Villages, LLC v. Longhi

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VILLAGES, LLC v. LORI LONGHI

(AC 36844)

Lavine, Sheldon and Mullins, Js.

Argued November 19, 2015—officially released July 5, 2016

(Appeal from Superior Court, judicial district of

Hartford, Wiese, J.)

Gwendolyn S. Bishop, with whom was P. Timothy

Smith, for the appellant (plaintiff).

Kristan M. Maccini, for the appellee (defendant).

Opinion

LAVINE, J. Our Supreme Court said of zoning laws

and commissions: ‘‘We must remember that the machin-

ery of government would not work if it were not allowed

a little play in its joints. . . . Nowhere is this more

applicable than to zoning ordinances; the saving elastic-

ity is mainly afforded through boards of adjustment.

Much depends upon the skill, sound judgment and pro-

bity of the members. It is essential to their functions

that they be invested with liberal discretion. They are

accorded the benefit of a presumption that they act

fairly, with proper motives and upon valid reasons,

and not arbitrarily.’’ (Citation omitted; emphasis

added; internal quotation marks omitted.) St. Patrick’s

Church Corp. v. Daniels, 113 Conn. 132, 139, 154 A.

343 (1931).

The plaintiff, Villages, LLC, appeals from the judg-

ment of the trial court dismissing its complaint against

the defendant, Lori Longhi, a member of the Enfield

Planning and Zoning Commission (commission), on the

ground that the defendant is absolutely immune from

liability in this action under the litigation privilege. The

plaintiff claims that the court erred in ruling that the

defendant is absolutely immune from suit in this action

under the litigation privilege because the conduct

alleged does not implicate that privilege, but instead is

governed by the provisions of General Statutes § 52-

557n (c).1 We agree with the plaintiff and, therefore,

reverse the judgment of the trial court.

The parties appear before this court for a second

time. The underlying facts previously were set out in

Villages, LLC v. Enfield Planning & Zoning Commis-

sion, 149 Conn. App. 448, 89 A.3d 405 (2014), appeals

dismissed, 320 Conn. 89, 127 A.3d 998 (2015). In May,

2009, the plaintiff filed an application for a special use

permit and an application to develop an open space

subdivision for residential housing on property it owned

in Enfield. Id., 450. The commission held a public hear-

ing on the plaintiff’s applications on July 9, 2009, July

23, 2009, September 3, 2009, and October 1, 2009, and

closed the public hearing on October 1, 2009. Id. On

October 15, 2009, the commission met and voted to

deny both applications. Id.

The plaintiff filed an appeal with respect to each

application (zoning appeals). In its appeals, the plaintiff

alleged that ‘‘the commission illegally and arbitrarily

predetermined the outcome of each of its applications

prior to the public hearing and was motivated by

improper notions of bias and personal animus when it

denied each of the applications.’’ Id., 450–51.

Following a trial, the court, Hon. Richard M. Ritten-

band, judge trial referee, ‘‘found that the plaintiff’s alle-

gations of bias and ex parte communication arose from

the actions of [the defendant], a member of the commis-

sion. More specifically, the court found that [the defen-

dant] took part in the hearing on the plaintiff’s

applications, played a significant role in the delibera-

tions, and voted to deny the plaintiff’s applications.

[The defendant] had been a social friend of one of the

plaintiff’s owners, Jeannette Tallarita, and her husband,

Patrick Tallarita . . . . There was a falling out among

the friends, and the court found that [the defendant]

was biased against Patrick Tallarita, who represented

the plaintiff at the hearing before the commission. The

court also found that [the defendant] engaged in an

ex parte communication regarding the applications.’’

(Emphasis added; footnote omitted.) Id., 451.

The court found two instances of conduct by the

defendant that gave rise to the plaintiff’s claim of bias

against her, only one of which was relevant to the zoning

appeals. Id., 451. In the incident described by the court,

the defendant had stated that ‘‘she wanted [Patrick Tal-

larita] to suffer the same fate of denial by the commis-

sion that she had suffered.’’ (Internal quotation marks

omitted.) Id., 452. ‘‘At trial, Anthony DiPace testified

that [the defendant] had stated to him that the commis-

sion, when it previously considered an application that

she had submitted, had ‘screwed her’ and treated her

unfairly when it denied that application. She was

unhappy with [Patrick] Tallarita, who was then mayor,

because he did not intervene on her behalf. She stated

in the presence of DiPace that she wanted [Patrick]

Tallarita to suffer the same fate, i.e., that the commis-

sion deny the plaintiff’s applications. [Patrick] Tallarita

did not become aware of [the defendant’s] statement

regarding the fate of the plaintiff’s applications until

after the commission had closed the public hearing [on

the plaintiff’s applications]. The court found that [the

defendant’s] comments were blatantly biased [against

Patrick] Tallarita and should not be tolerated. The court

also found that it had not been possible for the plaintiff

to bring [the defendant’s] comments regarding [Patrick]

Tallarita to the attention of the commission because he

learned of them after the hearing had closed and the

commission had denied the plaintiff’s applications.

‘‘Credibility was a deciding factor in the court’s deci-

sion regarding [the defendant’s] ex parte communica-

tion. [Patrick] Tallarita, DiPace, and Bryon Meade

testified during the trial. The court found each of the

men was a credible witness. [The defendant] also testi-

fied at trial, but the court found that her testimony was

filled with denials of the allegations and concludedthat

her ‘comments did not ring true.’ The court found that

Meade, a representative of the Hazardville Water

Authority, testified with confidence that [the defendant]

had met with him in person regarding the plaintiff’s

applications during the first week of October, 2009.

[The defendant] testified, however, that Meade must

have been confused because she met with him regarding

another property. The court stated that [the defen-

dant’s] testimony was just not credible.

‘‘In addressing the plaintiff’s claim that [the defen-

dant] improperly engaged in ex parte communications

with Meade, the court noted that ‘[o]ur law clearly pro-

hibits the use of information by a municipal agency that

has been supplied to it by a party to a contested hearing

on an ex parte basis.’ . . . The court found that it was

‘clear’ that [the defendant] had an ex parte communica-

tion with Meade. Once the plaintiff had proven that

the ex parte communication had occurred, the burden

shifted to the commission to demonstrate that such

communication was harmless. . . . The court found

that the commission had not met its burden to prove

that [the defendant’s] ex parte communication was

harmless.’’ (Citations omitted; emphasis in original.)

Id., 452–53.

The court ‘‘reviewed the transcript of the commis-

sion’s October 15, 2009 meeting when it considered the

plaintiff’s applications. It found that the transcript was

twenty-three pages long and that [the defendant’s] com-

ments appeared on every page but one, and that on

most pages, [the defendant’s] comments were the most

lengthy. Her comments raised many negative questions

about the plaintiff’s applications. Moreover, in offering

her comments, she cited her experience as an appraiser.

The court found that [the defendant] dominated the

meeting and that she intended to have a major effect

on the commission’s deliberations and subsequent

votes. The court found clear and egregious bias on [the

defendant’s] part, and that her impact on the commis-

sion’s deliberations and votes alone were reason to

sustain the plaintiff’s appeals.’’ (Footnote omitted.)

Id., 453–54.

Judge Rittenband concluded that, ‘‘on the basis of

the bias [the defendant] demonstrated against the plain-

tiff and her ex parte communication with Meade, along

with her biased, aggressive, and vociferous arguments

against the applications on October 15, 2009, the com-

mission’s action was not honest, legal, and fair. The

court therefore sustained the plaintiff’s appeals and

remanded the matter to the commission for further

public hearings . . . .’’ (Emphasis added.) Id., 455. The

commission appealed, and this court affirmed the judg-

ments of the trial court. Id., 467. The commission’s

appeals to our Supreme Court were dismissed. Villages,

LLC v. Enfield Planning & Zoning Commission, 320

Conn. 89, 127 A.3d 998 (2015).

The plaintiff commenced the present action on Octo-

ber 1, 2012. The two count complaint against the defen-

dant alleged intentional fraudulent misrepresentation2

and intentional tortious interference with business

expectancy.3 The plaintiff alleged that it owns land in

Enfield and that it had filed certain applications with

the commission, seeking to develop the land. At all

times relevant, the defendant was a member of the

commission and engaged in ex parte communication

with respect to the plaintiff’s applications, yet partici-

pated in the public hearing in which the commission

denied the plaintiff’s applications.

The defendant denied the material allegations of the

complaint and alleged three special defenses as to each

count, including that the action was barred by the doc-

trines of governmental immunity and absolute immu-

nity. The plaintiff denied each of the special defenses.

In December, 2013, the defendant filed a motion that

the court either dismiss the plaintiff’s cause of action

or render summary judgment in her favor. Only the

motion to dismiss is relevant to this appeal.4 In her

memorandum of law in support of the motion to dis-

miss, the defendant argued that she was entitled to

absolute immunity because she was acting in an admin-

istrative capacity and performing a quasi-judicial func-

tion when she reviewed and voted on the plaintiff’s

applications. Nonetheless, she recognized the case of

Towne Brooke Development, LLC v. Fox, Superior

Court, judicial district of Danbury, Docket No. CV-03-

0347962-S (November 26, 2004), in which the trial court,

Hon. Howard J. Moraghan, judge trial referee, con-

cluded that the defendant members of the commission

were not entitled to absolute immunity because their

alleged misconduct involved an ex parte discussion.5

On January 13, 2014, the plaintiff filed an objection

to the defendant’s motion in which it contended that

neither qualified immunity, governmental immunity,

nor absolute immunity barred its claims against the

defendant given the intentional nature of her alleged

misconduct and that the allegations of its complaint

were predicated on Judge Rittenband’s findings in the

zoning appeals.6 With respect to the defendant’s special

defense that, as a municipal officer exercising discre-

tion, she was immune from suit, the plaintiff countered

that § 52-557n (c) applied to the facts alleged, emphasiz-

ing the statute’s final sentence, to wit: ‘‘The provisions

of this subsection shall not apply if such damage or

injury was caused by the reckless, wilful or wanton

misconduct of such person.’’ The plaintiff, therefore,

argued that on the basis of Judge Rittenband’s findings

in the zoning appeals, the defendant was not entitled

to immunity from suit.

With respect to the doctrine of absolute immunity,

the plaintiff cited and quoted from decisions of our

Supreme Court regarding the historical development,

purpose, and policy foundations of absolute immunity,

including instances in which it did not apply.7 The plain-

tiff summarized its position with respect to immunity

by stating that its claims were not based on the words

the defendant uttered during the commission’s meeting

at which its applications were denied, but on the defen-

dant’s ex parte gathering of evidence, which deprived it

of a fair hearing. The plaintiff argued that its intentional

fraudulent misrepresentation claim was grounded on

the defendant having falsely represented herself to be

‘‘an honest, fair and unbiased member of the commis-

sion when she chose to participate in the proceedings

on the [plaintiff’s] applications.’’ As to the second count,

intentional tortious interference with business expec-

tancy, the plaintiff claimed that by participating as a

biased decision maker and gathering evidence outside

the record, the defendant intentionally and tortiously

interfered with the plaintiff’s expectancy that the com-

mission would provide a fair, neutral, and honest pro-

ceeding with respect to its applications.

Following oral argument, the trial court, Wiese, J.,

issued a memorandum of decision on May 7, 2014, in

which it granted the defendant’s motion to dismiss, but

declined to address the motion for summary judgment

on the ground that the court lacked subject matter

jurisdiction. In rendering its decision, the court first

determined that the commission is a quasi-judicial body

because it is authorized to hear, consider, and decide

applications for special permits or exceptions in the

exercise of its discretion.8 See Kelley v. Bonney, 221

Conn. 549, 567, 606 A.2d 693 (1992). The court noted

that our Supreme Court has held that zoning boards

act in a quasi-judicial capacity when passing upon the

issuance of a permit. See Astarita v. Liquor Control

Commission, 165 Conn. 185, 189, 332 A.2d 106 (1973).

The court concluded that the commission was acting

in a quasi-judicial capacity when it considered the plain-

tiff’s applications and, therefore, its members were pro-

tected by the litigation privilege, a subset of absolute

immunity. Relying on Kelley v. Bonney, supra, 565–66,

which noted that the litigation privilege attaches to

relevant statements made in administrative proceedings

that are quasi-judicial in nature, the court reasoned that

the role of zoning commission members, when acting

on permit applications, is similar to that of judges.9

We disagree that the litigation privilege is applicable

to the allegations of the plaintiff’s complaint. As the

plaintiff made clear in its memorandum of law in opposi-

tion to the defendant’s motion to dismiss and on appeal,

its claims are not predicated on what the defendant

stated at the commission meeting, but on her bias and

ex parte communication with Meade. Although the

plaintiff referred to and quoted § 52-557n (c) in the trial

court, the court did not consider the statute when it

dismissed the plaintiff’s cause of action.

The plaintiff appealed, claiming that the court erred

in determining that it lacked subject matter jurisdiction

because: (1) § 52-557n (c) abrogated the common-law

doctrine of absolute immunity, and (2) the defendant’s

liability is grounded on her internal bias and ex parte

communication.10 Although we agree that the court

erred in dismissing the plaintiff’s cause of action, we

do not agree that the statute abrogated common-law

absolute immunity. The defendant argues that she is

entitled to absolute immunity because the commission

is a quasi-judicial board; we disagree. Section 52-557n

(c) provides members of municipal agencies with quali-

fied immunity in that commission members may be

liable for their intentional wrongful acts. Absolute

immunity and the litigation privilege are not implicated

by the allegations of the plaintiff’s complaint. The court

and the defendant have conflated the immunity pro-

vided to those who make statements before quasi-judi-

cial boards and the immunity provided to members of

municipal agencies for exercising their decision-making

responsibilities.11

‘‘The standard of review for a court’s decision on a

motion to dismiss . . . is well settled. A motion to dis-

miss tests, inter alia, whether, on the face of the record,

the court is without jurisdiction. . . . [O]ur review of

the court’s ultimate legal conclusion and resulting

[determination] of the motion to dismiss will be de

novo. . . . When a . . . court decides a jurisdictional

question raised by a pretrial motion to dismiss, it must

consider the allegations of the complaint in their most

favorable light. . . . In this regard, a court must take

the facts to be those alleged in the complaint, including

those facts necessarily implied from the allegations,

construing them in a manner most favorable to the

pleader. . . . The motion to dismiss . . . admits all

facts which are well pleaded, invokes the existing

record and must be decided upon that alone. . . . In

undertaking this review, 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.’’ (Citations

omitted; internal quotation marks omitted.) Dayner v.

Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d

1192 (2011).

The plaintiff claims that the court improperly deter-

mined that the defendant is absolutely immune from

suit because § 52-557n (c) provides commission mem-

bers with qualified immunity and, therefore, commis-

sion members are liable for their intentional wrongful

acts, and the defendant claims that she is afforded abso-

lute immunity pursuant to the litigation privilege. The

parties’ claims involve two distinct legal doctrines. To

highlight the distinction between the litigation privilege

that pertains to statements made during judicial or

quasi-judicial proceedings and the applicability of § 52-

557n (c) to the decision-making responsibilities of

members of a municipal agency, we provide a brief

overview.

The litigation privilege developed centuries ago in

the context of defamation claims. See Simms v. Sea-

man, 308 Conn. 523, 531, 69 A.3d 880 (2013). The privi-

lege evolved, in part, to protect lawyers from civil

actions for words spoken during the course of legal

proceedings. Id., 533–34. ‘‘Absolute immunity for defam-

atory statements made in the course of judicial proceed-

ings has been recognized by common-law courts for

many centuries and can be traced back to medieval

England.’’ (Emphasis added.) Id., 531. ‘‘The rationale

articulated in the earliest privilege cases was the need

to bar persons accused of crimes from suing their accus-

ers for defamation.’’ Id.

Connecticut has long recognized the litigation privi-

lege, and our Supreme Court has stated that the privi-

lege ‘‘extends to judges, counsel and witnesses

participating in judicial proceedings.’’ (Internal quota-

tion marks omitted.) Id., 537, quoting Blakeslee & Sons

v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894), overruled

in part on other grounds, Peytan v. Ellis, 200 Conn.

243, 510 A.2d 1337 (1986).12 In Blakeslee & Sons, our

Supreme Court explained that the privilege was

‘‘founded upon the principle that in certain cases it is

advantageous for the public interest that persons should

not be in any way fettered in their statements, but

should speak out the whole truth, freely and fearlessly.’’

(Internal quotation marks omitted.) Blakeslee & Sons

v. Carroll, supra, 232.

‘‘It is well settled that communications uttered or

published in the course of judicial proceedings are abso-

lutely privileged [as] long as they are in some way perti-

nent to the subject of the controversy. . . . The effect

of an absolute privilege is that damages cannot be recov-

ered for the publication of the privileged statement

even if the statement is false and malicious.’’ (Citation

omitted; emphasis added; internal quotation marks

omitted.) Gallo v. Barile, 284 Conn. 459, 465–66, 935

A.2d 103 (2007). ‘‘[L]ike the privilege which is generally

applied to pertinent statements made in formal judicial

proceedings, an absolute privilege also attaches to rele-

vant statements made during administrative proceed-

ings which are quasi-judicial in nature.’’ (Emphasis

added; internal quotation marks omitted.) Mercer v.

Blanchette, 133 Conn. App. 84, 90, 33 A.3d 889 (2012).

‘‘Put simply, absolute immunity furthers the public pol-

icy of encouraging participation and candor in judicial

. . . proceedings. This objective would be thwarted if

those persons whom the common-law doctrine was

intended to protect nevertheless faced the threat of

suit.’’ (Internal quotation marks omitted.) Gallo v. Bar-

ile, supra, 466. What this brief history demonstrates is

that the litigation privilege applies to statements made

during the course of a judicial or quasi-judicial pro-

ceeding.

As to the defendant’s claim that she is entitled to

absolute immunity,13 ‘‘[i]t is a long-standing doctrine

that a judge may not be civilly sued for judicial acts he

[or she] undertakes in his [or her] capacity as a judge.

The rationale is that a judge must be free to exercise

his [or her] judicial duties without fear of reprisal,

annoyance or incurring personal liability. . . . Abso-

lute immunity, however, is strong medicine. . . . The

presumption is that qualified rather than absolute

immunity is sufficient to protect government officials

in the exercise of their duties. . . .

‘‘The officers to whom the absolute protections of

judicial immunity extends is limited. This fact reflects

an [awareness] of the salutary effects that the threat of

liability can have . . . as well as the undeniable tension

between official immunities and the ideal of the rule

of law . . . . The protection extends only to those who

are intimately involved in the judicial process, including

judges, prosecutors and judges’ law clerks. Absolute

judicial immunity, however, does not extend to every

officer of the judicial system. . . . Moreover, it is

important to note that even judges do not enjoy absolute

immunity for administrative as opposed to judicial

actions. . . . The determination is made using a func-

tional approach. . . . [I]mmunities are grounded in the

nature of the function performed, not the identity of

the actor who performed it.’’ (Citations omitted; internal

quotation marks omitted.) Lombard v. Edward J.

Peters, Jr., P.C., 252 Conn. 623, 630–32, 749 A.2d 630

(2000).

In 1923, the Connecticut legislature enacted zoning

legislation. See Coombs v. Larson, 112 Conn. 236, 238,

152 A. 297 (1930) (c. 279, § 1, of the 1923 Public Acts

authorized eight cities and towns to appoint zoning

commissions). It has been determined that a zoning

board acts in a quasi-judicial capacity and ‘‘its decisions

are reached only after the presentation of evidence

deemed to warrant such action.’’ Burr v. Rago, 120

Conn. 287, 292, 180 A. 444 (1935). In the case of Kelley

v. Bonney, supra, 221 Conn. 549, our Supreme Court

delineated several factors to be used to determine

whether a proceeding is quasi-judicial in nature. Signifi-

cant among the factors in the present case are ‘‘whether

the body has the power to: (1) exercise judgment and

discretion; (2) hear and determine or to ascertain facts

and decide; (3) make binding orders and judgments;

(4) affect the personal or property rights of private

persons; [or] (5) examine witnesses and hear the litiga-

tion of the issues on a hearing . . . .’’ Id., 567.

Our Supreme Court has stated that ‘‘[h]ow best the

purposes of zoning can be accomplished in any munici-

pality is primarily in the discretion of its zoning author-

ity; that discretion is a broad one; and unless it

transcends the limitations set by law its decisions are

subject to review in the courts only to the extent of

determining whether or not it has acted in abuse of

that discretion.’’ Bartram v. Zoning Commission, 136

Conn. 89, 96, 68 A.2d 308 (1949). ‘‘Courts cannot set

aside the decision of public officers in such a matter

unless compelled to the conclusion that it has no foun-

dation in reason and is a mere arbitrary or irrational

exercise of power having no substantial relation to the

public health, the public morals, the public safety or the

public welfare in its proper sense.’’ (Internal quotation

marks omitted.) St. Patrick’s Church Corp. v. Daniels,

supra, 113 Conn. 136. As previously stated, zoning

boards and their members are to be ‘‘accorded the bene-

fit of a presumption that they act fairly, with proper

motives and upon valid reasons, and not arbitrarily.’’

Id., 139. This decisional history reveals that there are

limits to the discretion of a zoning board. The legislature

codified the limits of a zoning board member’s discre-

tion in § 52-557n (c).

Section 52-557n (c) provides in relevant part: ‘‘Any

person who serves as a member of any . . . commis-

sion . . . of a municipality and who is not compen-

sated for such membership . . . shall not be personally

liable for damage or injury occurring on or after October

1, 1992, resulting from any act, error or omission made

in the exercise of such person’s policy or decision-

making responsibilities on such . . . commission . . .

if such person was acting in good faith, and within

the scope of such person’s official functions and duties,

and was not acting in violation of any state, municipal

or professional code of ethics regulating the conduct

of such person . . . . The provisions of this subsec-

tion shall not apply if such damage or injury was

caused by the reckless, wilful or wanton misconduct

of such person.’’ (Emphasis added.)

On the basis of the plain language of the statute; see

General Statutes § 1-2z; we conclude that that § 52-557n

(c) affords qualified immunity, rather than absolute

immunity, because it expressly excepts from its pur-

view any conduct that is not undertaken in good faith,

that is in violation of any state, municipal or profes-

sional code of ethics, or that is reckless, wilful or wan-

ton. Cf. Chadha v. Charlotte Hungerford Hospital, 77

Conn. App. 104, 113–14, 822 A.2d 303 (2003), aff’d, 272

Conn. 776, 865 A.2d 1163 (2005).14 The language clearly

expresses the legislature’s intent that those whose con-

duct or status puts them within the purview of § 52-

557n (c) should be provided protection from liability,

but that the protection should be limited or qualified.

The defendant has pointed out that the legislative

history of § 52-557n (c) indicates that the purpose of

the statute is to protect uncompensated commission

members from liability for damages arising out of their

decision-making responsibilities and thereby encourage

volunteer participation on municipal boards and com-

missions. In support of her position, the defendant has

quoted the legislative history as it is contained in Stone

v. Newtown, Superior Court, judicial district of Fair-

field, Docket No. CV-01-0381241 (July 5, 2002) (32 Conn.

L. Rptr. 445).15 Although we agree with the defendant

that the legislature’s stated purpose for No. 92-198 of

the 1992 Public Acts was to encourage citizen participa-

tion on municipal boards, it does not provide absolute

immunity. By its terms, the immunity the statute pro-

vides does not apply to reckless, wanton, and wilful

misconduct, conduct performed in bad faith, or ethical

violations.16 The language of § 52-557n (c) clearly

excepts such conduct from the scope of immunity oth-

erwise granted by it.17

In its complaint, the plaintiff alleged that the defen-

dant engaged in ex parte communication with respect

to its applications. ‘‘Our law clearly prohibits the use

of information by a municipal agency that has been

supplied to it by a party to a contested hearing on an

ex parte basis. While proceedings before [municipal

agencies] are informal and are conducted without

regard to the strict rules of evidence . . . nevertheless,

they cannot be so conducted as to violate the fundamen-

tal rules of natural justice. . . . Due process of law

requires that the parties involved have an opportunity

to know the facts on which the [agency] is asked to

act, to cross-examine witnesses and to offer rebuttal

evidence. The [agency] could not properly consider

additional evidence submitted by [a party] after the

public hearing without providing the necessary safe-

guards guaranteed to [an opposing party] and to the

public. This means a fair opportunity to cross-examine

witnesses, to inspect documents presented and to offer

evidence in explanation or rebuttal. . . . Not to do so

would deny those [supporting or] opposing the applica-

tion the right to be fully apprised of the facts on which

the [agency] is asked to act.’’ (Citations omitted; internal

quotation marks omitted.) Norooz v. Inland Wetlands

Agency, 26 Conn. App. 564, 569–70, 602 A.2d 613 (1992).

Given the allegations of wrongdoing the plaintiff leveled

against the defendant—alleged on the basis of Judge

Rittenband’s findings in the plaintiff’s zoning

appeals18—Judge Wiese was bound by § 52-557n (c)

when ruling on the defendant’s motion to dismiss.19

For the foregoing reasons, we conclude that § 52-

557n (c) pertains to whether the Superior Court has

jurisdiction to adjudicate the allegations in the plain-

tiff’s complaint. The trial court in the present case,

therefore, improperly dismissed the plaintiff’s cause of

action for lack of subject matter jurisdiction when it

concluded that the defendant, who had engaged in ex

parte communication and was biased against the plain-

tiff, was protected by the common-law litigation privi-

lege when she participated in the commission’s meeting

to act on the plaintiff’s applications.

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1

General Statutes § 52-557n (c) provides: ‘‘Any person who serves as a

member of any board, commission, committee or agency of a municipality

and who is not compensated for such membership on a salary or prorated

equivalent basis, shall not be personally liable for damage or injury occurring

on or after October 1, 1992, resulting for any act, error or omission made

in the exercise of such person’s policy or decision-making responsibilities

on such board, commission, committee or agency if such person was acting

in good faith, and within the scope of such person’s official functions

and duties, and was not acting in violation of any state, municipal or

professional code of ethics regulating the conduct of such person, or in

violation of subsection (a) of section 9-369b or subsection (b) or (c) of

section 1-206. The provisions of this subsection shall not apply if such

damage or injury was caused by the reckless, wilful or wanton misconduct

of such person.’’ (Emphasis added.)

2

In the intentional fraudulent misrepresentation count, the plaintiff

alleged, among other things, that the defendant was a member of the commis-

sion at the time it considered the plaintiff’s applications, played a significant

role in the deliberations, and voted to deny the applications. More specifi-

cally, the plaintiff alleged that the defendant was egregiously biased against

it, which bias ‘‘was shown when [she] stated to . . . DiPace that she felt

that the . . . commission had treated her unfairly and ‘screwed her,’ was

unhappy with Patrick Tallarita because he did not intervene on her behalf

and that she wanted him to suffer the same fate of denial by the commission

that she had suffered.’’ (Emphasis added.) The plaintiff also alleged that

the defendant’s bias affected the other members of the commission in that

she raised many negative questions about the applications and the facts

involved and intended to have a major effect on the deliberations and the

subsequent votes at the October 15, 2009 meeting.

The plaintiff further alleged that after the close of the public hearing, but

prior to the commission vote on October 15, 2009, the defendant ‘‘initiated

improper ex parte communications with . . . Meade of the Hazardville

Water Company concerning the plaintiff’s applications . . . .’’ She discussed

water pressure and fire flows with Meade, but did not disclose to the other

members of the board that she had obtained information ex parte by commu-

nicating with Meade. The plaintiff alleged that the defendant’s meeting with

Meade after the close of the public hearing was improper, prejudicial and

unfair. Due to the defendant’s bias demonstrated by her communication

with Meade, an honest, legal and fair action by the commission was not

made. ‘‘[B]y participating in the proceedings on the plaintiff’s applications,

in spite of her bias and improper ex parte communication, [the defendant]

continuously intentionally misrepresented to the plaintiff that she was a

neutral, honest, fair and unbiased member of the commission.’’ (Emphasis

added.) The defendant ‘‘knew that her representations that she was a neutral,

honest, fair and unbiased member of the commission were false and [she]

made these representations to the plaintiff wilfully, wantonly, maliciously

and in reckless disregard of the plaintiff’s rights.’’

3

In the intentional tortious interference with business expectancy count,

the plaintiff alleged, among other things, that the defendant, ‘‘by participating

in the proceedings in spite of her bias against the plaintiff, by making

biased, aggressive and vociferous arguments against the plaintiff’s applica-

tions and by engaging in improper communications ex parte, and by

making fraudulent intentional misrepresentations to the plaintiff, was acting

outside the scope of her authority as a member of the . . . commission

. . . [and] intentionally and tortuously interfered with the relationship

between the plaintiff and the commission and tortuously interfered with

the plaintiff’s expectation that it was investing time, money, and effort into

proceedings that were fair, honest, and legal . . . .’’ (Emphasis added.)

4

On January 17, 2014, the plaintiff filed a motion for partial summary

judgment as to liability only. The trial court, Wiese, J., declined to address

either the defendant’s motion for summary judgment or the plaintiff’s motion

for partial summary judgment on the ground that it lacked subject matter

jurisdiction. On appeal, neither party claims that it was improper for the

court not to have adjudicated the summary judgment motions.

5

In Towne Brooke Development, LLC, Judge Moraghan denied the defen-

dants’ motion for summary judgment because there were genuine issues of

material fact as to whether the defendants had acted with malice, wanton-

ness, or an intent to injure, citing Lapadula v. Middletown, Superior Court,

judicial district of Middlesex, Docket No. 67942-S (August 16, 1994) (where

alleged misconduct involves malice, wantonness or intent to injure, immu-

nity doctrine cannot be invoked successfully). Towne Brooke Development,

LLC v. Fox, supra, Superior Court, Docket No. CV-03-0347962-S.

6

In its objection to the defendant’s motion, the plaintiff claimed that Judge

Rittenband’s determinations of fact support the allegations of its complaint

and that the defendant is collaterally estopped from relitigating those find-

ings in the present action.

7

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

(absolute immunity does not bar action alleging improper use of judicial

process); Simms v. Seaman, 308 Conn. 523, 531, 69 A.3d 880 (2013) (doctrine

developed to bar defamation claims against participants in judicial proceed-

ings); Rioux v. Barry, 283 Conn. 338, 343–44, 927 A.2d 304 (2007) (public

interest in having people speak freely outweighs risk individual will occasion-

ally abuse privilege by making false statements); Chadha v. Charlotte Hun-

gerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005) (communications

uttered in course of judicial proceedings absolutely privileged as long as

they pertain to subject of controversy); DeLaurentis v. New Haven, 220

Conn. 225, 263–64, 597 A.2d 807 (1991) (distinguishing between liability

for words used in pleadings and vexatious litigation claim brought after

unfounded and malicious action).

8

The plaintiff has not challenged the court’s determination that the com-

mission is a quasi-judicial body.

9

Judge Wiese disagreed with the plaintiff’s position that absolute immunity

did not apply in the present case due to the intentional nature of the defen-

dant’s alleged misconduct, stating that the effect of the litigation privilege

is to disallow damages for the publication of a privileged statement, even

if the statement is false and malicious. See Gallo v. Barile, 284 Conn. 459,

466, 935 A.2d 103 (2007). The court examined whether the statements or

conduct attributed to the defendant, as alleged in the complaint, are pro-

tected by absolute immunity under the litigation privilege, noting, as a matter

of law, that the test is ‘‘whether the allegedly [false and malicious] statements

are sufficiently relevant to the issues involved in a proposed or ongoing

judicial [or quasi-judicial] proceeding, so as to qualify for the privilege.’’

(Internal quotation marks omitted.) Id., 467. The court stated that despite

Judge Rittenband’s findings in the zoning appeals, which would defeat

qualified immunity at the summary judgment stage, ‘‘even intentional and

malicious conduct does not defeat absolute immunity.’’ As we conclude in

this opinion, absolute immunity is inapplicable in this case because the

plaintiff alleged that the defendant engaged in ex parte communication

with Meade.

10

The plaintiff also claimed that the misuse of the judicial system is not

protected by the common-law doctrine of absolute immunity, and that the

defendant’s liability is grounded on her internal bias and ex parte communi-

cation, not solely on the statements she made during the subject hearing,

and that Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314,

627 A.2d 909 (1993), approved of tort remedies for the wrongful acts of

commission members. Because we conclude that the court improperly

granted the defendant’s motion to dismiss on the ground of absolute immu-

nity and failed to consider § 52-557n (c), we need not reach the plaintiff’s

additional claims.

11

The plaintiff cited Chadha v. Charlotte Hungerford Hospital, 77 Conn.

App. 104, 114, 822 A.2d 303 (2003), aff’d, 272 Conn. 776, 865 A.2d 1163

(2005), to support its position that absolute immunity had been abrogated.

In Chadha, both this court and our Supreme Court concluded that General

Statutes §§ 19a-20 and 19a-17b abrogated common-law absolute immunity

with respect to statements made in conjunction with quasi-judicial proceed-

ings, such as medical licensure boards and data banks. Chadha v. Charlotte

Hungerford Hospital, supra, 272 Conn. 778–79; Chadha v. Charlotte Hun-

gerford Hospital, supra, 77 Conn. App. 106. However, the misconduct alleged

in the present case is not the defendant’s statements, but her bias and ex

parte communication with Meade. Chadha, therefore, is factually and legally

distinguishable from the present case. The statutes at issue in Chadha

abrogated absolute immunity in favor of qualified immunity with respect to

statements submitted to medical licensure boards and data banks.

12

See DeLaurentis v. New Haven, 220 Conn. 225, 263 n.22, 597 A.2d

807 (1991).

13

In her brief, the defendant cited several cases in which absolute immu-

nity barred certain causes of action. Those cases are distinguishable because

they do not concern municipal commissions or boards and thus do not fall

within the purview of § 52-557n (c), i.e., Simms v. Seaman, supra, 308 Conn.

523 (attorneys in judicial proceedings); Rioux v. Barry, 283 Conn. 338, 342,

927 A.2d 304 (2007) (state police internal investigation); Mercer v. Blanchette,

supra, 133 Conn. App. 86, 88 (defamation claim by Department of Correc-

tion inmate).

14

In Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 790, our

Supreme Court concluded, on the basis of the plain language of the statutes

at issue, that the legislature provided qualified immunity to persons who

make statements to medical boards and data banks when it enacted General

Statutes §§ 19a-17b (b) and 19a-20. Chadha and those statutes, however,

concern the litigation privilege, which is not the issue in the present case.

Section 19a-17b (b) provides in relevant part that ‘‘[t]here shall be no

monetary liability on the part of, and no cause of action for damages shall

arise against, any person who provides testimony, information, records,

documents, reports, proceedings, minutes or conclusions to . . . any pro-

fessional licensing board . . . when such communication is intended to aid

in the evaluation of the qualifications, fitness or character of a health care

provider and does not represent as true any matter not reasonably believed

to be true.’’ (Emphasis added.)

Section 19a-20 provides in relevant part that ‘‘[n]o member of any board or

commission . . . including a member of a medical hearing panel established

pursuant to subsection (g) of section 20-8a, and no person making a com-

plaint or providing information to any of such boards or commissions or

the Department of Public Health as part of an investigation pursuant to

section 19a-14, or a disciplinary action pursuant to section 19a-17, shall,

without a showing of malice, be personally liable for damage or injury to

a practitioner arising out of any proceeding of such boards and commissions

or department. . . .’’ (Emphasis added.)

15

In Stone, the plaintiff sustained injuries in the Newtown town hall when

he fell down the stairs. He brought the action against the volunteer members

of the Newtown Board of Managers. Stone v. Newtown, supra, 32 Conn. L.

Rptr. 446. The Board of Managers moved to strike all of the counts against

it and its individual members on the ground that any action against volunteers

was barred by § 52-557n (c). Id. In resolving the motion to strike, the court,

Gallagher, J., cited portions of the legislative history of § 52-557n (c):

‘‘The legislative history provides some insight as to the purpose of the

statute and how it is expected to apply. Representative Looney . . . stated,

‘[t]he bill . . . grants immunity from liability to uncompensated members

of municipal boards, commissions, committees or agencies when [members

are] exercising their policy or decision-making responsibilities and it is

something that has been requested because of the fear and concern that

certain communities have expressed regarding encouraging volunteerism

to serve on boards and commissions in a highly litigious atmosphere in

which we now live.’ [35] H.R. Proc., [Pt. 16] 1992 Sess., pp. 5383–5384. . . .

‘‘In Senate discussions, Senator Jepsen summed up the bill’s purpose

stating ‘[t]his bill grants immunity to unpaid members of municipal boards,

commissions, agencies and committees, who in the good faith exercise of

their duties allotted to them, make mistakes and I think it will encourage

people to serve on a volunteer basis on boards and commissions, a problem

that is growing in many municipalities. I think this legislation is long overdue.

It should be pointed out that this legislation does not exempt anybody from

liability if they violate a professional code of conduct . . . . It merely covers

them for good faith mistakes in the exercise as a volunteer of their own

discretion on a board or commission or committee.’ [35] S. Proc., [Pt. 16]

1992 Sess., pp. 1788.’’ Stone v. Newtown, supra, 32 Conn. L. Rptr. 446–47.

‘‘Rep. Looney stated that a finding of malicious or reckless behavior

would trigger the provisions of [§] 7-101a (b), an indemnity provision which

provides protection for the municipal employee from financial loss and

expense.’’ (Footnote omitted.) Id., 446.

‘‘Legislative Services Director for the Connecticut Conference [of] Munici-

palities, Ji[m] Finley, was in support of the passing of the bill and stated,

‘[o]ur view is that it should be a blanket protection, particularly when you

use as a standard, the [person is] acting in good faith and within the scope

of such [person’s] official functions and duties, unless such a damage or

injury caused by the reckless [behavior] . . . or misconduct.’ Conn. Joint

Standing Committee Hearings, Planning and Development, [Pt. 1] 1992 Sess.,

p. [90–91].’’ (Footnotes omitted.) Stone v. Newtown, supra, 32 Conn. L.

Rptr. 447.

Judge Gallagher concluded, on the basis of the legislative history of § 52-

557n (c), that it does not bar a cause of action against a volunteer board

member. Id.

16

Although decisions of our trial courts are not binding on this court, we

note that at least two trial court decisions have held that common-law

absolute immunity is displaced in certain circumstances by § 52-557n (c),

which provides qualified immunity for uncompensated members of munici-

pal commissions and boards. See Towne Brooke Development, LLC v. Fox,

supra, Superior Court, Docket No. CV-03-0347962-S (citing § 52-577n [c] as

pertinent statute to deny motion for summary judgment for allegations

that members of zoning commission engaged in ex parte communication);

Lapadula v. Middletown, Superior Court, judicial district of Middlesex,

Docket No. 67942-S (August 14, 1994) (no immunity when proceedings

instituted with malicious intent).

17

We note that although § 52-557n (c) concerns the immunity afforded

persons who serve on municipal commissions and boards in an uncompen-

sated capacity, it is consistent with this jurisdiction’s common law regarding

the liability of public officials in general. In Wadsworth v. Middletown, 94

Conn. 435, 439, 109 A. 246 (1920), the court adopted a common-law rule for

the discretionary acts of public officials, to wit: public officials who act

honestly but commit errors of judgment ought not to be ‘‘held responsible

for resultant damage; for the decision is one within their discretion, and

unless they act maliciously, or wantonly, or in abuse of the discretion vested

in them, they ought not to be held liable, and by the weight of authority

cannot be held liable.’’

‘‘Where the discretion has been exercised erroneously but in good faith

through an error of judgment, the public official should not be required to

pay for damages for his acts. The affairs of government cannot be conducted

with absolute exactitude, and public officials cannot be expected to act in

all cases with certain judgment. Timidity and doubt would govern their

performance of public duty if they acted in the consciousness that personal

liability might follow, no matter how closely they followed their best discre-

tion.’’ Id., 440. ‘‘The rule which, on the one hand, fairly protects the abutting

owner, and, on the other, fairly protects the public official in acting in the

line of duty, is that unless he acts maliciously, or wantonly, or in abuse of

the discretion vested in him by law, he shall not be subjected to personal

liability.’’ Id., 441; see also Stiebitz v. Mahoney, 144 Conn. 443, 448, 134

A.2d 71 (1957). In Wadsworth, the defendant public official who oversaw

the cutting of the plaintiff’s trees was found liable for the damage because

he permitted the plaintiff’s property to be destroyed ‘‘not through mere

error of judgment, but through a failure to exercise not merely reasonable

discretion but any discretion.’’ Wadsworth v. Middletown, supra, 94

Conn. 441.

18

See footnote 6 of this opinion.

19

In fact, Judge Wiese found that the findings in the administrative appeal

‘‘would almost certainly defeat qualified immunity at the summary judg-

ment stage.’’