Ravalese v. Lertora

186 Conn.App. 722

200 A.3d 1153

David RAVALESE

v.Joanne M. LERTORA

AC 40044

Appellate Court of Connecticut.

Argued September 12, 2018

Officially released December 18, 2018

Keith Yagaloff, for the appellant (plaintiff).

Michael R. McPherson, SOUTH WINDSOR, Hartford, for the appellee (defendant).

DiPentima, C.J., and Alvord and Lavery, Js.

LAVERY, J.

The plaintiff, David Ravalese, appeals from the summary judgment rendered by the trial court in favor of the defendant, Joanne M. Lertora, on his complaint sounding in defamation. On appeal, the plaintiff sets forth two main claims: (1) the court improperly held that a report authored by the defendant was made for the purpose of litigation and, therefore, that the plaintiff's action for defamation was barred by the doctrine of absolute immunity; and (2) the court improperly held that the statute of limitations barred the action.¹ We affirm the judgment of the court.

The following facts and procedural history are relevant to our decision. In 2000, the court dissolved the marriage of the plaintiff and Kimberly Ravalese, whom we refer to jointly as the Ravaleses. Following the dissolution of their marriage, the Ravaleses were involved in protracted and contentious postjudgment custody and visitation proceedings. In February, 2004, the court appointed a guardian ad litem for their minor child. Between 2004 and 2012, the Ravaleses were involved in numerous court proceedings, including, inter alia, various motions for contempt that had been filed by the plaintiff, a court-ordered appointment of a new guardian ad litem for the minor child, and a court-ordered study for parental alienation. The defendant is a psychologist, who provided individual psychotherapy to the minor child on or about September, 2004 through December, 2010.

During the course of these proceedings, in early 2010, Kimberly Ravalese's attorney, Fatima Lobo, forwarded to Kimberly Ravalese an e-mail, requesting that she ask the defendant to draft a report summarizing the defendant's insights regarding the appropriate custody and visitation arrangements for the child. Kimberly Ravalese then gave the defendant a hard copy of this e-mail and asked the defendant to compose the requested report.

In response, the defendant composed a report summarizing her assessment. Both the plaintiff and Kimberly Ravalese signed an agreement authorizing the defendant to make the report available to their respective attorneys and to the child's guardian ad litem, Emily Moskowitz. The defendant attests that she provided a copy of her report only to Lobo and to Kimberly Ravalese.²

In the report, the defendant discussed, among other things, the child's reports of the plaintiff's engaging in abusive behavior, the defendant's opinion that the plaintiff's behavior warranted a personality disorder diagnosis, and the defendant's recommendations regarding visitation between the plaintiff and his minor child. Lobo attempted to introduce the report into evidence at a July 8, 2010 postdissolution court hearing, but was unsuccessful because the child's guardian ad litem, Moskowitz, asserted the psychologist-patient privilege, and the court, thereafter, declined to admit the report.³ In August, 2011, Kimberly Ravalese filed a grievance against Moskowitz with the Statewide Grievance Committee (grievance committee). The plaintiff alleges in his operative complaint that during the grievance proceedings, Kimberly Ravalese provided the defendant's report to the grievance committee.

The plaintiff filed a complaint, dated May 28, 2013, in the Superior Court against the defendant, sounding in defamation and several other theories of liability.⁴ The plaintiff alleged in relevant part that the defendant, in the report she had authored, unfairly characterized him as a child abuser and a sociopath. In the operative complaint, the plaintiff describes two separate instances that he alleges constitute defamation: (1) when the defendant provided the report to Kimberly Ravalese in June, 2010; and (2) when Kimberly Ravalese allegedly submitted the report to "the grievance committee, and to attorneys representing the parties in that matter, to various individuals involved in the hearing, including mental health professionals."

In response to the plaintiff's operative complaint, the defendant pleaded several special defenses, namely, that the statements in the report are truthful, that they are statements of opinion, that they are absolutely privileged because they were published in connection with judicial or quasi-judicial proceedings, that they were published in good faith, with the health and welfare of a child in mind, and, therefore, that they are protected by a qualified privilege, that the plaintiff's defamation count is barred by the statute of limitations contained in General Statutes § 52-597, and that the plaintiff failed to mitigate any potential harm.

Following a lengthy series of pretrial motions, on May 31, 2016, the defendant filed a motion for summary judgment on the remaining count in the operative complaint, the defamation count, which was argued before the court on September 6, 2016.

On January 4, 2017, the court issued a memorandum of decision in which it granted the defendant's motion for summary judgment, and rendered judgment in favor of the defendant. The court analyzed both the defendant's statute of limitations and absolute immunity defenses. As to the defendant's statute of limitations defense, the court considered the plaintiff's claim that the defendant was liable for the publication of the report when it was presented to the grievance committee. The court reasoned that the defendant could not be held responsible for the alleged publication of the report to the grievance committee because there was no dispute that the defendant, herself, had not published the report to that committee.⁵ Moreover, the court determined that the only publication by the defendant had occurred long before the grievance committee proceeding. Accordingly, the court held that the plaintiff's May, 2013 action was barred by the applicable statute of limitations; see General Statutes § 52-597 ("[n]o action for libel or slander shall be brought but within two years from the date of the act complained of"); because the only potentially actionable instance of publication was when the defendant delivered her report to Kimberly Ravalese in June, 2010, which occurred outside the applicable two year statute of limitations.

Additionally, the court determined that the statements made by the defendant in her report were protected by absolute immunity. Reasoning that "there is compelling public policy to ensure that those who are witnesses in dissolution actions, especially those in highly contentious proceedings where children are involved, must be able to speak freely without the chilling effect of the threat of litigation," the court held, alternatively, that the defamation action also was barred by the doctrine of absolute immunity. This appeal followed.

On appeal, the plaintiff claims, in relevant part, that the court erred in holding that the defendant's report was prepared for the purpose of litigation and that the defendant's statements therein are cloaked with absolute immunity. Although the plaintiff agrees that Connecticut has long recognized the doctrine of absolute immunity, which also is referred to as the litigation privilege; see Simms v. Seaman , 308 Conn. 523, 531–40, 69 A.3d 880 (2013) ; the plaintiff contends that the defendant was not court appointed and her report was not prepared for the purpose of litigation and, thus, should not have been considered privileged. We disagree.

"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing ... that the party is ... entitled to judgment as a matter of law.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary." (Internal quotation marks omitted.)

Hopkins v. O'Connor , 282 Conn. 821, 829, 925 A.2d 1030 (2007). Additionally, whether absolute immunity applies is a question of law over which our review is plenary. See Simms v. Seaman , supra, 308 Conn. at 530, 69 A.3d 880.

We next set forth the relevant law applicable to defamation and the litigation privilege. "A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him .... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Hopkins v. O'Connor , supra, 282 Conn. at 838, 925 A.2d 1030. As our Supreme Court has stated on several occasions, and as the court in this matter recognized, "if, however, the communications are uttered or published in the course of judicial proceedings, even if they are published falsely and maliciously, they nevertheless are absolutely privileged provided they are pertinent to the subject of the controversy." Id.

Connecticut has long recognized the litigation privilege. See Simms v. Seaman , supra, 308 Conn. at 536–40, 69 A.3d 880 (discussing history of litigation privilege in Connecticut). "[T]he purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in...