Carrubba v. Moskowitz

• Decision Date: 03 February 2004
• Docket Number: (AC 22962).
• Citation: 840 A.2d 557,81 Conn. App. 382
• Court: Connecticut Court of Appeals
• Parties: PAUL CARRUBBA ET AL. v. EMILY J. MOSKOWITZ.

81 Conn. App. 382

840 A.2d 557

PAUL CARRUBBA ET AL. v. EMILY J. MOSKOWITZ.

(AC 22962).

Appellate Court of Connecticut.

Argued March 20, 2003.

Officially released February 3, 2004.

Lavery, C. J., and Schaller and Hennessy, Js. George W. Kramer, for the appellants (plaintiffs).

Robert J. Kor, for the appellee (defendant).

Opinion

SCHALLER, J.

The plaintiffs, Paul Carrubba and his minor son, Matthew Carrubba, appeal from the judgment of the trial court dismissing their action. On appeal, the plaintiffs claim that the court improperly (1) determined that the defendant, Emily J. Moskowitz, an attorney for Matthew Carrubba, was immune from suit for torts committed in her capacity as a court-appointed attorney and (2) determined that Paul Carrubba lacked standing to bring a legal malpractice claim against the defendant. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs' appeal. In the prior marital dissolution action between Paul Carrubba and his former wife, Carrubba v. Carrubba, Superior Court, judicial district of Hartford, Docket No. 541518 (September 2, 1994), the defendant served as court-appointed counsel for the minor children, Jessica Carrubba and Matthew Carrubba. The marriage was dissolved on February 11, 1997. On November 2, 1998, in a postjudgment motion, Paul Carrubba sought to disqualify the defendant.¹ The court denied the motion.

On November 13, 2000, the plaintiffs commenced the present action by filing a two count complaint. In the first count, the plaintiffs claimed that the defendant intentionally or negligently had caused Paul Carrubba to suffer emotional distress. In the second count, Matthew Carrubba, through his father and next friend, Paul Carrubba, alleged legal malpractice against the defendant.² On December 12, 2000, the defendant filed a motion to dismiss the action. The court granted the defendant's motion as to both counts and subsequently denied the plaintiffs' motion to reargue. The plaintiffs then filed the present appeal. Additional facts will be provided as necessary.

I

The plaintiffs first claim that the court improperly determined that the defendant was immune from suit for claims that, in her capacity as a court-appointed attorney for the minor, Matthew Carrubba, she had caused Paul Carrubba to suffer emotional distress. To resolve the claim, we must determine, (1) as a matter of first impression, whether attorneys appointed pursuant to General Statutes § 46b-54 are entitled to immunity, (2) the contours of that immunity and (3) the proper procedural vehicle for raising such immunity as a defense. We conclude that attorneys appointed pursuant to § 46b-54 are entitled to qualified quasi-judicial immunity, and that such immunity is properly pleaded as a special defense and the issue raised by using either a motion to strike or a motion for summary judgment.

The following additional facts are necessary for our resolution of the plaintiffs' claim. In its memorandum of decision dismissing the plaintiffs' complaint, the trial court determined that, with respect to the emotional distress count, the defendant was judicially immune from suit. The court supported that conclusion by relying on the reasoning set forth in Whitney v. Taplin, Superior Court, judicial district of Fairfield, Docket No. 339190 (May 28, 1999) (24 Conn. L. Rptr. 610) (finding that judicial immunity extends to guardians ad litem), and by analogizing the public policy reasons surrounding immunity for prosecutors to the public trust in guardians ad litem. Specifically, the trial court in the present case reasoned that, like prosecutors, guardians ad litem should be shielded from litigation to preserve the guardian's independent judgment. Significantly, the trial court went on to state that attorneys for minor children appointed under § 46b-54,³ like guardians ad litem, should be granted judicial immunity for their actions taken during the representation of a minor child.

We agree with the trial court that attorneys appointed to represent minor children, pursuant to § 46b-54, fulfill a role that is closely related to the role of a guardian ad litem appointed pursuant to General Statutes § 45a-132. Our review of the issue leads us to the conclusion that we should extend immunity to attorneys appointed pursuant to § 46b-54 under a theory of qualified quasi-judicial immunity.

A

At the outset, a brief review of the history of judicial immunity will facilitate our discussion. "The common law recognized a judicial immunity, which protected judges, jurors and grand jurors, members of courts-martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by quasi-judicial immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call qualified, rather than absolute, immunity." (Internal quotation marks omitted.) Kalina v. Fletcher, 522 U.S. 118, 132, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) (Scalia, J., concurring). In recent times, the United States Supreme Court repeatedly has recognized that it is not the judicial office, but instead the judicial function that requires protection. See Westfall v. Erwin, 484 U.S. 292, 296 n.3, 108 S. Ct. 580, 98 L. Ed. 2d 619 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 810-12, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Consequently, judicial immunity has been extended to various individuals whose adjudicatory functions or other involvement with the judicial process has been deemed to warrant protection from harassment, intimidation or other interference with impartial decision making. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) (immunity extended to state prosecutor); see also Moses v. Parwatikar, 813 F.2d 891 (8th Cir.) (immunity extended to court-appointed psychiatrist), cert. denied, 484 U.S. 832, 108 S. Ct. 108, 98 L. Ed. 2d 67 (1987). The purpose of extending immunity to persons who perform an adjudicatory function, or those who have other involvement with the judicial process, is to allow such individuals to engage in fearless decision making for the benefit of the public. See Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967).

When determining which officials perform functions that might justify an exemption from liability, the United States Supreme Court has undertaken an "inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." (Internal quotation marks omitted.) Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, 113 S. Ct. 2167, 124 L. Ed. 2d 391 (1993). We will therefore undertake a focused review of the role that attorneys for minor children play in dissolution and custody actions to determine whether the roles that they serve are "closely associated with the judicial process." Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985).

B

With the foregoing principles in mind, we now turn to the first question presented under the facts and circumstances of this case; that is, whether attorneys appointed pursuant to § 46b-54 are entitled to immunity. In dissolution actions, § 46b-54 (a) and (b) permit a court to appoint an attorney for a minor child. The underlying purpose of the appointment is to serve the best interest of the child. See General Statutes § 46b-54 (a). The appointment of counsel, therefore, lies firmly within the trial court's discretion while resting on the best interest of the child. See General Statutes § 46b-54 (c); see also Salvio v. Salvio, 186 Conn. 311, 325 n.12, 441 A.2d 190 (1982); Ridgeway v. Ridgeway, 180 Conn. 533, 540, 429 A.2d 801 (1980). The appointment ensures "independent representation of the child's interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation." Schult v. Schult, 241 Conn. 767, 778, 699 A.2d 134 (1997). Despite the appointment, the court retains broad discretion in determining what is in the child's best interest. Id., 777.

Typically, an attorney representing a minor "is just that, an attorney, arguing on behalf of his or her client. . . ." Ireland v. Ireland, 246 Conn. 413, 438, 717 A.2d 676 (1998); see also Newman v. Newman, 235 Conn. 82, 96, 663 A.2d 980 (1995). The appointment of counsel under § 46b-54, however, also implicates issues concerning the child's best interest because the attorney is appointed by the court and that appointment can be terminated at the court's discretion.⁴ That results in the creation of overlapping roles for the court-appointed attorney: (1) acting as the child's counsel and (2) acting to support the best interest of the child, similar to guardians ad litem.⁵ The hybrid nature of the attorney's role in those situations, therefore, requires that liability for improper conduct should be measured by a standard different from that applicable to traditional "counsel" for a party. A proper standard must strike a balance between protecting minors from malpractice and other injuries resulting from improper representation, and protecting the attorney against attacks concerning the attorney's proper exercise of discretion.

We now address the specific question presented, that is, whether attorneys appointed pursuant to § 46b-54 are entitled to immunity protection. Our Supreme Court's opinion in Spring v. Constantino, 168 Conn. 563, 362 A.2d 871 (1975), is instructive in determining this issue. In Spring, our Supreme Court considered whether an appointed public defender was immune from suit on the basis of judicial immunity.⁶ Id., 564. The...