Scholz v. Epstein

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STEPHEN W. SCHOLZ v. JUDA J. EPSTEIN
(AC 42419)
Alvord, Elgo and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages from the defendant, an attorney,
for alleged statutory theft arising from the defendant’s conduct during
prior judicial proceedings involving the foreclosure of the plaintiff’s
property. The defendant, acting as attorney for B Co., brought an action
against the plaintiff to foreclose a municipal lien that B Co. had pur-
chased from the city of Bridgeport. The plaintiff thereafter commenced
this action alleging that the defendant, in the course of the foreclosure
proceeding, made false representations to the court with the intent to
default the plaintiff for failure to appear and to render a judgment of
strict foreclosure. The plaintiff alleged that the defendant intended to
deprive the plaintiff of his property and/or to appropriate the property
to B Co., committing theft pursuant to statute (§ 52-564). The court
granted the defendant’s motion to dismiss the action for lack of subject
matter jurisdiction on the ground that the defendant was protected by
absolute immunity pursuant to the litigation privilege, and, from the
judgment rendered thereon, the plaintiff appealed to this court. Held:
1. The trial court properly granted the defendant’s motion to dismiss, this
court having determined, as a matter of first impression, that the defen-
dant was protected by absolute immunity from the plaintiff’s action for
statutory theft under § 52-564: following an evaluation of the competing
public policy considerations, including the underlying purpose of judicial
proceedings, the similarity between statutory theft and claims of fraud
and defamation, which are protected by the privilege, and the availability
of other remedies, this court reasoned that the plaintiff’s claim of statu-
tory theft did not require a consideration of whether the underlying
purpose of the foreclosure litigation was improper, rather, the plaintiff’s
claim raised the issue of whether an attorney’s conduct, while represent-
ing a client during a judicial proceeding brought for a proper purpose,
was entitled to absolute immunity; moreover, a claim of statutory theft
under § 52-564 is more analogous to a claim of fraud, as opposed to a
claim of vexatious litigation or abuse of process, because the plaintiff
had to prove that the defendant obtained the property in the foreclosure
action through false representations made to the court in the foreclosure
action, and, because the privilege protected the defendant’s communica-
tions, they were shielded by absolute immunity, regardless of the nature
of the plaintiff’s cause of action; furthermore, the required elements of
statutory theft do not contain inherent safeguards against inappropriate
retaliatory litigation, public policy does not support permitting claims
of statutory theft against attorneys, as it would inhibit candor in judicial
proceedings, and attorneys who engage in serious misconduct, such as
that alleged by the plaintiff, are subject to a number of possible sanctions,
and the availability of these alternative remedies serves as a deterrent
to attorney misconduct.
2. The plaintiff could not prevail on his claim that, even if the litigation
privilege applied to the defendant’s conduct during the foreclosure pro-
ceeding, the trial court improperly granted the defendant’s motion to
dismiss where some of the defendant’s alleged conduct was perpetrated
outside the scope of judicial proceedings: although the plaintiff claimed
that the defendant delayed the recording of the certificate of foreclosure,
in light of the fact that the litigation privilege applies to documents
prepared in connection with a judicial proceeding, the defendant’s action
was clearly conducted in connection with the foreclosure proceeding
and fell within the scope of the litigation privilege; this court rejected
the plaintiff’s claim that the subsequent sale of the foreclosed property
constituted conduct by the defendant outside the scope of the privilege,
as the complaint did not contain any allegations of wrongdoing by the
defendant with respect to the sale of the property, rather, the complaint
alleged that the defendant’s misconduct eventually resulted in the sale
of the property by B Co., and, as the complaint did not allege that the
defendant was involved in wrongdoing with respect to the sale after
title had vested in B Co., or that the sale was procured through the
services of the defendant, the plaintiff’s claim lacked merit; moreover,
even construing the allegations of the complaint as alleging a claim for
statutory theft on the basis of the defendant’s conduct concerning the
sale of the property, the sale of the foreclosed property was an integral
step in the foreclosure process, and the defendant’s conduct in assisting
B Co. with that sale was relevant to that proceeding and, thus, fell within
the scope of the litigation privilege.
Argued January 13—officially released June 16, 2020
Procedural History
Action to recover damages for statutory 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
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
EVELEIGH, J. This appeal concerns an issue of first
impression in Connecticut: whether an attorney is pro-
tected by absolute immunity under the litigation privi-
lege from a claim of statutory theft1 arising from the
attorney’s conduct during prior judicial proceedings.
The plaintiff, Stephen W. Scholz, appeals from the judg-
ment of the trial court granting the motion of the defen-
dant, Attorney Juda J. Epstein, to dismiss the plaintiff’s
action for statutory theft for lack of subject matter
jurisdiction on the ground that the defendant was pro-
tected by absolute immunity pursuant to the litigation
privilege. On appeal, the plaintiff claims that the court
erred in (1) granting the defendant’s motion to dismiss
and determining that the litigation privilege affords the
defendant absolute immunity from the plaintiff’s action
for statutory theft, which was brought pursuant to Gen-
eral Statutes § 52-564, (2) ruling that the public policy
considerations underlying the litigation privilege are
served by affording the defendant absolute immunity
from civil liability for his alleged criminal conduct that
was the basis for the statutory theft claim, (3) its appli-
cation of the balancing of interests test set forth in
Simms v. Seaman, 308 Conn. 523, 543–44, 69 A.3d 880
(2013), and (4) granting the motion to dismiss and
determining that the defendant was absolutely immune
from liability for statutory theft where some of the
defendant’s alleged criminal conduct was perpetrated
outside the scope of judicial proceedings. We affirm
the judgment of the trial court.
The following facts, as alleged in the plaintiff’s com-
plaint, and procedural history are relevant to our review
of the claims on appeal. The plaintiff, who resides at
405 Helen Street in Bridgeport, became the owner of an
adjacent lot located at 744 Stillman Street in Bridgeport
(Stillman property). When the plaintiff failed to pay
the real property taxes on the Stillman property in the
amount of $1018.74 that were owed to the city of Bridge-
port (city), the city recorded a certificate of lien on the
land records on April 7, 2014, for the unpaid taxes,
interest and related charges. The lien was thereafter
sold to Benchmark Municipal Tax Services, Ltd. (Bench-
mark), pursuant to an assignment that was recorded
on the land records on April 29, 2014. Benchmark is a
client of the defendant, who is an attorney licensed to
practice law in the state of Connecticut. Pursuant to a
writ of summons and complaint dated April 22, 2016,
the defendant, acting as Benchmark’s attorney, com-
menced a civil action against the plaintiff to foreclose
the lien. According to the complaint in the present case,
‘‘[t]he summons recited the address of the owner of the
[Stillman] property, [the plaintiff], as ‘69 Settlers Farm
Road, Monroe, CT 06468,’ ’’ and ‘‘[t]he state marshal’s
return of service, dated April 26 and 29, 2016 . . . does
not reflect that service was made on [the plaintiff], nor
does it describe any effort made by the state marshal
to locate [the plaintiff] or to attempt to effect service
on him.’’
The plaintiff further alleged in his complaint that
‘‘throughout his prosecution of the foreclosure action,
[the defendant] knew that [the plaintiff] resided at 405
Helen Street . . . not 69 Settlers Farm Road’’ in Mon-
roe by virtue of certain facts. Those facts include the
following: (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 Bridge-
port; (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.
According to paragraph 12 of the complaint, the
defendant filed a motion to cite in the plaintiff as a
defendant in the civil action to foreclose the lien ‘‘on
the basis of six specific representations he made to the
court, all of which were materially false and which [the
defendant] knew were materially false when he made
them, namely, that: [1] at the time the action was com-
menced, 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 upon [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.’ ’’ Paragraph 13 of the complaint alleged that
the defendant ‘‘knew that those six representations he
made to the court were materially false when he made
them’’ for a number of reasons, including that the defen-
dant knew that the marshal’s return of service did not
reflect that any service was made on the plaintiff and
that the return of service did not describe any effort
made by the marshal to locate the plaintiff, and that
the defendant knew the possible locations where the
plaintiff could have been found, and knew that the plain-
tiff resided, and could have been properly served, at
405 Helen Street in Bridgeport. In paragraph 16, the
plaintiff further alleged that the defendant perpetrated
‘‘a fraud upon the court’’ through his conduct in ‘‘know-
ingly 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 publication
and, ultimately, to default [the plaintiff] for failure to
appear and to enter a judgment of strict foreclosure
. . . .’’
On November 9, 2016, the defendant filed a motion
to default the plaintiff for failure to appear in the fore-
closure action, which was granted, and, on December
2, 2016, the defendant filed a motion 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 to believe that [the plaintiff’s] equity in the prop-
erty was tens of thousands of dollars less than it truly
was by procuring and filing with the court an appraisal
report . . . [that] was flawed on its face . . . .’’ The
court granted the motion for a judgment of strict fore-
closure on January 9, 2017. The plaintiff alleged that
‘‘[b]y wrongfully misleading the court into entering a
judgment of strict foreclosure, 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 sched-
uled foreclosure auction sale, and thereby purposefully
deprived [the plaintiff] of notice that a foreclosure of
the property was pending, and purposefully deprived
him of the opportunity to redeem the property from the
foreclosure or otherwise to act to protect his ownership
interest in the property.’’
The plaintiff further alleged that ‘‘[a]s a result of the
conduct of [the defendant] [as] alleged . . . [the plain-
tiff] 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 . . . .’’ Because the plaintiff
operated a business on both the property at 405 Helen
Street and the Stillman property, he was suddenly faced
with the realization that he no longer owned the
Stillman property and that his business and livelihood
might be destroyed by the loss of the Stillman property.
Therefore, he alleged that he was ‘‘forced to buy back
the [Stillman] property . . . .’’ Accordingly, in para-
graph 38 of the complaint the plaintiff alleged that the
defendant ‘‘wrongfully engaged in the conduct alleged
. . . with the intent to deprive [the plaintiff] of his prop-
erty and/or to appropriate the property to Benchmark,
thereby committing [statutory] theft in violation of . . .
§ 52-564, and causing [the plaintiff] great financial loss.’’
On June 19, 2018, the defendant filed a motion to
dismiss the plaintiff’s action for lack of subject matter
jurisdiction on the basis of the litigation privilege. In
support of his motion, the defendant claimed that
because all of the acts alleged in the complaint were
committed by the defendant in connection with the
litigation process in the foreclosure action, and because
he was ‘‘acting within the litigation process as counsel
for the lienholder in the foreclosure action,’’ he was
shielded by the litigation privilege from the plaintiff’s
claim for statutory theft. On July 17, 2018, the plaintiff
filed a memorandum of law in opposition to the defen-
dant’s motion to dismiss, claiming that ‘‘[t]he absolute
immunity of the litigation privilege does not apply to a
complaint [that] sounds in [statutory] theft.’’
In a memorandum of decision dated December 11,
2018, the trial court granted the defendant’s motion to
dismiss, stating: ‘‘Connecticut appellate courts have not
yet determined whether the litigation privilege provides
attorneys with absolute immunity from claims of statu-
tory theft based on their conduct in judicial proceed-
ings.’’ After undertaking the balancing analysis set forth
in Simms v. Seaman, supra, 308 Conn. 543–44, the court
found that the allegations of the complaint were ‘‘more
akin to a claim of fraud than a claim of abuse of process
or vexatious litigation,’’ ‘‘the elements of statutory theft
do not incorporate protections for attorneys against
unwarranted litigation,’’ there were ‘‘other available
remedies to address the conduct complained of by the
plaintiff,’’ and ‘‘other decisions of the Superior Court
have extended the privilege to claims of statutory theft.’’
Accordingly, the court determined that, in ‘‘[b]alancing
the policy considerations, the plaintiff’s claim of statu-
tory theft stemming from the defendant’s alleged con-
duct during the judicial proceeding is barred by absolute
immunity.’’ From the judgment rendered dismissing the
action, the plaintiff appealed to this court.
Before turning to the merits of the plaintiff’s claims
on appeal, we first set forth our standard of review of
a court’s decision on a motion to dismiss, which is well
settled. See Ion Bank v. J.C.C. Custom Homes, LLC,
189 Conn. App. 30, 37, 206 A.3d 208 (2019). ‘‘A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction.’’ (Internal quo-
tation marks omitted.) Iino v. Spalter, 192 Conn. App.
421, 425, 218 A.3d 152 (2019). ‘‘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.’’
(Internal quotation marks omitted.) Traylor v. State,
332 Conn. 789, 792–93 n.6, 213 A.3d 467 (2019); see also
Dorry v. Garden, 313 Conn. 516, 521, 98 A.3d 55 (2014);
Connecticut Center for Advanced Technology, Inc. v.
Bolton Works, LLC, 191 Conn. App. 842, 844–45, 216
A.3d 813, cert. denied, 333 Conn. 930, 218 A.3d 69 (2019).
‘‘In an appeal from the granting of a motion to dismiss
on the ground of subject matter jurisdiction, this court’s
review is plenary.’’ (Internal quotation marks omitted.)
Board of Education v. Bridgeport, 191 Conn. App. 360,
366, 214 A.3d 898 (2019); see also Walenski v. Connecti-
cut State Employees Retirement Commission, 185
Conn. App. 457, 464, 197 A.3d 443, cert. denied, 330
Conn. 951, 197 A.3d 390 (2018).
I
The plaintiff’s first three claims on appeal concern
the issue of whether the trial court improperly granted
the defendant’s motion to dismiss and determined that
the litigation privilege affords the defendant absolute
immunity from the plaintiff’s action for statutory theft
under § 52-564. We conclude that the court properly
granted the defendant’s motion to dismiss and deter-
mined that the defendant was protected by absolute
immunity from such a claim.
A
Before we address the merits of that claim, we begin
with a discussion of the history of the litigation privilege
in Connecticut, which developed in the context of defa-
mation claims. See Bruno v. Travelers Cos., 172 Conn.
App. 717, 725, 161 A.3d 630 (2017). ‘‘Connecticut has
long recognized the litigation privilege . . . [and has
extended it] to judges, counsel and witnesses participat-
ing in judicial proceedings.’’ (Internal quotation marks
omitted.) Id. ‘‘The principle that defamatory statements
by attorneys during judicial proceedings are absolutely
privileged when they are pertinent and material to the
controversy is . . . well established in American juris-
prudence. The formulation of the rule in the
Restatement (Second) of Torts, which has been adopted
in nearly every state . . . provides: ‘An attorney at law
is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to
a proposed judicial proceeding, or in the institution of,
or during the course and as a part of, a judicial proceed-
ing in which he participates as counsel, if it has some
relation to the proceeding.’ 3 Restatement (Second),
supra, § 586, p. 247; see also W. Prosser & W. Keeton,
[Torts (5th Ed. 1984)] § 114, p. 817. One of the comments
to § 586 of the Restatement (Second) further provides
that the privilege ‘protects the attorney from liability
in an action for defamation irrespective of his purpose
in publishing the defamatory matter, his belief in its
truth, or even his knowledge of its falsity.’ 3
Restatement (Second), supra, § 586, comment (a), p.
247.
‘‘Three rationales have been articulated in support
of the absolute privilege. . . . First, and most
important, it ‘protects the rights of clients who should
not be imperiled by subjecting their legal advisors to
the constant fear of lawsuits arising out of their conduct
in the course of legal representation. The logic is that
an attorney preparing for litigation must not be hobbled
by the fear of reprisal by actions for defamation . . .
which may tend to lessen [counsel’s] efforts on behalf
of clients.’ . . . This includes protection from intru-
sive inquiries into the motives behind an attorney’s fac-
tual assertions . . . and, in the case of alleged omis-
sions or the concealment of evidence, from having to
resist or defend against attempts to uncover informa-
tion that arguably could have been produced at trial
but might be subject to the attorney-client privilege.
Second, the privilege furthers ‘the administration of
justice by preserving access to the courts. If parties
could file retaliatory lawsuits and cause the removal
of their adversary’s counsel on that basis, the judicial
process would be compromised.’ . . . Third, there are
remedies other than a cause of action for damages that
can be imposed by the court under court rules, the
court’s inherent contempt powers and the potential for
disciplinary proceedings through state and local bar
associations.’’ (Citations omitted; footnotes omitted.)
Simms v. Seaman, supra, 308 Conn. 534–36.
In Rioux v. Barry, 283 Conn. 338, 343–44, 927 A.2d
304 (2007), our Supreme Court explained the purpose
and public policy underlying the doctrine of absolute
immunity: ‘‘The doctrine of absolute immunity as
applied to statements made in the context of judicial
and quasi-judicial proceedings is rooted in the public
policy of encouraging witnesses, both complaining and
testimonial, to come forward and testify in either crimi-
nal or civil actions. 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. . . . Put simply, absolute immu-
nity furthers the public policy of encouraging participa-
tion and candor in judicial and quasi-judicial proceed-
ings. This objective would be thwarted if those persons
whom the common-law doctrine was intended to pro-
tect nevertheless faced the threat of suit. In this regard,
the purpose of the absolute immunity afforded partici-
pants in judicial and quasi-judicial proceedings is the
same as the purpose of the sovereign immunity enjoyed
by the state. . . . As a result, courts have recognized
absolute immunity as a defense in certain retaliatory
civil actions in order to remove this disincentive and
thus encourage citizens to come forward with com-
plaints or to testify.’’ (Citations omitted; internal quota-
tion marks omitted.)
Our Supreme Court has expanded the doctrine of
absolute immunity afforded to statements made during
judicial proceedings to bar retaliatory civil actions
beyond defamation claims. For example, in Peytan v.
Ellis, 200 Conn. 243, 250–55, 510 A.2d 1337 (1986), the
court determined that absolute immunity barred a claim
of intentional infliction of emotional distress that was
based on an allegedly defamatory statement made by
the defendant employer in a fact-finding form that had
been submitted to the defendant by the Employment
Security Division of the Department of Labor in connec-
tion with the processing of the plaintiff’s claim for
unemployment compensation benefits. See also Simms
v. Seaman, supra, 308 Conn. 569–70. In Rioux v. Barry,
supra, 283 Conn. 350, the court held that the plaintiff’s
claim of intentional interference with contractual or
beneficial relations was barred by absolute immunity,
and, in Simms v. Seaman, supra, 308 Conn. 545, the
court determined that attorneys are protected by abso-
lute immunity under the litigation privilege for claims
of fraud based on their conduct during judicial proceed-
ings. See also Tyler v. Tatoian, 164 Conn. App. 82,
83–84, 93, 137 A.3d 801 (affirming trial court’s determi-
nation that defendant trustee was shielded by absolute
immunity for claims of fraud and violations of Connecti-
cut Unfair Trade Practices Act, General Statutes § 42-
110a et seq., and rejecting assertion that such claims
fell under exception to absolute immunity for causes
of action alleging improper use of judicial system), cert.
denied, 321 Conn. 908, 135 A.3d 710 (2016). ‘‘[I]n
expanding the doctrine of absolute immunity to bar
claims beyond defamation, [our Supreme Court] has
sought to ensure that the conduct that absolute immu-
nity is intended to protect, namely, participation and
candor in judicial proceedings, remains protected
regardless of the particular tort alleged in response
to the words used during participation in the judicial
process. Indeed, [the court] recently noted that [c]om-
mentators have observed that, because the privilege
protects the communication, the nature of the theory
[on which the challenge is based] is irrelevant.’’
(Emphasis in original; internal quotation marks omit-
ted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 628,
79 A.3d 60 (2013); see also Bruno v. Travelers Cos.,
supra, 172 Conn. App. 726–27.
‘‘In expanding the scope of the litigation privilege
. . . our Supreme Court has recognized a distinction
between attempting to impose liability upon a partici-
pant in a judicial proceeding for the words used therein
and attempting to impose liability upon a litigant for
his improper use of the judicial system itself. . . . In
this regard, [it has] refused to apply absolute immunity
to causes of action alleging the improper use of the
judicial system. . . . MacDermid, Inc. v. Leonetti,
[supra, 310 Conn. 629]; see also, e.g., id., 625–26 (litiga-
tion privilege did not shield claim by employee against
employer alleging that employer had brought action
against employee solely in retaliation for employee
exercising his rights under Workers’ Compensation
Act); Rioux v. Barry, supra, 283 Conn. 343 (in the con-
text of a quasi-judicial proceeding, absolute immunity
does not attach to statements that provide the ground
for the tort of vexatious litigation); Mozzochi v. Beck,
204 Conn. 490, 495, 529 A.2d 171 (1987) (an attorney may
be sued for misconduct by those who have sustained
a special injury because of an unauthorized use of legal
process). . . .
‘‘In Rioux, [our Supreme Court] emphasized that
whether and what form of immunity applies in any given
case is a matter of policy that requires a balancing of
interests. . . . [It] also observed that, in previous cases
that . . . presented a question of the applicability of
the doctrine of absolute immunity, [it] applied the gen-
eral principles underlying that doctrine to the particular
context of those cases. . . . Furthermore, the cases
following Rioux have not relied exclusively or entirely
on the factors enumerated therein, but instead have
considered the issues relevant to the competing inter-
ests in each case.’’ (Internal quotation marks omitted.)
Tyler v. Tatoian, supra, 164 Conn. App. 88–90. ‘‘In exam-
ining the competing interests and public policies at
stake, our Supreme Court has focused on the need
to ensure candor from all participants in the judicial
process.’’ Id., 90. Finally, the court also has noted that
federal precedent ‘‘weighs in favor of applying the privi-
lege to state law claims alleging fraud’’; Simms v. Sea-
man, supra, 308 Conn. 562; and that ‘‘courts in many
jurisdictions have followed an approach that has
strengthened the litigation privilege, not abrogated it.
As commentators and scholars have observed, [a]s new
tort theories have emerged, courts have not hesitated
to expand the privilege to cover theories, actions, and
circumstances never contemplated by those who for-
mulated the rule in medieval England.’’ (Internal quota-
tion marks omitted.) Id., 566.
B
With this backdrop in mind, we turn to the plaintiff’s
claim in the present case that the trial court improperly
concluded that the litigation privilege affords the defen-
dant absolute immunity from the plaintiff’s action for
statutory theft under § 52-564. In support of his claim,
the plaintiff raises a number of arguments. Specifically,
he claims that the trial court erred in ruling that the
public policy considerations underlying the litigation
privilege are served by absolutely immunizing the defen-
dant from liability for statutory theft. In that vein, the
plaintiff argues that the defendant’s actions amounted
to larceny; that ‘‘[a]cts of theft have nothing whatsoever
to do with advancing the right or need to advocate to
speak out the whole truth, freely and fearlessly’’; that
‘‘[t]heft committed by an attorney, especially when com-
mitted in court or in his filings in the publicly accessible
docket, does grievous public harm and denigrates and
brings shame upon the profession’’; and that ‘‘the defen-
dant engaged in conduct which is closely akin to a claim
of abuse of process to which the litigation privilege
does not apply, as his theft constituted the improper
use of litigation to accomplish a purpose for which it
was not designed. Mozzochi v. Beck, [supra, 204 Conn.
494].’’ (Internal quotation marks omitted.)
Neither party has cited, nor are we aware of, any
appellate authority determining whether absolute
immunity protects an attorney from a claim of statutory
theft based on the attorney’s conduct during judicial
proceedings.2 Accordingly, this court must begin its
analysis by applying the public policy underlying the
litigation privilege to a cause of action for statutory
theft to determine whether the protection of absolute
immunity should extend to such an action. In making
that determination, we are guided by the principle that
the issue of whether to recognize a claim for statutory
theft against an attorney as one to which the litigation
privilege does not apply ‘‘is a matter of policy for the
court to determine based on the changing attitudes and
needs of society.’’ Craig v. Driscoll, 262 Conn. 312, 339,
813 A.2d 1003 (2003); see also Simms v. Seaman, supra,
308 Conn. 545.
In the present case, we must decide whether a cause
of action for statutory theft may be brought against an
attorney arising out of actions taken by the attorney
during judicial proceedings. A determination of this
issue, therefore, requires this court to evaluate the com-
peting public policy considerations, including the
underlying purpose of judicial proceedings, the similar-
ity between statutory theft and claims of fraud and
defamation, which are protected by the privilege, and
the availability of other remedies. See Simms v. Sea-
man, supra, 308 Conn. 545–54.3
1
Underlying Purpose of Judicial Proceedings
The first factor that our Supreme Court in Simms
considered in evaluating whether claims of fraud
against an attorney are precluded by absolute immunity
was whether such claims ‘‘challenge the underlying pur-
pose of the litigation rather than an attorney’s role as
an advocate for his or her client.’’ Id., 546; see also
MacDermid, Inc. v. Leonetti, supra, 310 Conn. 629 (our
Supreme Court has ‘‘refused to apply absolute immunity
to causes of action alleging the improper use of the
judicial system’’). Claims that challenge the underlying
purpose of litigation, for which attorneys are not pro-
tected by absolute immunity, include claims of abuse
of process, which ‘‘must allege the improper use of
litigation to accomplish a purpose for which it was not
designed.’’ (Internal quotation marks omitted.) Simms
v. Seaman, supra, 308 Conn. 546; see also Mozzochi v.
Beck, supra, 204 Conn. 495 (‘‘attorney may be sued
for misconduct by those who have sustained a special
injury because of an unauthorized use of legal pro-
cess’’). Likewise, attorneys are not shielded by absolute
immunity from claims of vexatious litigation, which
must allege, inter alia, that the defendant acted without
probable cause, primarily for a purpose other than that
of bringing an offender to justice. Rioux v. Barry, supra,
283 Conn. 347.
The primary reason for excluding claims that chal-
lenge the underlying purpose of litigation from the
ambit of the litigation privilege is that they contain
inherent safeguards against inappropriate retaliatory
litigation. For instance, our Supreme Court in Rioux
explained that ‘‘the tort of vexatious litigation is treated
differently because of [the] restraints built into it by
virtue of its stringent requirements. . . . [W]ere we to
provide absolute immunity for the communications
underlying the tort of vexatious litigation, we would
effectively eliminate the tort. Unlike the communica-
tions underlying the tort of defamation, virtually any
initiation or procurement of a previous lawsuit would
necessarily be part of any judicial proceeding. Thus,
the tort of vexatious litigation would virtually always
be subject to absolute immunity.’’ (Citations omitted.)
Id., 347–48. As the court observed, ‘‘the requisite ele-
ments of the tort of vexatious litigation effectively strike
the balance between the public interest of encouraging
complaining witnesses to come forward and protecting
the private individual from false and malicious claims
[and, thus] [i]t is unnecessary and undesirable to extend
the additional protection afforded by the doctrine of
absolute immunity to defendants in vexatious litigation
claims.’’ Id., 348-49.
In concluding that attorneys subject to claims of fraud
for their conduct in the course of litigation are entitled
to absolute immunity, the court in Simms explained
that such claims do not require a consideration of
whether the underlying purpose of litigation was
improper. See Simms v. Seaman, supra, 308 Conn. 546-
47. With respect to such claims, what is being chal-
lenged is the conduct of an attorney in his or her role
as an advocate for his or her client in a judicial proceed-
ing. Id.; see also Barrett v. United States, 798 F.2d 565,
573 (2d Cir. 1986) (fact that counsel may or may not
have engaged in questionable or harmful conduct during
course of representation in litigation is irrelevant;
immunity attaches to function, not in how counsel per-
formed). Consequently, our Supreme Court concluded
that the ‘‘reasons for precluding use of the litigation
privilege in cases alleging abuse of process and vexa-
tious litigation have no application to claims of fraud.’’
Simms v. Seaman, supra, 547. That reasoning applies
equally to the plaintiff’s claim of statutory theft in the
present case that the defendant made material misrep-
resentations to the court in the foreclosure action and
misled the court to render a judgment of strict foreclo-
sure, rather than a foreclosure by sale. Such a claim
does not require a consideration of whether the underly-
ing purpose of the litigation was improper. Instead,
the plaintiff’s claim concerns the issue of whether an
attorney’s conduct, while representing a client during
a judicial proceeding that was brought for a proper
purpose, is entitled to absolute immunity. We conclude,
therefore, that the plaintiff’s claim of statutory theft
against the defendant attorney does not subvert the
underlying purpose of a judicial proceeding. See id.,
545–47.
Applying these considerations to the present case,
we conclude that a statutory theft action against an
attorney for the attorney’s conduct in the course of
representing his or her client in litigation does not impli-
cate a challenge to the propriety of the underlying litiga-
tion. Like fraud and defamation claims in the context
of a judicial proceeding, a statutory theft action focuses
on the allegedly improper conduct of an attorney in the
role of advocate for a client. In the present case, the
statutory theft claim concerned the conduct of the
defendant attorney in a foreclosure proceeding. For
example, the plaintiff alleged that, by fraudulent and
knowing misrepresentations in effecting notice and
securing a judgment of strict foreclosure, rather than
a foreclosure by sale, the defendant misappropriated
the plaintiff’s property on behalf of his client, Bench-
mark.4 The underlying litigation was brought by Bench-
mark, which was assigned by the city the right to initiate
foreclosure proceedings with respect to its tax lien
against the plaintiff. As evident in the present case, the
statutory theft action challenges the conduct of the
defendant attorney during the underlying foreclosure
litigation, but not the propriety of the foreclosure action
itself. Therefore, there is no basis for precluding the
application of absolute immunity to a statutory theft
claim that does not challenge the underlying purpose
of the litigation but, instead, challenges the alleged mis-
conduct of the defendant in his role as an attorney on
behalf of his client.
2
Statutory Theft as Compared to Fraud and Defamation
With respect to the second factor, our Supreme Court
in Simms compared common-law fraud with the ele-
ments of defamation, and distinguished those claims
from claims alleging vexatious litigation and abuse of
process, for which the litigation privilege does not
apply, explaining that the latter claims challenge the
underlying purpose of the litigation, whereas the former
claims challenge an attorney’s role as an advocate for
his or her client. See id., 546-51. The court in Simms
further explained that ‘‘a claim of fraud is similar to a
claim of defamation. A defamation action is based on
the unprivileged communication of a false statement
that tends either to harm the reputation of another by
lowering him or her in the estimation of the community
or to deter others from dealing or associating with him
or her. . . . To establish a prima facie case of defama-
tion, the plaintiff must demonstrate that: (1) the defen-
dant published a defamatory statement; (2) the defama-
tory statement identified the plaintiff to a third person;
(3) the defamatory statement was published to a third
person; and (4) the plaintiff’s reputation suffered injury
as a result of the statement. . . .
‘‘The essential elements of an action in [common-
law] fraud . . . are that: (1) a false representation was
made as a statement of fact; (2) it was untrue and known
to be untrue by the party making it; (3) it was made to
induce the other party to act [on] it; and (4) the other
party did so act [on] that false representation to his
injury. . . . [T]he party to whom the false representa-
tion was made [must claim] to have relied on that repre-
sentation and to have suffered harm as a result of the
reliance. . . .
‘‘As indicated by this comparison, claims of defama-
tion and fraud during a judicial proceeding contemplate
allegations that a party suffered harm because of a
falsehood communicated by the opponent’s attorney,
namely, the publication of a false statement that harms
the other party’s reputation in the case of defamation,
and a false representation made as a statement of fact
that induces the other party to act to his detriment in
the case of fraud. . . .
‘‘Claims of defamation and fraud are also similar
because they are difficult to prove but easy for a dissat-
isfied litigant to allege. . . . [A]ttorneys are entitled to
absolute immunity for allegedly defamatory statements
in part because of the difficulty of ascertaining their
truth.’’ (Citations omitted; internal quotation marks
omitted.) Id., 547–49. Finally, the court in Simms
observed that ‘‘abrogation of the litigation privilege to
permit claims of fraud could 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 retaliatory lawsuit. Abrogation
of the privilege also would apply to the claims of pro
se litigants who do not understand the boundaries of
the adversarial process, which could give rise to much
unnecessary and harassing litigation.’’ (Emphasis
added.) Id., 568.
Accordingly, the court in Simms ultimately con-
cluded that the similarities between common-law fraud
and defamation warranted extending absolute immu-
nity to claims of fraud against an attorney. Id., 547-51.
In particular, it noted that because ‘‘the communication
of a falsehood is an essential element of both defama-
tion and fraud, the litigation privilege provides a com-
plete defense to both causes of action.’’ Id., 548-49. In
the present case, in considering the elements of statu-
tory theft, we conclude that, as applied to the defen-
dant’s alleged misconduct, a statutory theft cause of
action similarly warrants the application of the
privilege.
The tort of statutory theft is codified in § 52-564.
This court has noted that, according to § 52-564, ‘‘[a]ny
person who steals any property of another, or know-
ingly receives and conceals stolen property, shall pay
the owner treble his damages. We consistently have
held that statutory theft under § 52-564 is synonymous
with larceny under General Statutes § 53a-119. . . . A
person commits larceny within the meaning of . . .
§ 53a-119 when, with intent to deprive another of prop-
erty or to appropriate the same to himself or a third
person, he wrongfully takes, obtains or withholds such
property from an owner. An owner is defined, for pur-
poses of § 53a-119, as any person who has a right to
possession superior to that of a taker, obtainer or with-
holder. General Statutes § 53a-118 (a) (5).’’ (Emphasis
omitted; internal quotation marks omitted.) Bongiorno
v. Capone, 185 Conn. App. 176, 198–99, 196 A.3d 1212,
cert. denied, 330 Conn. 943, 195 A.3d 1134 (2018). Sec-
tion 53a-119 sets forth a nonexhaustive list of acts that
constitute larceny and provides that larceny includes,
but is not limited to, ‘‘[o]btaining property by false pre-
tenses. 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.’’ General Statutes § 53a-119 (2).
‘‘[O]ur state has a well defined public policy against
theft.’’ Private Healthcare Systems, Inc. v. Torres, 84
Conn. App. 826, 832, 855 A.2d 987 (2004), appeal dis-
missed, judgment vacated on other grounds, 278 Conn.
291, 898 A.2d 768 (2006); see also Metropolitan District
Commission v. AFSCME, Council 4, Local 184, 89
Conn. App. 680, 685, 874 A.2d 839, cert. denied, 275
Conn. 912, 882 A.2d 673 (2005); Board of Education v.
Local 566, Council 4, AFSCME, 43 Conn. App. 499, 505,
683 A.2d 1036 (1996), cert. denied, 239 Conn. 957, 688
A.2d 327 (1997).
Given that ‘‘[s]tatutory theft under § 52-564 is synony-
mous with larceny under . . . § 53a-119’’; (internal
quotation marks omitted) Bongiorno v. Capone, supra,
185 Conn. App. 198–99; and that a person commits lar-
ceny under § 53a-119 (2) when property is obtained
by false pretenses, that is, when, by any false token,
pretense or device, the party ‘‘obtains from another
any property, with intent to defraud him or any other
person’’; General Statutes § 53a-119 (2); we conclude
that a claim of statutory theft is more analogous to a
claim of fraud, as opposed to a claim of vexatious litiga-
tion or abuse of process.5 Like fraud, statutory theft is
an intentional tort. See Deming v. Nationwide Mutual
Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). In
order to prove his claim of statutory theft, the plaintiff
had to prove that the defendant obtained the property in
the foreclosure action through false pretenses, namely,
through a number of false representations made to the
court in the underlying foreclosure proceeding. Thus,
essential to the plaintiff’s statutory theft claim in the
present case was the communication of a falsehood by
the defendant. In Simms v. Seaman, supra, 308 Conn.
548–49, our Supreme Court addressed similar circum-
stances and stated: ‘‘[B]ecause the privilege protects
the communication, the nature of the theory [on which
the challenge is based] is irrelevant. . . . Accordingly,
because the communication of a falsehood is an essen-
tial element of both defamation and fraud, the litigation
privilege provides a complete defense to both causes
of action.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.)
The statutory theft claim in the present case falls
squarely within that analysis. The plaintiff essentially
alleges that the defendant’s false communications to
the court in the foreclosure action led to the theft of his
property. Because the privilege protects the defendant’s
communications, they are shielded by absolute immu-
nity, regardless of the nature of the plaintiff’s cause of
action. See MacDermid, Inc. v. Leonetti, supra, 310
Conn. 628; Bruno v. Travelers Cos., supra, 172 Conn.
App. 727.
Furthermore, the required elements of statutory theft
do not contain inherent safeguards against inappropri-
ate retaliatory litigation as do the elements of a claim
for vexatious litigation. The elements required to prove
a claim for vexatious litigation—that the plaintiff was
a defendant in a prior action that was decided in his
or her favor and that was commenced without probable
cause and for an improper purpose—‘‘establish a very
high hurdle that minimizes the risk of inappropriate
litigation while still providing an incentive to report
wrongdoing, thus protecting ‘the injured party’s interest
in being free from unwarranted litigation.’ ’’ Simms v.
Seaman, supra, 308 Conn. 549. Even though fraud must
be proven by a more exacting standard of clear and
convincing evidence; Stuart v. Freiberg, 316 Conn. 809,
821, 116 A.3d 1195 (2015); the burden of proof for a
claim of statutory theft is the preponderance of the
evidence standard. Fernwood Realty, LLC v. AeroCi-
sion, LLC, 166 Conn. App. 345, 359–60, 141 A.3d 965,
cert. denied, 323 Conn. 912, 149 A.3d 981 (2016). Never-
theless, our Supreme Court in Simms determined that
the heightened burden of proof for fraud was not suffi-
cient to reduce the risk of inappropriate litigation. Spe-
cifically, the court explained: ‘‘[T]he required elements
of fraud, like the required elements of defamation and
interference with contractual or beneficial relations
that the court discussed in Rioux, do not provide the
same level of protection against the chilling effects of
a potential lawsuit as the required elements of vexatious
litigation . . . [which] requires proof that the plaintiff
was the defendant in a prior lawsuit decided in his favor
and that the lawsuit was commenced without probable
cause and for an improper purpose. . . . These
requirements establish a very high hurdle that mini-
mizes the risk of inappropriate litigation while still pro-
viding an incentive to report wrongdoing, thus pro-
tecting the injured party’s interest in being free from
unwarranted litigation. . . . The clear and convincing
burden of proof required for a claim of fraud, however,
is not an equivalent safeguard, and we do not agree
with those who argue that this heightened standard
alone would reduce the risk of retaliatory litigation to
the same degree as the elements of vexatious litigation.’’
(Citations omitted; internal quotation marks omitted.)
Simms v. Seaman, supra, 549. Accordingly, given our
Supreme Court’s determination that the heightened bur-
den of proof for proving fraud alone does not provide
a sufficient safeguard against the risk of inappropriate
litigation, it necessarily follows that a claim of statutory
theft, with its lesser standard of preponderance of the
evidence, suffers the same infirmity.
In the present case, the plaintiff alleges that the defen-
dant made a number of representations to the court in
the foreclosure proceeding that were materially false
and which the defendant knew were false when he made
them, and that the defendant made the representations
with the intent to induce the court to act on them
to the plaintiff’s detriment. The court in Simms, in
addressing similar circumstances with respect to a
claim of fraud, which requires a false representation
that was known to be untrue at the time it was made
and that was made with the intent to induce the party
to act, stated: ‘‘[B]ecause opinions might differ on those
questions, allowing them to be submitted to a jury could
have . . . deleterious effects . . . including judg-
ments against innocent attorneys. Moreover, it would be
relatively easy to file a spurious claim of fraud because
attorneys must be selective in deciding what informa-
tion to disclose in the course of representing their cli-
ents and a litigant could well believe that undisclosed
information later discovered to have been in the attor-
ney’s possession should have been disclosed, thus giv-
ing rise to a claim of fraud based on misrepresentation.
Finally, the mere possibility of such claims, which could
expose attorneys to harassing and expensive litigation,
would be likely to inhibit their freedom in making good
faith evidentiary decisions and representations and,
therefore, negatively affect their ability to act as zealous
advocates for their clients.’’ (Footnote omitted.) Id.,
550–51.
The allegations in the present case similarly involve
open questions on which opinions could differ. We con-
clude that public policy does not support permitting
claims of statutory theft against attorneys, as it would
inhibit participation and candor in judicial proceedings,
as well as ‘‘have a chilling effect on the attorney-client
relationship and on an attorney’s zealous representation
of his or her client.’’ Simms v. Seaman, 129 Conn. App.
651, 672, 23 A.3d 1 (2011), aff’d, 308 Conn. 523, 69 A.3d
880 (2013). As this court has explained previously: ‘‘If
opposing counsel is not protected by immunity as
explained in Rioux, there would be little or no disincen-
tive to stop a disgruntled or unhappy opposing party
from suing counsel for fraud for failing to disclose [the]
information.’’ Id. In the context of foreclosure proceed-
ings, where emotions run high because parties stand
to lose property on which a home or business may
be located, if counsel are not protected by absolute
immunity, such a result could open the floodgates to a
rash of claims against opposing counsel for fraud or
statutory theft where a disgruntled party is dissatisfied
with the loss of the foreclosed property. That would
be contrary to the public policy underlying the litigation
privilege. See id., 674 (‘‘There is a strong public policy
that seeks to ensure that attorneys provide full and
robust representation to their clients and that they pro-
vide such clients with their unrestricted and undivided
loyalty. See Mozzochi v. Beck, supra, 204 Conn. 497. A
cause of action that might inhibit such representation
must have built-in restraints to prevent unwarranted
litigation.’’); see also Simms v. Seaman, supra, 308
Conn. 562–63 (‘‘the privilege is not intended to protect
counsel who may be motivated by a desire to gain
an unfair advantage over their client’s adversary from
subsequent prosecution for bad behavior but, rather,
to encourage robust representation of clients and to
protect the vast majority of attorneys who are innocent
of wrongdoing from harassment in the form of retalia-
tory litigation by litigants dissatisfied with the outcome
of a prior proceeding’’); Perugini v. Giuliano, 148 Conn.
App. 861, 873, 89 A.3d 358 (2014) (‘‘the law protects
attorneys from suit in order to encourage zealous advo-
cacy on behalf of their clients, unrestrained by the fear
of exposure to tort liability’’).
3
Other Remedies
We next examine whether claims of statutory theft
against attorneys may be adequately addressed by other
available remedies. In DeLaurentis v. New Haven, 220
Conn. 225, 264, 597 A.2d 807 (1991), our Supreme Court
stated: ‘‘While no civil remedies can guard against lies,
the oath and the fear of being charged with perjury are
adequate to warrant an absolute privilege for a witness’
statements. . . . [C]ounsel who behave outrageously
are subject to punishment for contempt of the court.
Parties and their counsel who abuse the process by
bringing unfounded actions for personal motives are
subject to civil liability for vexatious suit or abuse of
process.’’ (Footnote omitted.) In Simms, in determining
whether the defendant attorneys were protected by the
litigation privilege against a claim of fraud, the court
further explained that ‘‘safeguards other than civil liabil-
ity exist to deter or preclude attorney misconduct or
to provide relief from that misconduct. A dissatisfied
litigant may file a motion to open the judgment . . .
or may seek relief by filing a grievance against the
offending attorney under the Rules of Professional Con-
duct, which may result in sanctions such as disbarment.
. . . Additionally, [j]udges of the Superior Court pos-
sess the inherent authority to regulate attorney conduct
and to discipline members of the bar. . . . The range
of sanctions available to the court include those set
forth in Practice Book §§ 2-376 and 2-44,7 and General
Statutes § 51-84,8 including fines, suspension and dis-
barment. Courts also may dismiss a case or impose
lesser sanctions for perjury or contempt. . . . Accord-
ingly, a formidable array of penalties, including referrals
to the statewide grievance committee for investigation
into alleged misconduct, is available to courts and dis-
satisfied litigants who seek redress in connection with
an attorney’s fraudulent conduct.’’ (Citations omitted;
footnotes in original; internal quotation marks omitted.)
Simms v. Seaman, supra, 308 Conn. 552–54. Therefore,
attorneys who engage in serious misconduct, such as
the misconduct alleged by the plaintiff here, are subject
to a number of possible sanctions, including disbar-
ment. The availability of these remedies serves as a
deterrent to attorney misconduct with respect to a claim
of statutory theft as equally as it does with respect to
a claim of fraud.
II
The plaintiff also claims that, even if the litigation
privilege applies to the defendant’s conduct during the
foreclosure proceeding, the trial court improperly
granted the defendant’s motion to dismiss and deter-
mined that the defendant was absolutely immune from
liability for statutory theft where some of the defen-
dant’s alleged criminal conduct was perpetrated outside
the scope of judicial proceedings. We disagree.
As stated previously, ‘‘[i]n ruling upon whether a com-
plaint survives a motion to dismiss, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . . Because a challenge to the jurisdic-
tion of the court presents a question of law, our review
of the court’s legal conclusion is plenary.’’ (Internal
quotation marks omitted.) Romeo v. Bazow, 195 Conn.
App. 378, 385, 225 A.3d 710 (2020).
In his brief, the plaintiff claims that ‘‘[s]ome of the
injurious acts alleged in the complaint to have been
committed by the defendant took place subsequent to
and outside the confines of the judicial proceedings of
the foreclosure action.’’ Specifically, the plaintiff refer-
ences the defendant’s delayed recording of the certifi-
cate of foreclosure six months after the litigation had
ended and ten days after the property was sold by
Benchmark to third parties. According to the plaintiff,
by so doing, the defendant caused the tax bill for the
property to be issued to the plaintiff, further concealed
the fact that the plaintiff had lost the property in a
foreclosure action, and violated the one month
recording requirement of General Statutes § 49-16. The
plaintiff further claims in his brief that ‘‘[t]he final act
of the defendant’s scheme occurred when Benchmark,
acting by the defendant, sold the property on July 28,
2017 . . . for the sum of $22,000, nearly triple the
amount that the defendant had represented to the court
just six months earlier was the fair market value of the
property.’’ Thus, the actions alleged by the plaintiff to
have taken place outside of the scope of the judicial
proceedings were the defendant’s recording of the cer-
tificate of foreclosure on the land records and the subse-
quent sale of the property.
It is well settled that ‘‘communications uttered or
published in the course of judicial proceedings are [pro-
tected by the litigation privilege] so long as they are in
some way pertinent to the subject of the controversy.
. . . [W]e must first determine whether the proceed-
ings [in question] were [judicial or] [quasi-judicial] in
nature. The judicial proceeding to which [absolute]
immunity attaches has not been [exactly] defined . . . .
It includes any hearing before a tribunal which performs
a judicial function, ex parte or otherwise, and whether
the hearing is public or not. It includes for example,
lunacy, bankruptcy, or naturalization proceedings, and
an election contest. It extends also to the proceedings
of many administrative officers, such as boards and
commissions, so far as they have powers of discretion
in applying the law to the facts which are regarded as
judicial or quasi-judicial, in character. . . .
‘‘[Once we have] concluded that the statements of
the defendant were made in the context of a judicial or
quasi-judicial process, we must next determine whether
the alleged defamatory statements were made in the
course of that proceeding and whether they related to
its subject matter. . . . In making [the] determination
[of whether a particular statement is made in the course
of a judicial proceeding], the court must decide as a
matter of law whether the . . . statements [at issue]
are sufficiently relevant to the issues involved in a pro-
posed or ongoing judicial [or quasi-judicial] processing,
so as to qualify for the privilege. The test for relevancy
is generous . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Kruger v. Grauer, 173 Conn. App.
539, 547–48, 164 A.3d 764, cert. denied, 327 Conn. 901,
169 A.3d 795 (2017).
‘‘[L]ike the privilege which is generally applied to
pertinent statements made in formal judicial proceed-
ings, an absolute privilege also attaches to relevant
statements made during administrative proceedings
which are quasi-judicial in nature. . . . Once it is deter-
mined that a proceeding is [quasi-judicial] in nature, the
absolute privilege that is granted to statements made in
furtherance of it extends to every step of the proceeding
until final disposition.’’ (Internal quotation marks omit-
ted.) Craig v. Stafford Construction, Inc., 271 Conn.
78, 84, 856 A.2d 372 (2004); Kelley v. Bonney, 221 Conn.
549, 565-66, 606 A.2d 693 (1992) (same); Petyan v. Ellis,
supra, 200 Conn. 246 (‘‘[t]his privilege extends to every
step of the proceeding until final disposition’’); see also
Hopkins v. O’Connor, 282 Conn. 821, 839, 925 A.2d 1030
(2007) (in making determination of whether statement
was made in course of judicial proceeding, court must
decide as matter of law whether allegedly defamatory
statements are sufficiently relevant to issues involved,
test for relevancy is generous and ‘‘judicial proceeding
has been defined liberally to encompass much more
than civil litigation or criminal trials’’ (internal quotation
marks omitted)); Cohen v. King, 189 Conn. App. 85, 89,
206 A.3d 188 (2019) (same).
Our Supreme Court has further explained that ‘‘[t]he
scope of privileged communication extends not merely
to those made directly to a tribunal, but also to those
preparatory communications that may be directed to
the goal of the proceeding. . . . To make such prepara-
tions . . . effective, there must be an open channel of
communication between the persons interested and the
forum, unchilled by the thought of subsequent judicial
action against such participants; provided always, of
course, that such preliminary meetings, conduct and
activities are directed toward the achievement of the
objects of the litigation or other proceedings.’’ (Internal
quotation marks omitted.) Hopkins v. O’Connor, supra,
282 Conn. 832. That court has ‘‘consistently . . . held
that a statement is absolutely privileged if it is made
in the course of a judicial proceeding and relates to the
subject matter of that proceeding. E.g., [id.], 830–31;
DeLaurentis v. New Haven, supra, 220 Conn. 264; Pet-
yan v. Ellis, supra, 200 Conn. 245–46.’’ Gallo v. Barile,
284 Conn. 459, 470, 935 A.2d 103 (2007). The litigation
privilege ‘‘applies to statements made in pleadings or
other documents prepared in connection with a court
proceeding.’’ Petyan v. Ellis, supra, 251–52.
There is no dispute in the present case that the fore-
closure proceeding that forms the basis for the allega-
tions of the complaint is a judicial proceeding to which
the litigation privilege may apply. In light of the fact that
the litigation privilege applies to documents prepared
in connection with a judicial proceeding; see id.; and
that the privilege extends to every step of the proceed-
ing until its final disposition; see Craig v. Stafford Con-
struction, Inc., supra, 271 Conn. 84; we are not per-
suaded by the plaintiff’s attempts to characterize certain
of the defendant’s actions as being outside the scope
of the privilege. With respect to the defendant’s
recording of the certificate of foreclosure on the land
records, which was done by the defendant in his capac-
ity as Benchmark’s attorney in the foreclosure proceed-
ing, pursuant to the requirements of § 49-16,9 that action
was clearly conducted in connection with, and was
related and relevant to, the foreclosure proceeding. As
such, it falls within the scope of the litigation privilege.
We equally reject the plaintiff’s claim that the subse-
quent sale of the foreclosed property concerned con-
duct by the defendant that was outside the scope of
the privilege. First, the complaint does not contain any
allegations of wrongdoing by the defendant with respect
to the sale of the property; instead, the plaintiff alleges
that the defendant’s allegedly wrongful conduct up to
and including his delayed filing of the certificate of
foreclosure eventually resulted in the sale of the prop-
erty by Benchmark. Paragraph 31 of the complaint
alleges that ‘‘[p]ursuant to a quitclaim deed dated July
28, 2017 . . . Benchmark sold the property’’ to certain
individuals as joint tenants. Paragraph 32 further states
that, ‘‘[a]s a result of the conduct of [the defendant]
alleged above, [the plaintiff] was unaware . . . that the
tax lien foreclosure action had even commenced, let
alone that it had gone to judgment, that the law days
had run, that Benchmark has taken title to the property
by strict foreclosure and that Benchmark had sold the
property to third parties for a windfall profit . . . .’’
(Emphasis added.) We must decide this case on the
basis of the allegations of the complaint, which simply
do not allege that the defendant was involved in wrong-
doing with respect to the actual sale of the property
after title had vested in Benchmark, or even that the sale
was procured through the services of the defendant.
Accordingly, the plaintiff’s claim lacks merit.
Second, even if we were to construe the allegations
of the complaint as alleging a claim for statutory theft
on the basis of the defendant’s conduct concerning the
sale of the foreclosed property, the plaintiff’s claim that
such conduct falls outside the scope of the privilege,
nevertheless, still fails. The test for whether the defen-
dant’s conduct was protected by absolute immunity
depends on the relationship and relevancy of that con-
duct to the foreclosure proceeding. As our Supreme
Court has noted, ‘‘[t]he test for relevancy is generous,
and judicial proceeding has been defined liberally to
encompass much more than civil litigation or criminal
trials.’’ (Internal quotation marks omitted.) Hopkins v.
O’Connor, supra, 282 Conn. 839. We conclude that the
subsequent sale of the foreclosed property was an inte-
gral step in the foreclosure process, and the defendant’s
alleged conduct in assisting Benchmark with that sale
was relevant to that proceeding. See id., 832 (privilege
extends to ‘‘communications that may be directed to
the goal of the proceeding’’ and to ‘‘such preliminary
meetings, conduct and activities [that] are directed
toward the achievement of the objects of the litigation
or other proceedings’’ (internal quotation marks omit-
ted)). For these reasons, we reject the plaintiff’s claim.
III
On the basis of our examination of the public policies
and competing interests at stake, and after applying the
public policy analysis under absolute immunity to the
plaintiff’s claim of statutory theft, we conclude that
absolute immunity bars the plaintiff’s claim of statutory
theft against the defendant.
In summary, statutory theft is clearly distinguishable
from claims of vexatious litigation and abuse of process,
to which the litigation privilege does not apply, as the
plaintiff’s claim of statutory theft against the defendant
attorney for conduct that occurred during a judicial
proceeding does not challenge the underlying purpose
of the litigation but, rather, concerns the defendant’s
role as an advocate for his client. Similar to a claim of
fraud, a claim of statutory theft does not contain inher-
ent safeguards against inappropriate retaliatory litiga-
tion, as with claims of vexatious litigation and abuse
of process; see Simms v. Seaman, supra, 308 Conn.
549 (‘‘the required elements of fraud, like the required
elements of defamation and interference with contrac-
tual or beneficial relations . . . do not provide the
same level of protection against the chilling effects of
a potential lawsuit as the required elements of vexatious
litigation’’); and a claim of statutory theft does not con-
tain the same type of stringent elements found in the
claim of vexatious litigation, which provide adequate
protection against unwarranted litigation. Instead,
applying the balancing test set forth in Simms, we con-
clude that statutory theft is more akin to claims of fraud
and defamation, to which the litigation privilege applies,
and, thus, the underlying purpose of absolute immunity
applies equally to statutory theft as it does to claims
of defamation or fraud. Our determination that the liti-
gation privilege protects the defendant from the plain-
tiff’s claim of statutory theft also furthers the public
policy underlying absolute immunity of encouraging
participation and candor in judicial proceedings, while
at the same time limiting the exposure of attorneys to
harassing and expensive litigation, which would likely
inhibit their freedom in making good faith evidentiary
decisions and representations, and have a negative
effect on their ability to advocate zealously for their
clients. See id., 550–51. We also note that an array of
alternatives to civil liability exists to deter an attorney
from engaging in misconduct or to provide relief to a
dissatisfied litigant in connection with an attorney’s
alleged misconduct. Finally, we reject the plaintiff’s
attempts to characterize certain of the defendant’s
actions as being outside the scope of the privilege. The
defendant’s recording of the certificate of foreclosure
on the land records, as well as the defendant’s alleged
conduct in assisting Benchmark with the subsequent
sale of the foreclosed property, were related and rele-
vant to the foreclosure proceeding and, thus, fall within
the scope of the litigation privilege. Accordingly, the
court properly granted the defendant’s motion to dis-
miss and concluded that the plaintiff’s claim of statutory
theft against the defendant for his conduct during the
foreclosure proceeding was barred by absolute
immunity.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The parties use the terms civil theft, statutory civil theft and statutory
theft to refer to the plaintiff’s cause of action under General Statutes § 52-
564. For consistency, we refer to the plaintiff’s cause of action in this opinion
as a claim for statutory theft.
2
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. See Vossbrinck v. Cheverko,
Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-17-
5016825-S (February 20, 2018) (attorney who had represented party in fore-
closure action was protected by absolute immunity from claim of statutory
theft premised on attorney’s conduct in ordering removal of plaintiff’s per-
sonal property from foreclosed property following order of ejectment by
court; court found that intentional tort of statutory theft was similar to other
intentional torts that are barred by absolute immunity); 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) (absolute immunity barred cause of action for statutory theft
against defendant law firm, which represented foreclosing mortgagee in
foreclosure action, where personal property stored on foreclosed property
was removed by defendant in pursuit of lawful execution of ejectment and
possession following lawful foreclosure); Stradinger v. Griffin Hospital,
Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S
(December 11, 2015) (court applied public policy analysis underlying abso-
lute immunity to cause of action for statutory theft and determined that,
on balance, protection of immunity should extend to such actions).
3
The court in Simms also considered, as a fourth factor, whether fraudu-
lent conduct by an attorney has been protected by the litigation privilege
in federal courts. See Simms v. Seaman, supra, 308 Conn. 545-46. We have
not discovered any federal precedent on the issue presented in the present
case and, therefore, we do not include an analysis of this factor.
4
Notably, the plaintiff’s allegations of statutory theft make clear that the
effect of the defendant’s claimed misconduct resulted in title vesting in
Benchmark, rather than any direct benefit accruing to the defendant himself.
5
As our Supreme Court has recognized, to establish a claim for fraud, ‘‘a
plaintiff must be able to show by clear and convincing evidence that: (1) a
false representation was made [by the defendant] as a statement of fact;
(2) the statement was untrue and known to be so by [the defendant]; (3)
the statement was made with the intent of inducing reliance thereon; and
(4) the other party relied on the statement to his detriment. . . . Nazami
v. Patrons Mutual Ins. Co., 280 Conn. 619, 628, 910 A.2d 209 (2006); see
Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790,
819, 955 A.2d 15 (2008) (standard of proof for claim of common-law fraud
is clear and convincing evidence).’’ (Internal quotation marks omitted.)
Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). ‘‘In contrast
to a negligent misrepresentation, [a] fraudulent representation . . . is one
that is knowingly untrue, or made without belief in its truth, or recklessly
made and for the purpose of inducing action upon it.’’ (Internal quotation
marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2
A.3d 859 (2010).
In the present case, the allegations in support of the claim of statutory
theft are as follows: (1) the defendant made a number of misrepresentations
in the foreclosure action; (2) the representations were materially false and
known by the defendant to be false at the time they were made; (3) the
false representations were made with the intent to induce and cause the
court in the foreclosure action to rely on them; and (4) the court did so
rely on those misrepresentations in defaulting the plaintiff in the foreclosure
action and rendering the judgment of strict foreclosure, which ultimately
deprived the plaintiff of the opportunity to protect his ownership interest
in the property and thereby caused him financial loss. Accordingly, even
though the allegations of the complaint are strikingly similar to a claim of
fraud, the plaintiff’s claim satisfies only the first two elements of common-
law fraud, as the six allegedly false representations set forth in the complaint
were made by the defendant to the court, not to the plaintiff, and were
intended to induce reliance thereon by the court in defaulting the plaintiff
and rendering the judgment of strict foreclosure. We are mindful of this
distinction and conclude only that in comparing a claim of statutory theft
to other claims to determine whether it is one for which the litigation
privilege applies, it is more akin to a claim of fraud, which is protected by
absolute immunity, rather than a claim of vexatious litigation or abuse of
process, to which such immunity does not apply.
6
‘‘Practice Book § 2-37 provides in relevant part: (a) A reviewing commit-
tee or the statewide grievance committee may impose one or more of the
following sanctions and conditions in accordance with the provisions of
Sections 2-35 and 2-36:
‘‘(1) reprimand;
‘‘(2) restitution;
‘‘(3) assessment of costs;
‘‘(4) an order that the respondent return a client’s file to the client;
‘‘(5) a requirement that the respondent attend continuing legal education
courses, at his or her own expense, regarding one or more areas of substan-
tive law or law office management;
‘‘(6) an order to submit to fee arbitration;
‘‘(7) in any grievance complaint where there has been a finding of a
violation of Rule 1.15 of the Rules of Professional Conduct or Practice Book
Section 2-27, an order to submit to periodic audits and supervision of the
attorney’s trust accounts . . . .
‘‘(8) with the respondent’s consent, a requirement that the respondent
undertake treatment, at his or her own expense, for medical, psychological or
psychiatric conditions or for problems of alcohol or substance abuse. . . .
***
‘‘(c) Failure of the respondent to comply with any sanction or condition
imposed by the statewide grievance committee or a reviewing committee
may be grounds for presentment before the superior court.’’ (Internal quota-
tion marks omitted.) Simms v. Seaman, supra, 308 Conn. 553–54 n.17.
7
‘‘Practice Book § 2-44 provides in relevant part: ‘The [S]uperior [C]ourt
may, for just cause, suspend or disbar attorneys . . . .’ ’’ Simms v. Seaman,
supra, 308 Conn. 554 n.18.
8
‘‘General Statutes § 51-84 provides: ‘(a) Attorneys admitted by the Supe-
rior Court shall be attorneys of all courts and shall be subject to the rules
and orders of the courts before which they act.
‘‘ ‘(b) Any such court may fine an attorney for transgressing its rules and
orders an amount not exceeding one hundred dollars for any offense, and
may suspend or displace an attorney for just cause.’ ’’ Simms v. Seaman,
supra, 308 Conn. 554 n.19.
9
General Statutes § 49-16 provides in relevant part: ‘‘When 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 foreclosure
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 land records of the town where the premises are situated . . . .’’