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Dubinsky v. Reich

Court of Appeals of Connecticut

January 15, 2019

DAVID DUBINSKY
v.
VERONICA REICH

          Argued October 24, 2018

         Procedural History

         Action to recover damages for, inter alia, legal malpractice, and for other relief, brought to the Superior Court in the judicial district of Fairfield, where the court, Radcliffe, J., granted the plaintiff's motion to cite in Bai, Pollack, Blueweiss & Mulcahey, P.C., as a party defendant; thereafter, the court, Arnold, J., granted the defendants' motion to dismiss and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          Kenneth A. Votre, for the appellant (plaintiff).

          Michael R. Keller, with whom were Eva M. Kolstad and, on the brief, James L. Brawley, for the appellees (defendants).

          Alvord, Bright and Beach, Js.

          OPINION

          PER CURIAM.

         The plaintiff, David Dubinsky, appeals from the judgment of the trial court granting the motion to dismiss filed by the defendants, Veronica Reich and Bai, Pollack, Blueweiss & Mulcahey, P.C. On appeal, the plaintiff claims that the court improperly concluded that the defendants were entitled to absolute immunity. We disagree and, accordingly, affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our resolution of the plaintiff's claim. Reich is an attorney with the law firm of Bai, Pollack, Blueweiss & Mulcahey, P.C. In the prior marital dissolution action between the plaintiff and his former wife; see Dubinsky v. Dubinsky, Superior Court, judicial district of Fair-field, Docket No. FA-12-4040496-S; Reich served as a court-appointed guardian ad litem for the plaintiff's minor child.

         In his operative complaint, [1] dated September 9, 2016, the plaintiff alleged that, on June 23, 2012, shortly before the dissolution proceedings commenced, he was arrested and charged with risk of injury to a child in violation of General Statutes § 53-21, assault in the third degree in violation of General Statutes § 53a-61, and disorderly conduct in violation of General Statutes § 53a-182. The plaintiff alleged that, as a result, criminal protective orders were issued by the court, which prevented him from seeing his minor child and required him to stay away from his marital home. The plaintiff alleged that, on August 30, 2012, the criminal protective orders were dismissed. The plaintiff further alleged that, on January 28, 2013, the Department of Children and Families concluded that the charges against him were not substantiated and that there was no basis for a finding of abuse or neglect of his minor child.

         The plaintiff alleged claims of legal malpractice, intentional infliction of emotional distress, and negligent infliction of emotional distress against the defendants. The plaintiff alleged that Reich ‘‘continued to hold [the criminal charges and protective orders] against the [p]laintiff, despite clear resolution in his favor.'' The plaintiff alleged that, in doing so, Reich ‘‘vindictively, intentionally and . . . recklessly'' limited the plaintiff's access to his minor child, which was contrary to the best interests of the child. Specifically, the plaintiff alleged that Reich wrongfully recommended to the court supervised visitation between the plaintiff and his minor child and recommended against the use of coparenting counseling.[2] The plaintiff claimed that Reich's actions ‘‘caused [him] to suffer severe emotional distress and anxiety in being separated from his minor son and stepdaughter, the humiliation of supervised visitation with his minor son, the emotional distress of not being able to return to [his] marital home, and the loss of reputation in the community.''

         On November 4, 2016, the defendants filed a motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction on the grounds that they were entitled to absolute immunity and that the plaintiff lacked standing to assert claims of legal malpractice. On January 12, 2017, the plaintiff filed a memorandum of law in opposition to the defendants' motion to dismiss in which he contended that the defendants were not entitled to absolute immunity and that, even if they were, they still would be liable ‘‘for the intentional actions undertaken by [Reich] that were outside the scope of her duty as a [guardian ad litem].'' The plaintiff also asserted that he had standing because he had a relationship with the defendants as a result of a retainer agreement.[3] On January 17, 2017, the court held a hearing on the motion. The court issued its memorandum of decision on April 27, 2017, granting the defendants' motion to dismiss. The court ruled that the defendants were entitled to absolute immunity and that the plaintiff lacked standing with respect to his claims of legal malpractice.[4] This appeal followed.

         The standard of review for a court's decision on a motion to dismiss is well settled. ‘‘A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . In undertaking this review, we are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.'' (Internal quotation marks omitted.) Villages, LLC v. Longhi, 166 Conn.App. 685, 698, 142 A.3d 1162, cert. denied, 323 Conn. 915, 149 A.3d 498 (2016). ‘‘[A]bsolute immunity protects a party from suit and implicates the trial court's subject matter jurisdiction . . . .'' Bruno v. Travelers Cos., 172 Conn.App. 717, 729, 161 A.3d 630 (2017).

         On appeal, the plaintiff claims that the defendants were not entitled to absolute immunity.[5] Specifically, he argues that absolute immunity does not apply when a guardian ad litem performs acts outside of the scope of her jurisdiction and that ‘‘the jurisdiction of a [guardian ad litem] in a marital dissolution [action] is limited to taking action in the best interests of the minor child.'' The plaintiff argues that Reich ‘‘went ...


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