Tyler v. Tatoian

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JAY M. TYLER ET AL. v. RICHARD TATOIAN

(AC 37799)

Lavine, Sheldon and Mullins, Js.

Argued November 19, 2015—officially released March 22, 2016

(Appeal from Superior Court, judicial district of

Tolland, Cobb, J.)

Bruce D. Tyler, self-represented, and Jay M. Tyler,

self-represented, the appellants (plaintiffs).

Kathleen Eldergill, for the appellee (defendant).

Opinion

SHELDON, J. The issue in this case is whether the

litigation privilege, also referred to as absolute immu-

nity,1 shields a defendant from claims of fraud and viola-

tions of the Connecticut Unfair Trade Practices Act

(CUTPA)2 arising from communications made during

the course of a prior litigation between the parties. The

plaintiffs, Jay M. Tyler and Bruce D. Tyler, appeal from

the trial court’s judgment granting the defendant Rich-

ard Tatoian’s motion to dismiss. The plaintiffs are broth-

ers who were named, inter alios, as beneficiaries of

their mother’s trust, for which the defendant, an attor-

ney, served as trustee. The alleged mismanagement of

the trust by the defendant was the subject of a prior

litigation between these parties, and on the basis of

various communications made by the defendant in that

prior litigation, the plaintiffs brought this action alleging

fraud and violations of CUTPA. The defendant filed a

motion to dismiss, asserting that the litigation privilege

applied to his statements because they were made in

the course of the prior litigation, and thus that he was

absolutely immune. The trial court agreed with the

defendant and dismissed the plaintiffs’ complaint in its

entirety. On appeal, the plaintiffs claim error in the trial

court’s application of absolute immunity to their claims

of fraud and violations of CUTPA, which they assert

fall under an exception to absolute immunity for causes

of action alleging an improper use of the judicial system.

We affirm the judgment of the trial court.

For purposes of this appeal, we must take as true

the following facts as set forth in the plaintiffs’ com-

plaint. See Rioux v. Barry, 283 Conn. 338, 341, 927 A.2d

304 (2007) (‘‘[b]ecause in this appeal we review the trial

court’s ruling on a motion to dismiss, we take the facts

to be those alleged in the complaint, construing them

in a manner most favorable to the pleader’’ [internal

quotation marks omitted]). The plaintiffs’ mother, Ruth

Tyler, established a trust naming the plaintiffs as benefi-

ciaries and the defendant as trustee. Following their

mother’s death, the plaintiffs commenced an action3

against the defendant in early 2011, alleging, inter alia,

that he had mismanaged the trust by failing to diversify

the trust’s assets.4 The defendant testified during a depo-

sition in that case that he had relied on the advice of

an investment advisor in deciding not to diversify the

trust assets. In response to that testimony, the plaintiffs

requested that the defendant pursue a claim against the

advisor to recover for the losses of the trust pursuant

to General Statutes § 45a-541i.5 The defendant declined

this request, and the court likewise denied the plaintiffs’

motion to compel the defendant to seek recovery from

the advisor. The plaintiffs thus attempted to recover

from the investment advisor directly by citing in the

advisor and amending their complaints, which the court

ultimately dismissed for lack of standing. Upon that

dismissal, the plaintiffs amended their complaints

against the defendant to include counts seeking dam-

ages for his failure to pursue a claim against the advisor

to recover for the losses of the trust. In order to prevail

on their claims, the plaintiffs had to establish that the

defendant relied on the advice of the investment adviser

in deciding not to diversify the trust funds. At trial in

October, 2013, the defendant testified that he had not

relied on the advisor’s advice in deciding not to diversify

the trust assets. The jury returned a verdict for the

defendant.

Following the jury’s verdict against the plaintiffs in

the initial action, the plaintiffs commenced a second

action against the defendant on October 28, 2014, in

the judicial district of Tolland, alleging fraud and viola-

tions of CUTPA. In their claim of fraud, the plaintiffs

alleged that the defendant’s differing testimony at his

deposition and at trial constituted a fraud that caused

them to waste resources in pursuing claims against the

investment advisor and the defendant for the losses of

the trust’s assets, and that such fraud constituted an

abuse of the legal system. In the CUTPA count, the

plaintiffs alleged that the defendant engaged in unfair

business practices by (1) ‘‘perpetrating a fraud on the

plaintiffs by making false statements under oath’’; (2)

intimidating Jay Tyler by sending him a letter stating

that ‘‘unless he withdrew his claims ‘immediately’ the

costs incurred by him and the trust ‘[would] result in

a claim against him for the cost of defenses, including

legal fees’ ’’; and (3) seeking court approval for account-

ings of the trust that included exorbitant fees when he

had no fee agreement with Ruth Tyler.

The defendant filed a motion to dismiss the plaintiffs’

complaint, claiming that the defendant’s communica-

tions in the initial case were made during the course

of judicial proceedings and were thus protected by the

litigation privilege. The court granted the motion, ruling

that ‘‘[t]he defendant’s statements made in court and

in a deposition in that prior action are absolutely privi-

leged under the legal doctrine known as the ‘litigation

privilege.’ Simms v. Seaman, 308 Conn. 523 [69 A.3d

880] (2013); Rioux v. Barry, [supra] 283 Conn. 338

. . . . Because the plaintiffs’ action is premised wholly

on statements made by the defendant in connection

with judicial proceedings, and those statements are

absolutely privileged, this case is dismissed.’’ The plain-

tiffs filed a motion to reargue the motion to dismiss,

which the court granted. The court denied the relief

requested but clarified its initial dismissal of the com-

plaint as follows: ‘‘[T]he court clarifies that its prior

order granting the defendant’s motion to dismiss also

applies to count two of the complaint, which relies

upon a litigation related letter, which is attached to the

complaint. See Hopkins v. O’Connor, 282 Conn. 821,

832, 925 A.2d 1030 (2007) (‘[t]he 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’) . . . .’’

The plaintiffs claim that the trial court erred in not

recognizing the exception from absolute immunity for

cases in which the plaintiff alleges that the defendant

improperly used the judicial system. The defendant

responds that all of his statements were made in the

course of a judicial proceeding, and that the limited

exception for claims alleging an improper use of the

judicial system does not apply.

‘‘Because the resolution of this claim requires us to

consider the trial court’s ultimate legal conclusion and

its resulting judgment of dismissal, our review is de

novo.’’ Rioux v. Barry, supra, 283 Conn. 343. ‘‘As the

doctrine of absolute immunity concerns a court’s sub-

ject matter jurisdiction . . . we are mindful of the well

established notion that, in determining whether a court

has subject matter jurisdiction, every presumption

favoring jurisdiction should be indulged. . . . The

question before us is whether the facts as alleged in

the pleadings, viewed in the light most favorable to

the plaintiff, are sufficient to survive dismissal on the

grounds of absolute immunity.’’ (Citations omitted;

internal quotation marks omitted.) Perugini v. Giuli-

ano, 148 Conn. App. 861, 873, 89 A.3d 358 (2014).

‘‘It is well settled that communications uttered or

published in the course of judicial proceedings are abso-

lutely privileged so long as they are in some way perti-

nent to the subject of the controversy.’’ (Internal

quotation marks omitted.) Hopkins v. O’Connor, supra,

282 Conn. 830–31. The privilege extends beyond state-

ments made during a judicial proceeding to ‘‘prepara-

tory communications that may be directed to the goal

of the proceeding.’’ Id., 832. The litigation privilege was

initially applied to bar claims of defamation. See Simms

v. Seaman, supra, 308 Conn. 531–40 (detailing history

of litigation privilege). More recently, however, our

Supreme Court has expanded the scope of immunity

afforded to statements made during the course of a

judicial proceeding beyond defamation. See, e.g, id.,

568–69 (‘‘attorneys are protected by the litigation privi-

lege against claims of fraud for their conduct during

judicial proceedings’’); Rioux v. Barry, supra, 283 Conn.

350 (‘‘absolute immunity does bar the plaintiff’s claim of

intentional interference with contractual or beneficial

relations’’); Petyan v. Ellis, 200 Conn. 243, 255, 510 A.2d

1337 (1986) (absolute immunity bars claim of inten-

tional infliction of emotional distress based on allegedly

defamatory statement).

In expanding the scope of the litigation privilege,

however, our Supreme Court has ‘‘recognized a distinc-

tion between attempting to impose liability upon a par-

ticipant in a judicial proceeding for the words used

therein and attempting to impose liability upon a litigant

for his improper use of the judicial system itself. . . .

In this regard, we have refused to apply absolute immu-

nity to causes of action alleging the improper use of

the judicial system.’’ (Citation omitted.) MacDermid,

Inc. v. Leonetti, 310 Conn. 616, 629, 79 A.3d 60 (2013);

see also, e.g., id., 625–26 (litigation privilege did not

shield claim by employee against employer alleging that

employer had brought action against employee solely

in retaliation for employee exercising his rights under

Workers’ Compensation Act); Rioux v. Barry, supra,

283 Conn. 343 (‘‘in the context of a quasi-judicial pro-

ceeding, absolute immunity does not attach to state-

ments that provide the ground for the tort of vexatious

litigation’’); Mozzochi v. Beck, 204 Conn. 490, 495, 529

A.2d 171 (1987) (‘‘an attorney may be sued for miscon-

duct by those who have sustained a special injury

because of an unauthorized use of legal process’’).

According to our Supreme Court, ‘‘whether and what

form of immunity applies in any given case is a matter

of policy that requires a balancing of interests.’’ Rioux

v. Barry, supra, 283 Conn. 346. Accordingly, in Rioux,

our Supreme Court looked to the following factors to

determine whether absolute immunity barred claims

of vexatious litigation or intentional interference with

contractual or beneficial relations: (1) whether ‘‘the

underlying purpose of absolute immunity applies just

as equally to [that] tort as it does to the tort of defama-

tion’’; (2) whether ‘‘[that] tort . . . contain[s] within it

the same balancing of relevant interests that are pro-

vided in the tort of vexatious litigation’’; (3) whether

‘‘the elements of [that tort] . . . provide the same level

of protection against the chilling of a witness’ testimony

as do the elements of vexatious litigation’’; and (4)

whether ‘‘[that] tort is more like defamation than vexa-

tious litigation.’’ (Citations omitted.) Id., 350–51; see

also MacDermid, Inc. v. Leonetti, supra, 310 Conn.

622 n.5.

However, in MacDermid, Inc., our Supreme Court

clarified that ‘‘the factors considered in Rioux . . . are

simply instructive. In Rioux, we emphasized that

whether and what form of immunity applies in any given

case is a matter of policy that requires a balancing of

interests. . . . We also observed that, in previous cases

that had presented a question of the applicability of the

doctrine of absolute immunity, we applied the general

principles underlying that doctrine to the particular con-

text of those cases. . . . Furthermore, the cases fol-

lowing Rioux have not relied exclusively or entirely

on the factors enumerated therein, but instead have

considered the issues relevant to the competing inter-

ests in each case.’’ (Citations omitted; internal quotation

marks omitted.) MacDermid, Inc. v. Leonetti, supra,

310 Conn. 630–31.

In examining the competing interests and public poli-

cies at stake, our Supreme Court has focused on the

need to ensure candor from all participants in the judi-

cial process. See, e.g., id., 628 (‘‘in expanding the doc-

trine 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 proceed-

ings, remains protected regardless of the particular tort

alleged in response to the words used during participa-

tion in the judicial process’’); Gallo v. Barile, 284 Conn.

459, 466, 935 A.2d 103 (2007) (‘‘The policy underlying

the privilege is that in certain situations the public inter-

est in having people speak freely outweighs the risk

that individuals will occasionally abuse the privilege by

making false and malicious statements. . . . The ratio-

nale underlying the privilege is grounded upon the

proper and efficient administration of justice. . . . Par-

ticipants in a judicial process must be able to testify

or otherwise take part without being hampered by fear

of [actions seeking damages for statements made by

such participants in the course of the judicial proceed-

ing]. . . . Put simply, absolute immunity furthers the

public policy of encouraging participation and candor

in judicial . . . proceedings. This objective would be

thwarted if those persons whom the common-law doc-

trine was intended to protect nevertheless faced the

threat of suit.’’ [Citation omitted; internal quotation

marks omitted.]); DeLaurentis v. New Haven, 220

Conn. 225, 264, 597 A.2d 807 (1991) (‘‘[w]itnesses and

parties to judicial proceedings must be permitted to

speak freely, without subjecting their statements and

intentions to later scrutiny by an indignant jury, if the

judicial process is to function’’).

In accord with the stated public policy of ensuring

candor in judicial proceedings, the court in Petyan v.

Ellis, supra, 200 Conn. 250, 252, held that an employer’s

statements made to the state labor department during

a dispute over the employee’s eligibility for unemploy-

ment compensation benefits were privileged from

claims for libel and intentional infliction of emotional

distress. In holding that the employer’s statements were

protected by the litigation privilege, our Supreme Court

recognized that ‘‘the dictates of public policy require

that an employer involved in an unemployment compen-

sation proceeding be able to state candidly his or her

reasons for terminating an employee as long as the

employer’s statement bears a reasonable relation to the

purpose of the proceeding. Otherwise employers might

be reluctant to respond to the employment security

division at all or their reply might be colored by fear

of subsequent litigation or liability.’’ Id., 250–51.

Our Supreme Court also has recently examined

whether absolute immunity barred a claim of fraud,

albeit in the context of whether it barred the claim

against the attorneys of a party opponent who allegedly

had concealed their client’s true financial status during

alimony proceedings. See Simms v. Seaman, supra, 308

Conn. 525–26. In deciding that claims of fraud against

attorneys are protected by the litigation privilege, it

explained: ‘‘We reach this conclusion because fraudu-

lent conduct by attorneys, while strongly discouraged,

(1) does not subvert the underlying purpose of a judicial

proceeding, as does conduct constituting abuse of pro-

cess and vexatious litigation, for which the privilege

may not be invoked, (2) is similar in essential respects

to defamatory statements, which are protected by the

privilege, (3) may be adequately addressed by other

available remedies, and (4) has been protected by the

litigation privilege in federal courts, including the

United States Supreme Court and the Second Circuit

Court of Appeals, for exactly the same reasons that

defamatory statements are protected.’’ (Emphasis in

original.) Id., 545–46.

With this history and precedent in mind, we conclude

that absolute immunity bars the plaintiffs’ claim of fraud

against the defendant. Although not all of the reasoning

in Simms applies when the person invoking the privi-

lege is not representing a party as an attorney, the

underlying policy and history of the privilege lead us

to conclude that it extends to bar claims of fraud against

a party opponent. It is precisely this type of communica-

tion that the litigation privilege was intended to protect

because the benefit of encouraging defendants to speak

candidly in judicial proceedings outweighs the risk of

a defendant abusing the privilege by lying under oath.

See Gallo v. Barile, supra, 284 Conn. 466.

Moreover, some of the available remedies discussed

by the court in Simms would apply when the person

accused of fraudulent activity is a party opponent,

including ‘‘fil[ing] a motion to open the judgment; see,

e.g., Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384

(1983) (‘a judgment . . . may be subsequently opened

if it is shown that [it] was obtained by fraud or inten-

tional material misrepresentation’).’’ Simms v. Seaman,

supra, 308 Conn. 552. In addition, as the court in

DeLaurentis v. New Haven, supra, 200 Conn. 264,

noted: ‘‘While no civil remedies can guard against lies,

the oath and the fear of being charged with perjury are

adequate to warrant an absolute privilege for a witness’

statements. Parties or their counsel who behave out-

rageously are subject to punishment for contempt of

the court. Parties and their counsel who abuse the pro-

cess by bringing unfounded actions for personal

motives are subject to civil liability for vexatious suit

or abuse of process.’’ (Footnote omitted.)

Finally, the exception elucidated in MacDermid, Inc.,

does not apply in this case. The plaintiffs here have

alleged fraud, and even though they claim that that

fraud constituted an abuse of the legal system, they

have not brought a claim against the defendant for

abuse of process. The court in Simms said: ‘‘[A]buse

of process claims must allege the improper use of litiga-

tion to accomplish a purpose for which it was not

designed. . . . In contrast, a claim of fraud, including

the claim that the defendants in the present case deliber-

ately concealed material evidence from the plaintiff and

incorrectly portrayed the plaintiff’s former spouse as

economically disadvantaged, does not require consider-

ation of whether the underlying purpose of the litigation

was improper but, rather, whether an attorney’s con-

duct while representing or advocating for a client during

a judicial proceeding that was brought for a proper

purpose is entitled to absolute immunity.’’ (Citations

omitted; internal quotation marks omitted.) Simms v.

Seaman, supra, 308 Conn. 546–47. The defendant here

did not use a legal process against the plaintiffs in order

to accomplish a purpose for which it was not designed;

the defendant merely participated in the process initi-

ated by the plaintiffs. The fact that the plaintiffs charac-

terized the defendant’s allegedly fraudulent conduct as

an abuse of the legal system does not mean that it falls

within the limited exception announced in MacDer-

mid, Inc.

The same policy of ensuring candor in the judicial

process leads us to conclude that the plaintiffs

remaining claims based upon alleged violations of

CUTPA are also barred by absolute immunity. The plain-

tiffs’ first claim under CUTPA is based upon the same

allegations of fraud alleged in count one, and thus is

barred for the same reasons. Their second claim under

CUTPA is predicated upon a letter sent by the defendant

to Jay Tyler on June 24, 2011. The letter, which was

attached to the complaint as an exhibit, relates to the

initial action between the parties, and ‘‘notifie[s] plain-

tiff Jay Tyler that unless he withdr[aws] [those] claims

‘immediately,’ the costs incurred by [the defendant] and

the trust ‘will result in a claim against him for the cost

of defenses, including legal fees.’ ’’ The plaintiffs argue

that the letter was sent after the commencement of the

initial action, and thus cannot be considered a ‘‘prelimi-

nary’’ or ‘‘preparatory’’ communication. The plaintiffs

are correct that this letter did not precede the service

of the writ of summons and complaint in the initial

action. However, the letter was published in the course

of, and was clearly pertinent to, a judicial proceeding.

‘‘[T]he long-standing common law rule [is] that commu-

nications uttered or published in the course of judicial

proceedings are absolutely privileged so long as they

are in some way pertinent to the subject of the contro-

versy. . . . Additionally, the court 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.’’ (Citation

omitted; internal quotation marks omitted.) Hopkins v.

O’Connor, supra, 282 Conn. 826. Finally, their third

claim under CUTPA is based upon the defendant’s

attempt to seek approval from the court for his account-

ing of the trust. Whether the defendant’s attempt was

in writing or oral, which is not clear from the face of

the complaint, it was uttered or published in the course

of a judicial proceeding, and thus is also barred by the

litigation privilege. See id.

The judgment is affirmed.

In this opinion the other judges concurred.

1

Our Supreme Court has said: ‘‘The terms absolute immunity and litigation

privilege are . . . [interchangeable] . . . . See, e.g., R. Burke, Privileges

and Immunities in American Law, 31 S.D. L. Rev. 1, 2 (1985) (defining

privilege as a special favor, advantage, recognition or status and immunity

as a special exemption from all or some portion of the legal process and

its judgment).’’ (Internal quotation marks omitted.) Simms v. Seaman, 308

Conn. 523, 525 n.1, 69 A.3d 880 (2013).

2

General Statutes § 42-110a et seq.

3

In the prior litigation, Bruce Tyler was named as a defendant; however,

he also filed a cross complaint against the defendant alleging identical claims

to those in Jay Tyler’s complaint.

4

Additional facts and the procedural history of that case are detailed in

Tyler v. Tyler, 163 Conn. App. 594, A.3d (2016).

5

General Statutes § 45a-541i provides: ‘‘(a) A trustee may delegate invest-

ment and management functions that a prudent trustee of comparable skills

could properly delegate under the circumstances. The trustee shall exercise

reasonable care, skill and caution in: (1) Selecting an agent; (2) establishing

the scope and terms of the delegation, consistent with the purposes and

terms of the trust; and (3) periodically reviewing the agent’s actions in order

to monitor the agent’s performance and compliance with the scope and

terms of the delegation.

‘‘(b) In performing a delegated function, an agent owes a duty to the

trustee and to the trust to exercise reasonable care to comply with the

scope and terms of the delegation and to exercise the delegated function

with reasonable care, skill and caution. An attempted exoneration of the

agent from liability for failure to meet such a duty is contrary to public

policy and void.

‘‘(c) A trustee who complies with the requirements of subsection (a) of

this section is not liable to the beneficiaries or to the trust for the decisions

or actions of the agent to whom the function was delegated.

‘‘(d) By accepting the delegation of a trust function from the trustee of

a trust that is subject to the law of this state, an agent submits to the

jurisdiction of the courts of this state and can be held liable by the courts

of this state for any breach of duty arising out of the delegation agreement

or the terms of sections 45a-541 to 45a-541l, inclusive.’’