Opinion
UWYCV166031851
03-07-2017
Eddie Zyko v. Statewide Grievance Committee et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #104
Barbara Brazzel-Massaro, J.
INTRODUCTION
The plaintiff Eddie Zyko is an attorney licensed to practice in the State of Connecticut. He filed this action against two defendants Statewide Grievance Committee and Wilson Rosado. The complaint was filed on August 24, 2016 seeking a declaratory judgment prohibiting the committee from taking further action on the complaint on the ground that the Committee does not have subject matter jurisdiction over the grievance complaint because the plaintiff was acting in his capacity as an escrow holder and not as an attorney. The plaintiff filed an Amended Complaint on September 21, 2016 which contains two counts against the two defendants.
The defendant filed a motion to dismiss on October 20, 2016 with an accompanying memorandum of law arguing that the court lacks subject matter jurisdiction because the plaintiff has failed to exhaust his administrative remedies and the claims are barred by sovereign immunity. On November 30, 2016, the plaintiff filed an objection to the motion to dismiss. On December 1, 2015, the defendant filed a reply to the objection. The parties appeared and argued at short calendar on December 5, 2016.
II. FACTUAL BACKGROUND
The plaintiff, Eddie Zyko, is an attorney licensed to practice in Connecticut. This action revolves around a grievance complaint filed by Mr. Wilson Rosado. The complaint involves the refusal to return a deposit for the proposed purchase of a café by Mr. Rosado. The plaintiff represented a corporation entitled ZLZ. Mr. Rosado entered into negotiations to purchase the café (Howard's Café) which was owned by ZLZ. At some point during the purchase discussions, Mr. Rosado requested that Attorney Zyko also represent him in the purchase. Attorney Zyko agreed subject to all of parties agreeing to a retainer agreement. Before this occurred, Mr. Rosado obtained another attorney stating that the lending institution required this. The defendant Mr. Rosado gave a $12, 500 non-refundable deposit that Attorney Zyko held in escrow.
The sales transaction failed and Mr. Rosado requested that his deposit be returned. Attorney Zyko did not communicate with Mr. Rosado or return the deposit. On April 21, 2016, Mr. Rosado filed an attorney grievance complaint with the Statewide Grievance Committee against Attorney Zyko as a result of the failure to return the deposit. On June 14, 2016, the grievance panel found probable cause that Attorney Zyko had engaged in violation of Rule 1.7(b)(4) of the Rules of Professional Conduct and scheduled a hearing for October 6, 2016. Attorney Zyko requested a continuance of the hearing. On August 24, 2016 Attorney Zyko filed this action seeking a declaratory judgment against the two defendants, Statewide Grievance Committee and Wilson Rosado. He also included a second count against each of the defendants.
The plaintiff contends that the Statewide Grievance Committee does not have jurisdiction because he was acting as an attorney solely for the ZLZ Corporation and solely as an Escrow Agent for ZLZ and thus he has acquired an independent status as an escrow agent and is not subject to the grievance process.
The defendant Wilson Rosado has not submitted a motion to dismiss nor has he submitted any support for the motion by the defendant Statewide Grievance Committee.
III. DISCUSSION
" A motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter . . ." Practice Book § 10-30(a). " 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.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). " 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." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638, (2007). Pursuant to Practice Book Section 10-30, a motion to dismiss is used to assert: " (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) insufficiency of process and (4) insufficiency of service of process."
A. EXHAUSTION OF ADMINISTRATIVE REMEDIES
" Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . in the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011). " The doctrine of exhaustion of administrative remedies . . . provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." (Internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 95, 726 A.2d 1154 (1999). " [T]he doctrine of exhaustion of administrative remedies is applicable to the attorney grievance process." (Footnote omitted.) Id., 101. " The doctrine is subject to . . . exceptions." (Internal quotation marks omitted.) Id., 95. " [A] party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse of the administrative remedy would be futile or inadequate; . . . the procedures followed by the administrative agency are constitutionally infirm; . . . or injunctive relief from an agency is necessary to prevent immediate and irreparable harm." (Citation omitted.) Id., 103. The Supreme Court has " recognized such exceptions, however, only infrequently and only for narrowly defined purposes." (Internal quotation marks omitted.) Id.
In the present case, the plaintiff is obligated to exhaust the administrative remedies available to him under our statutory and practice book provisions governing attorney grievance complaints. Johnson v. Statewide Grievance Committee, supra ., 248 Conn. 101. The plaintiff contends that the grievance complaint is not appropriate because he was an escrow agent pursuant to C.G.S. § 51-81h and thus there is no basis for a complaint. However, the decision as to whether this particular statute applies to the involvement of Attorney Zyko is presently part of the argument before the Statewide Grievance Committee and thus must be reviewed and determined by them in their decision. Recourse to the administrative agency would not be futile or inadequate fails because " the plaintiff can obtain the remedy he seeks- dismissal of [the] grievance complaint . . . if, after a hearing on the merits of the complaint, it is not established by clear and convincing evidence, that he engaged in professional misconduct in connection with his representation . . ." Id., 104. The plaintiff's reliance upon the statute and the facts as alleged by him are part of the Statewide Grievance Committee review. The plaintiff does not deny that he was an attorney acting on behalf of at least for one of the parties in the sale of the business. It is this very representation and the legal argument as to what was his capacity in the sale that is rightfully before the Grievance Committee. Second, injunctive relief is not necessary to avoid immediate and irreparable harm to his practice and reputation because " [a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law" and the plaintiff has failed to establish that any conceivable harm he might suffer as a result of a public hearing on grievance complaints " would rise to a level warranting equitable intervention by the Superior Court." (Emphasis in original; internal quotation marks omitted.) Id., 107. The Statewide Grievance Committee must conduct and complete its hearing and proceeding before the plaintiff can challenge the very action it is obligated to oversee and review.
B. SOVEREIGN IMMUNITY
" [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 Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). " [W]e have long recognized the validity of the common law principle that the state cannot be sued without its consent . . ." Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003). " The immunity from liability for costs enjoyed by the state extends to state officers, boards or other agencies." Statewide Grievance Committee v. Harris, Superior Court, judicial district of Hartford, Docket No. CV-93-0531164-S (June 12, 1995, Allen, J.T.R.) (14 Conn.L.Rptr. 305, ). " The Statewide Grievance Committee is . . . a state agency and is immune from liability . . . under the doctrine of sovereign immunity." Id. " [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 waived 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 Services, Inc. v. Dept. of Transportation, 293 Conn. 342, 349, 977 A.2d 636 (2009).
In the present case, the state legislature has not waived the Committee's immunity and the plaintiff has not alleged that the Committee has acted pursuant to an unconstitutional state statute. In his complaint the plaintiff alleges that the Committee has acted in excess of its statutory authority. " A claim under this exception must do more than make a conclusory allegation that the defendants' conduct was in excess of their statutory authority; it must allege facts that reasonably support such an allegation." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 354. The plaintiff's complaint fails to meet this standard because the plaintiff merely alleges a conclusory statement that Rosado's grievance complaint " seeks to get the Statewide Grievance Committee to do what the courts of this state are established by our state constitution to do: litigation--here of a contract action."
" The judicial branch of government possess inherent power to regulate attorney conduct and to discipline the members of the bar in order to safeguard the administration of justice, and . . . to preserve public confidence in the system and to protect the public and the court from unfit practitioners." (Internal quotation marks omitted.) Dixon v. Statewide Grievance Committee, Superior Court, judicial district of New Haven, Docket No. CV-00-0440644-S (November 27, 2000, Silbert, J.) [29 Conn.L.Rptr. 36, ]. " General Statutes 51-90g and the parallel rules of practice authorize the grievance committee to act as an arm of the court in fulfilling this responsibility." (Emphasis omitted; internal quotation marks omitted.) Id. The Committee is authorized to examine the plaintiff's conduct and determine whether the plaintiff established an attorney-client relationship with Rosado, and thus violated the Rules of Professional Conduct. The doctrine of sovereign immunity therefore affords the Committee absolute protection from the plaintiff's suit.
IV. CONCLUSION
For the foregoing reason, the motion to dismiss is granted as to the plaintiff's amended complaint against the defendant Statewide Grievance Committee.