Fiondella v. City of Meriden

186 Conn.App. 552

200 A.3d 196

Michael J. FIONDELLA, Jr., Trustee, et al.

v.CITY OF MERIDEN et al.

AC 40813

Appellate Court of Connecticut.

Argued October 9, 2018

Officially released December 11, 2018

Dominic J. Aprile, for the appellants (plaintiffs).

Vincent T. McManus, Jr., Wallingford, for the appellees (defendant Adele G. Eberhart et al.).

DiPentima, C.J., and Lavine and Harper, Js.

LAVINE, J.

The plaintiffs, Michael J. Fiondella, Jr., trustee of the Jo-An Carabetta 1983 Irrevocable Trust (trust), and The Meriden Homestead, LLC, appeal from the judgment of the trial court dismissing the counts of the complaint alleged against the defendants, Adele G. Eberhart, Harry S. Eberhart, and Vincent T. McManus, Jr.¹ On appeal, the plaintiffs claim that the court improperly (1) applied the litigation privilege in favor of the defendants to conclude that it lacked subject matter jurisdiction and (2) construed the fraud and civil conspiracy allegations against the defendants. We agree that the court improperly applied the litigation privilege to determine that it lacked subject matter jurisdiction. We, therefore, reverse the judgment of the trial court.²

The historical facts underlying the present appeal were set out in Eberhart v. Meadow Haven, Inc. , 111 Conn. App. 636, 960 A.2d 1083 (2008), a declaratory judgment action in which the Eberharts sought to obtain ownership of certain land by means of adverse possession. Id., 638, 960 A.2d 1083. The land at issue lies under a driveway adjacent to their home in the Shaker Court subdivision (subdivision) in Meriden. Id. On October 5, 1966, Meadow Haven, Inc. (Meadow Haven), conveyed lot seven in the subdivision to the Eberharts. Id. Lot seven is one of thirty lots in the subdivision and sits on the corner of Sandy Lane, a public way, and Shaker Court, an unpaved right-of-way. Id. When the Eberharts moved into their home on lot seven, they used the driveway that Meadow Haven had installed to reach Sandy Lane. Id.

The Eberharts later learned that the driveway was not located on lot seven but on an abutting lot. Id., 639, 960 A.2d 1083. The Eberharts informed Joseph Carabetta, a Meadow Haven principal, who had the land surveyed. He then resubdivided the abutting lot to move the Eberharts' property line to encompass the driveway. A deed reflecting the enlargement of lot seven, however, never was filed in the land records. Id. The revised subdivision, therefore, never went into effect, but the Eberharts relied on Carabetta's representations that the "problem had been fixed." Id., 640, 960 A.2d 1083. The Eberharts made exclusive use of the driveway, planted a hedge, installed light posts and planters, and maintained the driveway and lawn over the disputed area. Id.

In 2004, the Eberharts commenced an action seeking a declaratory judgment that they were the legal owners of the land under the driveway by operation of the doctrine of adverse possession. Following a trial, the court, Jones, J. , found by clear and convincing evidence that the Eberharts were the owners of the subject parcels by adverse possession and rendered a declaratory judgment in their favor. Id., 638–39, 960 A.2d 1083. Meadow Haven appealed, and this court affirmed the declaratory judgment. Id., 649, 960 A.2d 1083.

On July 7, 2016, the plaintiffs commenced the present action alleging claims for fraud, slander of title, and civil conspiracy. Specifically, the plaintiffs alleged that they were owners of certain lots in the subdivision, that the defendants failed to give them notice of the declaratory judgment action, and that they only recently had learned of the declaratory judgment. On December 5, 2016, the defendants filed a motion to dismiss the present action on the ground that the court lacked subject matter jurisdiction because the litigation privilege shielded them from the claims alleged by the plaintiffs.³ The plaintiffs filed an opposition to the motion to dismiss, arguing that the defendants were not protected by the litigation privilege because the allegations of the complaint were not predicated on statements made in the course of a declaratory judgment action but on the defendants' intentional conduct to conspire and conceal the declaratory judgment action from them.

The motion to dismiss was heard at short calendar on May 25, 2017. The court, Hon. John F. Cronan , judge trial referee, issued a memorandum of decision on August 18, 2017, granting the defendants' motion on the ground that the litigation privilege shielded the defendants from the plaintiffs' claims.⁴ The plaintiffs appealed, claiming, in essence, that the court improperly granted the defendants' motion to dismiss pursuant to the litigation privilege. We agree.

"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.... The motion to dismiss ... admits all facts, which are well pleaded, invokes the existing record and must be decided upon that alone.... 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." (Citations omitted; internal quotation marks omitted.) Dayner v. Archdiocese of Hartford , 301 Conn. 759, 774, 23 A.3d 1192 (2011).

We begin with a review of the law regarding the litigation privilege. "The litigation privilege developed centuries ago in the context of defamation claims. See Simms v. Seaman , 308 Conn. 523, 531, 69 A.3d 880 (2013). The privilege evolved, in part, to protect lawyers from civil actions for words spoken during the course of legal proceedings.... Absolute immunity for defamatory statements made in the course of judicial proceedings has been recognized by common-law courts for many centuries and can be traced back to medieval England.... The rationale articulated in the earliest privilege cases was the need to bar persons accused of crimes from suing their accusers for defamation....

"Connecticut has long recognized the litigation privilege, and our Supreme Court has stated that the privilege extends to judges, counsel and witnesses participating in judicial proceedings.... [O]ur Supreme Court explained that the privilege was founded upon the principle that in certain cases it is advantageous for the public interest that persons should not be in any way fettered in their statements, but should speak out the whole truth, freely and fearlessly....

"It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy.... The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious." (Citations omitted; emphasis in original; internal quotation marks omitted.) Villages, LLC v. Longhi , 166 Conn. App. 685, 699–700, 142 A.3d 1162, cert. denied, 323 Conn. 915, 149 A.3d 498 (2016).

Our Supreme Court "consistently [has] applied the doctrine of absolute immunity to defamation actions arising from judicial or quasi-judicial proceedings." Rioux v. Barry , 283 Conn. 338, 345, 927 A.2d 304 (2007). It has expanded "absolute immunity to bar retaliatory civil actions beyond claims of defamation. For example, [our Supreme Court has] concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from statements made during a civil action.... [It has] also precluded claims of intentional infliction of emotional distress arising from statements made during judicial proceedings on the basis of absolute immunity.... Finally, [it] most recently applied absolute immunity to bar retaliatory claims of fraud against attorneys for their actions during litigation." (Citations omitted; emphasis added; internal quotation marks omitted.) Bruno v. Travelers Cos. , 172 Conn. App. 717, 726, 161 A.3d 630 (2017) ; see also Simms v. Seaman , supra, 308 Conn. at 566–69, 69 A.3d 880 (litigation privilege afforded to any act occurring during course of judicial proceeding).

Our Supreme Court, however, has "recognized a distinction between attempting to impose liability upon a participant in a judicial proceeding for the words used therein and attempting to impose liability upon a litigant for his improper use of the judicial system itself. See DeLaurentis v. New Haven , [220 Conn. 225, 263–64, 597 A.2d 807 (1991) ] (whether or not a party is liable for vexatious suit in bringing an unfounded and malicious action, he is not liable for the words used in the pleadings and documents used to prosecute the suit ...). In this regard, [our Supreme Court has] refused to apply absolute immunity to causes of action alleging the improper use of the judicial system." (Emphasis altered; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti , 310 Conn. 616, 629, 79 A.3d 60 (2013).

In their brief, the plaintiffs argue that their cause of action does not arise out of statements made in the course of litigation; rather, the claims arise out of the intentional conduct of the defendants, who purposely took steps to conceal from the plaintiffs that they had commenced the declaratory judgment action.⁵ The primary allegation of fraud concerns the defendants' intentional and wrongful conduct...