Dressler v. Riccio ( 2021 )

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LAWRENCE DRESSLER v. EUGENE RICCIO
(AC 43385)
Moll, Alexander and Suarez, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney for,
inter alia, legal malpractice in connection with the defendant’s represen-
tation of the plaintiff in a federal criminal case involving certain fraudu-
lent real estate transactions. The plaintiff entered into a plea agreement
in the federal case. The plaintiff’s three count complaint alleged legal
malpractice, breach of fiduciary duty and a violation of the Connecticut
Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.). As to the legal
malpractice and breach of fiduciary duty claims, the plaintiff alleged
that he was required to pay an excessive amount in restitution as part
of his sentence in the federal case as a result of the defendant’s deficient
representation of him. As to the CUTPA claim, the plaintiff alleged that
he was compelled to retain the defendant as his criminal defense counsel
in lieu of another attorney as a result of certain statements that the
defendant made to him that were untrue, misleading and deceptive. The
trial court granted a motion to strike filed by the defendant as to the
plaintiff’s CUTPA claim, and a motion for summary judgment filed by
the defendant as to the legal malpractice and breach of fiduciary duty
claims, from which the plaintiff appealed to this court. Held:
1. The trial court properly granted the defendant’s motion to strike the
plaintiff’s CUTPA claim; pursuant to Connecticut case law, representa-
tions made by an attorney to a prospective client regarding the attorney’s
expertise and/or competence do not relate to the entrepreneurial aspects
of the practice of law and therefore are outside of the ambit of CUTPA;
moreover, if the defendant breached the governing standard of care and
the plaintiff suffered harm as a result, then the plaintiff’s remedy would
be to bring an action claiming legal malpractice, not a violation of
CUTPA.
2. The trial court lacked subject matter jurisdiction over the plaintiff’s legal
malpractice and breach of fiduciary duty claims because they were not
ripe for review pursuant to Taylor v. Wallace (184 Conn. App. 43): to
succeed on those claims, the plaintiff would have had to demonstrate
that the defendant’s alleged conduct led to the imposition of an errone-
ous restitution order by the federal sentencing court, which would neces-
sarily have undermined the validity of his sentence, and such a collateral
attack on the plaintiff’s sentence is not permissible because, as long as
a plaintiff’s conviction or sentence remains valid, it cannot be vitiated
indirectly by a tort action commenced against counsel; accordingly, as
to the summary judgment rendered in the defendant’s favor on these
claims, the form of the judgment was improper because a judgment
of dismissal must be rendered when the court lacks subject matter
jurisdiction.
Argued January 12—officially released July 6, 2021
Procedural History
Action to recover damages for, inter alia, legal mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of New Haven, where the
court, Abrams, J., granted the defendant’s motion to
strike; subsequently, the court, Abrams, J., granted the
defendant’s motion for summary judgment and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Reversed in part; judgment
directed.
Lawrence Dressler, self-represented, the appellant
(plaintiff).
Michael R. Keller, with whom were Eva M. Kolstad,
and, on the brief, James L. Brawley, for the appellee
(defendant).
Opinion
MOLL, J. The plaintiff, Lawrence Dressler, appeals
from the judgment of the trial court rendered in favor
of the defendant, Eugene Riccio. On appeal, the plaintiff
claims that the court improperly granted the defen-
dant’s (1) motion to strike count three of the plaintiff’s
amended complaint asserting a violation of the Con-
necticut Unfair Trade Practices Act (CUTPA), General
Statutes § 42-110a et seq., and (2) motion for summary
judgment as to counts one and two of the plaintiff’s
amended complaint asserting legal malpractice and
breach of fiduciary duty claims, respectively. We con-
clude that the court properly granted the defendant’s
motion to strike the plaintiff’s CUTPA claim set forth
in count three. As for the summary judgment rendered
in the defendant’s favor on counts one and two, the
defendant argues, as an alternative ground for
affirmance, that the court lacked subject matter juris-
diction over those claims because they are not ripe for
review pursuant to Taylor v. Wallace, 184 Conn. App.
43, 47–52, 194 A.3d 343 (2018). We agree with the defen-
dant’s ripeness argument; however, rather than
affirming the summary judgment on that alternative
ground, we conclude that the judgment is improper in
form because the court’s lack of subject matter jurisdic-
tion over counts one and two necessitates a judgment
of dismissal with respect to those counts. Accordingly,
we affirm in part and reverse in part the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In February, 2013,
in relation to certain fraudulent real estate transactions,
the plaintiff was indicted by a federal grand jury on a
charge of conspiracy to commit bank, mail, and wire
fraud in violation of 18 U.S.C. § 1349 (2006).1 Initially,
Attorney John R. Williams represented the plaintiff as
his criminal defense counsel. Subsequently, the plaintiff
retained the defendant, who filed an appearance on
the plaintiff’s behalf in the federal criminal case on
February 22, 2013, the day of the plaintiff’s arraignment.
In October, 2013, after entering into a plea agreement,
the plaintiff pleaded guilty to the conspiracy charge.
In March, 2014, the plaintiff was sentenced to twenty
months of incarceration followed by three years of
supervised release with special conditions. Addition-
ally, as part of his sentence, the plaintiff was ordered
to pay, inter alia, $403,450.75 as restitution.
On July 14, 2017, the plaintiff commenced the present
action against the defendant. Subsequently, the plaintiff
filed an amended three count complaint (i.e., the opera-
tive complaint). Count one asserted legal malpractice.
Count two asserted breach of fiduciary duty. Both
counts one and two were predicated on allegations that,
inter alia, the plaintiff was required to pay an excessive
amount in restitution as a result of the defendant’s
deficient representation in the federal criminal case.
Count three asserted a violation of CUTPA and was
based on allegations that the plaintiff was compelled
to retain the defendant as his criminal defense counsel
in lieu of Attorney Williams as a result of certain state-
ments that the defendant made to him that were untrue,
misleading, and deceptive.
On January 16, 2019, the defendant filed a motion to
strike count three, claiming that the plaintiff’s CUTPA
claim was legally insufficient because, inter alia, the
defendant’s alleged conduct did not relate to the entre-
preneurial aspects of the practice of law. On February
5, 2019, the plaintiff filed a memorandum of law in
opposition. On February 19, 2019, the defendant filed
a reply. Thereafter, with leave of the court, the plaintiff
filed a surreply. On May 17, 2019, the court granted
the motion to strike, concluding that the allegations
pleaded by the plaintiff in support of count three did
not concern the entrepreneurial aspects of the practice
of law and, thus, were legally insufficient to state a
viable CUTPA claim.
On April 15, 2019, before the court had stricken the
CUTPA claim, the defendant filed a motion for summary
judgment, accompanied by a supporting memorandum
of law and exhibits, directed to the plaintiff’s amended
complaint in its entirety. The defendant asserted that
(1) pursuant to Taylor v. Wallace, supra, 184 Conn. App.
43, the plaintiff’s claims were not ripe for review, (2)
the applicable statutes of limitations had expired as to
all of the plaintiff’s claims, and (3) the plaintiff could
not establish a prima facie case as to his legal malprac-
tice and breach of fiduciary duty claims because he had
failed to disclose an expert witness. On May 30, 2019,
the plaintiff filed a memorandum of law, accompanied
by exhibits, in opposition to the motion for summary
judgment. On June 14, 2019, the defendant filed a reply.
On September 9, 2019, the court granted the motion for
summary judgment as to the plaintiff’s legal malpractice
and breach of fiduciary duty claims in counts one and
two, respectively, solely on the basis that they were
statutorily time barred and that no genuine issue of
material fact existed to toll the applicable statute of
limitations. The court did not address the defendant’s
other claims raised in support of his motion for sum-
mary judgment. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
I
The plaintiff first claims that the trial court improp-
erly granted the defendant’s motion to strike count
three of the plaintiff’s amended complaint asserting a
violation of CUTPA.2 We disagree.
‘‘Because a motion to strike challenges the legal suffi-
ciency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling . . . is plenary. . . . We take the facts
to be those alleged in the complaint that has been
stricken and we construe the complaint in the manner
most favorable to sustaining its legal sufficiency. . . .
Thus, [i]f facts provable in the complaint would support
a cause of action, the motion to strike must be denied.’’
(Internal quotation marks omitted.) Karagozian v. USV
Optical, Inc., 335 Conn. 426, 433–34, 238 A.3d 716(2020).
The following additional facts are relevant to our
disposition of the plaintiff’s claim. In support of his
CUTPA claim, the plaintiff alleged in relevant part as
follows. On or about February 22, 2013, the plaintiff
hired the defendant to defend him in the federal criminal
case in lieu of his prior counsel, Attorney Williams.
During a meeting between the plaintiff and the defen-
dant that preceded the defendant’s retention as counsel,
the defendant ‘‘aggressively solicited the plaintiff by
making disparaging remarks about [Attorney Williams],
in one or more of the following ways: (a) the defendant
told the plaintiff that [Attorney Williams] was a ‘flame
thrower’ because he sued the government frequently
and would thereby harm the plaintiff’s chances of reach-
ing a favorable resolution with the federal government;
(b) the defendant told the plaintiff that [Attorney Wil-
liams] had already caused considerable damage to the
plaintiff’s case in that the plaintiff was like a patient
on the operating table with his guts hanging out and it
was up to the defendant to put the plaintiff back
together; [and] (c) the defendant had a close relation-
ship with the federal government which would work in
the plaintiff’s favor, as opposed to [Attorney Williams],
who had a bad relationship with the federal govern-
ment.’’ The plaintiff further alleged that ‘‘[t]he state-
ments made to the plaintiff were misleading, untrue and
deceptive and meant to cause the plaintiff considerable
distress and force the plaintiff to hire the defendant to
defend him rather than [Attorney Williams], which the
plaintiff ultimately did.’’
In moving to strike the plaintiff’s CUTPA claim, the
defendant argued in relevant part that the claim was
insufficient as a matter of law because the plaintiff had
failed to allege conduct by the defendant that implicated
the entrepreneurial aspects of the practice of law, such
as the defendant’s billing practices or his manner of
soliciting clients. In opposition to the motion to strike,
the plaintiff argued that, in making the alleged state-
ments to the plaintiff, the defendant was soliciting the
plaintiff’s business and, thus, was engaged in entrepre-
neurial activity. The court concluded that the defen-
dant’s alleged conduct did not pertain to the entrepre-
neurial aspects of the practice of law and, accordingly,
granted the defendant’s motion to strike the CUTPA
claim.
On appeal, the plaintiff claims that the court improp-
erly granted the defendant’s motion to strike the CUTPA
claim because the defendant’s alleged statements to the
plaintiff during their meeting constituted solicitation of
business and, therefore, implicated the entrepreneurial
aspects of the practice of law. We are not persuaded.
Pursuant to CUTPA, ‘‘[n]o person shall engage in
unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or com-
merce.’’ General Statutes § 42-110b (a). Our Supreme
Court has stated that, ‘‘in general, CUTPA applies to
the conduct of attorneys. . . . The statute’s regulation
of the conduct of any trade or commerce does not
totally exclude all conduct of the profession of law.
. . . Nevertheless, [our Supreme Court has] declined
to hold that every provision of CUTPA permits regula-
tion of every aspect of the practice of law . . . . [Our
Supreme Court has] stated, instead, that, only the entre-
preneurial aspects of the practice of law are covered by
CUTPA.’’ (Citations omitted; internal quotation marks
omitted.) Suffield Development Associates Ltd. Part-
nership v. National Loan Investors, L.P., 260 Conn.
766, 781, 802 A.2d 44 (2002).
‘‘[A]lthough all lawyers are subject to CUTPA, most
of the practice of law is not. The entrepreneurial excep-
tion is just that, a specific exception from CUTPA immu-
nity for a well-defined set of activities—advertising and
bill collection, for example. See Haynes v. Yale-New
Haven Hospital, 243 Conn. 17, 34–38, 699 A.2d 964(1997) (reasoning that practice of law and medicine
may give rise to CUTPA claims only for entrepreneurial
aspects, such as solicitation of business and billing,
and not for claims involving issues of competence and
strategy). It is not a catch-all provision intended to
subject any arguably improper attorney conduct to
CUTPA liability.’’ (Internal quotation marks omitted.)
Suffield Development Associates Ltd. Partnership v.
National Loan Investors, L.P., supra, 260 Conn. 782.
‘‘Our CUTPA cases illustrate that the most significant
question in considering a CUTPA claim against an attor-
ney is whether the allegedly improper conduct is part
of the attorney’s professional representation of a client
or is part of the entrepreneurial aspect of practicing
law.’’ Id., 781.
Our research has revealed limited appellate authority
in this state examining the contours of the entrepreneur-
ial exception to CUTPA immunity with respect to con-
duct that constitutes solicitation of business. Neverthe-
less, our resolution of this issue is specially guided by
three of our Supreme Court’s decisions.
First, in Beverly Hills Concepts, Inc. v. Schatz &
Schatz, Ribicoff & Kotkin, 247 Conn. 48, 717 A.2d 724(1998), the plaintiff asserted various claims, including
legal malpractice and a violation of CUTPA, against
several attorneys and a law firm. Id., 50. Following a
bench trial, the trial court rendered judgment in the
defendants’ favor, inter alia, on the CUTPA claim. Id.,50–51. An appeal and a cross appeal were filed with
this court and, thereafter, transferred to our Supreme
Court. Id., 51. As to the CUTPA claim, our Supreme
Court concluded that, as a matter of law, ‘‘CUTPA [did]
not apply to the facts of th[e] case.’’ Id., 79. Of significant
import, the record in that case supported a finding that
one of the defendant attorneys had represented to the
plaintiff that the defendant law firm ‘‘possessed exper-
tise in the field of franchising, and that the firm was
well qualified to handle the plaintiff’s legal affairs.’’ Id.,
52. By concluding that, as a matter of law, CUTPA was
inapplicable to the facts of that case, it necessarily
follows that our Supreme Court also concluded that an
attorney’s representation to a prospective client during
the retention process regarding the expertise of the
attorney, and/or the attorney’s law firm, falls outside
of the scope of CUTPA.
Second, in Haynes v. Yale-New Haven Hospital,
supra, 243 Conn. 17, the plaintiff asserted claims of
medical malpractice and a violation of CUTPA against
a hospital. Id., 21. In support of the CUTPA claim, the
plaintiff alleged that, although it was certified as a major
trauma center, the defendant hospital had failed to meet
the applicable standards of care for such a center. Id.
The trial court rendered summary judgment in favor of
the defendant hospital on the medical malpractice and
CUTPA claims. Id., 22. The plaintiff appealed to this
court, and, subsequently, our Supreme Court trans-
ferred the appeal to itself. Id., 19 n.3. As to the CUTPA
claim, our Supreme Court affirmed the summary judg-
ment, stating in relevant part that ‘‘[b]y holding itself
out as a major trauma center . . . [the defendant hos-
pital] was representing to the public that it would meet
the applicable standards of competency for a major
trauma center. We conclude that this representation is
simply what all physicians and health care providers
represent to the public—that they are licensed and
impliedly that they will meet the applicable standards
of care. If they fail to meet the standard of care and
harm results, the remedy is not one based upon CUTPA,
but upon malpractice.’’ Id., 39.
Third, in Janusauskas v. Fichman, 264 Conn. 796,
826 A.2d 1066 (2003), the plaintiff asserted, inter alia,
claims of medical malpractice and a violation of CUTPA
against the defendant, an ophthalmologist. Id., 799, 801.
The facts in that case reflected that, following surgery
performed by the defendant to correct the plaintiff’s
nearsightedness, the plaintiff experienced various
vision problems notwithstanding that the defendant had
(1) advertised in a brochure that he was ‘‘ ‘one of the
country’s leading doctors in his field’ ’’ and (2) repre-
sented to the plaintiff that he had successfully treated
other individuals with severe nearsightedness and
believed that he could improve the plaintiff’s vision.
Id., 799, 810–11. Following the close of the plaintiff’s
case-in-chief, the defendant moved for a directed ver-
dict on the CUTPA claim, which the trial court granted.
Id., 802. This court and our Supreme Court affirmed
the directed verdict on the CUTPA claim. Id., 798. With
respect to the defendant’s brochure advertisement, cit-
ing Haynes, our Supreme Court concluded that the
advertisement ‘‘simply represent[ed] to the public that
the defendant [would] meet the standard of care appli-
cable to a ‘leading doctor.’ If the defendant fail[ed] to
meet this standard of care and harm result[ed], the
remedy would be based upon malpractice, and not upon
CUTPA.’’ Id., 810. With respect to the defendant’s repre-
sentations to the plaintiff, our Supreme Court stated
that ‘‘[t]hese representations are of the sort that physi-
cians and other health care providers may make to
their patients within the course of treatment. They are
representations that a reasonable patient may find
material in determining whether to undergo a contem-
plated course of therapy . . . . As with representa-
tions regarding the standard of care, if these representa-
tions fail to satisfy the requirement of informed consent,
and harm results, the remedy would be based upon
malpractice, and not upon CUTPA.’’ Id., 811.
We construe the three aforementioned cases3 to
instruct that representations made by an attorney to a
prospective client regarding the attorney’s expertise
and/or competence do not relate to the entrepreneurial
aspects of the practice of law. Thus, such representa-
tions are outside of the ambit of CUTPA.
Applying this rationale to the present case, we con-
clude that, as a matter of law, the plaintiff failed to
plead a viable CUTPA claim. In support of the CUTPA
claim, the plaintiff alleged that, during the meeting
between the parties, the defendant stated that (1) in
contrast to Attorney Williams, he had a close relation-
ship with the federal government, ‘‘which would work
in the plaintiff’s favor,’’ and (2) notwithstanding the
‘‘considerable damage’’ caused by Attorney Williams,
he was capable of salvaging the plaintiff’s case.4 The
allegations that the defendant made disparaging
remarks about Attorney Williams cannot be isolated
from the allegations that the defendant made comments
highlighting his expertise and/or competence; rather,
the former accentuate the latter. These alleged state-
ments constituted representations by the defendant to
the plaintiff that he was competent to handle the plain-
tiff’s criminal matter. If the defendant breached the
governing standard of care and the plaintiff suffered
harm as a result, then the plaintiff’s remedy would be
to bring an action claiming legal malpractice,5 not a
violation of CUTPA.
In sum, we conclude that the court properly granted
the defendant’s motion to strike count three of the
plaintiff’s amended complaint asserting a violation of
CUTPA.6
II
The plaintiff next claims that the trial court improp-
erly granted the defendant’s motion for summary judg-
ment as to counts one and two asserting legal malprac-
tice and breach of fiduciary duty, respectively, on the
ground that they were time barred. The defendant
argues, as an alternative ground for affirmance, that
the court lacked subject matter jurisdiction over those
tort claims because they are not ripe for review pursu-
ant to Taylor v. Wallace, supra, 184 Conn. App. 43. We
agree with the defendant’s ripeness argument.7
As a preliminary matter, we note that, ‘‘[o]rdinarily,
we would consider the defendant’s alternat[ive]
grounds for affirmance only after finding merit in at
least one of the claims raised on appeal. [O]nce the
question of lack of jurisdiction of a court is raised,
[however, 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.’’
(Internal quotation marks omitted.) Dow & Condon,
Inc. v. Brookfield Development Corp., 266 Conn. 572,
578–79, 833 A.2d 908 (2003); see also Taylor v. Wallace,
supra, 184 Conn. App. 47 (‘‘Subject matter jurisdiction
[implicates] the authority of the court to adjudicate the
type of controversy presented by the action before it.
. . . [A] court lacks discretion to consider the merits
of a case over which it is without jurisdiction . . . .
The objection of want of jurisdiction may be made at
any time . . . [a]nd the court or tribunal may act on
its own motion, and should do so when the lack of
jurisdiction is called to its attention. . . . The require-
ment of subject matter jurisdiction cannot be waived
by any party and can be raised at any stage in the
proceedings.’’ (Internal quotation marks omitted.)).
Thus, as a threshold issue, we must consider the defen-
dant’s argument that the court lacked subject matter
jurisdiction to entertain the plaintiff’s tort claims
because they are not ripe for review.8 See Dow & Con-
don, Inc. v. Brookfield Development Corp., supra, 579
(considering, ‘‘as a threshold issue,’’ defendant’s
claimed alternative ground for affirmance that plaintiff
lacked standing, and, therefore, trial court lacked sub-
ject matter jurisdiction).
‘‘[J]usticiability comprises several related doctrines
. . . [including ripeness]. . . . A case that is nonjusti-
ciable must be dismissed for lack of subject matter
jurisdiction. . . . [B]ecause an issue regarding justicia-
bility raises a question of law, our appellate review [of
the ripeness of a claim] is plenary. . . . [T]he rationale
behind the ripeness requirement is to prevent the
courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements
. . . . Accordingly, in determining whether a case is
ripe, a trial court must be satisfied that the case before
[it] does not present a hypothetical injury or a claim
contingent [on] some event that has not and indeed may
never transpire.’’ (Internal quotation marks omitted.)
Taylor v. Wallace, supra, 184 Conn. App. 47–48.
Counts one and two of the plaintiff’s amended com-
plaint asserted legal malpractice and breach of fiduciary
duty, respectively. As to legal malpractice, ‘‘[i]n general,
the plaintiff . . . must establish: (1) the existence of an
attorney-client relationship; (2) the attorney’s wrongful
act or omission; (3) causation; and (4) damages. . . .
[T]he plaintiff typically proves that the defendant attor-
ney’s professional negligence caused injury to the plain-
tiff by presenting evidence of what would have hap-
pened in the underlying action had the defendant not
been negligent.’’ (Internal quotation marks omitted.)
Id., 48. As to breach of fiduciary duty, the plaintiff must
establish: ‘‘[1] [t]hat a fiduciary relationship existed
which gave rise to . . . a duty of loyalty . . . an obli-
gation . . . to act in the best interests of the plaintiff,
and . . . an obligation . . . to act in good faith in any
matter relating to the plaintiff; [2] [t]hat the defendant
advanced his or her own interests to the detriment of
the plaintiff; [3] [t]hat the plaintiff sustained damages;
[and] [4] [t]hat the damages were proximately caused
by the fiduciary’s breach of his or her fiduciary duty.’’
(Internal quotation marks omitted.) Chioffi v. Martin,
181 Conn. App. 111, 138, 186 A.3d 15 (2018).
The defendant’s ripeness argument is premised on
this court’s holding in Taylor v. Wallace, supra, 184
Conn. App. 47–52. In Taylor, the plaintiff brought a
legal malpractice action against the defendant, who was
the plaintiff’s appointed counsel in a prior habeas
action, alleging that the defendant had provided him
with deficient representation. Id., 45–46. Additionally,
the plaintiff alleged that the defendant had defrauded
the state. Id., 46. At the time that he had filed the legal
malpractice action, the plaintiff was serving a twenty-
five year term of incarceration stemming from a murder
conviction. Id., 45, 48. The conviction remained intact
notwithstanding that the plaintiff had filed numerous
petitions seeking postconviction relief, including a
habeas petition that was still pending at the time of the
legal malpractice action. Id., 45, 48–49. The defendant
moved to dismiss the plaintiff’s complaint, asserting
that the legal malpractice claim was barred by statutory
immunity and that the plaintiff lacked standing to pur-
sue his claim of fraud. Id., 46. The trial court agreed
with the defendant on both grounds and dismissed the
complaint. Id.The plaintiff appealed from the judgment of dis-
missal. Id. For the first time on appeal, the defendant
argued that the trial court lacked subject matter juris-
diction over the plaintiff’s legal malpractice claim
because it was not ripe for review. Id., 47. More particu-
larly, ‘‘[r]elying to a degree on Heck v. Humphrey, [512
U.S. 477, 486–87, 114 S. Ct. 2364, 129 L. Ed. 2d 383(1994)], the defendant suggest[ed] that th[e] case [was]
not ripe for adjudication because (1) a habeas corpus
action [was] pending, and sound policy considerations
militate[d] against the possibility of inconsistent resolu-
tions arising out of the same transaction; (2) the injury
resulting from [the] alleged professional negligence in
[that] instance [was] incarceration, and, as the plaintiff
remain[ed] validly incarcerated in any event, any con-
sideration of damages would invoke a hypothetical
inquiry; and (3) the holding of [Heck] should be adopted
by this court.’’ (Footnote omitted.) Taylor v. Wallace,
supra, 184 Conn. App. 49.
This court proceeded to examine Heck, in which ‘‘a
prisoner brought an action pursuant to 42 U.S.C. § 1983alleging that unlawful procedures had led to his arrest,
that exculpatory evidence had knowingly been
destroyed, and that unlawful identification procedures
had been used at this trial. Heck v. Humphrey, supra,512 U.S. 478–79. He claimed monetary relief and did
not seek release from custody. Id., 479. His conviction
had been affirmed and a federal habeas petition had
been denied. Id. The United States Court of Appeals
for the Seventh Circuit had affirmed the District Court’s
dismissal of the plaintiff’s action, reasoning that, ‘[i]f,
regardless of the relief sought, the plaintiff [in a federal
civil rights action] is challenging the legality of his con-
viction, so that if he won his case the state would be
obliged to release him even if he hadn’t sought that
relief, the suit is classified as an application for habeas
corpus and the plaintiff must exhaust his state reme-
dies, on pain of dismissal if he fails to do so.’ . . .
Id., 479–80.
‘‘The United States Supreme Court affirmed, although
on slightly different reasoning. Id., 490. It began its
analysis with a discussion of the common law of torts,
and analogized the circumstance of the case before it
to malicious prosecution: an element of the cause of
action under the common law is a favorable outcome
of the underlying criminal case against the plaintiff.
Id., 484. The element was required in order to avoid
inconsistent resolutions and collateral attacks on con-
victions. Id., 484–85.
‘‘The court concluded ‘that, in order to recover dam-
ages for allegedly unconstitutional conviction or impris-
onment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction
or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal . . . or called into question by a federal court’s
issuance of a writ of habeas corpus . . . . A claim for
damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cogniza-
ble under § 1983. Thus, when a state prisoner seeks
damages in a § 1983 suit, the [trial] court must consider
whether a judgment in favor of the plaintiff would nec-
essarily imply the invalidity of this conviction or sen-
tence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated.’ . . . Id.,
486–87. The court noted that the injury of being con-
victed and imprisoned is not compensable under § 1983
unless the conviction has been overturned. Id., 487 n.7.’’
(Emphasis in original.) Taylor v. Wallace, supra, 184
Conn. App. 49–51.
This court then stated that it ‘‘agree[d] with the policy
enunciated in Heck: [I]f success in a tort action would
necessarily imply the invalidity of a conviction, the
action is to be dismissed unless the underlying convic-
tion has been invalidated. . . . The rationale in Heck
is similar to other limitations in our tort law. Malicious
prosecution, of course, requires as an element a favor-
able outcome of the underlying prosecution. . . . A
tort case is not ripe for adjudication if resolution of an
unresolved underlying case is necessary for reliable
adjudication. . . . Principles of issue preclusion bar
collateral attack on a judgment.’’ (Citations omitted.)
Id., 51. This court also cited favorably to Tierinni v.
Coffin, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (May 21, 2015) (60 Conn.
L. Rptr. 450), a Superior Court decision that ‘‘reasoned
that an incarcerated prisoner’s complaint alleging legal
malpractice should be dismissed. The court observed
that the extant claim of ineffective assistance of counsel
in a habeas action and his claim of legal malpractice
in the case sub judice arose from the same set of facts;
the tort claim, then, was not ripe for adjudication. Id.,
453. The court reasoned that if it were ‘to adjudicate the
plaintiff’s claim during the pendency of the plaintiff’s
habeas petition, there is a risk that [the] court could
determine the defendant’s performance was insufficient
while the habeas court determines it was sufficient, or
vice versa.’ Id. Further, ‘[b]ecause an invalidation of
the underlying criminal matter through the plaintiff’s
pending [habeas] petition is a necessary precursor to
this legal malpractice claim . . . the plaintiff’s legal
malpractice claim has not yet accrued . . . .’ Id.’’ Tay-
lor v. Wallace, supra, 184 Conn. App. 51–52.
This court ultimately agreed with the defendant’s
ripeness argument, stating that ‘‘the plaintiff has been
convicted and that conviction has withstood a number
of attacks. For so long as the conviction stands, an
action collaterally attacking the conviction may not be
maintained.’’ (Footnote omitted.) Id., 52. In reaching its
decision, this court rejected the plaintiff’s argument
that he was ‘‘not attacking the conviction, but [was]
merely seeking monetary damages,’’ observing that
‘‘[o]ne difficulty with his position is that the injury, a
necessary element in a tort action, is the conviction.
To prove his malpractice action, he presumably would
have to prove that he would not have sustained the
injury had professional negligence not occurred. Thus,
a successful result in this case would necessarily imply
that the conviction was improper. Inconsistency of
judgments is avoided by the requirement that the con-
viction first be vacated.’’ Id., 52 n.5; see also id., 49 n.4
(‘‘[w]e do not see any reasonable scenario of recovery
. . . that does not necessarily undermine the validity
of the conviction’’).
In the present case, relying on Taylor, the defendant
argues that the plaintiff’s legal malpractice and breach
of fiduciary duty claims are not ripe for adjudication
because (1) the injury complained of by the plaintiff is
his conviction, (2) the plaintiff’s conviction remains
undisturbed, and (3) a successful result on the plaintiff’s
tort claims would necessarily undermine the validity of
his conviction. We agree with the defendant’s ripeness
argument, with one caveat. The plaintiff’s alleged injury
with respect to his tort claims is not his conviction, but
rather his sentence—more specifically, the restitution
component of his sentence.9 Although the purported
injury at issue in Taylor was a conviction, we perceive
no basis not to extend the reasoning in Taylor to cases
in which the injury complained of by a plaintiff is his
or her sentence. See Heck v. Humphrey, supra, 512 U.S.
487 (noting that ‘‘when a state prisoner seeks damages
in a § 1983 suit, the [D]istrict [C]ourt must consider
whether a judgment in favor of the plaintiff would nec-
essarily imply the invalidity of his conviction or sen-
tence’’ (emphasis added)); see also Kraklio v. Sim-
mons, 909 N.W.2d 427, 439 (Iowa 2018) (holding that
‘‘a criminal defendant suing his defense lawyer over a
sentencing error must obtain postjudgment relief on
the sentencing issue, but need not prove relief from the
underlying conviction’’); Garcia v. Ball, 303 Kan. 560,
573, 363 P.3d 399 (2015) (concluding that, to pursue
legal malpractice claim related to illegal sentence, plain-
tiff had to ‘‘obtain [postsentencing] relief from the
unlawful sentence’’); Johnson v. Babcock, 206 Or. App.
217, 224, 136 P.3d 77 (stating that when ‘‘[a] plaintiff
alleges that he received a legally impermissible sen-
tence, not merely a ‘bad deal,’ that he served more of
the sentence than was legally permissible, and that he
obtained [postjudgment] relief from the sentence, we
conclude that [such a] plaintiff properly alleged [the]
harm [element of a legal malpractice claim]’’ (emphasis
added)), review denied, 341 Or. 450, 143 P.3d 773 (2006).
Applying the rationale of Taylor to the present case,
we conclude that the plaintiff’s tort claims, as set forth
in counts one and two, are not ripe for adjudication.
To succeed on these claims, the plaintiff would have
to demonstrate that the defendant’s alleged conduct led
to the imposition of an erroneous restitution order by
the federal sentencing court, which would necessarily
undermine the validity of his sentence. Such a collateral
attack on the plaintiff’s sentence is not permissible. In
short, as long as the plaintiff’s sentence stands, his tort
claims are not ripe for review.
The plaintiff argues that Taylor is inapplicable to the
facts of this case because the plaintiff in Taylor was
able to pursue postconviction relief whereas in the pres-
ent case the plaintiff cannot challenge the restitution
component of his sentence because he is precluded
from filing a motion pursuant to 28 U.S.C. § 2255(2018).10 See United States v. Rutigliano, 887 F.3d 98,
105–107 (2d Cir. 2018) (restitution orders cannot be
challenged by motion filed under 28 U.S.C. § 2255, other
than in ‘‘ ‘rare’ ’’ circumstances when restitution orders
equate to custodial punishment). We are not persuaded.
The crux of Taylor is that, so long as a plaintiff’s convic-
tion or sentence remains valid, it cannot be vitiated
indirectly by a tort action commenced against counsel.11
Whether the plaintiff was or is able to attack the restitu-
tion order in another proceeding is of no moment.12
In addition, although Taylor highlights the specter of
multiple courts issuing conflicting decisions over the
same subject matter, we construe that to be an added
reason why a tort action against counsel predicated on
an allegedly improper conviction or sentence cannot
be pursued while the conviction or sentence is intact.
The central point remains that a valid conviction or
sentence cannot be undone collaterally by a tort action
brought by a plaintiff against his or her counsel. See
Heck v. Humphrey, supra, 512 U.S. 486 (noting ‘‘hoary
principle that civil tort actions are not appropriate vehi-
cles for challenging the validity of outstanding criminal
judgments’’).
As a final matter, our conclusion that the plaintiff’s
tort claims are not ripe for review means that the trial
court lacked subject matter jurisdiction to entertain
them. A court must dismiss claims over which it lacks
subject matter jurisdiction. See Gershon v. Back, 201
Conn. App. 225, 244, 242 A.3d 481 (2020) (‘‘[w]henever
a court finds that it has no jurisdiction, it must dismiss
the case’’ (internal quotation marks omitted)). Accord-
ingly, as to the summary judgment rendered in the
defendant’s favor on the plaintiff’s tort claims, we con-
clude that the form of the judgment is improper because
a judgment of dismissal must be rendered with respect
to those claims.
The form of the judgment with respect to the sum-
mary judgment rendered in the defendant’s favor on
counts one and two of the plaintiff’s amended complaint
is improper, the judgment is reversed as to counts one
and two, and the case is remanded with direction to
render judgment dismissing those counts; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff also was indicted on a charge of making a false statement
to a financial institution in violation of 18 U.S.C. §§ 2 and 1014 (2006). That
charge was subsequently dismissed.
2
On June 4, 2019, pursuant to Practice Book § 10-44, the defendant filed
a motion for judgment on the stricken CUTPA count. On the basis of the
record before us, it appears that the court never adjudicated the motion for
judgment. It is well established that ‘‘[t]he granting of a motion to strike
. . . ordinarily is not a final judgment . . . .’’ (Internal quotation marks
omitted.) Sempey v. Stamford Hospital, 180 Conn. App. 605, 618, 184 A.3d
761 (2018). Nevertheless, ‘‘[i]n similar circumstances where a count of a
complaint was stricken, but the plaintiff failed to plead over, no judgment
was entered thereon and the remaining counts were disposed of by way of
summary judgment, this court has considered the appeal to have been from
a final judgment.’’ DeCorso v. Calderaro, 118 Conn. App. 617, 624, 985
A.2d 349 (2009), cert. denied, 295 Conn. 919, 991 A.2d 564 (2010); see also
Sieranski v. TJC Esq, A Professional Services Corp., 203 Conn. App. 75,
80–81 n.4, 247 A.3d 201 (2021) (declining defendant’s invitation to reconsider
issue of whether final judgment existed in appeal—filed after rendering of
summary judgment—that challenged granting of motion to strike count of
plaintiff’s original complaint notwithstanding fact that judgment had not
been rendered on stricken count, where this court previously had denied
defendant’s motion to dismiss appeal predicated on same issue). Accord-
ingly, under the circumstances of this case, we conclude that this appeal
is taken from a final judgment.
3
Although Haynes and Janusauskas are medical malpractice cases, we
consider their reasoning regarding CUTPA to be highly instructive in legal
malpractice cases.
4
With regard to the CUTPA claim, the plaintiff also alleged that ‘‘[t]he
defendant refused to release a copy of the plaintiff’s file upon repeated
requests, precluding the plaintiff from fully determining the facts underlying
a cause of action against the defendant. The defendant went so far as to
represent to the Connecticut Grievance Panel that he had an agreement
with the Office of the United States Attorney that forbid him from releasing
the contents of the plaintiff’s entire file, other than the plaintiff’s own closing
files, when no such agreement existed, thus fraudulently concealing the
plaintiff’s cause of action under . . . General Statutes § 52-595.’’ The plain-
tiff made substantively similar allegations in the other two counts of his
amended complaint. We do not construe these allegations as supporting the
merits of the CUTPA claim; rather, the ostensible purpose of these allega-
tions was to avoid the running of the statute of limitations contained in
CUTPA. Even assuming that these allegations were pleaded to support the
merits of the CUTPA claim, we conclude that an attorney’s refusal to release
a current or former client’s file does not constitute entrepreneurial activity
and, thereby, falls outside of the scope of CUTPA.
5
We note that, although count one of the plaintiff’s amended complaint
asserted legal malpractice, the allegations concerning the defendant’s state-
ments to the plaintiff during the meeting between the parties were not
pleaded in support of that count.
6
As an alternative ground for affirmance, the defendant argues that the
plaintiff’s CUTPA claim was time barred. Because we conclude that the
court properly struck the CUTPA claim on the ground that it was legally
insufficient, we do not address further this alternative ground for affirmance.
7
The defendant also argues that the summary judgment rendered in his
favor can be affirmed on the basis that the court correctly concluded that
the limitation period had expired as to the plaintiff’s tort claims. Additionally,
as an alternative ground for affirmance, the defendant argues that the plain-
tiff could not prevail on the tort claims because he failed to disclose an
expert witness. Our conclusion that the trial court lacked subject matter
jurisdiction over the tort claims is dispositive of the portion of the plaintiff’s
appeal challenging the summary judgment rendered in the defendant’s favor,
and, thus, we need not address the defendant’s additional arguments.
8
Although the defendant raised the ripeness argument in his motion for
summary judgment, the trial court did not address it in its decision granting
the motion. ‘‘Our Supreme Court has stated that [o]nly in [the] most excep-
tional circumstances can and will this court consider a claim, constitutional
or otherwise, that has not been raised and decided in the trial court. . . .
This rule applies equally to alternat[ive] grounds for affirmance. . . . One
such exceptional circumstance is a claim that implicates the trial court’s
subject matter jurisdiction, which may be raised at any time and, thus, is
not subject to our rules of preservation.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) Board of Education v. Bridge-
port, 191 Conn. App. 360, 378–79 n.8, 214 A.3d 898 (2019). ‘‘[R]ipeness
implicates the court’s subject matter jurisdiction’’; id., 379 n.8; and, therefore,
it is proper for us to consider the ripeness issue presented by the defendant.
9
‘‘Without doubt, a restitution order is part of [a] sentence . . . .’’ United
States v. Oladimeji, 463 F.3d 152, 156 (2d Cir. 2006).
10
Title 28 of the United States Code, § 2255, provides in relevant part:
‘‘(a) A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is other-
wise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence. . . .’’
11
We note at this juncture that we do not consider whether the rationale
of Taylor extends beyond tort claims. That is, the ripeness analysis contained
herein is not applicable to the plaintiff’s CUTPA claim, which we addressed
in part I of this opinion, because, as opposed to his legal malpractice and
breach of fiduciary claims, the plaintiff failed to support his CUTPA claim
with allegations that the defendant engaged in conduct that caused the
plaintiff harm in the form of an erroneous restitution order. In other words,
on the basis of the allegations underlying the CUTPA claim, recovery under
the CUTPA claim would not necessarily undermine the validity of the plain-
tiff’s sentence. Cf. Taylor v. Wallace, supra, 184 Conn. App. 49 n.4 (‘‘[w]e do
not see any reasonable scenario of recovery . . . that does not necessarily
undermine the validity of the conviction’’). Additionally, we observe that
Taylor expressly addressed tort actions in its ripeness analysis. See id., 51(‘‘if success in a tort action would necessarily imply the invalidity of a
conviction, the action is to be dismissed unless the underlying conviction
has been invalidated’’ (emphasis added)). We express no opinion as to
whether, under different circumstances, the rationale of Taylor would
extend to a CUTPA claim.
12
Although the plaintiff contends that a motion under 28 U.S.C. § 2255 is
unavailable to him, we do not interpret his argument to be that there are
no possible avenues to contest the restitution order. See, e.g., United States
v. Rutigliano, supra, 887 F.3d 108–109 (leaving open question of whether
writ of error coram nobis can be used to challenge restitution component
of sentence and concluding that, even if coram nobis relief was available
to defendant, she had failed to demonstrate entitlement to such relief).
Indeed, in his amended complaint, the plaintiff alleged that the restitution
order could not ‘‘be reopened except under extraordinary circumstances.’’
(Emphasis added.)
We also observe that the plea agreement entered into by the plaintiff
included a waiver term providing in relevant part that ‘‘[t]he [plaintiff]
acknowledges that under certain circumstances he is entitled to challenge
his conviction and sentence. The [plaintiff] agrees not to appeal or collater-
ally attack in any proceeding . . . the conviction or sentence imposed . . .
if that sentence does not exceed [certain thresholds, including a $1.6 million
order of restitution]. . . . Furthermore, the [plaintiff and the United States
Attorney’s Office for the District of Connecticut] agree that any challenge
to the [plaintiff’s] sentence that is not foreclosed by this provision will be
limited to that portion of the sentencing calculation that is inconsistent with
(or not addressed by) this waiver.’’ The plaintiff makes no reference to this
waiver provision in addressing on appeal the defendant’s ripeness argument.