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*********************************************** 
DAVID TAYLOR v. ANTHONY WALLACE

(AC 40362)

Alvord, Keller and Beach, Js.

Syllabus

The plaintiff, who was incarcerated following his conviction of murder,

commenced the present action seeking money damages for alleged legal

malpractice by the defendant attorney, who previously had represented

the plaintiff with respect to a consolidated habeas action brought by

the plaintiff concerning his murder conviction. The plaintiff alleged that

the defendant provided deficient representation and used the plaintiff’s

name and circumstance to commit fraud against the state. The trial

court granted the defendant’s motion to dismiss and rendered judgment

of dismissal, concluding that the defendant was entitled to immunity

pursuant to statute (§ 4-165) as to the legal malpractice claim and that

the plaintiff did not have standing to pursue his fraud claim. On the

plaintiff’s appeal to this court, held:

1. The plaintiff could not prevail on his claim that the trial court improperly

dismissed the complaint on the ground that the defendant was entitled

to immunity under § 4-165, which was based on his claim that the defendant was not entitled to immunity because his actions were egregious

and reckless, and performed outside the scope of his employment; pursuant to Heck v. Humphrey (512 U.S. 477), the United States Supreme

Court held that if success in a tort action would necessarily imply

the invalidity of a conviction, the action must be dismissed unless the

underlying conviction has been invalidated, and because the plaintiff

here has been convicted and that conviction has withstood a number

of attacks and has never been invalidated, the plaintiff’s claim was not

ripe for adjudication, and, therefore, this court did not reach the issue

of immunity.

2. The plaintiff could not prevail on his claim that the trial court erred in

concluding that he lacked standing to pursue his claim that, because of

the defendant’s malpractice, the defendant committed fraud against the

state and, indirectly against the plaintiff, causing the plaintiff injury; the

plaintiff’s claim that he was injured as a result of the defendant’s purported fraud on the state was unavailing because the plaintiff did not

claim that he himself was defrauded, only that he was an unwitting

and unwilling participant, and because the entirety of his claim was

derivative of any injury the state may have suffered, the plaintiff was

not classically aggrieved and lacked standing to pursue his fraud claim.

3. The plaintiff’s claim that the trial court improperly denied his motion for

reargument was unavailing; this court having rejected the plaintiff’s

claim that the trial court erred in dismissing his case for lack of subject

matter jurisdiction, there was no basis on which to find that the trial

court abused its discretion in denying his motion to reargue.

Argued April 19—officially released August 7, 2018

Procedural History

Action seeking to recover damages as a result of

the defendant’s alleged legal malpractice, and for other

relief, brought to the Superior Court in the judicial district of Tolland, where the court, Bright, J., granted the

defendant’s motion to dismiss and rendered judgment

thereon, from which the plaintiff appealed to this

court. Affirmed.

David P. Taylor, self-represented, the appellant

(plaintiff).

Stephen R. Finucane, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney gen-
eral, Jane R. Rosenberg, solicitor general, and Terrence

M. O’Neill, assistant attorney general, for the appellee (defendant).
Opinion

BEACH, J. The plaintiff, David Taylor, appeals from

the judgment of the trial court dismissing his one count

complaint sounding in legal malpractice against the

defendant, Anthony Wallace. On appeal, the plaintiff

claims that the trial court erred in (1) dismissing the

complaint; (2) concluding that the plaintiff lacked

standing to assert his claim of fraud; and (3) denying

the plaintiff’s motion for reargument. The defendant

claims that the action was not ripe because the underlying conviction had not been vacated. We affirm the

judgment.

The following facts and procedural history are pertinent to our decision. In a previous criminal case, the

plaintiff pleaded guilty to murder under the Alford doctrine1 on September 12, 2001, and was sentenced to

twenty-five years imprisonment.2

In the following years,

he has brought at least twelve petitions seeking posttrial

relief and has included as grounds for the relief claims

of ineffective assistance of counsel.3 The defendant was

appointed to represent the plaintiff in one of the habeas

proceedings; the representation occurred between February 16, 2011, and January 28, 2014.

In his present complaint alleging legal malpractice,

dated April 18, 2016, the plaintiff alleged that the defendant provided deficient representation and used the

plaintiff’s name and circumstance to commit fraud

against the state. On June 8, 2016, the defendant moved

to dismiss the complaint on the basis that the plaintiff’s

claims were barred by statutory immunity. At oral argument on the motion, the defendant claimed additionally

that the plaintiff lacked standing to claim that the defendant had defrauded the state. After oral argument, the

court granted the motion to dismiss, concluding that

the defendant was entitled to statutory immunity as to

the plaintiff’s legal malpractice claim. The court also

addressed the plaintiff’s claim that the defendant committed fraud against the state, and concluded that the

plaintiff did not have standing to pursue that claim.

This appeal followed. Additional facts will be set forth

as necessary.

We begin with generally applicable legal principles.

‘‘[In reviewing] the trial court’s decision to grant a

motion to dismiss, we take the facts to be those alleged

in the complaint, including those facts necessarily

implied from the allegations, construing them in a manner most favorable to the pleader. . . . [A] motion to

dismiss admits all facts well pleaded and invokes any

record that accompanies the motion, including supporting affidavits that contain undisputed facts.’’ (Citation

omitted; internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 108, 967 A.2d 495 (2009).

‘‘A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary

and we must decide whether its conclusions are legally

and logically correct and find support in the facts that

appear in the record. . . .

‘‘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 requirement of subject matter jurisdiction cannot be waived by any party and can be raised

at any stage in the proceedings.’’ (Internal quotation

marks omitted.) Fort Trumbull Conservancy, LLC v.

New London, 265 Conn. 423, 429–30, 829 A.2d 801

(2003).

I

The plaintiff’s first claim on appeal is that the trial

court erred in dismissing the complaint on the ground

that the defendant was entitled to statutory immunity

pursuant to General Statutes § 4-165. Specifically, he

claims that the defendant is not entitled to immunity

because ‘‘some of the defendant’s actions were not only

egregious, wanton and reckless, but were also performed outside the scope of his employment.’’ The

defendant maintains that the court properly decided

the immunity issue in favor of the defendant but also

counters, for the first time on appeal, that the plaintiff’s

claim is not ripe for judicial review because the allegations in his complaint, if true, undermine or imply the

invalidity of the plaintiff’s criminal conviction, which

has never been invalidated. We agree with the defendant

that the controversy is not ripe, and do not reach the

issue of immunity.

‘‘[J]usticiability comprises several related doctrines

. . . [including ripeness]. . . . A case that is nonjusticiable must be dismissed for lack of subject matter

jurisdiction. . . . [B]ecause an issue regarding justiciability 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.’’ (Citation omitted; internal quotation

marks omitted.) Janulawicz v. Commissioner of Correction, 310 Conn. 265, 270–71, 77 A.3d 113 (2013).

‘‘In general, the plaintiff in an attorney malpractice

action 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 attorney’s

professional negligence caused injury to the plaintiff

by presenting evidence of what would have happened

in the underlying action had the defendant not been

negligent.’’ (Citations omitted; internal quotation marks

omitted.) Lee v. Harlow, Adams & Friedman, P.C., 116

Conn. App. 289, 297, 975 A.2d 715 (2009).

An issue of subject matter jurisdiction may be raised

at any time, even at the appellate level. See Fort Trumbull Conservancy, LLC v. New London, supra, 265

Conn. 430. In this instance, the defendant raised the

issue of jurisdiction in his brief to this court. The plaintiff did not file a reply brief. At oral argument, he forthrightly conceded several times that he could not meet

the standard set forth in Heck v. Humphrey, 512 U.S.

477, 486–87, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).

In the present case, the plaintiff remains incarcerated

as a result of his conviction of murder in 2001. He has

filed multiple habeas petitions; the defendant represented him in a consolidated habeas action between

2011 and 2014. Despite multiple attempts, the plaintiff

has not invalidated his conviction, and, at the time of

argument before this court, at least one habeas action

alleging that the defendant provided ineffective assistance as habeas counsel was pending. See Taylor v.

Warden, Superior Court, judicial district of Tolland,

Docket No. CV-14-4006607-S.

In his brief, the defendant asserts that the case should

be dismissed for lack of ripeness. Relying to a degree

on Heck v. Humphrey, supra, 512 U.S. 486–87, the defendant suggests that this case is not ripe for adjudication

because (1) a habeas corpus action is pending, and

sound policy considerations militate against the possibility of inconsistent resolutions arising out of the same

transaction; (2) the injury resulting from alleged professional negligence in this instance is incarceration,4 and,

as the plaintiff remains validly incarcerated in any

event, any consideration of damages would invoke a

hypothetical inquiry; and (3) the holding of Heck v.

Humphrey, supra, 512 U.S. 477, should be adopted by

this court. We agree.

We begin by examining Heck. There, a prisoner

brought an action pursuant to 42 U.S.C. § 1983 alleging

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 conviction, 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 remedies, on pain

of dismissal if he fails to do so.’’ (Footnote omitted;

internal quotation marks omitted.) 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 convictions. Id., 484–85.

The court concluded ‘‘that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, 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 cognizable 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 necessarily imply the invalidity of this conviction or sentence; if it would, the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction

or sentence has already been invalidated.’’ (Emphasis

altered; footnote omitted.) Id., 486–87. The court noted

that the injury of being convicted and imprisoned is

not compensable under § 1983 unless the conviction

has been overturned. Id., 487 n.7.

We agree with the policy enunciated in Heck: 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.

Although the issue has not been addressed by an appellate court in this jurisdiction, Heck has been followed in

Superior Court decisions. See, e.g., Tierinni v. Coffin,

Superior Court, judicial district of Tolland, Docket No.

CV-14-5005868-S (May 21, 2015) (60 Conn. L. Rptr. 450);

see also Alston v. Sullivan, Superior Court, judicial

district of New Haven, CV-16-5036474-S (September

29, 2016).

The rationale in Heck is similar to other limitations

in our tort law. Malicious prosecution, of course,

requires as an element a favorable outcome of the
underlying prosecution. Lopes v. Farmer, 286 Conn.

384, 389, 944 A.2d 921 (2008), citing Heck v. Humphrey,

supra, 512 U.S. 477. A tort case is not ripe for adjudication if resolution of an unresolved underlying case is

necessary for reliable adjudication. See, e.g., Esposito v.

Specyalski, 268 Conn. 336, 348–49, 844 A.2d 211 (2004).

Principles of issue preclusion bar collateral attack on

a judgment. See, e.g., Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 343–45, 15

A.3d 601 (2011).

In Tierinni v. Coffin, supra, 60 Conn. L. Rptr. 450, the

Superior Court 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.

In the present case, 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 conviction5 may not be maintained.

II

The plaintiff next claims that the trial court erred in

concluding that the plaintiff lacked standing to pursue

his claim that, because of his malpractice, the defendant

committed fraud against the state and, indirectly,

against the plaintiff. The habeas court concluded from

the complaint that any fraud the defendant may have

committed was against the state, not the plaintiff. The

plaintiff argues that this conclusion is incorrect because

the defendant used ‘‘the plaintiff’s case and name to

commit a criminal act, forcing him to become an unwitting and unwilling participant,’’ such that injury to him

was distinct from injury to the state.6

‘‘Standing is not a technical rule intended to keep

aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to

ensure that courts and parties are not vexed by suits

brought to vindicate nonjusticiable interests and that

judicial decisions which may affect the rights of others

are forged in hot controversy, with each view fairly and

vigorously represented. . . . These two objectives are

ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered

or is likely to suffer, in an individual or representative

capacity. Such a personal stake in the outcome of the

controversy . . . provides the requisite assurance of

concrete adverseness and diligent advocacy. . . . The

requirement of directness between the injuries claimed

by the plaintiff and the conduct of the defendant also

is expressed, in our standing jurisprudence, by the focus

on whether the plaintiff is the proper party to assert

the claim at issue. . . .

‘‘Two broad yet distinct categories of aggrievement

exist, classical and statutory. . . . Classical

aggrievement requires a two part showing. First, a party

must demonstrate a specific, personal and legal interest

in the subject matter of the [controversy], as opposed

to a general interest that all members of the community

share. . . . Second, the party must also show that the

[alleged conduct] has specially and injuriously affected

that specific personal or legal interest. . . .

‘‘Statutory aggrievement exists by legislative fiat, not

by judicial analysis of the particular facts of the case.

In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim

injury to an interest protected by that legislation.’’

(Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, supra, 265 Conn. 430–31.

The plaintiff’s argument that he was injured as a result

of the defendant’s purported fraud is unavailing because

the plaintiff does not claim that he himself was

defrauded, only that he was ‘‘an unwitting and unwilling

participant.’’ Therefore, the entirety of his claim is derivative of any injury the state may have suffered. The

plaintiff is not classically aggrieved and, therefore, lacks

standing to pursue his fraud claim.7 See Scarfo v. Snow,

168 Conn. App. 482, 497, 146 A.3d 1006 (2016) (‘‘[i]f the

injuries claimed by the plaintiff are remote, indirect or

derivative with respect to the defendant’s conduct, the

plaintiff is not the proper party to assert them and lacks

standing to do so’’ [internal quotation marks omitted]).

III

Finally, the plaintiff claims that the trial court erred

in denying the plaintiff’s motion for reargument. We

review a court’s denial of a motion to reargue for an

abuse of discretion. Roe # 1 v. Boy Scouts of America

Corp., 147 Conn. App. 622, 647, 84 A.3d 443 (2014).

Because we reject the plaintiff’s claims that the trial

court erred in dismissing his case for lack of subject

matter jurisdiction, there is no basis on which to find

an abuse of discretion. The plaintiff’s claim, therefore, fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1 See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d

162 (1970).
2 For a more complete exposition of the facts leading to the plaintiff’s

imprisonment, see generally Taylor v. Commissioner of Correction, 284

Conn. 433, 936 A.2d 611 (2007).

3 See, e.g., Taylor v. Warden, Superior Court, judicial district of Tolland,

Docket No. CV-14-4006607-S; Taylor v. Warden, Superior Court, judicial

district of Tolland, Docket No. CV-12-4004709-S (January 23, 2014), appeal

dismissed, Appellate Court, Docket No. 36585 (October 21, 2015).

4 The plaintiff claims in his complaint that his tort damages include ‘‘mental

anguish and torment’’; he does not expressly seek release from incarceration

in this action. Similarly, he does not specifically allege incarceration as the

injury arising from the defendant’s alleged failure to meet the standard of

care. We do not see any reasonable scenario of recovery, however, that

does not necessarily undermine the validity of the conviction.

5 The plaintiff insists that he is not attacking the conviction, but is merely

seeking monetary damages. One 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 conviction first be vacated.

Put differently, a court could not provide practical relief in the current

posture. If the malpractice action were to be pursued, recovery for the injury

would be barred as a collateral attack on a judgment. The action would be

hypothetical, and thus nonjusticiable. See Janulawicz v. Commissioner of

Correction, supra, 310 Conn. 270–71.

6 The plaintiff also argues that, as a third-party beneficiary of the defendant’s contract with the state to serve as assigned habeas counsel, the

plaintiff had ‘‘a specific, personal and legal interest in that agreement.’’ The

plaintiff did not raise a breach of contract claim, either directly or as a

third-party beneficiary, in his complaint. Because we conclude that the

plaintiff’s claimed injuries are at most derivative of the alleged injuries to

the state, we need not consider this argument.

7 The plaintiff also argues that he is statutorily aggrieved but points to no

statute that would provide standing.