Mendillo v. Tinley, Renehan & Dost, LLP

• Decision Date: 24 July 2018
• Docket Number: SC 19923
• Citation: 187 A.3d 1154,329 Conn. 515
• Court: Connecticut Supreme Court
• Parties: George E. MENDILLO v. TINLEY, RENEHAN & DOST, LLP, et al.

329 Conn. 515

187 A.3d 1154

George E. MENDILLO

v.TINLEY, RENEHAN & DOST, LLP, et al.

SC 19923

Supreme Court of Connecticut.

Argued May 3, 2018

Officially released July 24, 2018

George E. Mendillo, Woodbury, self-represented, with whom was John G. Manning, Waterbury, for the appellant (plaintiff).

Jeffrey J. Tinley, Waterbury, for the appellee (named defendant).

Jane R. Rosenberg, solicitor general, with whom, on the brief, was George Jepsen, attorney general, for the appellees (defendant Connecticut Appellate Court et al.).

Palmer, McDonald, Robinson, Mullins and Kahn, Js.^*

ROBINSON, J.

In this appeal, we consider whether the Superior Court has subject matter jurisdiction over a declaratory judgment action brought as a collateral attack on a judgment of the Appellate Court concerning the plaintiff, George E. Mendillo. The plaintiff appeals¹ from the judgment of the trial court dismissing his declaratory judgment action against the defendants, the law firm of Tinley, Renehan & Dost, LLP (law firm), and the Connecticut Appellate Court.² On appeal, the plaintiff, who is an attorney, claims that the trial court improperly concluded that his challenge to the Appellate Court's interpretation of rule 4.2 of the Rules of Professional Conduct³ in Sowell v. DiCara , 161 Conn. App. 102, 127 A.3d 356, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015), was barred by the doctrine of sovereign immunity. We, however, do not reach the sovereign immunity issues raised by the plaintiff because we agree with the defendants' alternative jurisdictional argument, and conclude that the plaintiff's collateral attack on Sowell in this declaratory judgment action is nonjusticiable under Valvo v. Freedom of Information Commission , 294 Conn. 534, 985 A.2d 1052 (2010). Accordingly, we affirm the judgment of the trial court.

The record reveals the following undisputed relevant facts and procedural history. The plaintiff represents Julie M. Sowell, the plaintiff in a wrongful discharge action pending in the Superior Court against her former employer, Southbury-Middlebury Youth and Family Services, Inc. (Youth Services), a Connecticut nonstock, nonprofit corporation that had been dissolved, Deirdre H. DiCara, its executive director, and Mary Jane McClay, the chairperson of its board of directors. See Sowell v. DiCara , Superior Court, judicial district of Waterbury, Docket No. CV-12-6016087-S (Sowell action). On September 6, 2012, the law firm filed an appearance in the Sowell action on behalf of Youth Services, McClay, and DiCara. At a hearing held on December 12, 2013, the trial court, Hon. Barbara J. Sheedy , judge trial referee, granted Youth Services' motion for an emergency protective order (protective order) on the basis of the court's finding that the plaintiff had violated rule 4.2 of the Rules of Professional Conduct by communicating directly with certain "putative" members of Youth Services' board of directors regarding the merits of a counterclaim that counsel for Youth Services had filed against Sowell at McClay's direction.⁴ Although Judge Sheedy did not order any sanctions against the plaintiff, the protective order enjoined him from further contact of any kind with members of Youth Services' board of directors without prior permission from the law firm. See Sowell v. DiCara , supra, 161 Conn. App. at 107, 118, 127 A.3d 356.

The plaintiff filed a writ of error in this court challenging the basis for the protective order (first writ), which was subsequently transferred to the Appellate Court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Id., at 119, 127 A.3d 356. In the first writ, the plaintiff claimed that Judge Sheedy had (1) improperly found clear and convincing evidence that he had violated rule 4.2 of the Rules of Professional Conduct, and (2) violated his state and federal constitutional rights to due process and abused its discretion by refusing to permit him to present evidence at the hearing on the motion for a protective order. Id. The Appellate Court issued a comprehensive opinion rejecting the plaintiff's challenges to the basis for the protective order, namely, the finding that he had violated rule 4.2, and rendered judgment dismissing the first writ.⁵ Id., at 133, 127 A.3d 356. This court subsequently denied the plaintiff's petition for certification to appeal in an order dated December 16, 2015; see Sowell v. DiCara , 320 Conn. 909, 128 A.3d 953 (2015) ; and later denied the plaintiff's motion for reconsideration of that denial.

Subsequently, on February 4, 2016, the plaintiff filed a writ of error in this court challenging the Appellate Court's actions (second writ). This court dismissed the second writ on May 25, 2016, and denied the plaintiff's motion for reconsideration en banc of that dismissal on June 27, 2016.

On October 3, 2016, the plaintiff filed the present action in the Superior Court seeking a declaratory judgment pursuant to General Statutes § 52-29 and 42 U.S.C. § 1983 (2012). In the first count of the declaratory judgment complaint, the plaintiff claimed that there is substantial uncertainty with respect to the scope, meaning, and applicability of rule 4.2 of the Rules of Professional Conduct affecting his legal rights and relations with other parties. In the second count, the plaintiff claimed that the Appellate Court exceeded its constitutional authority and violated his constitutional rights by finding facts from evidence beyond the trial court record, namely, the existence of an attorney-client relationship between the law firm and Youth Services, which he was not given the opportunity to rebut or explain. In the third count, the plaintiff sought a declaration pursuant to 42 U.S.C. § 1983 that rule 4.2 is unconstitutional under the due process and equal protection clauses as applied to the facts of this case. In the fourth count, the plaintiff claimed that the Appellate Court had violated his free speech rights under the state and federal constitutions because his speech was a reasonable remedial measure under rule 3.3 (b) of the Rules of Professional Conduct to address fraud and a matter of public importance. In the fifth count, the plaintiff claimed that the Appellate Court's construction of rule 4.2 was a due process violation because it amounted to an ex post facto law. In the sixth count, the plaintiff claimed a violation of his right to equal protection of the laws.

The defendants moved to dismiss the declaratory judgment complaint, claiming that the plaintiff's claims are nonjusticiable and barred by the doctrine of sovereign immunity. The trial court, Schuman, J. ,⁶ granted the motion to dismiss, concluding that General Statutes § 51-197f⁷ precluded further review of the Appellate Court's decision in Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356, except by this court following a petition for certification. The trial court further concluded that the claims against the Appellate Court were barred by sovereign immunity. Concluding that it lacked subject matter jurisdiction, the trial court granted the defendants' motion to dismiss and rendered judgment accordingly. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly concluded that the existence of binding precedent, namely, the decision of the Appellate Court in Sowell v. DiCara , supra, 161 Conn. App. at 102, 127 A.3d 356, operated to deprive the trial court of jurisdiction because the constitutional issues did not arise until after the Appellate Court rendered that decision. The plaintiff also argues that he has standing to seek a declaratory judgment under § 52-29 because the Appellate Court's decision in Sowell "has caused a continuing injury to his reputation and professional standing and the unconstitutional application of rule 4.2 [of the Rules of Professional Conduct] by the Appellate Court poses an immediate threat of further injury in the future." The plaintiff then contends in detail that the trial court improperly determined that sovereign immunity and judicial immunity barred his claim for declaratory relief under § 52-29 and 42 U.S.C. § 1983.⁸

In response, the defendants contend, inter alia, that the trial court properly dismissed the plaintiff's claims because they are not justiciable, relying specifically on Valvo v. Freedom of Information Commission , supra, 294 Conn. at 534, 985 A.2d 1052, to argue that no practical relief is available because a trial court lacks the authority to reverse the rulings of another court in a separate case, and particularly those of the Appellate Court, which are binding precedent. The defendants contend that the sole avenue of relief available to the plaintiff was his petition for certification to appeal from the judgment of the Appellate Court to this court pursuant to § 51-197f. The defendants emphasize that the plaintiff's complaint did not allege any facts to establish the existence of a "dispute separate and distinct from his desire to overturn Sowell ," such as a new threat of discipline under rule 4.2 of the Rules of Professional Conduct or a new situation in which he might commit a similar violation of rule 4.2. We agree with the defendants and conclude that the trial court lacked subject matter jurisdiction over this declaratory judgment action because the plaintiff's claims are not justiciable.

"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.... In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court must consider the allegations of the complaint in their most favorable light ... including those facts necessarily implied from the allegations ...." (Citations omitted; internal quotation marks omitted.) Giannoni v. Commissioner of Transportation , 322 Conn. 344, 349, 141 A.3d 784 (2016) ; see id., at 349–50, 141 A.3d 784 (discussing...