Kenneson v. Eggert , 176 Conn. App. 296 ( 2017 )

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KIMBERLY KENNESON v. CELIA EGGERT ET AL.
(AC 38784)
Keller, Beach and Harper, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney, E, and
the defendant insurance company, N Co., claiming that E had committed
fraud against the plaintiff and that N Co. was vicariously liable for E’s
actions. The plaintiff previously had brought an action for, inter alia,
negligence against A, who was insured by N Co., and another individual,
R. A was represented by E on behalf of N Co. in the negligence action
and after a trial, a jury awarded the plaintiff damages against both A
and R. Pursuant to a settlement agreement in that action, the plaintiff
had signed a general release and withdrawal form in exchange for settling
the case against A for $67,000. After the plaintiff discovered that she
was unable to recover damages from R, she subsequently claimed in a
motion to open the judgment in the negligence action that E had engaged
in unfair and deceptive behavior by instructing her to sign the release
without explaining what it was and how it could affect the judgment
in that action. Specifically, the plaintiff alleged that E had misrepresented
to her that she would not get any of the damages awarded to her under
the settlement unless she signed the general release and withdrawal.
After the trial court in the negligence action denied her motion to open
and concluded that there was no evidence that E had coerced the plaintiff
into signing the release, the plaintiff commenced the action against E
and N Co. alleging fraud. In connection with discovery requests made
by the plaintiff, the defendants provided a large number of documents
but withheld several e-mails between them, claiming that the e-mails
were protected by the attorney-client privilege and the work product
doctrine. The trial court denied the plaintiff’s motions for an order for
compliance, concluding that the documents were protected and that
the plaintiff had offered no proof to support a claim of fraud that would
permit the attorney-clcient privilege to be pierced. Thereafter, the court
granted the defendants’ motion for summary judgment and rendered
judgment thereon, concluding that the plaintiff was collaterally estopped
from asserting her fraud action because the issue had been addressed
in the plaintiff’s previous negligence action, and the plaintiff appealed
to this court. Held:
1. The trial court improperly granted the defendants’ motion for summary
judgment as to the plaintiff’s claim for intentional misrepresentation
and determined that the claim was precluded by collateral estoppel, as
genuine issues of material fact existed as to whether the claim for
intentional misrepresentation set forth in the complaint underlying the
appeal in the present case was fully and fairly litigated and actually
decided at the hearing on the motion to open the negligence action; it
was unclear from the record what facts were necessarily determined
in the prior action with respect to the precise wording of E’s alleged
misrepresentation, as although the court in that action found that there
was no evidence that the plaintiff had executed the release as a result
of coercion, which is different from the issue of intentional misrepresen-
tation, the court did not specifically address whether the plaintiff failed
to prove the elements of a claim for fraudulent misrepresentation, and
in order for collateral estoppel to bar relitigation, the issue sought to be
relitigated must be identical to the one decided in the prior proceeding.
2. The defendants could not prevail on their claim, raised as an alternative
ground for affirming the summary judgment, that because the alleged
misrepresentation did not relate to a past or existing fact, it was not
actionable and, thus, summary judgment was nonetheless proper: there
having been no determination by a court of precisely what, if anything,
E told the plaintiff at the settlement conference, it was possible that
E’s alleged misrepresentation could have been construed by the plaintiff
as relating to an existing fact by suggesting that the current state of the
law was such that the plaintiff could not receive the amount of the
judgment unless she signed the release, and, therefore, a genuine issue
of material fact existed that precluded summary judgment; moreover,
although the defendants claimed that, given certain inconsistencies in
the plaintiff’s allegations, her claim against them should be disposed of
pursuant to the sham affidavit rule, pursuant to which practice a trial
court may disregard an offsetting affidavit in opposition to a motion
for summary judgment that contradicts an affiant’s prior deposition
testimony, any inconsistencies in the plaintiff’s allegations bore on her
credibility and did not destroy the probative value of the evidence, and
even if this court were to accept the very narrow sham affidavit rule,
which has yet to be expressly recognized by Connecticut appellate
courts, the rule would not have been triggered under the circumstances
of this case.
3. The trial court properly determined that no genuine issue of material fact
existed as to whether the plaintiff could establish a claim for fraudulent
nondisclosure; to establish that E’s silence regarding the potential effects
of the release and withdrawal constituted fraudulent conduct, the plain-
tiff had to prove that the parties’ relationship imposed a duty on E to
explain the potential effects of those documents to the plaintiff, and
the trial court found that no such relationship existed in the present
case because E was providing legal representation to the plaintiff’s
adversary, A, and not to the plaintiff, who presented no evidence to
counter that fact.
4. The trial court did not abuse its discretion in denying the plaintiff’s motions
for compliance; contrary to the plaintiff’s claim, that court properly
determined that certain documents sought by the plaintiff were pro-
tected by the attorney-client privilege and the work product doctrine,
which were not time limited to the previous tort case as alleged by
the plaintiff.
Argued March 9—officially released September 12, 2017
Procedural History
Action to recover damages for fraud, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Waterbury, where the court, Roraback, J.,
denied the plaintiff’s motions for an order for compli-
ance; thereafter, the court granted the defendants’
motion for summary judgment and rendered judgment
thereon, from which the plaintiff appealed to this court.
Reversed in part; further proceedings.
Kimberly Kenneson, self-represented, the appellant
(plaintiff).
Robert D. Laurie, with whom, on the brief, was
Heather L. McCoy, for the appellees (defendants).
Opinion
BEACH, J. The plaintiff, Kimberly Kenneson, appeals
from the trial court’s summary judgment rendered in
favor of the defendants, Celia Eggert and Nationwide
Mutual Fire Insurance Company (Nationwide). On
appeal, the plaintiff contends that the court improperly
held that (1) the defendants were entitled to summary
judgment, and (2) certain communications were not
discoverable. We reverse in part the trial court’s sum-
mary judgment and affirm the court’s denial of the plain-
tiff’s motions for an order for compliance with the
court’s discovery order.
The record reveals the following relevant facts and
procedural history. In January, 2007, the plaintiff com-
menced a civil action against Carl Rosati and Michael
Altman for negligence, battery, and recklessness (negli-
gence action).1 Altman was insured by Nationwide, and
Nationwide agreed to provide Altman with a defense.
Nationwide arranged for the Law Offices of John Cala-
brese to represent Altman. Eggert, an attorney with that
firm, represented Altman at trial. The plaintiff repre-
sented herself at trial and obtained a jury verdict in
her favor. The jury awarded the plaintiff damages of
$67,556.07 against Altman and $380,037.38 against
Rosati. Although he was served with process, Rosati
did not appear at trial. After the verdict was accepted
by the court, Altman filed a motion to set aside the
verdict and a motion for collateral source reduction.
Several weeks later, on July 18, 2011, the plaintiff,
Eggert, and a Nationwide claims adjuster appeared in
court for a hearing on the motions and a settlement
conference. At the settlement conference, Nationwide
offered the plaintiff $57,000 to settle the case against
Altman, which the plaintiff declined. Nationwide then
offered the plaintiff $67,000, which the plaintiff ulti-
mately accepted.
Pursuant to the settlement agreement, the plaintiff
signed a general release and a withdrawal form. The
release provided, in relevant part, that ‘‘[b]y signing this
release, [the plaintiff] expressly acknowledges that he/
she has read this document with care and that he/she
is aware that by signing this document he/she is giving
up all rights and claims and causes of action, and any
and all rights and claims that he/she may now have or
which may arise in the future . . . against [Nationwide
and Altman] . . . . Knowing this . . . he/she signs
this document voluntarily and freely without duress.’’
The release also stated that ‘‘[the plaintiff] further
acknowledges that no representation of fact or opinion
has been made to him/her by [Nationwide and Altman]
. . . which in any manner has induced [the plaintiff]
to agree to this settlement.’’ The plaintiff signed the
release before two witnesses and a notary public.
The plaintiff subsequently discovered that she was
unable to collect damages from Rosati, who had been
uninsured and had died without assets in August, 2013.
On April 28, 2014, the plaintiff filed a motion to open
the judgment and a motion to reinstate Altman as a
defendant. The plaintiff argued that she did not know
that signing the release would prevent her from reallo-
cating the damages, at least in part, against Rosati to
Altman and Nationwide, and that Eggert engaged in
‘‘unfair and deceptive’’ behavior when she instructed
her to sign the release ‘‘without explaining what it was
and how it can affect a judgment.’’
Altman filed an objection, arguing that the release
was valid and that the plaintiff was aware of the nature
of the document when she signed it. On June 20, 2014,
the court, Pellegrino, J., heard oral argument on the
plaintiff’s motion to open. During oral argument, Judge
Pellegrino questioned the plaintiff regarding the alleged
fraud committed by Eggert. Judge Pellegrino ultimately
denied the plaintiff’s motion, noting that there was no
evidence that Eggert had coerced the plaintiff into sign-
ing the release, and that the release, by its terms, pro-
vided that the plaintiff had read the document with
care. The plaintiff did not appeal from Judge Pelle-
grino’s decision.
On July 17, 2014, the plaintiff commenced the present
action against the defendants, alleging that Eggert had
committed fraud against the plaintiff and that Nation-
wide was vicariously liable for her actions. The plaintiff
subsequently made several discovery requests to the
defendants, and the defendants objected. After a hear-
ing, the court ordered the defendants to produce
responsive documents and to provide a privilege log
for any documents they redacted or withheld. The
defendants subsequently provided a large number of
documents, but withheld several e-mails between them,
claiming that those communications were protected by
attorney-client privilege and the work product doctrine.
The plaintiff filed motions for compliance against both
defendants. The court heard oral argument and denied
the plaintiff’s motions. The court held that the plaintiff
was not entitled to materials protected by the attorney
client privilege or the work product doctrine, and that
the plaintiff had offered ‘‘[n]o quantum of proof . . .
to support a claim of civil fraud which would permit
the privilege to be pierced.’’
On December 4, 2014, the defendants filed a motion
for summary judgment, arguing that the plaintiff’s claim
was barred by the doctrine of collateral estoppel,
because Judge Pellegrino’s decision on the plaintiff’s
motion to open in the negligence action had previously
addressed the fraud issue. They also argued that the
claim was barred by the terms and conditions of the
release. The plaintiff filed a memorandum of law in
opposition to the motion to which the defendants
replied, and the parties appeared for argument on
August 8, 2015. The court held that the plaintiff was
collaterally estopped from asserting her fraud claims
and that, even if collateral estoppel did not apply, the
defendants were entitled to summary judgment because
the plaintiff was unable to prove her claims for com-
mon-law fraud. The plaintiff appeals from the court’s
summary judgment and its denial of her motions for
compliance. Additional facts will be set forth as nec-
essary.
I
The plaintiff first claims that the trial court improp-
erly granted the defendants’ motion for summary judg-
ment. We agree with the plaintiff that a genuine issue
of material fact exists as to her claim for intentional
misrepresentation, but disagree with her claim that the
court erred in granting the motion for summary judg-
ment on her claim for fraudulent nondisclosure.
As a preliminary matter, we state the standard of
review applicable to the resolution of the plaintiff’s
appeal. ‘‘Practice Book § [17-49] provides that summary
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 seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact.
‘‘It is not enough . . . for the opposing party merely
to assert the existence of such a disputed issue. Mere
assertions of fact . . . are insufficient to establish the
existence of a material fact and, therefore, cannot refute
evidence properly presented to the court . . . . [T]ypi-
cally [d]emonstrating a genuine issue requires a show-
ing of evidentiary facts or substantial evidence outside
the pleadings from which material facts alleged in the
pleadings can be warrantably inferred. . . . Our review
of the decision to grant a motion for summary judgment
is plenary. . . . We therefore must decide whether the
court’s conclusions were legally and logically correct
and find support in the record.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Brown v. Otake, 164 Conn. App. 686, 699–701, 138 A.3d
951 (2016).
In her amended complaint, the plaintiff effectively
presented two claims for fraud. First, she alleged that
Eggert ‘‘falsely represented to the plaintiff . . . that
she would not get any of her $67,556.07 award against
. . . Altman unless she signed a document . . . to set-
tle the judgment . . . .’’ Second, she alleged that
‘‘Eggert, with the intent to deceive the plaintiff, know-
ingly failed to disclose and/or concealed that [the
release and withdrawal] would result in the loss of the
plaintiff’s right to reallocate damages . . . .’’ We
address each of the plaintiff’s claims in turn.
A
The plaintiff first sets forth a claim for fraud based
on intentional misrepresentation. ‘‘The essential ele-
ments of an action in common law fraud, as we have
repeatedly held, are that: (1) a false representation was
made as a statement of fact; (2) it was untrue and known
to be untrue by the party making it; (3) it was made to
induce the other party to act upon it; and (4) the other
party did so act upon that false representation to his
injury. . . . In contrast to a negligent representation,
[a] fraudulent representation . . . is one that is know-
ingly untrue, or made without belief in its truth, or
recklessly made and for the purpose of inducing action
upon it.’’ (Citation omitted; internal quotation marks
omitted.) Sturm v. Harb Development, LLC, 298 Conn.
124, 142, 2 A.3d 859 (2010).
The court determined that the defendants were enti-
tled to summary judgment because the plaintiff’s claim
(1) was precluded by collateral estoppel, (2) was based
on a misrepresentation that did not relate to an existing
or past fact, and therefore was not actionable, and (3)
constituted a sham claim pursuant to the sham affidavit
rule. The defendants argue that all three of the court’s
determinations were proper. We disagree.
1
The plaintiff argues that the court erred in concluding
that her intentional misrepresentation claim was pre-
cluded by collateral estoppel. She reasons that Judge
Pellegrino ‘‘did not, at the June 20, 2014 hearing, con-
sider the issues raised in the complaint, namely, the
fraudulent statements made by . . . Eggert to the
plaintiff that the plaintiff was required to sign a release
and withdraw her case against . . . Altman in order to
obtain the damages awarded by the jury.’’ We agree.
‘‘Collateral estoppel, or issue preclusion, prohibits
the relitigation of an issue when that issue was actually
litigated and necessarily determined in a prior action.
. . . For an issue to be subject to collateral estoppel,
it must have been fully and fairly litigated in the first
action. It also must have been actually decided and the
decision must have been necessary to the judgment.’’
(Citations omitted; internal quotation marks omitted.)
Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285,
296, 596 A.2d 414 (1991). ‘‘To establish whether collat-
eral estoppel applies, the court must determine what
facts were necessarily determined in the first trial, and
must then assess whether the [party] is attempting to
relitigate those facts in the second proceeding.’’ (Inter-
nal quotation marks omitted.) Id., 297. ‘‘In order for
collateral estoppel to bar the relitigation of an issue in
a later proceeding, the issue concerning which relitiga-
tion is sought to be estopped must be identical to the
issue decided in the prior proceeding.’’ (Emphasis
added.) Id.
First, it is not clear to us that the claim for intentional
misrepresentation set forth in the complaint underlying
this appeal was ‘‘actually litigated’’ at the hearing before
Judge Pellegrino on the plaintiff’s motion to open in the
negligence action. In her motion to open, the plaintiff
claimed that ‘‘[Eggert] stated I had to sign the [release]
in order to receive the check she was going to give me
for damages won from her client’’ and that ‘‘[i]t was
explained that I would have to sign the documents if I
was to collect what was owed to me by . . . Altman.’’
(Emphasis added.) Following the plaintiff’s jury verdict
in the negligence action, the plaintiff was awarded
$67,556.07 in damages against Altman. The plaintiff ulti-
mately released Altman in return for $67,000. In pre-
senting her claim at the hearing on the motion to open,
the plaintiff occasionally referred to the damages
awarded by the jury as ‘‘$67,000.’’
A careful review of the transcript of that hearing
reveals that there may have been a lack of clarity as to
whether the plaintiff claimed that Eggert had told her
that she could not receive the damages award unless
she signed the release, or that Eggert had told her that
she would not receive the amount in settlement of the
case unless she signed the release. For example, when
the plaintiff argued that she never would have signed
the release had she known that it would prevent her
from reallocating damages, the court stated: ‘‘And you
would have never gotten the 60—$67,000.’’ The plaintiff
responded: ‘‘I was awarded that, Your Honor.’’ The
court responded: ‘‘All right.’’ Later, the court stated to
the plaintiff: ‘‘I mean, what—that’s not fraudulent, that’s
just a statement of fact. My client will not permit me
to give you $67,000 of my money, unless the plaintiff
signs a release as to me.’’ The plaintiff responded: ‘‘Well,
my argument there, Your Honor, is I didn’t need to sign
a release, $67,000 was . . . awarded to me . . . I
didn’t need to. It was a satisfaction . . . of judgment
. . . .’’
Because of these apparent miscommunications, it is
difficult for us to discern ‘‘what facts were necessarily
determined’’ in the prior action with respect to the
precise wording2 of Eggert’s alleged misrepresentation.
As a result, there exists a genuine issue of material
fact as to whether the claim set forth in the complaint
underlying this appeal—that Eggert represented to the
plaintiff that ‘‘she would not get any of her $67,556.07
award against . . . Altman unless she signed a docu-
ment for $67,000 to settle the judgment’’—was fully and
fairly litigated at the hearing on the motion to open.
Furthermore, it is not clear to us that the issue of
intentional misrepresentation was ‘‘actually decided’’
by the court in rendering its decision on the motion to
open. Although the court concluded that ‘‘[t]here was
no evidence presented that [the plaintiff] was in any way
coerced to execute the release,’’ it did not specifically
address whether the plaintiff had failed to prove the
elements of a claim for fraudulent misrepresentation.
As noted previously, in order for collateral estoppel to
bar the relitigation of an issue, ‘‘the issue concerning
which relitigation is sought to be estopped must be
identical to the issue decided in the prior proceeding.’’
(Emphasis added.) Aetna Casualty & Surety Co. v.
Jones, supra, 220 Conn. 297. The issue of intentional
misrepresentation is different from the issue of coer-
cion. As such, a genuine issue of material fact remains
as to whether the issue of intentional misrepresentation
was ‘‘actually decided’’ by the court in rendering its
decision on the plaintiff’s motion to open.
Because a genuine issue of material fact exists as to
whether the plaintiff’s claim for intentional misrepre-
sentation was ‘‘fully and fairly litigated’’ and ‘‘actually
decided’’ in the context of her motion to open, the trial
court improperly rendered summary judgment on the
basis of collateral estoppel.3
2
The defendants argue, as an alternative ground for
affirming the judgment, that the trial court properly
determined that, even if the plaintiff’s claim for inten-
tional misrepresentation was not barred by collateral
estoppel, the defendants nonetheless were entitled to
summary judgment because the alleged misrepresenta-
tion did not relate to a past or existing fact and, there-
fore, was not actionable. We disagree.
‘‘A representation of fact is a positive assertion that
the fact is true. It implies that the maker has definite
knowledge or information which justifies the positive
assertion.’’ 3 Restatement (Second), Torts, § 538A, com-
ment (a), p. 83 (1977). ‘‘[T]he general rule is that a
misrepresentation must relate to an existing or past
fact’’ to be actionable. Brown v. Otake, supra, 164 Conn.
App. 706. Our Supreme Court ‘‘ha[s] not yet addressed
whether statements of judgment or statements condi-
tioned on future events can support a claim for misrep-
resentation, although many other jurisdictions have
adopted a position against such claims.’’ Glazer v. Dress
Barn, Inc., 274 Conn. 33, 75 n.32, 873 A.2d 929 (2005).
In determining whether a statement constitutes a state-
ment of fact, as opposed to, for example, a statement
of judgment or opinion, ‘‘[t]he question is . . . not
alone one of the language used but of the sense in which
it is reasonably understood.’’ 3 Restatement (Second),
supra, § 538A, comment (d), p. 84.4
As set forth in the plaintiff’s complaint, Eggert alleg-
edly misrepresented to the plaintiff that ‘‘she would not
get any of her $67,556.07 award against . . . Altman
unless she signed a document for $67,000 to settle the
judgment on the verdict for negligence against [Altman]
and also with[drew] the case against him.’’ The defen-
dants argue that this statement did not relate to an
existing or past fact and, therefore, is not actionable.
We are not persuaded.
Because no court has determined precisely what, if
anything, Eggert said to the plaintiff at the settlement
conference, is it difficult to determine how Eggert’s
alleged misrepresentation may reasonably have been
understood by the plaintiff. It is entirely possible that
the alleged misrepresentation could be construed as
relating to an existing fact. For example, Eggert’s
alleged statement possibly may have suggested that the
current state of the law was such that the plaintiff was
not able to receive the amount of the judgment unless
she signed the release.5 In addition, because the plaintiff
was self-represented, she may have presumed Eggert,
an attorney, to have special knowledge of facts
unknown to her in the context of a legal proceeding.
See Restatement (Second), supra, § 539, comment (b),
p. 86 (‘‘The statement of opinion . . . may also reason-
ably be understood to imply that [the maker] does know
facts sufficient to justify him in forming the opinion
. . . . This is true particularly when the maker is under-
stood to have special knowledge of facts unknown to
the recipient.’’); see also Crowther v. Guidone, 183
Conn. 464, 468, 441 A.2d 11 (1981) (‘‘Considered in
context, Guidone’s statement that the plaintiffs could
build a house on the subject property and then divide
the parcel, selling the balance of the property to others,
clearly was made as a statement of fact. . . . Guidone
was an experienced real estate salesman who had
extensive knowledge of the zoning regulations of North
Branford. Thus, when he made the misrepresentation,
he did not merely venture an opinion or an interpreta-
tion of the law. He indicated that he knew, as a fact,
that a certain use was permissible under the applicable
zoning regulations.’’)
Because we must view the evidence in the light most
favorable to the plaintiff; see Martel v. Metropolitan
District Commission, 275 Conn. 38, 46, 881 A.2d 194
(2005); and because we cannot disregard the interpreta-
tion that the alleged misrepresentation reasonably
could have been understood to relate to an existing set
of affairs, there was a genuine issue of fact such that
we decline to affirm a grant of summary judgment on
this ground.
3
The defendants also argue that they were entitled
to summary judgment because, based on the ‘‘glaring
inconsistencies in what the plaintiff alleged that
[Eggert] said at the hearing before Judge Pellegrino,
and what the plaintiff averred in her affidavit opposing
summary judgment,’’ it was clear that the plaintiff was
presenting a sham claim. We disagree.
‘‘The ‘sham affidavit’ rule refers to the trial court
practice of disregarding an offsetting affidavit in opposi-
tion to a motion for summary judgment that contradicts
the affiant’s prior deposition testimony.’’ Ross v. Dugan,
Superior Court, judicial district of New London, Docket
No. CV-106006404-S, (December 16, 2011). ‘‘It must be
strongly emphasized that the sham affidavit rule is a
narrowly circumscribed doctrine that is to be applied
with care. . . . [M]any courts have determined that if
the witness provides a reasonable explanation for the
contradiction, such as confusion or discovery of new
evidence, the sham affidavit rule should not apply.’’
(Citations omitted.) Id. Connecticut appellate courts
have yet to expressly adopt this rule. Id.
The defendants claim that ‘‘[d]uring the hearing, the
plaintiff said, ‘when I asked Attorney Eggert what [the
document was] her words to me were, you have to sign
this document to get this check . . . .’ In contrast, the
plaintiff’s affidavit opposing the [defendants’] summary
judgment motion avers as follows: ‘the defendant
Eggert then falsely represented to me, pro se, that I
would not get any of my $67,556.07 award against . . .
Altman unless I signed a document . . . to settle the
judgment . . . .’’ The defendants argue that because
of this inconsistency, the plaintiff’s claim should be
disposed of pursuant to the sham affidavit rule.
Although we agree that the two statements may not
have been entirely consistent, the shades of meaning
were somewhat abstract, especially to a layperson. Any
inconsistency may of course bear on the question of
credibility, but it does not destroy all probative value.
Even if we were to accept the very narrow ‘‘sham affida-
vit rule,’’ which, again, has yet to be expressly recog-
nized by Connecticut appellate courts, we do not find
that the rule would be triggered in the circumstances
of this case.
B
The plaintiff also has presented a claim for fraudulent
nondisclosure. Specifically, she alleged in her complaint
that Eggert ‘‘knowingly failed to disclose and/or con-
cealed that [the release and withdrawal] would result
in the loss of the plaintiff’s right to reallocate damages
. . . .’’ The plaintiff argues that, in granting the motion
for summary judgment, the court improperly deter-
mined that she could not prove a claim for fraudulent
nondisclosure because she failed to establish that she
shared a fiduciary relationship with the defendants.
We disagree.
It is well settled that ‘‘[m]ere nondisclosure . . .
does not ordinarily amount to fraud. . . . To constitute
fraud on that ground, there must be a failure to disclose
known facts and, in addition thereto, a request or an
occasion or a circumstance which imposes a duty to
speak.’’ (Citations omitted.) Egan v. Hudson Nut Prod-
ucts, Inc., 142 Conn. 344, 348, 114 A.2d 213 (1955).
Therefore, in order to prove that Eggert’s silence regard-
ing the potential effects of the release and withdrawal
constituted fraudulent conduct, the plaintiff needed to
prove that the parties’ relationship imposed a duty on
Eggert to explain the potential effects of those docu-
ments to the plaintiff. As the trial court noted, ‘‘[n]o
such relationship existed in the present case because
. . . Eggert was providing legal representation to the
plaintiff’s adversary [and not to her].’’ The plaintiff pre-
sented no evidence to counter this fact. Thus, the trial
court properly determined that no genuine issue of
material fact exists as to whether the plaintiff could
establish a claim for fraudulent nondisclosure.6
II
Finally, the plaintiff claims that the court improperly
determined that certain documents were protected by
the attorney-client privilege and the work product doc-
trine. We disagree.
As mentioned, the plaintiff served the defendants
with requests for discovery in October, 2014. The defen-
dants objected, and the court, after hearing oral argu-
ment, ordered the defendants to provide the plaintiff
with certain documents and to provide a privilege log
for any documents they withheld or redacted. The
defendants subsequently disclosed a substantial
amount of materials—approximately 550 pages of docu-
ments—as well as a privilege log identifying materials
that had been withheld or redacted. The defendants
withheld several e-mails between Eggert and a repre-
sentative of Nationwide, e-mails between Eggert’s
office and a representative of Nationwide, and corre-
spondence between Eggert and Altman, claiming that
these materials were protected by the attorney-client
privilege and/or the work product doctrine. The defen-
dants also withheld documents containing confidential
information regarding reserves. The plaintiff then filed
motions for compliance against both defendants, and
they responded in a joint memorandum in opposition
to the motions.
After a hearing, the court entered an order denying
the plaintiff’s motions. The order provided, in its
entirety, as follows: ‘‘The plaintiff is not entitled to
information which is protected by the attorney-client
privilege or which represents an attorney’s opinion
work product. No quantum of proof has been offered
to support a claim of civil fraud which would permit
the privilege to be pierced. Reserve information is not
reasonably calculated to lead to the discovery of admis-
sible evidence and is thus not subject to disclosure.’’
We begin by setting forth the relevant standard of
review. ‘‘[T]he granting or denial of a discovery request
rests in the sound discretion of the court. . . . Pro-
vided the trial court properly interpreted the pertinent
statutes, a question over which this court has plenary
review . . . that decision will be reversed only if such
an order constitutes an abuse of that discretion. . . .
Under the abuse of discretion standard, [w]e must make
every reasonable presumption in favor of the trial
court’s action. . . . The trial court’s exercise of its dis-
cretion will be reversed only [when] the abuse of discre-
tion is manifest or [when] injustice appears to have
been done.’’ (Citation omitted; internal quotation marks
omitted.) Woodbury Knoll, LLC v. Shipman & Good-
win, LLP, 305 Conn. 750, 775, 48 A.3d 16 (2012).
In its order denying the plaintiff’s motions for compli-
ance, the court recognized that certain communications
between the defendants were protected by the attorney-
client privilege and the work product doctrine. The
plaintiff argues that the attorney-client privilege and the
work product doctrine ‘‘appl[y] only in the previously
concluded tort case,’’ and do not protect the defendants’
records from discovery in the present action. She fur-
ther argues that ‘‘these materials are likely to contain
statements or information concerning representations
made to the plaintiff about, and the plaintiff’s under-
standing of, the settlement and release in [the negli-
gence action].’’ The defendants argue that the attorney-
client privilege and the work product doctrine are not
time limited, and the materials requested by the plaintiff
are protected from discovery. We agree with the defen-
dants.7 On the limited record before us, we do not con-
clude that the trial court abused its discretion in denying
the plaintiff’s motions for compliance, nor that an injus-
tice appears to have been done.
The judgment is reversed with respect to the plain-
tiff’s claim of intentional misrepresentation and the case
is remanded for further proceedings according to law;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
See Kenneson v. Rosati, Superior Court, judicial district of Waterbury,
Docket No. CV-07-5003827-S (June 13, 2007).
2
In the circumstances of this case, the nuances in the wording are more
than merely semantic. By way of illustration, suppose that Eggert had actu-
ally said, ‘‘I cannot give you a check now to settle the claims against Altman
unless you sign this release.’’ This statement would quite unremarkably
comport with the usual practice.
Suppose, on the other hand, Eggert had actually said, ‘‘General Statutes
§ 52-700 is such that you will never receive damages from Altman unless
you sign this release.’’ There is no evidence in this case that the latter words
were specifically spoken, yet the plaintiff’s alleged version of the words
that were spoken is arguably consistent with the import of this statement.
The former version would not be a misrepresentation at all; the latter
version arguably could support the first element of fraudulent misrepresen-
tation.
3
We note that the doctrine of res judicata does not apply because there
were different defendants in the two proceedings.
4
‘‘Although the Restatement (Second) of Torts is not binding precedent,
our appellate courts have frequently looked to it in outlining the contours
of tort law in this state. See, e.g., Clohessy v. Bachelor, 237 Conn. 31, 38–39,
46, 675 A.2d 852 (1996) (citing Restatement [Second] of Torts in recognizing
action for bystander emotional distress); Stohlts v. Gilkinson, 87 Conn. App.
634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005)
(citing Restatement [Second] of Torts in adopting exception to common-
law rule that punitive damages cannot be imposed based on theory of
vicarious liability).’’ Wild v. Cocivera, Superior Court, judicial district of
Hartford, Docket No. CV-146050575-S (June 16, 2016).
5
The problem, of course, is that signing the release, although facilitating
the immediate payment of almost the full amount of the verdict, would
presumably prevent the recovery of any reallocation of damages assessed
against the cotortfeasor. See General Statutes § 52-572h (g).
6
The court also determined that the plaintiff’s claim for fraudulent nondis-
closure was precluded under the doctrine of collateral estoppel. The plaintiff
argues that this determination was improper. Because we affirm the court’s
decision on the claim for fraudulent nondisclosure on alternative grounds,
we need not reach the collateral estoppel issue for this claim.
We further note that no court has established precisely what, if anything,
Eggert said. The only issue decided in this case is whether any information
has been presented that could create a genuine issue of material fact.
7
We note that when an insurer engages an attorney to represent an insured,
the resultant attorney-client privilege belongs to the insured. See Metropoli-
tan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 730 A.2d
51 (1999); Royal Indemnity Co. v. Terra Firma, Inc., Superior Court, judicial
district of Middlesex, Docket No. X04-CV-05-4005063-S (February 1, 2007)
(42 Conn. L. Rptr. 792). There is, however, ‘‘a common interest among the
insured, the attorney and the insurer, and ordinarily the insured’s privilege
is not waived because of disclosure to the insurer.’’ Id. Pursuant to this
‘‘common interest,’’ the other involved parties are responsible for protecting
the insured’s or client’s privilege. During oral argument before this court,
the defendants argued that they shared this ‘‘common interest.’’