Carrubba v. Moskowitz, No. 17157.

877 A.2d 773

274 Conn. 533

Paul CARRUBBA et al. v. Emily J. MOSKOWITZ.

No. 17157.

Supreme Court of Connecticut.

Argued January 12, 2005.

Decided July 26, 2005.

George W. Kramer, for the appellants (plaintiffs).

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

BORDEN, NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

BORDEN, J.

The named plaintiff, Paul Carrubba, acting individually and as parent and next friend of his minor son, Matthew Carrubba,¹ appeals, following our grant of certification, ² from the judgment of the Appellate Court affirming the trial court's judgment granting the motion to dismiss of the defendant, Emily J. Moskowitz. The plaintiff claims that the Appellate Court improperly concluded that: (1) the defendant, who had been appointed by the trial court pursuant to General Statutes § 46b-54³ to represent the plaintiff's minor children in a prior marital dissolution action, was entitled to qualified, quasi-judicial immunity in the action against her for intentional and negligent infliction of emotional distress; and (2) the plaintiff, acting on behalf of Matthew Carrubba as his parent and next friend, lacked standing to assert a claim of legal malpractice against the defendant. We affirm the judgment of the Appellate Court, although we reach a different conclusion regarding the scope of the immunity to which the defendant is entitled.

The Appellate Court set forth the following relevant facts and procedural history. "In the prior marital dissolution action between [the plaintiff] 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 post judgment motion, [the plaintiff] sought to disqualify the defendant.⁴ The court denied the motion. "On November 13, 2000, the [plaintiff] commenced the present action by filing a two count complaint. In the first count, the [plaintiff] claimed that the defendant intentionally or negligently had caused [the plaintiff] to suffer emotional distress. In the second count, Matthew Carrubba, through his father and next friend, [the plaintiff], alleged legal malpractice against the defendant. 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 [plaintiff's] motion to reargue." Carrubba v. Moskowitz, 81 Conn.App. 382, 384-85, 840 A.2d 557 (2004). Additional facts will be set forth as necessary.

The plaintiff then appealed to the Appellate Court, which affirmed the judgment of the trial court. Id., at 384, 840 A.2d 557. The Appellate Court concluded that, as to the first count, the defendant was entitled to qualified, quasi-judicial immunity; id., at 385, 840 A.2d 557; and, as to the second count, that the plaintiff lacked standing to sue on behalf of his son. Id., at 401, 840 A.2d 557. This certified appeal followed.

I

The plaintiff first claims that the Appellate Court improperly concluded that the defendant, who had been appointed by the trial court to represent the minor children pursuant to § 46b-54 in the prior dissolution action, was entitled to qualified, quasi-judicial immunity. We agree with the Appellate Court that the defendant was entitled to immunity, but we disagree as to the proper scope of the immunity. We conclude that attorneys appointed by the court pursuant to § 46b-54 are entitled to absolute, quasi-judicial immunity for actions taken during or, activities necessary to, the performance of functions that are integral to the judicial process.

We first note that, in the trial court, the defendant raised the defense of immunity in her motion to dismiss. Id., at 399, 840 A.2d 557. Because the Appellate Court determined that the defendant was entitled only to qualified immunity, it also concluded that, in the future, the proper procedural vehicle through which attorneys appointed pursuant to § 46b-54 could raise immunity would be as a special defense, not through a motion to dismiss. It is unnecessary for us, however, in resolving the present case, to consider whether a motion to dismiss was the proper procedural vehicle by which to raise absolute immunity because that question is not presented in this appeal. The plaintiff waived any claim of procedural error by requesting that the trial court address the merits of the motion, despite the plaintiff's simultaneous contention that a motion to dismiss was not a proper procedural vehicle by which to raise the defense.⁵

Section 46b-54 (a) provides that "[t]he court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. . . . ." (Emphasis added.) In analyzing this statutory language, we have stated that the guiding principle governing the appointment of counsel for a minor child in a marital dissolution action is the best interests of the child. Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997). "The appointment of counsel lies firmly within the trial court's discretion in the best interests of the child.... Counsel may also be appointed `when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . .' General Statutes § 46b-54 (b). The statute further provides that `[c]ounsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.' General Statutes § 46b-54 (c). The purpose of appointing counsel for a minor child in a dissolution action is to ensure 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." (Citations omitted.) Schult v. Schult, supra, at 778, 699 A.2d 134.

We also have recognized the dual role imposed upon attorneys appointed pursuant to § 46b-54. In Schult v. Schult, supra, 241 Conn. at 776, 699 A.2d 134, for example, we concluded that, in an action for dissolution of marriage, an attorney appointed by the court pursuant to § 46b-54 may advocate for a position different from that recommended by the guardian ad litem. In our analysis, we recognized the dual responsibilities of the court-appointed attorney for a minor child both to safeguard the child's best interests and to act as an advocate for the child. Id., at 778-79, 699 A.2d 134. "As an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child's present wishes, the contrary course of action would be in the child's long term best interests, psychologically or financially." Id., at 779-80, 699 A.2d 134. The tension between these dual roles imposed upon the attorney appointed pursuant to § 46b-54 became apparent in Ireland v. Ireland, 246 Conn. 413, 438-39, 717 A.2d 676 (1998), in which we concluded that it was improper for an attorney appointed pursuant to § 46b-54 to submit an unsolicited report to the court, supported only by his personal opinion, containing a conclusion as to the proper outcome of the case. In that context, although we recognized the principle that an attorney for the child should provide "`independent representation of the child's interests,'" we concluded that, regarding the manner in which an attorney for the minor child may present information to the court, "such representation is limited to the type of representation enjoyed by unimpaired adults. In other words, the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law." Id., at 438, 717 A.2d 676. We must determine in the present case whether it is the duty of the attorney to serve the best interests of the child, or her duty to act as the child's advocate, that controls for purposes of determining whether she is entitled to immunity and, if so, what level of immunity.

Because any immunity accorded to attorneys appointed pursuant to § 46b-54 would be derived from judicial immunity, we first examine the policy reasons underlying judicial immunity.⁶ It is well established that "a judge may not be civilly sued for judicial acts he undertakes in his capacity as a judge." Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 630, 749 A.2d 630 (2000). This role of judicial immunity serves "to promote principled and fearless decision-making by removing a judge's fear that unsatisfied litigants may hound him with litigation charging malice or corruption . . . ." (Internal quotation marks omitted.) Spring v. Constantino, 168 Conn. 563, 565, 362 A.2d 871 (1975). Although we have extended judicial immunity to protect other officers in addition to judges, that extension generally has been very limited. "This fact reflects an [awareness] of the salutary effects that the threat of liability can have ... as well as the undeniable tension between official immunities and the ideal of the rule of law. . . . The protection extends only to those who are intimately involved in the judicial process, including judges, prosecutors and judges' law clerks. Absolute judicial immunity, however, does not extend to every officer of the judicial system." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., supra, at 631, 749 A.2d 630. Furthermore, even judges are not entitled to immunity for their...