Jason A. Czekalski v. Bruce R. Jasper, Esq. & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0400, Jason A. Czekalski v. Bruce R.
Jasper, Esq. & a., the court on March 1, 2019, issued the
following order:

The plaintiff has notified the court, by correspondence, that he will not
be filing a reply brief. Accordingly, we deem his motion for an extension of time
in which to file a reply brief to have been withdrawn. Having considered the
briefs and record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiff, Jason A. Czekalski, appeals an order of the Superior Court
(McNamara, J.) granting a motion of the defendants, Bruce R. Jasper, Esq. and
Elliot, Jasper, Auten, Shklar, and Ranson, LLP (law firm), to dismiss his
complaint for failure to state a claim upon which relief may be granted. In
reviewing an order granting a motion to dismiss, we assume the well-pleaded
allegations of fact in the complaint to be true, and draw all reasonable
inferences from those facts in the plaintiff’s favor. Estate of Mortner v.
Thompson, 170 N.H. 625, 631 (2018). We also consider documents attached to
the pleadings, documents the authenticity of which the parties do not dispute,
official public records, and documents referred to in the complaint. Ojo v.
Lorenzo, 164 N.H. 717, 721 (2013). We do not, however, credit allegations in
the complaint that are merely conclusions of law. Mortner, 170 N.H. at 631.
We then engage in a threshold inquiry that tests the facts in the complaint
against the applicable law, and determine whether the allegations are
reasonably susceptible of a construction that would permit recovery. Id.

The plaintiff was convicted in 2014 on three charges of aggravated
felonious sexual assault and one charge of felonious sexual assault. He was
sentenced to consecutive stand-committed prison terms of ten to twenty years
on each of the charges. We upheld the plaintiff’s convictions following his
appeal from them. See State v. Czekalski, 169 N.H. 732 (2017).

On October 3, 2017, Jasper, an attorney, was appointed to represent the
plaintiff before the Sentence Review Division of the Superior Court. On
January 30, 2018, the division scheduled a sentence review hearing for May
18, 2018. In his complaint, the plaintiff alleged that he had written Jasper six
letters that had gone unanswered from October 2017 until February 12, 2018,
after he had already alerted the trial court to Jasper’s non-responsiveness. He
asserted that Jasper’s failure to respond to him and “refus[al] to take action to
prepare for [the plaintiff’s] case” breached a duty of professional care, and that
he “will suffer actual harm . . . because [the plaintiff] will either be unprepared
for his Sentence Review Hearing, or face a prejudicial delay in Sentence Review
due to the need for new counsel.” He further asserted that the law firm was
responsible for supervising Jasper, that the law firm failed to supervise Jasper,
and that the law firm was liable for his alleged harm under a theory of
respondeat superior. After the plaintiff had filed the complaint, new counsel
was appointed to represent him in connection with the sentence review
hearing, and the sentence review hearing was continued until October 2018.

The trial court granted the defendants’ motion to dismiss “for the reasons
stated in [the memorandum filed in support of the motion]. Plaintiff has not
set forth the elements of a legal malpractice claim.” In denying the plaintiff’s
motion to reconsider, the court expounded upon its rationale, reasoning:

[I]t cannot be determined whether the Plaintiff has suffered any
prejudice until the Sentence Review hearing is held; he is serving a
sentence of 40 to 80 years at the New Hampshire State Prison, and
in order to show damage from Jasper’s conduct, he would need to
show that Jasper’s conduct resulted in a failure to obtain release
earlier than his 40 year minimum. In substance, Plaintiff is
bringing [an] anticipatory legal malpractice claim based upon what
might happen at the Sentence Review proceedings. Obviously,
such a claim is not ripe.1

Although framed in terms of “ripeness,” we construe this portion of the trial
court’s order as effectively ruling that the plaintiff had not alleged sufficient
facts to establish that the alleged malpractice caused him to suffer
compensable harm. See In the Matter of Salesky & Salesky, 157 N.H. 698, 702
(2008) (interpretation of trial court order is a question of law, which we review
de novo). The trial court additionally reasoned that, under Mahoney v.
Shaheen, Cappiello, Stein & Gordon, P.A., 143 N.H. 491, 495-96 (1999), the
plaintiff could not recover damages because he could not establish his actual
innocence of the underlying crimes, and that the exception to Mahoney
articulated in Hilario v. Reardon, 158 N.H. 56, 66-67 (2008), did not apply.

On appeal, the plaintiff argues that, because he alleged that he either
would be unprepared for the sentence review hearing or it would be delayed,
and because the hearing in fact was delayed, he had pleaded “a definable, non-
speculative harm”; namely, the delay itself. Thus, he asserts that the case is
“ripe for adjudication.” He further argues that the case fits within the
parameters of Hilario because he is not challenging his defense counsel’s trial

1 We note that, in his objection to the motion to dismiss, the plaintiff asserted that, because

one of the four convictions for which he received consecutive stand-committed sentences of ten
to twenty years was vacated, his aggregate sentence is now thirty to sixty years, and not forty
to eighty years.

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strategy. Assuming, without deciding, that the plaintiff was not required to
prove actual innocence, we agree with the trial court that he did not plead
sufficient facts to establish that the alleged malpractice caused him harm.

To state a claim for legal malpractice, the plaintiff was required to plead
facts that, when construed in his favor, establish that Jasper’s alleged non-
responsiveness and failure to prepare the plaintiff for the sentence review
hearing caused him to suffer damages. See Witte v. Desmarais, 136 N.H. 178,
185 (1992) (upholding dismissal of legal malpractice claim for counsel’s failure
to procure court approval of a motion for a special marital master because
plaintiff failed to “postulate any harm” that resulted). The mere fact that the
sentence review hearing was delayed does not, alone, establish that the plaintiff
suffered or will suffer compensable damages as a result. Cf. Mahoney v. Town
of Canterbury, 150 N.H. 148, 154 (2003) (stating that wrongfully-enjoined
party was entitled to recover only those damages resulting from delay caused
by the injunction, and not costs or expenses that the party would have
incurred regardless of the delay). The complaint is simply devoid of any factual
allegations that, when construed in the plaintiff’s favor, support a finding that
the continuance will cause him to suffer any harm that he otherwise would not
have suffered had the hearing gone forward on May 18, 2018.

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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