Nardozzi v. Perez ( 2022 )

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JAMES NARDOZZI v. ARMANDO PEREZ ET AL.
(AC 44539)
Elgo, Clark and Sheldon, Js.
Syllabus
The plaintiff sought to recover damages and other relief for, inter alia,
fraudulent misrepresentation in connection with an alleged conspiracy
by the defendants, the city and two of its former employees, to fill the
position of police chief in the defendant city’s police department. The
plaintiff, a former officer in the city’s police department, had previously
brought a separate action against the city alleging wrongful termination.
The parties reached a settlement agreement with respect to the termina-
tion action. The plaintiff thereafter filed the complaint alleging a conspir-
acy, and the city filed a motion to dismiss the counts of the complaint
against it, which alleged fraudulent misrepresentation during settlement
negotiations and computer crime, on the basis that the claims were
barred by absolute immunity under the litigation privilege. The trial
court denied the motion with respect to the claim of computer crime,
and the city appealed to this court. Held that the trial court properly
denied the city’s motion to dismiss the count alleging computer crime
on the basis of the city’s failure to establish a nexus between the allega-
tions of that count and any activity falling within the bounds of the
litigation privilege; the count did not contain any allegations with respect
to communications involving the city and the conduct alleged could not
reasonably be construed as stemming from the plaintiff’s prior action
against the city, but, rather, the allegations set forth in the count concern
the mechanics of how the city’s employees carried out a cheating scheme
using computers, not any fraud or concealment thereof that occurred
during the prior settlement negotiations.
Argued January 20—officially released May 17, 2022
Procedural History
Action to recover damages for, inter alia, fraudulent
misrepresentation, and for other relief, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Cordani, J., granted in part the motion to
dismiss filed by the defendant city of Bridgeport, from
which the defendant city of Bridgeport appealed to this
court. Affirmed.
James J. Healy, for the appellant (defendant city of
Bridgeport).
Eric R. Brown, for the appellee (plaintiff).
Opinion
ELGO, J. The defendant city of Bridgeport1 appeals
from the judgment of the trial court denying in part its
motion to dismiss the action of the plaintiff, James
Nardozzi. On appeal, the defendant claims that the court
improperly denied its motion to dismiss the ninth count
of the plaintiff’s complaint on the ground of absolute
immunity arising from the litigation privilege. We affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff, a former officer within
the defendant’s police department, served as the defen-
dant’s assistant police chief between November, 2012,
and January, 2016. In March, 2017, the plaintiff brought
an action against the defendant sounding in wrongful
termination (termination action). The parties reached
a settlement agreement with respect to the termination
action on March 4, 2020.2
In May, 2018, during the pendency of the termination
action, the plaintiff unsuccessfully applied for the
defendant’s vacant chief of police position. The position
was subsequently awarded to Armando Perez.
On October 13, 2020, the plaintiff filed the present
complaint ‘‘alleg[ing] a conspiracy among the [defen-
dant, Perez and David Dunn] to rig the competitive
examination process to fill the position of chief of police
in the [defendant’s] police department from at least
March, 2018, through December, 2018.’’3 On November
13, 2020, the defendant filed a motion to dismiss with
respect to the fourth and ninth counts of the complaint
on the ground, inter alia, that the plaintiff’s claims were
barred by absolute immunity under the litigation privi-
lege.4 The defendant argued that the fourth count of
the complaint, which alleged that the defendant had
fraudulently withheld information concerning the cheat-
ing scheme while negotiating a settlement with the
plaintiff in the termination action, implicated its con-
duct during prior litigation proceedings such that abso-
lute immunity under the litigation privilege barred the
plaintiff’s claim. As to the ninth count, the defendant
construed the plaintiff’s allegations of computer crime
in violation of General Statutes § 53a-251 as a ‘‘deriva-
tive statutory claim’’ of the fraud alleged in the fourth
count, which, in the defendant’s view, merited extending
absolute immunity under the litigation privilege to that
claim as well. The plaintiff filed an opposition to the
motion to dismiss accompanied by a memorandum of
law on January 4, 2021, in which he argued, inter alia,
that the litigation privilege did not extend to criminally
fraudulent behavior and that dismissal with respect to
the fourth count of the complaint would not further the
public policy aims recognized by Connecticut courts as
underlying the development of the litigation privilege.
The parties appeared before the court for oral argument
on the motion on January 26, 2021.
On January 27, 2021, the court granted in part the
defendant’s motion to dismiss. The court held that the
fourth count of the plaintiff’s complaint, which alleged
that the defendant fraudulently failed to disclose the
cheating scheme during settlement negotiations with
respect to the termination action, constituted a pro-
tected communication that fell within the litigation priv-
ilege. The court further reasoned that the fourth count
‘‘is not being used to shield criminal activity’’ and ‘‘is
instead directed to an alleged failure to provide the
plaintiff with information concerning the cheating scan-
dal during the negotiations of the settlement agree-
ment.’’ In order to prevent a ‘‘[direct] attack on the
settlement process’’ of the termination action, the court
concluded that the litigation privilege warranted dis-
missal of the fourth count.
With respect to the ninth count, however, the court
denied the defendant’s motion. As the court stated: ‘‘The
actions allegedly taken by Dunn and Perez were not
taken in the context of a judicial proceeding. Instead,
Dunn and Perez are alleged to have conspired and
shared information using their work computers in fur-
therance of their scheme to cheat in the process of
hiring a new chief of police. The allegations in count
nine are not dependent upon the fraud claim in count
four. The actions asserted in count nine have nothing
to do with the judicial proceedings of the first lawsuit.
Accordingly, the litigation privilege does not apply and
count nine need not be dismissed for that reason.’’ In
support of this conclusion, the court further observed
that ‘‘[t]he claim asserted in count nine is also distinct
from the claims raised in the [plaintiff’s] first lawsuit.’’
This appeal followed.
On appeal, the defendant claims that the court
improperly denied its motion to dismiss the ninth count
of the plaintiff’s complaint on the ground of absolute
immunity.
Our resolution of this claim is governed by the follow-
ing standard of review and legal principles. ‘‘[I]n ruling
upon whether a complaint survives a motion to dismiss,
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. . . . A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . Because a challenge
to the jurisdiction of the court presents a question of
law, our review of the court’s legal conclusion is ple-
nary.’’ (Internal quotation marks omitted.) Scholz v.
Epstein, 198 Conn. App. 197, 226, 232 A.3d 1155 (2020),
aff’d, 341 Conn. 1, 266 A.3d 127 (2021); see also Simms
v. Seaman, 308 Conn. 523, 530, 69 A.3d 880 (2013)
(explaining that whether absolute immunity applies is
question of law over which review is plenary).
‘‘As the doctrine of absolute immunity concerns a
[trial] court’s subject matter jurisdiction . . . we are
mindful of the well established notion that, in determin-
ing whether a court has subject matter jurisdiction,
every presumption favoring jurisdiction should be
indulged. . . . The question before us is whether the
facts as alleged in the pleadings, viewed in the light
most favorable to the plaintiff, are sufficient to survive
dismissal on the grounds of absolute immunity.’’ (Inter-
nal quotation marks omitted.) Bruno v. Travelers Cos.,
172 Conn. App. 717, 724–25, 161 A.3d 630 (2017).
‘‘Before addressing the applicability of the litigation
privilege, [w]e begin our analysis with a review of [this]
doctrine . . . as set forth in Simms v. Seaman, [supra,
308 Conn. 531–40]. In Simms, [our Supreme Court]
noted that the doctrine of absolute immunity originated
in response to the need to bar persons accused of crimes
from suing their accusers for defamation. . . . The
doctrine then developed to encompass and bar defama-
tion claims against all participants in judicial proceed-
ings, including judges, attorneys, parties, and witnesses.
. . . We further noted that, [l]ike other jurisdictions,
Connecticut has long recognized the litigation privilege,
and that [t]he general rule is that defamatory words
spoken upon an occasion absolutely privileged, though
spoken falsely, knowingly, and with express malice,
impose no liability for damages recoverable in an action
in slander . . . .
‘‘[T]he purpose of affording absolute immunity to
those who provide information in connection with judi-
cial and quasi-judicial proceedings is that in certain
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. . . . [T]he possibility of incurring the costs
and inconvenience associated with defending a [retalia-
tory] suit might well deter a citizen with a legitimate
grievance from filing a complaint. . . . Put simply,
absolute immunity furthers the public policy of encour-
aging participation and candor in judicial and quasi-
judicial proceedings. This objective would be thwarted
if those persons whom the common-law doctrine [of
absolute immunity] was intended to protect neverthe-
less faced the threat of suit. In this regard, the purpose
of the absolute immunity afforded participants in judi-
cial and quasi-judicial proceedings is the same as the
purpose of the sovereign immunity enjoyed by the state.
. . . As a result, courts have recognized absolute immu-
nity as a defense in certain retaliatory civil actions in
order to remove this disincentive and thus encourage
citizens to come forward with complaints or to testify.’’
(Citations omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) Dorfman v. Smith,
343 Conn. 582, 590–91, 271 A.3d 53 (2022).
‘‘Th[e] court in Simms, however, explained that there
are limits to the application of the litigation privilege.
. . . Specifically, the litigation privilege does not bar
claims for abuse of process, vexatious litigation, and
malicious prosecution. . . . This is because whether
and what form of immunity applies in any given case
is a matter of policy that requires a balancing of inter-
ests . . . .
‘‘Specifically, Simms identified the following factors
as relevant to any determination of whether policy con-
siderations support applying absolute immunity to any
particular cause of action: (1) whether the alleged con-
duct subverts the underlying purpose of a judicial pro-
ceeding in a similar way to how conduct constituting
abuse of process and vexatious litigation subverts that
underlying purpose; (2) whether the alleged conduct is
similar in essential respects to defamatory statements,
inasmuch as the privilege bars a defamation action; and
(3) whether the alleged conduct may be adequately
addressed by other available remedies. . . . Assisting
in our evaluation of these factors, to the extent applica-
ble, we have considered as persuasive whether federal
courts have protected the alleged conduct pursuant to
the litigation privilege. . . . These factors and consid-
erations, however, are simply instructive, and courts
must focus on the issues relevant to the competing
interests in each case in light of the particular context
of the case. . . . We are not required to rely exclusively
or entirely on these factors, but, instead, they are useful
when undertaking a careful balancing of all competing
public policies implicated by the specific claim at issue
and determining whether affording parties this com-
mon-law immunity from this common-law action is war-
ranted.’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) Id., 592–94.
When assessing whether absolute immunity under
the litigation privilege applies to a given claim, this
court has consistently placed great weight on whether
the claim arises from communications made during the
course of legal proceedings. See Kenneson v. Eggert,
196 Conn. App. 773, 785, 230 A.3d 795 (2020) (comments
made during settlement conference ‘‘were made during
a judicial proceeding’’ and ‘‘relevant to the subject mat-
ter of the ongoing litigation’’ such that litigation privi-
lege blocked claim stemming therefrom); Bruno v.
Travelers Cos., supra, 172 Conn. App. 727 (‘‘[i]t is well
settled that communications uttered or published in
the course of judicial proceedings are absolutely privi-
leged [as] long as they are in some way pertinent to the
subject of the controversy’’ (emphasis added; internal
quotation marks omitted)); Tyler v. Tatoian, 164 Conn.
App. 82, 86, 92, 137 A.3d 801 (claims of fraud against
party opponent centered on misleading deposition and
trial testimony are barred by the litigation privilege),
cert. denied, 321 Conn. 908, 135 A.3d 710 (2016). In the
absence of such a showing, this court has held that the
litigation privilege should not operate to bar a plaintiff’s
claim. See Fiondella v. Meriden, 186 Conn. App. 552,
562–63, 200 A.3d 196 (2018) (‘‘Most importantly, the
plaintiffs’ claims focus on the alleged wrongful conduct
engaged in by the defendants, rather than on the words
uttered during a judicial proceeding. . . . We conclude
that the allegations of the plaintiffs’ complaint in the
present case are not predicated on statements made
during the course of litigation, but are based on the
defendants’ intentional conduct that did not occur dur-
ing a judicial proceeding. The defendants, therefore,
are not shielded by the litigation privilege.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.)), cert. denied, 330 Conn. 961, 199 A.3d 20(2019).
We disagree with the defendant’s assertion that the
appeal before us ‘‘presents a direct application of the
litigation privilege.’’ In doing so, we find instructive the
trial court’s analysis of the defendant’s motion with
respect to the fourth count of the plaintiff’s complaint,
which neither party contests on appeal. As the court
observed, the fourth count of the complaint explicitly
pinpoints communications––the parties’ discussions
during settlement negotiations for the termination
action––which not only pertained directly to an ongoing
judicial proceeding, but directly bore on the outcome
of that proceeding. It was entirely consistent with the
body of appellate jurisprudence concerning the litiga-
tion privilege in this state, as established by our
Supreme Court in Simms and elaborated on by this
court in Tyler, Fiondella, and Bruno, for the court to
determine that the defendant’s statements during those
negotiations were covered by the litigation privilege.
Indeed, it is well settled that communications between
parties during judicial proceedings are ‘‘precisely [the]
type of communication that the litigation privilege was
intended to protect because the benefit of encouraging
[parties] to speak candidly in judicial proceedings out-
weighs the risk of a defendant abusing the privilege
. . . .’’ Tyler v. Tatoian, supra, 164 Conn. App. 92.
The same cannot be said of the ninth count of the
complaint. The ninth count does not contain any allega-
tions with respect to communications involving the
defendant, nor can the conduct alleged therein reason-
ably be construed as stemming from the plaintiff’s prior
action against it.5 Instead, the allegations set forth in
the ninth count concern the mechanics of how the
defendant’s employees carried out the cheating scheme
using computers, not any fraud or concealment thereof
that occurred during the prior settlement negotiations.
At oral argument before this court, the defendant con-
ceded that it was not aware of any authority that
extended the litigation privilege to conduct independent
of litigation activity. Without such authority, we see no
reason to disregard this court’s precedent and extend
a privilege that exists expressly to foster candor during
the litigation process to conduct that occurred sepa-
rately from the parties’ prior litigation. See Dorfman v.
Smith, supra, 342 Conn. 591.
Put simply, the defendant has failed to establish a
nexus between the allegations set forth in count nine
of the plaintiff’s complaint and any activity that falls
within the bounds of the litigation privilege. For that
reason, we conclude that the court properly denied the
defendant’s motion to dismiss with respect to the ninth
count of the plaintiff’s complaint.6
The judgment is affirmed.
In this opinion the other judges concurred.
1
David Dunn and Armando Perez, two former employees of the defendant,
were named as defendants in their individual capacities. Neither party is a
participant in this appeal. For clarity, we refer to the city of Bridgeport as
the defendant in this appeal and to Dunn and Perez by name.
2
Despite the settlement agreement, the plaintiff’s first action against the
defendant remained pending until January 8, 2021.
3
The court later found that, at or around the time of the complaint, Perez
and Dunn had pleaded guilty to criminal charges that arose from ‘‘cheating
in the . . . open competitive examination process that resulted in Perez
becoming chief of police.’’
4
Although Dunn and Perez filed their own motions to dismiss, neither
motion was predicated on the ground that the litigation privilege conferred
on them absolute immunity.
5
The ninth count does incorporate prior paragraphs of the complaint
which lay out a basic chronological history of the termination action. The
allegations specific to the ninth count, however, do not implicate the parties’
prior litigation.
6
To the extent that the defendant disputes the merits of the plaintiff’s
claim, we agree with the plaintiff that such an inquiry is not appropriate at
this stage of the pleadings. See Bruno v. Travelers Cos., supra, 172 Conn.
App. 724–25 (‘‘[I]n 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.’’ (Internal quotation marks omitted.)).