Opinion
No. NNH CV 11 6018239
October 7, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiff, Ellina Pevzner, in her individual capacity and as the executrix for the estate of Vladimir Voinov, commenced this action by service of a summons and complaint on the defendants, Paul Shafir and Law Offices of Paul L. Shafir, on January 19, 2011. In her complaint, the plaintiff alleges the following facts. The plaintiff was appointed executrix of Voinov's estate on September 3, 2010. Prior to January 17, 2008, Voinov sought and retained the legal services of Paul L. Shafir to draft a will on his behalf. Voinov relied upon Shafir's legal advice to have the will properly acknowledged, executed and witnessed. On January 17, 2008, Voinov signed the will, which named Ellina Pevzner as executrix of his estate and sole beneficiary of the will. Voinov passed away on August 21, 2008.
On August 5, 2009, a probate hearing was held concerning Voinov's estate. At that hearing, testimony was heard regarding Shafir's actions in the signing, acknowledgment, execution and witnessing of the subject will. The plaintiff alleges that it was first discovered at that hearing that Shafir failed to protect Voinov and his estate in that he: (a) failed to execute the will in a way that would not subject the will to substantial challenge; (b) failed to have the will witnessed or acknowledged in a way that would not subject the will to substantial challenge; (c) knew or should have known that his actions in the signing, acknowledgment, execution and witnessing of the subject will would expose the will and estate to substantial challenge; (d) failed to adequately advise and warn Voinov of the potential for a legal challenge to his will and estate; and (e) engaged in action which departed from the standard of professional care required to protect Voinov's legal interests, assets and/or estate.
The plaintiff further alleges that Shafir's actions and/or inactions led to the probate court's involvement, causing a reduction in the estate's value. In addition, the plaintiff alleges that Shafir's departure from the standard of professional care owed to Voinov caused substantial harm and injury to Voinov and his estate.
In Count Two, the plaintiff alleges a breach of contract claim against Shafir on the ground that he failed to produce a will that protected the interests of Voinov and his estate. Count Three sets forth a CUTPA claim. Count Four alleges that Shafir is liable to the plaintiff because she was the intended beneficiary of the will. Count Five sets forth a theory of vicarious liability against the Law Offices of Paul L. Shafir.
On April 5, 2011, the defendants filed a motion to dismiss the plaintiff's complaint. The motion was accompanied by a memorandum of law. On June 9, 2011, the plaintiff filed an objection to the motion and a memorandum of law in support. The court heard oral argument on June 13, 2011. On September 16, 2011, the plaintiff filed a supplemental brief in objection to the motion to dismiss indicating that the underlying probate appeal has been resolved. On September 22, 2011, the defendants filed a reply memorandum, contesting the allegations contained in the supplemental brief.
LEGAL ANALYSIS
"A motion to dismiss tests . . . whether, on the face of the record, the court is without jurisdiction . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, 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 . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) Keller v. Beckenstein, 122 Conn.App. 438, 442-43, 998 A.2d 838 (2010).
"A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008). "Ripeness is a justiciability doctrine, which implicates the court's subject matter jurisdiction." Bloom v. Miklovich, 111 Conn.App. 323, 335-36, 958 A.2d 1283 (2008). A trial court properly grants a motion to dismiss if it determines that the cause of action is unripe for adjudication. "[T]he rationale behind the ripeness requirement is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Accordingly, in determining whether a case is ripe, a trial court must be satisfied that the case before [it] does not present a hypothetical inquiry or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Lee v. Harlow, Adams and Friedman, P.C., 116 Conn.App. 289, 297, 975 A.2d 715 (2009).
The defendants argue in support of their motion that a pending underlying action precludes jurisdiction. On their view, they assert that the plaintiff's claims cannot be adjudicated where the resolution of complex legal and factual issues in the underlying probate action is necessary to determine whether the defendants' alleged negligence caused any injury.
In Fontanella v. Marcucci, 89 Conn.App. 690 (2005), a minor and his mother filed legal malpractice and breach of contract claims against their former attorney and his law firm ("the defendants"), who had previously represented them in a products liability action against a car manufacturer. The plaintiffs alleged that the attorneys negligently advised them to sell a vehicle in which the minor plaintiff was injured, even though the vehicle and the seatbelts contained therein were the subjects of the products liability action. The vehicle was subsequently destroyed and became unavailable for evidence in the products liability case. While the products liability case was pending, the plaintiffs commenced their first action against the attorneys for legal malpractice based on their allegedly negligent advice. The initial malpractice action was dismissed for lack of justiciability due to the pending products liability action against the car manufacturer. The plaintiffs subsequently filed a second legal malpractice action against the attorneys. Shortly thereafter, however, the trial court granted summary judgment in the plaintiffs' products liability action against the car manufacturer. While the products liability case was being appealed, the trial court dismissed the legal malpractice case as premature because the issues were "factually and legally complex" such that "the underlying products liability case would have to be resolved by appeal before the legal malpractice case could be justiciable." Id., 696. The court also dismissed the suit as to the law firm for lack of personal jurisdiction.
The plaintiffs brought a third legal malpractice action against the attorneys. The Appellate Court held that "[t]he malpractice suit in the present case was not ripe until the damage due to the failure to preserve the seatbelt was evident. The damage occurred, if at all, when [the trial court granted] summary judgment in favor of the products liability defendants was affirmed on appeal." Id., 703. The court reasoned that because the plaintiff alleged a manufacturing defect, the issues were factually complex, and "[w]hether the plaintiff could or could not prove liability on the part of the manufacturer or product seller, despite spoliation of the seatbelt at issue, was not simply a question of law." Id., 704. Therefore, the Appellate Court determined that, because there was significant overlap between the issues in the products liability case and the legal malpractice case, the outcome of the plaintiff's appeal in the products liability case was necessary before it could decide the relevant issues in the latter case.
The Appellate Court further explained their rationale behind Fontanella in Lee v. Harlow, Adams and Friedman, P.C., 116 Conn.App. 289, 303-04, 975 A.2d 715 (2009). It stated: "[I]f the plaintiff were successful on the malpractice claim and also successful in the underlying case, there would be a judgment of malpractice, which requires the four necessary elements that preceded the successful prosecution of the underlying case, and, the plaintiff, in actuality and despite a judgment to the contrary, would have incurred no legal damage that was proximately caused by the attorney's action or omission. Since both legal damage and proximate causation are necessary elements of the malpractice cause of action, in such a hypothetical case, where the legal malpractice case proceeded to judgment before the underlying case had concluded, there would have been no malpractice; yet, there would be a judgment to the contrary. This hypothetical convinces us that it simply makes no rational sense to require such a process." Id., 3 03-04.
The facts in Rubino v. Brucker, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 09 5010657 (September 21, 2009, Pavia, J.), are similar to the present case. In Rubino, the decedents' original will named their son, the plaintiff, as the sole beneficiary of their estates. However, after the passing of the son's mother, the defendant, the decedents' attorney, drafted a new will and trust on behalf of the plaintiff's father, naming the plaintiff's sister as executor and trustee as well as the beneficiary of half of the estate's assets. Less than three weeks after the second will was executed, the plaintiff's father was hospitalized, showing signs of dementia. The attorney did not inform the plaintiff that a second will was drafted and did not inquire into the plaintiff's father's mental deterioration. The plaintiff initiated a claim in probate court seeking to invalidate the second will due to his father's lack of testamentary capacity. He simultaneously filed a legal malpractice claim against the attorney, alleging that his father was not competent to execute the new will and that the defendant knew or should have known of his father's mental condition.
The court, citing Fontanella, supra, granted the defendant's motion to dismiss on the ground that the plaintiff's legal malpractice claim was not ripe for adjudication. "Depending on the probate court ruling on the issues involving the decedent's estate, the plaintiff might never have a cause of action against the defendant. The issues in Probate Court overlap with those presented in this matter. The basis for invalidation of the 2008 will is that Rubino was incompetent to make the beneficiary estate changes. The present matter alleges legal malpractice asserting that the defendant knew or should have known of Rubino's mental deficiencies. The Probate Court's ruling regarding the validity of the second will obviously implicate[s] consideration of the claims already made." Id.
In the present case, the plaintiff filed a probate appeal alleging, inter alia, that Shafir was negligent in failing to have the will witnessed and acknowledged such that the will would not be subject to substantial challenge and delay in probate court. She subsequently brought action against the defendants alleging legal malpractice and other claims in connection with the preparation and execution of the will. The issues in the probate appeal clearly overlap with those in the legal malpractice action. Similar to Rubino, the plaintiff might never have a cause of action depending on the outcome of the probate appeal. The viability of the legal malpractice claim is contingent on the outcome of the probate appeal because the plaintiffs cannot obtain a remedy for malpractice until there is a final judgment in the underlying case. See Buzzee v. Suisman, Superior Court, Judicial District of New London, Docket No. 555700 (May 31, 2001, Martin, J.) ("[if] a plaintiff's claims are contingent on the outcome of an unresolved underlying action, those claims are not ripe and not justiciable"); Rizzitelli v. Thompson, Superior Court, Judicial District of Ansonia-Milford at Derby, Docket No. CV 09 5009384 (August 2, 2010, Bellis, J.) ("until a court renders a judgment against the defendant finding that the posts at issue in the underlying complaint in the present litigation were, in fact, defamatory, the defendant will be unable to demonstrate how the plaintiff's acts or omissions proximately caused that injury"). Therefore, due to the pending underlying probate appeal, the plaintiff's legal malpractice claim is not ripe for adjudication.
The plaintiff might never have a legal malpractice cause of action because certain elements must first be established in the pending underlying case. "[T]he plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the defendant's wrongful acts or omissions; (3) causation; and (4) damages . . . When proof of the existence of an attorney-client relationship is conceded, proof of the second element, a wrongful act or omission, normally involves expert testimony as to the existence of a professional duty on the part of the attorney and a departure from it by some negligent act or omission." (Internal quotation marks omitted.) Terracino v. Gordon Hiller, 121 Conn.App. 795, 808, 1 A.3d 97 (2010). "Put another way, a plaintiff must prove that there existed an attorney-client relationship and that the client sustained legal injury or damage that proximately was caused by the attorney's wrongful act or omission." Lee v. Harlow, Adams Friedman, P.C., supra, 116 Conn.App. 302.
The plaintiff argues that she has properly alleged damages which were proximately caused by the attorney's wrongful act or omission. She emphasizes that her argument is not that the will was invalid but that Shafir's conduct subjected the will to challenge and delay in its enforcement. Such "challenge and delay," however, does not constitute recoverable damages in a legal malpractice case, and the plaintiff cites no case law to support this proposition.
The plaintiff also argues that the lack of precise damages does not preclude the court's jurisdiction. She asserts that in Lee, supra, the Appellate Court clarified its holding in Fontanella by stating that "a plaintiff may bring a malpractice action, even where it is attempting to mitigate its damages in another case." This argument is irrelevant to the present case, however, as the plaintiff here is not trying to "mitigate her damages in another case." A proper analysis of the plaintiff's argument requires a brief discussion of the court's holding in Lee.
In Lee, a real estate developer was involved in litigation with his then-mortgage lender. After the failure of the lender, the Federal Deposit Insurance Corporation was substituted as receiver, and the loans were sold to BSB Greenwich Mortgage Limited Partnership (BSB Greenwich). Pursuant to an amended stipulated judgment of strict foreclosure between BSB Greenwich and the plaintiff in the underlying case, BSB received title to a luxury condominium complex which had previously been owned by the plaintiff's company. The judgment provided in part that if the gross sales proceeds of BSB Greenwich's sale of the first twenty-one units were equal to or greater than a certain threshold, the plaintiff would have the option to purchase the final unit. After BSB Greenwich sold the first twenty-one units, it informed the plaintiff that the gross sales proceeds fell under the target price and that the plaintiff did not have the option to purchase the final unit. The plaintiff, however, believed the figures were understated. BSB Greenwich subsequently sold the final unit to third-party buyers for $1,275,000 without the plaintiff's consent. The plaintiff's attorneys, however, advised him that his option rights were fully protected by law.
The plaintiff then sued the buyers, arguing that they were not entitled to purchase the final unit. On appeal, the Appellate Court held that the buyers did not have actual or constructive notice at the time of purchase because the certificate of foreclosure filed on the land records stated that BSB held "absolute" title to the complex, Lee v. Duncan, 88 Conn.App. 319, 327, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005), and because the filing of a certified copy of the stipulated judgment of strict foreclosure was not filed as required by General Statutes § 47-36. Id., 328. The plaintiff then moved for an order in aid of enforcement of the stipulated judgment against BSB Greenwich in federal court. Lee v. BSB Greenwich Mortgage Ltd. Partnership, United States District Court, District of Connecticut, Docket No. 5:92CV71 (AHN) (motion for order). The district court awarded judgment in favor of the plaintiff for $1,275,000 plus interest.
The plaintiff subsequently brought a legal malpractice action against his former attorneys claiming that, inter alia, they failed to properly record certain paperwork which would have protected his option rights in connection with his purchase of the final condominium unit. The defendants filed a motion to dismiss, emphasizing that the plaintiff had a prior pending action in federal court to enforce an amended stipulated judgment against BSB Greenwich. This motion was denied. The defendants then filed another motion to dismiss, again claiming lack of ripeness, and claiming that the plaintiff already obtained a $1.275 million judgment against BSB Greenwich in the underlying action. On this view, the plaintiff's damages were merely hypothetical since the plaintiff had failed to take action to enforce the judgment.
The Appellate Court held that the plaintiff's claims were ripe for adjudication. The defendants' alleged malpractice occurred when they failed to file the required documents on the land records and when BSB Greenwich sold the last condominium unit despite the plaintiff's option to purchase the unit, "causing [the plaintiff] to incur expenses in an attempt to secure his rights under the stipulated judgment in the underlying case." Id., 304. The loss of this property and the plaintiff's legal expenses constituted damages under a legal malpractice claim, regardless of whether the plaintiff could mitigate his damages in a separate action relating to the stipulated judgment. "[T]he bringing of a separate action in an attempt to minimize the damages allegedly caused by the defendants' failure to file certain documents on the land records at the conclusion of the underlying case would not affect the justiciability of the case." Id., 304; see Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 87-88, 952 A.2d 1 (2008) ("[A]s long as it is clear that a plaintiff has suffered an injury sufficient to give rise to the cause of action alleged, a lack of certainty as to the precise scope of damages will not prevent the claim from being justiciable").
Contrary to the plaintiff's argument, Lee is inapposite to the present case for several reasons. First, Lee does not stand for the proposition that a pending related action does not preclude jurisdiction. There, the Appellate Court held that the defendant's motion to dismiss for lack of ripeness should be granted; however, the court emphasized that "although the extent of legal damage was uncertain at the time [the plaintiff] filed the malpractice claim, the underlying case was over." (Emphasis added.) That is, the plaintiff's underlying claim against BSB Greenwich had already been decided and a stipulated judgment had been entered by the court. The fact that the underlying case had already concluded allowed the Lee court to determine that it had jurisdiction over the legal malpractice claim. This clearly distinguishes Lee from the present case, where the underlying probate appeal is still pending, serving to preclude this court's subject matter jurisdiction over the legal malpractice claim.
Second, it is unclear why the plaintiff argues that she may bring a malpractice action even where she attempts to mitigate her damages in another case. The plaintiff in Lee attempted to mitigate his damages by attempting to enforce the stipulated judgment. "That [the plaintiff] sought to minimize the damages allegedly caused by the defendants' malpractice had no implication on his allegation of a legal injury." By contrast, the plaintiff here is not trying to mitigate her damages in a separate action. Accordingly, this argument is not helpful to her case.
Lastly, the Lee court held that even though the exact amount of damages was uncertain, the plaintiff had sufficiently "alleged the necessary elements of a legal malpractice cause of action: he had alleged that there had been an attorney-client relationship and that he had sustained legal injury that was proximately caused by an act or omission of his attorneys." Id., 304. Here, the plaintiff has failed to allege that she has sustained legal injury proximately caused by Shafir. The alleged consequences of Shafir's departure from the professional standard of care do not constitute damages for a legal malpractice claim.
The plaintiff's other claims similarly must be dismissed for lack of justiciability. Count Two of the plaintiff's complaint sets forth a breach of contract claim against Shafir on the ground that he failed to produce a will that protected the interests of Voinov and his estate. Count Three, setting forth a CUTPA claim, asserts claims for damages resulting from the alleged malpractice. The plaintiff alleges in Count Four that Shafir is liable to her, as the intended beneficiary, for his conduct and the alleged damages to Voinov's estate; and she alleges in Count Five that the Law Offices of Paul L. Shafir is vicariously liable for Shafir's actions.
Counts Two through Five, each specifically seeking damages resulting from Shafir's conduct, are not justiciable. Similar to the legal malpractice claim, each of these claims are not justiciable due to the pending appeal in the probate court action. The plaintiff might never have causes of action against the defendants, depending on the probate court ruling on the issues involving Voinov's estate. Accordingly, Counts Two through Five are not justiciable and similarly must be dismissed for lack of subject matter jurisdiction.
The plaintiff argues in the alternative that the court should issue a stay, instead of dismissing the counts in question, so as to accommodate the parties and ensure judicial economy.
"In the absence of a statutory mandate, the granting of an application or a motion for a stay of an action or proceeding is addressed to the discretion of the trial court . . . [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Lee, supra, at 311-12. The Supreme Court has stated that in determining a motion to stay, the court should apply "familiar equitable principles in the context of adjusting the rights of the parties during the pendency of the litigation until a final determination on the merits." Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 458, 493 A.2d 229 (1985).
Whether to stay the proceedings when the underlying probate appeal has not been decided is a matter within the trial court's sound discretion. The court holds that it lacks subject matter jurisdiction because the plaintiff's claims are not justiciable. See Sosin v. Scinto, 57 Conn.App. 581, 589, 750 A.2d 478 (2000) (denying plaintiff's request for stay on similar facts). As a result, the court is required to dismiss those counts and therefore denies the plaintiff's request for a stay.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion to dismiss.