GEORGE E. MENDILLO
v.
TINLEY, RENEHAN & DOST, LLP, ET AL.
Argued
May 3 2018
Procedural
History
Action
for a judgment declaring, inter alia, that the plaintiff had
been deprived of certain constitutional rights, brought to
the Superior Court in the judicial district of Litchfield,
where the court, Schuman, J., granted the
defendants' motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed.
Affirmed.
George
E. Mendillo, self-represented, with whom was John G. Manning,
for the appellant (plaintiff).
Jeffrey J. Tinley, 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, J [*]
OPINION
ROBINSON, JUDGE
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 appeals[1]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
Conduct[3] 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. 107, 118.
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., 119. 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., 133. 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 42U.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 § 51-197f [7] precluded further review of the
Appellate Court's decision in Sowell v.DiCara, supra, 161 Conn.App. 102, 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 ...