Kenneson v. Eggert ( 2020 )

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KIMBERLY KENNESON v. CELIA EGGERT ET AL.
(AC 42170)
DiPentima, C. J., and Elgo and Devlin, 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 had previously 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,
in which the jury awarded the plaintiff damages against both A and R.
Pursuant to a settlement agreement in that action, the plaintiff signed
a general release and withdrawal form in exchange for settling the case
against A. The plaintiff later discovered that she would be unable to
recover damages from R, and moved to open the judgment in the negli-
gence action, claiming that E had engaged in unfair and deceptive behav-
ior by instructing her to sign the release without explaining what it was
and how it could affect the judgment in that action. 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 present action alleging fraud against
E and N Co. Thereafter, the court granted the defendants’ motion for
summary judgment, concluding that the plaintiff was collaterally
estopped from asserting her fraud action because the issue had been
addressed in the negligence action, and the plaintiff appealed to this
court. This court reversed in part the judgment of the trial court, conclud-
ing that the trial court improperly granted the defendants’ motion for
summary judgment as to the plaintiff’s claim for intentional misrepresen-
tation because there were genuine issues of material fact whether that
claim had been fully and fairly litigated at the hearing on the motion to
open the negligence action, and remanded the case for further proceed-
ings. Following the remand, the defendants filed a motion to dismiss
the action on the ground that the litigation privilege barred the plaintiff’s
claim. The trial court rendered judgment dismissing the action, conclud-
ing that the defendants had satisfied the requirements for absolute immu-
nity under the litigation privilege, from which the plaintiff appealed to
this court. Held:
1. The plaintiff could not prevail on her claims that the trial court erred in
concluding that the litigation privilege implicated the subject matter
jurisdiction of the court and that the defendants timely filed their motion
to dismiss; the doctrine of absolute immunity concerns a court’s subject
matter jurisdiction and challenges to a court’s subject matter jurisdiction
can be raised at any time and cannot be waived.
2. The trial court properly granted the motion to dismiss and concluded that
E’s statements were protected by the litigation privilege; E’s statements
made during a postverdict settlement conference were made during a
judicial proceeding, there is no requirement that statements be made
in a courtroom, under oath, or in a pleading in order to be considered
part of a judicial proceeding and the postverdict settlement conference
was part of the ongoing litigation between the parties and was judicial
in nature, and the statements were relevant to the subject matter of
the judicial proceeding, as the purpose of the conference was for the
defendants to reach an agreement with the plaintiff and, thus, E’s state-
ments about signing the withdrawal were relevant to the conference.
Argued November 19, 2019—officially released March 31, 2020
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.,
granted the defendants’ motion for summary judgment
and rendered judgment thereon, from which the plain-
tiff appealed to this court, Keller, Beach and Harper,
Js., which reversed the judgment in part and remanded
the case for further proceedings; thereafter, the court,
Brazzel-Massaro, J., granted the defendants’ motion to
dismiss and rendered judgment thereon, from which
the plaintiff appealed to this court. Affirmed.
Kimberly Kenneson, self-represented, the appellant
(plaintiff).
Andrew P. Barsom, with whom, on the brief, was
Robert D. Laurie, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. After the trial court granted the
motion to dismiss filed by the defendants, Celia Eggert
and Nationwide Mutual Fire Insurance Company
(Nationwide), the self-represented plaintiff, Kimberly
Kenneson, filed this appeal. On appeal, the plaintiff
contends that the court erred by concluding that the
defendants’ statements and actions were protected
under the litigation privilege.1 We disagree and, accord-
ingly, affirm the judgment of the trial court.
The following facts and relevant procedural history,
as recited in an earlier decision of this court involving
these parties, are relevant to this appeal. See Kenneson
v. Eggert, 176 Conn. App. 296, 170 A.3d 14 (2017). ‘‘In
January, 2007, the plaintiff commenced a civil action
against Carl Rosati and Michael Altman for negligence,
battery and recklessness [arising from a physical alter-
cation between Rosati and Altman that injured the plain-
tiff]. Altman was insured by Nationwide, and Nation-
wide 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 [for negligence] and
$380,037.38 against Rosati [$45,037.38 in negligence and
$335,000 in recklessness]. 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 [Shane Gin-
gras] appeared in court for a hearing [on a motion to
seal filed by the plaintiff] and a settlement conference
[that Eggert requested]. 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 she
ultimately accepted.’’ (Footnote omitted.) Id., 299–300.
‘‘Pursuant to the settlement agreement, the plaintiff
signed a general release and 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.’ ’’ Id., 300. The plaintiff then
filed the withdrawal form with the court the following
day on July 19, 2011.
‘‘The plaintiff subsequently discovered that she was
unable to collect damages against 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 had 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 pres-
ent action against the defendants, alleging that Eggert
had committed fraud against the plaintiff and that
Nationwide was vicariously liable for her actions. . . .
The court heard oral argument and denied the plaintiff’s
motions [for compliance with the court’s discovery
orders]. The court held 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.’’ Id., 300–302.
The plaintiff then appealed to this court. In that
appeal, she argued that the court erred by concluding
that the intentional misrepresentation aspect of her
fraud claim was barred by collateral estoppel. Id., 299.
This court noted that, in her amended complaint filed
in December, 2014,2 the plaintiff essentially alleged two
claims of fraud: intentional misrepresentation and
fraudulent nondisclosure. The plaintiff first 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 . . . .’’ (Internal quotation marks
omitted.) Id., 303. Second, the plaintiff alleged that
‘‘Eggert, with the intent to deceive the plaintiff, know-
ingly failed to disclose and/or concealed that [the
release and the withdrawal] would result in the loss of
the plaintiff’s right to reallocate damages . . . .’’ (Inter-
nal quotation marks omitted.) Id., 303. This court
reversed the trial court’s determination that there was
no genuine issue of material fact on the plaintiff’s inten-
tional misrepresentation claim; id., 307; but affirmed the
court’s determination that she was collaterally estopped
from raising the fraudulent nondisclosure aspect of her
fraud claim. Id., 312. The matter was remanded back
to the trial court. Id., 314.
Following the remand, the defendants filed the
motion to dismiss that is the subject of this appeal. In
their memorandum of law in support of the motion, the
defendants argued that the litigation privilege3 barred
the plaintiff’s claim and, as a result, the court lacked
subject matter jurisdiction. The trial court, Brazzel-
Massaro, J., agreed with the defendants and granted
their motion to dismiss. The court found that the defen-
dants had satisfied the requirements for absolute immu-
nity under the litigation privilege. This appeal followed.
Additional facts will be set forth as necessary.
We begin with the well established standard of review
for reviewing a trial court’s decision on a motion to
dismiss. ‘‘A motion to dismiss tests, inter alia, whether,
on the face of the record, the court is without jurisdic-
tion. . . . [O]ur review of the court’s ultimate legal con-
clusion 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.’’ Metcalf v. Fitzgerald, 333 Conn. 1, 6–7, 214 A.3d
361 (2019), cert. denied, U.S. , 140 S. Ct. 854,
L. Ed. 2d (2020).
We next set forth the relevant law applicable to the
litigation privilege. ‘‘As the doctrine of absolute immu-
nity concerns a court’s subject matter jurisdiction . . .
we are mindful of the well established notion that, in
determining whether a court has subject matter jurisdic-
tion, 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 favorable to the plaintiff, are sufficient to survive
dismissal on the grounds of absolute immunity.’’ (Inter-
nal quotation marks omitted.) Bruno v. Travelers Cos.,
172 Conn. App. 717, 724–25, 161 A.3d 630 (2017).
‘‘Connecticut has long recognized the litigation privi-
lege . . . [and has extended it] to judges, counsel and
witnesses participating in judicial proceedings.’’ (Cita-
tions omitted; internal quotation marks omitted.)
Simms v. Seaman, 308 Conn. 523, 536–37, 69 A.3d 880
(2013). This court recently summarized the state of the
litigation privilege in Connecticut: ‘‘In MacDermid, Inc.
v. Leonetti, 310 Conn. 616, 79 A.3d 60 (2013), our
Supreme Court explained: In Simms [v. Seaman, supra,
531], we noted that the doctrine of absolute immunity
originated in response to the need to bar persons
accused of crimes from suing their accusers for defama-
tion. . . . We further noted that . . . [t]he general rule
is that defamatory words spoken upon an occasion
absolutely privileged, though spoken falsely, know-
ingly, and with express malice, impose no liability for
damages recoverable in an action in slander . . . .
[W]e further discussed the expansion of absolute immu-
nity to bar retaliatory civil actions beyond claims of
defamation. For example, we have concluded that abso-
lute immunity bars claims of intentional interference
with contractual or beneficial relations arising from
statements made during a civil action. See Rioux v.
Barry, [283 Conn. 338] 350–51, [927 A.2d 304 (2007)]
(absolute immunity applies to intentional interference
with contractual relations because that tort compara-
tively is more like defamation than vexatious litigation).
We have also precluded claims of intentional infliction
of emotional distress arising from statements made dur-
ing judicial proceedings on the basis of absolute immu-
nity. 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 attorneys 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 absolute immunity to bar
claims beyond defamation, this court has sought to
ensure that the conduct that absolute immunity is
intended to protect, namely, participation 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.’’ (Cita-
tions omitted; internal quotation marks omitted.) Bruno
v. Travelers Cos., supra, 172 Conn. App. 725–27.
In this appeal, the plaintiff contends that the court
erred by finding that the statements Eggert made as
part of the postverdict settlement conference were pro-
tected by the litigation privilege. The defendants argue
that the court correctly found that the statements were
protected by the litigation privilege and, accordingly,
that the court lacked jurisdiction over the plaintiff’s
intentional misrepresentation claim.4 We agree with
the defendants.
The applicability of the litigation privilege depends
on whether the statement or action at issue, here, inten-
tional misrepresentation, took place during a judicial
proceeding. ‘‘[I]n determining whether a statement is
made in the course of a judicial proceeding, it is
important to consider whether there is a sound public
policy reason for permitting the complete freedom of
expression that a grant of absolute immunity provides.
. . . In making that determination, the court must
decide as a matter of law whether the . . . statements
are sufficiently relevant to the issues involved in a pro-
posed or ongoing judicial proceeding, so as to qualify
for the [litigation] privilege. The test for relevancy is
generous, and judicial proceeding has been defined lib-
erally to encompass more than civil litigation or crimi-
nal trials.’’ (Citation omitted; internal quotation marks
omitted.) Hopkins v. O’Connor, 282 Conn. 821, 839, 925
A.2d 1030 (2007). ‘‘The judicial proceeding to which
[absolute] immunity attaches has not been defined very
exactly. It includes any hearing before a tribunal which
performs a judicial function, ex parte or otherwise, and
whether the hearing is public or not. It includes for
example, lunacy, bankruptcy, or naturalization pro-
ceedings, and an election contest. It extends also to the
proceedings of many administrative officers, such as
boards and commissions, so far as they have powers
of discretion in applying the law to the facts which
are regarded as judicial or quasi-judicial, in character.’’
(Internal quotation marks omitted.) Kelley v. Bonney,
221 Conn. 549, 566, 606 A.2d 693 (1992).
Accordingly, we first determine whether the trial
court properly found that the statements at issue in this
case were made during a judicial proceeding. If so, we
then consider whether the trial court properly found
that the alleged misrepresentation is sufficiently rele-
vant to the issues involved in those proceedings. See
Ravalese v. Lertora, 186 Conn. App. 722, 730, 200 A.3d
1153 (2018) (‘‘we must determine whether the proceed-
ings at issue in this case were judicial or quasi-judicial
in nature and, if so, we then must consider whether the
[statement] is sufficiently relevant to the issues involved
in those proceedings’’).
Here, the plaintiff argues that the statements made by
the defendants are not covered by the litigation privilege
because the settlement discussion occurred outside of
a courtroom. The crux of the plaintiff’s argument is that
because the statements were not made in pleadings or
other documents, nor under oath or before the court,
the statements were not made in the course of a judicial
proceeding. We disagree with the plaintiff.
There is no requirement under Connecticut jurispru-
dence that to be considered part of a judicial proceed-
ing, statements must be made in a courtroom or under
oath or be contained in a pleading or other documents
submitted to the court. Indeed, ‘‘[t]he privilege extends
beyond statements made during a judicial proceeding
to preparatory communications that may be directed to
the goal of the proceeding.’’ (Internal quotation marks
omitted.) Tyler v. Tatoian, 164 Conn. App. 82, 88, 137
A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710
(2016). In addition, our Supreme Court has ‘‘recognized
that the absolute privilege that is granted to statements
made in furtherance of a judicial proceeding extends
to every step of the proceeding until final disposition.’’
Hopkins v. O’Connor, supra, 282 Conn. 826.
Here, the discussion in the hallway, as part of the
postverdict settlement conference, was a step in the
ongoing judicial proceeding. A postverdict settlement
conference, such as the one in the present case, is
judicial in nature. The conference was part of the ongo-
ing litigation between the plaintiff and Eggert’s client,
Michael Altman. On July 11, 2011, Eggert sent a letter
to Judge Ozalis to request a postverdict settlement con-
ference for July 18, 2011. On that date, the parties
appeared before Judge Matasavage for the conference.
In requesting the conference, Eggert expressly stated
that the goal for the conference was that an ‘‘agreement
. . . be reached with the plaintiff with the court’s assis-
tance.’’ Accordingly, the plaintiff’s argument that
Eggert’s statements were not made during a judicial
proceeding fails.
We now turn to the question of whether the court
properly concluded that the statements were ‘‘suffi-
ciently relevant to the issues involved in a proposed or
ongoing judicial proceeding . . . .’’ Hopkins v. O’Con-
nor, supra, 282 Conn. 839. As discussed above, ‘‘[t]he
test for relevancy is generous . . . .’’ Id.
The plaintiff argues that Eggert’s statements about
signing the withdrawal were not relevant to the subject
matter of the proceeding. She further argues that the
statements did not contain any facts, law or arguments
that were relevant to the original underlying tort claim
that she had brought against Altman and Rosati. There-
fore, the plaintiff contends, those statements are not
covered by the litigation privilege. The defendants
counter that the court correctly concluded that the
statements were relevant to the underlying subject mat-
ter of the judicial proceeding. We agree with the
defendants.
The record reveals that Eggert’s statements at issue
are relevant to the subject matter of the judicial pro-
ceeding. The parties met to settle the action brought
by the plaintiff against Altman, Eggert’s client. Indeed,
the purpose of the postverdict conference was to reach
an ‘‘agreement . . . with the plaintiff with the court’s
assistance.’’ As the court noted, the statements at issue
were part of a conference to resolve the underlying tort
action initiated by the plaintiff. Accordingly, the court
correctly found that the absolute immunity of the litiga-
tion privilege applied to bar the action.
In accordance with our Supreme Court precedent,
the plaintiff’s claim of fraud based on statements made
during the postverdict settlement conference is barred
by the litigation privilege. Absolute immunity applied
to the statements made by Eggert that are at issue in
this appeal. The statements were made during a judicial
proceeding, and they were relevant to the subject mat-
ter of the ongoing litigation. Therefore, the trial court
lacked subject matter jurisdiction over the plaintiff’s
fraud claim against Eggert and Nationwide. The court
properly granted the defendants’ motion to dismiss.5
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also argues that the court erred in concluding that the
litigation privilege implicates the subject matter jurisdiction of the court
and that the defendants timely filed their motion to dismiss. Both of these
arguments fail. First, ‘‘the doctrine of absolute immunity concerns a court’s
subject matter jurisdiction.’’ Bruno v. Travelers Cos., 172 Conn. App. 717,
724, 161 A.3d 630 (2017). Second, the subject matter jurisdiction of the court
can be challenged at any time. See Stroiney v. Crescent Lake Tax District,
205 Conn. 290, 294, 533 A.2d 208 (1987) (‘‘[a] motion to dismiss for lack
of subject matter jurisdiction may be made at any time’’). Furthermore,
challenges to the court’s subject matter jurisdiction cannot be waived. See
Practice Book § 10-33 (‘‘[a]ny claim of lack of jurisdiction over the subject
matter cannot be waived; and whenever it is found after suggestion of the
parties or otherwise that the court lacks jurisdiction of the subject matter,
the judicial authority shall dismiss the action’’).
2
This complaint remains the operative complaint for the present appeal.
3
The terms ‘‘absolute immunity’’ and ‘‘litigation privilege’’ are used inter-
changeably throughout this opinion.
4
As set forth previously in this opinion, the plaintiff’s December, 2014
amended complaint contained two fraud claims: intentional misrepresenta-
tion and fraudulent nondisclosure. Her fraudulent nondisclosure claim was
found to be collaterally estopped, but her intentional misrepresentation
claim survived the defendants’ previous motion for summary judgment. See
Kenneson v. Eggert, supra, 176 Conn. App. 314.
5
We note that the plaintiff was not without alternative remedies. See
Simms v. Seaman, supra, 308 Conn. 552–54 (summarizing other avenues
that can be used to hold attorneys accountable for misconduct, such as
filing motion to open judgment, or filing grievance against attorney under
Rules of Professional Conduct, among others).