Argued
May 21, 2018
Procedural
History
Action
to recover damages sustained as a result of the
defendant's alleged legal malpractice, and for other
relief, brought to the Superior Court in the judicial
district of Bridgeport, where the court, Krumeich,
J., granted the defendant's motion for summary
judgment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
John
R. Williams, for the appellant (plaintiff).
Bridgitte E. Mott, with whom, on the brief, was Thomas P.
O'Dea, Jr., for the appellee (defendant).
Elgo,
Bright and Mihalakos, Js.
OPINION
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 ...