Michaela Alexandru v. Patricia Strong

The plaintiff, Michaela I. Alexandru,
appeals from the summary judgment rendered by the
trial court on each of her five claims in favor of the
defendant, Patricia M. Strong, the plaintiff's former
attorney. We affirm the judgment of the trial court.

This action arises out of the defendant's legal representation
of the plaintiff in a federal lawsuit against the
plaintiff's former employer, Northeast Utilities Service
Company (Northeast Utilities), for the alleged sexually
discriminatory and retaliatory treatment of the plaintiff
by several of its employees. To establish the terms of
their attorney-client relationship, the plaintiff and
defendant entered into a retainer agreement, dated
December 5, 1994, which provided, inter alia, that the
defendant would represent the plaintiff in connection
with ‘‘[c]laims arising from [her] employment with
Northeast Utilities . . . .''

I

FEDERAL ACTION

In accordance with their attorney-client relationship,
the defendant, on March 14, 1995, instituted an action
in the United States District Court for the District of
Connecticut against Northeast Utilities, asserting both
federal claims under Title VII of the Civil Rights Act of
1964 (Title VII)1 and the Americans with Disabilities
Act of 1990 (ADA),2 and pendent state law claims for
breach of the implied covenant of good faith and fair
dealing, defamation, intentional infliction of emotional
distress, negligent infliction of emotional distress and
negligent supervision.

By motion dated May 9, 1997, the defendant sought
to withdraw as plaintiff's counsel, citing a deterioration
of the attorney-client relationship. The District Court
denied that motion and admonished the plaintiff to
cooperate with the defendant. On November 13, 1997,
the defendant again filed a motion to withdraw as counsel
due to an irreparable deterioration of the attorneyclient
relationship. In connection with the second
motion to withdraw, the defendant filed supporting documentation
to substantiate her assertions about the
declining relationship. The District Court subsequently
granted the defendant's second motion to withdraw,
stating that its decision was based on both the documentation
filed by the defendant and the plaintiff's ‘‘representation
to the court that she did not oppose the
motion to withdraw and would be seeking new
counsel.''

That same day, the court granted Northeast Utilities'
motion for partial summary judgment on the plaintiff's
claims of negligent infliction of emotional distress,
intentional infliction of emotional distress and negligent
supervision.3 In its ruling, the court determined that the
plaintiff's negligent infliction of emotional distress and
negligent supervision claims were time barred by General
Statutes § 52-5844 because they were filed more
than two years after November 6, 1992, the date of the
plaintiff's termination from Northeast Utilities.
The court further determined that even if the negligent
infliction of emotional distress claim was not time
barred, to the extent that the claim arose from events
occurring during the plaintiff's employment with Northeast
Utilities, the claim would also be barred by the
exclusivity provision of the Workers' Compensation Act
(act), General Statutes § 31-275 et seq.,5 which, where
applicable, provides the sole means available to a plaintiff
for recovery in common-law tort against an
employer. See, e.g., Jett v. Dunlap, 179 Conn. 215, 217,
425 A.2d 1263 (1979). Similarly, the court determined
that the exclusivity provision also barred the plaintiff's
claim for intentional infliction of emotional distress.6
Following the court's order permitting the defendant
to withdraw as counsel and its rendering of partial
summary judgment in favor of Northeast Utilities, the
plaintiff represented herself pro se until May 21, 1999,
when the jury found in favor of Northeast Utilities on
the two remaining Title VII claims. As no appeal was
filed, the federal court judgment was final.

II

MALPRACTICE ACTION

On November 22, 1999, the plaintiff initiated this
action in five counts against the defendant in connection
with the defendant's representation of her in the
federal action against Northeast Utilities. The plaintiff's
amended complaint alleges (1) legal malpractice (count
one) and (2) breach of contract (count two), both based
on the defendant's failure to assert her negligent infliction
of emotional distress claim in a timely manner,
resulting in the District Court's rendering of summary
judgment as to that claim in favor of Northeast Utilities.
The latter three counts are predicated on the defendant's
withdrawal as counsel and the supporting documentation
filed by the defendant. They assert that (3)
the defendant's withdrawal constituted a breach of the
implied covenant of good faith and fair dealing inherent
in the parties' retainer agreement, (4) the documentation
accompanying the second motion to withdraw contained
statements that constituted an intentional
infliction of emotional distress, and (5) the second
motion to withdraw itself contained false and defamatory
statements about the plaintiff.

On April 26, 2001, the defendant filed a motion for
summary judgment on all five counts. The court, after
reargument, granted the motion as to all counts. As to
the plaintiff's legal malpractice claim, the court granted
the motion in favor of the defendant on two grounds.
The court determined first that the claim was time
barred by General Statutes § 52-5777 because the alleged
negligent act or omission had occurred more than three
years prior to the filing of the present action.8 The court
also determined that the plaintiff was unable to prove
the elements of a cause of action for legal malpractice,
namely, causation and damages. The court recognized
that to succeed on her legal malpractice claim, the plaintiff
had to demonstrate that she would have succeeded
on the underlying claim of negligent infliction of emotional
distress against Northeast Utilities had the defendant
filed it timely. The court determined that the
plaintiff was collaterally estopped from establishing
that she would have succeeded on the emotional distress
claim because the factual allegations underlying
that claim were identical to those underlying the plaintiff's
Title VII claims, which were litigated and resolved
by the jury in favor of Northeast Utilities.

As to the plaintiff's breach of contract claim, the
court determined that it was, in fact, a negligence claim
couched in the language of contract and, thus, also was
barred by the statute of limitations that precluded the
plaintiff's legal malpractice claim. The court granted
the motion for summary judgment on the plaintiff's
claim of breach of the implied covenant of good faith
and fair dealing because the plaintiff failed to offer any
evidence that the defendant had acted in bad faith when
she withdrew as counsel. As to the plaintiff's claims of
intentional infliction of emotional distress and defamation,
the court found that the comments at issue had
been made to a judge in the context of a judicial proceeding
and were therefore absolutely privileged. The
appeal followed.

On appeal, the plaintiff asserts six claims. The first
two pertain to the court's granting of the motion for
summary judgment in favor of the defendant on her
legal malpractice claim, and the final four claims challenge
the granting of the motion for summary judgment
on her remaining four claims against the defendant.9
We affirm the judgment of the trial court.

‘‘The standard of review of a trial court's decision to
grant a motion for summary judgment is well established.
. . . Our review of the trial court's decision to
grant [a] motion for summary judgment is plenary.''
(Citation omitted; internal quotation marks omitted.)
Alexandru v. Dowd, 79 Conn. App. 434, 437, 830 A.2d
352, cert. denied, 266 Conn. 925, A.2d (2003).

III

LEGAL MALPRACTICE

The plaintiff claims that the court improperly granted
the motion for summary judgment on her legal malpractice
claim because (1) the applicable statute of limitations
was tolled by the continuing course of conduct
rule and (2) the doctrine of collateral estoppel did not
preclude her from establishing that she would have
succeeded on her underlying claim for negligent infliction
of emotional distress. Although it appears that the
plaintiff may be correct that the court did not conduct
a proper analysis of the statute of limitations issue, she
cannot prevail on her claim because we determine that
the court was correct with respect to the issue of collateral
estoppel.10

To recover on a legal malpractice claim, the plaintiff
must establish: ‘‘(1) the existence of an attorney-client
relationship; (2) the attorney's wrongful act or omission;
(3) causation; and (4) damages. . . . To prove
causation and damages . . . the plaintiff must establish
that the defendant['s] failure to file an action . . .
within the statute of limitations period caused [the
plaintiff] harm because [the plaintiff's action] is now
time barred.'' (Citation omitted.) Mayer v. Biafore,
Florek & O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).
‘‘An issue of causation . . . is whether the [claim]
could have been pursued.'' 4 R. Mallen & J. Smith, Legal
Malpractice (5th Ed. 2000) § 30-17, p. 495. ‘‘If the underlying
[claim] was never tried, the client essentially has
a double burden of proof. First, the client must show
that the attorney was negligent. Second, the client must
establish that the underlying claim was recoverable and
collectible.'' Id. In other words, to succeed on her claim
of malpractice for the defendant's alleged failure to
assert her emotional distress claim against Northeast
Utilities in a timely manner, the plaintiff must establish
that she would have been successful in pursuing that
claim but for the defendant's omission.

The court correctly concluded that the plaintiff was
collaterally estopped from establishing that she would
have been successful in pursuing her emotional distress
claim. ‘‘Collateral estoppel, or issue preclusion, is that
aspect of res judicata which prohibits the relitigation
of an issue when that issue was actually litigated and
necessarily determined in a prior action between the
same parties upon a different claim. . . . For an issue
to be subject to collateral estoppel, it must have been
fully and fairly litigated in the first action. It also
must have been actually decided and the decision must
have been necessary to the judgment.'' (Emphasis in
original; internal quotation marks omitted.) R & R
Pool & Patio, Inc. v. Zoning Board of Appeals, 257
Conn. 456, 466, 778 A.2d 61 (2001). ‘‘Furthermore, [t]o
invoke collateral estoppel the issues sought to be litigated
in the new proceeding must be identical to those
considered in the prior proceeding.'' (Internal quotation
marks omitted.) Pitchell v. Williams, 55 Conn. App.
571, 578, 739 A.2d 726 (1999), cert. denied, 252 Conn.
925, 746 A.2d 789 (2000).

Following the District Court's granting of the motion
for partial summary judgment in favor of Northeast
Utilities, the plaintiff proceeded, pro se, on her two
remaining Title VII claims. Those claims, the plaintiff's
allegations of sexual harassment and retaliatory conduct
by employees of Northeast Utilities, were predicated
on the same facts as was the emotional distress
claim.11 On May 21, 1999, the jury found in favor of
Northeast Utilities on both Title VII claims. By special
verdict, the jury determined that the plaintiff had failed
to prove, by a preponderance of the evidence, that her
supervisors sexually harassed her or subjected her to
abusive, intimidating treatment. It is not disputed that
those factual issues were fully and fairly litigated in the
federal action and that the jury's determination of those
issues was necessary to its verdict in favor of Northeast
Utilities. See R & R Pool & Patio, Inc. v. Zoning Board
of Appeals, supra, 257 Conn. 466.

Thus, to assert a viable malpractice claim in this case,
the plaintiff must demonstrate that she would have been
successful in proving the factual allegations that her
supervisors sexually discriminated and retaliated
against her, and that such conduct caused her emotional
distress. See 4 R. Mallen & J. Smith, Legal Malpractice,
supra, p. 495. The factual issue of whether such conduct
ever occurred, however, already has been litigated and
decided against her in the context of the Title VII claims.

The collateral estoppel doctrine bars her from relitigating
those factual issues.

Accordingly, we agree with the court that the plaintiff
is unable to maintain a cause of action for legal malpractice
stemming from the defendant's failure to assert her
emotional distress claim in a timely manner.

IV

BREACH OF CONTRACT

The plaintiff next claims that the court improperly
characterized her breach of contract claim as a mere
restatement of her legal malpractice claim and therefore
improperly determined that the claim was barred by
the negligence statute of limitations. Although we agree
with the court's granting of the motion for summary
judgment as to that claim, we do so for a different
reason and, accordingly, affirm the judgment on an
alternate ground.

In her amended complaint, the plaintiff alleged that
in failing to file her negligent infliction of emotional
distress claim against Northeast Utilities within the two
year statute of limitations period, the defendant
breached the terms of the parties' retainer agreement.12
The factual allegations giving rise to the claim for
breach of contract essentially mirror those outlined in
the malpractice claim, to wit, that the defendant agreed
to advance the plaintiff's claims against Northeast Utilities
in federal District Court, but failed to assert the
negligent infliction of emotional distress claim in a
timely manner, resulting in the District Court's granting
of the motion for summary judgment as to that claim
in favor of Northeast Utilities. The court found that
while purporting to allege a contract cause of action,
the claim essentially alleged a breach of the standard
of professional care and was, therefore, more appropriately
characterized as a legal malpractice claim. The
court further concluded that, as a malpractice claim,
the count was time barred by the three year statute of
limitations set forth in § 52-577.

We agree with the court's interpretations of the claim
as a negligence claim couched in contractual language.
Our analysis is guided by our recent decision in Caffery
v. Stillman, 79 Conn. App. 192, 829 A.2d 881 (2003). In
that case, the plaintiff brought an action against his
former attorney for legal malpractice and breach of
contract, on the basis of alleged deficient representation
in a workers' compensation matter. Id., 194. The
trial court rendered summary judgment in favor of the
defendant on both counts. Id., 195. In affirming the
court's judgment as to the breach of contract claim, we
considered the issue of what construction to put on a
pleading that purports to sound in contract yet contains
allegations rooted in negligence. We stated that
although ‘‘one may bring against an attorney an action
sounding in both negligence and contract . . . one
[cannot] bring an action in both negligence and contract
merely by couching a claim that one has breached a
standard of care in the language of contract.'' (Citations
omitted.) Id., 197.

Even when we accord due regard to the well established
policy of the Connecticut courts to be solicitous
of pro se litigants and to construe the rules of practice
liberally in favor of such parties; see Hill v. Williams,
74 Conn. App. 654, 656, 813 A.2d 130, cert. denied, 263
Conn. 918, 822 A.2d 242 (2003); we agree with the court
that the pleading at issue was no more than a negligence
claim cloaked in contractual language. Notwithstanding
that embedded in the language of the plaintiff's claim
are the contractual rudiments of promise and breach,
‘‘[w]here the plaintiff alleges that the defendant negligently
performed legal services and failed to use due
diligence the complaint sounds in negligence, even
though he also alleges that he retained him or engaged
his services.'' Shuster v. Buckley, 5 Conn. App. 473, 478,
500 A.2d 240 (1985).

Although we agree with the court's characterization
of the plaintiff's second count as a restatement of her
legal malpractice claim, we do not agree with the court's
subsequent determination to grant the motion for summary
judgment in favor of the defendant on that claim
on the ground that it necessarily was barred by the
negligence statute of limitations.13 See DeLeo v. Nusbaum,
263 Conn. 588, 821 A.2d 744 (2003). We instead
affirm the judgment on the ground that, as a restatement
of her legal malpractice claim, the second count simi-
larly was barred by the doctrine of collateral estoppel,
which matter was treated in full in part III.

V

IMPLIED COVENANT OF GOOD FAITH AND FAIR
DEALING

The plaintiff also claims that the court improperly
granted the motion for summary judgment in favor of
Northeast Utilities on her claim for breach of the
implied covenant of good faith and fair dealing. Specifically,
the plaintiff asserts that the defendant's withdrawal
as counsel in the underlying action against
Northeast Utilities amounted to a breach of the implied
covenant of good faith and fair dealing inherent in the
parties' retainer agreement.

‘‘Every contract carries an implied covenant of good
faith and fair dealing requiring that neither party do
anything that will injure the right of the other to receive
the benefits of the agreement.'' (Internal quotation
marks omitted.) Gaudio v. Griffin Health Services
Corp., 249 Conn. 523, 564, 733 A.2d 197 (1999). To constitute
a breach of that covenant, the acts by which
a defendant allegedly impedes the plaintiff's right to
receive benefits that he or she reasonably expected to
receive under the contract must have been taken in bad
faith. See, e.g., Gupta v. New Britain General Hospital,
239 Conn. 574, 598, 687 A.2d 111 (1996). ‘‘Bad faith in
general implies both actual or constructive fraud, or a
design to mislead or deceive another, or a neglect or
refusal to fulfill some duty or some contractual obligation,
not prompted by an honest mistake as to one's
rights or duties, but by some interested or sinister
motive . . . Bad faith means more than mere negligence;
it involves a dishonest purpose.'' (Citation omitted;
internal quotation marks omitted.) Habetz v.
Condon, 224 Conn. 231, 237–38, 618 A.2d 501 (1992).
Absent allegations and evidence of a dishonest purpose
or sinister motive, a claim for breach of the implied
covenant of good faith and fair dealing is legally insufficient.
See, e.g., Feinberg v. Berglewicz, 32 Conn. App.
857, 862, 632 A.2d 709 (1993).

The court determined that the plaintiff failed to offer
any evidence that the defendant had acted in bad faith
when she withdrew from representing the plaintiff.

We agree.

The record is devoid of any evidence capable of supporting
the conclusion that the defendant acted with a
sinister motive or a dishonest purpose when she withdrew
as the plaintiff's counsel. The record discloses that
the defendant substantiated her motion to withdraw
through the serious concerns she had that she would
be unable to represent the plaintiff adequately, thereby
indicating a prudent exercise of her rights and obligations
under the rules of professional responsibility. See
Matza v. Matza, 226 Conn. 166, 176–77, 627 A.2d 414
(1993). Furthermore, the defendant's withdrawal was
undertaken with the permission of the District Court
and in accordance with the relevant court rules and
procedures.14 Also, because the plaintiff represented to
the court that she did not oppose the withdrawal and
would be seeking new counsel, it is disingenuous for
her to now seek reprieve from the act to which she
expressly had acquiesced.15 There is no basis to conclude
that the defendant's withdrawal was an act motivated
by a sinister intention to mislead or to deceive
the plaintiff, and we accordingly conclude that the court
properly granted the motion for summary judgment in
favor of the defendant on the plaintiff's claim for breach
of the implied covenant of good faith and fair dealing.

VI

INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS AND DEFAMATION

The plaintiff last claims that the court improperly
granted the motion for summary judgment in favor of
the defendant on her claims of intentional infliction of
emotional distress and defamation. Those claims were
predicated on comments made by the defendant in both
her second motion to withdraw and in the supporting
documentation. The court granted the motion for summary
judgment as to those claims on the ground that
the defendant's representations to the District Court
about the plaintiff were absolutely privileged and could
not give rise to liability for either emotional distress or
defamation. We agree.

‘‘It is well settled that communications uttered or
published in the course of judicial proceedings are absolutely
privileged so long as they are in some way pertinent
to the subject of the controversy. . . . The
privilege applies also to statements made in pleadings
or other documents prepared in connection with a court
proceeding.'' (Citation omitted; internal quotation
marks omitted.) Alexandru v. Dowd, supra, 79 Conn.
App. 438; see also Petyan v. Ellis, 200 Conn. 243, 245–46,
251–52, 510 A.2d 1337 (1986); 3 Restatement (Second),
Torts § 586, comment (a), p. 247 (1977). That absolute
privilege applies regardless of whether the representations
at issue could be characterized as false, extreme
or outrageous. See Petyan v. Ellis, supra, 253.
Here, it is undisputed that the comments uttered and
statements published by the defendant were articulated
for the purpose of explaining the deteriorating attorneyclient
relationship and her reasons for wanting to withdraw.
As those representations were essential to and
published in the course of a judicial proceeding, they
are protected by an absolute privilege. See Alexandru
v. Dowd, supra, 79 Conn. App. 438.

We also note that the defendant was circumspect in
her dissemination of unflattering statements about the
plaintiff. The record reflects that the defendant submit-
ted her motion to withdraw in camera to the District
Court judge, and that copies of the motion and supporting
documentation were provided only to the District
Court and the plaintiff, thus ensuring that the statements
were made known to as narrow an audience
as possible.

In reaching our conclusion, we also are mindful of
the strong public policy that underlies the absolute privilege.
Our Supreme Court has emphasized the importance
of cultivating a judicial process that encourages
participants in legal proceedings to speak freely and
without fear that they might later be subjected to judicial
scrutiny or tort liability. See, e.g., DeLaurentis v.
New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991).
We accordingly conclude that the court correctly
determined that the defendant's representations were
protected by an absolute privilege and, therefore, properly
granted the defendant's motion for summary judgment
as to the plaintiff's claims for intentional infliction
of emotional distress and defamation.

The judgment is affirmed.

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