Villages, LLC v. Longhi , 166 Conn. App. 685 ( 2016 )

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VILLAGES, LLC v. LORI LONGHI
(AC 36844)
Lavine, Sheldon and Mullins, Js.
Argued November 19, 2015—officially released July 5, 2016
(Appeal from Superior Court, judicial district of
Hartford, Wiese, J.)
Gwendolyn S. Bishop, with whom was P. Timothy
Smith, for the appellant (plaintiff).
Kristan M. Maccini, for the appellee (defendant).
Opinion
LAVINE, J. Our Supreme Court said of zoning laws
and commissions: ‘‘We must remember that the machin-
ery of government would not work if it were not allowed
a little play in its joints. . . . Nowhere is this more
applicable than to zoning ordinances; the saving elastic-
ity is mainly afforded through boards of adjustment.
Much depends upon the skill, sound judgment and pro-
bity of the members. It is essential to their functions
that they be invested with liberal discretion. They are
accorded the benefit of a presumption that they act
fairly, with proper motives and upon valid reasons,
and not arbitrarily.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) St. Patrick’s
Church Corp. v. Daniels, 113 Conn. 132, 139, 154 A.
343 (1931).
The plaintiff, Villages, LLC, appeals from the judg-
ment of the trial court dismissing its complaint against
the defendant, Lori Longhi, a member of the Enfield
Planning and Zoning Commission (commission), on the
ground that the defendant is absolutely immune from
liability in this action under the litigation privilege. The
plaintiff claims that the court erred in ruling that the
defendant is absolutely immune from suit in this action
under the litigation privilege because the conduct
alleged does not implicate that privilege, but instead is
governed by the provisions of General Statutes § 52-
557n (c).1 We agree with the plaintiff and, therefore,
reverse the judgment of the trial court.
The parties appear before this court for a second
time. The underlying facts previously were set out in
Villages, LLC v. Enfield Planning & Zoning Commis-
sion, 149 Conn. App. 448, 89 A.3d 405 (2014), appeals
dismissed, 320 Conn. 89, 127 A.3d 998 (2015). In May,
2009, the plaintiff filed an application for a special use
permit and an application to develop an open space
subdivision for residential housing on property it owned
in Enfield. Id., 450. The commission held a public hear-
ing on the plaintiff’s applications on July 9, 2009, July
23, 2009, September 3, 2009, and October 1, 2009, and
closed the public hearing on October 1, 2009. Id. On
October 15, 2009, the commission met and voted to
deny both applications. Id.
The plaintiff filed an appeal with respect to each
application (zoning appeals). In its appeals, the plaintiff
alleged that ‘‘the commission illegally and arbitrarily
predetermined the outcome of each of its applications
prior to the public hearing and was motivated by
improper notions of bias and personal animus when it
denied each of the applications.’’ Id., 450–51.
Following a trial, the court, Hon. Richard M. Ritten-
band, judge trial referee, ‘‘found that the plaintiff’s alle-
gations of bias and ex parte communication arose from
the actions of [the defendant], a member of the commis-
sion. More specifically, the court found that [the defen-
dant] took part in the hearing on the plaintiff’s
applications, played a significant role in the delibera-
tions, and voted to deny the plaintiff’s applications.
[The defendant] had been a social friend of one of the
plaintiff’s owners, Jeannette Tallarita, and her husband,
Patrick Tallarita . . . . There was a falling out among
the friends, and the court found that [the defendant]
was biased against Patrick Tallarita, who represented
the plaintiff at the hearing before the commission. The
court also found that [the defendant] engaged in an
ex parte communication regarding the applications.’’
(Emphasis added; footnote omitted.) Id., 451.
The court found two instances of conduct by the
defendant that gave rise to the plaintiff’s claim of bias
against her, only one of which was relevant to the zoning
appeals. Id., 451. In the incident described by the court,
the defendant had stated that ‘‘she wanted [Patrick Tal-
larita] to suffer the same fate of denial by the commis-
sion that she had suffered.’’ (Internal quotation marks
omitted.) Id., 452. ‘‘At trial, Anthony DiPace testified
that [the defendant] had stated to him that the commis-
sion, when it previously considered an application that
she had submitted, had ‘screwed her’ and treated her
unfairly when it denied that application. She was
unhappy with [Patrick] Tallarita, who was then mayor,
because he did not intervene on her behalf. She stated
in the presence of DiPace that she wanted [Patrick]
Tallarita to suffer the same fate, i.e., that the commis-
sion deny the plaintiff’s applications. [Patrick] Tallarita
did not become aware of [the defendant’s] statement
regarding the fate of the plaintiff’s applications until
after the commission had closed the public hearing [on
the plaintiff’s applications]. The court found that [the
defendant’s] comments were blatantly biased [against
Patrick] Tallarita and should not be tolerated. The court
also found that it had not been possible for the plaintiff
to bring [the defendant’s] comments regarding [Patrick]
Tallarita to the attention of the commission because he
learned of them after the hearing had closed and the
commission had denied the plaintiff’s applications.
‘‘Credibility was a deciding factor in the court’s deci-
sion regarding [the defendant’s] ex parte communica-
tion. [Patrick] Tallarita, DiPace, and Bryon Meade
testified during the trial. The court found each of the
men was a credible witness. [The defendant] also testi-
fied at trial, but the court found that her testimony was
filled with denials of the allegations and concludedthat
her ‘comments did not ring true.’ The court found that
Meade, a representative of the Hazardville Water
Authority, testified with confidence that [the defendant]
had met with him in person regarding the plaintiff’s
applications during the first week of October, 2009.
[The defendant] testified, however, that Meade must
have been confused because she met with him regarding
another property. The court stated that [the defen-
dant’s] testimony was just not credible.
‘‘In addressing the plaintiff’s claim that [the defen-
dant] improperly engaged in ex parte communications
with Meade, the court noted that ‘[o]ur law clearly pro-
hibits the use of information by a municipal agency that
has been supplied to it by a party to a contested hearing
on an ex parte basis.’ . . . The court found that it was
‘clear’ that [the defendant] had an ex parte communica-
tion with Meade. Once the plaintiff had proven that
the ex parte communication had occurred, the burden
shifted to the commission to demonstrate that such
communication was harmless. . . . The court found
that the commission had not met its burden to prove
that [the defendant’s] ex parte communication was
harmless.’’ (Citations omitted; emphasis in original.)
Id., 452–53.
The court ‘‘reviewed the transcript of the commis-
sion’s October 15, 2009 meeting when it considered the
plaintiff’s applications. It found that the transcript was
twenty-three pages long and that [the defendant’s] com-
ments appeared on every page but one, and that on
most pages, [the defendant’s] comments were the most
lengthy. Her comments raised many negative questions
about the plaintiff’s applications. Moreover, in offering
her comments, she cited her experience as an appraiser.
The court found that [the defendant] dominated the
meeting and that she intended to have a major effect
on the commission’s deliberations and subsequent
votes. The court found clear and egregious bias on [the
defendant’s] part, and that her impact on the commis-
sion’s deliberations and votes alone were reason to
sustain the plaintiff’s appeals.’’ (Footnote omitted.)
Id., 453–54.
Judge Rittenband concluded that, ‘‘on the basis of
the bias [the defendant] demonstrated against the plain-
tiff and her ex parte communication with Meade, along
with her biased, aggressive, and vociferous arguments
against the applications on October 15, 2009, the com-
mission’s action was not honest, legal, and fair. The
court therefore sustained the plaintiff’s appeals and
remanded the matter to the commission for further
public hearings . . . .’’ (Emphasis added.) Id., 455. The
commission appealed, and this court affirmed the judg-
ments of the trial court. Id., 467. The commission’s
appeals to our Supreme Court were dismissed. Villages,
LLC v. Enfield Planning & Zoning Commission, 320
Conn. 89, 127 A.3d 998 (2015).
The plaintiff commenced the present action on Octo-
ber 1, 2012. The two count complaint against the defen-
dant alleged intentional fraudulent misrepresentation2
and intentional tortious interference with business
expectancy.3 The plaintiff alleged that it owns land in
Enfield and that it had filed certain applications with
the commission, seeking to develop the land. At all
times relevant, the defendant was a member of the
commission and engaged in ex parte communication
with respect to the plaintiff’s applications, yet partici-
pated in the public hearing in which the commission
denied the plaintiff’s applications.
The defendant denied the material allegations of the
complaint and alleged three special defenses as to each
count, including that the action was barred by the doc-
trines of governmental immunity and absolute immu-
nity. The plaintiff denied each of the special defenses.
In December, 2013, the defendant filed a motion that
the court either dismiss the plaintiff’s cause of action
or render summary judgment in her favor. Only the
motion to dismiss is relevant to this appeal.4 In her
memorandum of law in support of the motion to dis-
miss, the defendant argued that she was entitled to
absolute immunity because she was acting in an admin-
istrative capacity and performing a quasi-judicial func-
tion when she reviewed and voted on the plaintiff’s
applications. Nonetheless, she recognized the case of
Towne Brooke Development, LLC v. Fox, Superior
Court, judicial district of Danbury, Docket No. CV-03-
0347962-S (November 26, 2004), in which the trial court,
Hon. Howard J. Moraghan, judge trial referee, con-
cluded that the defendant members of the commission
were not entitled to absolute immunity because their
alleged misconduct involved an ex parte discussion.5
On January 13, 2014, the plaintiff filed an objection
to the defendant’s motion in which it contended that
neither qualified immunity, governmental immunity,
nor absolute immunity barred its claims against the
defendant given the intentional nature of her alleged
misconduct and that the allegations of its complaint
were predicated on Judge Rittenband’s findings in the
zoning appeals.6 With respect to the defendant’s special
defense that, as a municipal officer exercising discre-
tion, she was immune from suit, the plaintiff countered
that § 52-557n (c) applied to the facts alleged, emphasiz-
ing the statute’s final sentence, to wit: ‘‘The provisions
of this subsection shall not apply if such damage or
injury was caused by the reckless, wilful or wanton
misconduct of such person.’’ The plaintiff, therefore,
argued that on the basis of Judge Rittenband’s findings
in the zoning appeals, the defendant was not entitled
to immunity from suit.
With respect to the doctrine of absolute immunity,
the plaintiff cited and quoted from decisions of our
Supreme Court regarding the historical development,
purpose, and policy foundations of absolute immunity,
including instances in which it did not apply.7 The plain-
tiff summarized its position with respect to immunity
by stating that its claims were not based on the words
the defendant uttered during the commission’s meeting
at which its applications were denied, but on the defen-
dant’s ex parte gathering of evidence, which deprived it
of a fair hearing. The plaintiff argued that its intentional
fraudulent misrepresentation claim was grounded on
the defendant having falsely represented herself to be
‘‘an honest, fair and unbiased member of the commis-
sion when she chose to participate in the proceedings
on the [plaintiff’s] applications.’’ As to the second count,
intentional tortious interference with business expec-
tancy, the plaintiff claimed that by participating as a
biased decision maker and gathering evidence outside
the record, the defendant intentionally and tortiously
interfered with the plaintiff’s expectancy that the com-
mission would provide a fair, neutral, and honest pro-
ceeding with respect to its applications.
Following oral argument, the trial court, Wiese, J.,
issued a memorandum of decision on May 7, 2014, in
which it granted the defendant’s motion to dismiss, but
declined to address the motion for summary judgment
on the ground that the court lacked subject matter
jurisdiction. In rendering its decision, the court first
determined that the commission is a quasi-judicial body
because it is authorized to hear, consider, and decide
applications for special permits or exceptions in the
exercise of its discretion.8 See Kelley v. Bonney, 221
Conn. 549, 567, 606 A.2d 693 (1992). The court noted
that our Supreme Court has held that zoning boards
act in a quasi-judicial capacity when passing upon the
issuance of a permit. See Astarita v. Liquor Control
Commission, 165 Conn. 185, 189, 332 A.2d 106 (1973).
The court concluded that the commission was acting
in a quasi-judicial capacity when it considered the plain-
tiff’s applications and, therefore, its members were pro-
tected by the litigation privilege, a subset of absolute
immunity. Relying on Kelley v. Bonney, supra, 565–66,
which noted that the litigation privilege attaches to
relevant statements made in administrative proceedings
that are quasi-judicial in nature, the court reasoned that
the role of zoning commission members, when acting
on permit applications, is similar to that of judges.9
We disagree that the litigation privilege is applicable
to the allegations of the plaintiff’s complaint. As the
plaintiff made clear in its memorandum of law in opposi-
tion to the defendant’s motion to dismiss and on appeal,
its claims are not predicated on what the defendant
stated at the commission meeting, but on her bias and
ex parte communication with Meade. Although the
plaintiff referred to and quoted § 52-557n (c) in the trial
court, the court did not consider the statute when it
dismissed the plaintiff’s cause of action.
The plaintiff appealed, claiming that the court erred
in determining that it lacked subject matter jurisdiction
because: (1) § 52-557n (c) abrogated the common-law
doctrine of absolute immunity, and (2) the defendant’s
liability is grounded on her internal bias and ex parte
communication.10 Although we agree that the court
erred in dismissing the plaintiff’s cause of action, we
do not agree that the statute abrogated common-law
absolute immunity. The defendant argues that she is
entitled to absolute immunity because the commission
is a quasi-judicial board; we disagree. Section 52-557n
(c) provides members of municipal agencies with quali-
fied immunity in that commission members may be
liable for their intentional wrongful acts. Absolute
immunity and the litigation privilege are not implicated
by the allegations of the plaintiff’s complaint. The court
and the defendant have conflated the immunity pro-
vided to those who make statements before quasi-judi-
cial boards and the immunity provided to members of
municipal agencies for exercising their decision-making
responsibilities.11
‘‘The standard of review for a court’s decision on a
motion to dismiss . . . is well settled. A motion to dis-
miss tests, inter alia, whether, on the face of the record,
the court is without jurisdiction. . . . [O]ur review of
the court’s ultimate legal conclusion and resulting
[determination] of the motion to dismiss will be de
novo. . . . When a . . . court decides a jurisdictional
question raised by a pretrial motion to dismiss, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . The motion to dismiss . . . admits all
facts which are well pleaded, invokes the existing
record and must be decided upon that alone. . . . In
undertaking this review, we are mindful of the well
established notion that, in determining whether a court
has subject matter jurisdiction, every presumption
favoring jurisdiction should be indulged.’’ (Citations
omitted; internal quotation marks omitted.) Dayner v.
Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d
1192 (2011).
The plaintiff claims that the court improperly deter-
mined that the defendant is absolutely immune from
suit because § 52-557n (c) provides commission mem-
bers with qualified immunity and, therefore, commis-
sion members are liable for their intentional wrongful
acts, and the defendant claims that she is afforded abso-
lute immunity pursuant to the litigation privilege. The
parties’ claims involve two distinct legal doctrines. To
highlight the distinction between the litigation privilege
that pertains to statements made during judicial or
quasi-judicial proceedings and the applicability of § 52-
557n (c) to the decision-making responsibilities of
members of a municipal agency, we provide a brief
overview.
The litigation privilege developed centuries ago in
the context of defamation claims. See Simms v. Sea-
man, 308 Conn. 523, 531, 69 A.3d 880 (2013). The privi-
lege evolved, in part, to protect lawyers from civil
actions for words spoken during the course of legal
proceedings. Id., 533–34. ‘‘Absolute immunity for defam-
atory statements made in the course of judicial proceed-
ings has been recognized by common-law courts for
many centuries and can be traced back to medieval
England.’’ (Emphasis added.) Id., 531. ‘‘The rationale
articulated in the earliest privilege cases was the need
to bar persons accused of crimes from suing their accus-
ers for defamation.’’ Id.
Connecticut has long recognized the litigation privi-
lege, and our Supreme Court has stated that the privi-
lege ‘‘extends to judges, counsel and witnesses
participating in judicial proceedings.’’ (Internal quota-
tion marks omitted.) Id., 537, quoting Blakeslee & Sons
v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894), overruled
in part on other grounds, Peytan v. Ellis, 200 Conn.
243, 510 A.2d 1337 (1986).12 In Blakeslee & Sons, our
Supreme Court explained that the privilege was
‘‘founded upon the principle that in certain cases it is
advantageous for the public interest that persons should
not be in any way fettered in their statements, but
should speak out the whole truth, freely and fearlessly.’’
(Internal quotation marks omitted.) Blakeslee & Sons
v. Carroll, supra, 232.
‘‘It is well settled that communications uttered or
published in the course of judicial proceedings are abso-
lutely privileged [as] long as they are in some way perti-
nent to the subject of the controversy. . . . The effect
of an absolute privilege is that damages cannot be recov-
ered for the publication of the privileged statement
even if the statement is false and malicious.’’ (Citation
omitted; emphasis added; internal quotation marks
omitted.) Gallo v. Barile, 284 Conn. 459, 465–66, 935
A.2d 103 (2007). ‘‘[L]ike the privilege which is generally
applied to pertinent statements made in formal judicial
proceedings, an absolute privilege also attaches to rele-
vant statements made during administrative proceed-
ings which are quasi-judicial in nature.’’ (Emphasis
added; internal quotation marks omitted.) Mercer v.
Blanchette, 133 Conn. App. 84, 90, 33 A.3d 889 (2012).
‘‘Put simply, absolute immunity furthers the public pol-
icy of encouraging participation and candor in judicial
. . . proceedings. This objective would be thwarted if
those persons whom the common-law doctrine was
intended to protect nevertheless faced the threat of
suit.’’ (Internal quotation marks omitted.) Gallo v. Bar-
ile, supra, 466. What this brief history demonstrates is
that the litigation privilege applies to statements made
during the course of a judicial or quasi-judicial pro-
ceeding.
As to the defendant’s claim that she is entitled to
absolute immunity,13 ‘‘[i]t is a long-standing doctrine
that a judge may not be civilly sued for judicial acts he
[or she] undertakes in his [or her] capacity as a judge.
The rationale is that a judge must be free to exercise
his [or her] judicial duties without fear of reprisal,
annoyance or incurring personal liability. . . . Abso-
lute immunity, however, is strong medicine. . . . The
presumption is that qualified rather than absolute
immunity is sufficient to protect government officials
in the exercise of their duties. . . .
‘‘The officers to whom the absolute protections of
judicial immunity extends is limited. This fact reflects
an [awareness] of the salutary effects that the threat of
liability can have . . . as well as the undeniable tension
between official immunities and the ideal of the rule
of law . . . . The protection extends only to those who
are intimately involved in the judicial process, including
judges, prosecutors and judges’ law clerks. Absolute
judicial immunity, however, does not extend to every
officer of the judicial system. . . . Moreover, it is
important to note that even judges do not enjoy absolute
immunity for administrative as opposed to judicial
actions. . . . The determination is made using a func-
tional approach. . . . [I]mmunities are grounded in the
nature of the function performed, not the identity of
the actor who performed it.’’ (Citations omitted; internal
quotation marks omitted.) Lombard v. Edward J.
Peters, Jr., P.C., 252 Conn. 623, 630–32, 749 A.2d 630
(2000).
In 1923, the Connecticut legislature enacted zoning
legislation. See Coombs v. Larson, 112 Conn. 236, 238,
152 A. 297 (1930) (c. 279, § 1, of the 1923 Public Acts
authorized eight cities and towns to appoint zoning
commissions). It has been determined that a zoning
board acts in a quasi-judicial capacity and ‘‘its decisions
are reached only after the presentation of evidence
deemed to warrant such action.’’ Burr v. Rago, 120
Conn. 287, 292, 180 A. 444 (1935). In the case of Kelley
v. Bonney, supra, 221 Conn. 549, our Supreme Court
delineated several factors to be used to determine
whether a proceeding is quasi-judicial in nature. Signifi-
cant among the factors in the present case are ‘‘whether
the body has the power to: (1) exercise judgment and
discretion; (2) hear and determine or to ascertain facts
and decide; (3) make binding orders and judgments;
(4) affect the personal or property rights of private
persons; [or] (5) examine witnesses and hear the litiga-
tion of the issues on a hearing . . . .’’ Id., 567.
Our Supreme Court has stated that ‘‘[h]ow best the
purposes of zoning can be accomplished in any munici-
pality is primarily in the discretion of its zoning author-
ity; that discretion is a broad one; and unless it
transcends the limitations set by law its decisions are
subject to review in the courts only to the extent of
determining whether or not it has acted in abuse of
that discretion.’’ Bartram v. Zoning Commission, 136
Conn. 89, 96, 68 A.2d 308 (1949). ‘‘Courts cannot set
aside the decision of public officers in such a matter
unless compelled to the conclusion that it has no foun-
dation in reason and is a mere arbitrary or irrational
exercise of power having no substantial relation to the
public health, the public morals, the public safety or the
public welfare in its proper sense.’’ (Internal quotation
marks omitted.) St. Patrick’s Church Corp. v. Daniels,
supra, 113 Conn. 136. As previously stated, zoning
boards and their members are to be ‘‘accorded the bene-
fit of a presumption that they act fairly, with proper
motives and upon valid reasons, and not arbitrarily.’’
Id., 139. This decisional history reveals that there are
limits to the discretion of a zoning board. The legislature
codified the limits of a zoning board member’s discre-
tion in § 52-557n (c).
Section 52-557n (c) provides in relevant part: ‘‘Any
person who serves as a member of any . . . commis-
sion . . . of a municipality and who is not compen-
sated for such membership . . . shall not be personally
liable for damage or injury occurring on or after October
1, 1992, resulting from any act, error or omission made
in the exercise of such person’s policy or decision-
making responsibilities on such . . . commission . . .
if such person was acting in good faith, and within
the scope of such person’s official functions and duties,
and was not acting in violation of any state, municipal
or professional code of ethics regulating the conduct
of such person . . . . The provisions of this subsec-
tion shall not apply if such damage or injury was
caused by the reckless, wilful or wanton misconduct
of such person.’’ (Emphasis added.)
On the basis of the plain language of the statute; see
General Statutes § 1-2z; we conclude that that § 52-557n
(c) affords qualified immunity, rather than absolute
immunity, because it expressly excepts from its pur-
view any conduct that is not undertaken in good faith,
that is in violation of any state, municipal or profes-
sional code of ethics, or that is reckless, wilful or wan-
ton. Cf. Chadha v. Charlotte Hungerford Hospital, 77
Conn. App. 104, 113–14, 822 A.2d 303 (2003), aff’d, 272
Conn. 776, 865 A.2d 1163 (2005).14 The language clearly
expresses the legislature’s intent that those whose con-
duct or status puts them within the purview of § 52-
557n (c) should be provided protection from liability,
but that the protection should be limited or qualified.
The defendant has pointed out that the legislative
history of § 52-557n (c) indicates that the purpose of
the statute is to protect uncompensated commission
members from liability for damages arising out of their
decision-making responsibilities and thereby encourage
volunteer participation on municipal boards and com-
missions. In support of her position, the defendant has
quoted the legislative history as it is contained in Stone
v. Newtown, Superior Court, judicial district of Fair-
field, Docket No. CV-01-0381241 (July 5, 2002) (32 Conn.
L. Rptr. 445).15 Although we agree with the defendant
that the legislature’s stated purpose for No. 92-198 of
the 1992 Public Acts was to encourage citizen participa-
tion on municipal boards, it does not provide absolute
immunity. By its terms, the immunity the statute pro-
vides does not apply to reckless, wanton, and wilful
misconduct, conduct performed in bad faith, or ethical
violations.16 The language of § 52-557n (c) clearly
excepts such conduct from the scope of immunity oth-
erwise granted by it.17
In its complaint, the plaintiff alleged that the defen-
dant engaged in ex parte communication with respect
to its applications. ‘‘Our law clearly prohibits the use
of information by a municipal agency that has been
supplied to it by a party to a contested hearing on an
ex parte basis. While proceedings before [municipal
agencies] are informal and are conducted without
regard to the strict rules of evidence . . . nevertheless,
they cannot be so conducted as to violate the fundamen-
tal rules of natural justice. . . . Due process of law
requires that the parties involved have an opportunity
to know the facts on which the [agency] is asked to
act, to cross-examine witnesses and to offer rebuttal
evidence. The [agency] could not properly consider
additional evidence submitted by [a party] after the
public hearing without providing the necessary safe-
guards guaranteed to [an opposing party] and to the
public. This means a fair opportunity to cross-examine
witnesses, to inspect documents presented and to offer
evidence in explanation or rebuttal. . . . Not to do so
would deny those [supporting or] opposing the applica-
tion the right to be fully apprised of the facts on which
the [agency] is asked to act.’’ (Citations omitted; internal
quotation marks omitted.) Norooz v. Inland Wetlands
Agency, 26 Conn. App. 564, 569–70, 602 A.2d 613 (1992).
Given the allegations of wrongdoing the plaintiff leveled
against the defendant—alleged on the basis of Judge
Rittenband’s findings in the plaintiff’s zoning
appeals18—Judge Wiese was bound by § 52-557n (c)
when ruling on the defendant’s motion to dismiss.19
For the foregoing reasons, we conclude that § 52-
557n (c) pertains to whether the Superior Court has
jurisdiction to adjudicate the allegations in the plain-
tiff’s complaint. The trial court in the present case,
therefore, improperly dismissed the plaintiff’s cause of
action for lack of subject matter jurisdiction when it
concluded that the defendant, who had engaged in ex
parte communication and was biased against the plain-
tiff, was protected by the common-law litigation privi-
lege when she participated in the commission’s meeting
to act on the plaintiff’s applications.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
General Statutes § 52-557n (c) provides: ‘‘Any person who serves as a
member of any board, commission, committee or agency of a municipality
and who is not compensated for such membership on a salary or prorated
equivalent basis, shall not be personally liable for damage or injury occurring
on or after October 1, 1992, resulting for any act, error or omission made
in the exercise of such person’s policy or decision-making responsibilities
on such board, commission, committee or agency if such person was acting
in good faith, and within the scope of such person’s official functions
and duties, and was not acting in violation of any state, municipal or
professional code of ethics regulating the conduct of such person, or in
violation of subsection (a) of section 9-369b or subsection (b) or (c) of
section 1-206. The provisions of this subsection shall not apply if such
damage or injury was caused by the reckless, wilful or wanton misconduct
of such person.’’ (Emphasis added.)
2
In the intentional fraudulent misrepresentation count, the plaintiff
alleged, among other things, that the defendant was a member of the commis-
sion at the time it considered the plaintiff’s applications, played a significant
role in the deliberations, and voted to deny the applications. More specifi-
cally, the plaintiff alleged that the defendant was egregiously biased against
it, which bias ‘‘was shown when [she] stated to . . . DiPace that she felt
that the . . . commission had treated her unfairly and ‘screwed her,’ was
unhappy with Patrick Tallarita because he did not intervene on her behalf
and that she wanted him to suffer the same fate of denial by the commission
that she had suffered.’’ (Emphasis added.) The plaintiff also alleged that
the defendant’s bias affected the other members of the commission in that
she raised many negative questions about the applications and the facts
involved and intended to have a major effect on the deliberations and the
subsequent votes at the October 15, 2009 meeting.
The plaintiff further alleged that after the close of the public hearing, but
prior to the commission vote on October 15, 2009, the defendant ‘‘initiated
improper ex parte communications with . . . Meade of the Hazardville
Water Company concerning the plaintiff’s applications . . . .’’ She discussed
water pressure and fire flows with Meade, but did not disclose to the other
members of the board that she had obtained information ex parte by commu-
nicating with Meade. The plaintiff alleged that the defendant’s meeting with
Meade after the close of the public hearing was improper, prejudicial and
unfair. Due to the defendant’s bias demonstrated by her communication
with Meade, an honest, legal and fair action by the commission was not
made. ‘‘[B]y participating in the proceedings on the plaintiff’s applications,
in spite of her bias and improper ex parte communication, [the defendant]
continuously intentionally misrepresented to the plaintiff that she was a
neutral, honest, fair and unbiased member of the commission.’’ (Emphasis
added.) The defendant ‘‘knew that her representations that she was a neutral,
honest, fair and unbiased member of the commission were false and [she]
made these representations to the plaintiff wilfully, wantonly, maliciously
and in reckless disregard of the plaintiff’s rights.’’
3
In the intentional tortious interference with business expectancy count,
the plaintiff alleged, among other things, that the defendant, ‘‘by participating
in the proceedings in spite of her bias against the plaintiff, by making
biased, aggressive and vociferous arguments against the plaintiff’s applica-
tions and by engaging in improper communications ex parte, and by
making fraudulent intentional misrepresentations to the plaintiff, was acting
outside the scope of her authority as a member of the . . . commission
. . . [and] intentionally and tortuously interfered with the relationship
between the plaintiff and the commission and tortuously interfered with
the plaintiff’s expectation that it was investing time, money, and effort into
proceedings that were fair, honest, and legal . . . .’’ (Emphasis added.)
4
On January 17, 2014, the plaintiff filed a motion for partial summary
judgment as to liability only. The trial court, Wiese, J., declined to address
either the defendant’s motion for summary judgment or the plaintiff’s motion
for partial summary judgment on the ground that it lacked subject matter
jurisdiction. On appeal, neither party claims that it was improper for the
court not to have adjudicated the summary judgment motions.
5
In Towne Brooke Development, LLC, Judge Moraghan denied the defen-
dants’ motion for summary judgment because there were genuine issues of
material fact as to whether the defendants had acted with malice, wanton-
ness, or an intent to injure, citing Lapadula v. Middletown, Superior Court,
judicial district of Middlesex, Docket No. 67942-S (August 16, 1994) (where
alleged misconduct involves malice, wantonness or intent to injure, immu-
nity doctrine cannot be invoked successfully). Towne Brooke Development,
LLC v. Fox, supra, Superior Court, Docket No. CV-03-0347962-S.
6
In its objection to the defendant’s motion, the plaintiff claimed that Judge
Rittenband’s determinations of fact support the allegations of its complaint
and that the defendant is collaterally estopped from relitigating those find-
ings in the present action.
7
See MacDermid, Inc. v. Leonetti, 310 Conn. 616, 629, 79 A.3d 60 (2013)
(absolute immunity does not bar action alleging improper use of judicial
process); Simms v. Seaman, 308 Conn. 523, 531, 69 A.3d 880 (2013) (doctrine
developed to bar defamation claims against participants in judicial proceed-
ings); Rioux v. Barry, 283 Conn. 338, 343–44, 927 A.2d 304 (2007) (public
interest in having people speak freely outweighs risk individual will occasion-
ally abuse privilege by making false statements); Chadha v. Charlotte Hun-
gerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005) (communications
uttered in course of judicial proceedings absolutely privileged as long as
they pertain to subject of controversy); DeLaurentis v. New Haven, 220
Conn. 225, 263–64, 597 A.2d 807 (1991) (distinguishing between liability
for words used in pleadings and vexatious litigation claim brought after
unfounded and malicious action).
8
The plaintiff has not challenged the court’s determination that the com-
mission is a quasi-judicial body.
9
Judge Wiese disagreed with the plaintiff’s position that absolute immunity
did not apply in the present case due to the intentional nature of the defen-
dant’s alleged misconduct, stating that the effect of the litigation privilege
is to disallow damages for the publication of a privileged statement, even
if the statement is false and malicious. See Gallo v. Barile, 284 Conn. 459,
466, 935 A.2d 103 (2007). The court examined whether the statements or
conduct attributed to the defendant, as alleged in the complaint, are pro-
tected by absolute immunity under the litigation privilege, noting, as a matter
of law, that the test is ‘‘whether the allegedly [false and malicious] statements
are sufficiently relevant to the issues involved in a proposed or ongoing
judicial [or quasi-judicial] proceeding, so as to qualify for the privilege.’’
(Internal quotation marks omitted.) Id., 467. The court stated that despite
Judge Rittenband’s findings in the zoning appeals, which would defeat
qualified immunity at the summary judgment stage, ‘‘even intentional and
malicious conduct does not defeat absolute immunity.’’ As we conclude in
this opinion, absolute immunity is inapplicable in this case because the
plaintiff alleged that the defendant engaged in ex parte communication
with Meade.
10
The plaintiff also claimed that the misuse of the judicial system is not
protected by the common-law doctrine of absolute immunity, and that the
defendant’s liability is grounded on her internal bias and ex parte communi-
cation, not solely on the statements she made during the subject hearing,
and that Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314,
627 A.2d 909 (1993), approved of tort remedies for the wrongful acts of
commission members. Because we conclude that the court improperly
granted the defendant’s motion to dismiss on the ground of absolute immu-
nity and failed to consider § 52-557n (c), we need not reach the plaintiff’s
additional claims.
11
The plaintiff cited Chadha v. Charlotte Hungerford Hospital, 77 Conn.
App. 104, 114, 822 A.2d 303 (2003), aff’d, 272 Conn. 776, 865 A.2d 1163
(2005), to support its position that absolute immunity had been abrogated.
In Chadha, both this court and our Supreme Court concluded that General
Statutes §§ 19a-20 and 19a-17b abrogated common-law absolute immunity
with respect to statements made in conjunction with quasi-judicial proceed-
ings, such as medical licensure boards and data banks. Chadha v. Charlotte
Hungerford Hospital, supra, 272 Conn. 778–79; Chadha v. Charlotte Hun-
gerford Hospital, supra, 77 Conn. App. 106. However, the misconduct alleged
in the present case is not the defendant’s statements, but her bias and ex
parte communication with Meade. Chadha, therefore, is factually and legally
distinguishable from the present case. The statutes at issue in Chadha
abrogated absolute immunity in favor of qualified immunity with respect to
statements submitted to medical licensure boards and data banks.
12
See DeLaurentis v. New Haven, 220 Conn. 225, 263 n.22, 597 A.2d
807 (1991).
13
In her brief, the defendant cited several cases in which absolute immu-
nity barred certain causes of action. Those cases are distinguishable because
they do not concern municipal commissions or boards and thus do not fall
within the purview of § 52-557n (c), i.e., Simms v. Seaman, supra, 308 Conn.
523 (attorneys in judicial proceedings); Rioux v. Barry, 283 Conn. 338, 342,
927 A.2d 304 (2007) (state police internal investigation); Mercer v. Blanchette,
supra, 133 Conn. App. 86, 88 (defamation claim by Department of Correc-
tion inmate).
14
In Chadha v. Charlotte Hungerford Hospital, supra, 272 Conn. 790, our
Supreme Court concluded, on the basis of the plain language of the statutes
at issue, that the legislature provided qualified immunity to persons who
make statements to medical boards and data banks when it enacted General
Statutes §§ 19a-17b (b) and 19a-20. Chadha and those statutes, however,
concern the litigation privilege, which is not the issue in the present case.
Section 19a-17b (b) provides in relevant part that ‘‘[t]here shall be no
monetary liability on the part of, and no cause of action for damages shall
arise against, any person who provides testimony, information, records,
documents, reports, proceedings, minutes or conclusions to . . . any pro-
fessional licensing board . . . when such communication is intended to aid
in the evaluation of the qualifications, fitness or character of a health care
provider and does not represent as true any matter not reasonably believed
to be true.’’ (Emphasis added.)
Section 19a-20 provides in relevant part that ‘‘[n]o member of any board or
commission . . . including a member of a medical hearing panel established
pursuant to subsection (g) of section 20-8a, and no person making a com-
plaint or providing information to any of such boards or commissions or
the Department of Public Health as part of an investigation pursuant to
section 19a-14, or a disciplinary action pursuant to section 19a-17, shall,
without a showing of malice, be personally liable for damage or injury to
a practitioner arising out of any proceeding of such boards and commissions
or department. . . .’’ (Emphasis added.)
15
In Stone, the plaintiff sustained injuries in the Newtown town hall when
he fell down the stairs. He brought the action against the volunteer members
of the Newtown Board of Managers. Stone v. Newtown, supra, 32 Conn. L.
Rptr. 446. The Board of Managers moved to strike all of the counts against
it and its individual members on the ground that any action against volunteers
was barred by § 52-557n (c). Id. In resolving the motion to strike, the court,
Gallagher, J., cited portions of the legislative history of § 52-557n (c):
‘‘The legislative history provides some insight as to the purpose of the
statute and how it is expected to apply. Representative Looney . . . stated,
‘[t]he bill . . . grants immunity from liability to uncompensated members
of municipal boards, commissions, committees or agencies when [members
are] exercising their policy or decision-making responsibilities and it is
something that has been requested because of the fear and concern that
certain communities have expressed regarding encouraging volunteerism
to serve on boards and commissions in a highly litigious atmosphere in
which we now live.’ [35] H.R. Proc., [Pt. 16] 1992 Sess., pp. 5383–5384. . . .
‘‘In Senate discussions, Senator Jepsen summed up the bill’s purpose
stating ‘[t]his bill grants immunity to unpaid members of municipal boards,
commissions, agencies and committees, who in the good faith exercise of
their duties allotted to them, make mistakes and I think it will encourage
people to serve on a volunteer basis on boards and commissions, a problem
that is growing in many municipalities. I think this legislation is long overdue.
It should be pointed out that this legislation does not exempt anybody from
liability if they violate a professional code of conduct . . . . It merely covers
them for good faith mistakes in the exercise as a volunteer of their own
discretion on a board or commission or committee.’ [35] S. Proc., [Pt. 16]
1992 Sess., pp. 1788.’’ Stone v. Newtown, supra, 32 Conn. L. Rptr. 446–47.
‘‘Rep. Looney stated that a finding of malicious or reckless behavior
would trigger the provisions of [§] 7-101a (b), an indemnity provision which
provides protection for the municipal employee from financial loss and
expense.’’ (Footnote omitted.) Id., 446.
‘‘Legislative Services Director for the Connecticut Conference [of] Munici-
palities, Ji[m] Finley, was in support of the passing of the bill and stated,
‘[o]ur view is that it should be a blanket protection, particularly when you
use as a standard, the [person is] acting in good faith and within the scope
of such [person’s] official functions and duties, unless such a damage or
injury caused by the reckless [behavior] . . . or misconduct.’ Conn. Joint
Standing Committee Hearings, Planning and Development, [Pt. 1] 1992 Sess.,
p. [90–91].’’ (Footnotes omitted.) Stone v. Newtown, supra, 32 Conn. L.
Rptr. 447.
Judge Gallagher concluded, on the basis of the legislative history of § 52-
557n (c), that it does not bar a cause of action against a volunteer board
member. Id.
16
Although decisions of our trial courts are not binding on this court, we
note that at least two trial court decisions have held that common-law
absolute immunity is displaced in certain circumstances by § 52-557n (c),
which provides qualified immunity for uncompensated members of munici-
pal commissions and boards. See Towne Brooke Development, LLC v. Fox,
supra, Superior Court, Docket No. CV-03-0347962-S (citing § 52-577n [c] as
pertinent statute to deny motion for summary judgment for allegations
that members of zoning commission engaged in ex parte communication);
Lapadula v. Middletown, Superior Court, judicial district of Middlesex,
Docket No. 67942-S (August 14, 1994) (no immunity when proceedings
instituted with malicious intent).
17
We note that although § 52-557n (c) concerns the immunity afforded
persons who serve on municipal commissions and boards in an uncompen-
sated capacity, it is consistent with this jurisdiction’s common law regarding
the liability of public officials in general. In Wadsworth v. Middletown, 94
Conn. 435, 439, 109 A. 246 (1920), the court adopted a common-law rule for
the discretionary acts of public officials, to wit: public officials who act
honestly but commit errors of judgment ought not to be ‘‘held responsible
for resultant damage; for the decision is one within their discretion, and
unless they act maliciously, or wantonly, or in abuse of the discretion vested
in them, they ought not to be held liable, and by the weight of authority
cannot be held liable.’’
‘‘Where the discretion has been exercised erroneously but in good faith
through an error of judgment, the public official should not be required to
pay for damages for his acts. The affairs of government cannot be conducted
with absolute exactitude, and public officials cannot be expected to act in
all cases with certain judgment. Timidity and doubt would govern their
performance of public duty if they acted in the consciousness that personal
liability might follow, no matter how closely they followed their best discre-
tion.’’ Id., 440. ‘‘The rule which, on the one hand, fairly protects the abutting
owner, and, on the other, fairly protects the public official in acting in the
line of duty, is that unless he acts maliciously, or wantonly, or in abuse of
the discretion vested in him by law, he shall not be subjected to personal
liability.’’ Id., 441; see also Stiebitz v. Mahoney, 144 Conn. 443, 448, 134
A.2d 71 (1957). In Wadsworth, the defendant public official who oversaw
the cutting of the plaintiff’s trees was found liable for the damage because
he permitted the plaintiff’s property to be destroyed ‘‘not through mere
error of judgment, but through a failure to exercise not merely reasonable
discretion but any discretion.’’ Wadsworth v. Middletown, supra, 94
Conn. 441.
18
See footnote 6 of this opinion.
19
In fact, Judge Wiese found that the findings in the administrative appeal
‘‘would almost certainly defeat qualified immunity at the summary judg-
ment stage.’’