Alexandru v. Strong

• Decision Date: 13 January 2004
• Docket Number: (AC 23895).
• Citation: 837 A.2d 875,81 Conn. App. 68
• Court: Connecticut Court of Appeals
• Parties: MICHAELA I. ALEXANDRU v. PATRICIA M. STRONG

81 Conn. App. 68

837 A.2d 875

MICHAELA I. ALEXANDRU v. PATRICIA M. STRONG

(AC 23895).

Appellate Court of Connecticut

Argued October 14, 2003.

Officially released January 13, 2004.

Foti, Bishop and McLachlan, Js. Michaela I. Alexandru, pro se, the appellant (plaintiff).

James V. Somers, with whom were Regen O'Malley and, on the brief, Thomas J. Hagarty, for the appellee (defendant).

Opinion

McLACHLAN, J.

The plaintiff, Michaela I. Alexandru, appeals from the summary judgment rendered by the trial court on each of her five claims in favor of the defendant, Patricia M. Strong, the plaintiff's former attorney. We affirm the judgment of the trial court.

This action arises out of the defendant's legal representation of the plaintiff in a federal lawsuit against the plaintiff's former employer, Northeast Utilities Service Company (Northeast Utilities), for the alleged sexually discriminatory and retaliatory treatment of the plaintiff by several of its employees. To establish the terms of their attorney-client relationship, the plaintiff and defendant entered into a retainer agreement, dated December 5, 1994, which provided, inter alia, that the defendant would represent the plaintiff in connection with "[c]laims arising from [her] employment with Northeast Utilities. . . ."

I FEDERAL ACTION

In accordance with their attorney-client relationship, the defendant, on March 14, 1995, instituted an action in the United States District Court for the District of Connecticut against Northeast Utilities, asserting both federal claims under Title VII of the Civil Rights Act of 1964 (Title VII)¹ and the Americans with Disabilities Act of 1990 (ADA),² and pendent state law claims for breach of the implied covenant of good faith and fair dealing, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress and negligent supervision.

By motion dated May 9, 1997, the defendant sought to withdraw as plaintiff's counsel, citing a deterioration of the attorney-client relationship. The District Court denied that motion and admonished the plaintiff to cooperate with the defendant. On November 13, 1997, the defendant again filed a motion to withdraw as counsel due to an irreparable deterioration of the attorney-client relationship. In connection with the second motion to withdraw, the defendant filed supporting documentation to substantiate her assertions about the declining relationship. The District Court subsequently granted the defendant's second motion to withdraw, stating that its decision was based on both the documentation filed by the defendant and the plaintiff's "representation to the court that she did not oppose the motion to withdraw and would be seeking new counsel."

That same day, the court granted Northeast Utilities' motion for partial summary judgment on the plaintiff's claims of negligent infliction of emotional distress, intentional infliction of emotional distress and negligent supervision.³ In its ruling, the court determined that the plaintiff's negligent infliction of emotional distress and negligent supervision claims were time barred by General Statutes § 52-584⁴ because they were filed more than two years after November 6, 1992, the date of the plaintiff's termination from Northeast Utilities.

The court further determined that even if the negligent infliction of emotional distress claim was not time barred, to the extent that the claim arose from events occurring during the plaintiff's employment with Northeast Utilities, the claim would also be barred by the exclusivity provision of the Workers' Compensation Act (act), General Statutes § 31-275 et seq.,⁵ which, where applicable, provides the sole means available to a plaintiff for recovery in common-law tort against an employer. See, e.g., Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). Similarly, the court determined that the exclusivity provision also barred the plaintiff's claim for intentional infliction of emotional distress.⁶

Following the court's order permitting the defendant to withdraw as counsel and its rendering of partial summary judgment in favor of Northeast Utilities, the plaintiff represented herself pro se until May 21, 1999, when the jury found in favor of Northeast Utilities on the two remaining Title VII claims. As no appeal was filed, the federal court judgment was final.

II MALPRACTICE ACTION

On November 22, 1999, the plaintiff initiated this action in five counts against the defendant in connection with the defendant's representation of her in the federal action against Northeast Utilities. The plaintiff's amended complaint alleges (1) legal malpractice (count one) and (2) breach of contract (count two), both based on the defendant's failure to assert her negligent infliction of emotional distress claim in a timely manner, resulting in the District Court's rendering of summary judgment as to that claim in favor of Northeast Utilities. The latter three counts are predicated on the defendant's withdrawal as counsel and the supporting documentation filed by the defendant. They assert that (3) the defendant's withdrawal constituted a breach of the implied covenant of good faith and fair dealing inherent in the parties' retainer agreement, (4) the documentation accompanying the second motion to withdraw contained statements that constituted an intentional infliction of emotional distress, and (5) the second motion to withdraw itself contained false and defamatory statements about the plaintiff.

On April 26, 2001, the defendant filed a motion for summary judgment on all five counts. The court, after reargument, granted the motion as to all counts. As to the plaintiff's legal malpractice claim, the court granted the motion in favor of the defendant on two grounds. The court determined first that the claim was time barred by General Statutes § 52-577⁷ because the alleged negligent act or omission had occurred more than three years prior to the filing of the present action.⁸ The court also determined that the plaintiff was unable to prove the elements of a cause of action for legal malpractice, namely, causation and damages. The court recognized that to succeed on her legal malpractice claim, the plaintiff had to demonstrate that she would have succeeded on the underlying claim of negligent infliction of emotional distress against Northeast Utilities had the defendant filed it timely. The court determined that the plaintiff was collaterally estopped from establishing that she would have succeeded on the emotional distress claim because the factual allegations underlying that claim were identical to those underlying the plaintiff's Title VII claims, which were litigated and resolved by the jury in favor of Northeast Utilities.

As to the plaintiff's breach of contract claim, the court determined that it was, in fact, a negligence claim couched in the language of contract and, thus, also was barred by the statute of limitations that precluded the plaintiff's legal malpractice claim. The court granted the motion for summary judgment on the plaintiff's claim of breach of the implied covenant of good faith and fair dealing because the plaintiff failed to offer any evidence that the defendant had acted in bad faith when she withdrew as counsel. As to the plaintiff's claims of intentional infliction of emotional distress and defamation, the court found that the comments at issue had been made to a judge in the context of a judicial proceeding and were therefore absolutely privileged. The appeal followed.

On appeal, the plaintiff asserts six claims. The first two pertain to the court's granting of the motion for summary judgment in favor of the defendant on her legal malpractice claim, and the final four claims challenge the granting of the motion for summary judgment on her remaining four claims against the defendant.⁹ We affirm the judgment of the trial court.

"The standard of review of a trial court's decision to grant a motion for summary judgment is well established. . . . Our review of the trial court's decision to grant [a] motion for summary judgment is plenary." (Citation omitted; internal quotation marks omitted.) Alexandru v. Dowd, 79 Conn. App. 434, 437, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003).

III LEGAL MALPRACTICE

The plaintiff claims that the court improperly granted the motion for summary judgment on her legal malpractice claim because (1) the applicable statute of limitations was tolled by the continuing course of conduct rule and (2) the doctrine of collateral estoppel did not preclude her from establishing that she would have succeeded on her underlying claim for negligent infliction of emotional distress. Although it appears that the plaintiff may be correct that the court did not conduct a proper analysis of the statute of limitations issue, she cannot prevail on her claim because we determine that the court was correct with respect to the issue of collateral estoppel.¹⁰

To recover on a legal malpractice claim, the plaintiff must establish: "(1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. . . . To prove causation and damages . . . the plaintiff must establish that the defendant['s] failure to file an action . . . within the statute of limitations period caused [the plaintiff] harm because [the plaintiff's action] is now time barred." (Citation omitted.) Mayer v. Biafore, Florek & O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). "An issue of causation . . . is whether the [claim] could have been pursued." 4 R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000) § 30-17, p. 495. "If the underlying [claim] was never tried, the client essentially has a double burden of proof. First, the client must show that the attorney was negligent. Second, the client must establish that the underlying claim was recoverable and collectible." Id. In other words,...