Opinion
CV105029297S.
12-11-2012
Christopher JONAS v. Gary DELALLO, et al.
UNPUBLISHED OPINION
BELLIS, J.
FACTS
The plaintiff, Christopher Jonas, commenced this action by service of process on the moving defendants, Zeldes, Needle & Cooper (ZNC) and Robert Pacelli, Jr., on August 10, 2010. This action is one of four arising from a dispute between the plaintiff and his condominium association.
Jonas v. Playhouse Square Condominium Ass'n., Docket No. CV 08 5012615, and Jonas v. Playhouse Square Condominium Ass'n., Docket No. CV 09 4029617, are consolidated with the present case. Jonas v. Laitman, Docket No. CV 12 5029777, which is not consolidated with this case, was commenced by service of process on April 17, 2012.
In the fifty-eight-count operative complaint, the plaintiff alleges six counts against the defendants in the plaintiff's individual capacity: count twelve, vexatious suit; count thirteen, a violation of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA); count fourteen, a violation of the Creditors' Collection Practices Act, General Statutes § 36a-645 et seq. (CCPA); count fifty-one, a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA); count fifty-two, reckless misconduct; and count fifty-three, negligent infliction of emotional distress. The plaintiff also alleges derivative actions on behalf of his condominium association and all owners of units under the association for reckless misconduct and violation of CUTPA in counts fifty-five and fifty-eight respectively.
The operative complaint is the amended complaint filed September 23, 2010. The plaintiff was entitled as a matter of right to amend his original complaint filed August 18, 2010 during the first thirty days after the return day of August 24, 2010. Practice Book § 10-59. Not counting the return day itself, the amended complaint was filed within the thirty-day time limit for amendment as a matter of right, and thus the amended complaint is the operative complaint notwithstanding the defendants' objection filed on October 7, 2010.
The plaintiff alleges the following relevant facts. At all pertinent times, the plaintiff was a unit owner of condominium number fourteen located at 301 Post Road East in Westport, Connecticut. The condominium was subject to the rules and regulations of Playhouse Condominium Association (the association). By January of 2007, the plaintiff had become disappointed with the performance of the association's directors because of their alleged failure to promptly and properly repair the floor warming system installed in the complex. He subsequently led an " impeachment effort" against the directors based on their alleged negligence, breach of fiduciary duty, misrepresentations and cover-ups associated with their handling of problems associated with the floor warming system.
The amended complaint further alleges that on or about August 7, 2007, early in the day, a maintenance contractor for the floor warming system shut off the water in the condominium complex and began performing repairs. During the evening, the plaintiff noticed water leaking from his garage ceiling and also bubbling up in the hallway between his unit and unit number thirteen, which was owned by Steven Laitman. The plaintiff called an employee of the association in charge of maintenance to inspect the property, and he found no trace of the leak. The maintenance contractor for the floor warming system also was called to inspect the system for evidence of a leak, but after his inspection and walk through of the plaintiff's apartment, he too saw no trace of any leak. Within the next few days, Laitman complained of flooding and water damage in his apartment. The board of directors subsequently noticed that the plaintiff's hot water heater was twelve years old and Laitman's was fifteen years old. At the suggestion of the board, the plaintiff replaced his hot water heater, although there was no evidence of a leak.
As a result of this alleged water damage to Laitman's apartment, the association subsequently billed the plaintiff $2, 500 on the plaintiff's statement of account for the period ending December 31, 2007. The association attributed blame for the damage to a leak in the plaintiff's water heater notwithstanding the lack of evidence of any water damage to the plaintiff's apartment or evidence of a leak originating from his water heater. Additionally, a charge of $542 was added to the plaintiff's statement on February 14, 2008, which purported to be a reimbursement charge for money that the association had previously paid the plaintiff in 2004 or 2005 as compensation for damage done by a repairman who had fallen through the plaintiff's roof. The original compensation to the plaintiff was the product of an oral agreement between the plaintiff and a previous president of the association. In 2008, the association invalidated the agreement, thus instituting the $542 charge on the plaintiff's February 2008 bill. The plaintiff denies owing the $2, 500 and $542 charges and has refused to pay them.
The amended complaint alleges that from February 10, 2009 to May 2009, the defendants, who were retained by the association to seek payment of the outstanding charges and associated fees and fines, demanded that the plaintiff pay the balance allegedly owed to the association. In June of 2009, the defendants initiated a lawsuit to recover the balance allegedly owed by the plaintiff and foreclose upon a lien for the unpaid balance. The suit was withdrawn in October of 2009. The plaintiff alleges that the suit was initiated with malice and without probable cause, that the defendants did not reasonably investigate the validity of the balance owed, and that the plaintiff was abused and harassed in various ways by the defendants in connection with the collection of the alleged debt.
The defendants filed the present motion for summary judgment on June 15, 2012. They assert that they are entitled to judgment as a matter of law on the following grounds. With respect to count twelve, the plaintiff cannot prove the necessary elements to establish a cause of action for vexatious suit. Counts thirteen (FDCPA) and fourteen (CCPA) are barred by the statute of limitations, and, alternatively, the plaintiff cannot prove their necessary elements. With respect to counts count fifty-one (CUTPA), fifty-two (reckless misconduct) and fifty-three (negligent infliction of emotional distress), the plaintiff cannot prove the necessary elements. The defendants also move for summary judgment on the ground that counts fourteen, fifty-one, fifty-two and fifty-three are barred by Connecticut's doctrine of absolute immunity, otherwise known as the litigation privilege. They have submitted a memorandum in support of their motion, along with a signed, sworn affidavit of Pacelli, and accompanying authenticated exhibits. On October 5, 2012, the plaintiff filed an objection and supporting memorandum along with various unauthenticated exhibits. The matter was heard at short calendar on November 5, 2012.
" Under Connecticut law, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ... New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)." (Internal quotation marks omitted.) Clukey v. Sweeney, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5001731 (December 30, 2009, Bellis, J.). Accordingly, absent an objection by the defendants, the court will consider the evidence submitted by the plaintiff.
DISCUSSION
Before addressing the merits of the motion for summary judgment, the court must determine whether the defendants are entitled to absolute immunity with respect to counts fourteen (CCPA), fifty-one (CUTPA), fifty-two (reckless misconduct) and fifty-three (negligent infliction of emotional distress) because they implicate the threshold issue of the court's subject matter jurisdiction. The court must also address its subject matter jurisdiction, sua sponte, as to the plaintiff's two " derivative" claims on behalf of the association in counts fifty-five and fifty-eight.
I
ABSOLUTE IMMUNITY
A
The Law of Absolute Immunity
" Although our appellate courts have not yet affirmatively decided whether absolute immunity bears upon a court's subject matter jurisdiction, our Supreme Court's decision in Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports a conclusion that it does. In that case, the Connecticut Supreme Court held that a motion for summary judgment granted on the basis of absolute immunity is a final judgment for purposes of appeal because ‘ the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity [conferred upon states] ... that is, to protect against the threat of suit.’ (Emphasis added.) Id., at 787; see also Rioux v. Barry, 283 Conn. 338, 343, 927 A.2d 304 (2007) (noting that in context of quasi-judicial proceeding, absolute immunity is bar to certain types of suits, rather than immunity from liability alone, because the purpose is same as sovereign immunity). Accordingly, because the doctrine of absolute immunity shares with sovereign immunity the same purpose of protection against ‘ having to litigate at all, ’ and because the doctrine of sovereign immunity implicates subject matter jurisdiction, this court [has joined] other Superior Courts that have held absolute immunity to be properly considered in a motion to dismiss. Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) [ 40 Conn. L. Rptr. 537], rev'd in part on other grounds, 283 Conn. 338, 927 A.2d 304 (2007); see also Kalman v. Papapietro, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000984 (May 23, 2006, Aurigemma, J.) [ 41 Conn. L. Rptr. 426]; Mattera v. Sienkiewicz, Superior Court, judicial district of Hartford, Docket No. CV 05 4011301 (April 28, 2006, Tanzer, J.) [ 41 Conn. L. Rptr. 269]." Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999 (February 11, 2008, Bellis, J.). More recently, the trial court in Perugini v. Guiliano has held the same. See footnote 1 and cases cited in Perugini v. Guiliano, Superior Court, judicial district of Waterbury, CV 10 5016077 (July 26, 2012, Dooley, J.). Therefore, although not raised as a motion to dismiss, the defendants' absolute immunity arguments implicate this court's subject matter jurisdiction.
The defendants did not address subject matter jurisdiction directly, but because their arguments regarding absolute immunity as to counts fourteen, fifty-one, fifty-two and fifty-three directly implicate subject matter jurisdiction, the plaintiff has had ample opportunity to respond to whether the court has subject matter jurisdiction to decide those causes of action, and no separate hearing is required. Pinchbeck v. Dept. of Public Health, 65 Conn.App. 201, 209, 782 A.2d 242, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001) (finding no need for separate hearing when parties had opportunity to brief and argue subject matter jurisdiction).
" Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." (Citations omitted; internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005).
" The doctrine of absolute immunity as applied to statements made in the context of judicial and quasi-judicial proceedings is rooted in the public policy of encouraging witnesses, both complaining and testimonial, to come forward and testify in either criminal or civil actions. The 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 outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements." (Internal quotation marks omitted.) Rioux v. Barry, supra, 283 Conn. at 343. " Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings." Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. at 787.
" [C]ourts have recognized absolute immunity as a defense in certain retaliatory civil actions ..." Rioux v. Barry, supra, 283 Conn. at 344. In the defamation context, absolute immunity " presents a conflict or antinomy between two principles equally regarded by the law— the right of the individual, on one hand, to enjoy his reputation unimpaired by defamatory attacks, and, on the other hand, the necessity, in the public interest, of a free and full disclosure of facts in the conduct of the legislative, executive and judicial departments of government." (Internal quotation marks omitted.) Gallo v. Barile, 284 Conn. 459, 470, 935 A.2d 103 (2007). With defamation, " it is widely accepted that the public's interest in the unhampered operation of the government ... outweighs an individual's interest in the preservation of reputation." Id. As a result, courts " consistently have held that absolute immunity bars defamation claims that arise from statements made in the course of judicial or quasi-judicial hearings ." Rioux v. Barry, supra, at 344. In contrast to defamation, the tort of vexatious litigation " is treated differently because of ... restraints built into it by virtue of its stringent requirements." Id., at 348. " [T]he fact that the tort of vexatious litigation itself employs a test that balances the need to encourage complaints against the need to protect the injured party's interests counsels strongly against a categorical or absolute immunity from a claim of vexatious litigation." Id., at 347. Thus, " because the tort of vexatious litigation strikes the proper balance, it is unnecessary to apply an additional layer of protection to would-be litigants in the form of absolute immunity ." Id. Moreover, " were [the courts] to provide absolute immunity for the communications underlying the tort of vexatious litigation, [it] would effectively eliminate the tort." Id., at 348.
" To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004).
" Vexatious litigation requires a plaintiff to establish that: (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff; (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff's favor." (Internal quotation marks omitted.) Simms v. Seaman, 129 Conn.App. 651, 668-69, 23 A.3d 1, cert. granted, 302 Conn. 915, 27 A .3d 373 (2011).
Courts have extended the doctrine of absolute immunity to other common-law torts. In Petyan v. Ellis, 200 Conn. 243, 254-55, 510 A.2d 1337 (1986), our Supreme Court recognized that the doctrine of absolute immunity applied to the tort of intentional infliction of emotional distress, stating that " the defendant had an absolute privilege to state her reasons for the termination of the plaintiff's employment in the fact-finding supplement solicited by the employment security division, [as] she was exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress." (Internal quotation marks omitted.) Id., at 255. In Perugini v. Guiliano, supra, Superior Court, Docket No. CV 10 5016077, the trial court applied the doctrine of absolute immunity to negligent infliction of emotional distress. It noted that " [t]here is nothing in the elements of the offense which would guard against the concerns for which absolute immunity is afforded in the first instance ... the balancing test favors immunity." Id. In Rioux v. Barry, supra, 283 Conn. at 350-51, the Supreme Court extended the absolute immunity doctrine to the tort of intentional interference with contractual or beneficial relations. It reasoned that: " First, the underlying purpose of absolute immunity applies just as equally to [intentional interference with contractual or beneficial relations] as it does to the tort of defamation. Second, [the] tort does not contain within it the same balancing of relevant interests that are provided in the tort of vexatious litigation. Third, the elements of intentional interference with contractual or beneficial relations do not provide the same level of protection against the chilling of witness testimony as do the elements of vexatious litigation." Id. In Simms v. Seaman, 129 Conn.App. 651, 672, 23 A.3d 1, cert. granted, 302 Conn. 915, 27 A.3d 373 (2011), the Appellate Court applied the doctrine to common-law fraud, finding that " there are no safeguards to prevent unwarranted ligation, and it certainly is foreseeable that allowing such a cause of action to commence would have a chilling effect on the attorney-client relationship and on an attorney's zealous representation of his or her client." See also Tucker v. Bitonti, 34 Conn.Supp. 643, 647, 382 A.2d 841 (App.Sess.1977) (applying doctrine of absolute privilege to invasion of privacy by false light).
" In order for the plaintiff to prevail in a case for liability under ... [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. at 253.
The elements of the tort of negligent infliction of emotional distress are: " (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
" A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant's knowledge of that relationship; (3) the defendant's intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant's tortious conduct." Rioux v. Barry, supra, 283 Conn. at 351.
" The essential elements of an action in common-law fraud ... 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." Simms v. Seaman, supra, 129 Conn.App. at 671.
" In order to establish invasion of privacy by false light, the plaintiff must show (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Jonap v. Silver, 1 Conn.App. 550, 557-58, 474 A.2d 800 (1984).
In Mozzochi v. Beck, 204 Conn. 490, 497, 529 A.2d 171 (1987), however, the Supreme Court declined to extend the doctrine of absolute immunity to bar all actions for abuse of process. The court concluded that " an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process, " but also cautioned that courts must " take care not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues." (Internal quotation marks omitted.) Id., at 495. In order to balance these important policy interests, it limited third-party abuse of process actions to those in which " the third party can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id., at 497.
" An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed ... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed ..." (Citations omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, supra, 204 Conn. at 494.
The foregoing authority indicates that Connecticut courts have applied the doctrine of absolute immunity to multiple torts, but declined to extend it to vexatious litigation and abuse of process based on the balancing of interests. In cases where an individual is suing opposing counsel from prior litigation, it is important to balance the interests of the individual in obtaining legitimate relief against the possibility of setting precedent that could prevent attorneys from zealously representing their clients. In balancing those interests, courts are mindful of the underlying purpose of each tort; that is, whether the tort is necessary to provide adequate compensation for injuries perpetrated by adverse attorneys, and whether the tort would be essentially eliminated by providing absolute immunity.
B
Count Fifty-Two: Reckless Misconduct
The court will now address the defendants' claim that they are absolutely immune from the plaintiff's reckless misconduct cause of action, count fifty-two. In order for conduct to exceed the bounds of negligence and constitute recklessness, the defendant must make a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct. Scheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985). " Reckless misconduct is highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Paternostro v. Arborio Corp., 56 Conn.App. 215, 221, 742 A.2d 409 (1999), cert. denied, 252 Conn. 928, 746 A.2d 788 (2000).
After analyzing the relevant policy considerations regarding absolute immunity, the court concludes that the balancing test favors immunity. First, the policy behind absolute immunity that favors a free and full disclosure of facts in the course of the underlying litigation applies equally to the plaintiff's reckless misconduct count as it does to the tort of defamation. Second, the elements of the tort of recklessness do not provide the same balancing of relevant interests that are provided in the tort of vexatious litigation. The latter tort has built-in safeguards, not present in the tort of recklessness, that can prevent disgruntled litigants from frivolously suing an opposing party following unfavorable litigation, such as the requirement that the underlying litigation terminate in favor of the plaintiff. Third, " [t]here is a strong public policy that seeks to ensure that attorneys provide full and robust representation to their clients and that they provide such clients with their unrestricted and undivided loyalty ... A cause of action that might inhibit such representation must have built-in restraints to prevent unwarranted litigation." (Citation omitted.) Simms v. Seaman, supra, 129 Conn.App. at 674. Thus, not only are these safeguards necessary to protect against unwarranted litigation, they are necessary to protect the relationship between attorney and client. Finally, the torts of vexatious litigation and abuse of process provide an adequate remedy for situations where opposing attorneys have committed misconduct.
Having concluded that absolute immunity applies to the plaintiff's reckless misconduct count, the next issue the court must address is the extent to which absolute immunity applies; that is, which statements alleged to have been made can be fairly considered to have been made " in the course of a judicial proceeding, " and thus subject to the absolute privilege. " It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Gallo v. Barile, supra, 284 Conn. at 465-66. " In making [the] determination [of whether a particular statement is made in the course of a judicial proceeding], the court must decide as a matter of law whether the ... statements [at issue] are sufficiently relevant to the issues involved in a proposed or ongoing judicial proceeding, so as to qualify for the privilege. The test for relevancy is generous, and ‘ judicial proceeding’ has been defined liberally ..." (Internal quotation marks omitted.) Id., at 467. " Ultimately ... the issue is whether the public interest is advanced by affording ... statements absolute immunity ... Indeed, [our Supreme Court] candidly has observed that, in 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 other words, whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests." (Citation omitted; internal quotation marks omitted.) Id., at 471.
" The scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding." Hopkins v. O'Connor, 282 Conn. 821, 832, 925 A.2d 1030 (2007). The Restatement (Second) of Torts also provides that " [a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding." 3 Restatement (Second), Torts § 586, p. 247 (1977). " The privilege ... is confined to statements made by an attorney while performing his function as such." Id., comment (c), p. 248. " It is not absolutely essential, [however], in order to obtain the benefits of absolute privilege, that the [communication] be spoken in open court or contained in a pleading, brief, or affidavit." (Internal quotation marks omitted.) McManus v. Sweeney, 78 Conn.App. 327, 335, 78 Conn.App. 327 (2003). Our Supreme Court has also held that when communications are made to a limited and discrete group in preparation of the case and made for the purpose of marshaling evidence for a future proceeding, the statements are subject to absolute immunity. Kelley v. Bonney, 221 Conn. 549, 573-74, 606 A.2d 693 (1992). Thus, the privilege applies to communications, formal or otherwise, that have taken place both before and during a judicial or quasi-judicial proceeding as long as the communication has some relation to the proceeding and the public interest is advanced by affording the statements absolute immunity. See also Schreiber v. Federal Ins. Co., Superior Court, judicial district of Middlesex, Docket No. CV 00 0091899 (January 9, 2001, Arena, J.) [ 28 Conn. L. Rptr. 693] (applying absolute immunity to pre-litigation statements).
In the present case, to the extent that the plaintiff alleges false pleadings or representations in official court documents, the defendants are absolutely immune from liability for those statements as they are clearly within the privilege. The crux of the plaintiff's other allegations is that defendants were " involved in ... unlawful, malicious, baseless, and fraudulent imposition of assessments ... before the collection process began" and that the defendants " misrepresented to ... [the plaintiff's lender, JP Morgan Chase National Bank, N.A. (Chase) ] and other parties the amount, nature, validity and legal status of the debt." The plaintiff claims that these actions constitute recklessness. In support of his allegations, the plaintiff has submitted the following evidence. (1) a letter from the plaintiff to the defendants dated March 25, 2009 which disputes the validity of the plaintiff's debt to the association; (2) an e-mail from the plaintiff to the defendants dated April 6, 2009 reiterating his dispute of the debt and requesting access to certain records; (3) a cover letter dated July 10, 2009 from the plaintiff's attorney, Anthony Ahern, to the defendants, regarding a request to revise in the suit against the plaintiff to recover the debt allegedly owed; (4) a letter dated March 25, 2011 from Premier Property Management to the plaintiff regarding the inspection of documents; (5) e-mails from codefendant Gary Delallo and Pacelli regarding the heating elements installed in the condominiums; (6) two letters from ZNC, written by Joseph Cessario, Esq., regarding the collection of records related to the alleged debt; (7) a letter from ZNC written by a paralegal to the plaintiff's attorney, indicating that ZNC had received payment of the plaintiff's alleged underlying debt from " Mr. Jonas' lender, " which was Chase. The plaintiff has not included evidence of any misrepresentations to Chase.
The plaintiff has also submitted various court documents of which the court may take judicial notice. See Jewett v. Jewett, 265 Conn. 669, 678 n. 7, 830 A.2d 193 (2003) (trial court may take judicial notice of file in another case).
All of these communications are subject to absolute privilege. The statements provided by the plaintiff were all made in relation to the underlying collection lawsuit. It would be contrary to public policy to subject the defendants to a lawsuit for communications undertaken in preparation of a lawsuit or a communication to the plaintiff that they have received payment in full for the debt that was the subject of the lawsuit. It would inhibit the defendants from providing a full and robust representation of their client if they were discouraged from preparing for litigation and settlement. Since the plaintiff has not provided the court with any evidence of nonprivileged communication from which it could find a genuine issue of material fact, the court lacks subject matter jurisdiction to decide the merits of the reckless misconduct cause of action.
Accordingly, count fifty-two is dismissed for lack of subject matter jurisdiction.
C
Count Fifty-Three: Negligent Infliction of Emotional Distress
The court will now address the defendants' claim that they are absolutely immune from the plaintiff's negligent infliction of emotional distress cause of action. For the reasons stated above, the court finds that the balancing test favors immunity. The court also agrees with the reasoning in Perugini v. Guiliano, supra, Superior Court, Docket No. CV 10 5016077, where the court stated that: " The claim for negligent infliction of emotional distress is ... akin to a defamation claim for which absolute immunity remains a viable shield ... Indeed, like a defamation claim, any judicial or quasi-judicial proceeding could potentially result in such a claim. Litigation is by its nature stressful and is often emotionally charged. While a litigant has an interest in not being subject to the negligent infliction of emotional distress during that litigation, this interest is no greater than a litigant's interest in being free from defamation."
Since the plaintiff has not provided the court with any evidence of nonprivileged communication from which it could find a genuine issue of material fact, the court lacks subject matter jurisdiction to decide the merits of the plaintiff's cause of action for negligent infliction of emotional distress.
Accordingly, count fifty-three is dismissed for lack of subject matter jurisdiction.
D
Count Fifty-One: CUTPA
The court will now address the defendants' claim that they are absolutely immune from the plaintiff's CUTPA cause of action, count fifty-one. In determining whether to apply the doctrine of absolute immunity to a CUTPA claim, it is necessary to set forth the criteria for finding a CUTPA violation. " It is well settled that in determining whether a practice violates CUTPA, [Connecticut has] adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise— in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd Partnership, 113 Conn.App. 509, 523, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). " Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 112 Conn.App. 315, 321, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009). With respect to suits against attorneys, our Supreme Court has found that CUTPA does not impose liability on attorneys for their representation of a party opponent in litigation, noting that it " would not comport with a lawyer's duty of undivided loyalty to his or her client." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 729, 627 A.2d 374, 382 (1993).
Other trial courts have found that absolute immunity applies to CUTPA causes of action. In Schreiber v. Federal Ins. Co., supra, Superior Court, Docket No. CV 00 0091899, the court denied the plaintiff's motion to strike the special defense of absolute immunity in regard to the plaintiff's CUTPA claim. There, the plaintiff brought an underinsured motorist action against an insurance company to recover damages arising from an accident caused by an allegedly underinsured motorist. The plaintiff also alleged a CUTPA violation predicated on the defendant's statements, made before the commencement of litigation to the plaintiff's attorney and to the defendant's employees, that the plaintiff was intoxicated on the date of the accident. The defendant argued that he was entitled to absolute immunity because the statements concerning the plaintiff's alleged intoxication were made by parties to litigation within the course of litigation. In denying the motion to strike the special defense of absolute immunity, the court noted that not affording the defendant immunity would discourage it from defending on the basis of contributory negligence because the underlying facts of the defense could be embarrassing to the plaintiff.
In J & M Co. v. Whynott, Superior Court, Judicial District of Waterbury, Docket No. CV 04 0182710 (September 22, 2004, Gallagher, J.) [ 38 Conn. L. Rptr. 23], the plaintiff brought a CUTPA action against the defendant surveyor, alleging he negligently or intentionally relied upon unclear and unreliable documents, fraudulently prepared a survey map, and testified falsely and fraudulently in a boundary line dispute between the plaintiff and its neighbor. The court found that absolute immunity applied to the CUTPA action, noting that it was " mindful of the strong public policy that underlies the absolute privilege, " and also stressing " the importance of cultivating a judicial process that encourages participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability." (Internal quotation marks omitted.) Id.
In light of the court's previous discussion, the strong public policy of encouraging participation and candor in judicial and quasi-judicial proceedings, and the strong public policy that seeks to ensure that attorneys provide full and robust representation to their clients and that they provide such clients with their unrestricted and undivided loyalty, the court finds that the doctrine of absolute immunity applies to the plaintiff's CUTPA claim. In doing so, the court is mindful that CUTPA does already provide some additional built-in protection from unwarranted lawsuits in this context via the limitation on suits against attorneys for their representation of a party opponent in litigation. Nevertheless, additional protection via absolute immunity will bolster the strong public policy behind the doctrine. Unlike the torts of vexatious litigation and abuse of process, CUTPA would obviously not be rendered all but useless upon the application of the litigation privilege to it because it provides relief in many other contexts than those in which one party is suing an attorney for his representation of a party opponent. A CUTPA cause of action is not needed because the torts of vexatious litigation and abuse of process provide an adequate remedy in such a situation. Thus, the balancing of interests favors immunity.
Since the plaintiff has not provided the court with any evidence of nonprivileged communication from which it could find a genuine issue of material fact, the court lacks subject matter jurisdiction to decide the merits of the CUTPA cause of action.
Accordingly, count fifty-one is dismissed for lack of subject matter jurisdiction.
E
Count Fourteen: CCPA
The court will now address the defendants' claim that they are absolutely immune from the plaintiff's CCPA count. The CCPA does not provide a cause of action against mere debt collectors, but only applies to creditors. A " creditor" is defined as " any person to whom a debt is owed by a consumer debtor and such debt results from a transaction occurring in the ordinary course of such person's business, or ... any person to whom such debt is assigned. ‘ Creditor’ shall not include a consumer collection agency ..." General Statutes § 36a-645(2). Since it is undisputed that the defendants in the present case did not own any of the debt that the plaintiff is alleged to have owed to the association, the CCPA by its terms does not apply to the defendants. The fact that the CCPA does not apply to the defendants in the present matter militates toward the application of absolute immunity to the present facts because the CCPA does not set forth a cause of action against attorneys hired by creditors to collect a debt. Allowing attorney debt collectors to be sued under the CCPA would go against the legislature's clear intent to exclude mere debt collectors. Moreover, the laws that govern consumer collection agencies exclude " any member of the bar of this state" from the definition of " consumer collection agency." General Statutes § 36a-800(1)(D). Thus, the balancing of interests favors immunity as applied to lawsuits brought against attorneys merely hired to collect debt. Of course, the legislature did provide a cause of action under the CCPA against creditors, so it is doubtful that absolute immunity would defeat a CCPA claim against a creditor because the statute was explicitly designed to create a cause of action against them.
Since the plaintiff has not provided the court with any evidence of nonprivileged communication from which it could find a genuine issue of material fact, the court lacks subject matter jurisdiction to decide the merits of the CCPA cause of action.
Accordingly, count fourteen is dismissed for lack of subject matter jurisdiction.
F
Counts Fifty-Five and Fifty-Eight: " Derivative" Reckless Misconduct and CUPTA
The court will address counts fifty-five and fifty-eight sua sponte as they appear to implicate the court's subject matter jurisdiction. Accordingly, the court will hold a hearing on whether it has subject matter jurisdiction to decide counts fifty-five and fifty-eight on December 17, 2012 at 9:30 a.m.
As set forth above, absolute immunity bars reckless misconduct and CUTPA causes of action which are predicated on statements made in preparation for or in the course of judicial proceedings as long as the statements have some relation to the proceeding. This immunity applies equally to the plaintiff's claims that were purportedly brought in a derivative capacity. Moreover, as a nonattorney, the plaintiff may not bring a suit on behalf of those in his condominium complex. See General Statutes 51-88(a). The court will afford the parties an opportunity to be heard on this issue on December 17, 2012.
II
SUMMARY JUDGMENT
" Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " 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." (Internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).
" The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, 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 under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). " ‘ Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).
A
Count Twelve: Vexatious Suit
As discussed in part I A, absolute immunity does not bar a cause of action for vexatious suit. Rioux v. Barry, supra, 283 Conn. at 347-48. The defendants argue that the underlying collection action was not terminated in the plaintiff's favor, which is a necessary prerequisite to a cause of action for vexatious suit. Specifically, they argue that the underlying action did not result in a final judgment, it did not take place under circumstances giving rise to an inference that the plaintiff was not liable, and it was not merely abandoned or withdrawn without consideration. The defendants contend, rather, that the suit was withdrawn because they had gotten the relief they sought from Chase, which held a mortgage on the property owned by Jonas that was subject to the association's lien. Further, the defendants contend that termination in the plaintiff's favor was not properly pleaded. The plaintiff's memorandum does not directly address whether the underlying litigation terminated in his favor.
A claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit terminated in the plaintiff's favor. Somers v. Chan, 110 Conn.App. 511, 542, 955 A.2d 667 (2008). Connecticut permits a vexatious suit cause of action to move forward " whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favoring the party originating the [underlying] action." DeLaurentis v. New Haven, 220 Conn. 225, 250, 597 A.2d 807 (1991). " [T]he unilateral abandonment or withdrawal of a claim or action can fairly be considered a termination favorable to the defendant, because it suggests that the plaintiff lacked probable cause to pursue the claim or action further ..." Economy Petroleum Corp. v. Paulauskas, Superior Court, judicial district of Hartford, Docket No. CV 00 0822116 (August 1, 2003, Sheldon, J.) [ 35 Conn. L. Rptr. 347]. Connecticut " [has] never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration." DeLaurentis v. New Haven, supra, at 251. " Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made" (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 440-41, 927 A.2d 843 (2007). Consideration may be furnished by a third party. See 1 Restatement (Second), Contracts § 71(4), p. 172 (1981).
In the present case, the defendants have submitted evidence that Chase tendered payment in full satisfaction of the debt allegedly owed by the plaintiff, apparently to obtain a higher priority for its mortgage on the plaintiff's condominium. As a result of the payment by Chase, the defendants withdrew the action against the plaintiff. The plaintiff does not offer any evidence to dispute those facts. Accordingly, even assuming arguendo that the favorable termination requirement was properly pleaded, it cannot be said that the underlying suit was abandoned or withdrawn without consideration. On the contrary, the evidence submitted indicates that the defendants received not only full satisfaction of the alleged underlying balance, but also statutory legal fees and costs. It may be true that the defendants withdrew the action without receiving any consideration directly from the plaintiff or even consulting him, but the withdrawal does not carry with it the usual inference that the plaintiff lacked probable cause to pursue the claim. Instead, the undisputed evidence submitted suggests that the defendants withdrew because they received the compensation they sought. It does not matter that consideration for the withdrawal was paid by Chase rather than by the plaintiff, only that the withdrawal did not occur because of the defendants' doubt as to the presence of probable cause to prosecute the underlying action.
To the extent the plaintiff argues that the defendants misrepresented the amount, nature or validity of the debt to Chase in order to induce it to pay the balance owed, and to the extent that argument is relevant to whether the underlying litigation terminated in the plaintiff's favor, the plaintiff has not supported his argument with any evidence of misrepresentations or other improprieties on the part of the defendants.
Accordingly, absent any genuine issues of material fact regarding the issue of whether the underlying litigation was terminated in the plaintiff's favor, the defendants are entitled to judgment as a matter of law on count twelve.
B
Count Thirteen: FDCPA
The defendants do not argue that absolute immunity bars the plaintiff's FDCPA cause of action, but because it implicates the court's subject matter jurisdiction, the court will address it briefly. " The FDCPA clearly defines the parties and activities it regulates. The Act applies to law firms that constitute debt collectors, even where their debt-collecting activity is litigation." Sayyed v. Wolpoff & Abramson, 485 F.3d 226, 229 (4th Cir.2007). Thus, because the statute clearly applies to lawyers engaged regularly in debt collection litigation; Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995); it is clear that " there is no blanket common law litigation immunity from the requirements of the FDCPA." Sayyed v. Wolpoff & Abramson, supra, at 230. Thus, the court will address the parties' arguments.
The defendants argue that, with respect to actions predicated on the wrongful initiation of a lawsuit by a debt collector, the FDCPA has a one-year statute of limitations that runs from the time the plaintiff is served in the underlying suit, or, at the latest, when the allegedly wrongful collection action was filed. They assert that even taking the latter date, the plaintiff should have filed his FDCPA claim against them by July 7, 2010, but failed to do so. The plaintiff counters that his FDCPA claim is not time-barred because the underlying collection case was ongoing until about ten months before the filing of the present action, even though the underlying suit was commenced more than one year before the filing of the present action. The plaintiff further responds that the statute of limitations should be equitably tolled based on allegedly defiant discovery responses, fraudulent concealment and spoliation, among other things.
The limitations period for filing a private cause of action under the FDCPA is provided by 15 U.S.C. § 1692k(d), which provides in relevant part: " An action to enforce any liability created by this [act] may be brought in any appropriate United States district court ... or in any other court of competent jurisdiction, within one year from the date on which the violation occurs." There is a split of authority regarding whether, in actions predicated on the wrongful initiation of a lawsuit by a debt collector, the limitations period in § 1692k(d) begins to run from the date of service or the date of the filing in the underlying suit. See, e.g., Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir.2002) (" where the plaintiff's FDCPA claim arises from the instigation of a debt collection suit ... no violation occurs within the meaning of § 1692k(d), until the plaintiff has been served") (Citation omitted; internal quotation marks omitted). Contra Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.1997) (" We hold that the statute of limitations [in § 1692k(d) ] began to run on the filing of the complaint ...").
In order to extend the commencement of the limitations period beyond the service or filing date, there must be a separate violation aside from the mere continued pursuit of the underlying lawsuit. Schiffhauser v. Citibank (South Dakota) N.A., 340 Fed.Appx. 128, 131 (3rd Cir.2009) (finding no support for contention that participation in ongoing debt collection litigation qualifies as " continuing violation" of FDCPA); Kimmel v. Phelan Hallinan & Schmieg, PC, 847 F.Supp.2d 753, 767 (E.D.Pa.2012) (same); Parker v. Pressler & Pressler, LLP, 650 F.Supp.2d 326, 341 (D.N.J.2009) (" For defendants' litigation conduct to be actionable, [the plaintiff] must offer proof that any particular act taken was a violation of the FDCPA, independent of the act of filing suit."). Furthermore, " [n]ew communications ... concerning an old claim ... [do] not start a new period of limitations." Campos v. Brooksbank, 120 F.Supp.2d 1271, 1274 (D.N.M.2000).
In the present case, it is undisputed that the defendants commenced the underlying collection action against the plaintiff by service of process on June 10, 2009, and filed it with the court on July 7, 2009. The plaintiff commenced the instant action against the defendants on August 10, 2010. The issue of whether the statute of limitations begins to run on the date of service or the date of filing need not be decided because both the service of process and the filing with the court in the underlying collection action took place after the one year limitations period had expired under either interpretation. The fact that the case was not withdrawn until October 9, 2009 is irrelevant, as litigation in and of itself is not a " continuing violation" that would extend the limitations period until the end of the litigation, and the plaintiff does not point to any specific actions on the part of the defendants that could constitute such a continuing violation.
With respect to tolling, it is unsettled as to whether the FDCPA allows for equitable tolling in a circumstance such as this. See Ruth v. Unifund CCR Partners, 604 F.3d 908, 914 (6th Cir.2010). Nevertheless, the United States Supreme Court has noted that " [t]ime requirements in lawsuits between private litigants are customarily subject to equitable tolling ..." (Internal quotation marks omitted.) Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see also Mangum v. Action Collection Service, Inc., 575 F.3d 935, 939-41 (9th Cir.2009) (finding FDCPA incorporates equitable tolling); Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket No. CV 04 4003402 (June 17, 2009, Corradino, J.) (48 Conn. L. Rptr. 133, 145) (same). Even assuming that equitable tolling does apply to the FDCPA, " [f]ederal courts have typically extended equitable relief only sparingly. [They] have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v. Department of Veterans Affairs, supra, 498 U.S. at 96.
One Connecticut Superior Court decision on the issue of the equitable tolling of the FDCPA statute of limitations based on a claim of fraudulent concealment, quoting 32 Am.Jur.3d Proof of Facts, p. 146 (1988), noted: " Fraudulent concealment can exist only if the plaintiff lacked the requisite knowledge pertinent to [his] cause of action until the time that the applicable limitations period expired. Thus, a court will not toll the statute of limitations to the extent the plaintiff had actual knowledge of the defendant's wrongdoing and [his] own injury when they happened, and yet failed to file suit before the limitations period expired.
" Nor may the plaintiff rely on the doctrine of fraudulent concealment simply because [his] knowledge was somewhat delayed or incomplete. On the contrary, the statutory limitations period begins running as soon as the plaintiff has sufficient actual knowledge to be aware of [his] claim, even though [he] lacks some of the details of its cause of action and does not discover the full enormity of the defendant's wrongdoing until later." Deutsche Bank v. Lichtenfels, supra, 48 Conn. L. Rptr. at 147. Further, " [a] court may ... refuse to toll the statute of limitations if the plaintiff was on notice of a potential claim. This type of notice refers ... to an awareness by the plaintiff of sufficient facts to give rise to a cause of action ..." 32 Am.Jur.3d Proof of Facts, supra, at p. 147.
Even assuming that equitable tolling could apply in this context, the plaintiff's claim is not tolled because he has not shown any evidence of concealment that prevented him from filing an FDCPA claim within the limitations period. The evidence before the court supports the conclusion that the plaintiff had sufficient information to support an FDCPA claim within the statute of limitations. For example, in a letter dated March 25, 2009, written months before the underlying collection suit was commenced, the plaintiff specifically threatens the defendants with an FDCPA lawsuit: " If [codefendant DeLallo] has such records, documents and contracts at his disposal and you do not obtain those from him, then you will be simply serving as a knowing instrument of his effort to conceal his breach of fiduciary duty and according to the FDCPA will be responsible for the various damages and costs which your facilitation of such ongoing and conscious breach of duty and bad faith on his part would cost me." He goes on to threaten that " [a]ny further contact on your part should be strictly in conformity with the FDCPA ..."
It cannot be said, then, that the plaintiff did not have notice of acts or omissions which he claims would give rise to the present FDCPA cause of action during the statutory time period. There is no evidence that he has been induced or tricked into allowing the filing deadline to pass, or of any spoliation that would toll the limitations period. The plaintiff's FDCPA claim is therefore time-barred because he did not bring the action within the one-year limitations period in 15 U.S.C. § 1692k(d).
Accordingly, the defendants are entitled to judgment as a matter of law on count thirteen.
CONCLUSION
In light of the aforementioned, counts fourteen, fifty-one, fifty-two, and fifty-three, are dismissed for lack of subject matter jurisdiction. The issue of whether the court has subject matter jurisdiction to decide counts fifty-five (derivative reckless misconduct) and fifty-eight (derivative CUTPA) will be the subject of the hearing on the matter on December 17, 2012.