Opinion
No. CV11 5033655 S
October 28, 2011.
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
The plaintiff, Patricia Ann Wright-Khan, filed a one-count complaint against the defendant, Attorney Martyn Philpot, on January 5, 2011. The court construes the plaintiff's complaint as alleging the following relevant facts. The plaintiff was party to a Probate action in which the Probate Court appointed her a conservator. The conservator then settled the Probate action on the plaintiff's behalf for $75,000. The plaintiff then hired the defendant to provide her legal representation in an appeal from Probate, as well as in two matters before the Commission on Human Rights and Opportunities on June 26, 2009. The defendant, however, did not file an appearance in either of the matters before the Commission. Pursuant to terms of the representation agreement, the plaintiff paid the defendant a retainer of $5,000. During the course of his representation, the defendant refused to provide the plaintiff with certain transcripts and motions that the defendant filed on behalf of the plaintiff, despite language in the agreement stating that the defendant would forward to the plaintiff copies of any and all pleadings and correspondence generated in connection with the representation. The defendant represented the plaintiff in the appeal and subsequently sent the plaintiff a bill for $13,113. The plaintiff further alleges that the amount stated by the defendant is excessive and should be reduced to the statutory maximum of $7,500, leaving the plaintiff with a balance of $2,113. Furthermore, in a letter dated November 15, 2010, the defendant returned a $100 check to the plaintiff that she sent him and informed her that he would no longer perform work on her behalf. The plaintiff requests that the defendant send her copies of all of the motions and court transcripts which the defendant refused to send her. The plaintiff seeks these documents in order to file an appeal in the Appellate Court. The plaintiff also requests that the court render a judgment in favor of the defendant for $2,113, and allow the plaintiff to pay the defendant $100 per month until that amount is paid.
The plaintiff's complaint consists of twenty-nine pages of single-spaced text, all of which is bold and in capital letters. For purposes of efficiency, the court construed the plaintiff's factual allegations in a more concise manner, rather than state the allegations as they appear in the complaint.
On April 15, 2011, the defendant filed a motion to dismiss the plaintiff's complaint and a supporting memorandum of law. On April 28, 2011, the plaintiff filed her own motion to dismiss. The plaintiff's motion to dismiss merely reiterated the factual allegations in her complaint and stated that the court has subject matter jurisdiction. The court treats the plaintiff's motion to dismiss as an objection to the defendant's motion to dismiss. See docket entry #106.10, entered by Silbert, J. The plaintiff filed a brief in support of the objection on June 6, 2011. The plaintiff also filed exhibits on July 29, 2011. The court heard oral argument on this matter on August 8, 2011.
DISCUSSION I
"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." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). "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). "[J]usticiability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court's subject matter jurisdiction and its competency to adjudicate a particular matter." (Internal quotation marks omitted.) Id. "Since mootness implicates subject matter jurisdiction . . . it can be raised at any stage of the proceedings." (Citation omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n. 12, 829 A.2d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In its motion to dismiss, the defendant argues that the court lacks subject matter jurisdiction over the plaintiff's claim because the claims are moot, the plaintiff fails to allege any cause of action and the plaintiff lacks standing. In her objection to the defendant's motion to dismiss, the plaintiff merely states that the court does have jurisdiction over this matter.
"Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Curley v. Kaiser, 112 Conn.App. 213, 229, 962 A.2d 167 (2009). "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court's subject matter jurisdiction . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. 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.) Dean-Moss Family Ltd. Partnership v. Five Mile River Works, Inc., 130 Conn.App. 363, 370, 23 A.3d 745 (2011).
In the present case, the plaintiff alleges that the defendant stated that she owes him $13,113 and she argues that this sum should be reduced to the statutory maximum of $7,500. The plaintiff seeks an articulation of these fees and expenses based upon General Statutes § 4-184a(b), for the purpose of determining how the defendant calculated the amount due as $13,113. Additionally, the plaintiff seeks to have the defendant provide her with motions and transcripts pertaining to the matter in which the defendant represented her. Patricia Wright-Khan v. Appeal from Probate, Superior Court, judicial district of New Haven, Docket No. 09 4035432.
A
First, the defendant argues that there exists no case or controversy between the parties for the court to consider because the plaintiff owes no outstanding balance to the defendant. The plaintiff provides correspondence in the form of letters between the parties in which the defendant seeks to recover $8,113 from the plaintiff. The court, however, takes into consideration the defendant's statements in the motion to dismiss and the accompanying memorandum in which the defendant states that he is not seeking to recover any fees or expenses from the plaintiff nor will he seek to recover any fees or expenses in the future. As a commissioner of the court, the court considers the defendant's statements binding and interprets the defendant's argument as a voluntary waiver of any claims that he may have against the plaintiff for the recovery of any fees or expenses related his representation of her legal interests in the appeal from Probate. For the foregoing reasons, the court determines that the plaintiff does not owe any outstanding balance to the defendant in this matter. As the plaintiff owes no outstanding balance to the defendant, there are no fees or expenses of which the plaintiff could seek an articulation. Therefore, there exists no case or controversy to be resolved between the plaintiff and the defendant as it pertains to any outstanding balance or an articulation of fees and expenses. Accordingly, the plaintiff's claims for a payment plan and an articulation of fees and expenses are moot.
B
The defendant also argues that there exists no case or controversy between the parties for the court to consider as to the plaintiff's request that the defendant provide her with motions and transcripts pertaining to her appeal from Probate because the plaintiff's deadline to file an appeal has expired. The defendant's focus is misplaced, however, as the controversy that exists between the parties is the possession of the documents that compose the plaintiff's file as created and maintained by the defendant, her former attorney. The plaintiff seeks possession of the documents in her file, but the defendant has yet to provide the plaintiff with these documents. Therefore, the interests of the parties are adverse as to the possession of the documents at issue. The possession of a file, and the documents therein, for purposes of litigation is capable of being adjudicated by a judicial power as the possession of documents constitutes a legal interest, a possessory interest. The practical relief that can be granted by a judicial power is the determination of which party has the right to possess the documents. If the plaintiff is determined to have the possessory interest, she will be granted possession of the documents. Therefore, there exists a case or controversy between the plaintiff and the defendant as to the plaintiff's request that the defendant provide the plaintiff with motions and transcripts pertaining to the plaintiff's appeal from Probate. Accordingly, the court denies the defendant's motion to dismiss as to the plaintiff's request that the defendant provide her with motions and transcripts from her appeal from Probate.
Possessory interest is defined as the "present right to control property, including the right to exclude others, by a person not necessarily the owner." Black's Law Dictionary (7th Ed. 1999).
II
As there exists an actual case or controversy as to the plaintiff's request that the defendant provide her with motions and transcripts, the court must address the defendant's remaining grounds for dismissal. The defendant argues that the court should dismiss the plaintiff's claims because the plaintiff fails to allege any cause of action and because the plaintiff lacks standing to bring this suit due to incompetence.
1
Specifically, the defendant argues that the plaintiff fails to allege facts sufficient to set forth a claim for a writ of mandamus. A motion to strike is the appropriate procedural vehicle in which to raise this argument, not a motion to dismiss. "[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . . the practical difference being that if a motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result." (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993). "There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike." (Internal quotation marks omitted.) Pecan v. Madigan, CT Page 22552 97 Conn.App. 617, 621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). The defendant's argument for failure to state a cause of action is inappropriate for the present motion and, therefore, the court declines to consider the argument in this context. Accordingly, the court denies the defendant's motion to dismiss as to this ground.
2
The defendant argues that the plaintiff lacks standing to bring this suit because she is incompetent to bring a suit on her own behalf due to an adjudication of being mentally ill. In support of its argument, the defendant attaches Judge Corradino's memorandum of decision in the plaintiff's appeal from Probate in which Judge Corradino references the Probate Court's finding that the plaintiff was "an incapable person for the purposes of [that] litigation." Patricia Wright-Khan v. Appeal from Probate, Superior Court, judicial district of New Haven, Docket No. CV 09 4035432 (October 25, 2010, Corradino, J.). The defendant does not submit any other evidence to demonstrate the plaintiff's incompetence. Judge Corradino's decision, alone, does not speak to the current mental state of the plaintiff. Judge Corradino issued his decision on October 25, 2010, and that decision refers to the Probate Court's appointment of a conservator on April 10, 2008. More than three years have passed since the Probate Court deemed the plaintiff incompetent. Therefore, the court determines that the defendant's proffer of Judge Corradino's decision fails to satisfy its burden of demonstrating the plaintiff's current incompetence. Accordingly, the court denies the defendant's motion to dismiss as to the defendant's argument that the plaintiff lacks standing to bring the present action.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to dismiss as to the plaintiff's claims to establish a payment plan with the defendant and an articulation of fees and expenses owed to the defendant on the ground that such claims are moot. The court denies the defendant's motion to dismiss as to the defendant's arguments that the plaintiff's request that the defendant provide her with motions and transcripts pertaining to her appeal from Probate is moot, that the plaintiff fails to allege any facts to state a cause of action and that the plaintiff lacks standing to bring the present action due to incompetence.
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