Lee v. Harlow, Adams and Friedman, P.C.

• Decision Date: 04 August 2009
• Docket Number: No. 28503.,28503.
• Citation: 116 Conn.App. 289,975 A.2d 715
• Court: Connecticut Court of Appeals
• Parties: Johnson LEE v. HARLOW, ADAMS AND FRIEDMAN, P.C., et al.

975 A.2d 715

116 Conn.App. 289

Johnson LEE v. HARLOW, ADAMS AND FRIEDMAN, P.C., et al.

No. 28503.

Appellate Court of Connecticut.

Argued February 18, 2009.

Decided August 4, 2009.

Alan R. Spirer, Westport, for the appellant (substitute plaintiff).

Daniel R. Canavan, Hartford, with whom, on the brief, were Christopher L. Brigham, Daniel B. Fitzgerald, New Haven, and Stephen P. Wright, Milford, for the appellees (defendants).

FLYNN, C.J., and LAVINE and BEACH, Js.

FLYNN, C.J.

Before us is a case in which the mortgagee that foreclosed the interest in certain Greenwich real estate of the plaintiff Johnson Lee,¹ did not honor the agreement it had made, as a part of a foreclosure judgment against Lee, to convey a valuable condominium to him but, instead, sold the condominium to another. Following the breach by the mortgagee, Lee brought an action against his former attorneys, the defendants, Harlow, Adams & Friedman, P.C., and Stephen P. Wright, sounding in legal malpractice for their alleged failure to record a copy of the foreclosure judgment on the land records. The court, Hon. Alfred J. Jennings, Jr., judge trial referee, acting on a motion of the defendants, dismissed the action for lack of ripeness because damages were purely hypothetical due to the possibility that Lee could collect a judgment in another pending lawsuit involving the mortgagee and its principals, who had breached the agreement in the foreclosure action. Lee now appeals from the judgment of the trial court dismissing his claims of legal malpractice against the defendants. We conclude that Lee's claims were ripe for adjudication even though damages could be minimized by a recovery in another pending action against the mortgagee and its principals, and, accordingly, we reverse the judgment of the trial court.

The following facts, as reasonably gleaned from the record, are relevant to our consideration of Lee's appeal. Lee was a real estate developer who became involved in litigation with his then mortgage lender, the Bank Mart. Lee was represented by the defendants in that litigation. After the failure of the Bank Mart, the Federal Deposit Insurance Corporation was substituted as receiver, and it removed the litigation to federal court (underlying case).² After removal, the Federal Deposit Insurance Corporation sold Lee's loans to BSB Greenwich Mortgage Limited Partnership (BSB Greenwich). Pursuant to an April 28, 1995 amended stipulated judgment of strict foreclosure between BSB Greenwich and Lee in the underlying case, BSB Greenwich received title to a luxury condominium complex, Waterford of Greenwich, which had been owed by Lee's company. The judgment provided in relevant part that BSB Greenwich would sell twenty-one of the final twenty-two unsold condominium units, and, if the gross sales proceeds of those twenty-one units was equal to or greater than $26.5 million, BSB Greenwich was required to convey the final unsold unit to Lee at no cost. If, however, the gross sales proceeds of those twenty-one units was less than $26.5 million, Lee had a right to purchase the final unit for the amount by which the total sales was less than $26.5 million. Additionally, if Lee elected not to exercise his option to purchase the last unit, BSB Greenwich was required to pay Lee any proceeds from the total sales in excess of $26.5 million, up to a maximum of $1 million, after the final unit was sold.

In a letter dated March 2, 1998, BSB Greenwich notified Lee that the total gross sales from the twenty-one units was $24,674,200 and that he had an option to purchase the remaining unit for $1,825,800. Lee believed that the gross figures supplied by BSB Greenwich were understated, and he forwarded a copy of the March 2, 1998 letter to Wright. On April 17, 1998, BSB Greenwich sold the final unit to William M. Duncan and Patricia M. Duncan for $1,275,000 in violation of the Lee's option rights and without Lee's consent. Upon learning this in August 1998, Lee immediately contacted Wright. Despite these occurrences, from March through December, 1998, Lee and Wright discussed Lee's option rights, which, Wright assured Lee, were fully protected by law.

On March 30, 1999, Lee filed suit against the Duncans in Superior Court; see Lee v. Duncan, Superior Court judicial district of Stamford-Norwalk, Docket No. CV-99-0171435-S, 2003 WL 22598328 (October 31, 2003); claiming that the Dun-cans were not entitled to purchase the final condominium unit. In Lee's action against the Duncans, the trial court, Hiller, J., rendered summary judgment in the Duncans' favor. On appeal, we agreed with the trial court that the Duncans lacked actual or constructive notice of Lee's interest in the unit at the time they purchased it, there being no certified copy of the stipulated judgment of strict foreclosure in the land records as required by General Statutes § 47-36, and the certificate of foreclosure that was filed in the land records stated that BSB Greenwich had "absolute" title in the property. Lee v. Duncan, 88 Conn.App. 319, 326-28, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12 (2005).

On March 31, 1999, Lee moved for an order in aid of enforcement of the stipulated judgment against BSB Greenwich in federal court, Lee v. BSB Greenwich Mortgage Ltd. Partnership, United States District Court, District of Connecticut, Docket No. 5:92CV71 (AHN) (motion for order).³ The District Court ruled in favor of BSB Greenwich on the motion for order, but that ruling was overturned by the United States Court of Appeals for the Second Circuit. Lee v. BSB Greenwich Mortgage Ltd. Partnership, 267 F.3d 172 (2d Cir. 2001). On remand, the District Court recalculated the proceeds from the sales of the condominium units and concluded that the total proceeds were in excess of $26.5 million, and it determined that the final unit should have been deeded to Lee at no cost. Accordingly, on April 2, 2003, it awarded judgment in favor of Lee for $1,275,000, plus 10 percent interest from April 17, 1998. We note that at the time that Judge Jennings ruled on the motion to dismiss, which is the subject of this appeal, no part of that federal judgment had been satisfied. We also are aware that on April 17, 2004, Lee filed an action against BSB Greenwich, its members and its partners in Superior Court claiming that BSB Greenwich had transferred money and assets to avoid paying the judgment. During the course of this appeal, however, Lee and BSB Greenwich entered into a settlement agreement for $750,000.

On May 2, 2000, Lee filed the present malpractice action against the defendants in Superior Court, alleging that his loss of the condominium and the legal fees incurred were due to the malpractice of the defendants. He alleged in part that "had the judgment containing [Lee's] option rights been properly recorded on the land records of the town of Greenwich, or had other necessary and appropriate action been taken, BSB [Greenwich] would not have been able to convey and/or sell [the final unit to the Duncans] without [Lee's] consent." Lee alleged that the defendants deviated from the standard of care by (1) failing to protect Lee's option rights, (2) failing to record Lee's option rights properly and (3) by giving improper and inaccurate advice.

On July 27, 2000, the defendants filed a motion to dismiss, claiming that the case was not ripe for adjudication. The motion alleged that Lee had a federal action, Lee v. BSB Mortgage Ltd. Partnership, supra, United States District Court, at Docket No. 5:92CV71 (AHN), pending to enforce the amended stipulated judgment against BSB Greenwich, that a trial had been held in that case in April, 2000 and that a decision would be forthcoming. The defendants argued that the present case was not ripe for adjudication because there existed an alternative basis for relief against BSB Greenwich by means of the motion for order in the federal action. On November 21, 2000, the defendants' motion was denied by the court, Hon. William B. Lewis, judge trial referee.

On February 2, 2001, the defendants filed their answer to Lee's complaint, and they alleged two special defenses. The first special defense alleged that Lee's injuries, if any, were caused by his negligence in that he failed to record the stipulated judgment properly, failed to communicate accurately with the defendants, failed to ensure that the stipulated judgment accurately reflected his intentions and that he independently negotiated the terms of the stipulated judgment. The second special defense alleged that Lee failed to take affirmative steps to mitigate damages. Lee denied the special defenses. After Lee filed an amended complaint to correct a typographical error, the defendants filed a new answer asserting only one special defense, alleging only that Lee's injuries, if any, were caused by his negligence in that he failed to (1) record the stipulated judgment properly, (2) advise the defendants of the option offer and his dispute of the purchase price and (3) timely take action to enforce his rights under the stipulated judgment. This special defense also was denied by Lee.

On March 13, 2006, the defendants filed another motion to dismiss the legal malpractice claim against them, again claiming lack of ripeness. The defendants claimed that Lee "already obtained a $1.275 million judgment against BSB Greenwich ... in an underlying action, which fully compensates him for any damages he purports to seek in this legal malpractice claim against the defendants." The defendants also alleged that Lee had not taken action to enforce the $1.275 million judgment against BSB Greenwich, and, therefore, the injuries alleged by him merely were hypothetical. In a memorandum of decision filed September 19, 2006, Judge Jennings granted the defendants' motion to dismiss, concluding that Lee's claims were not ripe for adjudication. This appeal followed.

"The standard of review for a court's decision on a motion to...