Howard Gombert v. Linda K. Herzner et al. (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS

The plaintiff, Howard Gombert, filed a complaint against the defendant, Linda Herzner, who was appointed by the court as attorney for his minor child.   In his complaint, the plaintiff alleges that he has suffered loss of communication with his daughter and emotional stress as a result of the defendant's negligently filed petition for termination of his parental rights.   The plaintiff also alleges legal malpractice against the defendant for deviating from the standard of care required by attorneys who represent children, and for failing to advocate the position of the child.

On May 17, 2010, the defendant filed a motion to dismiss and memorandum of law arguing that she is entitled to absolute, quasi-judicial immunity as attorney for the minor child, and that the plaintiff lacks standing to pursue his claims against the defendant.   On June 28, 2010, the plaintiff filed a memorandum in opposition to the motion to dismiss.

Pursuant to Practice Book § 10-31, a motion to dismiss is the proper method of asserting “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process and (5) insufficiency of service of process.”  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ․ 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 ․ The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.”  State v. Marsh & McLennan Companies, 286 Conn. 454, 463-64, 944 A.2d 315 (2008).   “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ․ and the court must fully resolve it before proceeding further with the case.”  (Internal quotation marks omitted.)  Community Collaborative of Bridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245 (1997).

The plaintiff, who is a self-represented party and currently resides at Macdougal-Walker Correctional Institution, alleges that the defendant was appointed by the court to represent the plaintiff's minor child in a neglect case against the child's mother.   During the course of representation, the defendant filed a petition for termination of parental rights as to the plaintiff.¹  The plaintiff alleges that the defendant's allegations are without support and “based on the defendant's assumptions,” and that the court is being used as a vehicle to place the child in foster care.   He alleges that the defendant's negligence and her violation of the rules of professional conduct have caused him to suffer public humiliation and emotional pain and suffering due to his inability to communicate with his daughter.   The defendant argues that she is entitled to absolute, quasi-judicial immunity and cannot be sued in her capacity as the court-appointed attorney for the minor child.

In Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005), our Supreme Court held that “attorneys appointed by the court pursuant to [General Statutes] § 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.”  Id., 537.

In Carrubba, the court emphasized the importance of appointing counsel to protect the interests of children.  “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 ․ 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.”   Carrubba v. Moskowitz, supra, 274 Conn. 537, citing Schult v. Schult, supra, 241 Conn. 778.   A court-appointed attorney for a minor child maintains a dual responsibility both to safeguard the child's best interests and to act as an advocate for the child.  Carrubba v. Moskowitz, supra, 537-38.

At oral argument, the plaintiff seemed to suggest that this court should reject the defendant's claim because the proper vehicle for raising a claim of immunity is by special defense.   While the plaintiff's exact argument is unclear, this court, recognizing that the plaintiff is a self-represented party with very limited legal experience, will address the issue.   Our Supreme Court, in finding that a lawyer representing a minor child is entitled to absolute immunity, explicitly chose not to consider whether a motion to dismiss was the proper procedural vehicle by which to raise absolute immunity because the question was not presented in that appeal.  Carrubba v. Moskowitz, supra, 274 Conn. 537.   While the defendant acknowledges that this court lacks appellate guidance on this issue, she cites several subsequent trial decisions that have concluded that absolute immunity bears upon a court's subject matter jurisdiction and is properly addressed pursuant to a motion to dismiss.   See Day v. Smith, Superior Court, judicial district of New Haven, Docket No. 074027999 (February 11, 2008) (granting motion to dismiss due process and equal protection claims by inmate against state claims commissioner because commissioner entitled to absolute judicial immunity);  Coburn v. Henderson, Superior Court, judicial district of Hartford-New Britain, Docket No. 095011906 (May 19, 2009) (granting motion to dismiss claims brought by father and as next friend of minor child against attorneys for minor child because they were entitled to absolute, quasi-judicial immunity).

Neither in his operative complaint nor at oral argument has the plaintiff provided any suggestion that the defendant's conduct as attorney to his minor child falls outside the scope of the attorney-client relationship.   Rather, the plaintiff's claims suggest merely a dissatisfaction with the defendant's factual findings.   The claims presented by this plaintiff are exactly of the nature contemplated by our Supreme Court in Carrubba, when it stated that “a grant of absolute immunity is both appropriate and necessary in order to ensure that the guardian will be able to function without the worry of possible later harassment and intimidation from dissatisfied parents.”  (Citations omitted.)   Carrubba v. Moskowitz, supra, 274 Conn. 547.

The defendant also challenges the standing of Howard Gombert to bring this action individually or on behalf of his minor child.  “It is axiomatic that a party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim.”  Ganim v. Smith and Wesson Corp., 258 Conn. 313, 346, 780 A.2d 98 (2001).   While it is unclear from the plaintiff's complaint whether he brings his claim individually or as next of friend of his minor child, the plaintiff lacks standing in either instance.

Individually, the plaintiff lacks standing to pursue a legal malpractice claim against the defendant because there has never been an attorney-client relationship between the defendant and plaintiff.   As the defendant asserts in her brief, “as a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services,” and no exception applies in this case.   See Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988).   As to the plaintiff's claim as next of friend of the minor child, Carrubba v. Moskowitz, supra, as well as Coburn v. Henderson, supra, address a parent's lack of standing to bring a legal malpractice action on behalf of a minor child against the child's court-appointed attorney.   Our Supreme Court has recognized that, in order to have standing to bring a claim as next of friend, a person “(1) must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate ․ [and] (2) must provide an adequate explanation such as inaccessibility, mental incompetence, or other disability why the real party in interest cannot appear on his own behalf to prosecute the action.”  (Citations omitted.)  Carrubba v. Moskowitz, supra, 274 Conn. 551-52.   In Coburn v. Henderson, a case nearly identical to the case at bar, the court found that “because the plaintiff's interests [were] adverse to the minor child, [the father] lack[ed] standing to bring a claim of legal malpractice on the child's behalf as next friend.”   The plaintiff in this case fails to meet those criteria.

CONCLUSION

Because absolute immunity and lack of standing implicate subject matter jurisdiction, this court grants the defendant's motion to dismiss the plaintiff's claims.

Pellegrino, JTR

FOOTNOTES

FN1. The plaintiff still awaits trial on the petition for termination of his parental rights..  FN1. The plaintiff still awaits trial on the petition for termination of his parental rights.

Pellegrino, Joseph H., J.T.R.