion to dismiss. The matter was heard at short calendar on January 17, 2017.
The defendant attached the following exhibits: A) Criminal/Motor Vehicle Conviction Case Detail for Hollaway; B) Order of Probation for Hollaway; C) Settlement Agreement and Cap on Restitution between Krawshuk and Hollaway.
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014).
" [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic R.R. Co. v. Comm'r of Revenue Servs., 301 Conn. 268, 274, 21 A.3d 759 (2011). " Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." (Internal quotation marks omitted.) Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Regarding the common-law exceptions to sovereign immunity, " [i]n the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss on sovereign immunity grounds is proper." (Internal quotation marks omitted.) Markley v. Dep't of Pub. Util. Control, 301 Conn. 56, 66, 23 A.3d 668 (2011). Similarly, " [l]ack of a statutory waiver of [sovereign] immunity is a jurisdictional defect properly raised by a motion to dismiss." Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). Accordingly, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity . . . bars the action." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 651.
The defendant argues that dismissal is appropriate on the ground that the court lacks subject matter jurisdiction because the complaint seeks monetary damages from the state without first obtaining permission. The defendant argues that none of the exceptions to sovereign immunity apply to this case, and further states that the plaintiff did not plead any of the exceptions. The plaintiff counters that it is only seeking that the defendant be enjoined from releasing the funds until the rightful owner of the funds can be determined. The plaintiff argues that, therefore, it is not seeking monetary damages against the state, but rather injunctive relief, and thus, the action does not violate sovereign immunity.
" The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . [T]he practical and logical basis of the doctrine [of sovereign immunity] is today recognized to rest . . . on the hazard that the subjection of the state and federal governments to private litigation might constitute a serious interference with the performance of their functions and with their control over their respective instrumentalities, funds, and property . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence." (Citations omitted; internal quotation marks omitted.) Markley v. Dept. of Public Utility Control, supra, 301 Conn. 65.
" [T]he sovereign immunity enjoyed by the state is not absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity; . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights; . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Servs. v. DOT, 293 Conn. 342, 349, 977 A.2d 636 (2009).
" For a claim made pursuant to the second exception, complaining of unconstitutional acts, [the court requires] that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests . . . For a claim under the third exception, the plaintiffs must do more than allege that the defendants' conduct was in excess of their statutory authority; they also must allege or otherwise establish facts that reasonably support those allegations . . . In the absence of a proper factual basis in the complaint to support the applicability of these exceptions, the granting of a motion to dismiss . . . is proper." (Internal quotation marks omitted.) Traylor v. Gerratana, 148 Conn.App. 605, 610-11, 88 A.3d 552, cert. denied, 312 Conn. 901, 91 A.3d 908, cert. denied, 135 S.Ct. 444, 190 L.Ed.2d 336, 83 U.S.L.W. 3265 (2014).
In the present case, the plaintiff does not seek monetary damages. Instead, it seeks to enjoin the defendant from releasing the funds until the rightful owner of the funds can be determined. The plaintiff, however, cites to no statutory authority that would give it the authority to sue the state in order to seek such relief nor has it alleged that the defendant has violated its constitutionally protected rights. Because the plaintiff does not allege that the state has statutorily waived its sovereign immunity, or that the state has acted unconstitutionally or engaged in wrongful acts in excess of its statutory authority, the court concludes that it does not have subject matter jurisdiction. The motion to dismiss is granted.