Superior Court of Connecticut, Judicial District of New Haven, New Haven
Filed August 19, 2015
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #115
Brian T. Fischer, J.
The plaintiff, Alan Gordon, instituted the present action through service of process on the defendant, Irving Perlmutter, on April 29, 2014. The revised complaint filed on March 12, 2015 (the complaint), alleges four counts of extortion, fraud, unethical conduct, and violation of the rules of professional conduct arising out of a divorce case, judgment in which entered on the parties' stipulated separation agreement on April 18, 2011, in which the defendant, an attorney, represented the plaintiff's former wife, Carol Gordon.
The first count, entitled extortion, combined with the background section of the complaint, alleges the following facts. The defendant " knowingly and willfully threatened plaintiff with jail if he failed to sign the separation agreement that he, defendant Perlmutter, wrote for his client, Carol Gordon." The defendant attempted to intimidate the plaintiff on multiple occasions beginning on March 7, 2011, by stating that Carol Gordon would file a complaint with the police department for violation of a restraining order preventing the plaintiff from entering the plaintiff's former home. Without the plaintiff's knowledge, Carol Gordon filed a complaint against the plaintiff on March 21, 2011, and an arrest warrant was issued against him on April 5, 2011. The plaintiff, fearing arrest, eventually agreed to sign the dissolution agreement and did so on April 18, 2011. The plaintiff was arrested shortly thereafter, on April 24, 2011. The defendant had no authority to withdraw the warrant, but led the plaintiff to believe he did.
The second count alleges that the defendant committed fraud in the following ways. He led the plaintiff to believe a variety of things which were not true or he misrepresented the truth. He coached Carol Gordon in how to have the plaintiff removed from his home by instructing her to call the police when they were having verbal arguments then to request a restraining order against him. She had never had occasion to call the police in their 22 years of marriage and had never mentioned any fear of the plaintiff even though he kept a number of guns in a gun cabinet in the basement and she had gone target shooting with him in the past. The defendant also told the court several times that Carol Gordon's assets were not listed on her financial statement because they were properties in trust; this was not true. Finally, he knowingly violated Rule 4.1(2)(3), presumably of the Rules of Professional Conduct, in that he knew or should have known that the sworn financial affidavit of Carol Gordon contained multiple intentionally fraudulent misrepresentations.
The third count alleges that the defendant committed unethical conduct by directing Carol Gordon to file a police complaint against the plaintiff, then leading him to believe that no criminal charges would be filed against him as long as he signed the separation agreement. Moreover, the defendant added a stipulation clause to the agreement stating that the plaintiff wouldn't face criminal charges when neither he nor Carol Gordon had the power to prevent criminal charges from being brought. This was in violation of " CPB 10-35" and Rule 8.4. As stated earlier, the defendant was in fact arrested on April 24, 2011, after signing the separation agreement on April 18, 2011.
The fourth count alleges that the defendant violated Rules of Professional Conduct § 3.4(7) by using a criminal matter, the pending arrest warrant, to gain an advantage in a civil lawsuit. The defendant specifically references the hearing before the court on March 17, 2011, as self-evident that the defendant knowingly violated this rule.
The defendant moved for summary judgment on March 26, 2015, on the grounds that he was protected by the litigation privilege afforded all attorneys during the course of litigation, that a violation of the rules of professional conduct cannot be the basis of any claim, that the statute of limitations for tort actions had expired prior to service of process, and that the plaintiff never had an attorney-client relationship with the defendant. In support of his motion, the defendant filed a memorandum in support and his own affidavit, and requested that the court take judicial notice of the prior history of the divorce case between the plaintiff and Carol Gordon as stated in Gordon v. Gordon, supra, 148 Conn.App. 59, 84 A.3d 923, and Gordon v. Gordon, Superior Court, Judicial District of New Haven, Docket No. FA-10-4044068-S. The plaintiff filed a memorandum in opposition, styled a " reply, " on May 18, 2015. The court also heard oral argument on May 18, 2015, after which it took the matter on the papers.
As a preliminary matter, the court must note that the Appellate Court has stated that a claim of litigation privilege, also termed absolute immunity; see Simms v. Seaman, 308 Conn. 523, 535-36, 69 A.3d 880 (2013); implicates the court's subject matter jurisdiction. Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014) (" the doctrine of absolute immunity concerns a court's subject matter jurisdiction"). Likewise, the Supreme Court has indicated that " the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state"; Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005); which implicates subject matter jurisdiction; Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011). The Supreme Court has also addressed absolute immunity in other contexts without reference to whether it implicates subject matter jurisdiction. See Gallo v. Barile, 284 Conn. 459, 466-68, 935 A.2d 103 (2007) (addressing motion for summary judgment on litigation privilege grounds without comment as to whether subject matter jurisdiction implicated); Simms v. Seaman, 308 Conn. 523, 528, 69 A.3d 880 (2013) (addressing motion to strike on litigation privilege grounds, determining that claims were barred as a matter of law). In MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013), the Supreme Court affirmed the trial court's denial of a motion to dismiss based on absolute immunity, and noted: " The defendant also posits, as an alternate ground for affirmance, that absolute immunity does not implicate subject matter jurisdiction and, therefore, must be raised as a special defense rather than by way of a motion to dismiss. Because we affirm the judgment of the trial court, we need not address this argument." Id., 626 n.8.
Based on the holding in Perugini v. Giuliano, supra, 148 Conn.App. 861, the court will address the litigation privilege argument first as an argument that the court lacks jurisdiction over the first two counts. See Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003) (once subject matter jurisdiction raised, it must be decided); Carney v. Amendola, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-10-6003738-S, 2014 Conn. Super. LEXIS 1206 (May 14, 2014, Brazzel-Massaro, J.) (defendant filed motion for summary judgment, court construed as motion to dismiss for lack of subject matter jurisdiction).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 626. " Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction." (Internal quotation marks omitted.) Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).
" [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts . . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties." (Citations omitted; footnotes omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 652-54, 974 A.2d 669 (2009). " [W]here a jurisdictional determination is not dependent on the resolution of a meaningful factual dispute, there is no requirement that the court conduct a fact-based hearing." Countrywide Home Loans Servicing, LP v. Creed, 145 Conn.App. 38, 47, 75 A.3d 38, cert. denied, 310 ...