Gordon v. Eckert Seamans Cherin & Mellott, LLC

Alan GORDON v. ECKERT SEAMANS CHERIN & MELLOTT, LLC

No. CV175038333S

Superior Court of Connecticut, Judicial District of New Haven, New Haven

February 6, 2018

UNPUBLISHED OPINION

OPINION

Wilson, J.

STATEMENT OF CASE AND PROCEDURAL HISTORY

On May 8, 2017, the self-represented^[1] plaintiff, Alan Gordon (plaintiff), filed a summons and complaint against the defendants, Eckert Seamans Cherin & Mellot, LLC, a law firm,^[2] and Safeguard Properties, LLC, a property management firm, both of whom had been engaged on behalf of their client, Deutsche Bank, in a foreclosure action brought against the mortgagor, Paul Vossbrinck. The plaintiff stored personal property on the foreclosed property with the permission of Vossbrinck and later of the tenant Owen Kozlovich, but was not a party to the foreclosure action. In his complaint, the plaintiff alleges that several articles of his property, including several registered boats and a registered motorcycle, were unlawfully seized by the defendants sometime between December 2013, and April 2014. The plaintiff alleges that he was granted the permission of Vossbrinck, the owner of the premises, and Kozlovich to store his personal property on the premises from January 2012 to May 2014. The plaintiff does not allege that he had any interest in the premises. He alleges that " Accredited Home Lenders foreclosed on" the premises sometime " during 2012." According to the foreclosure action and the summary process action, of which this court takes judicial notice, the foreclosing mortgagee was not Accredited Home Lenders, but Deutsche Bank National Trust Company, as Indenture Trustee on behalf of the Holders of the Accredited Mortgage Loan Trust 2005-4 Asset Back Notes, who was substituted as plaintiff in the foreclosure action.^[3] The defendant represented the foreclosing mortgagee in that action, who became owner of the property pursuant to a judgment of strict foreclosure that was entered by the court on June 21, 2011.^[4] Subsequently on April 4, 2012, the mortgagee filed an application for execution of ejectment and the court granted that application on April 30, 2012. The tenant Kozlovich raised issues as to his ejectment from the premises, however, Deutsche Bank obtained a judgment for immediate possession after trial, on January 22, 2014, and the appeal from that judgment was dismissed. Def. Exs. C; D.

The plaintiff alleges that on or about April 2014, his property was removed by " Eckert Seamans Cherin & Mellott, LLC and or their agent and other defendant, Safeguard Properties LLC." The plaintiff further alleges that after learning that his property had been removed he contacted both defendants and demanded the return of his property but " despite repeated demands and court process, has never seen any of his property again." The plaintiff alleges that he " has been permanently deprived, unlawfully so, of his valuable possessions." The complaint contains three counts. Count one is for replevin; count two is for civil theft; and count three is for conversion.

On August 7, 2017, the defendant filed the present motion to dismiss and accompanying memorandum of law, arguing that the actions alleged in the complaint were in pursuit of the foreclosure order and are protected by absolute immunity deriving from the litigation privilege. The defendant attached the certificate of foreclosure against Vossbrinck, an ejection order against Kozlovich dated January 22, 2014, and a dismissal of Kozlovich’s appeal dated March 26, 2014. The plaintiff filed a memorandum in opposition to the motion to dismiss on August 30, 2017, arguing that the defendant had operated outside of its legal mandate in seizing the plaintiff’s property. Oral argument on the motion was heard at short calendar on October 10, 2017.

DISCUSSION

I Legal Standard

As a threshold issue, " the doctrine of absolute immunity concerns a court’s subject matter jurisdiction." Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014). Subject matter jurisdiction is properly addressed by a motion to dismiss. Practice Book § 10-30(a)(1). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn 616, 626, 79 A.3d 60 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " Once the question of lack of jurisdiction of a court is raised ... [t]he court must fully resolve it before proceeding further with the case." Bateson v. Weddle, 306 Conn. 1, 7, 48 A.3d 652 (2012).

" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. at 651-52. " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413-14, 35 A.3d 188 (2012). It is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 626.

The issue for this court to decide is whether absolute immunity is a bar to causes of action for replevin, civil theft and conversion brought against a mortgagee’s legal representative, where personal property stored at the foreclosed property was removed by the mortgagee’s legal representative in pursuit of a lawful execution of ejectment and possession following a lawful foreclosure.

II

A The Litigation Privilege In Connecticut

Although not directly on point, the case of Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013) and the historical background of the litigation privilege in Connecticut set forth therein provides this court with guidance in determining whether the litigation privilege should be applied here. In Simms the former husband, Robert Simms sued his former wife’s attorneys for fraud and intentional infliction of emotional distress for allegedly concealing his former wife’s true financial condition during an alimony proceeding. The trial court granted the attorney defendants’ motions to strike on grounds of absolute immunity. Thereafter, the trial court granted the defendants’ motion for judgment. Simms appealed and the Appellate Court affirmed. The Supreme Court granted certification to appeal. The Supreme Court affirmed the Appellate Court and concluded that the litigation privilege applied to the plaintiff’s fraud and intentional infliction of emotional distress claims.

In reaching its decision the court began with a historical picture of the litigation privilege generally and in Connecticut law. With respect to the litigation privilege in Connecticut, the court observed that: " Like other jurisdictions, Connecticut has long recognized the litigation privilege. In Blakeslee & Sons v. Carroll, 64 Conn 223, 29 A. 473 (1894) (Blakeslee), an action in slander for allegedly false and malicious testimony by a witness, the court explained: ‘The general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an...