Opinion
No. FBT-CV08-5017263S
September 30, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS #114
FACTS
On July 11, 2008, the plaintiff, Robert Anastasio, M.D., commenced this action by service of process on the defendant, Sheryl A. Shaughnessy, Esq. In his two-count complaint, the plaintiff alleges the following. The plaintiff, as trustee of the Esther Anastasio testamentary trust (Anastasio trust), is the owner of real property located at 144-146 Rakoczy Avenue (Rakoczy property) and 159 Lalley Boulevard (Lalley property) in Fairfield, Connecticut. In her will, Esther Anastasio created a testamentary trust for the primary benefit of her son, Anthony W. Anastasio, Jane Roe, and his descendants. The Rakoczy and Lalley properties were both specifically devised in the Anastasio trust, and following the death of Esther Anastasio, the plaintiff acquired title to the Rakoczy and Lalley properties in April of 2008 pursuant to the administration of the estate.
Sometime before the death of his mother, Anthony Anastasio became a party to a divorce action. During the pendency of the divorce case, the court appointed the defendant to serve as guardian ad litem for Anthony Anastasio's children. The court approved a portion of the defendant's legal fees and instructed Anthony Anastasio to pay "some or all of the fees approved by the Superior Court." Anthony Anastasio disputes his liability for some or all of the defendant's fees, and he has refused to pay them. On March 9, 2007, the defendant filed a lis pendens and judgment lien on the Fairfield land records for the Lalley property. On October 4, 2007, the defendant delivered to Anthony Anastasio a copy of a lis pendens and judgment lien for the Rakoczy property. The complaint alleges that "[u]pon information and belief, the lis pendens and judgment lien with respect to the Rakoczy Property has not yet been filed in the Fairfield Land Records, but the Defendant intends to so file the lis pendens and judgment lien with respect to the Rakoczy Property." (Emphasis in original.) The complaint further alleges that both of the liens indicate that the defendant obtained a judgment against Anthony Anastasio on May 18, 2004, but court records fail to reflect that such a judgment was ever entered against Anthony Anastasio. Furthermore, on March 9, 2007 and October 4, 2007, the subject properties were held by the Estate of Esther Anastasio. The Rakoczy and Lalley properties are not owned by Anthony Anastasio and neither Esther Anastasio nor her estate ever engaged the services of the defendant.
On November 29, 2007 and again on January 22, 2008, James Hughes, an attorney for the executor of the Anastasio trust, sent a letter to the defendant informing her that her claims against the Rakoczy and Lalley properties were denied because neither Esther Anastasio nor her trust had been parties to an action against the defendant. These letters instructed the defendant to discharge the liens on the Rakoczy and Lalley properties. The complaint further alleges that upon information and belief, the defendant was provided with a copy of Esther Anastasio's will, which provided the terms of the Anastasio trust, and was aware that the trustee of the Anastasio trust was prohibited from making any payment to satisfy claims against Anthony W. Anastasio, Jr.
After he obtained title to the properties on April 2, 2008, the plaintiff also sent a letter to the defendant instructing her to discharge the lien and to release the lis pendens. Nevertheless, the defendant has failed to do so. As a result of the defendant's refusal to remove the lien and discharge the lis pendens, the plaintiff has been unable to obtain title insurance for the Lalley property, and the title has been rendered unmarketable. Moreover, pursuant to the terms of the Anastasio trust, the plaintiff is obligated to pay $100,000 to Esther Anastasio's daughter, Patricia G. Anastasio, by February 23, 2008. The Anastasio trust has lacked sufficient funds to make this payment, unless the plaintiff can refinance or sell the Rakoczy and Lalley properties. The plaintiff has been unable to refinance due to the lis pendens and judgment lien, and interest at the rate of 6% per annum, as provided by General Statutes § 45a-542d(3), has been accruing against the trust property.
The plaintiff's complaint makes claims for wrongful filing and failure to discharge an invalid lien, as well as for slander of title. In his prayer for relief, the plaintiff requests an order of the court declaring that the defendant unlawfully filed a lis pendens and judgment lien on the Lalley property, an order releasing the lis pendens and discharging the judgment lien on the Lalley property, statutory damages pursuant to General Statutes § 49-51, compensatory damages, exemplary damages including attorneys fees and costs, an injunction restraining the defendant from filing any future judgment liens or lis pendens on the subject properties, and other relief that the court may deem just and proper.
On March 26, 2009, the defendant filed a motion to dismiss for lack of subject matter jurisdiction on the ground of quasi-judicial immunity, as well as a motion for summary judgment. The defendant attached one memorandum of law in support of both motions. No evidence was offered in support of the defendant's motion. In response, on July 29, 2009, the plaintiff filed a memorandum of law in opposition to the motion to dismiss. The plaintiff provided the court with numerous attachments in support of his memorandum of law in opposition. The court heard this matter at short calendar on August 3, 2009.
The defendant has filed two motions, a motion for summary judgment (#113) and a motion to dismiss (#114). The defendant's memorandum of law (#115) refers to both motions and makes the same argument as to why the defendant is entitled to either dismissal or summary judgment. Nevertheless, the plaintiff's memorandum of law in opposition only addresses the relevant legal issues in the context of a motion to dismiss. Moreover, the only motion that was argued before the court at short calendar was the motion to dismiss (#114). As the only motion before the court is the motion to dismiss and the plaintiff's memorandum of law only briefs the issue as a motion to dismiss, the court will rule only on the defendant's motion to dismiss and not her motion for summary judgment.
As the defendant has failed to meet her burden that she is entitled to dismissal, it is unnecessary to examine the admissibility of the many attachments offered in support of her motion to dismiss. None of these documents are referenced in this decision.
DISCUSSION
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "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." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). "Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) St. George v. St. George, 264 Conn. 538, 545, 825 A.2d 90 (2003). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002).
In her memorandum of law, the defendant argues that she is entitled to dismissal because guardians ad litem are afforded absolute quasi-judicial immunity under Connecticut law. Specifically, the defendant contends that she is immunized from suit for conduct arising out of her role as a guardian ad litem. As prosecuting claims for counsel fees and family support orders are part of the usual role of a guardian ad litem, the defendant argues that quasi-judicial immunity protects her from suit. In response, the plaintiff first argues that the defendant's motion must be denied because a motion to dismiss is not the proper procedural vehicle to raise the issue of absolute immunity. Secondly, the plaintiff argues that the defendant is not entitled to absolute immunity because the actions at issue in the present case are not integral to the judicial process. The plaintiff contends that the defendant's actions are beyond the usual role of a guardian ad litem, and, therefore, immunity does not attach.
The first issue to be resolved is whether the court can examine the doctrine of absolute quasi-judicial immunity on a motion to dismiss. At this time, Connecticut's appellate courts have yet to definitely rule on this question. In Carrubba v. Moskowitz, 274 Conn. 533, 877 A.2d 773 (2005), our Supreme Court examined the issue of absolute quasi-judicial immunity for court-appointed counsel for children on a motion to dismiss. While the Supreme Court reached the merits of the motion to dismiss, it noted that "[b]ecause 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." Id., 537. The law remains unclear following Carrubba, as to whether the defendant can claim quasi-judicial immunity on a motion to dismiss or whether it needs to be raised via a special defense.
This court has already ruled that absolute judicial immunity can be examined in the context of a motion to dismiss. In Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2008, Bellis, J.), this court stated that "[a]lthough our appellate courts have not yet affirmatively decided whether absolute immunity bears upon a court's subject matter jurisdiction, our Supreme Court's decision in Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports a conclusion that it does. In that case, the Connecticut Supreme Court held that a motion for summary judgment granted on the basis of absolute immunity is a final judgment for purposes of appeal because the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of sovereign immunity [conferred upon states] . . . that is, to protect against the threat of suit . . . Accordingly, because the doctrine of absolute immunity shares with sovereign immunity the same purpose of protecting against having to litigate at all, and because the doctrine of sovereign immunity implicates subject matter jurisdiction, this court joins the other Superior Courts that have held absolute immunity to be properly considered in a motion to dismiss." (Citations omitted; internal quotation marks omitted.) Other Superior Court judges have held similarly. See Mattera v. Sienkiewicz, Superior Court, judicial district of Hartford, Docket No. CV 05 4011301 (April 28, 2006, Tanzer, J.) [41 Conn. L. Rptr. 269}; Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) ( 40 Conn. L. Rptr. 537), rev'd in part on other grounds, 283 Conn. 338, 927 A.2d 304 (2007). As Day and the present case both involve application of the doctrine of absolute judicial immunity, this court can properly consider the defendant's motion to dismiss.
As previously discussed, this court and other Superior Court judges have taken the position that the privilege of immunity from liability implicates subject matter jurisdiction. Prior to these decisions of the Superior Court, the Appellate Court, in dicta, explained that "[a]lthough our law sometimes affords some potential defendants the privilege of immunity from liability, we know of no case that holds that the existence of such a privilege deprives a court of subject matter jurisdiction." Olympus Health Care Group, Inc. v. Muller, 88 Conn.App. 296, 301, 870 A.2d 1091 (2005). This quotation could be interpreted as suggesting that an immunity defense does not implicate the court's jurisdiction, and, therefore, is not properly raised in a motion to dismiss. Nevertheless, this language is dicta, and Olympus Healthcare Group was decided before Carrubba v. Moskowitz, supra, 274 Conn. 533, where our Supreme Court addressed a claim of judicial immunity on a motion to dismiss. As such, I believe that the Appellate Court's language from Olympus Health Care Group does not necessarily mean that judicial immunity does not implicate subject matter jurisdiction.
I now move on to the merits of the defendant's motion. The current leading Connecticut case on absolute judicial immunity is Carrubba v. Moskowitz, supra, 274 Conn. 533. Although Carrubba discusses absolute judicial immunity for court-appointed counsel for children, the Supreme Court includes a discussion regarding how this doctrine is applied to the analogous position of guardian ad litem. In Carrubba, our Supreme Court stated that "[c]ourts in other jurisdictions have almost unanimously accorded guardians ad litem absolute immunity for their actions that are integral to the judicial process . . . Courts have reasoned that the duty of a guardian ad litem to secure the best interests of the minor children places the guardian squarely within the judicial process to accomplish that goal . . . and, therefore, 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 . . . One court noted its concern that [w]ithout immunity, guardians ad litem would act like litigation lightening rods. Lawsuits would, in the words of Learned Hand, `dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.'" (Citations omitted; internal quotation marks omitted.) Id., 547-48.
Although our Supreme Court has extended the doctrine of absolute immunity to guardians ad litem, it has "done so . . . by directing a functional inquiry to the specific facts of the case. For example . . . under the functional approach, guardians ad litem would be absolutely immune in exercising functions such as testifying in court, prosecuting custody or neglect petitions, and making reports and recommendations to the court in which the guardian acts as an actual functionary or arm of the court, not only in status or denomination but in reality . . . Absolute immunity would not be available, however, when persons who would normally be accorded immunity perform acts which are clearly outside the scope of their jurisdiction." (Internal quotation marks omitted.) Carrubba v. Moskowitz, supra, 274 Conn. 544. The reason for this cautious application of immunity is that courts "repeatedly have recognized that "[a]bsolute immunity . . . is strong medicine . . ." (Internal quotation marks omitted.) Id., 540.
In her memorandum of law, the defendant argues that prosecuting claims for counsel fees are part of the usual role of guardians ad litem. The defendant's authority for this contention is that the legislature has enacted a statute, General Statutes § 46b-62, which grants the court "wide latitude" in providing for attorneys fees. Moreover, the defendant argues that a guardian ad litem's counsel fees are "in the nature of family support orders," and that guardians ad litem customarily prosecute claims for family support against sources of income such as trust assets.
General Statutes § 46b-62 provides in relevant part: "In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney or may order the payment of the attorneys fees in whole or in part from the estate of the child."
In order to properly assess the defendant's argument, it is necessary to examine the function of guardians ad litem in our judicial process. "It is well established that the role of the guardian ad litem is to speak on behalf of the best interest of the child. Although the term `best interest' is elusive to precise definition, one commission study aptly observed that [t]he best interests of the child has been generally defined as a measure of a child's well-being, which includes his physical (and material) needs, his emotional (and psychological) needs, his intellectual and his moral needs . . . The specific duties of the guardian ad litem necessary to execute that general mandate properly have been suggested by many experts and advisory committees. Some of the commonly discussed duties include investigation of the facts necessary to get a clear picture of the child's situation, a determination of the child's best interest, frequent communication with the child and the court, and the making of recommendations to the court through testimony." (Internal quotation marks omitted.) In re Tayquon H., 76 Conn.App. 693, 704, 821 A.2d 796 (2003).
Since Carrubba, the few Superior Court judges who have examined the issue of absolute quasi judicial immunity for guardians ad litem have determined that immunity attaches in cases where the guardian ad litem was sued for conduct related to the guardian's role as an advocate for the child. See, e.g., Coburn v. Henderson, Superior Court, judicial district of New Britain, Docket No. CV 09 5011906 (May 19, 2009, Pittman, J.) (granting the defendant guardian ad litem's motion to dismiss claims of legal malpractice, breach of fiduciary duty, breach of contract and CUTPA); Linardos v. Reich, Superior Court, judicial district of Fairfield, Docket No. CV 03 0405562 (August 31, 2005, Fischer, J.) (granting the defendant guardian ad litem's motion for summary judgment for abuse of process when the guardian obtained a protective order on behalf of the minor child that she was appointed to protect). In contrast, the complaint in the present case does not attack any of the defendant's actions taken in the course of her representation of Anthony Anastasio's children; it only alleges that the defendant committed malfeasances in connection with her attempts to collect legal fees. While seeking remuneration for one's services is probably an activity that guardians ad litem frequently undertake, obtaining counsel fees does not necessarily further the main objective of a guardian ad litem, which is protecting the best interests of the child. Furthermore, the plaintiff has brought claims for failure to discharge an invalid lien and slander of title. Neither of these causes of action involves a guardian ad litem's role as an advocate for a minor child. As a result, it is difficult to see how the defendant's alleged conduct is integral to the judicial process.
On September 29, 2005, Judge Fischer granted the plaintiff's motion to reconsider his August 31, 2005 ruling because the plaintiff was not present at oral argument. Nevertheless, upon reconsideration, the court upheld its original determination and granted the defendant's motion for summary judgment. See Linardos v. Reich, Superior Court, judicial district of Fairfield, Docket No. CV 03 0405562 (November 29, 2005, Fischer, J.). Subsequently, the Appellate Court affirmed Judge Fischer's decision in a per curiam opinion. See Linardos v. Reich, 98 Conn.App. 905, 911 A.2d 1163 (2006).
Moreover, the complaint specifically alleges that the defendant filed lis pendens and judgment liens against the plaintiff's property when the defendant had not obtained a judgment in her favor and knew that she could not receive any financial satisfaction from the subject properties because they were held in trust. Since the defendant has failed to provide any evidence in support of her motion, the complaint's allegations are undisputed. If proven at trial, these allegations could lead a trier of fact to conclude that the defendant's conduct was wrongful and outside the proper scope of her role as a guardian ad litem for Anthony Anastasio's children. As the defendant would only be afforded quasi judicial immunity for her conduct that is integral to the judicial process, the defendant would not be shielded from liability from using improper debt collection methods. Accordingly, the defendant's motion to dismiss is denied.