Opinion
No. CV00-0177988S
September 19, 2006
MEMORANDUM OF DECISION ON MOTION TO DISMISS (NO. 158.00)
Procedural and Factual Background
This is a legal malpractice action brought by the plaintiff Johnson Lee against the law firm of Harlow, Adams Friedman, P.C. and Attorney Stephen Wright of that firm (collectively the "defendants"), arising out of Attorney Wright's representation of Mr. Lee as a defendant and counterclaiming plaintiff in four related foreclosure actions commenced against him in this court by The Bank Mart. Upon The Bank Mart's insolvency, FDIC removed the cases to the federal court, and assigned all four loans and mortgages to BSB Greenwich Mortgage Limited Partnership, a Delaware limited partnership ("BSB"), which became the substituted plaintiff.
Mr. Lee has died since this action was commenced and a motion to substitute his administratrix as plaintiff is now pending.
Now before the court is the defendants' Motion to Dismiss the legal malpractice claims of the plaintiff Johnson Lee on the grounds that this is not a justiciable controversy since Mr. Lee has already obtained in the federal court action a $1.275 million stipulated judgment against BSB. Defendants argue that plaintiff's legal malpractice damage claim against the defendants is a hypothetical injury because the plaintiff has already recovered a final judgment against BSB for the injuries allegedly sustained and that this court has no subject matter jurisdiction over Mr. Lee's non justiciable claims. The plaintiff objects to the Motion to Dismiss on the ground that his $1.275 million final judgment is not collectible against BSB, which has no assets, and that his claims of damage for legal malpractice at this point are not hypothetical in that they are not contingent on the outcome in the underlying action, and are ripe for adjudication at least as to liability.
In order to properly evaluate the parties' claims, it is necessary to review the extensive litigation background which has brought the parties and the underlying dispute to this point.
A. The Waterford of Greenwich Real Estate Development and the Foreclosure Actions
The plaintiff, Johnson Lee, is a real estate developer. In 1985, Mr. Lee and his real estate development companies, Lee Lee Construction Corp., and Montgomery Lee, obtained four mortgages from The Bank Mart to finance the planning and construction of the Waterford of Greenwich (the "Waterford"), located in Greenwich, Connecticut. The Waterford is a condominium project containing twenty-two (22) luxury condominium units. In the late 1980s, Mr. Lee and his companies defaulted on the mortgage for the Waterford and four other development projects financed by The Bank Mart. The Bank Mart commenced the four Superior Court foreclosure actions seeking to recover approximately $30 million from Mr. Lee and his companies.
Ultimately, The Bank Mart became insolvent. The FDIC was appointed its receiver, and removed the four foreclosure actions to the United States District Court for the District of Connecticut. The defendants Harlow, Adams, and Friedman, P.C. and Attorney Stephen Wright represented Lee and his companies in those actions. The FDIC substituted itself as plaintiff in the actions and obtained summary judgment in each matter. On March 27, 1995, the District Court entered a judgment of strict foreclosure in favor of the FDIC. The FDIC then sold its interest in The Bank Mart mortgages to BSB.
BSB and Mr. Lee, who at the time was represented by the defendants, then negotiated an Amended Judgment of Strict Foreclosure (the "Amended Judgment") pursuant to which Mr. Lee agreed to sell the Waterford to BSB in exchange for the following: (1) BSB releasing Mr. Lee from the $30 million debt Mr. Lee then owed BSB; (2) BSB giving Mr. Lee, at no charge, clear title to Unit 12 at the Waterford and all its furnishings; (3) BSB allowing Mr. Lee to regain title, free and clear of all mortgages, to four other parcels of land that had been subject to foreclosure; and (4) BSB paying Lee approximately $100,000. In addition, and most relevant to this litigation, the Amended Judgment required BSB to sell or convey the last available condominium unit in the Waterford to Mr. Lee. According to paragraph 30 of the Amended Judgment, the price ultimately to be paid by Mr. Lee for the last unit was dependent upon a calculation by BSB of the "gross sales proceeds" of the first 21 sales of the 22 total units. In particular, if the gross sales proceeds exceeded $26,500,000, BSB was required to convey the last unit to Lee for no consideration. If, however, the gross sales proceeds were less than $26,500,000, Mr. Lee had the option to purchase the unit for the difference between $26,500,000 and the gross sale proceeds.
B. Subsequent Litigation Regarding Johnson Lee's Purchase Option
Approximately three years later, on March 2, 1998, BSB notified Mr. Lee that the total gross sales proceeds from the sale of the first twenty-one (21) unsold units was $24,674,200, and explicitly gave Mr. Lee notice of his right to purchase the last remaining unit for a price of $1,825,800 pursuant to paragraph 30 of the Amended Judgment. Mr. Lee disagreed that the total gross sales proceeds for the first 21 units was anything less than $26,500,000 and refused to purchase the last remaining unit claiming that it should be conveyed to him for no consideration under the terms of the Amended Judgment. BSB ultimately sold the last condominium unit to William and Patricia Duncan ("Duncans"), on April 17, 1998. Mr. Lee claims this was done in violation of his rights under paragraph 30 and without obtaining his consent and commenced multiple lawsuits to vindicate that claimed violation of his rights.
On March 30, 1999, Mr. Lee brought an action against the Duncans in this court, ( "Lee v. Duncans"), claiming rights superior to the defendants in the last remaining unit by virtue of the language of the Amended Judgment. See Lee v. Duncan, Docket No.: CV 99-0171435-S. On March 31, 1999, Mr. Lee moved for an order in aid of enforcement of the Amended Judgment against BSB in federal court See Lee v. BSB, Docket No.: 5:92CV71(ARN). On May 2, 2000, Mr. Lee brought this legal malpractice claim against the defendants, his attorneys. Finally, on April 7, 2004, Mr. Lee initiated a lawsuit against BSB, and its partners, ( "Lee v. BSB II"), in this court under various fraudulent conveyance or improper distribution theories. See Johnson Lee v. BSB Greenwich Mortage Limited Partnership. Docket No.: CV 04-0200344-S.
C. Lee v. BSB I — Federal Court Action Seeking to Enforce Amended Judgment
On March 31, 1999 after he terminated his representation by the defendants, Mr. Lee moved for an order in aid of enforcement of the Amended Judgment against BSB. The District Court initially ruled in favor of BSB and concluded that BSB properly calculated the gross sales proceeds pursuant to the Amended Judgment. On appeal, the Court of Appeals for the Second Circuit overturned that ruling and instructed the District Court to recalculate the gross sales proceeds in a manner consistent with the plain meaning of the Amended Judgment. See Lee v. BSB Greenwich Mort. L.P., 267 F.3d 172, 177 (2d Cir. 2001). In accordance with the Second Circuit decision, on April 2, 2003, the District Court determined that, pursuant to the Amended Judgment, the property should have been conveyed to Mr. Lee for no consideration because the gross sales proceeds actually exceeded $26.5 million. The court awarded Mr. Lee a judgment against BSB of $1.275 million (the fair market value of the final completed unsold unit), plus 10% interest per year from April 17, 1998, to the date judgment is collected. No part of that judgment has been paid by BSB.
D. Lee v. Duncans — State Court Action Seeking Possession of the Unit
In his suit against the Duncans, Mr. Lee claimed that BSB was not entitled to convey the unit to the Duncans in 1998. He sought a court order directing The Duncans to convey the unit to him for no consideration. The Duncans filed a Motion for Summary Judgment, arguing, inter-alia, that they were entitled to judgment as a matter of law because the undisputed evidence indicated that the Amended Judgment was not properly recorded and thus, the Duncans did not have actual or constructive notice of Mr. Lee's alleged interest in their property. The court, (Hiller, J.), granted summary judgment for the Duncans. The Appellate Court affirmed the entry of summary judgment. Lee v. Duncan, 88 Conn.App. 319, 323 (2005), holding that the trial court properly granted summary judgment in favor of the Duncans because the Duncans lacked actual or constructive notice of Mr. Lee's interest in the condominium unit at the time they purchased. Id., at 320. Mr. Lee's Petition for Certification to the Connecticut Supreme Court was denied. Lee v. Duncan, 274 Conn. 902 (2005).
E. Lee v. BSB II — State Court Fraudulent Conveyance Action
On April 7, 2004, Mr. Lee initiated a lawsuit against BSB, Brickroc Greenwich, LLC, Roderick O'Connor, Bruce Brickman, and Jeffrey Epstein (collectively the "BSB partners"). Mr. Lee alleges in his Revised Complaint in that action that his $1.275 million judgment against BSB "remains wholly unsatisfied" and that after BSB sold the last unit to the Duncans it transferred money and assets to its general partner, Brickroc, and to its limited partner, International Charitable Interests II Trust. In doing so, Mr. Lee claims that BSB, its members and partners violated the Connecticut Fraudulent Transfers Act (Conn. General Statutes §§ 52-552a through 52-552l), the Connecticut Fraud in Contracting Debt Act (Conn. General Statutes § 52-562), common-law fraudulent conveyance, avoidance of distributions, claims for piercing the corporate veil, and violations of the Connecticut Unfair Trade Practices Act, (Conn. General Statutes § 42a-110a et. seq.) Discovery responses of the defendants in that action were presented by affidavit at the June 9, 2006 hearing on the instant Motion to Dismiss. Those answers indicate that BSB and its general partner Brickroc Greenwich, LLC have no assets, and that following the sale of the final condominium unit to the Duncans, BSB disbursed $750,000 to Jeffrey Epstein, Trustee of the International Charitable Interests II Trust and $408,841.50 to Brickroc Greenwich LLC which disbursed those funds one day later to its individual members: $294,841.50 to Bruce S. Brickman and $114,000 to Roderick O'Connor. Epstein, Brickman, and O'Connor are also defendants in the fraudulent transfer/CUTPA case, and counsel for Mr. Lee agrees that they are solvent individuals. Lee v. BSB II is presently on the complex litigation docket of this court scheduled for trial in February 2007.
Roderick O'Connor and Bruce Brickman are the controlling members of Brickroc Greenwich LLC, which is the general partner of BSB. Jeffery Epstein is the trustee of BSB's limited partner, the International Charitable Interests II Trust.
F. Lee v. Harlow, Adams Friedman, PC and Stephen Wright — The Present Legal Malpractice Action
Mr. Lee brought the present legal malpractice claim against the defendants on May 2, 2000, alleging that he has suffered damages as a result of the defendants' professional negligence. Mr. Lee claims that the defendants deviated from the proper standard of care by: (1) failing to adequately protect his option rights (2) drafting the Amended Judgment, which was "too imprecise and uncertain" to provide him with an enforceable right to the last available unit; and (3) failing to record the proper documents on the Greenwich Land Records to provide sufficient notice of his option rights. In particular, Mr. Lee claims that ". . . had the Judgment containing [his] option rights been properly recorded on the Land Records of the Town of Greenwich, or had other necessary and appropriate action been taken, "BSB would not have been able to convey and/or sell [the last unit] without [Mr. Lee's] consent." (Complaint ¶ 14.) Mr. Lee seeks the value of the last remaining unit as damages in this legal malpractice claim (which is essentially same damages he has already been awarded against BSB, but has not collected, in the Lee v. BSB I federal court action).
On June 22, 2000, the defendants in this case filed an earlier motion to dismiss, arguing that the plaintiff's claims were non justiciable. On November 21, 2000, this court (Lewis, J.) denied that motion to dismiss because ". . . the plaintiff is not guaranteed a full recovery in the pending federal action." Lee v. Harlow, Adams and Friedman, Docket No. CV00-0177988, Superior Coat, Judicial District of Stamford/Norwalk at Stamford (November 21, 2000, Lewis, J.); 2000 Conn.Super LEXIS 3100, at *5-6 (Conn.Super.Ct. Nov. 21, 2000). (At that time, Mr. Lee had not yet obtained his judgment of $1.275 million against BSB). In making the present renewed Motion to Dismiss the defendants claim that circumstances are now different in that the plaintiff now has a final judgment of the U.S. District Court against BSB for the very damages it now seeks in this malpractice case, and that recent developments in our caselaw dictate that the plaintiff's claims are non justiciable and should be dismissed.
This case was assigned for a bench trial commencing April 18, 2006, but that date has been continued indefinitely pending resolution of the instant Motion to Dismiss. A request to transfer this case to the complex litigation docket where it could be consolidated with the fraudulent transfer/CUTPA case against BSB and its partners (" Lee v. BSB II") has been denied. The court heard evidence and argument as this motion on June 9, 2006.
Discussion
A motion to dismiss ". . . 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." Gurliacci v. Mayer, 218 Conn. 531, 544 (1991). Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn.App. 790, 793 (1996). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . ." (Internal quotation marks and citation omitted.) Filippi v. Sullivan, 273 Conn. 1, 8 (2005). In ruling on a pretrial motion to dismiss, a court must consider the allegations of the complaint in their most favorable light and must take the facts to be those alleged in the complaint, including the facts necessarily implied from those allegations, construing them in a manner most favorable to the pleader. Id. "[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 728 (1999). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding with the case." (Internal quotation marks omitted.) Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552.
The defendants' only claim of lack of subject matter jurisdiction over this action is that the plaintiff's claim lacks justiciability. "Justiciability requires (1) that there is an actual controversy between or among parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Internal quotation marks omitted.) Mayer v. Biafore, Florek, O'Neill, 245 Conn. 88, 91 (1998). "The justiciability of a claim is related to its ripeness. The basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves is abstract disagreements . . ." (Internal quotation marks omitted.) Cumberland Farms, Inc. v. Groton, 46 Conn.App. 514, 517 (1997), rev'd on other grounds, 247 Conn. 196 (1998). "In light of that rationale, the court . . . must be satisfied that the case before the court does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626 (2003).
Before the Supreme Court's 1998 decision in Mayer, the rule seems to have been that all claims of legal malpractice were non justiciable until the underlying dispute as to which the plaintiff client originally sought legal representation was fully resolved. The reason for this rule was and is that the element of causation of damage attributable to the attorney's alleged malpractice was considered to be contingent on the outcome of the underlying dispute and therefore the malpractice claim was considered premature or not ripe for adjudication. See, Heritage Square Associates v. Leonard Blum et al, Docket No. CV91-0117855, Superior Court, Judicial District of Stamford/Norwalk at Stamford, (July 20, 1992, Nigro, J.) ( 7 Conn. L. Rptr. 103); 1992 Conn.Super. Lexis 2154 ("An attorney's alleged negligence may result in the loss to his client of only one of several legal theories, remedies, defenses, or culpable parties. Such an error by his attorney may not affect the ability of that client to prosecute or defend the very claim, or affect the result. As such the attorney will not be liable for the error since the client has suffered no present loss.") Along with the existence of an attorney-client relationship and the attorney's wrongful act or omission, causation and damages are essential elements of a legal malpractice action. Hartford Casualty Insurance Company v. Farrish-LeDuc, 275 Conn. 748, 759 (2005). The ". . . measure of damages in a legal malpractice action is [the] actual amount the client would have recovered in underlying action if malpractice had not occurred." Id. at 760.
Mayer v. Biafore, Florek, and O'Neill, supra, involved a malpractice claim against an attorney who allegedly had allowed the statutes of limitations to run for recovery of uninsured motorist damages under the client's automobile insurance policy. There had been no action filed against the uninsured motorist insuror before or after bringing the legal malpractice case. The defendant moved in the trial court to dismiss the malpractice case as not ripe for adjudication because there had been no actual adjudication that the uninsured motorist claim was time-barred and argued that if an action were brought against the uninsured motorist carrier, the carrier might not assert the statute of limitations defense. The motion to dismiss was granted by the Superior Court. The Appellate Court affirmed. Mayer v. Biafore, Florek, O'Neill, 45 Conn.App. 554 (1997). The Supreme Coat reversed, saying that ". . . an antecedent determination by a court that the plaintiff's uninsured motorist action against Aetna is time barred is unnecessary . . ." 245 Conn. at 90; and:
To require the plaintiff to obtain a separate ruling that his uninsured motorist action is time-barred does not further judicial economy. We should not, unnecessarily, add extra cases to the already crowded court dockets. All legal malpractice cases are based on underlying rights, for which the plaintiff sought legal representation. To require that the underlying dispute as to those rights, in all cases, must be completely resolved prior to bringing a malpractice action would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer. Mayer v. Biafore, Florek, O'Neill, supra, 245 Conn. at 92-93.
This case does not present the same situation as Mayer. In order to reach a final resolution of Mr. Lee's underlying claims against BSB and its partners, no new action which would add to the crowded court dockets need be commenced. Such an action was commenced in 1992 in the U.S. District Court in Bridgeport, and, following remand from the Second Circuit resulted in a final judgment in Mr. Lee's favor against BSB in the amount of $1.275 million, plus interest. The enforcement of that judgment is also the subject of pending litigation, in this court, in the form of the fraudulent transfer/CUTPA action against the BSB partners and their members which has been pending since 2004 and is scheduled for trial on the complex litigation docket in just a few months. There are also other steps that could be taken in federal court to enforce or collect the $1.275 million judgment without starting a whole new lawsuit. Nor are the remaining issues to enforcement of the underlying obligation of BSB to Mr. Lee as simple and straight forward as whether or not a statute of limitations was missed. The Revised Complaint in the " Lee v. BSB II" litigation contains seven counts directed at two levels of fund transfers, sounding in statutory fraudulent conveyance; common-law fraudulent conveyance, violation of the fraud in contracting debt statute, avoidance of partnership distributions (under Delaware law, claimed to govern), and CUTPA. Although the Supreme Court in Mayer held that it would serve the interests of judicial economy in that case to instruct the jury hearing the legal malpractice case on the law of the statute of limitations applicable to the underlying claim for uninsured motorist coverage, and let the jury hearing the legal malpractice case decide whether or not the defendant attorney had missed the statute and thereby caused the plaintiff's damages, that concept does not apply here. It would not serve judicial economy to transport into this legal malpractice case all the complex issues from the Lee v. BSB II litigation which has been pending for more than two years and is scheduled for trial in the near future.
The "Lee v. BSB I" litigation, described above.
The "Lee v. BSB II" litigation described above, now scheduled for trial in February 2007.
The plaintiff might, for instance, invoke the federal court's ancillary jurisdiction to enforce its judgments, See, Epperson v. Entm't Express, Inc., 242 F.3d, 100, 106 (2d Cir. 2000), or the federal court's contempt power under Rule 69a of the Federal rules of Civil Procedure.
Mayer did not purport to abrogate the long-standing rule that legal malpractice cases are not ripe for adjudication until there has been an antecedent determination of the underlying dispute. It simply indicated that the rule was no longer to apply "in all cases." Mayer, supra, 245 Conn. at 92. Subsequent decisions at the appellate and trial level have continued to find legal malpractice cases to be non justiciable when there are complex unresolved issues as to liability or remedy in the underlying dispute. In Fontanella v. Marucci, 89 Conn.App. 690 (2005), cert. granted, 275 Conn. 907 (2005) (appeal withdrawn, March 8, 2006), one of the determinative issues was whether or not a legal malpractice action for an attorney's alleged failure to preserve the client's damaged vehicle as evidence in an underlying product liability action involving the vehicle and its seatbelts was justiciable while an appeal of a judgment against the client was still pending in the underlying product liability action. The Appellate Court held that the legal malpractice case under those circumstances was not justiciable because, until the final resolution of the underlying case,". . . no damages could have been proximately caused by the [attorney] defendants." and ". . . the plaintiffs could not obtain a remedy in the legal malpractice case until there was a final judgment in the underlying case." 89 Conn.App. at 701. The Fontanella court cited the Superior Court's reasoning in distinguishing Mayer:
unlike Mayer, the spoliation of evidence issues were much more legally and factually complex, so that the underlying product liability case would have to be resolved by appeal before the legal malpractice case became justiciable. Id., 89 Conn.App. at 696.
Indeed, the Fontanella opinion suggests that the holding of Mayer may be limited in application to its own facts, ". . . cases where the statute of limitations has arguably run." Fontanella, supra, note 5.
Superior Court decisions after Mayer and even before Fontanella have continued to find non justiciability of legal malpractice cases when there are unresolved issues of a complex nature as to the underlying dispute. See, e.g., Katz v. Kijec, Docket Nos. CV04-0491344S and 04-0491341S, Superior Court, Judicial District of New Haven at New Haven (October 25, 2005, Thompson, J.); 2005 Conn.Super. LEXIS 2865 (Malpractice claims of improper filings in the bankruptcy court dismissed as still contingent on the outcome of unresolved issues in an adversary proceeding in the bankruptcy court — Mayer distinguished as involving a "relatively straightforward" unresolved issue); Le v. Simon, Docket No. CV04-0488879S, Superior Court, Judicial District of New Haven at New Haven (September 9, 2004, Skolnick, J.) ( 37 Conn. L. Rptr. 825); 2004 Conn.Super. LEXIS 2567 (claims of attorney mishandling pleadings in case against Connecticut Department of Transportation dismissed as non justiciable while underlying case still pending — Mayer distinguished.); and Townsend v. Shipp, Docket No. CV 99-0428475, Superior Court, Judicial District of New Haven at New Haven (June 7, 2000, Devlin, J.) (alleged malpractice in handling federal discrimination case is non justiciable until discrimination case is resolved).
The plaintiff cites Margolin v. Kleban Samor, 275 Conn. 765 (2005) as a case where a claim of legal malpractice for failure to obtain a prejudgment attachment on behalf of a judgment creditor client was litigated to conclusion without an antecedent adjudication that the client's judgment was unenforceable. Margolin is distinguished, however, in that the determination of uncollectability, unlike as in this case, was simple and straight forward. The defaulting defendant's whereabouts were totally unknown, and it was undisputed that after the underlying action was commenced he had become addicted to drugs and alcohol, lost nearly all his assets in a divorce, and his counsel had been permitted to withdraw from the case because they had not been paid and did not know where to contact him. 275 Conn. at 278-79. Under the complexity standard of Fontanella, Margolin's collectability issues clearly would be classified as simple, and therefore governed by Mayer.
There is no indication that subject matter jurisdiction was challenged in Margolin at the trial or appellate level. The fact that the case was litigated on the merits in the Superior Court and the Supreme Court without either court having raised the issue of justiciability sua sponte under Practice Book 10-33 confirms that there was a justiciable controversy over which the courts had subject matter jurisdiction.
The court holds that this legal malpractice action is not ripe for adjudication because of the complexity of the unresolved issues of enforcement or collection of the plaintiff's $1.275 million federal court judgment in the underlying disputes against BSB and its partners and the members of the partners. The case at this point is hypothetical. If the plaintiff is successful in collecting its damages in the underlying action, it would not be able to show causation of damages against the attorney-defendants in this action.
The plaintiff suggests that, since the unresolved issues in the underlying Lee v. BSB litigation go only to the elements of causation and damages in the malpractice case, this action should be bifurcated, with a trial now on the issue of malpractice liability, and a later hearing in damages, if necessary, after the complete resolution of the underlying case. The problem with this suggestion is that this court lacks subject matter jurisdiction as to the entire case at this point, and it would be improper to proceed with any aspect of the case. The essential elements of a legal malpractice case are the existence of an attorney-client relationship, the attorney's wrongful act or omission, causation, and damages. Hartford Casualty Insurance Compnay v. Farrish-LeDuc, supra, 275 Conn. at 759. The court is without jurisdiction as to all the essential elements of the case, and cannot proceed as to any element in a bifurcated fashion until the underlying dispute is resolved.
The plaintiff suggests that this court should be bound by Judge Lewis' order of November 21, 2000 denying an earlier motion to dismiss this case on grounds of non-justiciability, under the doctrine of "law of the case." Judge Lewis based his decision on the then fairly recent decision in Mayer v. Biafore, Florek, O'Neill, supra, without the benefit of subsequent caselaw limiting Mayer's application, including Fontanella v. Marucci, supra. Although Judge Lewis' decision is entitled to great respect, "[t]he law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked." (Emphasis added; citation omitted.) Breen v. Phelps, 186 Conn. 86, 99 (1982). The court has re-examined the issue in a comprehensive manner in light of the circumstances here and now existing and has concluded that case does not at this time present a justiciable issue and that the court therefore lacks subject matter jurisdiction.
Under the rule established in Fontanella v. Marucci, supra, the pendency of the underlying litigation tolls the statute of limitations for the legal malpractice action in this case, should the plaintiff not ultimately be successful in recovering his damages from BSB or its partners, and desire to re-start the legal malpractice case.
Order
For the foregoing reason, the defendant's Motion to Dismiss (No. 158.00) is granted.