Zamstein v. Marvasti
| Decision Date | 22 April 1997 |
| Docket Number | No. 15556,15556 |
| Citation | 240 Conn. 549,692 A.2d 781 |
| Parties | Jacob ZAMSTEIN v. Jamshid MARVASTI. |
| Court | Connecticut Supreme Court |
Joseph B. Burns, Bridgeport, with whom were Kerrie C. Dunne, Bridgeport, and, on the brief, Austin J. McGuigan, Hartford, for appellant (plaintiff).
Augustus R. Southworth III, Waterbury, with whom were Kristin C. Cunningham and, on the brief, Robert A. Cavanaugh, Jr., for appellee (defendant).
Before BORDEN, BERDON, NORCOTT, McDONALD and DUPONT, JJ.
The principal issue in this appeal is whether the defendant, a psychiatrist hired to evaluate two children to determine whether they had been sexually abused, owed a duty of care to the plaintiff, the father of the children and the suspected abuser, arising out of the defendant's conduct in performing the evaluation. The plaintiff, Jacob Zamstein, appeals 1 from the judgment of the Superior Court following the granting in part of the motion of the defendant, Jamshid Marvasti, to strike the plaintiff's complaint on the basis that the defendant owed no duty of care to the plaintiff. The plaintiff claims that the trial court improperly concluded that the defendant owed no duty of care to the plaintiff. We affirm the judgment of the trial court.
The plaintiff's complaint alleged the following relevant facts. In November, 1988, Sharon Zamstein brought an action in the Hartford Superior Court for dissolution of her marriage to the plaintiff. Sometime after initiating the dissolution proceeding, Sharon Zamstein accused the plaintiff of sexually abusing the couple's two children. In September, 1989, members of the Avon police department arrested the plaintiff on charges that he had sexually assaulted his two children, and the state's attorney for the Hartford judicial district commenced prosecution. Also in September, 1989, Sharon Zamstein retained the defendant, a psychiatrist licensed to practice in the state of Connecticut, to perform a sexual abuse evaluation of the children. The defendant met with the children on several occasions, videotaping each session. The plaintiff's complaint alleged further that in March, 1990, the defendant provided an edited version of the videotapes of his sessions with the children to the state's attorney's office and the plaintiff's criminal defense counsel. The plaintiff also alleged that the defendant had deleted exculpatory portions of the videotape before providing the tape to the state's attorney's office. On January 3, 1991, the marriage between the plaintiff and Sharon Zamstein was dissolved. The court awarded joint custody of the minor children to the plaintiff and Sharon Zamstein. The criminal trial of the plaintiff commenced in July, 1991. Following a three month trial, in which the defendant testified for the state, the plaintiff was acquitted of the criminal charges. The plaintiff alleged that the state's attorney's prosecution of the plaintiff would not have continued but for the defendant's provision of the edited videotapes.
On the basis of these facts, the plaintiff asserted six theories of recovery against the defendant. In his first, six count amended complaint, the plaintiff claimed: (1) negligence with respect to the defendant's psychiatric evaluation of the children; (2) negligence with respect to the defendant's conduct of aiding the prosecution of the plaintiff; (3) negligent infliction of emotional distress resulting from the sum of the defendant's conduct; (4) intentional interference with custodial rights; (5) a civil conspiracy; and (6) intentional infliction of emotional distress. In paragraph twenty-eight of the complaint, the plaintiff alleged further that the defendant's negligence and carelessness had caused the plaintiff's relationship with his children to be irreparably damaged.
The defendant moved to strike the plaintiff's amended complaint in its entirety. On November 29, 1994, the trial court granted the defendant's motion to strike with respect to counts one through four, and paragraph twenty-eight of the plaintiff's amended complaint, but denied the defendant's motion with respect to counts five and six. In striking counts one through three, the plaintiff's negligence claims, the court ruled that, in the absence of an allegation of some special relationship between the plaintiff and the defendant, the defendant owed no duty of care to the plaintiff. The court struck count four, alleging intentional interference with custodial rights, because the plaintiff had not alleged that his children had been abducted. The court struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium, and held that such a claim is not recognized under Connecticut law.
On December 6, 1994, the plaintiff filed a notice of intent to appeal pursuant to then Practice Book § 4002. 2 Thereafter, the plaintiff submitted four additional revised complaints, alleging once again his claims of a civil conspiracy and an intentional infliction of emotional distress. On February 6, 1996, the plaintiff moved that the court render judgment for the defendant on counts one through six. In this motion, the plaintiff represented that he intended to appeal the trial court's ruling striking counts one through four and paragraph twenty-eight of his first amended complaint. He also represented that he would withdraw the two remaining counts within twenty days of the court's granting of the motion for judgment. On February 7, 1996, the trial court rendered judgment for the defendant on the first four counts of the plaintiff's complaint, and ordered that the plaintiff withdraw the remaining counts on or before February 27, 1996, or the case would be dismissed. Thereafter, on February 16, 1996, the plaintiff filed this appeal in the Appellate Court. On February 27, 1996, the plaintiff withdrew his fifth amended complaint, which had contained the remaining claims of a civil conspiracy and of an intentional infliction of emotional distress.
At oral argument in this court, the question arose whether the plaintiff had appealed from a final judgment because the plaintiff had not withdrawn the remaining two counts of his complaint until after filing the appeal. The question had been first raised sua sponte by the Appellate Court, which requested briefs and held a hearing on the question but made no decision, pending transfer of the appeal to this court. Because this matter implicates our jurisdiction over this appeal, we address it first.
"It is axiomatic that, except insofar as the constitution bestows upon this court jurisdiction to hear certain cases ... the subject matter jurisdiction of the Appellate Court and this court is governed by statute." (Citation omitted.) Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447, 645 A.2d 978 (1994). "It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review ... appellate jurisdiction is limited to final judgments of the trial court." (Citations omitted.) Id.; see also Practice Book § 4000; State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). Practice Book § 4002C (a) provides that a judgment "that disposes of fewer than all of the causes of action in a complaint ... [but] does not dispose of all the causes of action in that pleading brought by or against a particular party or parties ... shall not constitute an appealable final judgment unless the trial court makes a written determination that the issues resolved by the judgment are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified, and the chief justice or chief judge of the court having appellate jurisdiction concurs...." 3
The defendant argues that the plaintiff has not appealed from a final judgment because the trial court's judgment only disposed of four of the six counts brought against the defendant, and the trial court did not make the written determination required by Practice Book § 4002C. He argues, on the basis of Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985), that the plaintiff's withdrawal of counts five and six after filing the appeal failed to cure the jurisdictional defect and, therefore, that the appeal must be dismissed. The plaintiff argues that the present case is factually distinguishable from Stroiney, and that the trial court's judgment did constitute a final judgment for purposes of appeal.
In Stroiney v. Crescent Lake Tax District, supra, 197 Conn. at 86 n. 3, 495 A.2d 1063, we stated that "a jurisdictional defect renders the appeal void ab initio and is, therefore, not waivable." In Stroiney, the plaintiffs brought an action seeking declaratory and injunctive relief, as well as damages, for the allegedly illegal formation of a tax district. Id., at 83, 495 A.2d 1063. After the trial court rendered summary judgment for the plaintiffs, the defendants appealed. Id. We dismissed the appeal sua sponte for lack of a final judgment because the trial court had failed to dispose of the plaintiffs' claims for an injunction and for damages. Id., at 84, 495 A.2d 1063. In reaching our decision, we reasoned that "[t]he plaintiffs have not withdrawn or abandoned their claims for relief that have not yet been adjudicated." (Emphasis added.) Id. At oral argument in Stroiney, the plaintiffs attempted to avoid the final judgment requirement by offering to withdraw their claims for injunctive relief and damages. Id., at 86 n. 3, 495 A.2d 1063. We declined the plaintiffs' offer, stating that to allow the plaintiffs, in effect, to amend their complaint by waiving any remaining claims for relief would in itself constitute an improper exercise of jurisdiction. Id.
We conclude, on the unique procedural posture of the present case, that...
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