Opinion
No. CV06 500 56 54S
June 12, 2007
MEMORANDUM OF DECISION
The plaintiff, Mark Simonetti, a special police officer employed by the City of Bridgeport, instituted this action against the defendant, Elliot Spector, d/b/a/ Sack, Spector and Karsten.
The defendant is an attorney who represented Simonetti in a criminal action which was dismissed in July of 2004.
The criminal prosecution was initiated following an investigation into an incident which occurred on July 13, 2003.
On that date, the plaintiff was on duty in his capacity as a special police officer. He was summoned for assistance as fellow officers were in the process of effecting the arrest of one Carl Roper.
According to the plaintiff, when he arrived at the scene of the arrest, Roper had already been handcuffed. The plaintiff assisted in the attempt to bring Roper to his feet, and helped escort him to a waiting police vehicle.
In the attempt to subdue and restrain Roper prior to Mark Simonetti's arrival, it is alleged that an unidentified officer placed his boot on the suspect's neck, an act which was not necessary or appropriate under the circumstances.
According to the complaint, following an investigation of the incident, Mark Simonetti was arrested and charged with the crimes of Assault, Breach of Peace, and Reckless Endangerment. Elliot Spector was retained to represent Simonetti in the criminal proceedings.
In July of 2004, all of the charges leveled against Mark Simonetti were dismissed. At the time of the dismissal, according to the plaintiff, Attorney Spector stated that he would "stipulate to probable cause" for the plaintiff's arrest.
Prior to the stipulation to probable cause, Simonetti had informed Attorney Spector of his intention to pursue legal action against the City of Bridgeport and various police officers, for false arrest and malicious prosecution.
Following the dismissal of the charges, the plaintiff instituted an action in Federal District Court, naming the City of Bridgeport, Chief Wilbur Chapman, and several officers as defendants.
The federal action was begun in October of 2004, and all pleadings were subsequently closed.
Motions for summary judgment were filed on behalf of all of the named defendants. Those motions were granted by order of the Hon. Janet C. Hall, in November of 2006.
The reason given for the granting of the motions for summary judgment was the stipulation to probable cause entered into by Attorney Spector in July of 2004, when criminal charges pending against Mark Simonetti were dismissed.
Mark Simonetti filed a timely appeal of the granting of the motions for summary judgment on November 30, 2006. The appeal is still pending.
The defendant, Elliot Spector, moves to dismiss this action. He claims that the appeal of the granting of the summary judgment motions is still pending, and, therefore, the plaintiff has no justiciable claim against him.
Therefore, he maintains, the court lacks subject matter jurisdiction.
STANDARD OF REVIEW
The purpose of a motion to dismiss is to test whether, on the face of the record, the court lacks either personal jurisdiction over a party, or subject jurisdiction. Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954). The grounds for the granting of a motion to dismiss are set forth in § 10-31 of the Connecticut Practice Book: 1) Lack of jurisdiction over the subject matter, 2) lack of jurisdiction over the person, 3) improper venue, 4) insufficiency of process, and 5) insufficiency of service of process.
Subject matter jurisdiction is the power of a court to hear and decide cases of the general class to which the proceeding in question belongs. CT Page 10235 Gurliacci v. Mayer, 218 Conn. 531, 542 (1991); LeConche v. Elligers, 215 Conn. 701, 709 (1990). The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. If, at any point, it becomes apparent that the court lacks subject matter jurisdiction, the motion must be granted. State v. Anonymous, 240 Conn. 708, 718 (1997).
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. Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624 (2003). If a case is determined not to be justiciable, it must be dismissed for want of subject matter jurisdiction. Kleinman v. Marshall, 192 Conn. 479, 484 (1984).
A finding of justiciability requires the following: 1) that there be an actual controversy between or among the parties to the dispute, 2) that the interests of the parties are adverse, 3) that the matter in controversy is capable of being adjudicated by judicial power, and 4) that the determination of the controversy will result in practical relief to the claimant. Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 568-69 (2004); Pamela B. v. Ment, 44 Conn. 296, 311 (1998); Mayer v. Biafore, Florek O'Neill, 245 Conn. 88, 91-92 (1998).
THE PLAINTIFF HAS RAISED A JUSTICIABLE CLAIM
The decision in this case is controlled by the recent Appellate Court decision in Weiner v. Clinton, 100 Conn.App. 753 (2007).
In that case, the Court squarely faced the issue of whether a legal malpractice action remained unripe, and subject to dismissal, if an appeal of an underlying action was pending, and had yet to be resolved. The Appellate Court reversed a trial court decision which had granted the motion to dismiss. Weiner v. Clinton, supra, 757.
In Weiner, it was alleged that the defendant law firm had allowed the entry of a default judgment based upon a failure to respond to discovery. The effort to have the default set aside was unsuccessful because of allegedly false representations made by the attorneys representing the defendant in the underlying action.
As a result, a $532,655.92 judgment was entered by default. At the time the legal malpractice action was initiated, the appeal from the refusal to reopen the judgments was pending.
The Appellate Court discussed Myer v. Biafore, Flordk O'Neill, supra. The case paid particular attention to the language of that case, which said that requiring the underlying dispute concerning all rights of the parties to be fully resolved in all cases (emphasis added), would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer. Weiner v. Clinton, supra, 761. The court rejected the interpretation of Meyer urged by the malpractice defendant, who had argued that as a general rule, the underlying action must be resolved, before a legal malpractice action is justiciable.
The Weiner v. Clinton opinion also rejected a rigid and Draconian requirement concerning resolution of the underlying action, noting that a plaintiff would face a "catch 22" dilemma in that event. Forcing a plaintiff to await the termination of the underlying action, and any appeals, would permanently bar a plaintiff from initiating a claim based upon the applicable statute of limitations, § 52-577 of the General Statutes. That statute is an "occurrence" statute, rather than a discovery statute, and the time period within which a plaintiff may commence an action begins to run at the moment the act or omission occurs. Fichera v. Mine Himm Corporation, 207 Conn. 204, 212 (1988).
Recognizing that "ripeness" is a judicially created doctrine, rather than one dependent upon statutory authority, the Court reasoned that it should not be used to prevent a claim from being adjudicated or filed, based upon the statute of limitations. Weiner v. Clinton, supra, 763 n. 5, 6.
The plaintiff, Mark Simonetti has presented a justiciable claim, capable of resolution. He should not be denied his opportunity to pursue a claim for legal malpractice because the three-year anniversary of the act of omission complaint of, is less than two months away.
The motion to dismiss is DENIED.