Opinion
No. FST CV00 0177988S
January 16, 2007
The plaintiff has moved Pursuant to Practice Book § 11-11 to Reargue this court's ruling of September 15, 2006 granting the defendants' motion to dismiss this legal malpractice action on the ground that it is premature because there is an underlying action still pending which can afford the plaintiff full compensation of his losses. The court has considered the arguments made by counsel for the plaintiff, but finds no basis to reconsider the court's earlier ruling.
The court notes that in all the cases cited by the plaintiff in support of his motion to reargue, dismissal of the case at hand (or counts thereof) was upheld as non-justiciable because the plaintiffs' claims were contingent on the outcome of other unresolved litigation. See Sosin v. Scinto, 57 Conn.App. 581 (2000), American Premier Underwriters, Inc. v. National Railroad Passenger Corp., 47 Conn.App. 384 (1997) cert. denied 244 Conn. 384 (1998), Milford Power Company v. Alstom Power, Inc., 263 Conn. 616, and Cumberland Farms, Inc. v. Groton, 36 Conn.App. 514 (1997). The plaintiff attempts to distinguish those cases because the underlying pending litigation here would only impact the damages claimed in the present action:
While the plaintiff's damages may be reduced by the plaintiff's pursuit of pending proceedings, the availability of such a mitigation of damages does not render the instant case non-justiciable.
Plaintiff's Motion to Reargue, etc. p. 7.
The possible reduction or even full satisfaction of plaintiff's claimed damages is not something that is merely "available." It is to be determined in civil litigation actually brought by the plaintiff, assigned for trial in this court later this year. The uncertainty of damages because of other litigation is no less a valid ground of non-justiciability than issues of liability:
The claims at issue in the trial court could not have been determined because, as in American Premier Underwriters, Inc., essential elements of the four counts dismissed had not been determined, i.e., whether the plaintiff's claims for damages were susceptible to arbitration and, if so, what the actual amount of damages would be. (Emphasis supplied.) Sosin v. Scinto, supra, 57 Conn.App at 587-88.
The plaintiff also urges the court to reconsider the plaintiff's earlier verbal motion or suggestion to bifurcate this case in the interest of judicial economy by staying the issue of damages, and proceeding to trial on the issue of whether or not there was legal malpractice. The plaintiff fails to appreciate the limited options available once a motion to dismiss for lack of subject matter jurisdiction has been filed. A stay of proceedings or an order to bifurcate are clearly not among those options:
The plaintiff asserts, however, that, in the interests of comity and judicial economy, the trial court should have stayed rather than dismissed the action. We disagree. Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction . . . As a result, the trial court was required to address the jurisdictional challenge before ruling on other motions and, once it decided it lacked subject matter jurisdiction, it was bound and required to dismiss the case . . . Accordingly, nothing was left before the trial court on which to act . . . Therefore the trial court could not have addressed the plaintiff's motion for a stay. (Internal quotation marks omitted; citations omitted.) American Premier Underwriters, Inc. v. National Railroad Passenger Corp., supra, 47 Conn.App. at 389-90.
The same reasoning governs the plaintiff's present request that the court should now grant the plaintiff's uncontested Motion to Substitute Administrator as plaintiff, characterized as "administrative relief." That motion could not be acted on in September because the Motion to Dismiss had been filed; nor can it be acted on now, because the case has been dismissed for lack of subject matter jurisdiction.
For the foregoing reasons, the Plaintiff's Motion to Reargue Motion to Dismiss, Plaintiff's Motion for Order on Motion to Substitute Administrator, and Motion to Bifurcate, dated October 5, 2006, is denied.
So ordered.