Dubinsky v. Black, AC 40203

• Citation: 185 Conn.App. 53,196 A.3d 870
• Decision Date: 25 September 2018
• Docket Number: AC 40203
• Court: Appellate Court of Connecticut
• Parties: David DUBINSKY v. Kevin M. BLACK

185 Conn.App. 53

196 A.3d 870

David DUBINSKY

v.Kevin M. BLACK

AC 40203

Appellate Court of Connecticut.

Argued May 21, 2018

Officially released September 25, 2018

John R. Williams, New Haven, for the appellant (plaintiff).

Bridgitte E. Mott, Stamford, with whom, on the brief, was Thomas P. O'Dea, Jr., for the appellee (defendant).

Elgo, Bright and Mihalakos, Js.

ELGO, J.

The plaintiff, David Dubinsky, appeals from the summary judgment rendered in favor of the defendant, Kevin M. Black, in this legal malpractice action predicated on the defendant's alleged failure to advise the plaintiff that his acceptance of a plea offer in a criminal proceeding would preclude him from subsequently pursuing an action for malicious prosecution. In rendering summary judgment, the court concluded, as a matter of law, that the plaintiff could not prevail on such an action, as probable cause existed to charge him with the crime of risk of injury to a child in violation of General Statutes § 53-21. The plaintiff now challenges the propriety of that determination. We affirm the judgment of the trial court.

Mindful of the procedural posture of the case, we set forth the following facts as gleaned from the pleadings, affidavits and other proof submitted, viewed in a light most favorable to the plaintiff. See Martinelli v. Fusi , 290 Conn. 347, 350, 963 A.2d 640 (2009). On the morning of Saturday, June 23, 2012, officers from the Fairfield Police Department (department) responded to a 911 call from the plaintiff's then wife, Miriam Dubinsky,¹ regarding an incident at their home in which the plaintiff shoved her onto a bed and repeatedly struck their minor son, Jake, with a belt in the presence of the plaintiff's minor stepdaughter, Abigail.² The plaintiff, at that time, was arrested and charged with one count of risk of injury to a child in violation of § 53-21, one count of assault in the third degree in violation of General Statutes § 53a-61, and three counts of disorderly conduct in violation of General Statutes § 53a-182.³

Later that day, department officials filed a request for a probable cause determination with the Superior Court. Accompanying that request were copies of the police incident report, an arrest affidavit signed by Officer John Tyler, a family violence offense report, and a written statement by Miriam regarding the incident. After reviewing those materials that evening, the court, Bellis, J ., concluded that probable cause existed and signed the request. The plaintiff was arraigned on Monday, June 25, 2012.

Following his arraignment, the plaintiff retained the services of the defendant, an attorney licensed to practice law in this state, who represented the plaintiff in connection with the aforementioned criminal charges. Plea negotiations with the state followed. The state ultimately made an offer, pursuant to which the plaintiff would enter a conditional plea of guilty to the charges of breach of peace and disorderly conduct. The plea offer further provided that, if the plaintiff complied with the terms of a protective order issued by the court and completed a family violence education program, all charges would be vacated and dismissed. The defendant encouraged the plaintiff to accept that conditional guilty plea offer and, on August 30, 2012, the plaintiff so pleaded before the court. The plaintiff thereafter complied with the terms of the plea agreement and all charges against him were dismissed.

On August 14, 2014, the plaintiff commenced the present legal malpractice action, claiming that the defendant failed to advise him that acceptance of the plea offer would preclude him from instituting a malicious prosecution action against the arresting officers.⁴ In his answer, the defendant denied the substance of that allegation. The defendant also raised the special defenses of accord and satisfaction, waiver, laches, and comparative negligence, all of which the plaintiff denied.

The defendant filed a motion for summary judgment on January 3, 2017, in which he argued that the plaintiff could not establish the causation element of his legal malpractice action. More specifically, the defendant claimed that no genuine issue of material fact existed as to whether the arresting officers possessed probable cause to institute the underlying criminal action. The defendant's motion was accompanied by seventeen exhibits, including copies of the police incident report and Miriam's signed statement to the police made on the date of the incident, transcripts from the underlying criminal proceedings, and deposition transcripts of various individuals. In opposing that motion for summary judgment, the plaintiff submitted only one exhibit—a copy of the January 28, 2013 decision, issued following an evidentiary hearing, of the administrative hearings unit of the Department of Children and Families on the issue of the plaintiff's physical neglect of Jake.⁵

The court rendered summary judgment in favor of the defendant on February 21, 2017. In its memorandum of decision, the court stated in relevant part that the plaintiff "would not have prevailed in any action alleging ... malicious prosecution ... because he could not prove want of probable cause .... Therefore, [the plaintiff] would not have been able to prove that [the defendant's] failure to advise him of the consequences of the plea agreement caused him harm when he lost his right to recover in a civil litigation for ... malicious prosecution." (Citations omitted.) From that judgment, the plaintiff now appeals.

I

As a preliminary matter, we note the well established standard that governs our review of the trial court's decision to grant summary judgment. " Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... [T]he moving party ... has the burden of showing the absence of any genuine issue as to all the material facts.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Citations omitted; internal quotation marks omitted.) Lucenti v. Laviero , 327 Conn. 764, 772–73, 176 A.3d 1 (2018).

The present action is one sounding in legal malpractice. As our Supreme Court has explained, "[i]n legal malpractice actions, the 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. This traditional method of presenting the merits of the underlying action is often called the ‘case-within-a-case.’ " Margolin v. Kleban & Samor, P.C ., 275 Conn. 765, 775 n.9, 882 A.2d 653 (2005). To prevail, "the plaintiff must prove that, in the absence of the alleged breach of duty by [his] attorney, the plaintiff would have prevailed [in] the underlying cause of action and would have been entitled to judgment." (Internal quotation marks omitted.) Bozelko v. Papastavros , 323 Conn. 275, 284, 147 A.3d 1023 (2016) ; see also Grimm v. Fox , 303 Conn. 322, 352, 33 A.3d 205 (2012) (Palmer, J ., concurring) ("[T]o prevail on his claim against the defendants, the plaintiff [must] prove not only that the defendants were negligent in their handling of his [action], but also that [the action] would have been successful if the defendants had represented him competently. In the absence of such proof, the plaintiff could not establish that his alleged damages ... were the result of the defendants' negligence ...."). Accordingly, the plaintiff in the present case bore the burden of establishing not only negligence on the part of the defendant in apprising him of the consequences of his guilty plea in the underlying criminal proceeding, but also that he would have prevailed in his malicious prosecution claim against the arresting officers. We therefore focus our attention on that cause of action.

"Malicious prosecution is a tort arising out of a criminal complaint that is intended to protect an individual's interest in freedom from unjustifiable and unreasonable litigation ...." (Internal quotation marks omitted.) Lefebvre v. Zarka , 106 Conn. App. 30, 35, 940 A.2d 911 (2008). An essential element of that action is proof that the defendant acted without probable cause; see Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP , 281 Conn. 84, 94, 912 A.2d 1019 (2007) ; as "[t]he existence of probable cause is an absolute protection against an action for malicious prosecution ...." Brodrib v. Doberstein , 107 Conn. 294, 296, 140 A. 483 (1928). Our Supreme Court has defined probable cause in this context as "the knowledge of facts sufficient to justify a reasonable [person] in the belief that he has reasonable grounds for prosecuting an action.... Mere conjecture or suspicion is insufficient.... Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable.... Although want of probable cause is negative in character, the burden is [on] the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding." (Citation omitted; internal quotation marks omitted.) Brooks v. Sweeney , 299 Conn. 196, 211, 9 A.3d 347 (2010)....