Alan Neigher v. A. Edward Ezor (2014)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Alan Neigher, is an attorney, who was admitted to the practice of law in the State of Connecticut in 1965.   He maintains an office in Westport.

The Defendant, A. Edward Ezor, is also an attorney, who resides in and practices law in the State of California.

In April of 2009, Attorney Neigher was contacted by David and Kathy Guaraldi, both of whom are residents of the State of Nevada.   They retained Attorney Neigher to represent them in connection, with monies they claimed were owed by an entity known as Concord/Fantasy/Circle Records (Concord Records).

A meeting was held in Attorney Neigher's Westport office in March of 2009.   The meeting was attended by William Gerace, an attorney with offices in Hartford, and David Guaraldi.

At that meeting, it was agreed that Neigher would organize a team, in order to negotiate with Concord Records concerning the monies which were claimed to be due and owing.   Because Concord Records is located in Berkley, California, Attorney Neigher contacted the Defendant, A. Edward Ezor, to enlist him as part of the effort to collect the monies.

A telephone call was placed to Attorney Ezor, following the meeting with David Guaraldi, and Attorney Gerace.   Neigher and Ezor had collaborated on other projects, prior to 2009.

In the operative complaint, dated June 4, 2013, it is alleged that Neigher and Gerace agreed to associate with Ezor, in order to pursue a settlement of the claim.

A two-page representation agreement, dated April 2009, was drafted by Neigher.   The agreement was to be signed by Neigher, Gerace, Ezor, and the clients, David Guaraldi and Kathy Guaraldi.

Although both Neigher and Ezor signed the agreement, the signatures of Gerace and the Guaraldis were never obtained.

The April 3, 2009 document committed the parties to pursue settlement of the claim through negotiations.   The language expressly excluded representation, in the event of litigation, by including the following:

We will not institute litigation without your express authorization, under a separate written agreement

The April 3, 2009 document, which was drafted in Connecticut, called for the payment of a non-refundable retainer of $20,000, by the clients.   It further provided that the attorneys would receive one-third of any recovery, based upon their efforts.

The non-refundable retainer was paid by the clients, and Attorney Ezor received $8,000.

Negotiations with Concord Records proved unsuccessful, and it became apparent that litigation would have to be pursued.   The Guaraldis discharged Attorney Ezor, and subsequently retained another California attorney to represent them in the litigation.   In November of 2011, Neigher entered into a new agreement with David Given, the California Attorney retained by David Guaraldi.   Also parties to the agreement were David Guaraldi's sister, Dia Guaraldi, and her attorney, Elliot Cahn.

Attorney Ezor was not a party to the November 2011 agreement.

After litigation was instituted pursuant to the second agreement, and extensive pre-trial discovery was concluded, the matter was resolved in an arbitration forum.   According to Neigher, he continued to work on the case as lead counsel, and performed work on the project while in Connecticut.   He also attended the mediation session which was held in California, in May of 2012.

According to Neigher, the matter was resolved through arbitration, and he received twenty-five percent (25%) of the attorneys fees, or $95,988.   Of that amount, he paid $17,410 to Attorney Gerace, and put aside a portion of the funds in anticipation of paying Ezor's fees which were incurred prior to the litigation.

Ezor, however, rejected Neigher's offer of payment, and brought suit in California against David and Kathy Guaraldi.   This claim was dismissed by the California Supreme Court, which held that no agreement was reached between Ezor and the Guaraldis concerning an hourly rate of pay, and that Ezor failed to comply with the California Rules of Professional Conduct, Rule 2–200, and the business and Professional Code, § 6147.

After the California Court dismissed Ezor's claim against the Guaraldis, according to the operative complaint, Ezor threatened to bring litigation against Neigher in California, for the purpose of recovering the fees he was due.   A claim in excess of $90,000 was made by Ezor.

According to Neigher, he reimbursed the Guaraldis for the cost of defending against Ezor's suit, and testified on their behalf in California.   Neigher was never made a party to the California litigation.

In this action, Neigher seeks a declaratory judgment, determining that Ezor has no claim against him for work performed pursuant to the November 2011 agreement.   He seeks a finding that Ezor's right to attorneys fees has already been decided by a California court.

Ezor seeks to dismiss this action, claiming that no action can be maintained in a Connecticut court.   He maintains that the court lacks personal jurisdiction, pursuant to § 52–59b(a) of the General Statutes.   That statute provides:

a court may exercise personal jurisdiction over any nonresident individual ․ who in person or through an agent (1) Transacts any business within the state ․

Ezor claims that at no time during his dealing with Neigher, did he transact business within the State of Connecticut.

STANDARD OF REVIEW—MOTION TO DISMISS

A motion to dismiss is the appropriate vehicle for challenging the jurisdiction of the court.  Baskin's Appeal from Probate, 194 Conn. 635, 640 (1984);  Practice Book, § 10–31.   The purpose of a motion to dismiss is to test whether, on the face of the record, the court lacks either personal jurisdiction over a party, or subject matter jurisdiction.  Upson v. State, 190 Conn. 622, 624 (1983);  Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648 (1954).

Where, as here, the Defendant is a nonresident individual, and a challenge concerning personal jurisdiction has been raised, the Plaintiff bears the burden of proving the court's jurisdiction.  Knipple v. Viking Communication, Ltd., 236 Conn. 602, 607 (1996);  Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 54 (1983).   In ruling upon whether a complaint will survive a motion to dismiss, a court must take the facts to be those alleged in the complaint, construing those facts in a manner most favorable to the pleader.  Oliphant v. Commissioner of Correction, 274 Conn. 563, 568 (2005).   However, where a motion is accompanied by affidavits containing undisputed facts, a court may look to the affidavits when determining a jurisdictional issue.  Cogswell v. American Transit, Inc. Co., 282 Conn. 505, 516 (2007);  Ferreira v. Pringle, 255 Conn. 330, 346–47 (2001).

Any question of jurisdiction over a nonresident defendant is a question of law.  Ryan v. Cerullo, 282 Conn. 109, 118 (2007).

JURISDICTION PREREQUISITES CONCERNING NONRESIDENT DEFENDANT HAVE BEEN SATISFIED

The Defendant claims that a Connecticut state court lacks personal jurisdiction over A. Edward Ezor. It is claimed that Ezor was not transacting business in the State of Connecticut, within the meaning of § 52–59b of the General Statutes.

Ezor claims that he never came to Connecticut, is not a resident of Connecticut, performed all of his legal work in California where he is a member of the bar, and does not maintain an office in Connecticut.

Therefore, he argues, he was not transacting business in Connecticut, and this court lacks personal jurisdiction over him.

When a state court attempts to exercise jurisdiction over a nonresident individual, or corporate entity, a two-step inquiry is mandated.   The court must first determine whether the particular defendant has sufficient contacts with the forum state to justify the exercise of personal jurisdiction.   Once these minimum contacts have been established, the court must determine whether the exercise of personal jurisdiction is reasonable under the circumstances.   International Shoe Co. v. Washington, 316 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

While the exercise of personal jurisdiction is favored when there has been a threshold showing of minimum contacts, jurisdiction may still be defeated, where a defendant presents a compelling case that the presence of other considerations renders the exercise of personal jurisdiction unreasonable.   Cogswell v. American Transit Ins. Co., supra, 524–25.

Recently, the Connecticut Appellate Court had occasion to determine whether a nonresident defendant, who had never physically entered the State of Connecticut, could be subject to the jurisdiction of a Connecticut court, pursuant to § 52–59b.

In The Doyle Group v. Alaskans for Cuddy, 146 Conn.App. 341 (2013), the Plaintiff, a political consulting firm based in Connecticut, contracted to perform services in connection with a political campaign in the State of Alaska.   Suit was instituted in Connecticut claiming breach of contract.

The Defendant moved to dismiss the action, claiming that he was never physically present in Connecticut, he did not sign the contract with The Doyle Group in Connecticut, he had no other business dealings in Connecticut, and owned no real or personal property located in Connecticut.

He argued that his only action concerning Connecticut, involved mailing a $10,000 check to a Connecticut address in order to retain the services of the consulting firm.

The Appellate Court held that the Defendant met the minimum contacts requirement for conducting business in Connecticut.   Since the services provided by The Doyle Group ware performed in Connecticut, the reasonableness portion of the jurisdictional test was also met.  The Doyle Group v. Alaskans for Cuddy, supra, 348.

The Connecticut Supreme Court has held, that one transacts business in Connecticut, pursuant to § 52–59b(a)(1) of the General Statutes, if he engages in a single purposeful transaction.  New London County Mutual Insurance Company v. Nantes, 303 Conn. 737, 745 (2012);  Zartolas v. Nisenfeld, 184 Conn. 471, 474–75 (1981).

In Zartolas, the defendant signed a warranty deed in the State of Iowa, concerning property located in Monroe, Connecticut.   In a suit claiming breach of contract, the court found that the defendant was transacting business in Connecticut, even though he performed only a single act, and that act was performed in Iowa. Zartolas v. Nisenfeld, supra, 474–75.

The Doyle Group opinion of the Appellate Court makes no reference to an earlier decision by the same court, Green v. Simmons, 100 Conn.App. 600 (2007).

In that case, a claim of legal malpractice was brought in Connecticut, involving lawyers based in South Carolina.   The claim was that the attorneys had failed to institute an action within the applicable Connecticut statute of limitations.

The underlying incident involved a long-haul truck driver who was a resident of South Carolina.   While making a delivery to a Sam's Club located in Manchester, Connecticut, he slipped on ice, fell, and sustained serious personal injuries.   He was treated for those injuries at a Connecticut hospital, and by physicians licensed in Connecticut.

Upon his return to South Carolina, the truck driver engaged a law firm to represent him, concerning his fall.

Despite the fact that the accident occurred in Connecticut, Connecticut law would apply to the underlying claim as the law of the forum, the truck driver had been treated for his injuries in Connecticut, and two letters of representation had been sent to Sam's Club at its Manchester address, the Appellate Court found that the two letters sent from South Carolina, were insufficient to establish minimum contacts necessary to maintain a state court action for legal malpractice in Connecticut.  Green v. Simmons, supra, 608.

In Green, the author of The Doyle Group opinion, determined that sending letters of representation from South Carolina to Connecticut, was not enough to find that the lawyers were transacting business in Connecticut.  Green v. Simmons, supra, 608.

In Green, the court relied upon the Connecticut Supreme Court decision in Rosenblit v. Danaher, 206 Conn. 125, 140–41 (1988), where the presence of a Massachusetts resident in Connecticut for purposes of attending a single meeting concerning a Massachusetts project, was not sufficient to support a finding that he was transacting business in Connecticut.

Here, the Plaintiff, Alan Neigher, is a resident of Connecticut, is admitted to the Connecticut Bar, and maintains a law office in Westport, Connecticut.

In March of 2009, a meeting was held at Neigher's Westport office, involving David Guaraldi, and Hartford attorney William Gerace.

The client, David Guaraldi, had never met Attorney A. Edward Ezor. At the meeting in Westport, Neigher suggested that Ezor be contacted, since Concord Records was based in California.

Neigher drafted a representation agreement in Connecticut, which both he and Ezor signed.   When litigation proved necessary, another agreement, to which Neigher was a party, was signed with a California litigation specialist.

Neigher continued to perform work in Connecticut, and to conduct research, during the course of the negotiations and litigation in California.   He had numerous contacts with Ezor during the course of the negotiations with Concord Records.

When Ezor brought suit in California against Guaraldi, Neigher flew to California and testified.   Although he was present in the jurisdiction, Neigher was never made a party to the California action.

As was the case in The Doyle Group, work was performed in Connecticut, concerning a project which was taking place in another state.

It must be acknowledged, that no fixed or rigid formula may be employed, when determining personal jurisdiction over a nonresident defendant.   The nature of the inquiry mandates a case by case analysis.  Cogswell v. American Transit Ins. Co., supra, 516.

An analysis of all of the facts and circumstances presented here justifies a finding that the Plaintiff has demonstrated that the court has jurisdiction over the nonresident Defendant, A. Edward Ezor.

Therefore, the Defendant's motion to dismiss is DENIED.

RADCLIFFE, J.

Radcliffe, Dale W., J.