Opinion
No. HHB CV 10 6008157 S
April 1, 2011
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS
BACKGROUND:
The plaintiff, Jacek Smigelski, is an attorney who has served a five-count complaint against his former client, the defendant, Stanley Kosiorek, both in the defendant's individual capacity and as executor of the estate of Stanislaw Kosiorek. This is the fourth action to spawn from a lawsuit, entitled Wisniewski v. Kosiorek, Superior Court, judicial district of New Britain, Docket No. HHB CV04 4000453 S, in which Smigelski represented Kosiorek as executor of the estate of his father, Bronislawa Kosiorek.
The first action was a presentment of Smigelski for misconduct by the disciplinary counsel, Disciplinary Counsel v. Smigelski, Superior Court, judicial district of New Britain, Docket No. HHB CV08 4019323. In that matter, on August 31, 2009, the court, Pittman, J., found Smigelski committed attorney misconduct by charging the estate an unreasonable and excessive attorneys fee in violation of Rule 1.5(a) of the Rules of Professional Conduct and by failing to safeguard the client's funds by engaging in self-help in disbursing funds to himself without a proper accounting to his client and without Probate Court approval in violation of Rules 1.15(b) and (a)(5)(f). Smigelski was suspended for a period of 15 months and must meet several conditions before reinstatement, including placing the sum of $54,833.33 in escrow pending resolution of the fee dispute. Smigelski has lost his appeal of this presentment. Disciplinary Counsel v. Smigelski, 124 Conn.App. 81, 4 A.3d 336 (2010).
The second action, although first chronologically, was brought by Kosiorek as executor against Smigelski on multiple causes of action concerning Smigelski's conduct as set forth above. That action is entitled Kosiorek v. Smigelski, Superior Court, judicial district of New Britain, Docket No. CV07 4014607 S. On October 13, 2010, a jury found in favor of Kosiorek, awarding compensatory damages against Smigelski in the amount of $54,833.33 and on a count of civil conversion, triple damages. The total compensatory award was $226,762.20, plus attorneys fees and costs of $71,696.09. Smigelski's appeal was dismissed on February 9, 2011. The order has not yet been published.
The third action is Smigelski v. Dubois, Superior Court, judicial district of New Britain, Docket No. No. HHB CV 10 6007570 S, brought by Smigelski against the Chief Disciplinary Counsel for alleged acts of fraud in failing to be aware of, or alternatively, disclose, allegedly exculpatory evidence in the prosecution of his presentment. That matter is presently pending.
In this fourth action, Smigelski has filed an amended complaint containing five counts. Count One [sic] alleges "fraudulent breach of contract" against Kosiorek individually. The Second Count alleges breach of the covenant of good faith and fair dealing against Kosiorek individually and as executor. The Third Count and Fourth Counts are postured as declaratory judgment actions, but are presumptively directed against Kosiorek. It is unclear as to whether the claims are directed against Kosiorek in his individual capacity, as executor or both. The Fifth Count seeks indemnity against Kosiorek in his individual capacity.
Kosiorek has filed a motion to dismiss the amended complaint, based upon Smigelski's lack of standing and the prior pending action doctrine, with an indirect claim of res judicata. Smigelski has filed a memorandum of law in opposition to the motion. Oral argument was entertained on March 4, 2011.
LEGAL STANDARD OF REVIEW:
"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 . . . A motion to dismiss tests, inter alia, whether on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006).
The standard governing a trial court's review of a motion to dismiss is well established. "In ruling upon whether a complaint survives a motion to dismiss, 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.) Brennan v. Fairfield, 58 Conn.App. 191, 195, 753 A.2d 396 (2000).
"Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Citations omitted; internal quotation marks omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998). "A claim that [the] court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 787, 712 A.2d 396 (1998). "Once 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 further with the case." (Citations omitted; internal quotation marks omitted.) Figueroa v. CS Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). "The plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fink v. Golenbock, 238 Conn. 183, 199 n. 13, 680 A.2d 1243 (1996).
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. Conboy v. State, 292 Conn. 642, 651-52, 974 A.2d 669 (2009).
Standing to bring an action implicates the court's subject matter jurisdiction. The plaintiff ultimately bears the burden of establishing standing. Seymour v. Region One Bd. Of Ed, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005).
ANALYSIS: I. Third and Fourth Counts
Kosiorek argues that, as to the Third and Fourth Counts, Smigelski does not have standing to assert the causes of action. Both of these causes of action seek declaratory judgments of this court to set aside and declare null and void decrees of the Plainville Probate Court entered on December 12, 2006 and May 21, 2007. Neither party has addressed the procedural requirements of maintaining declaratory judgment actions or whether the requirements have been met by Smigelski.
Smigelski has failed to comply in any respect with Practice Book § 17-56(b), but the remedy for this is a motion to strike. Practice Book § 17-56(c).
Declaratory judgment actions are governed by our rules of practice. Practice Book § 17-55 states,
A declaratory judgment action may be maintained if all of the following conditions have been met:
(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.
Because the forum of the motion to dismiss requires the court to view the allegations of the plaintiff's complaint in a manner most favorable to the pleader, Conboy v. State, supra, 292 Conn. at 651-52, the court must determine whether the plaintiff has put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the court believes it. The court may not make findings of fact, either favorable or unfavorable to the plaintiff in ruling on a motion to dismiss under Practice Book § 15-8. Charter Oak Lending Group, LLC v. August, 127 Conn.App. 428, 434 (2011).
Smigelski makes no allegation in the Third or Fourth Count that he has any interest, legal or equitable, in the decrees of the probate court. Smigelski incorporates into these counts allegations of Count I, in which he claims that, instead of suing Smigelski, Kosiorek should have sued himself individually for the amount which the probate court decreed to be restored to the estate. In the further allegations of the Third and Fourth Counts, however, Smigelski doesn't seek any personal remedy. Rather, he seeks the setting aside of decrees of a probate court, claiming that the conduct of Kosiorek caused damage to the heirs and the estate.
Because Smigelski has failed to allege that he, himself, has an interest in the declaratory judgment sought, he has failed to meet the requirements of Practice Book § 17-55.
"Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless one has, in an individual or representative capacity, some real interest in the cause of action. Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. The fundamental test for determining [c]assical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision. Aggrievement is established if there is a possibility, as distinguished from a certainty . . . that some legally protected interest has been adversely affected." (Internal quotation marks omitted.)
Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010). See also, Bysiewicz v. Dinardo, 298 Conn. 748 (2010).
Smigelski has not claimed he has statutory authority to bring such actions, nor does he claim he is classically aggrieved. He has alleged no specific personal and legal interest in these decrees. Rather, he claims that the heirs and estate were damaged by the conduct of Kosiorek. Additionally, Smigelski fails to allege the decree of the probate court specially and injuriously affected him. Id. Smigelski has alleged no factual basis which would provide him standing as to the causes of action contained in the Third and Fourth Counts. These are dismissed.
II Count One, Second and Fifth Counts
Kosiorek argues that Count One, the Second and the Fifth Counts should be dismissed on the grounds of the prior pending action doctrine. At the time this action was filed, Kosiorek v. Smigelski was pending an appeal. The appeal was dismissed on February 9, 2011. However, for purposes of application of the prior pending action doctrine, a case is no longer pending once it goes to judgment, whether or not an appeal is pending. "After the rendition of judgment, an action is no longer `pending.' See Salem Park, Inc. v. Town of Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); Walsh v. Gurman, 132 Conn. 58, 65, 42 A.2d 362, cert. denied, CT Page 8570 326 U.S. 719, 66 S. Ct. 24, 90 L.Ed. 426 (1945)." Schenk v. Pelkey, 176 Conn. 245, 251-52, 405 A.2d 665 (1978).
III Res Judicata or Claim Preclusion
Because the defendant in his memorandum in support of the motion to dismiss has argued claim preclusion, the court addresses the doctrine of res judicata. The defendant's arguments as to the allegations of each of these three counts certainly raise the specter of res judicata. See, e.g., DiPietro v. Farmington Sports Arena LLC, 123 Conn.App. 583, 590-91 (2010).
However, "[r]es judicata is not included among the permissible grounds on which to base a motion to dismiss. Res judicata with respect to a jurisdictional issue does not itself raise a jurisdictional question. It merely alleges that the court has previously decided a jurisdictional question and therefore must be asserted as a special defense. Practice Book [§ ]164. It may not be raised by a motion to dismiss. Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961); Fetzer v. Miscoe Spring Water Co., 141 Conn. 364, 366, 106 A.2d 149 (1954). Of course, there is no reason why, in an appropriate case, once the defense of res judicata has been raised the issue may not be resolved by way of summary judgment. Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 259, 259 A.2d 598 (1969)." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985). The validity of Count I, the Second Count and the Fifth Count cannot be addressed at this time.
ORDER:
The defendant's motion to dismiss is granted as to the Third and Fourth Counts. The defendant's motion to dismiss is denied as to Count I, the Second and Fifth Counts.