Opinion
CV145016613
09-13-2018
Kimberly KENNESON v. Celia EGGERT et al.
UNPUBLISHED OPINION
Brazzel-Massaro, J.
INTRODUCTION
The defendants, Celia Eggert and Nationwide Mutual Fire Insurance Co. have filed a motion to dismiss the complaint filed on December 4, 2014 arguing that the claim is barred by the doctrine of absolute litigation immunity. The defendants state that the allegations in the complaint involve the defendants’ representation for the prior civil action filed by the plaintiff in which a resolution/settlement was filed. The defendants submitted a memorandum in support of their position. The plaintiff filed a memorandum in opposition dated April 25, 2018. The defendants filed a reply on May 1, 2018.
FACTUAL BACKGROUND
The plaintiff, Kimberly Kenneson filed a civil action against two individuals, Carl Rosati and Michael Altman, alleging negligence as a result of a motor vehicle accident. She represented herself in the action. The defendant Attorney Celia Eggert represented the defendant Michael Altman ("Altman") on behalf of the insurance company Nationwide Mutual Fire Insurance Co. (hereinafter "Nationwide"). The case was tried to a jury and a plaintiff’s verdict was returned in the amount of $67,556.07 as to Altman and $380,037 as to Carl Rosati. The defendant Carl Rosati did not appear at the trial nor thereafter and the record indicates that he died at some time before the post-trial settlement. Thereafter the parties appeared before the court on post-trial matters and the parties entered into settlement discussions while at the courthouse. The defendant Altman, through his counsel, offered to settle the matter for $56,000 but the plaintiff rejected the amount. Thereafter the parties continued discussions and agreed to a sum for settlement. The plaintiff signed the releases presented by Attorney Celia Eggert. At some point, the plaintiff discovered that she could not collect a portion of the judgment as to Rosati and was unable to collect from the defendant Altman as a result of the release which was presented by Attorney Eggert and signed by her. Upon discovering this, the plaintiff filed a motion to reopen the judgment and claimed that there was an intentional fraudulent representation by the attorney in having her sign the release without providing her the legal impacts of her signature. The court, Judge Pellegrino, denied the motion to reopen finding that there was no proof of fraudulent actions on the part of Attorney Eggert.
The prior action was entitled Kimberly Kenneson v. Carl Rosati and Michael Altman, CV 07-5003827. The verdict was returned on June 15, 2011.
The plaintiff filed this separate action, CV-14-5016613 by way of complaint on July 17, 2014. The plaintiff alleges that the defendant Celia Eggert committed fraud in her actions in the prior motor vehicle legal action by failing to provide the plaintiff with a full explanation as to the significance of the terms of the release and that she misrepresented that the plaintiff was required to sign the release as part of settlement to receive the $67,000. The defendants filed a summary judgment motion in this action which was granted by Judge Roraback on December 1, 2015. The court ruled that the plaintiff was collaterally estopped from bringing this action because Judge Pellegrino in the earlier action on the motion to reopen found that there was no evidence of fraud on the part of the defendant Eggert. The plaintiff appealed and the Appellate Court reversed the findings as to the collateral estoppel and stated that there is a genuine issue of fact because the hearing before Judge Pellegrino was not fully and fairly litigated and the facts do not satisfy the requirement of an identical action and issue in the prior proceeding. Additionally, the Appellate court stated there is a genuine issue as to what Attorney Eggert relayed at the prior action and as to whether it could have been construed by the plaintiff as a current state of the law required that she could not receive a judgment unless she signed the release. Thus, the Appellate Court remanded the matter to this court for further proceedings.
The Appellate Court found that these factual representations created a genuine issue of fact as to what was said or represented about the need to sign a release but for purposes of the motion to dismiss these factual issues are not significant. The only significance is whether a claim of fraud by counsel is protected by absolute litigation immunity.
Upon return to this court the defendant has filed a motion to dismiss arguing that the defendant has absolute litigation immunity for her legal representation of the defendants.
PROCEDURAL BACKGROUND
The complaint in this action was originally filed in July 2014. The action was the subject of a motion for summary judgment dated December 4, 2014. The court, Roraback, J., granted the motion for summary judgment on December 1, 2015 and the plaintiff appealed. The Appellate Court reversed the ruling and remanded the case to the Superior Court. Upon return, the defendants filed the motion to dismiss which is now before the court. The issue raised by the defendants is the application of the absolute litigation privilege immunity for an attorney involved in litigation.
DISCUSSION
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted). Santoroso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[T]he court in deciding a motion to dismiss must consider the allegations of the complaint in their most favorable light." Savage v. Aronson, 214 Conn. 256, 63, 571 A.2d 696 (1990). The grounds which may be asserted in [a motion to dismiss] are 1) lack of jurisdiction over the subject matter; 2) lack of jurisdiction over the person; 3) improper venue; 4) insufficiency of process; and 5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book (1978-97) § 143 (now § 10-30[a] ).
"The use of the motion to dismiss is limited by Practice Book § § 10-6, 10-7, 10-30 and 10-32, which together require that a motion to dismiss be the first pleading filed in response to the complaint and that it be filed within thirty days of the filing of an appearance. Thus, if the motion to dismiss is not filed according to those requirements, then any challenges on the grounds of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process are deemed waived." Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006). The plaintiff appears to rely upon this section for a portion of her argument that the defendants have waived the right to file a motion to dismiss. This plaintiff fails to recognize that waiver does not apply to motions addressing subject matter jurisdiction as in the present action.
"It is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ... 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 ..." (Internal quotation marks omitted.) Ferguson Mechanical Co. v. Dept. of Public Works, 282 Conn. 764, 770-71, 924 A.2d 846 (2007). "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 ..." Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). The defendants have alleged that the court lacks subject matter jurisdiction because the defendant Celia Eggert has absolute litigation immunity as the counsel charged with the duty of representing Mr. Altman by Nationwide Mutual Insurance Co. In Bruno v. Travelers Companies, 172 Conn.App. 717, 719-20 (2017) the court ruled that the claim of absolute immunity implicates subject matter jurisdiction. The purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state. Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005).
The plaintiff argues that because the discussion and subsequent settlement were discussed in the hallway at the court when the parties appeared for motions therefore the matter does not have the protection of absolute immunity because it is not a judicial proceeding. "... [O]nce it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition." Chadha v. Charlotte Hungerford Hospital, supra 787-88. Even communications that are preliminary to a proposed judicial proceeding are absolutely privileged if they bear some relation to the proceeding. See 3 Restatement (Second) Torts § 588, p. 250 (1977).
The defendants filed this motion stating that the court lacks subject matter jurisdiction because the defendant Celia Eggert was acting in her capacity as the legal representative for both Michael Altman and Nationwide during the course of the prior civil action and thus the relationship creates an immunity for her actions during the judicial proceedings.
The plaintiff argues that the statements of the defendants did not occur during a judicial proceeding and thus are not protected and that the defendants failed to provide her an explanation of the release that she signed.
In support of this first argument the plaintiff contends that because the settlement discussion took place in the hallway of the courthouse after a hearing regarding the sealing of records in the prior action it is not a judicial proceeding. In support of her argument the plaintiff has cited two legal actions in which the parties testified at a proceeding and were thereafter challenged as to the truth of the statements. In both the Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007) and Peyton v. Ellis, 200 Conn. 243, 310 A.2d 1337 (1986) the court was concerned about the public policy of encouraging witnesses to come forward. Neither of these cases involved the legal representation by an attorney and the discussions and actions taken by counsel as part of their representation of their client. These cases did recognize the claims of fraud are subject to the immunity. In the instant action, the plaintiff stated in her complaint that the parties "appeared for a hearing at the Superior Court on a Motion to Seal." (Complaint Par. 6.) The plaintiff continues in her complaint that the parties continued to engage in settlement discussions and thereafter agreed-upon settlement terms. These facts as alleged establish an ongoing judicial event although not in the courtroom but the discussion of settlement which certainly "bears some relation to the proceeding."
The defendants argue that immunity clearly protects the defendant who was actively involved in representing her clients at the time of the settlement. The defendant, Eggert had no privity to the plaintiff and did not owe her a duty of representation. "[D]etermining when attorneys should be held liable to parties with whom they are not in privity is a question of public policy ... A central dimension of the attorney client relationship is the attorney’s duty of [e]ntire devotion to the interest of the client ... This obligation would be undermined were an attorney to be held liable to third parties." (Internal quotation marks omitted.) Clukey v. Sweeney, 112 Conn.App. 534, 543, 963 A.2d 711 (2009), see also Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 727, 627 A.2d 374 (1993). "Courts have refrained from imposing liability when such liability had the potential of interfering with the ethical obligations owed by an attorney to his or her client." Krawczck v. Stingle, 208 Conn. 239, 246, 543 A.2d 722 (1988). "As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services." Id., 244.
The privilege which is claimed in this action includes the discussion in the halls of the court regarding an agreement to resolve the matter with a monetary payment. As stated in Tyler v. Tatoian, 164 Conn.App. 72, 87, 137 A.3d 601 (2016), "[t]he privilege extends beyond statements made during a judicial proceeding to preparatory communications that may be directed to the goal of the proceeding." The discussions amongst the parties were clearly toward the goal of resolving the action short of appeal. Here there are no facts that would create any responsibility for the defendant Eggert to provide any legal advice to the plaintiff as to the release or any other information. In this respect, it was obvious that the plaintiff was responsible for her own decisions and choices such as the ability to determine what amount would resolve the legal action for her.
Thus, the defendants have satisfied the test for absolute immunity in that Celia Eggert was acting in her capacity as advocate for the defendants in the judicial proceeding of discussion and settlement of the legal action. She had no obligation to advise, assist or define the parameters of the release which the plaintiff signed with the defendant. Her obligation was to her client to discuss and resolve the legal action as their advocate.
Additionally, the court in Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013) has specifically determined that a claim of fraud against an attorney as a result of action in litigation is protected by the litigation privilege. Therefore, the settlement discussions were part of a judicial proceeding and thus fall within the claims that are protected by the absolute litigation privilege.
Based upon the above, the motion to dismiss is granted as to Celia Eggert and as to Nationwide based upon the claims of vicarious liability.