Bruno v. The Travelers Companies , 172 Conn. App. 717 ( 2017 )

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LISA BRUNO v. THE TRAVELERS
COMPANIES ET AL.
(AC 38284)
Keller, Mullins and Harper, Js.
Argued January 11—officially released May 2, 2017
(Appeal from Superior Court, judicial district of
Danbury, Truglia, J.)
Lisa Bruno, self-represented, the appellant
(plaintiff).
Stephen E. Goldman, with whom, on the brief, was
Jonathan E. Small, for the appellees (named defendant
et al.).
Opinion
MULLINS, J. The plaintiff, Lisa Bruno, appeals from
the judgment of the trial court, rendered in favor of the
defendants, The Travelers Companies and The Travel-
ers Home and Marine Insurance Company,1 after the
court (1) granted the defendants’ second motion to
strike counts three through nine of the plaintiff’s
amended complaint on the ground of absolute immu-
nity,2 and (2) granted the defendants’ motion for sum-
mary judgment on counts one and two on the grounds
that those counts were brought outside of the two year
limitation period contained in the parties’ contract of
insurance.3 On appeal, the plaintiff claims that the
court’s judgment was improper because (1) ‘‘absolute
immunity implicates the court’s subject matter jurisdic-
tion,’’ and, therefore, the court erred in allowing the
defendants to raise that issue via a motion to strike,
(2) the defendants were not immune to suit on the basis
of an absolute privilege, and (3) the plaintiff’s claims
were not time barred.
After review, we conclude that the litigation privilege
provides an absolute immunity from suit and, thus,
implicates the trial court’s subject matter jurisdiction.4
As such, the plaintiff’s causes of action against the
defendants are barred. We further conclude that the
court should have dismissed the plaintiff’s original com-
plaint, rather than permit her to replead, after it deter-
mined that the doctrine of absolute immunity applied
to her entire complaint. Accordingly, the form of judg-
ment is improper, and we, therefore, reverse the judg-
ment of the trial court and remand the matter with
direction to render a judgment of dismissal.
The trial court set forth the following relevant facts
in its memorandum of decision as to the defendants’
first motion to strike. ‘‘The plaintiff and . . . Stephen
Bruno were divorced in 2008 by order of the Danbury
Superior Court . . . . [In her complaint,] [t]he plaintiff
alleges that on February 24, 2014, a hearing was held in
Danbury Superior Court in her dissolution of marriage
action on a postjudgment motion brought by her former
husband involving court-ordered alimony and support
payments. The plaintiff alleges that an employee or
representative of [the defendants] . . . appeared at
this hearing in response to a subpoena issued by her
former husband’s attorney. The plaintiff further alleges
that the defendants’ employee made certain statements
at this hearing and produced two letters issued by the
defendants that he ‘caused to be entered into evidence,’
both of which, the plaintiff claims, were defamatory to
her. The plaintiff alleges that the defendants intention-
ally and wrongfully allowed their employee to testify
at the hearing and produce the letters in question, and
that these actions have given rise to several causes of
action against them for damages.
‘‘The plaintiff claims that as a result of the defendants’
actions or, alternatively, as a result of the defendants’
failure to contest the subpoena and take actions to
block her former husband’s efforts to compel their
employee’s testimony, they are liable to her . . . . The
plaintiff seeks compensatory, general, punitive, and
consequential damages from the defendants for these
alleged transgressions.’’
On the basis of the aforementioned letters and the
employee’s testimony, both of which the plaintiff
believed contained defamatory statements about her,
the plaintiff commenced this action against the defen-
dants in seven counts: (1) defamation by libel per se,
(2) violation of the Connecticut Insurance Information
and Privacy Protection Act, General Statutes § 38a-975
et seq., (3) negligent infliction of emotional distress,
(4) intentional infliction of emotional distress, (5) viola-
tion of the Connecticut Unfair Trade Practices Act, Gen-
eral Statutes § 42-110a et seq., (6) vicarious liability,
and (7) negligence.
The defendants, thereafter, filed a motion to strike
each count that had been filed against them on the
ground that they were entitled to absolute immunity
due to the applicability of the litigation privilege. The
plaintiff then filed a responsive pleading. Subsequently,
the defendants filed a reply memorandum in which
they argued, in part, that the court’s subject matter
jurisdiction was implicated by the doctrine of absolute
immunity. On January 5, 2015, the court granted the
defendants’ motion to strike each count of the com-
plaint on the ground of absolute immunity, concluding
that the litigation privilege applied. The court, however,
did not address the issue of subject matter jurisdiction.
Given that the court had granted the defendants’
motion to strike, the plaintiff exercised her option to
replead and filed an amended complaint pursuant to
Practice Book § 10-44. In her amended complaint, she
alleged the following causes of action against the defen-
dants: (1) breach of contract, (2) breach of the implied
covenant of good faith and fair dealing, (3) violation of
the Connecticut Unfair Insurance Practices Act, Gen-
eral Statutes § 38a-815 et seq., (4) defamation by libel
per se, (5) violation of the Connecticut Insurance Infor-
mation and Privacy Protection Act, General Statutes
§ 38a-975 et seq., (6) intentional infliction of emotional
distress, (7) violation of the Connecticut Unfair Trade
Practices Act, General Statutes § 42-110a et seq., (8)
vicarious liability, and (9) negligence.
In response to the amended complaint, the defen-
dants filed a motion for judgment on all counts of the
stricken complaint and requested, in the alternative,
that the court strike counts three through nine of the
amended complaint on the ground that it failed to cure
the deficiencies in her original complaint. The defen-
dants also requested summary judgment on the two
new counts of the amended complaint, set forth as
counts one and two, on the basis that they were time
barred by the limitation set forth in the defendants’
contract of insurance with the plaintiff.5 The court
granted the motion and rendered judgment in favor of
the defendants. This appeal followed.
The dispositive issue raised by the plaintiff concerns
her claim that absolute immunity implicates the trial
court’s subject matter jurisdiction. She contends that
the court erred by not ordering the defendants to file
a motion to dismiss rather than permit them to raise
the issue of absolute immunity and the court’s subject
matter jurisdiction in a motion to strike. We agree with
the plaintiff’s contention that absolute immunity impli-
cates the trial court’s subject matter jurisdiction. See
Tyler v. Tatoian, 164 Conn. App. 82, 87, 137 A.3d 801
(‘‘the doctrine of absolute immunity concerns a court’s
subject matter jurisdiction’’ [internal quotation marks
omitted]), cert. denied, 321 Conn. 908, 135 A.3d 710
(2016); Perugini v. Giuliano, 148 Conn. App. 861, 873,
89 A.3d 358 (2014) (same); see also Stone v. Pattis, 144
Conn. App. 79, 95–100, 72 A.3d 1138 (2013) (claim for
negligent infliction of emotional distress against certain
attorney-defendants for communications made while
defending against federal lawsuit was barred by abso-
lute immunity because communications were abso-
lutely privileged; trial court properly dismissed claim
for lack of subject matter jurisdiction).
We disagree, however, on what was the appropriate
action for the trial court to take once this issue, or a
doctrine implicating subject matter jurisdiction, was
raised. Here, once the defendants raised the issue of
absolute immunity, based on the application of the liti-
gation privilege, and the court then determined that the
plaintiff’s initial complaint was barred by the doctrine
of absolute immunity, the court should have dismissed
the case against the defendants, essentially treating the
motion to strike as a motion to dismiss.6 See Practice
Book § 10-30 (a) (1) (‘‘[a] motion to dismiss shall be
used to assert . . . lack of jurisdiction over the subject
matter’’); see generally Branford v. Monaco, 48 Conn.
App. 216, 219 n.4, 709 A.2d 582 (although ‘‘[t]he defen-
dants asserted their claim of lack of subject matter
jurisdiction as a special defense . . . [a] motion to dis-
miss is the proper procedural device to raise a claim
of lack of subject matter jurisdiction’’), cert. denied,
245 Conn. 903, 719 A.2d 900 (1998).
‘‘[S]ubject matter jurisdiction involves the authority
of the court to adjudicate the type of controversy pre-
sented by the action before it . . . and a judgment ren-
dered without subject matter jurisdiction is void. . . .
Further, it is well established that a reviewing court
properly may address jurisdictional claims that neither
were raised nor ruled on in the trial court.’’ (Internal
quotation marks omitted.) Deutsche Bank National
Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 798, 3
A.3d 183 (2010). ‘‘[O]nce the question of lack of jurisdic-
tion of a court is raised, [it] must be disposed of no
matter in what form it is presented . . . and the court
must fully resolve it before proceeding further with
the case.’’ (Internal quotation marks omitted.) Milford
Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616,
624–25, 822 A.2d 196 (2003).
‘‘As the doctrine of absolute immunity concerns a
court’s subject matter jurisdiction . . . 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.
. . . The question before us is whether the facts as
alleged in the pleadings, viewed in the light most favor-
able to the plaintiff, are sufficient to survive dismissal
on the grounds of absolute immunity.’’ (Internal quota-
tion marks omitted.) Tyler v. Tatoian, supra, 164 Conn.
App. 87.
‘‘Connecticut has long recognized the litigation privi-
lege . . . [and has extended it] to judges, counsel and
witnesses participating in judicial proceedings.’’ (Cita-
tion omitted; internal quotation marks omitted.) Simms
v. Seaman, 308 Conn. 523, 536–37, 69 A.3d 880 (2013);
see also Villages, LLC v. Longhi, 166 Conn. App. 685,
699, 142 A.3d 1162, cert. denied, 323 Conn. 915, 149
A.3d 498 (2016).
In MacDermid, Inc. v. Leonetti, 310 Conn. 616, 79
A.3d 60 (2013), our Supreme Court explained: ‘‘In
Simms, we noted that the doctrine of absolute immu-
nity originated in response to the need to bar persons
accused of crimes from suing their accusers for defama-
tion. [Simms v. Seaman, supra, 308 Conn.] 531. The
doctrine then developed to encompass and bar defama-
tion claims against all participants in judicial proceed-
ings, including judges, attorneys, parties, and witnesses.
Id., 532. We further noted that, [l]ike other jurisdictions,
Connecticut has long recognized the litigation privilege,
and that [t]he 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 action
in slander . . . . Id., 536.
‘‘Furthermore, in Rioux v. Barry, [283 Conn. 338,
343–44, 927 A.2d 304 (2007),] we explained that [t]he
purpose of affording absolute immunity to those who
provide information in connection with judicial and
quasi-judicial proceedings is that in certain situations
the public interest in having people speak freely out-
weighs the risk that individuals will occasionally abuse
the privilege by making false and malicious statements.
. . . [T]he possibility of incurring the costs and incon-
venience associated with defending a [retaliatory] suit
might well deter a citizen with a legitimate grievance
from filing a complaint. . . . Put simply, absolute
immunity furthers the public policy of encouraging par-
ticipation and candor in judicial and quasi-judicial pro-
ceedings. This objective would be thwarted if those
persons whom the common-law doctrine [of absolute
immunity] was intended to protect nevertheless faced
the threat of suit. . . .
‘‘In Simms v. Seaman, supra, 308 Conn. 540–45, we
further discussed the expansion of absolute immunity
to bar retaliatory civil actions beyond claims of defama-
tion. For example, we have concluded that absolute
immunity bars claims of intentional interference with
contractual or beneficial relations arising from state-
ments made during a civil action. See Rioux v. Barry,
supra, 283 Conn. 350–51 (absolute immunity applies
to intentional interference with contractual relations
because that tort comparatively is more like defamation
than vexatious litigation). We have also precluded
claims of intentional infliction of emotional distress
arising from statements made during judicial proceed-
ings on the basis of absolute immunity. See DeLaurentis
v. New Haven, 220 Conn. 225, 263–64, 597 A.2d 807
(1991). Finally, we have most recently applied absolute
immunity to bar retaliatory claims of fraud against attor-
neys for their actions during litigation. See Simms v.
Seaman, supra, 545–46. In reviewing these cases, it
becomes clear that, in expanding the doctrine of abso-
lute immunity to bar claims beyond defamation, this
court has sought to ensure that the conduct that abso-
lute immunity is intended to protect, namely, participa-
tion and candor in judicial proceedings, remains
protected regardless of the particular tort alleged in
response to the words used during participation in the
judicial process. Indeed, we recently noted that [c]om-
mentators have observed that, because the privilege
protects the communication, the nature of the theory
[on which the challenge is based] is irrelevant.’’
(Emphasis omitted; internal quotation marks omitted.)
MacDermid, Inc. v. Leonetti, supra, 310 Conn. 627–29.
‘‘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.’’ (Internal
quotation marks omitted.) Villages, LLC v. Longhi,
supra, 166 Conn. App. 699.
In the present case, there is no doubt that the state-
ments made and the documents produced by represen-
tatives of the defendants were made or produced in a
formal judicial proceeding. The proceeding was a hear-
ing in the Connecticut Superior Court, before a judge
of the Superior Court, and the representative of the
defendants was there as a witness, appearing in
response to a subpoena by the plaintiff’s former hus-
band, who was a party to the proceeding. The docu-
ments produced also were in response to an issued
subpoena.
As to the relevance of the statements or documents
produced by the defendants in response to the issued
subpoena and the questions that were asked during
trial, we note that our law provides for a very generous
test for relevance. See Gallo v. Barile, 284 Conn. 459,
467, 935 A.2d 103 (2007). We also note that the defen-
dants are not alleged to have acted outside of the sub-
poena or to have done anything more than answer
questions and produce documents that were asked or
requested of them during the hearing. See O’Coin v.
Woonsocket Institution Trust Co., 535 A.2d 1263, 1267
(R.I. 1988) (In holding that absolute privilege applied
in this case in which the defendant bank, pursuant to
a subpoena duces tecum, produced documents and a
witness to testify in relation thereto, the Supreme Court
explained: ‘‘[W]hen a witness is asked a question, and
no objection is made thereto, or, if made, is overruled,
it is the duty of the witness to answer. The witness is
not charged with the duty of determining whether the
information sought is relevant or material. Such ques-
tions are solely the province of the trial court . . . and
the witness cannot be held liable in a civil suit for his
answer. . . . To hold otherwise would be manifestly
unfair to the witness, who often, but not always is
untrained in legal matters, timid, and appears at the
behest of some third party.’’ [Citations omitted.]).
As explained by the trial court in its memorandum
of decision as to the defendants’ first motion to strike,
‘‘the parties’ respective pleadings set forth the following
undisputed facts. First, the plaintiff’s former husband
attempted to introduce the evidence in question during
a part of the hearing related to alimony. The plaintiff did
not object to introduction of the letters into evidence at
this time but did object to the witness’ testimony on
relevancy grounds. The court . . . agreed and sus-
tained the plaintiff’s objection to the witness’ testimony
on the ground that it was not relevant to this question
[of alimony]. [Counsel for the plaintiff’s] former hus-
band . . . then attempted to introduce the . . . testi-
mony [of the defendants’ representative] later in the
same hearing on the court’s consideration of ‘shelter
expenses,’ which the court permitted. Given these facts,
and considering the rule that relevancy must be gener-
ously construed, the court finds that the statements
were relevant to the matters at hand. The court there-
fore finds that the oral testimony of the defendants’
employee and the contents of the two letters provided
by him at the hearing are covered by the doctrine of
absolute immunity.’’ We agree with the trial court.
The defendants produced documents and provided
testimony specifically in response to the subpoena
issued by the plaintiff’s former husband. The defen-
dants’ testimony and disclosures were made in a formal
judicial proceeding, and they were relevant to that pro-
ceeding. Therefore, we conclude the court properly
determined that the documents and testimony are pro-
tected by the doctrine of absolute immunity, as applied
to the litigation privilege.
We further conclude, however, that, because absolute
immunity protects a party from suit and implicates the
trial court’s subject matter jurisdiction, once the trial
court determined that the doctrine of absolute immu-
nity applied in this matter, it should have dismissed
the plaintiff’s original complaint against the defendants.
The plaintiff should not have been given the opportunity
to replead because the court was without jurisdiction
to permit a repleading. Accordingly, any action taken
after the court determined that absolute immunity
applied to all of the plaintiff’s causes of action against
the defendants is void; the court had no jurisdiction.
See State v. Ramos, 306 Conn. 125, 142, 49 A.3d 197
(2012) (‘‘‘Under well established law, it is clear that the
trial court’s lack of subject matter jurisdiction to hear
the motion to withdraw rendered void its denial of that
motion. See Commissioner of Transportation v. Rocky
Mountain, LLC, 277 Conn. 696, 725, 894 A.2d 259 (2006);
see also 1 A. Freeman, Judgments (5th Ed. 1925) § 322,
pp. 643–44 (‘‘A judgment void upon its face and requir-
ing only an inspection of the record to demonstrate its
invalidity is a mere nullity, in legal effect no judgment
at all, conferring no right and affording no justification.
. . . It neither binds nor bars anyone. All acts per-
formed under it and all claims flowing out of it are
void.’’).’ State v. Reid, [277 Conn. 764, 776, 894 A.2d 963
(2006)]’’); Scarfo v. Snow, 168 Conn. App. 482, 484,
146 A.3d 1006 (2016) (despite trial court’s thorough
memorandum of decision, when form of judgment
improper due to lack of subject matter jurisdiction,
judgment must be reversed and matter remanded to
trial court with direction to dismiss case).
In sum, because the defendants were entitled to abso-
lute immunity, the court lacked jurisdiction, and the
court, therefore, should have dismissed the case.
The form of the judgment is improper, the judgment
is reversed, and the case is remanded with direction to
render judgment of dismissal.
In this opinion the other judges concurred.
1
In her amended complaint, the plaintiff also set forth a single count
against her former husband, Stephen Bruno. This appeal does not involve
that cause of action. Accordingly, we refer to The Travelers Companies and
The Travelers Home and Marine Insurance Company as the defendants in
this appeal.
2
In Simms v. Seaman, 308 Conn. 523, 525 n.1, 69 A.3d 880 (2013), ‘‘[t]he
terms ‘absolute immunity’ and ‘litigation privilege’ [were] used interchange-
ably throughout [that] opinion. See, e.g., R. Burke, ‘Privileges and Immunities
in American Law,’ 31 S.D. L. Rev. 1, 2 (1985) (defining ‘privilege’ as ‘a
special favor, advantage, recognition or status’ and ‘immunity’ as ‘a special
exemption from all or some portion of the legal process and its judgment’).’’
It appears that other cases and treatises also use the term ‘‘absolute privilege’’
interchangeably with those previously mentioned. See, e.g., Gallo v. Barile,
284 Conn. 459, 466, 935 A.2d 103 (2007) (‘‘[t]he 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’’); 53 C.J.S. 166, Libel &
Slander: Injurious Falsehood § 112 (2005) (‘‘[a]bsolute privilege confers
immunity from liability for defamation regardless of motive’’). Despite the
frequent interchangeability of these terms, we have tried, where possible,
to distinguish between the terms ‘‘absolute immunity’’ and ‘‘litigation privi-
lege’’ or ‘‘absolute privilege.’’
3
The defendants filed a single pleading, labeled ‘‘motion for judgment,’’
combining a second motion to strike and motion for summary judgment.
4
Like sovereign immunity, the doctrine of absolute immunity ‘‘protects
against suit as well as liability—in effect, against having to litigate at all.’’
(Emphasis added.) Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776,
786, 865 A.2d 1163 (2005). ‘‘Our determination is dictated by the underlying
purpose of the immunity afforded at common law to those who provide
information in connection with judicial and quasi-judicial proceedings,
namely, that in certain situations the public interest in having people speak
freely outweighs the risk that individuals will occasionally abuse the privilege
by making false and malicious statements. . . . Put simply, absolute immu-
nity furthers the public policy of encouraging participation and candor in
judicial and quasi-judicial proceedings. This objective would be thwarted if
those persons whom the common-law doctrine was intended to protect
nevertheless faced the threat of suit. In this regard, the purpose of the
absolute immunity afforded participants in judicial and quasi-judicial pro-
ceedings is the same as the purpose of the sovereign immunity enjoyed
by the state.’’ (Citation omitted; emphasis added; internal quotation marks
omitted.) Id., 786–87. ‘‘[S]overeign immunity . . . includes immunity from
suit and immunity from liability . . . . Immunity from suit on the basis of
sovereign immunity implicates subject matter jurisdiction . . . .’’ (Citation
omitted.) Edgerton v. Clinton, 311 Conn. 217, 227 n.9, 86 A.3d 437 (2014).
5
We note that count three of the amended complaint also appears to
allege a new cause of action from those alleged in the original complaint.
6
‘‘[A] motion to dismiss . . . properly attacks the jurisdiction of the court,
essentially asserting that the plaintiff cannot as a matter of law and fact
state a cause of action that should be heard by the court.’’ (Internal quotation
marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d
940 (2013). ‘‘By contrast, the motion to strike attacks the sufficiency of the
pleadings. . . . There is a significant difference between asserting that a
plaintiff cannot state a cause of action and asserting that a plaintiff has not
stated a cause of action, and therein lies the distinction between the motion
to dismiss and the motion to strike.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Pecan v. Madigan, 97 Conn. App. 617,
621, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).
Given that absolute immunity implicates subject matter jurisdiction, a
motion to dismiss is a proper vehicle through which to raise a claim of
absolute immunity. By the same token, because this doctrine implicates
subject matter jurisdiction, the particular manner through which it is raised
is not dispositive.