Brady v. Bickford , 179 Conn. App. 776 ( 2018 )

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SHERRI BRADY ET AL. v. BONNIE
BICKFORD ET AL.
(AC 38581)
Lavine, Elgo and Beach, Js.
Syllabus
The plaintiffs, S and her husband, J, sought to recover damages for, inter
alia, intentional infliction of emotional distress, negligent infliction of
emotional distress and defamation from the defendants, the parents of
S, arising out of a long-running family dispute. The defendants filed
special defenses, which alleged that some of the tortious acts alleged
in the plaintiffs’ complaint were barred by the applicable statute of
limitations. After the trial court granted the defendants’ motion for
summary judgment as to certain claims, the remaining counts were tried
to the court, which found that the acts or omissions complained of in
the remaining counts that had occurred before January, 2008, were,
absent a tolling of the limitations period, barred as untimely. The plain-
tiffs had argued that the limitations period was tolled by the defendants’
continuing course of conduct, some of which occurred within three
years of January, 2008, and included testimony at an August, 2009 hearing
before the Freedom of Information Commission by the defendant B, S’s
mother. The defendants had contended that all of B’s conduct after
January, 2008, was protected by the litigation privilege or absolute immu-
nity, and, thus, no actionable conduct occurred during the limitations
period to constitute a continuing course of conduct that tolled the
statute of limitations. The court agreed with the defendants and rendered
judgment for the defendants, from which the plaintiffs appealed to this
court. They claimed, inter alia, that the trial court improperly permitted
the defendants to file a motion for summary judgment after the case
had been scheduled for trial pursuant to a scheduling order. Held:
1. The trial court did not abuse its discretion in granting the defendants’
motion to modify the scheduling order and permitting the defendants
to file a motion for summary judgment; that court granted the defendants’
unopposed request to modify the original scheduling order before the
case was scheduled for trial, which did not disrupt the court’s docket,
although the plaintiffs claimed that the filing of a motion for summary
judgment delayed trial, the plaintiffs themselves contributed to any delay
by filing their own requests for continuances and mediation, the defen-
dants showed good cause by representing that the case could be resolved
on legal grounds, thereby obviating the need for trial, and the plaintiffs
did not demonstrate that they were harmed or prejudiced by the fact that
the defendants were allowed to file their motion for summary judgment.
2. The plaintiffs could not prevail on their claim that the trial court improperly
allowed the defendants to assert the litigation privilege during the trial
to bar their claims because the defendants failed to plead absolute
privilege as a special defense: the plaintiffs’ claim that the defendants
waived the litigation privilege during the argument on their motion for
summary judgment and that the defendants’ waiver operated throughout
the entire action was unavailing, as the defendants, who withdrew privi-
lege as a basis for their motion for summary judgment but did not
withdraw the defense of litigation privilege or absolute immunity with
respect to the issues to be tried, did not intentionally relinquish their
right to raise the litigation privilege at trial when they argued their
motion for summary judgment; moreover, this court found unavailing
the plaintiffs’ claims that it was improper for the trial court to construe
the defendants’ midtrial assertion of the litigation privilege as a ground
to exclude evidence to be a motion to amend their pleadings to conform
to the evidence, and that the defendants failed to plead the litigation
privilege as a defense and failed to file a motion in limine to preclude
certain evidence as required by the trial management order, as the
plaintiffs could not claim surprise when the defendants raised the matter
of the litigation privilege in their motion for summary judgment two
years before trial commenced and the plaintiffs addressed the issue in
their response, and subject matter jurisdiction cannot be waived by
either party and can be raised at any stage of the proceedings.
3. The plaintiffs could not prevail on their claim that the trial court improperly
concluded that their intentional infliction of emotional distress claim
was barred by the applicable statute of limitations, which was based
on their claim that the statement made by B at the August, 2009 hearing
before the commission was not relevant to the proceedings and, there-
fore, was not privileged; B’s testimony before the commission was abso-
lutely privileged, as the commission was a quasi-judicial body and
statements made before it were absolutely privileged if relevant to the
issue before the commission, the testimony, which repeated her com-
plaints regarding alleged personal and professional wrongdoing by J,
bore some relevance to the purpose of the hearing, and because B’s
testimony was privileged, the plaintiffs could not establish a continuing
course of conduct that barred the application of the statute of limitations
to their claim.
Argued September 8, 2017—officially released February 27, 2018
Procedural History
Action to recover damages for, inter alia, intentional
infliction of emotional distress, and for other relief,
brought to the Superior Court in the judicial district of
New London, where the court, Cosgrove, J., granted
the defendant’s motion to modify a scheduling order
and granted the defendants permission to file a motion
for summary judgment; thereafter, the court, Zemetis,
J., granted in part the defendants’ motion for summary
judgment and rendered judgment thereon; subse-
quently, the matter was tried to the court, Zemetis, J.;
judgment for the defendants, from which the plaintiffs
appealed to this court. Improper form of judgment;
judgment directed.
Michael E. Satti, with whom was Rebecca Malingu-
aggio, for the appellants (plaintiffs).
Michael T. Vitali, for the appellees (defendants).
Opinion
LAVINE, J. The claims of emotional distress and defa-
mation at issue in this appeal arise out of a long-running
family dispute involving malicious gossip and unsub-
stantiated allegations of police misconduct that led to
two state police internal affairs investigations, two
arrests of the same defendant, a protective order, inter-
vention by the Attorney General and the Department
of Public Safety, a complaint to the Freedom of Informa-
tion Commission (commission), and a daughter’s refus-
ing further contact with her parents. Following a four
day trial to the court, the court concluded that the
statements at issue were protected by the litigation
privilege and rendered judgment in favor of the defen-
dants. The litigation privilege affords absolute immunity
to the speaker and implicates the court’s subject matter
jurisdiction.1 We reverse the judgment of the trial court
and remand the case with direction to render a judg-
ment of dismissal.
The plaintiffs, Sherri Brady (Sherri) and James Brady
(James), appeal from the judgment of the court ren-
dered in favor of the defendants, Bonnie Bickford and
Kenneth Bickford, who are Sherri’s parents. On appeal,
the plaintiffs claim that the trial court abused its discre-
tion by permitting the defendants to file a motion for
summary judgment in contravention of the scheduling
order and to assert the litigation privilege to bar the
plaintiffs’ claims, and improperly concluded that their
claims of intentional infliction of emotional distress
were barred by the statute of limitations and their claim
of intentional infliction of emotional distress was barred
under the continuing course of conduct doctrine and
by the statute of limitations.
In its memorandum of decision following trial, which
was held in August, 2015, the court, Zemetis, J., made
extensive findings of fact pertaining to the plaintiffs’
claims. The plaintiffs live in Groton Long Point, are
married to one another, and have two children. Sherri is
a school teacher; James is a retired state police trooper.2
The defendants are married to each other and live in
Stonington. The parties enjoyed a close relationship
until unsubstantiated family gossip led to a state police
internal affairs investigation of James in 2000 (2000
investigation). The parties’ relationship was further
damaged in 2007 when the defendants caused a second
state police internal affairs investigation of James to be
initiated (2007 investigation). Both investigations found
that the allegations of wrongdoing were unsubstan-
tiated.
The factual history underlying the plaintiffs’ appeal
begins in the summer of 2000 when the defendants
hosted a family gathering. Given that the events
unfolded over a period of fifteen years, we set them
out in some detail to provide context for the plaintiffs’
claims. During the family gathering, one of Sherri’s
cousins speculated to others that Sherri, who was then
pregnant, was the victim of spousal rape. The cousin
later repeated her suspicion to a municipal police offi-
cer who reported the accusation to the state police,
prompting the 2000 investigation. The defendants were
interviewed during the 2000 investigation and stated
that they too suspected James of spousal abuse. The
plaintiffs learned of the 2000 investigation when state
police investigators came to their home days after
Sherri had given birth. Sherri denied the allegations
against James and was distraught. James arrived during
the interview and was angered by the allegations. The
investigators found that there was no substance to the
allegations against James, and the 2000 investigation
was closed.
The court found that the plaintiffs had turned to the
defendants for consolation and guidance during the
2000 investigation. The defendants claimed ignorance
of the 2000 investigation, despite knowing of it and
having offered evidence against James. In 2004, Sherri
‘‘perceived’’ troubling behavior on the part of the defen-
dants, particularly Kenneth Bickford’s consumption of
alcohol, when they were babysitting her children. She
tried to craft a solution but eventually determined that
it was best to sever the plaintiffs’ relationship with
Kenneth Bickford. She forbade Kenneth Bickford to
come to the plaintiffs’ home and formalized her decision
in a certified letter to him. The defendants did not accept
Sherri’s decision. On Halloween, 2005, the defendants
drove by the plaintiffs’ home, which disturbed Sherri,
and she asked James to complain to the Groton Long
Point police (police). As a result, the police explained
Sherri’s certified letter to the defendants and cautioned
them to stay away from the plaintiffs’ property. Bonnie
Bickford, however, went to the plaintiffs’ home in
December, 2005, which upset Sherri. The plaintiffs
reported the incident to the police.
The court found that the police report regarding the
December, 2005 incident stated that James ‘‘requested
that Bonnie Bickford be warned to stay off the property.
[James] was asked why he did not call when [Bonnie
Bickford] was at the property. [James] stated [that
Sherri] wished [Bonnie Bickford] not be arrested.’’
(Internal quotation marks omitted.) The court found
that the police report concerning the December, 2005
incident does not contain a false statement by James,
as Bonnie Bickford later alleged.
Following the December, 2005 incident, Bonnie Bick-
ford went to the police and complained that James
mentally and physically abused Sherri. Kenneth Bick-
ford accused James of using his contacts in law enforce-
ment inappropriately. The police investigated the abuse
complaints by interviewing Sherri, who denied the accu-
sations of abuse. Although the plaintiffs did not want
Bonnie Bickford to be arrested, the police sought a
warrant for her arrest and arrested her in April, 2006.
In March, 2006, the defendants sent Sherri flowers
and a birthday card at her place of employment. Sherri
purposely had kept her new employment from her par-
ents and felt harassed by their contact. She telephoned
the resident state trooper for assistance. Trooper
Robert Scavello investigated Sherri’s complaint against
Bonnie Bickford. As a result of the investigation, Bonnie
Bickford was arrested again.
The court also found that in the fall of 2006, the
defendants learned for the first time that the accusa-
tions of spousal rape of Sherri’s cousin were the basis
of the 2000 investigation. The defendants contacted the
office of then Attorney General Richard Blumenthal
and claimed that James’ personal and professional mis-
conduct needed to be investigated. In January, 2007,
they met with Jeffrey Meyers, an investigator from
Blumenthal’s office. They suggested that the 2000 inves-
tigation was inadequate or a cover-up. Blumenthal
directed the Department of Public Safety (department)
to conduct another investigation of James. Although
none of the defendants’ allegations concerned James’
duties as a state trooper, the allegation that he had
influenced investigations to secure Bonnie Bickford’s
arrests suggested that he had abused his position as a
state trooper. Following a second internal affairs inves-
tigation, the state police issued a report dated Decem-
ber 19, 2007, concluding that the allegations of
wrongdoing on the part of James were ‘‘unfounded.’’3
In 2009, the defendants attempted to obtain a copy
of the 2007 investigation report, claiming that they
needed it to prove to the plaintiffs that they had not
initiated the 2000 investigation.4 The defendants
accused James of personal and professional criminal
misconduct during the 2007 investigation, in their com-
munications with Blumenthal, in letters written by their
legal counsel, and in Bonnie Bickford’s testimony at
the August 19, 2009 commission hearing. The court
found that, as with much of their testimony, the defen-
dants’ claimed basis for their actions did not hold up
under close examination.
The department declined to give the defendants a
copy of the 2007 investigation report because there was
no evidence to support the claims of criminal wrongdo-
ing. Counsel for the department explained to the defen-
dants the statutory basis for the department’s refusal
to release the report. The defendants, however,
appealed to the commission from the department’s deci-
sion not to release the 2007 investigation report. The
commission held a public hearing on August 19, 2009,
to determine whether the 2007 investigation report was
subject to disclosure. At the hearing, Bonnie Bickford
testified that she filed a complaint against James on
the ground that he had used his position as a state
trooper to have her arrested. The commission dismissed
the defendants’ complaint on February 24, 2010.5
The plaintiffs commenced the present action on Janu-
ary 14, 2011, and filed an amended complaint on August
3, 2011, which sounded in nine counts alleging inten-
tional infliction of emotional distress, negligent inflic-
tion of emotional distress, defamation, tortious invasion
of privacy, and permanent injunctive relief. The defen-
dants filed an answer in which they denied the material
allegations of the amended complaint and alleged gener-
ally that the plaintiffs’ claims were barred by the stat-
utes of limitations set forth in General Statutes §§ 52-
5776 and 52-584.7 In response to the plaintiffs’ request
to revise, on May 23, 2012, the defendants filed revised
special defenses alleging in relevant part that ‘‘all tor-
tious acts alleged in counts 1, 3, 4, 5, 6 and 7 to have
been committed by the defendants prior to January 14,
2008, are barred by the three year statute of limitations
set forth in [§ 52-577] . . . [and] all negligent acts
alleged in count 2 to have been committed by the defen-
dants prior to January 14, 2009, are barred by the two
year statute of limitations set forth in [§ 52-584].’’ On
August 10, 2012, the plaintiffs filed a reply to the defen-
dants’ special defenses, denying them and alleging that
the continuing course of conduct doctrine applied to
toll the statutes of limitations. The defendants did not
respond to the plaintiffs’ reply. The plaintiffs filed a
certificate of closed pleadings and claimed the matter
for the trial list on December 18, 2012.
After securing permission from the court to file a
motion for summary judgment, the defendants filed the
motion on August 20, 2013. Judge Zemetis granted the
motion for summary judgment as to counts six through
nine of the amended complaint, which alleged invasion
of privacy and sought permanent injunctive relief. The
court denied the motion for summary judgment as to
counts one through five of the amended complaint,
which alleged intentional infliction of emotional dis-
tress, negligent infliction of emotional distress, and def-
amation. The case was tried to the court in August, 2015.
Following the presentation of evidence, the court
found that paragraph 5 of count one contains the plain-
tiffs’ allegations of wrongdoing against Bonnie Bick-
ford, which are realleged in subsequent counts. The
allegations concern Bonnie Bickford’s tortious acts in
two time periods: acts that Bonnie Bickford committed
between October 31, 2005, and March 15, 2006, subpara-
graphs (a) to (h) of paragraph 5, and acts committed
between January, 2007, and February, 2010, subpara-
graphs (i) to (m) of paragraph 5. The first set of allega-
tions concerns Bonnie Bickford’s interaction with
Sherri. The second set concerns her interactions with
the attorney general’s office, the state police internal
affairs division, and the commission regarding criminal
acts James allegedly committed and his alleged abuse
of his authority and office as a state trooper. The defen-
dants pleaded that some of the allegations were barred
by the applicable statute of limitations. In reply, the
plaintiffs alleged that the continuing course of conduct
doctrine tolled the running of the statutes of limitations
because Bonnie Bickford’s allegedly tortious conduct
continued when she testified before the commission.
The defendants did not file a response to the continuing
course of conduct reply; that is, they did not allege that
Bonnie Bickford’s testimony before the commission
was protected by the litigation privilege.
In its memorandum of decision, the court quoted
language from our Supreme Court, which noted that
the ‘‘purposes of statutes of limitation include finality,
repose and avoidance of stale claims and stale evi-
dence.’’ (Internal quotation marks omitted.) Flannery
v. Singer Asset Finance Co., LLC, 312 Conn. 286, 322,
94 A.3d 553 (2014). It found that the plaintiffs had served
the present action on the defendants on January 14,
2011, and that the acts or omissions complained of that
had occurred before January 14, 2008, were, absent a
tolling of the limitations period, barred as untimely.
The plaintiffs had argued that the limitations period
was tolled by the defendants’ continuing course of con-
duct, some of which occurred within three years of
January 14, 2008, such as the March 24, 2009 correspon-
dence from the defendants’ lawyer to the department
seeking a copy of the 2007 investigation report, the
defendants’ May 4, 2009 complaint to the commission
seeking a copy of the 2007 investigation report, Bonnie
Bickford’s testimony at the August 19, 2009 commission
hearing, and the February 24, 2010 commission deci-
sion. The defendants had contended that all of Bonnie
Bickford’s post-January 14, 2008 conduct was protected
by the litigation privilege or absolute immunity.
Because her statements were privileged, the defendants
argued, no actionable conduct occurred during the limi-
tation of action period to constitute a continuing course
of conduct that tolled the statute of limitations. The
court agreed with the defendants.
The court found that Bonnie Bickford’s complaints
to the attorney general’s office and statements made
during the 2007 investigation and during the commis-
sion hearing, no matter how offensive, were absolutely
privileged and could not support a claim of tortious
conduct within the three year statute of limitations.
Consequently, the court concluded that the older con-
duct set out in subparagraphs (a) to (h) of paragraph
5 of count one alleged no conduct within the limitation
period, and hence, there was no continuing course of
conduct and the plaintiffs’ relief was barred by the
statute of limitations. The court also concluded that
absolute immunity and the applicable statute of limita-
tions barred the plaintiffs’ claims alleged in counts two
through five of the amended complaint, negligent inflic-
tion of emotional distress and defamation as to Sherri
and two counts of defamation as to James. The court,
therefore, rendered judgment for the defendants, and
the plaintiffs appealed. Additional facts will be set forth
as necessary.
I
The plaintiffs first claim that the court, Cosgrove, J.,
abused its discretion by granting the defendants permis-
sion to file a motion for summary judgment after the
case had been scheduled for trial pursuant to the origi-
nal scheduling order. We disagree.
The record reveals that the plaintiffs’ counsel filed a
proposed scheduling order on February 1, 2013, which
stated that the pleadings were closed, that dispositive
motions were to be filed by June 1, 2013, that responses
to dispositive motions were to be filed by July 1, 2013,
and that dispositive motions would be marked ready
for argument soon thereafter. The case was to be ready
for trial in September, 2013. The plaintiffs’ counsel pro-
posed several dates for trial between September, 2013,
and January, 2014. The following statement, however,
was attached to the proposed scheduling order: ‘‘Coun-
sel attempted to reach [the defendants’ counsel] on
multiple occasions regarding the proposed order. It is
unknown if [the defendants’ counsel] agrees or dis-
agrees with the dates on the proposed scheduling
order.’’ Judge Cosgrove approved the scheduling order
proposed by the plaintiffs on February 5, 2013.
On August 15, 2013, counsel for the defendants filed
a motion to modify the scheduling order. Counsel
requested that the date for filing dispositive motions
be extended to August 20, 2013, stating that the case
was ‘‘not presently assigned for trial’’ and that the ‘‘case
should be disposed of on legal grounds in the interest
of judicial economy . . . .’’8 The plaintiffs did not
oppose the motion to modify. Judge Cosgrove granted
the motion and ordered the defendants to file their
motion for summary judgment by August 20, 2013. The
defendants complied. The plaintiffs filed their own
motions for extension of time and responded to the
defendants’ motion for summary judgment on October
30, 2013. Both parties subsequently filed serial requests
for extensions of time and memoranda of law regarding
the summary judgment motion.9 Judge Zemetis heard
oral arguments on the motion for summary judgment
on December 19, 2014, and, on March 13, 2015, issued
a memorandum of decision, granting summary judg-
ment in part. Trial commenced in August, 2015.
On appeal, the plaintiffs argue that Judge Cosgrove
abused his discretion by permitting the defendants to
file a motion for summary judgment because the defen-
dants had failed to demonstrate good cause to do so.
They also claim that permitting the defendants to file
a motion for summary judgment necessitated a lengthy
continuance of the trial date.
We first set forth the applicable standard of review.
‘‘A motion for continuance is addressed to the discre-
tion of the trial court, and its ruling will not be over-
turned absent a showing of a clear abuse of that
discretion.’’ (Internal quotation marks omitted.) Irving
v. Firehouse Associates, LLC, 82 Conn. App. 715, 719,
846 A.2d 918 (2004). ‘‘Every reasonable presumption in
favor of the proper exercise of the trial court’s discre-
tion will be made. . . . In deciding whether to grant a
continuance, the court of necessity balances several
factors, including the importance of effective case flow
management and the relative harm or prejudice to both
parties.’’ (Citation omitted; internal quotation marks
omitted.) Id., 720.
On the basis of our review of the foregoing procedural
history, we conclude that the court did not abuse its
discretion by permitting the defendants to file a motion
for summary judgment. When the plaintiffs’ counsel
submitted the scheduling order for the court’s approval
on February 1, 2013, he acknowledged that he had not
been able to communicate with the defendants’ counsel
and did not know whether counsel agreed to the pro-
posed schedule. Although the defendants did not file
their motion for summary judgment in accordance with
Judge Cosgrove’s order, they filed a request to modify
the scheduling order, stating that the case had not yet
been assigned for trial and that the case should be
disposed of on legal grounds in the interest of judicial
economy. The plaintiffs did not object to the motion
to modify. Judge Cosgrove granted the motion to modify
and issued a new scheduling order, which the plaintiffs
themselves did not follow. The plaintiffs twice filed a
request for permission to extend the time in which to
file an objection to the motion for summary judgment.
See footnote 9 of this opinion. Thereafter, both parties
filed numerous motions for continuances and
attempted to resolve their dispute through mediation.
At the time Judge Cosgrove ruled on the motion to
modify the scheduling order, the case was not yet sched-
uled for trial and granting it did not disrupt the court’s
docket. Although the plaintiffs claim that the filing of
a motion for summary judgment delayed trial, the plain-
tiffs themselves contributed to any delay by filing their
own requests for continuances and mediation. As to
good cause, the defendants represented that the case
could be resolved on legal grounds, thereby obviating
the need for trial. Moreover, the plaintiffs have not
demonstrated that they were harmed or prejudiced by
the fact that the court permitted the defendants to file
their motion for summary judgment. We conclude that
Judge Cosgrove did not abuse his discretion by granting
the motion to modify the scheduling order and permit-
ting the defendants to file a motion for summary
judgment.
II
The plaintiffs claim that it was error for Judge Zemetis
to allow the defendants to assert the litigation privilege
during trial to bar their claims because the defendants
had failed to plead absolute privilege as a special
defense.10 The defendants argue that they were not
required to plead absolute privilege as a special defense
because it implicates subject matter jurisdiction. The
plaintiffs cannot prevail on their claim of legal error.
Although a conditional or qualified privilege is an affir-
mative defense in a defamation action and must be
specially pleaded; Miles v. Perry, 11 Conn. App. 584,
594 n.8, 529 A.2d 199 (1987); the litigation privilege
implicates a trial court’s subject matter jurisdiction.
Bruno v. Travelers Cos., 172 Conn. App. 717, 719, 161
A.3d 630 (2017). A claim that the court lacks subject
matter jurisdiction ‘‘may be raised by a party, or by
the court sua sponte, at any stage of the proceedings,
including on appeal.’’ (Internal quotation marks omit-
ted.) Guerra v. State, 150 Conn. App. 68, 74–75, 89 A.3d
1028, cert. denied, 314 Conn. 903, 99 A.3d 1168 (2014).
Whether a claim is barred by absolute privilege is a
question of law to be determined by the court. See
generally Nelson v. Tradewind Aviation, LLC, 155
Conn. App. 519, 537, 111 A.3d 887, cert. denied, 316
Conn. 918, 113 A.3d 1016 (2015). If a court lacks subject
matter jurisdiction, it must dismiss the case. See Fen-
nelly v. Norton, 103 Conn. App. 125, 133–34, 931 A.2d
269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).
The following procedural history is relevant to the
plaintiffs’ claim. In their memorandum in support of
their motion for summary judgment, the defendants
stated that ‘‘all of the plaintiffs’ claims are untimely and
otherwise fail as a matter of law.’’ They argued, in part,
that any statements they may have made at the commis-
sion’s August, 2009 hearing enjoy a shield of absolute
immunity that is a complete defense to a defamation
claim, as witnesses in a court of law are privileged when
testifying in relation to the subject matter of the liti-
gation.
When the parties appeared before Judge Zemetis to
argue the motion for summary judgment, counsel for
the plaintiffs argued that the court should not consider
the defendants’ position with respect to the litigation
privilege because the defendants had failed to plead it
as an affirmative defense. In response, counsel for the
defendants stated that the defendants were withdraw-
ing their privilege argument for purposes of the sum-
mary judgment motion.11
At trial, the plaintiffs proffered the testimony of
retired State Police Lieutenant James Kenefick regard-
ing the 2007 investigation. The testimony included Bon-
nie Bickford’s statements accusing James of spousal
abuse and professional wrongdoing. The defendants
objected to the testimony on the ground of relevance,
asserting that Bonnie Bickford’s statements regarding
James’ alleged wrongdoing were privileged.12 The plain-
tiffs argued that the testimony was relevant to their
claims of intentional and negligent infliction of emo-
tional distress. The plaintiffs’ counsel also claimed sur-
prise, stating that the defendants had never pleaded
absolute privilege as a special defense and had waived
any reliance on it during the argument on the motion
for summary judgment.
The court stated that it understood that the defen-
dants were arguing that they did not need to plead
the litigation privilege as a defense because they were
asserting it as a basis to object to the admissibility of
evidence. The court also stated that it was not in a
position to rule on the matter because the parties had
failed to raise it in their trial management documents.
Given that Kenefick was present, however, the court
permitted him to testify and reserved its decision. Kene-
fick testified about the 2007 investigation at length over
two days.
In its memorandum of decision, the court stated that,
although the plaintiffs argued at trial that the defendants
had waived the litigation privilege by failing to plead it
as a special defense and had withdrawn absolute privi-
lege at the hearing on their motion for summary judg-
ment, the defendants had asserted the litigation
privilege at the start of trial and had sought to conform
their pleadings to the proof. The court continued that
it had reserved its decision on what it believed to be
the defendants’ motion to amend their pleadings. In
its memorandum of decision, the court rejected the
plaintiffs’ assertion that the defendants had withdrawn
absolute privilege from the case. It found that during
argument on their motion for summary judgment, the
defendants ‘‘did not withdraw, relinquish, abandon or
waive that privilege from the entire case.’’ (Emphasis
omitted.)
In permitting the defendants to amend their pleading
during trial, the court noted the factors a court is to
consider when passing on a motion to amend. See Con-
gress Street Condominium Assn., Inc. v. Anderson,
132 Conn. App. 536, 548, 33 A.3d 274 (2011) (Alvord,
J., dissenting) (factors to consider in passing on motion
to amend are length of delay, fairness to opposing par-
ties and negligence, if any, of party offering amendment;
motion to amend is addressed to trial court’s discretion
which may be exercised to restrain amendment of
pleadings to prevent unreasonable delay of trial).
The court concluded that the litigation privilege can-
not be waived because it implicates subject matter juris-
diction; and the defendants’ very late assertion of it did
not unduly prejudice the plaintiffs because they were
unable to assert their claims against the defendants by
statements other than those covered by the litigation
privilege.
We now turn to the plaintiffs’ claim that the court
improperly permitted the defendants to amend their
pleadings to allege the special defense of litigation
privilege. We review such claims pursuant to an abuse
of discretion standard. See id.
Practice Book § 10-50 provides in relevant part that
‘‘[n]o facts may be proved under either a general or
special denial except such as show that the plaintiff’s
statements of fact are untrue. Facts which are consis-
tent with such statements but show, notwithstanding,
that the plaintiff has no cause of action, must be spe-
cially alleged. Thus, accord and satisfaction, arbitration
and award, duress, fraud, illegality not apparent on the
face of the pleadings, infancy, that the defendant was
non compos mentis, payment . . . release, the statute
of limitations and res judicata must be specially pleaded
. . . .’’ (Emphasis added.)
Our Supreme Court has stated that ‘‘[p]leadings have
their place in our system of jurisprudence. While they
are not held to the strict and artificial standard that
once prevailed, we still cling to the belief, even in these
iconoclastic days, that no orderly administration of jus-
tice is possible without them.’’ (Internal quotation
marks omitted.) Foncello v. Amorossi, 284 Conn. 225,
233, 931 A.2d 924 (2007). ‘‘Privilege is an affirmative
defense in a defamation action and must, therefore, be
specifically pleaded by the defendant.’’ Miles v. Perry,
supra, 11 Conn. App. 594 n.8.; see also Monczport v.
Csongradi, 102 Conn. 448, 450–51, 129 A. 41 (1925);
Haight v. Cornell, 15 Conn. 73, 82 (1842). ‘‘The purpose
of pleading is to apprise the court and opposing counsel
of the issues to be tried, not to conceal basic issues
until the trial is under way.’’ (Internal quotation marks
omitted.) Pawlinski v. Allstate Ins. Co., 165 Conn. 1,
6, 327 A.2d 583 (1973). ‘‘It is for the court to determine,
as a matter of law, whether the defendant made the
defamatory statements while acting on an occasion of
privilege, as in the bona fide discharge of a public or
private duty.’’ Miles v. Perry, supra, 594 n.8, citing Flan-
agan v. McLane, 87 Conn. 220, 222, 87 A. 727 (1913).
A
The plaintiffs claim that the defendants waived the
litigation privilege during the argument on their motion
for summary judgment and that the defendants’ waiver
operated throughout the entire case. We disagree.
‘‘Waiver involves an intentional relinquishment of a
known right. . . . [It] does not have to be express, but
may consist of acts or conduct from which waiver may
be implied. . . . In other words, waiver may be
inferred from the circumstances if it is reasonable to
do so.’’ (Citation omitted; internal quotation marks
omitted.) Banks Building Co., LLC v. Malanga Family
Real Estate Holding, LLC, 102 Conn. App. 231, 239,
926 A.2d 1 (2007). Whether a waiver has occurred is a
question of fact for the trier of fact. See Ridgefield v.
Eppoliti Realty Co., 71 Conn. App. 321, 340, 801 A.2d
902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).
An appellate court will not disturb the trial court’s find-
ing unless it is clearly erroneous. See Naftzger v. Naft-
zger & Kuhe, Inc., 26 Conn. App. 521, 526, 602 A.2d
606 (1992).
After reviewing the record, we agree with the court
that the defendants withdrew privilege as the basis for
their motion for summary judgment and relied on their
statutes of limitations special defenses at that time. The
court found that the defendants did not withdraw their
defense of litigation privilege or absolute immunity with
respect to the issues to be tried. We therefore conclude
that the defendants did not intentionally relinquish their
right to raise the litigation privilege at trial when they
argued their motion for summary judgment.
B
The plaintiffs claim that it was improper for the court
to construe the defendants’ midtrial assertion of the
litigation privilege as a ground to exclude evidence to
be a motion to amend their pleadings to conform to
the evidence. The plaintiffs argue that not only did the
defendants fail to plead the litigation privilege as a
defense, but also that they failed to file a motion in
limine to preclude certain evidence as required by the
trial management order. We disagree.
The plaintiffs contend that had the defendants
pleaded absolute privilege as a special defense, they
would have tried the case differently and saved attor-
ney’s fees. The defendants raised the matter of the litiga-
tion privilege in their motion for summary judgment
that was filed in August, 2013, two years before trial
commenced. In their second supplemental memoran-
dum of law in opposition to the defendants’ motion for
summary judgment, the plaintiffs addressed the defen-
dants’ litigation privilege argument. They cannot plausi-
bly claim surprise. If the plaintiffs were uncertain of
the defendants’ position, they could have raised it as an
issue in their trial management document and brought
it to the attention of the court, which they failed to do.
More importantly, however, ‘‘[s]ubject matter jurisdic-
tion cannot be waived by any party and can be raised
at any stage of the proceedings.’’ (Internal quotation
marks omitted.) Fort Trumbull Conservancy, LLC v.
New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).
Accordingly, because absolute immunity implicates the
trial court’s subject matter jurisdiction, once the trial
court determined that the doctrine of absolute immu-
nity applied, it should have dismissed the case.
III
The plaintiffs next claim that the court improperly
concluded that their intentional infliction of emotional
distress claim was barred by the statute of limitations.
They assert that the statement Bonnie Bickford made
at the hearing before the commission was not relevant
to the proceedings and, therefore, was not privileged.
We disagree.
The plaintiffs’ claim is predicated on Bonnie Bick-
ford’s testimony before the commission on August 19,
2009, when she stated ‘‘that’s correct,’’ in response to
a leading question from her counsel. Counsel had asked
Bonnie Bickford whether she had complained that
James used his influence as a state trooper to have
her arrested falsely on two occasions. The court found
Bonnie Bickford’s testimony ‘‘troubling’’ because the
issue before the commission was whether the 2007
investigation report should be disclosed, not the basis
of her complaint to the attorney general and state
police. The court found that Bonnie Bickford’s repeated
assertion that James misused his office as a state
trooper to influence the legal process implicates the
arresting officer, the assistant state’s attorney, and the
Superior Court judge in a conspiracy to unlawfully
arrest her.13
On appeal, the plaintiffs claim that Bonnie Bickford’s
testimony about the nature of her complaint was not
relevant to the commission’s decision-making, but
rather was a gratuitous attempt to defame James one
more time. The defendants argue that the statement
was relevant to explain why the defendants wanted the
2007 investigation report.14 Despite its finding that the
purpose of the commission hearing was to determine
whether the 2007 investigation report should be dis-
closed, the court found that the question and Bonnie
Bickford’s response were within the ambit of informa-
tion relevant to the dispute before the commission. The
court stated that the bounds of relevance with respect
to the doctrine of absolute privilege are more generous
than the relevance of evidence at trial. Bonnie Bick-
ford’s statements before the commission, therefore,
were pertinent because she identified herself as the
party whose complaints, and their nature, initiated the
2007 investigation. She explained to the commission
that although she had initiated the 2007 investigation,
she had never received written notification of the inves-
tigation’s findings. Her statements at the commission
hearing, therefore, were pertinent in the context of her
request for the document, even though they were not
pertinent to whether her request for the document
should be granted. The court concluded that Bonnie
Bickford’s statements at the commission hearing, how-
ever offensive, are absolutely privileged and therefore
cannot support a claim of tortious conduct within the
three year statute of limitations.
‘‘There is a long-standing common law rule that com-
munications uttered or published in the course of judi-
cial proceedings are absolutely privileged so long as
they are in some way pertinent to the subject of the
controversy. . . . The effect of an absolute privilege is
that damages cannot be recovered for a defamatory
statement even if it is published falsely and maliciously.
. . . The policy underlying the privilege is that in cer-
tain situations the public interest in having people speak
freely outweighs the risk that individuals will occasion-
ally abuse the privilege by making false and malicious
statements. . . .
‘‘The judicial proceedings to which the immunity atta-
ches has not been defined very exactly. It includes any
hearing before a tribunal which performs a judicial func-
tion, ex parte or otherwise, and whether the hearing is
public or not. It includes for example, lunacy, bank-
ruptcy, or naturalization proceedings, and an election
contest. It extends also to the proceedings of many
administrative officers, such as boards and commis-
sions, 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. . . . This privi-
lege extends to every step of the proceeding until final
disposition. . . . [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.’’ (Citations
omitted; internal quotation marks omitted.) Petyan v.
Ellis, 200 Conn. 243, 245–46, 510 A.2d 1337 (1986). ‘‘The
absolute privilege for statements made in the course
of a judicial proceeding applies equally to defamation
claims . . . and claims for intentional infliction of
emotional distress.’’ (Citation omitted.) Gallo v. Barile,
284 Conn. 459, 466, 935 A.2d 103 (2007).
The plaintiffs do not challenge the court’s finding
that the commission was a quasi-judicial body and that
statements made before it were absolutely privileged,
if relevant to the issue before the commission. Instead,
they claim that Bonnie Bickford’s repeating of her com-
plaints regarding alleged personal and professional
wrongdoing by James was irrelevant to the issue before
the commission. The defendants do not challenge the
court’s finding that Bonnie Bickford knew or should
have known that two state police internal affairs investi-
gations found that the allegations against James were
unsubstantiated. We agree with the court that the testi-
mony bore some relevance to the purpose of the hearing
and was, therefore, absolutely privileged. Because Bon-
nie Bickford’s testimony was privileged, the plaintiffs
cannot establish a continuing course of conduct that
bars the application of the statute of limitations to their
claims. That is, no actionable conduct occurred within
the applicable statute of limitations, and the continuing
course of conduct doctrine, therefore, cannot be
applied to allow recovery for conduct outside the stat-
ute of limitations.
The form of the judgment is improper, the judgment
is reversed and the case is remanded with direction to
render judgment of dismissal.
In this opinion the other judges concurred.
1
In Simms v. Seaman, 308 Conn. 523, 525 n.1, 69 A.3d 880 (2013), our
Supreme Court noted that ‘‘[t]he terms ‘absolute immunity’ and ‘litigation
privilege’ [were] used interchangeably throughout [that] opinion. 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’).’’ ‘‘It appears that other cases and
treatises also use the term absolute privilege interchangeably with those
previously mentioned. See, e.g., Gallo v. Barile, 284 Conn. 459, 466, 935
A.2d 103 (2007) ([t]he effect of an absolute privilege is that damages cannot
be recovered for the publication of the privileged statement even if the
statement is false and malicious); 53 C.J.S. 166, Libel & Slander: Injurious
Falsehood § 112 (2005) ([a]bsolute privilege confers immunity from liability
for defamation regardless of motive).’’ (Internal quotation marks omitted.)
Bruno v. Travelers Cos., 172 Conn. App. 717, 719 n.2, 161 A.3d 630 (2017).
Regardless of the frequent interchangeability of the terms, we have tried,
where possible, to distinguish between the terms ‘‘absolute immunity’’ and
‘‘litigation privilege’’ or ‘‘absolute privilege.’’
2
In 2007, James retired from the state police force due to injuries he
sustained in the line of duty.
3
The plaintiffs’ exhibit 10, an excerpt from the Connecticut Department of
Public Safety IA Handbook, provides the following definition: ‘‘Unfounded—
[t]his disposition shall be made whenever there is sufficient evidence to
prove that the complaint or incident is false or not factual and did not occur.’’
4
In June, 2008, the plaintiffs obtained a prejudgment remedy against the
defendants in advance of commencing a lawsuit against them. The plaintiffs,
however, never served process on the defendants, and the matter was dis-
missed in October, 2011, for failure to prosecute with reasonable diligence.
5
Following an in camera review of the 2000 investigation report, the
commission concluded that the 2000 investigation was thorough, that the
record contained no new evidence that supported or confirmed the allega-
tions made by the defendants or attested to the truth or accuracy of the
allegations. Because the 2000 investigation report contains uncorroborated
allegations that an individual had engaged in criminal activity, it was not
subject to disclosure by the commission.
6
General Statutes § 52-577 provides: ‘‘No action founded upon a tort shall
be brought but within three years from the date of the act or omission
complained of.’’
7
General Statutes § 52-584 provides in relevant part: ‘‘No action to recover
damages for injury to person . . . caused by negligence . . . shall be
brought but within two years from the date when the injury is first sus-
tained . . . .’’
8
Practice Book § 17-44 provides in relevant part: ‘‘In any action . . . any
party may move for a summary judgment as to any claim or defense as a
matter of right at any time if no scheduling order exists and the case has
not been assigned for trial. If a scheduling order has been entered by the
court, either party may move for summary judgment as to any claim or
defense as a matter of right by the time specified in the scheduling order.
. . .’’
9
In February, 2014, counsel for the defendants filed a motion for continu-
ance of oral argument on the motion for summary judgment as counsel for
both parties were recovering from surgery. In April, 2014, and again in June,
2014, the plaintiffs filed supplemental memoranda of law in support of their
objection to the defendants’ motion for summary judgment. In an October
1, 2014 letter that reveals that in May, 2014, the parties participated in
mediation before the court, Martin, J., the plaintiffs’ counsel requested that
Judge Cosgrove hold another status conference concerning a resumption
of mediation. Significantly, the plaintiffs’ counsel also stated that the defen-
dants’ motion for summary judgment ‘‘as to the slander claim is based
on a special defense of ‘privilege,’ although the defendants never filed any
such special defense in either their October 7, 2011 answer and special
defenses . . . or their amended answer and special defenses dated May
23, 2012.’’ (Emphasis added.) Judge Cosgrove denied without prejudice the
request for a continuance as the case was set down for trial.
10
On appeal, the plaintiffs articulated two interrelated claims as to abso-
lute privilege. They claim that (1) the court erred in finding that the defen-
dants’ ‘‘midtrial assertion of, in effect, a motion in limine was a motion to
amend, wherein the defendants’ counsel attempted to apply an absolute
privilege to the introduction of any evidence regarding the defendants’ state-
ments at the [commission] hearing in August, 2009’’ and (2) the ‘‘defendants
waived any claim of privilege by failing to plead a special defense where
the defendants had waived it during the oral argument on the defendants’
summary judgment motion in December, 2014, and never sought, even after
trial, to move to amend its special defenses to add such a defense.’’
11
Specifically, counsel for the defendants stated: ‘‘Just to simplify this
argument and cut to the chase, it was never a flagship argument in the
eyes of the defendants, but more specifically, we concede the point. The
defendants did not plead a special defense of privilege, therefore, are not
pursuing summary judgment based on any claim of absolute or qualified
privilege, and would agree that summary judgment is not appropriate on that
ground. Nevertheless, the defendants would argue that summary judgment
is appropriate on statute of limitations grounds.’’
12
Counsel for the defendants stated: ‘‘The internal affairs investigation is
a quasi-judicial proceeding. . . . [S]tatements made in such proceedings by
witnesses are subject to absolute immunity. This immunity is true whether
. . . they are under oath or not under oath, whether they are uttered during
the context of the proceedings or in any way leading up to it. Anything
stated by the Bickfords in a quasi-judicial proceeding is something for which
they have absolute immunity and, as it is something for which they have
absolute immunity, there is no relevance in going through it.’’
13
The court also found that Bonnie Bickford had no evidence to support
her suspicion and accusation.
14
The defendants wanted the 2007 investigation report to prove that they
did not initiate the 2000 investigation.