129 Conn. App. 651
Conn. App. Ct.2011Background
- Plaintiff Simms sues former opposing counsel (Seaman, Moch, Bartschi, Levesque, Dowd) for fraud and intentional infliction of emotional distress arising from postjudgment proceedings related to alimony modification.
- Donna Simms was the former spouse in a long-running dissolution; the alimony modification was on remand from the Supreme Court (Simms v. Simms, 283 Conn. 494 (2007)).
- Attorneys represented Donna Simms during 2006–2008 and allegedly concealed Donna’s substantial inheritance (estate proceeds of ~$360,000 by 2008).
- Plaintiff contends defendants knowingly misrepresented or concealed assets to the court and to plaintiff, causing $400,000+ in costs and emotional distress.
- Trial court granted motions to strike these counts on absolute immunity (litigation privilege) and then entered judgment for defendants; plaintiff appeals.
- Court affirms the trial court, holding the claims are barred by absolute immunity for statements made in the course of judicial proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney statements during proceedings are absolutely immune to fraud claims | Simms argues immunity does not bar fraud/IIED. | Defendants contend absolute immunity applies to statements in judicial proceedings. | Yes; claims barred by litigation privilege. |
| Whether absolute immunity bars IIED as derivative of fraud | IIED claims rely on the same conduct as fraud. | Immunity extends to related torts if based on statements in court. | Yes; IIED also barred. |
| Whether Varley/Billington framework governs postjudgment fraud claims | Different context than marital fraud; not barred by immunity | Rioux/Mozzochi framework supports immunity in this context | Immunity governs; fraud claims barred. |
| Whether claim could be viable under non-immunity theories or repleading | Counts could be re-pleaded if immunity not controlling | Immunity is dispositive; alternative arguments moot on strike | Reversing not warranted; immunity remains controlling. |
Key Cases Cited
- Petyan v. Ellis, 200 Conn. 243 (1986) (absolute immunity for statements in judicial proceedings)
- Mozzochi v. Beck, 204 Conn. 490 (1987) (attorneys may be immune; broader context for immunity limits)
- Rioux v. Barry, 283 Conn. 338 (2007) (framework balancing immunity with vexatious/defamation concerns)
- Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766 (2002) (fraud-on-the-court concepts; defined limits in marital context)
- Billington v. Billington, 220 Conn. 212 (1991) (distinction between fraud on court and fraud on adverse party in marital context)
- Duart v. Dept. of Correction, 293 Conn. 937 (2009) (certified issue on Varley diligence requirement related to postjudgment relief)