Scholz v. Epstein

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STEPHEN W. SCHOLZ v. JUDA J. EPSTEIN
(SC 20492)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
The plaintiff, S, sought to recover damages from the defendant attorney for
alleged statutory (§ 52-564) theft in connection with the defendant’s
conduct during prior judicial proceedings involving the foreclosure of
a municipal lien filed against S’s real property. The defendant, acting
as B Co.’s attorney, commenced the prior action to foreclose the lien,
which B Co. had purchased from a municipality. During the foreclosure
action, S was defaulted for failure to appear, and the court thereafter
rendered a judgment of strict foreclosure. After the running of the law
days, and approximately six months after title vested in B Co., the
defendant filed a certificate of foreclosure in the municipal land records.
B Co. subsequently sold the property to a third party. S alleged in the
present action that the defendant, with the intent to deprive S of his
property or to appropriate the property to B Co., had perpetrated a
fraud on the trial court during the foreclosure proceedings by knowingly
making materially false representations about the state marshal’s inabil-
ity to serve process on S and about the value of S’s property, which
purportedly led the court to render the foreclosure judgment. The trial
court granted the defendant’s motion to dismiss the present action for
lack of subject matter jurisdiction, concluding that, because all of the
defendant’s alleged conduct occurred during the foreclosure proceed-
ings, S’s statutory theft claim was barred by the litigation privilege,
which affords attorneys absolute immunity from liability for certain
statements made or conduct during judicial proceedings. The Appellate
Court affirmed the trial court’s judgment, concluding that all of the
defendant’s allegedly wrongful conduct occurred within the underlying
foreclosure proceedings and that the balancing of policy considerations
weighed in favor of applying absolute immunity to S’s claim of statutory
theft. On the granting of certification, S appealed. Held:
1. The Appellate Court correctly determined that the litigation privilege
afforded the defendant absolute immunity from liability for statutory
theft, this court having concluded, after considering the underlying pur-
pose of the judicial proceedings, the similarity between statutory theft
and claims of defamation and fraud, and the availability of other reme-
dies, that the policy considerations raised by the parties supported
applying absolute immunity to S’s statutory theft claim:
a. S’s statutory theft claim did not challenge or subvert the purpose
of the underlying foreclosure proceeding but, instead, challenged the
defendant’s role as an advocate for his client, B Co., in a judicial proceed-
ing, which S acknowledged was properly brought in light of his failure
to pay his property taxes, and the litigation privilege absolutely bars
causes of action arising from attorney advocacy; moreover, it was clear
from the elements of statutory theft, which requires a plaintiff to establish
that the defendant stole the plaintiff’s property or received and concealed
stolen property, that S’s claim of statutory theft did not challenge the
purpose of the underlying foreclosure proceeding; furthermore, S’s statu-
tory theft claim was premised on the defendant’s allegedly false or mis-
leading communications to the court during that proceeding, and
communication is a necessary advocacy tool that the litigation privilege
protects, regardless of the false or malicious nature of the communi-
cation.
b. The fact that S’s statutory theft claim was more akin to claims of
defamation and fraud, which are protected by the litigation privilege,
than to claims of vexatious litigation and abuse of process, which are
not protected by the litigation privilege, militated in favor of applying
the privilege in the present case: S’s statutory theft claim, like a defama-
tion claim, was premised on the communication of false statements, and
S alleged that the defendant fraudulently took his property by false
pretenses, which constitutes statutory theft under this court’s case law
interpreting § 52-564; moreover, it was of no consequence that the defen-
dant made the false statements at issue to a court rather than to S
himself, as the plaintiff’s statutory theft claim was nonetheless premised
on false communications.
c. Certain alternatives, other than civil liability, including the filing of a
grievance against the defendant or a collateral action challenging the
defendant’s allegedly fraudulent actions, were available to the plaintiff
to address the defendant’s alleged conduct; moreover, the plaintiff did
not cite to any federal or state precedent holding that absolute immunity
does not apply to a claim of statutory theft or a similar type of claim.
2. The plaintiff could not prevail on his claim that, even if the litigation
privilege applies to claims of statutory theft, it was inapplicable in the
present case to the extent that the defendant’s delayed recording of the
certificate of foreclosure on the land records and his role in the subse-
quent sale of the property purportedly occurred outside the scope of
the foreclosure action: the defendant, in his capacity as B Co.’s attorney
in the foreclosure proceeding, was required by statute (§ 49-16) to record
the foreclosure certificate on the land records, and, thus, that act was
conducted in connection with, and as a required step in, the foreclosure
proceeding; moreover, with respect to the defendant’s conduct in
assisting B Co. with the sale of the property, although the plaintiff alleged
that B Co. had ultimately sold the property to a third party, the plaintiff
did not allege that the defendant was involved in the sale of the property
in any way or that he otherwise committed statutory theft in relation
to that sale.
Argued April 28—officially released September 29, 2021*
Procedural History
Action to recover damages for the defendant’s alleged
theft, and for other relief, brought to the Superior Court
in the judicial district of Fairfield, where the court,
Bellis, J., granted the defendant’s motion to dismiss and
rendered judgment thereon, from which the plaintiff
appealed to the Appellate Court, Alvord, Elgo and Eve-
leigh, Js., which affirmed the trial court’s judgment;
thereafter, the plaintiff, on the granting of certification,
appealed to this court. Affirmed.
Jonathan J. Klein, for the appellant (plaintiff).
Daniel J. Krisch, with whom, on the brief, were
Joshua M. Auxier and Stephen P. Fogerty, for the appel-
lee (defendant).
Opinion
D’AURIA, J. In this certified appeal, we are asked to
determine the scope of the litigation privilege, which
provides absolute immunity from liability, in relation
to a lawyer’s conduct in a foreclosure proceeding. The
plaintiff, Stephen W. Scholz, appeals from the Appellate
Court’s judgment affirming the trial court’s dismissal
of the statutory theft claim he brought against the defen-
dant, Juda J. Epstein, for lack of subject matter jurisdic-
tion on the ground of absolute immunity. Epstein, an
attorney licensed to practice law in Connecticut, repre-
sented Benchmark Municipal Tax Services, Ltd. (Bench-
mark), in the underlying foreclosure proceeding. The
plaintiff claims that, under the circumstances of this
case, the Appellate Court incorrectly concluded that
the defendant enjoyed absolute immunity from the
plaintiff’s claim of statutory theft, specifically, by
determining that (1) public policy considerations were
served by affording the defendant this immunity, and
(2) all of the defendant’s alleged conduct occurred
within the scope of the underlying foreclosure proceed-
ing. We disagree and affirm the judgment of the Appel-
late Court.
As alleged in the plaintiff’s complaint, the following
facts, viewed in the light most favorable to the plaintiff,
and procedural history are relevant to our review of
this claim. The plaintiff resides at 405 Helen Street in
Bridgeport and became the owner of an adjacent lot
located at 744 Stillman Street in Bridgeport (Stillman
property). The plaintiff uses these two properties
together to operate his business, which includes the
storing, repair, and resale of industrial equipment. When
the plaintiff failed to pay $1018.74 in real property taxes
on the Stillman property owed to the city of Bridgeport
(city), the city recorded a certificate of lien on the
land records for the unpaid taxes, interest and related
charges. The city subsequently sold the lien to Bench-
mark pursuant to an assignment recorded on the
land records.
The defendant, acting as Benchmark’s attorney,
began a civil action against the plaintiff to foreclose
the lien. The summons recited the plaintiff’s address
as 69 Settlers Farm Road, Monroe, CT 06468. The state
marshal’s return of service did not reflect that service
was made on the plaintiff. Further, the return of service
did not describe any effort by the state marshal to locate
the plaintiff, or any attempt to effect service on him,
notwithstanding that the defendant himself knew through-
out the foreclosure proceeding that the plaintiff resided
at 405 Helen Street.1
The defendant then cited in the plaintiff as a defen-
dant in the foreclosure proceeding, representing the
following to the trial court: ‘‘[1] at the time the action
was commenced, he believed that . . . [the plaintiff]
had been properly served; [2] [the plaintiff] was unable
to be served; [3] [the defendant] directed a state marshal
to effectuate service [on the plaintiff], but [the plaintiff]
was not at any of the ‘possible locations’; [4] [the defen-
dant] had done his due diligence in trying to locate [the
plaintiff], but ‘all possible locations’ had been exhausted
. . . [5] the notice most likely to come to the attention
of [the plaintiff] was the publication of an order of
notice of the institution of the foreclosure action in
the Connecticut Post, a newspaper circulated in the
Bridgeport area, once a week for two successive weeks;
and [6] ‘the last known address of [the plaintiff] is
unknown.’ ’’ All of these claims ‘‘were materially false,
and [the defendant] knew [they] were materially false
when he made them’’ because he knew that the mar-
shal’s return of service did not reflect that any service
was made on the plaintiff, that the return of service did
not describe any effort made by the marshal to locate
the plaintiff, the possible locations where the plaintiff
could have been found, and that the plaintiff resided,
and could have been properly served, at 405 Helen
Street in Bridgeport. The trial court subsequently
ordered notice by publication.
Approximately one month later, the defendant filed
a motion to default the plaintiff for failure to appear,
which was granted. As a result, the plaintiff alleges that
the defendant perpetrated ‘‘a fraud [on] the court’’ by
‘‘knowingly making materially false representations to
the court with the intent to induce and cause the court
to rely on those statements to order notice by publica-
tion and, ultimately, to default [the plaintiff] for failure
to appear and to [render] a judgment of strict fore-
closure.’’
The defendant then moved for a judgment of strict
foreclosure. According to the complaint, the defendant
sought a judgment of strict foreclosure, rather than a
foreclosure by sale, by misleading the court as to the
plaintiff’s equity in the Stillman property based on a
flawed appraisal report, which stated that the plaintiff’s
equity was tens of thousands of dollars less than it truly
was. The court granted the motion for a judgment of
strict foreclosure.
The plaintiff alleged that, ‘‘[b]y wrongfully misleading
the court into [rendering] a judgment of strict foreclo-
sure, rather than a judgment of foreclosure by sale,
[the defendant] purposefully evaded the requirement
of posting a sign on the property within a few feet of
the front door of [the plaintiff’s] residence at 405 Helen
Street . . . announcing a scheduled foreclosure auc-
tion sale, and thereby purposefully deprived [the plain-
tiff] of notice that a foreclosure of the property was
pending, and purposefully deprived him of the opportu-
nity to redeem the property from the foreclosure or
otherwise to act to protect his ownership interest in
the property.’’
After the running of the law days and Benchmark’s
taking title to the property, the defendant drafted a
certificate of foreclosure but did not record the certifi-
cate of foreclosure in the Bridgeport land records until
approximately six months after title had vested in
Benchmark. This delay, the plaintiff alleged, resulted
in the town’s issuing of the real property tax bill to him,
not Benchmark, depriving him of an opportunity to
learn of the property’s sale. Benchmark then sold the
property to a third party for approximately three times
the fair market price listed in the appraisal report.
As a result of this conduct, the plaintiff alleged that
‘‘[he] was unaware . . . that the tax lien foreclosure
action had even been commenced, let alone that it had
gone to judgment, that the law days had run, that Bench-
mark had taken title to the property by strict foreclosure
and that Benchmark had sold the property to third
parties for a windfall profit . . . .’’ When the plaintiff
discovered that the property had been sold, he bought
back the property because he operated a business on
both the property at 405 Helen Street and the Stillman
property and feared his business and livelihood might
be destroyed by the loss of the Stillman property.
Accordingly, the plaintiff alleged that the defendant
‘‘wrongfully engaged in the conduct alleged . . . with
the intent to deprive [him] of his property and/or to
appropriate the property to Benchmark, thereby com-
mitting [statutory] theft in violation of [General Stat-
utes] § 52-564, and causing [him] great financial loss.’’
The defendant moved to dismiss the plaintiff’s action
for lack of subject matter jurisdiction. He argued that,
because all of the alleged conduct occurred during the
foreclosure proceeding, the litigation privilege shielded
him from the plaintiff’s statutory theft claim. The plain-
tiff opposed the defendant’s motion, arguing that his
claim of statutory theft fell outside the scope of the
litigation privilege. The trial court granted the defen-
dant’s motion to dismiss.
The plaintiff appealed to the Appellate Court, which
affirmed the judgment of the trial court, holding that
(1) the balancing of policy considerations, as required
under Simms v. Seaman, 308 Conn. 523, 543–44, 69
A.3d 880 (2013), weighed in favor of applying absolute
immunity to the plaintiff’s claim of statutory theft, and
(2) all the alleged conduct occurred within the underly-
ing foreclosure proceeding. Scholz v. Epstein, 198 Conn.
App. 197, 231–33, 232 A.3d 1155 (2020). The plaintiff
then petitioned this court for certification to appeal,
which we granted, limited to the following issue: ‘‘Under
the circumstances of this case, did the Appellate Court
correctly conclude that the defendant attorney enjoyed
absolute immunity from the plaintiff’s claim of statutory
theft, arising from the defendant’s conduct during prior
judicial proceedings?’’ Scholz v. Epstein, 335 Conn. 943,
237 A.3d 2 (2020).
‘‘When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss . . . a court must
take the facts to be those alleged in the complaint,
including those facts necessarily implied from the alle-
gations, construing them in a manner most favorable
to the pleader.’’ (Internal quotation marks omitted.)
MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d
60 (2013). We review de novo a trial court’s decision
on a motion to dismiss under Practice Book § 10-30 (a)
(1). See, e.g., id. The parties do not dispute that absolute
immunity implicates the trial court’s subject matter juris-
diction.See, e.g., Tyler v. Tatoian, 164 Conn. App. 82,
87, 137 A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d
710 (2016); see also Chadha v. Charlotte Hungerford
Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005) (like
colorable claim of sovereign immunity, to protect
against threat of suit, colorable claim of absolute immu-
nity based on participation in judicial and quasi-judicial
proceedings gives rise to immediately appealable final
judgment). Whether absolute immunity applies to the
cause of action at issue is a question of law subject to
de novo review. See, e.g., Simms v. Seaman, supra, 308
Conn. 530.
I
We begin with an overview of our case law regarding
absolute immunity and, specifically, its application to
attorney conduct. For more than one century, this court
has held that, under the litigation privilege, ‘‘[a]n attor-
ney at law is absolutely privileged to publish defamatory
matter concerning another in communications prelimi-
nary to a proposed judicial proceeding, or in the institu-
tion of, or during the course and as a part of, a judicial
proceeding in which he participates as counsel, if it has
some relation to the proceeding.’’ (Footnotes omitted;
internal quotation marks omitted.) Id., 535. In Simms,
this court addressed in great detail the issue of whether
absolute immunity extends beyond defamation claims
for an attorney’s conduct during judicial proceedings.
In that case, the plaintiff sued the defendant attorneys,
alleging fraud and intentional infliction of emotional
distress based on their conduct during a judicial pro-
ceeding. Id., 525. Specifically, the plaintiff in Simms
claimed that the attorneys, who represented his former
spouse during their divorce action, failed to disclose
and intentionally concealed her true financial circum-
stances to obtain a substantial alimony award in her
favor. Id., 526–27. Arguing that absolute immunity
barred those particular tort claims, the defendants
moved to strike those claims. Id., 528. The trial court
agreed and granted the motion, and the Appellate Court
affirmed the judgment of the trial court. Id., 528–29.
On appeal to this court, we detailed the history of
the litigation privilege, explaining that ‘‘[t]hree ratio-
nales have been articulated in support of the absolute
privilege.’’ Id., 535. The most important is that the privi-
lege ‘‘protects the rights of clients who should not be
imperiled by subjecting their legal advisors to the con-
stant fear of lawsuits arising out of their conduct in
the course of legal representation.’’ (Internal quotation
marks omitted.) Id. ‘‘The purpose of affording absolute
immunity to those who provide information in connec-
tion with judicial and quasi-judicial proceedings is that
in certain situations the public interest in having people
speak freely outweighs the risk that individuals will
occasionally abuse the privilege by making false and
malicious statements.’’ (Internal quotation marks omit-
ted.) Id., 539. Additionally, the privilege protects access
to the courts inasmuch as ‘‘retaliatory lawsuits [that
might] cause the removal of [an] adversary’s counsel’’
would compromise the judicial process, and there exist
other remedies, such as the court’s contempt powers
and other disciplinary proceedings, to deter attorney
misconduct. Id., 535–36.
We explained in Simms, however, that there are lim-
its to the application of the litigation privilege to attor-
ney conduct and communications. Id., 540. Specifically,
attorneys are not protected by absolute immunity
against claims for abuse of process, vexatious litigation,
or malicious prosecution. Id., 540–42. This is because
‘‘whether and what form of immunity applies in any
given case is a matter of policy that requires a balancing
of interests . . . .’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) Id., 541–42.
Relevant to any determination of whether policy con-
siderations support applying absolute immunity to any
particular cause of action, this court in Simms identi-
fied the following factors: (1) whether the alleged con-
duct subverts the underlying purpose of a judicial
proceeding, in a similar way to how conduct constitut-
ing abuse of process and vexatious litigation does; (2)
whether the alleged conduct is similar in essential
respects to defamatory statements, inasmuch as a defa-
mation action is barred by the privilege; and (3) whether
the alleged conduct may be adequately addressed by
other available remedies. Id., 545, 552. To assist us in
our evaluation of these factors, to the extent applicable,
we have considered as persuasive whether the alleged
conduct has been protected by the litigation privilege
in federal courts. Id., 545–46.
Since deciding Simms, this court has clarified that
these factors and considerations are ‘‘simply instruc-
tive,’’ with the focus being on ‘‘the issues relevant to
the competing interests in each case’’ in light of the
‘‘particular context’’ of the case.2 (Internal quotation
marks omitted.) MacDermid, Inc. v. Leonetti, supra,
310 Conn. 630–31. We are not required to rely exclu-
sively or entirely on these factors; rather, they are useful
when undertaking a careful balancing of all competing
public policies implicated by the specific claim at issue
and determining whether affording attorneys this com-
mon-law immunity from this common-law action is war-
ranted.3 After evaluating the various policy concerns
raised by the parties in the present case, we conclude
that the litigation privilege applies to the plaintiff’s claim
of statutory theft.
II
The plaintiff claims that the Appellate Court improp-
erly balanced competing public policy factors in con-
cluding that absolute immunity barred his statutory
theft claim. As the parties and the Appellate Court have
noted, there is no appellate authority from this state
regarding whether absolute immunity protects against
this kind of claim,4 and the plaintiff has alleged a unique
kind of tort against the defendant, who served as oppos-
ing counsel in the underlying litigation. Scholz v.
Epstein, supra, 198 Conn. App. 211–12. As a result, we
must examine our case law, and the policies underpin-
ning it, to determine whether the plaintiff’s claim is
more akin to claims of vexatious litigation and abuse
of process, to which this court has not afforded absolute
immunity, or to claims of fraud and defamation, to
which this court has afforded absolute immunity. We
conclude that all factors—those considered in Simms
and those unique to this case—weigh in favor of
applying the litigation privilege to bar the plaintiff’s
claim in the present case.
A
The plaintiff argues that his statutory theft claim, like
a claim of vexatious litigation, alleges conduct
amounting to an abuse of a judicial proceeding. He
claims that the defendant subverted the proper purpose
of the foreclosure proceeding, abusing it and weaponiz-
ing it as a tool to steal the plaintiff’s property for Bench-
mark. According to the plaintiff, his claim, unlike claims
of fraud and defamation, does not involve the allegedly
improper conduct of an attorney in the role of an advo-
cate for a client, which is protected by absolute immu-
nity, because theft is a crime of dishonesty, not a
legitimate tool of advocacy. Theft, he argues, is the
‘‘very antithesis of candor in judicial proceedings,’’ and,
thus, there is no need to immunize the defendant to
encourage participation and candor in judicial pro-
ceedings.
When determining whether a plaintiff’s claim chal-
lenges the purpose of the underlying judicial proceed-
ing, we have distinguished between claims challenging
the underlying purpose of the litigation and claims chal-
lenging the attorney’s role as an advocate for her or his
client. See Simms v. Seaman, supra, 308 Conn. 546.
‘‘[W]e have refused to apply absolute immunity to
causes of action alleging the improper use of the judicial
system’’ but have applied immunity to claims premised
on factual allegations that challenge the defendant’s
participation in a properly brought judicial proceeding.
MacDermid, Inc. v. Leonetti, supra, 310 Conn. 629. The
former involves the improper use of the courts ‘‘to
accomplish a purpose for which [the courts were] not
designed’’ and is therefore not protected by the litiga-
tion privilege. (Internal quotation marks omitted.)
Simms v. Seaman, supra, 546. The latter does not
involve consideration of whether the underlying pur-
pose of the litigation was improper and, thus, is entitled
to absolute immunity, even if the plaintiff alleges that
the attorney’s conduct constituted an improper use of
the courts. Id., 546–47. That is to say, it is not enough
for the plaintiff to allege that the misconduct at issue
constituted an abuse of the legal system, but, rather,
the cause of action itself must challenge the purpose
of the underlying litigation. Tyler v. Tatoian, supra,
164 Conn. App. 93. Thus, the privilege absolutely bars
causes of action arising from attorney advocacy. See,
e.g., MacDermid, Inc. v. Leonetti, supra, 628.
For example, in Simms, although the plaintiff alleged
that the defendants’ conduct was improper—the alleged
fraud done on behalf of the client for her financial
benefit to his financial detriment—his fraud claim did
not challenge the purpose of the underlying divorce
proceeding, and, thus, we held that the plaintiff’s fraud
claim merely challenged the defendants’ conduct while
representing or advocating for a client, conduct for
which they were absolutely immune. In determining
whether the privilege applied in Simms, we did not
assess whether the alleged misconduct was proper
advocacy but, rather, noted that the purpose of the
privilege is to provide immunity from having to defend
such advocacy decisions, even if that means immunity
occasionally applies to misconduct. See Simms v. Sea-
man, supra, 308 Conn. 539, 546–47 and n.14.
Thus, in determining whether the plaintiff’s claim
challenges the purpose of an underlying judicial pro-
ceeding, we look at the elements of the claim itself.
See id., 542–43; see also MacDermid, Inc. v. Leonetti,
supra, 310 Conn. 633–34. Unlike claims for vexatious
litigation and abuse of process, the elements of statu-
tory theft do not anticipate a challenge to an underlying
judicial proceeding but, rather, require that the plaintiff
establish that the defendant stole his property or
received and concealed stolen property. See General
Statutes § 52-564; see also part II B of this opinion. It
is clear from the elements of the cause of action that
the plaintiff’s claim of statutory theft does not challenge
the purpose of the underlying judicial proceeding.
The plaintiff admits that the underlying foreclosure
proceeding was properly brought because he had not
paid taxes on his property. Nevertheless, he argues that
his claim does challenge the purpose of the underlying
proceedings because he alleges that, through the
alleged misconduct, the defendant hijacked the judicial
proceedings for a purpose other than that for which they
were intended.5 Not only does this argument improperly
focus on the allegations rather than the cause of action,
but this argument, if correct, would render this privilege
meaningless. Misconduct in a properly brought judicial
proceeding will presumably always affect the underly-
ing proceeding. See Simms v. Seaman, supra, 308 Conn.
547 n.14 (‘‘virtually all claims of misconduct during judi-
cial proceedings, including defamation, allege some
type of ‘serious or corruptive’ effect on the judicial
process, and, therefore, any attempt to assess and com-
pare the relative degree of harm caused by different
types of misconduct is not very useful in determining
whether the privilege should apply in the present case’’).
If we were to agree with the plaintiff that such conduct
constituted an abuse of the judicial proceeding, the
litigation privilege would be essentially void. Thus,
unlike a vexatious litigation or abuse of process claim,
the plaintiff’s statutory theft claim fails to challenge the
underlying purpose of the litigation.
Of course, we do not condone theft as a legitimate
tool of advocacy. As we said in Simms, such conduct
is ‘‘strongly discouraged’’; id., 545; but, if such conduct
were not immune from liability, ‘‘the most innocent of
counsel might be unrighteously harassed with suits, and
therefore it is better to make the rule of law so large
that an innocent counsel shall never be troubled,
although by making it so large counsel are included who
have been guilty of malice and misconduct.’’ (Internal
quotation marks omitted.) Id., 533–34. As discussed in
more detail subsequently in this opinion, the plaintiff’s
claim is premised on the defendant’s allegedly false or
misleading communications to the court in the underly-
ing foreclosure proceeding. Communication is a neces-
sary advocacy tool that the litigation privilege protects,
regardless of its false or malicious nature, thereby pro-
moting candor in judicial proceedings. See Hopkins v.
O’Connor, 282 Conn. 821, 838–39, 925 A.2d 1030 (2007).
Thus, the plaintiff’s statutory theft claim does not chal-
lenge the purpose of an underlying judicial proceeding.
B
The plaintiff argues that our public policy weighs
against applying the litigation privilege to bar his claim
of statutory theft because ‘‘it involves a series of calcu-
lated acts of dishonesty [that] go far beyond, and are
much more sinister than, mere defamatory statements.’’
To distinguish his statutory theft claim from the tort of
defamation, the plaintiff points out that theft involves
criminal conduct and requires proof of specific intent,
which, according to him, ‘‘is quantitatively and qualita-
tively more stringent than simply proving a malicious
purpose.’’ The plaintiff also argues that, unlike defama-
tion, statutory theft is not premised on communication,
and the Appellate Court improperly focused on the
defendant’s lying to the trial court rather than on the
defendant’s stealing from the plaintiff. Finally,
addressing the court’s concern in Simms about increased
litigation, he argues that, rather than claims of statutory
theft opening the floodgates to retaliatory litigation,
attorneys who properly serve process in a foreclosure
proceeding would have nothing to fear. In fact, he
argues, by affording immunity as to his statutory theft
claim, we would open a different kind of floodgate by
immunizing thieving attorneys. We disagree.
In considering the plaintiff’s arguments, it is helpful
to examine how we analyzed a similar argument in
Simms in relation to a claim of fraud. Specifically, this
court in Simms compared the elements of fraud to the
elements of defamation6 and vexatious litigation.7 In
doing so, we considered whether the plaintiff’s fraud
claim was premised on communication of a false state-
ment, like a defamation claim; Simms v. Seaman, supra,
308 Conn. 548; whether embedded in a fraud claim is
a balancing test with stringent safeguards that protect
against inappropriate retaliatory litigation while incen-
tivizing the reporting of wrongdoing, like a vexatious
litigation claim; id., 549; whether the fraud claim was
easy to allege but difficult to prove, like defamation
claims; id.; and whether, as with defamation claims, not
recognizing the litigation privilege for such an action
would ‘‘open the floodgates to a wave of litigation in this
state’s courts challenging an attorney’s representation,
especially in foreclosure and marital dissolution actions
in which emotions run high and there may be a strong
motivation on the part of the losing party to file a retalia-
tory lawsuit.’’ Id., 568. In Simms, after considering these
issues, we came down firmly on the side of applying
the litigation privilege to a fraud claim against an attor-
ney. See id., 568–69. We conclude similarly in the pres-
ent case that the plaintiff’s statutory theft claim has
more in common with a defamation claim than an abuse
of process, vexatious litigation or malicious prosecu-
tion claim, which therefore militates in favor of applying
the privilege.
The elements of a claim of statutory theft under § 52-
564 provide that ‘‘[a]ny person who steals any property
of another, or knowingly receives and conceals stolen
property, shall pay the owner treble his damages.’’ This
court has explained that ‘‘[s]tatutory theft under . . .
§ 52-564 is synonymous with larceny [as defined in]
General Statutes § 53a-119 . . . .’’ (Citation omitted;
internal quotation marks omitted.) Stuart v. Stuart, 297
Conn. 26, 41, 996 A.2d 259 (2010). The definition of
larceny under § 53a-119 includes various fraudulent
methods of taking property from its owner, including
when a person obtains property by false pretenses.8
Contrary to the plaintiff’s assertion, his statutory theft
claim, like a defamation claim, is premised on the com-
munication of false statements. Although § 52-564 does
not specifically mention communications, we must con-
sider not only the elements of the cause of action but
also whether the complaint contains ‘‘allegations that
a party suffered harm because of a falsehood communi-
cated by the opponent’s attorney . . . .’’ Simms v. Sea-
man, supra, 308 Conn. 548; see also Bruno v. Travelers
Cos., 172 Conn. App. 717, 727, 161 A.3d 630 (2017). The
allegations in the plaintiff’s complaint make clear that
he is claiming that the defendant stole his property by
making various false communications and misrepresen-
tations to the trial court. In other words, the plaintiff’s
complaint plainly alleges that the defendant fraudu-
lently took his property by false pretenses, which con-
stitutes statutory theft under our case law interpreting
§ 52-564. See, e.g., Stuart v. Stuart, supra, 297 Conn.
41 and n.10.
This court consistently has held that communications
are afforded immunity if they are ‘‘uttered or published
in the course of judicial proceedings’’ and are ‘‘in some
way pertinent to the subject of the controversy.’’9 (Inter-
nal quotation marks omitted.) Hopkins v. O’Connor,
supra, 282 Conn. 830–31. For example, ‘‘[t]he privilege
extends to pleadings and other papers made a part of
a judicial or quasi-judicial proceeding’’; (internal quota-
tion marks omitted) id., 833; as long as the statements
are sufficiently relevant to the issues involved in a pro-
posed or ongoing judicial proceeding, with the test for
relevancy described as ‘‘generous . . . .’’ Id., 839. This
is true even if the communication is false or malicious.
Id., 838–39. In light of the elements of statutory theft
and the specific claim of statutory theft raised in the
present case, we conclude that the plaintiff’s claim of
statutory theft is more analogous to a claim of fraud
or defamation, as opposed to a claim of vexatious litiga-
tion or abuse of process, because it is premised on the
communication of false or misleading statements.
The plaintiff maintains, to the contrary, that his claim
is not premised on the communication of false or mis-
leading statements. Rather, he argues that it is the defen-
dant’s conduct in relation to him, not the defendant’s
conduct in relation to the trial court, that is pertinent,
and he does not allege that the defendant made any
false communications to him. It is true that theft does
not necessarily involve false communications and that
the only conduct alleged to have been taken against
the plaintiff by the defendant is the theft. None of the
alleged false communications and misrepresentations
was made directly to the plaintiff.
But, as discussed, the specific theft the plaintiff alleged
here is premised on these false communications and
misrepresentations because the defendant allegedly
perpetrated the theft by means of the communications.
The plaintiff’s complaint clearly concludes that the
defendant’s alleged false communications and misrep-
resentations to the trial court resulted in the defendant’s
stealing his property. Without these allegations, the
plaintiff’s complaint would consist of only the legal
conclusion that theft occurred, without describing how
it occurred. Thus, the fact that the defendant made these
false statements to the trial court, not to the plaintiff,
does not affect our analysis, because the statutory theft
claim is premised on these communications.
The plaintiff’s statutory theft claim also is distinguish-
able from a vexatious litigation claim because the ele-
ments of the claim do not provide any safeguards to
prevent inappropriate retaliatory litigation. See foot-
note 2 of this opinion. Unlike a claim of vexatious litiga-
tion,10 a claim of statutory theft does not provide the
same level of protection against the chilling effects of
a potential lawsuit. For example, the elements of statu-
tory theft contain nothing similar to the requirement
that the underlying proceeding terminated in the plain-
tiff’s favor; nor is there a requirement that the court
decide that the defendant lacked probable cause to
bring the proceeding. Rather, as with a claim of fraud,
‘‘the mere possibility’’ of a claim of statutory theft prem-
ised on obtaining property by false pretenses ‘‘could
expose attorneys to harassing and expensive litigation,
[and] would be likely to inhibit their freedom in making
good faith evidentiary decisions and representations
and, therefore, [could] negatively affect their ability to
act as zealous advocates for their clients.’’ (Footnote
omitted.) Simms v. Seaman, supra, 308 Conn. 551.
The plaintiff responds that a claim of statutory theft
does in fact contain stringent requirements that balance
competing policy considerations because it requires
proof of specific intent. Contrary to the plaintiff’s asser-
tion, however, this intent element does not make the
plaintiff’s claim distinguishable and unique, as this court
has applied absolute immunity to other torts that have
specific intent elements, such as fraud and tortious
interference.11 See id., 548; Rioux v. Barry, 283 Conn.
338, 351, 927 A.2d 304 (2007). Additionally, the fact that
specific intent is difficult to prove makes a claim of
statutory theft similar to claims of defamation and
fraud—it is easy to allege but difficult to prove. A dis-
gruntled litigant could easily bring a claim for statutory
theft to falsely allege that an attorney’s improper con-
duct affected the outcome of the litigation and, thus,
led to property changing hands—either because of a
judgment of foreclosure or an award for damages. Thus,
a statutory theft claim does not have built-in safeguards
in place similar to those built into a claim of vexa-
tious litigation.
The plaintiff maintains that his statutory theft claim
is different from a defamation or fraud claim in that ‘‘it
involves a series of calculated acts of dishonesty
. . . .’’ All of these claims, however, are premised on
false communications. This court has held that absolute
immunity applies even if communications are false or
malicious. See Simms v. Seaman, supra, 308 Conn.
539–40. We have never suggested that the degree of
dishonesty is a relevant factor. Moreover, the alleged
dishonesty in this case is similar to that alleged in
Simms. In both cases, the plaintiffs alleged that the
defendants made knowingly false representations to
the trial court to the plaintiffs’ financial detriment. See
id., 526–27. In Simms, the trial court granted the defen-
dant a substantial alimony award; see id., 526; and,
in the present case, the plaintiff had to buy back his
property. See Perugini v. Giuliano, 148 Conn. App.
861, 872–75, 89 A.3d 358 (2014) (holding that absolute
immunity barred claim of negligent infliction of emo-
tional distress, even though alleged misconduct by
defendant attorney was for purpose of personal finan-
cial gain, because claim did not challenge purpose of
underlying proceeding and was premised on communi-
cations within judicial proceeding); Stone v. Pattis, 144
Conn. App. 79, 96, 99, 72 A.3d 1138 (2013) (holding
that absolute immunity applied to defendant attorneys’
conduct, even though alleged conduct involved decep-
tion, unfairness, and negligence).12
Accordingly, we hold that the plaintiff’s statutory
theft claim is more akin to claims of defamation and
fraud than to claims of vexatious litigation and abuse
of process.
C
We now turn to the final factor in determining
whether the alleged conduct may be addressed by other
available remedies. In Simms, we found it significant
that there were safeguards in place, other than civil
liability, to deter or prevent attorney misconduct or to
provide relief from that misconduct. Simms v. Seaman,
supra, 308 Conn. 552.13 The plaintiff argues that these
remedies either were not available to him or are not
adequate remedies in the present case because they
cannot sufficiently compensate him for the defendant’s
improper conduct.
For example, although he recognizes that he could
have brought a collateral proceeding to challenge the
defendant’s allegedly fraudulent actions,14 the plaintiff
argues that this remedy would not have been swift
enough for him to regain his property and to continue
his business in a timely fashion. See Merry-Go-Round
Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162
n.1, 521 A.2d 1065 (1987); see also Hoey v. Investors’
Mortgage & Guaranty Co., 118 Conn. 226, 230–31, 171 A.
438 (1934). That the plaintiff determined, for whatever
reason, to forgo this option does not render this rem-
edy insufficient.
The plaintiff also argues that a grievance proceeding
is an insufficient remedy because an attorney repri-
mand, suspension or disbarment would not make him
whole. He recognizes that he may seek restitution in a
grievance proceeding; see Practice Book § 2-37 (a) (2);
but dismisses this remedy as rare. Moreover, he argues
that he attempted to use this remedy but that his griev-
ance proceeding was dismissed and, thus, was an insuf-
ficient remedy. Because these other remedies are
inadequate, according to the plaintiff, applying immu-
nity to statutory theft claims would open the floodgates
to thieving attorneys.15
Although, as discussed in part II A of this opinion,
we in no way condone the conduct that the plaintiff
has alleged and must assume it is true, we do not agree
that these other remedies—remedies that both protect
against such attorney misconduct and compensate indi-
viduals harmed—are not adequate. Nor are we per-
suaded that the unavailability of the preferred remedy—
a statutory theft claim—will provide attorneys with a
‘‘license to steal . . . .’’ The fact that restitution in a
grievance proceeding may be rare does not mean that
this remedy is inadequate to compensate the plaintiff,
especially if the defendant’s conduct was in fact as
egregious as alleged. Contrary to the plaintiff’s con-
tention, the dismissal of his grievance proceeding
against the defendant does not render this remedy inad-
equate; rather, it throws cold water on his allegations
and supports our concern that these kinds of claims may
easily be raised in retaliation by disgruntled litigants.
D
Not only are there no appellate level cases on whether
the litigation privilege applies to claims of statutory
civil theft in Connecticut, but the parties have provided
minimal case law from other jurisdictions. The plaintiff
has not presented any precedent—federal or state—on
this issue. The defendant has cited only a single federal
case on this issue, Marin v. McClincy, 15 F. Supp. 3d
602, 615 (W.D. Pa. 2014) (dismissing conversion claim
based on filing of documents in connection with law-
suit), and a handful of cases from sister state courts.
See Finton Construction, Inc. v. Bidna & Keys, APLC,
238 Cal. App. 4th 200, 212–13, 190 Cal. Rptr. 3d 1 (2015)
(upholding dismissal of action against attorneys for con-
version and receipt of stolen property); Haliburda v.
Denholtz, Docket No. E030792, 2002 WL 1898171, *2
(Cal. App. August 19, 2002) (litigation privilege barred
abuse of process action despite plaintiff’s dishonest
conduct in levying bank account); Highland Capital
Management, LP v. Looper Reed & McGraw, P.C.,
Docket No. 05-15-00055-CV, 2016 WL 164528, *1 (Tex.
App. January 14, 2016) (affirming order granting sum-
mary judgment based on absolute immunity in theft
and conspiracy action against opponent’s law firm),
review denied, Docket No. 16-0140 (Tex. June 17, 2016).
In all of these jurisdictions, the elements of statutory
theft and conversion are the same as in Connecticut.
See, e.g., Cal. Penal Code § 496 (a) and (c) (Deering
Supp. 2021) (permitting civil suits for treble damages
against ‘‘[a] principal in the actual theft of the prop-
erty’’); see also McDonald v. Wells Fargo Bank, N.A.,
374 F. Supp. 3d 462, 493 (W.D. Pa. 2019); Beardmore
v. Jacobsen, 131 F. Supp. 3d 656, 669 (S.D. Tex. 2015);
Finton Construction, Inc. v. Bidna & Keys, APLC,
supra, 213; Deming v. Nationwide Mutual Ins. Co., 279
Conn. 745, 771, 905 A.2d 623 (2006); Yuille v. Parnoff,
189 Conn. App. 124, 137 n.11, 206 A.3d 766, cert. denied,
332 Conn. 902, 208 A.3d 659 (2019).
Although some of these cases may be distinguishable
from the present case in that they involved conversion
and not statutory civil theft or did not involve theft
by an attorney, none of them supports the opposite
conclusion. To the contrary, the plaintiff has not cited,
and this court has not discovered, any federal or state
court decision holding that absolute immunity does not
apply to a claim of statutory theft or a similar type of
claim. Accordingly, considering all of the public policy
concerns raised by the parties—including those raised
in Simms and others unique to the present case—we
conclude that the Appellate Court correctly determined
that the litigation privilege applies to bar the plaintiff’s
statutory theft claim.
III
Finally, the plaintiff argues that, even if the litigation
privilege applies to claims of statutory theft, the privi-
lege does not apply in the present case to the extent
his claim is premised on the defendant’s delayed
recording of the certificate of foreclosure on the land
records and his role in the subsequent sale of the prop-
erty, because this conduct occurred outside the scope
of the foreclosure action. The plaintiff argues that, once
title vested in Benchmark after the running of the law
days, the foreclosure proceeding reached its final dispo-
sition, and anything that occurred afterward was not
part of the foreclosure proceeding. The defendant dis-
agrees that the conduct alleged was not sufficiently
related to the underlying foreclosure proceeding for the
privilege to apply.16
As explained in part II B of this opinion, it is well
established that ‘‘communications uttered or published
in the course of judicial proceedings are [protected by
the litigation privilege] so long as they are in some way
pertinent to the subject of the controversy.’’ (Internal
quotation marks omitted.) Hopkins v. O’Connor, supra,
282 Conn. 832. The plaintiff does not dispute that the
underlying foreclosure proceeding was a judicial pro-
ceeding. Nor does he dispute that recording the certifi-
cate of foreclosure on the land records and the
subsequent sale of the property were relevant to the
foreclosure proceeding. The only dispute is whether
these two actions took place within the scope of the
‘‘judicial proceeding,’’ as that term is understood in our
case law regarding absolute immunity.
Consistent with our generous test for relevancy on
this score, this court has explained that the phrase
‘‘judicial proceeding’’ has been defined ‘‘liberally to
encompass much more than civil litigation or criminal
trials.’’ Hopkins v. O’Connor, supra, 282 Conn. 839. The
privilege clearly applies ‘‘to every step of the proceeding
until [its] final disposition’’; id., 826; including ‘‘to state-
ments made in pleadings or other documents prepared
in connection with a court proceeding.’’ Petyan v. Ellis,
200 Conn. 243, 252, 510 A.2d 1337 (1986). Additionally,
this court has extended the litigation privilege to ‘‘those
preparatory communications that may be directed to
the goal of the proceeding.’’ Hopkins v. O’Connor,
supra, 832; see id., 837 (applying litigation privilege to
defamation claim premised on police officer’s state-
ments pursuant to General Statutes § 17a-503 (a) that
resulted in plaintiff’s being detained in psychiatric hos-
pital for evaluation because statements that plaintiff
had psychiatric disabilities and was dangerous were
clearly made pursuant to § 17a-503 as ‘‘the first step
in the ‘distinct possibility’ of a judicial proceeding’’).
Similarly, our Appellate Court has held that ‘‘discussion
in the hallway, as part of a postverdict settlement con-
ference, was a step in the ongoing judicial proceeding.’’
Kenneson v. Eggert, 196 Conn. App. 773, 783, 230 A.3d
795 (2020). We disagree with the plaintiff that recording
the certificate of foreclosure and assisting Benchmark
in conducting the judicial sale of the property to a third
party occurred outside the scope of the foreclosure pro-
ceeding.
The plaintiff argues that recording the certificate of
foreclosure occurred after title vested and after the
running of the law days, and, therefore, this occurred
after the final disposition of the foreclosure proceeding.
We agree with the Appellate Court that, because the
defendant recorded the certificate of foreclosure in the
land records ‘‘in his capacity as Benchmark’s attorney
in the foreclosure proceeding, pursuant to the require-
ments of [General Statutes] § 49-16, that action was
clearly conducted in connection with, and was related
and relevant to, the foreclosure proceeding.’’ (Footnote
omitted.) Scholz v. Epstein, supra, 198 Conn. App. 230.
Section 49-16 requires in relevant part that, ‘‘[w]hen any
mortgage of real estate has been foreclosed, and the
time limited for redemption has passed, and the title
to the mortgaged premises has become absolute in the
mortgagee, or any person claiming under him, he shall,
either in person or by his agent or attorney, forthwith
make and sign a certificate describing the premises
foreclosed, the deed of mortgage on which the foreclo-
sure was had, the book and page where the same was
recorded and the time when the mortgage title became
absolute. The certificate shall be recorded in the
records of the town where the premises are situated
. . . .’’ (Emphasis added.) Under the clear language of
§ 49-16, recording the certificate of foreclosure in the
land records is a statutory requirement in a foreclosure
proceeding and, thus, is conducted in connection with
and as a required step in the foreclosure proceeding.
As for the defendant’s conduct in assisting Bench-
mark with the sale of the property to a third party, the
plaintiff argues that Benchmark was not required to
sell the property and could have held title to it perma-
nently and, therefore, that this conduct was an entirely
unnecessary postproceeding action. The plaintiff’s
argument, however, does not fully address the Appellate
Court’s rationale. The Appellate Court held that,
because the plaintiff’s complaint did not contain any
allegations of improper conduct by the defendant in
relation to this sale, the plaintiff’s argument lacked
merit. Scholz v. Epstein, supra, 198 Conn. 230–31. Alter-
natively, the Appellate Court held that, even if the allega-
tions in the complaint were sufficient to raise this claim,
the sale of the foreclosed property was an integral step
in the foreclosure proceeding. Id., 231.
We agree with the Appellate Court that the plaintiff’s
argument lacks merit because his complaint does not
allege that the defendant committed statutory theft
based on his actions in relation to the sale of the prop-
erty to a third party. Not only does the complaint not
allege that the defendant committed any misconduct in
relation to this sale, but it is void of any allegation that
the defendant was involved in the sale in any way.
The complaint alleges only that Benchmark sold the
property to a third party. Thus, because the plaintiff
never alleged that his claim of statutory theft was prem-
ised on the defendant’s misconduct in relation to the
sale of the property, the plaintiff’s argument fails, and
we need not determine whether such misconduct would
fall within the scope of the foreclosure proceedings.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* September 29, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The plaintiff alleges that the defendant’s knowledge of the plaintiff’s
residence was based on the following facts: (1) a tax bill for the property
that was issued by the city and included the plaintiff’s correct address,
which was a matter of public record; (2) a demand letter written by the
defendant to the plaintiff, addressed to the plaintiff at 405 Helen Street in
Bridgeport; (3) a letter written by the defendant to the plaintiff rejecting a
payment the plaintiff tendered, which also was addressed to the plaintiff at
405 Helen Street in Bridgeport; (4) a marshal’s return of service from a
previous tax lien foreclosure action brought against the plaintiff by the
defendant on behalf of Benchmark regarding real property taxes that were
due on the property at 405 Helen Street, which stated that service was made
on the plaintiff at his usual place of abode, 405 Helen Street in Bridgeport;
and (5) evidence showing that the defendant had served the plaintiff with
other documents at that address as well.
2
For example, in MacDermid, Inc. v. Leonetti, supra, 310 Conn. 630–31,
this court held that absolute immunity did not bar a claim of employer
retaliation. In MacDermid, Inc., the plaintiff employer had filed an action
for civil theft, fraud, unjust enrichment, and conversion, premised on the
defendant employee’s conduct in relation to his workers’ compensation
claim. Id., 622. The defendant counterclaimed, alleging that the plaintiff
violated General Statutes § 31-290a by initiating the underlying action solely
in retaliation for his exercise of his rights under the Workers’ Compensation
Act (act), General Statutes § 31-275 et seq. Id. The plaintiff moved to dismiss
the counterclaim, arguing that the court lacked subject matter jurisdiction
over that claim because the act of filing an action is protected by the doctrine
of absolute immunity. Id. In holding that the litigation privilege did not apply
to a claim alleging a violation of § 31-290a, we noted that the cause of action
did not include the same stringent requirements and balancing of interests
as a claim of vexatious litigation. Id., 632–33. Nevertheless, we determined
that the policy underlying § 31-290a was similar to the policy vindicated by
a vexatious litigation claim. Id., 631, 635. Just as vexatious litigation prohibits
an individual from using the litigation process for an illegitimate purpose,
§ 31-290a prohibits an employer from initiating an action against an employee
for the illegitimate purpose of retaliating against the employee for the
employee’s exercise of his or her rights under the act. Id. Additionally, we
relied heavily on the fact that, not only would barring immunity not open the
floodgates to retaliatory claims against employers, but providing immunity
actually would deter employees from exercising their rights under the act.
Id., 635–36; see also id., 625 n.7.
3
Justice Palmer dissented in Simms, disagreeing with the standard the
majority had established. See Simms v. Seaman, supra, 308 Conn. 584(Palmer, J., dissenting). He argued that claims alleging fraud by attorneys
‘‘should be permitted if the plaintiff first seeks relief in the underlying
proceeding or files a grievance complaint against the offending attorney
and, in connection therewith, secures either a sanction against the attorney
or a finding of attorney misconduct. This limited immunity is sufficient to
protect attorneys against the threat of frivolous, retaliatory litigation, on
the one hand, and provides a fair opportunity for recovery by a party who
has been defrauded by opposing counsel, on the other.’’ Id. In the present
case, the plaintiff did not seek sanctions in the underlying proceeding, and
the grievance he filed against the defendant did not secure a finding of
attorney misconduct; rather, it was dismissed. Thus, even under Justice
Palmer’s standard, the plaintiff’s statutory theft claim, which is akin to a
claim of fraud, would not be permitted.
4
The Appellate Court noted: ‘‘Although there is no appellate authority on
this issue, a number of Superior Court cases have concluded that absolute
immunity is a bar to a claim against an attorney for statutory theft.’’ Scholz
v. Epstein, supra, 198 Conn. App. 211–12 n.2; see id., citing Vossbrinck v.
Cheverko, Superior Court, judicial district of Stamford-Norwalk, Docket No.
CV-XX-XXXXXXX-S (February 20, 2018), Gordon v. Eckert Seamans Cherin &
Mellott, LLC, Superior Court, judicial district of New Haven, Docket No.
CV-XX-XXXXXXX-S (February 6, 2018) (65 Conn. L. Rptr. 893, 899–901), and
Stradinger v. Griffin Hospital, Superior Court, judicial district of Waterbury,
Docket No. CV-XX-XXXXXXX-S (December 11, 2015).
5
Further, to the extent the plaintiff is arguing that he alleged in his
complaint that the defendant improperly used the courts, in that the defen-
dant’s conduct in the underlying litigation constituted an abuse of process,
such an allegation is not sufficient to bar the litigation privilege, but, rather,
the plaintiff was required to, but did not, set forth sufficient allegations to
establish a cause of action for abuse of process. See Mozzochi v. Beck, 204
Conn. 490, 494–98, 529 A.2d 171 (1987); see also Perugini v. Giuliano, 148
Conn. App. 861, 874, 89 A.3d 358 (2014) (noting that plaintiff may have been
able to, but did not, assert abuse of process claim).
6
‘‘To establish a prima facie case of defamation, the plaintiff must demon-
strate that: (1) the defendant published a defamatory statement; (2) the
defamatory statement identified the plaintiff to a third person; (3) the defam-
atory statement was published to a third person; and (4) the plaintiff’s
reputation suffered injury as a result of the statement.’’ (Internal quotation
marks omitted.) Simms v. Seaman, supra, 308 Conn. 547–48.
7
‘‘Vexatious litigation requires a plaintiff to establish that: (1) the previous
lawsuit or action was initiated or procured by the defendant against the
plaintiff; (2) the defendant acted with malice, primarily for a purpose other
than that of bringing an offender to justice; (3) the defendant acted without
probable cause; and (4) the proceeding terminated in the plaintiff’s favor.’’
Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007).
8
General Statutes § 53a-119 provides in relevant part that ‘‘[a] person
commits larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully takes,
obtains or withholds such property from an owner. Larceny includes, but
is not limited to . . . (2) Obtaining property by false pretenses. A person
obtains property by false pretenses when, by any false token, pretense or
device, he obtains from another any property, with intent to defraud him
or any other person. . . .’’
9
The plaintiff’s claim that not all of the alleged conduct occurred in the
course of the foreclosure proceeding is addressed in part III of this opinion.
10
We note that a lack of stringent policy balancing safeguards is not
detrimental to a plaintiff’s claim that the litigation privilege does not apply.
See footnote 2 of this opinion. For example, claims of abuse of process and
employer retaliation under General Statutes § 31-290a do not have these
safeguards, but this court has barred the application of the litigation privilege
because of other policy considerations. See MacDermid, Inc. v. Leonetti,
supra, 310 Conn. 633 (‘‘the elements of abuse of process, a tort [that] also
falls outside the scope of absolute immunity, are less stringent than the
elements of vexatious litigation’’). The plaintiff’s statutory theft claim is
distinguishable from claims of abuse of process and employer retaliation,
however, because the plaintiff has not set forth any policy considerations
that weigh in favor of barring the litigation privilege.
11
The plaintiff, however, argues that a claim of statutory theft is unique
in that it is criminal in nature. Although theft may serve as a ground for
criminal charges, the claim at issue is civil in nature. Moreover, this court also
has applied absolute immunity to other torts that have criminal counterparts,
such as fraud. See Simms v. Seaman, supra, 308 Conn. 568–69; see also
General Statutes § 53a-119 (larceny defined to include various kinds of
fraudulent activity); General Statutes § 53a-125c (telephone fraud); General
Statutes § 53a-215 (insurance fraud); General Statutes § 53a-291 (vendor
fraud).
12
The plaintiff argues that the present case is more analogous to Fiondella
v. Meriden, 186 Conn. App. 552, 200 A.3d 196 (2018), cert. denied, 330 Conn.
961, 199 A.3d 20 (2019), than to Simms because both cases involve the
intentional concealment of the underlying proceeding. See id., 555. We dis-
agree. In Fiondella, the defendants successfully brought an action seeking
a declaratory judgment that they were the legal owners of a portion of land
by operation of the doctrine of adverse possession. Id. The plaintiffs in
Fiondella, who were not parties in the underlying declaratory judgment
action, subsequently brought claims of fraud, slander of title, and civil con-
spiracy against the defendants, alleging that the defendants had intentionally
concealed the declaratory judgment action from them, contrary to their
property rights and interests. Id., 555, 559–60. The Appellate Court held that
absolute immunity did not apply to bar the plaintiffs’ claims because the
plaintiffs were not parties to or involved in the underlying declaratory judg-
ment action; the claims were solely premised on conduct, not communica-
tions; and the alleged fraud did not occur during the pendency of a judicial
proceeding between these parties. Id., 562–63. The present case clearly
involves dishonest communications of a party opponent in an underlying
case in which the plaintiff was a party.
13
For example, in Simms, a case involving an award of alimony, we
indicated that a ‘‘dissatisfied litigant may file a motion to open the judgment’’
or otherwise ask the court for relief from the award affected by an attorney’s
misconduct. Simms v. Seaman, supra, 308 Conn. 552. Further, the plaintiff
in Simms could file ‘‘a grievance against the offending attorney under the
Rules of Professional Conduct’’ or ask the trial court to exercise its inherent
authority to impose sanctions in connection with an attorney’s fraudulent
conduct. Id.14
The plaintiff also argued at oral argument before this court that he was
not able to bring a motion to open on the ground of fraud. In a recent case,
although it involved different facts, this court held that a plaintiff may move
to open a judgment of strict foreclosure on the basis of fraud after the
passing of the law days under General Statutes § 49-15. See U.S. Bank
National Assn. v. Rothermel, 339 Conn. 366, 379 and n.11, 260 A.3d 1187(2021) (‘‘courts may, in rare and exceptional cases, exercise a limited form of
continuing jurisdiction over motions to open judgments of strict foreclosure
after the passage of the law days, notwithstanding the statutory limitation
imposed by § 49-15,’’ and the motion to open must set forth ‘‘particularized
factual allegations that could support a claim cognizable in equity,’’ including
a claim of fraud, accident, mistake, or surprise).
15
The plaintiff also argues that he has inadequate alternative remedies
because he could not bring an abuse of process claim given that the underly-
ing foreclosure proceeding was properly brought. We note that whether the
plaintiff could have brought an abuse of process claim against the defendant
in the present case is an open question in Connecticut, as this court has
not yet addressed the issue of ‘‘the scope of the term process’’ as that relates
to an action for abuse of process. Larobina v. McDonald, 274 Conn. 394,
408, 876 A.2d 522 (2005). We need not decide this issue, however, given the
other remedies available to the plaintiff to both punish the alleged conduct
and to cure any resulting harm.
16
The defendant also argues that this claim is not within the scope of the
certified issue. The defendant is correct that the claims presented to this
court are limited to those for which certification was granted and that, if
this court declined to certify a particular issue, then that issue is not properly
before this court. See, e.g., In re Natalie S., 325 Conn. 833, 847 n.5, 160 A.3d
1056 (2017). As the certified issue in the present case is phrased, we believe
it reasonably includes the plaintiff’s claim that the Appellate Court improp-
erly held that the defendant’s conduct of untimely recording the certificate
of foreclosure and assisting in the sale of the property to a third party
occurred during the course of the foreclosure proceeding. See Scholz v.
Epstein, supra, 335 Conn. 943. Moreover, to the extent there was any uncer-
tainty in this regard, addressing this claim inflicts no unfairness on the
defendant, who had the opportunity to fully brief this issue, both in this
court and in the Appellate Court.