JAY M. TYLER ET AL.
November 19, 2015.
to recover damages for, inter alia, fraud, and for other
relief, brought to the Superior Court in the judicial
district of Tolland, where the court, Cobb, J., granted the
defendant's motion to dismiss and rendered judgment
thereon; thereafter, the court granted the plaintiffs'
motion to reargue, denied the relief requested therein, and
the plaintiffs appealed to this court.
D. Tyler, self-represented, and Jay M. Tyler,
self-represented, the appellants (plaintiffs).
Eldergill, for the appellee (defendant).
Sheldon and Mullins, Js. SHELDON, J. In this opinion the
other judges concurred.
Conn.App. 83] SHELDON, J.
issue in this case is whether the litigation privilege, also
referred to as absolute immunity, shields a defendant from
claims of fraud and violations of the Connecticut Unfair
Trade Practices Act (CUTPA) arising from
communications made during the course of a prior litigation
between the parties. The plaintiffs, Jay Tyler and Bruce
Tyler, appeal from the trial court's judgment granting
the defendant Richard Tatoian's motion to dismiss. The
plaintiffs are brothers who were named, inter alios, as
beneficiaries of [164 Conn.App. 84] their mother's trust,
for which the defendant, an attorney, served as trustee. The
alleged mismanagement of the trust by the defendant was the
subject of a prior litigation between these parties, and on
the basis of various communications made by the defendant in
that prior litigation, the plaintiffs brought this action
alleging fraud and violations of CUTPA. The defendant filed a
motion to dismiss, asserting that the litigation privilege
applied to his statements because they were made in the
course of the prior litigation, and thus that he was
absolutely immune. The trial court agreed with the defendant
and dismissed the plaintiffs' complaint in its entirety.
On appeal, the plaintiffs claim error in the trial
court's application of absolute immunity to their claims
of fraud and violations of CUTPA, which they assert fall
under an exception to absolute immunity for causes of action
alleging an improper use of the judicial system. We affirm
the judgment of the trial court.
purposes of this appeal, we must take as true the following
facts as set forth in the plaintiffs' complaint. See
Rioux v. Barry, 283 Conn. 338, 341, 927 A.2d 304
(2007) (" [b]ecause in this appeal we review the trial
court's ruling on a motion to dismiss, we take the facts
to be those alleged in the complaint, construing them in a
manner most favorable to the pleader" [internal
quotation marks omitted]). The plaintiffs' mother, Ruth
Tyler, established a trust naming the plaintiffs as
beneficiaries and the defendant as trustee. Following their
mother's death, the plaintiffs commenced an
action against the defendant in early 2011,
alleging, inter alia, that he had mismanaged the trust by
failing to diversify the trust's assets. The defendant
testified during a deposition in that case that he had relied
on the advice of [164 Conn.App. 85] an investment advisor in
deciding not to diversify the trust assets. In response to
that testimony, the plaintiffs requested that the defendant
pursue a claim against the advisor to recover for the losses
of the trust pursuant to General Statutes §
45a-541i. The defendant declined this request,
and the court likewise denied the plaintiffs' motion to
compel the defendant to seek recovery from the advisor. The
plaintiffs thus attempted to recover from the investment
advisor directly by citing in the advisor and amending their
complaints, which the court ultimately dismissed for lack of
standing. Upon that dismissal, the plaintiffs amended their
complaints against the defendant to include counts seeking
damages for his failure to pursue a claim against the advisor
to recover for the losses of the trust. In order to prevail
on their claims, the plaintiffs had to establish that the
defendant relied on the advice of the investment adviser in
deciding not to diversify the trust funds. At trial in
October, 2013, the defendant testified that he had not [164
Conn.App. 86] relied on the advisor's advice in deciding
not to diversify the trust assets. The jury returned a
verdict for the defendant.
the jury's verdict against the plaintiffs in the initial
action, the plaintiffs commenced a second action against the
defendant on October 28, 2014, in the judicial district of
Tolland at Rockville, alleging fraud and violations of CUTPA.
In their claim of fraud, the plaintiffs alleged that the
defendant's differing testimony at his deposition and at
trial constituted a fraud that caused them to waste resources
in pursuing claims against the investment advisor and the
defendant for the losses of the trust's assets, and that
such fraud constituted an abuse of the legal system. In the
CUTPA count, the plaintiffs alleged that the defendant
engaged in unfair business practices by (1) "
perpetrating a fraud on the plaintiffs by making false
statements under oath" ; (2) intimidating Jay Tyler by
sending him a letter stating that " unless he withdrew
his claims immediately the costs incurred by him and the
trust [would] result in a claim against him for the cost of
defenses, including legal fees" ; and (3) seeking court
approval for accountings of the trust that included
exorbitant fees when he had no fee agreement with Ruth Tyler.
defendant filed a motion to dismiss the plaintiffs'
complaint, claiming that the defendant's communications
in the initial case were made during the course of judicial
proceedings and were thus protected by the litigation
privilege. The court granted the motion, ruling that "
the defendant's statements made in court and in a
deposition in that prior action are absolutely privileged
under the legal doctrine known as the litigation privilege.
Simms v. Seaman, 308 Conn. 523 [69 A.3d 880] (2013);
Rioux v. Barry, [supra] 283 Conn. 338, 927 A.2d 304
. . . . Because the plaintiffs' action is premised wholly
on statements made by the defendant in connection with
judicial proceedings, and those statements are [164 Conn.App.
87] absolutely privileged, this case is dismissed." The
plaintiffs filed a motion to reargue the motion to dismiss,
which the court granted. The court denied the relief
requested but clarified its initial dismissal of the
complaint as follows: " [T]he court clarifies that . . .
its prior order granting the defendant's motion to
dismiss also applies to count two of the complaint, which
relies upon a litigation-related letter, which is attached to
the complaint. See Hopkins v. O'Connor, 282
Conn. 821, 832, 925 A.2d 1030 (2007) ('[t]he scope of the
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
plaintiffs claim that the trial court erred in not
recognizing the exception from absolute immunity for cases in
which the plaintiff alleges that the defendant improperly
used the judicial system. The defendant responds that all of
his statements were made in the course of a judicial
proceeding, and that the limited exception for claims
alleging an improper use of the judicial system does not
Because the resolution of this claim requires us to consider
the trial court's ultimate legal conclusion and its
resulting judgment of dismissal, our review is de novo."
Rioux v. Barry, supra, 283 Conn. 343.
" As the doctrine of absolute immunity concerns a
court's subject matter jurisdiction . . . 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. . . . The question
before us is whether the facts as alleged in the pleadings,
viewed in the light most favorable to the plaintiff, are
sufficient to survive dismissal on the grounds of absolute
immunity." (Citations omitted; internal quotation marks
omitted.) Perugini v. Giuliano, 148 Conn.App. 861,
873, 89 A.3d 358 (2014).
Conn.App. 88] " It is well settled that communications
uttered or published in the course of judicial proceedings
are absolutely privileged so long as they are in some way
pertinent to the subject of the controversy." (Internal
quotation marks omitted.) Hopkins v. O'Connor,
supra, 282 Conn. 830-31. The privilege extends
beyond statements made during a judicial proceeding to "
preparatory communications that may be directed to the goal
of the proceeding." Id., 832. The litigation
privilege was initially applied to bar claims of defamation.
See Simms v. Seaman, supra, 308 Conn.
531-40 (detailing history of litigation privilege). More
recently, however, our Supreme Court has expanded the scope
of immunity afforded to statements made during the course of
a judicial proceeding beyond just defamation torts. See, e.g,
Simms v. Seaman, supra, 308 Conn. 569
(" attorneys are protected by the litigation privilege
against claims of fraud for their conduct during judicial
proceedings" ); Rioux v. Barry, supra,
283 Conn. 350 (" absolute immunity does bar the
plaintiff's claim of intentional interference with
contractual or beneficial relations" ); Petyan v.
Ellis, 200 Conn. 243, 255, 510 A.2d 1337 (1986)
(absolute immunity bars claim of intentional infliction of
emotional distress based on allegedly defamatory statement).
expanding the scope of the litigation privilege, however, our
Supreme Court has " recognized a distinction between
attempting to impose liability upon a participant 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, we have
refused to apply absolute immunity to causes of action
alleging the improper use of the judicial system."
(Citation omitted.) MacDermid, Inc. v. Leonetti, 310
Conn. 616, 629, 79 A.3d 60 (2013); see also, e.g., id.,
625-26 (litigation privilege did not shield claim by employee
against employer alleging that employer had brought claims
against employee solely [164 Conn.App. 89] in retaliation for
employee exercising his rights under Workers'
Compensation Act); Rioux v. Barry, supra,283 Conn. 343 (" in the context of a quasi-judicial
proceeding, absolute immunity does not attach to statements
that provide the ground for the tort ...