Opinion
No. FST CV 09 5010657 S
September 21, 2009
MEMORANDUM OF DECISION MOTION TO DISMISS #102
Before the court is the defendant's motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction on the ground that this action is not ripe for adjudication. It is the defendant's position that because the plaintiff is currently pursuing litigation in the Westport Probate Court the present action must be dismissed as no cognizable claim arises prior to the resolution of the probate matter. The issue presented in this instance is whether a legal malpractice action brought in Superior Court is ripe for adjudication, when the underlying action regarding the estate that is the source of the alleged malpractice is still pending in the Probate Court. For the reasons outlined below, the court grants the defendant's motion to dismiss.
Procedural History
The plaintiff, Michael Rubino (Rubino), is the son of Angelo and Juliana Rubino (decedents). The decedents' original will, drafted and executed in 2001, named the plaintiff as the sole beneficiary of the estates. Juliano Rubino passed away on December 22, 2007, and Angelo Rubino passed away on July 11, 2008. Unbeknownst to the plaintiff, in 2008, following the passing of Juliana Rubino, a new will and trust was drafted by the defendant, Andrew Bruckner, as attorney for Angelo Rubino. The will and trust was thereafter executed by Angelo Rubino. This new will named the plaintiff's sister as executor and trustee of the estate and included her as beneficiary of half the estate assets. Less than three weeks after the 2008 will was executed, Angelo Rubino was hospitalized displaying signs of dementia. The defendant at no time notified the plaintiff that a new will was drafted and never made any inquiry regarding the mental deterioration of Angelo Rubino. The plaintiff alleges that Angelo Rubino was not competent to execute the new will and that the defendant knew or should have known of Angelo Rubino's condition.
The plaintiff has initiated a claim in Probate Court seeking determination of the 2008 will as invalid due to Angelo Rubino's lack of testamentary capacity. That matter is currently pending. Simultaneously, the plaintiff commenced the present action alleging legal malpractice against the defendant in the drafting and execution of Angelo Rubino's will. The defendant moves to dismiss the present action claiming that the court lacks jurisdiction as the matter is not ripe for adjudication. Specifically, the defendant asserts that any harm to the plaintiff is theoretical until the probate court has validated one of the two wills.
Legal Discussion
"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . . [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 [that] are well pleaded, invokes the existing record and must be decided upon that alone." (Internal quotation marks omitted.) State v. Marsh McLennan Cos., 286 Conn. 454, 463-64, 944 A.2d 315 (2008). "When a claim is made that a particular case is not ripe for a judicial determination, thus raising a claim of lack of justiciability, the claim implicates the subject matter jurisdiction of the court . . . If a case is determined not to be justiciable, it must be dismissed for want of subject matter jurisdiction." (Citation omitted.) Simonetti v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005654 (June 12, 2007, Radcliffe, J.). "Justiciability requires (1) that there be an actual controversy between or among the 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.) Cadle Co. v. D'Addario, supra, 111 Conn.App. 80, 82, 957 A.2d 536 (2008). "The general rule is that a case is justiciable if it is capable of resolution on the merits by judicial action . . . Th[e] court does not have jurisdiction to resolve a controversy that is not ripe for adjudication." (Citation omitted; internal quotation marks omitted.) Bloom v. Miklovich, 111 Conn.App. 323, 336, 958 A.2d 1283 (2008). "[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 injury or a claim contingent upon some event that has not and indeed may never transpire." (Internal quotation marks omitted.) Cadle Co. v. D'Addario, supra, 111 Conn.App. 82-83 (2008). Ultimately, "a court may have subject matter jurisdiction over certain types of controversies in general, but may not have jurisdiction in any given case because the issue is not justiciable." Statewide Grievance Committee v. Burton, 282 Conn. 1, 7, 917 A.2d 966 (2007).
"[I]n determining whether a case is ripe, a trial court must be satisfied that the case before [i]t does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." Lee v. Harlow, 116 Conn.App. 289, 297 A.2d (2009). In Cadle Company v. D'Addario, supra, 111 Conn.App. 83-84, the Appellate Court held that the plaintiff's claim for breach of a fiduciary duty was not ripe. In Cadle Company the plaintiff filed a notice of claim with the Probate Court against an estate of which the defendant was the fiduciary. Id., 81. While the claim was still pending in the Probate Court, the plaintiff instituted an action in the Superior Court alleging, among other things, a breach of fiduciary duty. Id. The defendants moved to dismiss the action asserting that the claims were not ripe for review. Id. The trial court granted the motion, finding that the action was premature before resolution of the underlying probate claim. Id. On appeal, the Appellate Court upheld the dismissal. The court ruled that the existence of the plaintiff's injury was contingent on a determination of the priorities of the creditors of the decedent's estate and the final settlement of the estate itself. Id., 83-84. "[A]ny injury sustained by the plaintiff stemming from the allegations of the defendants are, at this point, hypothetical . . . Here, because the estate remains open and there is no allegation that the estate is insolvent, it is impossible to ascertain whether the plaintiff has sustained any injury as a result of the defendants' alleged misconduct. Accordingly, the court properly determined that the plaintiff's claims were premature and dismissed them for lack of subject matter jurisdiction." (Citations omitted; internal quotation marks omitted.) Id.
Similarly, in Fontanella v. Marcucci, 89 Conn.App. 690, 877 A.2d 828 (2005), the plaintiffs sought to recover damages for legal malpractice and breach of contract from the defendant attorneys, who had represented the plaintiffs in a prior product liability action. Id., 694-95. In Fontanella the plaintiffs claimed that the defendants were negligent in advising them to sell, rather than preserve, a vehicle which was the subject of a product liability suit. Id. This resulted in the destruction of the evidence needed to sustain the underlying claim against the manufacturer of the car. Id. While the products liability action was pending, the plaintiff initiated a claim for legal malpractice against the attorney. Id. The court held that the viability of the legal malpractice action was contingent on the outcome of the products liability action because the plaintiffs could not obtain a remedy with respect to their legal malpractice case until there was a final judgment in the product liability case. Id., 703-04. The court reasoned that the malpractice and contract claims involved complex legal and factual issues that could not be resolved during the pendency of the underlying product liability action. Id. "The malpractice suit in the [latter] case was not ripe until the damage due to the failure to preserve the seatbelt was evident." Id., 703.
Similarly, in the present case, the defendant moves for dismissal for lack of subject matter asserting that the case is 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 consideration of the claims currently made.
The plaintiffs, however, rely on Mayer v. Biafore, Florek and O'Neill, 245 Conn. 88, 713 A.2d 1267 (1998), in opposing the motion to dismiss. In Mayer, the plaintiff sought to recover for legal malpractice allegedly committed by the defendants, his former attorneys, in failing to timely file an action against his insurer for uninsured motorist benefits. Id., 89. The Superior Court granted the defendants' motion to dismiss for lack of subject matter jurisdiction ruling that that the action was not ripe because the plaintiff could still prevail in an action for uninsured motorist benefits. Id., 90. Although the Appellate Court affirmed the judgment, the Supreme Court reversed the Appellate Court, holding that an actual controversy did exist in the case. Id. The Court reasoned that "because the trier of fact hearing the plaintiff's malpractice case must determine, on the basis of proper instructions as to the law, whether an uninsured motorist action is time barred, there is no need for a prior determination that the statute of limitations has run as a condition precedent to the plaintiff pursuing this case." Id., 92.
The plaintiff's reliance on Mayer is misplaced, as that case is distinguishable from the present matter. In Mayer, the underlying question was whether the statute of limitations had run, a question of law which could be answered by the Superior Court. In the present case, however, the underlying questions of whether the decedent was competent to execute the 2008 will is a question within the exclusive jurisdiction of the Probate Court. Until the issues involving the estate are determined, the Superior Court would be unable to make a determination as to the malpractice claims or the damages resulting therefrom. See Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV 07 4006664 (July 8, 2008, Marano, J.). Unlike Mayer where the court was asked to make a legal determination, the present action involves "complex legal and factual issues" that cannot be resolved during the pendency of the underlying probate action. As such, the malpractice action is not ripe for adjudication and is not justiciable until a final judgment is rendered in the probate action. Fontanella v. Marcucci, supra, 89 Conn.App. 703.
"[T]here are three types of actions in which the Superior Court does not exercise original jurisdiction: those involving the custody of a child not the issue of the marriage involved in a divorce, settlement of an executor's or administrator's account, and the question of due execution of a will." (Internal quotation marks omitted.) In Re Joshua S., 260 Conn. 182, 216, 796 A.2d 1141 (2002). "[T]he trial court [does not have] original subject matter jurisdiction to admit a will to probate or to entertain claims by parties contesting its admission. Rather, the Probate Court, by virtue of its long-standing statutory authority, has exclusive subject matter jurisdiction over matters involving the validity of wills and the settlement of estates." (Internal quotation marks omitted.) Meyer v. Peck, Superior Court, judicial district of Litchfield, Docket No. CV 07 4006664 (July 8, 2008, Marano, J.).
Accordingly, the plaintiffs action in the current case is merely hypothetical at this time, and, therefore, not ripe for adjudication.
Conclusion
For the foregoing reasons the defendant's motion to dismiss is granted.