LISA BRUNO v. THE TRAVELERS COMPANIES ET AL.
(AC 38284)
Appellate Court of Connecticut
Argued January 11-officially released May 2, 2017
Keller, Mullins and Harper, Js.
(Appeal from Superior Court, judicial district of Danbury, Truglia, J.)
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Lisa Bruno, self-represented, the appellant (plaintiff).
Stephen E. Goldman, with whom, on the brief, was Jonathan E. Small, for the appellees (named defendant et al.).
Opinion
After review, we conclude that the litigation privilege provides an absolute immunity from suit and, thus, implicates the trial court‘s subject matter jurisdiction.4 As such, the plaintiff‘s causes of action against the defendants are barred. We further conclude that the cоurt should have dismissed the plaintiff‘s original complaint, rather than permit her to replead, after it determined that the doctrine of absolute immunity applied to her entire complaint. Accordingly, the form of judgment is improper, and we, therefore, reverse the judgment of the trial court and remand the matter with direction to render a judgment of dismissal.
The trial court set forth the following relevant facts in its memorandum of decision as to the defendants’ first motion to strikе. “The plaintiff and . . . Stephen Bruno were divorced in 2008 by order of the Danbury Superior Court . . . . [In her complaint,] [t]he plaintiff alleges that on February 24, 2014, a hearing was held in Danbury Superior Court in her dissolution of marriage action on a postjudgment motion brought by her former husband involving court-ordered alimony and support payments. The plaintiff alleges that an employee or representative of [the defendants] . . . appeared at this hearing in response to a subpoena issued by her former husband‘s attorney. The plaintiff further alleges that the defendants’ employee made certain statements at this hearing and produced two letters issued by the defendants that he ‘caused to be entered into evidence,’ both of which, the plaintiff claims, were defamatory to her. The plaintiff alleges that the defendants intentionally and wrongfully allowed their employee to testify at the hearing and produce the letters in quеstion, and that these actions have given rise to several causes of action against them for damages.
On the basis of the aforementioned letters and the employee‘s testimony, both of which the plaintiff believed contained defamatory statements about her, the plaintiff commenced this action against the defendants in seven counts: (1) defamation by libel per se, (2) violation of the Connecticut Insurance Information and Privacy Protection Act,
The defendants, thereafter, filed a motion to strike each count that had been filed against them on the ground that they were entitled to absolute immunity due to the applicability of the litigation privilege. The plaintiff then filed a responsive pleading. Subsequently, the defendants filed a reply memorandum in which they argued, in part, that the court‘s subjeсt matter jurisdiction was implicated by the doctrine of absolute immunity. On January 5, 2015, the court granted the defendants’ motion to strike each count of the complaint on the ground of absolute immunity, concluding that the litigation privilege applied. The court, however, did not address the issue of subject matter jurisdiction.
Given that the court had granted the defendants’ motion to strike, the plaintiff exercised her option to replead and filed an amended complаint pursuant to Practice Book § 10-44. In her amended complaint, she alleged the following causes of action against the defendants: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) violation of the Connecticut Unfair Insurance Practices Act,
In response to the amended complaint, the defendants filed a motion for judgment on all counts of the stricken complaint and requested, in the alternative, that the court strike counts three through nine of the amended complaint on the ground that it failed to cure the deficiencies in her original complaint. The defen-
dants also requested summary judgment on the two new counts of the amеnded complaint, set forth as counts one and two, on the basis that they were time barred by the limitation set forth in the defendants’ contract of insurance with the plaintiff. The court granted the motion and rendered judgment in favor of the defendants. This appeal followed.
The dispositive issue raised by the plaintiff concerns her claim that absolute immunity implicates the trial court‘s subject matter jurisdiction. She contends that the court erred by not ordering the defendаnts to file a motion to dismiss rather than permit them to raise the issue of absolute immunity and the court‘s subject
We disagree, however, on what was the appropriate action for the trial court to take once this issue, or a doctrine implicating subject matter jurisdiction, was raised. Here, once the defendants raised the issue of absolute immunity, based on the application of the litigation privilege, and the court then determined that the plaintiff‘s initial complaint was barred by the doctrine of absolute immunity, the court should have dismissed the case against the defendants, essentially treating the motion to strike as a motion to dismiss.6 See Practice Book § 10-30 (a) (1) (“[a] motion to dismiss shall be used to assert . . . lack of jurisdiction over the subject matter“); see generally Branford v. Monaco, 48 Conn. App. 216, 219 n.4, 709 A.2d 582 (although “[t]he defendants assеrted their claim of lack of subject matter jurisdiction as a special defense . . . [a] motion to dismiss is the proper procedural device to raise a claim of lack of subject matter jurisdiction“), cert. denied, 245 Conn. 903, 719 A.2d 900 (1998).
“[S]ubject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it . . . and a judgment rendered without subject matter jurisdiction is void. . . . Further, it is well established that a reviewing court properly may address jurisdictional claims that neither were raised nor ruled on in the trial court.” (Internal
quotation marks omitted.) Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn. App. 791, 798, 3 A.3d 183 (2010). “[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25, 822 A.2d 196 (2003).
“Connecticut has long recognized the litigation privilege . . . [and has extended it] to judges, counsel and witnesses participating in judicial proceedings.” (Citation omitted; internal quоtation marks omitted.) Simms v. Seaman, 308 Conn. 523, 536-37, 69 A.3d 880 (2013); see also Villages, LLC v. Longhi, 166 Conn. App. 685, 699, 142 A.3d 1162, cert. denied, 323 Conn. 915, 149 A.3d 498 (2016).
In MacDermid, Inc. v. Leonetti, 310 Conn. 616, 79 A.3d 60 (2013), our Supreme Court explained: “In Simms, we noted that the doctrine of absolute immunity originated in response to the need to bar persons accused of crimes from suing their accusers for defamation. [Simms v. Seaman, supra, 308 Conn.] 531. The doctrine then developed to encompass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, parties, and witnesses. Id., 532. We further noted that, [l]ike other jurisdictions, Connecticut has long recognized the litigation privilege, and that [t]he general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an action in slander . . . Id., 536.
“Furthermore, in Rioux v. Barry, [283 Conn. 338, 343-44, 927 A.2d 304 (2007)], we explained that [t]he purpose of affording absolute immunity to those who provide information in connection 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. . . . [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance
from filing a complaint. . . . Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This оbjective would be thwarted if those persons whom the common-law doctrine [of absolute immunity] was intended to protect nevertheless faced the threat of suit.
“In Simms v. Seaman, supra, 308 Conn. 540-45, we further discussed the expansion of absolute immunity to bar retaliatory civil actions beyond claims of defamation. For example, we have concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from statеments made during a civil action. See Rioux v. Barry, supra, 283 Conn. 350-51 (absolute immunity applies to intentional interference with contractual relations because that tort comparatively is more like defamation than vexatious litigation). We have also precluded claims of intentional infliction of emotional distress arising from statements made during judicial proceedings on the basis of absolute immunity. See DeLaurentis v. New Haven, 220 Conn. 225, 263-64, 597 A.2d 807 (1991). Finally, we have most
“It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pеrtinent to the subject of the controversy.” (Internal quotation marks omitted.) Villages, LLC v. Longhi, supra, 166 Conn. App. 699.
In the present case, there is no doubt that the statements made and the documents produced by representatives of the defendants were made or produced in a formal judicial proceeding. The proceeding was a hearing in the Connecticut Superior Court, before a judge of the Superior Court, and the representative of the defendants was there as a witness, appearing in response to a subpoena by the plaintiff‘s former husband, who was a party to the proceeding. The documents produced also were in response to an issued
subpoena.
As to the relevance of the statements or documents produced by the defendants in response to the issued subpoena and the questions that were asked during trial, we note that our law provides for a very generous test for relevance. See Gallo v. Barile, 284 Conn. 459, 467, 935 A.2d 103 (2007). We also note that the defendants are not alleged to have acted outside of the subpoena or to have done anything more than answer questions and produce documents that were asked or requested of them during the hearing. See O‘Coin v. Woonsocket Institution Trust Co., 535 A.2d 1263, 1267 (R.I. 1988) (In holding that absolute privilege applied in this case in which the defendant bank, pursuant to a subpoena duces tecum, produced documents and a witness to testify in relation thereto, the Supreme Court explained: “[W]hen a witness is asked a question, and no objection is made thereto, or, if made, is overruled, it is the duty of the witness to answer. The witness is not charged with the duty of determining whether the information sought is relevant or material. Such questions are solely the province of the trial court . . . and the witness cannot be held liable in a civil suit for his answer. . . . To hold otherwise would be manifestly unfair to the witness, who often, but not always is untrained in legal matters, timid, and appears at the behest of some third party.” [Citations omitted.]).
As explained by the trial court in its memorandum of decision as to the defendants’ first motion to strike, “the parties’ respective pleadings set forth the following undisputed facts. First, the plaintiff‘s former husband attempted to introduce the evidence in question during a part of the hearing related to alimony. The plaintiff did not object to introduction of the letters into evidence at this time but did object to the witness’ testimony on relevаncy grounds. The court . . . agreed and sustained the plaintiff‘s objection to the witness’ testimony on the ground that it was not relevant to this question [of alimony]. [Counsel for the plaintiff‘s] former husband . . . then attempted to introduce the . . . testimony [of the defendants’ representative]
The defendants produced documents and provided testimony specifically in response to the subpoena issued by the plaintiff‘s former husband. The defendants’ tеstimony and disclosures were made in a formal judicial proceeding, and they were relevant to that pro-
ceeding. Therefore, we conclude the court properly determined that the documents and testimony are protected by the doctrine of absolute immunity, as applied to the litigation privilege.
We further conclude, however, that, because absolute immunity protects a party from suit and implicates the trial court‘s subject mаtter jurisdiction, once the trial court determined that the doctrine of absolute immunity applied in this matter, it should have dismissed the plaintiff‘s original complaint against the defendants. The plaintiff should not have been given the opportunity to replead because the court was without jurisdiction to permit a repleading. Accordingly, any action taken after the court determined that absolute immunity applied to all of the plaintiff‘s causes of actiоn against the defendants is void; the court had no jurisdiction. See State v. Ramos, 306 Conn. 125, 142, 49 A.3d 197 (2012) (“Under well established law, it is clear that the trial court‘s lack of subject matter jurisdiction to hear the motion to withdraw rendered void its denial of that motion. See Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 725, 894 A.2d 259 (2006); see also 1 A. Freeman, Judgments (5th Ed. 1925) § 322, pp. 643-44 (“A judgment void upon its face and requiring only an inspection of the record to demonstrate its invalidity is a mere nullity, in legal effect no judgment at all, conferring no right and affording no justification. . . . It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void.“).“); State v. Reid, 277 Conn. 764, 776, 894 A.2d 963 (2006); Scarfo v. Snow, 168 Conn. App. 482, 484, 146 A.3d 1006 (2016) (despite trial court‘s thorough memorandum of decision, when form of judgment improper due to lack of subject matter jurisdiction, judgment must be reversed and matter remanded to trial court with direction to dismiss case).
In sum, because the defendants were entitled to absolute immunity, the court lacked jurisdiction, and the court, therefore, should have dismissed the case.
The form of the judgment is improper, thе judgment is reversed, and the case is remanded with direction to render judgment of dismissal.
In this opinion the other judges concurred.