Fiondella v. Meriden , 186 Conn. App. 552 ( 2018 )

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MICHAEL J. FIONDELLA, JR., TRUSTEE, ET AL.
v. CITY OF MERIDEN ET AL.
(AC 40813)
DiPentima, C. J., and Lavine and Harper, Js.
Syllabus
The plaintiffs, owners of certain real property in a subdivision in Meriden,
brought this action against the defendants A and H, owners of real
property in the subdivision, and their attorney, M, alleging claims for,
inter alia, fraud and civil conspiracy, and seeking injunctive and declara-
tory relief, as well as monetary damages. In 2004, A and H, represented
by M, had brought a declaratory judgment action asserting adverse
possession of certain land in the subdivision that comprised portions
of a driveway that was adjacent to their home but was located on
abutting land. The trial court rendered judgment in favor of A and H in
that action, finding that they had acquired title to the disputed portions
of the driveway by way of adverse possession, and this court affirmed
the trial court’s judgment. Thereafter, the plaintiffs, certain abutting
landowners in the subdivision, commenced the present action, claiming
that the defendants had failed to give them notice of the declaratory
judgment action, as required by the applicable rule of practice (§ 17-56
[b]), and conspired and schemed to conceal the declaratory judgment
action from the plaintiffs. The defendants subsequently filed a motion
to dismiss for lack of subject matter jurisdiction, claiming that the
alleged wrongful conduct was shielded by the litigation privilege. The
trial court granted the motion to dismiss and rendered judgment thereon,
from which the plaintiffs appealed to this court. Held that the trial court
improperly granted the defendants’ motion to dismiss and applied the
litigation privilege in favor of the defendants to conclude that it lacked
subject matter jurisdiction; because the primary allegation of fraud in the
plaintiffs’ complaint concerned the defendants’ intentional and wrongful
conduct in depriving the plaintiffs of notice of the declaratory action
and concealing that action, which did not occur during a judicial proceed-
ing or involve the defendants’ conduct or statements made during a
judicial proceeding, the defendants were not shielded by the litigation
privilege, and, therefore, the trial court was not without subject mat-
ter jurisdiction.
Argued October 9—officially released December 11, 2018
Procedural History
Action seeking damages for, inter alia, fraud, and
seeking declaratory and injunctive relief, brought to the
Superior Court in the judicial district of New Haven at
Meriden, where the court, Hon. John F. Cronan, judge
trial referee, granted the motion to dismiss filed by
the defendant Adele G. Eberhart et al., and rendered
judgment thereon, from which the plaintiffs appealed
to this court. Reversed; further proceedings.
Dominic J. Aprile, for the appellants (plaintiffs).
Vincent T. McManus, Jr., for the appellees (defen-
dant Adele G. Eberhart et al.).
Opinion
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. McMa-
nus, 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 posses-
sion. Id., 638. 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.
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 subdivi-
sion, therefore, never went into effect, but the Eberharts
relied on Carabetta’s representations that the ‘‘problem
had been fixed.’’ Id., 640. 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 par-
cels by adverse possession and rendered a declaratory
judgment in their favor. Id., 638–39. Meadow Haven
appealed, and this court affirmed the declaratory judg-
ment. Id., 649.
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 sub-
ject 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 dis-
miss, 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 improp-
erly 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 dis-
miss 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 defama-
tion. . . .
‘‘Connecticut has long recognized the litigation privi-
lege, and our Supreme Court has stated that the privi-
lege 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 fear-
lessly. . . .
‘‘It is well settled that communications uttered or
published in the course of judicial proceedings are abso-
lutely privileged [as] long as they are in some way perti-
nent to the subject of the controversy. . . . The effect
of an absolute privilege is that damages cannot be recov-
ered 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 immu-
nity bars claims of intentional interference with con-
tractual 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 proceed-
ings 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.
566–69 (litigation privilege afforded to any act occurring
during course of judicial proceeding).
Our Supreme Court, however, has ‘‘recognized a dis-
tinction 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 plead-
ings 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 pri-
mary allegation of fraud concerns the defendants’ inten-
tional and wrongful conduct in depriving the
subdivision lot owners of notice and their purposeful
concealment of the actions that they knew were con-
trary to the property rights and interests of the lot
owners.6 In support of their position, the plaintiffs note
that, pursuant to Practice Book § 17-56 (b),7 the defen-
dants were obligated to join them in the declaratory
judgment action or to provide them with notice of its
pendency. This is so, they claim, because ‘‘the notice
requirement ensures that interested persons are aware
of the requested declaratory relief and are able to move
to intervene to protect their interests, should they
choose to do so.’’ Batte-Holmgren v. Commissioner of
Public Health, 281 Conn. 277, 288, 914 A.2d 996 (2007).
The plaintiffs contend that lot owners in a subdivision
are required to be joined or given notice of a declaratory
judgment action; see Mannweiler v. LaFlamme, 232
Conn. 27, 33, 653 A.2d 168 (1995); and that a lot owner
may reasonably anticipate the use of streets disclosed
on the subdivision map. See Lucy v. Oram, 114 Conn.
642, 647, 159 A. 655 (1932) (so-called Whitton rule: test
of when lot owner, who purchases lot in development
where streets are shown on plan, will be permitted to
enforce right to use street, depends upon whether street
is of benefit to owner). The plaintiffs’ complaint alleges
that the deeds to their properties reference the subdivi-
sion map that depicts access via Shaker Court.8 On
the basis of the deeds, public documents and notice
requirements, the plaintiffs alleged that the defendants
conspired and schemed with the city defendants to
deprive them of notice of the declaratory judgment
action.
The plaintiffs also argue that the trial court improp-
erly relied on Simms v. Seaman, supra, 308 Conn. 523,
and factually similar cases, in which the claim of fraud
was asserted against a party opponent in prior litigation
and the statement was made during the course of a
judicial proceeding. The present action is not factually
similar because the plaintiffs were not parties in the
declaratory judgment action and their fraud claim is
not based on statements made in that action. This court
has stated that the ‘‘policy and history of the [litigation]
privilege lead us to conclude that [the privilege] extends
to bar claims of fraud against a party opponent." Tyler
v. Tatoian, 164 Conn. App. 82, 92, 137 A.3d 801, cert.
denied, 321 Conn. 908, 135 A.3d 710 (2016). The fraud
the plaintiffs alleged against the defendants is not
asserted pursuant to prior litigation between them.
Most importantly, the plaintiffs’ claims focus on the
alleged wrongful conduct engaged in by the defendants,
rather than on the words uttered during a judicial pro-
ceeding. The plaintiffs alleged that the defendants
engaged in fraud by purposefully concealing the exis-
tence of the declaratory judgment action as part of a
scheme and conspiracy. They argue, and we agree, that
the facts of this case are somewhat similar to those of
Villages, LLC v. Longhi, supra, 166 Conn. App. 685. In
Villages, LLC, this court determined that a member of
the planning and zoning commission who engaged in
ex parte communications and was biased against the
plaintiff, Villages, LLC, was not protected by the litiga-
tion privilege when she participated in the commission’s
meeting to act on that plaintiff’s applications. Id., 707. In
its memorandum opposing a motion to dismiss, Villages,
LLC argued that "its claims are not predicated on what
the defendant [commission member] stated at the com-
mission meeting, but on her bias and ex parte communi-
cation . . . ." (Emphasis in original.) Id., 696. This
argument is legally similar to the one made by the plain-
tiffs in the present case. We conclude that the allega-
tions of the plaintiffs’ complaint in the present case are
not predicated on statements made during the course of
litigation, but are based on the defendants’ intentional
conduct that did not occur during a judicial proceeding.
The defendants, therefore, are not shielded by the litiga-
tion privilege.
Whether the plaintiffs will prevail on the merits of
their claim is, of course, not before us at this time.9
They have persuaded us, however, that, with respect
to the claims alleged, the defendants are not protected
by the litigation privilege and the court, therefore, was
not without subject matter jurisdiction. The plaintiffs’
claims are predicated on the defendants’ alleged inten-
tional conduct to deprive them of notice of the declara-
tory judgment action rather than on the defendants’
conduct or statements made during a judicial proceed-
ing. The court, therefore, improperly granted the defen-
dants’ motion to dismiss.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
McManus, an attorney, represented the Eberharts in the underlying
declaratory judgment action and in the present case. The city of Meriden,
James Anderson, former city zoning enforcement officer, and Dominick
Caruso, former city planner, also were served as defendants. They are not
parties to this appeal, and we refer to them as the city defendants in this
opinion. We refer to Adele G. Eberhart and Harry S. Eberhart jointly as the
Eberharts where necessary, and to the Eberharts and McManus collectively
as the defendants.
2
Because we conclude that the trial court improperly dismissed the counts
against the defendants for lack of subject matter jurisdiction, we do not
reach the plaintiffs’ second claim.
3
The motion to dismiss addressed the counts alleged against the defen-
dants, namely, counts one, two, six, seven and eight. The motion to dismiss
did not address the counts alleged against the city defendants.
4
In its memorandum of decision, the trial court stated that its decision
was guided by MacDermid, Inc. v. Leonetti, 310 Conn. 616, 629–30, 79 A.3d
60 (2013) (whether and what form of immunity applies in given case is
matter of policy that requires balancing of interests), and Rioux v. Barry,
283 Conn. 338, 350–51, 927 A.2d 304 (2007) (same). The court noted that
the plaintiffs did not allege that the defendants had abused the judicial
system and pursued litigation for an unlawful or improper purpose. In other
words, the plaintiffs were not challenging the purpose of the declaratory
judgment action. See Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112
(1951) (abuse of process lies against any person using legal process against
another in improper manner or to accomplish purpose for which it was
not designed).
The court, however, stated that the plaintiffs’ claim occurred during the
course of the judicial proceedings and that the defendants’ actions were
shielded by the litigation privilege. The court found that the plaintiffs’ slander
of title claim against the defendants arose from the testimony Anderson
gave at trial and that those statements were privileged. With respect to
the plaintiffs’ claims of civil conspiracy, the court stated that there is no
independent cause of action for civil conspiracy and that to state a cause
of action, a claim of civil conspiracy must be joined with allegations of a
substantive tort. See Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d
522 (2005). The court reasoned that the plaintiffs’ slander of title claims
were the underlying actions on which civil conspiracy was based. Because
the defendants were shielded by the litigation privilege with respect to the
slander of title claim, the court concluded that there was no underlying tort
to support the civil conspiracy claims.
We note that in ruling on a motion to dismiss, the question before the
court generally is whether the court has subject matter jurisdiction. See
Practice Book § 10-30. It is not to determine whether the complaint states
a cause of action on which relief may be granted, which properly is raised
by means of a motion to strike. See Practice Book § 10-39. ‘‘[A] motion to
strike challenges the legal sufficiency of a pleading, and, consequently,
requires no factual findings by the court. . . . We take the facts to be those
alleged in the complaint . . . and we construe the complaint in the manner
most favorable to sustaining its legal sufficiency. . . . [I]f facts provable
in the complaint would support a cause of action, the motion to strike must
be denied.’’ Larobina v. McDonald, supra, 274 Conn. 400.
5
The plaintiffs attempt to bolster their argument that the defendants
sought to conceal the declaratory judgment action by bringing that prior
action in the judicial district of New Haven, rather than in Meriden where
the subdivision is located and the parties reside.
6
Specifically the plaintiffs alleged: ‘‘26. As part of, and in furtherance
of, their continuous scheme and conspiracy, the Defendants agreed that
Defendant Anderson would provide testimony in the [declaratory judgment
action], which testimony was knowingly contrary to City of Meriden records,
official maps and other documents, or was in reckless disregard of the truth.
‘‘27. As part of, and in furtherance of, their continuous scheme and conspir-
acy, the Defendants concealed their continuous course of conspiratorial
conduct and other wrongful acts from the Plaintiffs, from the Court and
from the public at large.
***
‘‘33. After the events recited in the foregoing paragraphs occurred, and
after the Defendants achieved the goal of their conspiracy through the overt
acts set forth above, the Defendants further agreed and conspired with the
intent to and for the purpose of preventing Plaintiffs from discovering the
true facts regarding Defendants’ conduct and to prevent Plaintiffs from
being able to ascertain the existence of the causes of action set forth in the
prior counts of this Complaint.’’
7
Practice Book § 17-56 (b) provides in relevant part: ‘‘All persons who
have an interest in the subject matter of the requested declaratory judgment
that is direct, immediate and adverse to the interest of one or more of the
plaintiffs or defendants in the action shall be made parties to the action or
shall be given reasonable notice thereof. . . . The party seeking the declara-
tory judgment shall append to its complaint . . . a certificate stating that
all such interested persons have been joined as parties to the action or have
been given reasonable notice thereof. If notice was given, the certificate
shall list the names, if known, of all such persons, the nature of their interest
and the manner of notice.’’
8
The complaint alleges in relevant part: ‘‘11. On April 26, 1972, lot numbers
for the lots show on that certain Map No. 3372 entitled, ‘Resubdivision of
Country View Heights Section II Shaker Court–Meriden’ dated March 27,
1972 (the ‘Shaker Court Resubdivision Map’), were approved by the Tax
Assessor of the City of Meriden.
‘‘12. 24 Shaker Court is and has been at all times relevant designated by
the Tax Assessor of the City of Meriden as ‘Map/Lot: 0911-0323-0003-005A
Card Number 1.’
‘‘13. Shaker Court is and has been at all times relevant listed as a public
street on the official City of Meriden Zoning Map, through and including
the Map Revision dated November 14, 2013 and effective as of November
14, 2013 (the ‘Zoning Map’), and is shown on the Zoning Map as a public
street in the same fashion as all other public streets are shown.’’
9
In their brief on appeal, the defendants failed to address squarely the
litigation privilege. They raised arguments more applicable to a motion to
strike such as whether the complaint fails to state a cause of action or
whether the action is barred by the statute of limitations, and other argu-
ments more properly directed to the merits of the plaintiffs’ cause of action.
We decline to address those arguments as they are not pertinent to an
analysis of the trial court’s subject matter jurisdiction.