Kenneson v. Eggert

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KIMBERLY KENNESON v. CELIA EGGERT ET AL.

(AC 42170)

DiPentima, C. J., and Elgo and Devlin, Js.

Syllabus

The plaintiff sought to recover damages from the defendant attorney E, and

the defendant insurance company, N Co., claiming that E had committed

fraud against the plaintiff and that N Co. was vicariously liable for E’s

actions. The plaintiff had previously brought an action for, inter alia,

negligence against A, who was insured by N Co., and another individual,

R. A was represented by E on behalf of N. Co. in the negligence action,

in which the jury awarded the plaintiff damages against both A and R.

Pursuant to a settlement agreement in that action, the plaintiff signed

a general release and withdrawal form in exchange for settling the case

against A. The plaintiff later discovered that she would be unable to

recover damages from R, and moved to open the judgment in the negli-

gence action, claiming that E had engaged in unfair and deceptive behav-

ior by instructing her to sign the release without explaining what it was

and how it could affect the judgment in that action. After the trial court

in the negligence action denied her motion to open and concluded that

there was no evidence that E had coerced the plaintiff into signing the

release, the plaintiff commenced the present action alleging fraud against

E and N Co. Thereafter, the court granted the defendants’ motion for

summary judgment, concluding that the plaintiff was collaterally

estopped from asserting her fraud action because the issue had been

addressed in the negligence action, and the plaintiff appealed to this

court. This court reversed in part the judgment of the trial court, conclud-

ing that the trial court improperly granted the defendants’ motion for

summary judgment as to the plaintiff’s claim for intentional misrepresen-

tation because there were genuine issues of material fact whether that

claim had been fully and fairly litigated at the hearing on the motion to

open the negligence action, and remanded the case for further proceed-

ings. Following the remand, the defendants filed a motion to dismiss

the action on the ground that the litigation privilege barred the plaintiff’s

claim. The trial court rendered judgment dismissing the action, conclud-

ing that the defendants had satisfied the requirements for absolute immu-

nity under the litigation privilege, from which the plaintiff appealed to

this court. Held:

1. The plaintiff could not prevail on her claims that the trial court erred in

concluding that the litigation privilege implicated the subject matter

jurisdiction of the court and that the defendants timely filed their motion

to dismiss; the doctrine of absolute immunity concerns a court’s subject

matter jurisdiction and challenges to a court’s subject matter jurisdiction

can be raised at any time and cannot be waived.

2. The trial court properly granted the motion to dismiss and concluded that

E’s statements were protected by the litigation privilege; E’s statements

made during a postverdict settlement conference were made during a

judicial proceeding, there is no requirement that statements be made

in a courtroom, under oath, or in a pleading in order to be considered

part of a judicial proceeding and the postverdict settlement conference

was part of the ongoing litigation between the parties and was judicial

in nature, and the statements were relevant to the subject matter of

the judicial proceeding, as the purpose of the conference was for the

defendants to reach an agreement with the plaintiff and, thus, E’s state-

ments about signing the withdrawal were relevant to the conference.

Argued November 19, 2019—officially released March 31, 2020

Procedural History

Action to recover damages for fraud, and for other

relief, brought to the Superior Court in the judicial dis-

trict of Waterbury, where the court, Roraback, J.,

granted the defendants’ motion for summary judgment

and rendered judgment thereon, from which the plain-

tiff appealed to this court, Keller, Beach and Harper,

Js., which reversed the judgment in part and remanded

the case for further proceedings; thereafter, the court,

Brazzel-Massaro, J., granted the defendants’ motion to

dismiss and rendered judgment thereon, from which

the plaintiff appealed to this court. Affirmed.

Kimberly Kenneson, self-represented, the appellant

(plaintiff).

Andrew P. Barsom, with whom, on the brief, was

Robert D. Laurie, for the appellees (defendants).

Opinion

DiPENTIMA, C. J. After the trial court granted the

motion to dismiss filed by the defendants, Celia Eggert

and Nationwide Mutual Fire Insurance Company

(Nationwide), the self-represented plaintiff, Kimberly

Kenneson, filed this appeal. On appeal, the plaintiff

contends that the court erred by concluding that the

defendants’ statements and actions were protected

under the litigation privilege.1 We disagree and, accord-

ingly, affirm the judgment of the trial court.

The following facts and relevant procedural history,

as recited in an earlier decision of this court involving

these parties, are relevant to this appeal. See Kenneson

v. Eggert, 176 Conn. App. 296, 170 A.3d 14 (2017). ‘‘In

January, 2007, the plaintiff commenced a civil action

against Carl Rosati and Michael Altman for negligence,

battery and recklessness [arising from a physical alter-

cation between Rosati and Altman that injured the plain-

tiff]. Altman was insured by Nationwide, and Nation-

wide agreed to provide Altman with a defense.

Nationwide arranged for the Law Offices of John Cala-

brese to represent Altman. Eggert, an attorney with that

firm, represented Altman at trial. The plaintiff repre-

sented herself at trial and obtained a jury verdict in

her favor. The jury awarded the plaintiff damages of

$67,556.07 against Altman [for negligence] and

$380,037.38 against Rosati [$45,037.38 in negligence and

$335,000 in recklessness]. Although he was served with

process, Rosati did not appear at trial. After the verdict

was accepted by the court, Altman filed a motion to

set aside the verdict and a motion for collateral

source reduction.

‘‘Several weeks later, on July 18, 2011, the plaintiff,

Eggert and a Nationwide claims adjuster [Shane Gin-

gras] appeared in court for a hearing [on a motion to

seal filed by the plaintiff] and a settlement conference

[that Eggert requested]. At the settlement conference,

Nationwide offered the plaintiff $57,000 to settle the

case against Altman, which the plaintiff declined.

Nationwide then offered the plaintiff $67,000, which she

ultimately accepted.’’ (Footnote omitted.) Id., 299–300.

‘‘Pursuant to the settlement agreement, the plaintiff

signed a general release and withdrawal form. The

release provided, in relevant part, that ‘[b]y signing this

release, [the plaintiff] expressly acknowledges that he/

she has read this document with care and that he/she

is aware that by signing this document he/she is giving

up all rights and claims and causes of action, and any

and all rights and claims that he/she may now have or

which may arise in the future . . . against [Nationwide

and Altman] . . . . Knowing this . . . he/she signs

this document voluntarily and freely without duress.’

The release also stated that ‘[the plaintiff] further

acknowledges that no representation of fact or opinion

has been made to him/her by [Nationwide and Altman]

. . . which in any manner has induced [the plaintiff]

to agree to this settlement.’ ’’ Id., 300. The plaintiff then

filed the withdrawal form with the court the following

day on July 19, 2011.

‘‘The plaintiff subsequently discovered that she was

unable to collect damages against Rosati, who had been

uninsured and had died without assets in August, 2013.

On April 28, 2014, the plaintiff filed a motion to open

the judgment and a motion to reinstate Altman as a

defendant. The plaintiff argued that she did not know

that signing the release would prevent her from reallo-

cating the damages, at least in part, against Rosati to

Altman and Nationwide, and that Eggert had engaged

in ‘unfair and deceptive’ behavior when she instructed

her to sign the release ‘without explaining what it was

and how it can affect a judgment.’

‘‘Altman filed an objection, arguing that the release

was valid and that the plaintiff was aware of the nature

of the document when she signed it. On June 20, 2014,

the court, Pellegrino, J., heard oral argument on the

plaintiff’s motion to open. During oral argument, Judge

Pellegrino questioned the plaintiff regarding the alleged

fraud committed by Eggert. Judge Pellegrino ultimately

denied the plaintiff’s motion, noting that there was no

evidence that Eggert had coerced the plaintiff into sign-

ing the release, and that the release, by its terms, pro-

vided that the plaintiff had read the document with

care. The plaintiff did not appeal from Judge Pelle-

grino’s decision.

‘‘On July 17, 2014, the plaintiff commenced the pres-

ent action against the defendants, alleging that Eggert

had committed fraud against the plaintiff and that

Nationwide was vicariously liable for her actions. . . .

The court heard oral argument and denied the plaintiff’s

motions [for compliance with the court’s discovery

orders]. The court held that . . . the plaintiff had

offered ‘[n]o quantum of proof . . . to support a claim

of civil fraud which would permit the privilege to be

pierced.’

‘‘On December 4, 2014, the defendants filed a motion

for summary judgment, arguing that the plaintiff’s claim

was barred by the doctrine of collateral estoppel,

because Judge Pellegrino’s decision on the plaintiff’s

motion to open in the negligence action had previously

addressed the fraud issue. They also argued that the

claim was barred by the terms and conditions of the

release. The plaintiff filed a memorandum of law in

opposition to the motion to which the defendants

replied, and the parties appeared for argument on

August 8, 2015. The court held that the plaintiff was

collaterally estopped from asserting her fraud claims

and that, even if collateral estoppel did not apply, the

defendants were entitled to summary judgment because

the plaintiff was unable to prove her claims for com-

mon-law fraud.’’ Id., 300–302.

The plaintiff then appealed to this court. In that

appeal, she argued that the court erred by concluding

that the intentional misrepresentation aspect of her

fraud claim was barred by collateral estoppel. Id., 299.

This court noted that, in her amended complaint filed

in December, 2014,2 the plaintiff essentially alleged two

claims of fraud: intentional misrepresentation and

fraudulent nondisclosure. The plaintiff first alleged that

Eggert ‘‘falsely represented to the plaintiff . . . that

she would not get any of her $67,556.07 award against

. . . Altman unless she signed a document . . . to set-

tle the judgment . . . .’’ (Internal quotation marks

omitted.) Id., 303. Second, the plaintiff alleged that

‘‘Eggert, with the intent to deceive the plaintiff, know-

ingly failed to disclose and/or concealed that [the

release and the withdrawal] would result in the loss of

the plaintiff’s right to reallocate damages . . . .’’ (Inter-

nal quotation marks omitted.) Id., 303. This court

reversed the trial court’s determination that there was

no genuine issue of material fact on the plaintiff’s inten-

tional misrepresentation claim; id., 307; but affirmed the

court’s determination that she was collaterally estopped

from raising the fraudulent nondisclosure aspect of her

fraud claim. Id., 312. The matter was remanded back

to the trial court. Id., 314.

Following the remand, the defendants filed the

motion to dismiss that is the subject of this appeal. In

their memorandum of law in support of the motion, the

defendants argued that the litigation privilege3 barred

the plaintiff’s claim and, as a result, the court lacked

subject matter jurisdiction. The trial court, Brazzel-

Massaro, J., agreed with the defendants and granted

their motion to dismiss. The court found that the defen-

dants had satisfied the requirements for absolute immu-

nity under the litigation privilege. This appeal followed.

Additional facts will be set forth as necessary.

We begin with the well established standard of review

for reviewing a trial court’s decision on a motion to

dismiss. ‘‘A motion to dismiss tests, inter alia, whether,

on the face of the record, the court is without jurisdic-

tion. . . . [O]ur review of the court’s ultimate legal con-

clusion and resulting [determination] of the motion to

dismiss will be de novo. . . . When a . . . court

decides a jurisdictional question raised by a pretrial

motion to dismiss, it must consider the allegations of

the complaint in their most favorable light. . . . In this

regard, a court must take the facts to be those alleged in

the complaint, including those facts necessarily implied

from the allegations, construing them in a manner most

favorable to the pleader. . . . The motion to dismiss

. . . admits all facts which are well pleaded, invokes

the existing record and must be decided upon that

alone.’’ Metcalf v. Fitzgerald, 333 Conn. 1, 6–7, 214 A.3d

361 (2019), cert. denied, U.S. , 140 S. Ct. 854,

L. Ed. 2d (2020).

We next set forth the relevant law applicable to the

litigation privilege. ‘‘As the doctrine of absolute immu-

nity concerns a court’s subject matter jurisdiction . . .

we are mindful of the well established notion that, in

determining whether a court has subject matter jurisdic-

tion, every presumption favoring jurisdiction should be

indulged. . . . The question before us is whether the

facts as alleged in the pleadings, viewed in the light

most favorable to the plaintiff, are sufficient to survive

dismissal on the grounds of absolute immunity.’’ (Inter-

nal quotation marks omitted.) Bruno v. Travelers Cos.,

172 Conn. App. 717, 724–25, 161 A.3d 630 (2017).

‘‘Connecticut has long recognized the litigation privi-

lege . . . [and has extended it] to judges, counsel and

witnesses participating in judicial proceedings.’’ (Cita-

tions omitted; internal quotation marks omitted.)

Simms v. Seaman, 308 Conn. 523, 536–37, 69 A.3d 880

(2013). This court recently summarized the state of the

litigation privilege in Connecticut: ‘‘In MacDermid, Inc.

v. Leonetti, 310 Conn. 616, 79 A.3d 60 (2013), our

Supreme Court explained: In Simms [v. Seaman, supra,

531], we noted that the doctrine of absolute immunity

originated in response to the need to bar persons

accused of crimes from suing their accusers for defama-

tion. . . . We further noted that . . . [t]he general rule

is that defamatory words spoken upon an occasion

absolutely privileged, though spoken falsely, know-

ingly, and with express malice, impose no liability for

damages recoverable in an action in slander . . . .

[W]e further discussed the expansion of absolute immu-

nity to bar retaliatory civil actions beyond claims of

defamation. For example, we have concluded that abso-

lute immunity bars claims of intentional interference

with contractual or beneficial relations arising from

statements made during a civil action. See Rioux v.

Barry, [283 Conn. 338] 350–51, [927 A.2d 304 (2007)]

(absolute immunity applies to intentional interference

with contractual relations because that tort compara-

tively is more like defamation than vexatious litigation).

We have also precluded claims of intentional infliction

of emotional distress arising from statements made dur-

ing judicial proceedings on the basis of absolute immu-

nity. See DeLaurentis v. New Haven, 220 Conn. 225,

263–64, 597 A.2d 807 (1991). Finally, we have most

recently applied absolute immunity to bar retaliatory

claims of fraud against attorneys for their actions during

litigation. See Simms v. Seaman, supra, 545–46. In

reviewing these cases, it becomes clear that, in

expanding the doctrine of absolute immunity to bar

claims beyond defamation, this court has sought to

ensure that the conduct that absolute immunity is

intended to protect, namely, participation and candor

in judicial proceedings, remains protected regardless

of the particular tort alleged in response to the words

used during participation in the judicial process.’’ (Cita-

tions omitted; internal quotation marks omitted.) Bruno

v. Travelers Cos., supra, 172 Conn. App. 725–27.

In this appeal, the plaintiff contends that the court

erred by finding that the statements Eggert made as

part of the postverdict settlement conference were pro-

tected by the litigation privilege. The defendants argue

that the court correctly found that the statements were

protected by the litigation privilege and, accordingly,

that the court lacked jurisdiction over the plaintiff’s

intentional misrepresentation claim.4 We agree with

the defendants.

The applicability of the litigation privilege depends

on whether the statement or action at issue, here, inten-

tional misrepresentation, took place during a judicial

proceeding. ‘‘[I]n determining whether a statement is

made in the course of a judicial proceeding, it is

important to consider whether there is a sound public

policy reason for permitting the complete freedom of

expression that a grant of absolute immunity provides.

. . . In making that determination, the court must

decide as a matter of law whether the . . . statements

are sufficiently relevant to the issues involved in a pro-

posed or ongoing judicial proceeding, so as to qualify

for the [litigation] privilege. The test for relevancy is

generous, and judicial proceeding has been defined lib-

erally to encompass more than civil litigation or crimi-

nal trials.’’ (Citation omitted; internal quotation marks

omitted.) Hopkins v. O’Connor, 282 Conn. 821, 839, 925

A.2d 1030 (2007). ‘‘The judicial proceeding to which

[absolute] immunity attaches has not been defined very

exactly. It includes any hearing before a tribunal which

performs a judicial function, ex parte or otherwise, and

whether the hearing is public or not. It includes for

example, lunacy, bankruptcy, or naturalization pro-

ceedings, and an election contest. It extends also to the

proceedings of many administrative officers, such as

boards and commissions, so far as they have powers

of discretion in applying the law to the facts which

are regarded as judicial or quasi-judicial, in character.’’

(Internal quotation marks omitted.) Kelley v. Bonney,

221 Conn. 549, 566, 606 A.2d 693 (1992).

Accordingly, we first determine whether the trial

court properly found that the statements at issue in this

case were made during a judicial proceeding. If so, we

then consider whether the trial court properly found

that the alleged misrepresentation is sufficiently rele-

vant to the issues involved in those proceedings. See

Ravalese v. Lertora, 186 Conn. App. 722, 730, 200 A.3d

1153 (2018) (‘‘we must determine whether the proceed-

ings at issue in this case were judicial or quasi-judicial

in nature and, if so, we then must consider whether the

[statement] is sufficiently relevant to the issues involved

in those proceedings’’).

Here, the plaintiff argues that the statements made by

the defendants are not covered by the litigation privilege

because the settlement discussion occurred outside of

a courtroom. The crux of the plaintiff’s argument is that

because the statements were not made in pleadings or

other documents, nor under oath or before the court,

the statements were not made in the course of a judicial

proceeding. We disagree with the plaintiff.

There is no requirement under Connecticut jurispru-

dence that to be considered part of a judicial proceed-

ing, statements must be made in a courtroom or under

oath or be contained in a pleading or other documents

submitted to the court. Indeed, ‘‘[t]he privilege extends

beyond statements made during a judicial proceeding

to preparatory communications that may be directed to

the goal of the proceeding.’’ (Internal quotation marks

omitted.) Tyler v. Tatoian, 164 Conn. App. 82, 88, 137

A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710

(2016). In addition, our Supreme Court has ‘‘recognized

that the absolute privilege that is granted to statements

made in furtherance of a judicial proceeding extends

to every step of the proceeding until final disposition.’’

Hopkins v. O’Connor, supra, 282 Conn. 826.

Here, the discussion in the hallway, as part of the

postverdict settlement conference, was a step in the

ongoing judicial proceeding. A postverdict settlement

conference, such as the one in the present case, is

judicial in nature. The conference was part of the ongo-

ing litigation between the plaintiff and Eggert’s client,

Michael Altman. On July 11, 2011, Eggert sent a letter

to Judge Ozalis to request a postverdict settlement con-

ference for July 18, 2011. On that date, the parties

appeared before Judge Matasavage for the conference.

In requesting the conference, Eggert expressly stated

that the goal for the conference was that an ‘‘agreement

. . . be reached with the plaintiff with the court’s assis-

tance.’’ Accordingly, the plaintiff’s argument that

Eggert’s statements were not made during a judicial

proceeding fails.

We now turn to the question of whether the court

properly concluded that the statements were ‘‘suffi-

ciently relevant to the issues involved in a proposed or

ongoing judicial proceeding . . . .’’ Hopkins v. O’Con-

nor, supra, 282 Conn. 839. As discussed above, ‘‘[t]he

test for relevancy is generous . . . .’’ Id.

The plaintiff argues that Eggert’s statements about

signing the withdrawal were not relevant to the subject

matter of the proceeding. She further argues that the

statements did not contain any facts, law or arguments

that were relevant to the original underlying tort claim

that she had brought against Altman and Rosati. There-

fore, the plaintiff contends, those statements are not

covered by the litigation privilege. The defendants

counter that the court correctly concluded that the

statements were relevant to the underlying subject mat-

ter of the judicial proceeding. We agree with the

defendants.

The record reveals that Eggert’s statements at issue

are relevant to the subject matter of the judicial pro-

ceeding. The parties met to settle the action brought

by the plaintiff against Altman, Eggert’s client. Indeed,

the purpose of the postverdict conference was to reach

an ‘‘agreement . . . with the plaintiff with the court’s

assistance.’’ As the court noted, the statements at issue

were part of a conference to resolve the underlying tort

action initiated by the plaintiff. Accordingly, the court

correctly found that the absolute immunity of the litiga-

tion privilege applied to bar the action.

In accordance with our Supreme Court precedent,

the plaintiff’s claim of fraud based on statements made

during the postverdict settlement conference is barred

by the litigation privilege. Absolute immunity applied

to the statements made by Eggert that are at issue in

this appeal. The statements were made during a judicial

proceeding, and they were relevant to the subject mat-

ter of the ongoing litigation. Therefore, the trial court

lacked subject matter jurisdiction over the plaintiff’s

fraud claim against Eggert and Nationwide. The court

properly granted the defendants’ motion to dismiss.5

The judgment is affirmed.

In this opinion the other judges concurred.

1

The plaintiff also argues that the court erred in concluding that the

litigation privilege implicates the subject matter jurisdiction of the court

and that the defendants timely filed their motion to dismiss. Both of these

arguments fail. First, ‘‘the doctrine of absolute immunity concerns a court’s

subject matter jurisdiction.’’ Bruno v. Travelers Cos., 172 Conn. App. 717,

724, 161 A.3d 630 (2017). Second, the subject matter jurisdiction of the court

can be challenged at any time. See Stroiney v. Crescent Lake Tax District,

205 Conn. 290, 294, 533 A.2d 208 (1987) (‘‘[a] motion to dismiss for lack

of subject matter jurisdiction may be made at any time’’). Furthermore,

challenges to the court’s subject matter jurisdiction cannot be waived. See

Practice Book § 10-33 (‘‘[a]ny claim of lack of jurisdiction over the subject

matter cannot be waived; and whenever it is found after suggestion of the

parties or otherwise that the court lacks jurisdiction of the subject matter,

the judicial authority shall dismiss the action’’).

2

This complaint remains the operative complaint for the present appeal.

3

The terms ‘‘absolute immunity’’ and ‘‘litigation privilege’’ are used inter-

changeably throughout this opinion.

4

As set forth previously in this opinion, the plaintiff’s December, 2014

amended complaint contained two fraud claims: intentional misrepresenta-

tion and fraudulent nondisclosure. Her fraudulent nondisclosure claim was

found to be collaterally estopped, but her intentional misrepresentation

claim survived the defendants’ previous motion for summary judgment. See

Kenneson v. Eggert, supra, 176 Conn. App. 314.

5

We note that the plaintiff was not without alternative remedies. See

Simms v. Seaman, supra, 308 Conn. 552–54 (summarizing other avenues

that can be used to hold attorneys accountable for misconduct, such as

filing motion to open judgment, or filing grievance against attorney under

Rules of Professional Conduct, among others).