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Kenneson v. Eggert

Court of Appeals of Connecticut

September 12, 2017

KIMBERLY KENNESON
v.
CELIA EGGERT ET AL.

          Argued March 9, 2017

          Kimberly Kenneson, self-represented, the appellant (plaintiff).

          Robert D. Laurie, with whom, on the brief, was Heather L. McCoy, for the appellees (defendants).

          Keller, Beach and Harper, Js.

         Syllabus

         The plaintiff sought to recover damages from the defendant attorney, E, and the defendant insurance company, N Co., claiming that E had committed fraud against the plaintiff and that N Co. was vicariously liable for E's actions. The plaintiff previously had brought an action for, inter alia, negligence against A, who was insured by N Co., and another individual, R. A was represented by E on behalf of N Co. in the negligence action and after a trial, a jury awarded the plaintiff damages against both A and R. Pursuant to a settlement agreement in that action, the plaintiff had signed a general release and withdrawal form in exchange for settling the case against A for $67, 000. After the plaintiff discovered that she was unable to recover damages from R, she subsequently claimed in a motion to open the judgment in the negligence action that E had engaged in unfair and deceptive behavior by instructing her to sign the release without explaining what it was and how it could affect the judgment in that action. Specifically, the plaintiff alleged that E had misrepresented to her that she would not get any of the damages awarded to her under the settlement unless she signed the general release and withdrawal. After the trial court in the negligence action denied her motion to open and concluded that there was no evidence that E had coerced the plaintiff into signing the release, the plaintiff commenced the action against E and N Co. alleging fraud. In connection with discovery requests made by the plaintiff, the defendants provided a large number of documents but withheld several e-mails between them, claiming that the e-mails were protected by the attorney-client privilege and the work product doctrine. The trial court denied the plaintiff's motions for an order for compliance, concluding that the documents were protected and that the plaintiff had offered no proof to support a claim of fraud that would permit the attorney-client privilege to be pierced. Thereafter, the court granted the defendants' motion for summary judgment and rendered judgment thereon, concluding that the plaintiff was collaterally estopped from asserting her fraud action because the issue had been addressed in the plaintiff's previous negligence action, and the plaintiff appealed to this court.

         Held:

2. The defendants could not prevail on their claim, raised as an alternative ground for affirming the summary judgment, that because the alleged misrepresentation did not relate to a past or existing fact, it was not actionable and, thus, summary judgment was nonetheless proper: there having been no determination by a court of precisely what, if anything, E told the plaintiff at the settlement conference, it was possible that E's alleged misrepresentation could have been construed by the plaintiff as relating to an existing fact by suggesting that the current state of the law was such that the plaintiff could not receive the amount of the judgment unless she signed the release, and, therefore, a genuine issue of material fact existed that precluded summary judgment; moreover, although the defendants claimed that, given certain inconsistencies in the plaintiff's allegations, her claim against them should be disposed of pursuant to the sham affidavit rule, pursuant to which practice a trial court may disregard an offsetting affidavit in opposition to a motion for summary judgment that contradicts an affiant's prior deposition testimony, any inconsistencies in the plaintiff's allegations bore on her credibility and did not destroy the probative value of the evidence, and even if this court were to accept the very narrow sham affidavit rule, which has yet to be expressly recognized by Connecticut appellate courts, the rule would not have been triggered under the circumstances of this case.

         4. The trial court did not abuse its discretion in denying the plaintiff's motions for compliance; contrary to the plaintiff's claim, that court properly determined that certain documents sought by the plaintiff were protected by the attorney-client privilege and the work product doctrine, which were not time limited to the previous tort case as alleged by the plaintiff.

         Procedural History

         Action to recover damages for fraud, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the court, Roraback, J., denied the plaintiff's motions for an order for compliance; thereafter, the court granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Reversed in part; further proceedings.

          OPINION

          BEACH, J.

         The plaintiff, Kimberly Kenneson, appeals from the trial court's summary judgment rendered in favor of the defendants, Celia Eggert and Nationwide Mutual Fire Insurance Company (Nationwide). On appeal, the plaintiff contends that the court improperly held that (1) the defendants were entitled to summary judgment, and (2) certain communications were not discoverable. We reverse in part the trial court's summary judgment and affirm the court's denial of the plaintiff's motions for an order for compliance with the court's discovery order.

         The record reveals the following relevant facts and procedural history. In January, 2007, the plaintiff commenced a civil action against Carl Rosati and Michael Altman for negligence, battery, and recklessness (negligence action).[1] Altman was insured by Nationwide, and Nationwide agreed to provide Altman with a defense. Nationwide arranged for the Law Offices of John Calabrese to represent Altman. Eggert, an attorney with that firm, represented Altman at trial. The plaintiff represented herself at trial and obtained a jury verdict in her favor. The jury awarded the plaintiff damages of $67, 556.07 against Altman and $380, 037.38 against Rosati. Although he was served with process, Rosati did not appear at trial. After the verdict was accepted by the court, Altman filed a motion to set aside the verdict and a motion for collateral source reduction.

         Several weeks later, on July 18, 2011, the plaintiff, Eggert, and a Nationwide claims adjuster appeared in court for a hearing on the motions and a settlement conference. At the settlement conference, Nationwide offered the plaintiff $57, 000 to settle the case against Altman, which the plaintiff declined. Nationwide then offered the plaintiff $67, 000, which the plaintiff ultimately accepted.

         Pursuant to the settlement agreement, the plaintiff signed a general release and a withdrawal form. The release provided, in relevant part, that ‘‘[b]y signing this release, [the plaintiff] expressly acknowledges that he/ she has read this document with care and that he/she is aware that by signing this document he/she is giving up all rights and claims and causes of action, and any and all rights and claims that he/she may now have or which may arise in the future . . . against [Nationwide and Altman] . . . . Knowing this . . . he/she signs this document voluntarily and freely without duress.'' The release also stated that ‘‘[the plaintiff] further acknowledges that no representation of fact or opinion has been made to him/her by [Nationwide and Altman] . . . which in any manner has induced [the plaintiff] to agree to this settlement.'' The plaintiff signed the release before two witnesses and a notary public.

         The plaintiff subsequently discovered that she was unable to collect damages from Rosati, who had been uninsured and had died without assets in August, 2013. On April 28, 2014, the plaintiff filed a motion to open the judgment and a motion to reinstate Altman as a defendant. The plaintiff argued that she did not know that signing the release would prevent her from reallocating the damages, at least in part, against Rosati to Altman and Nationwide, and that Eggert engaged in ‘‘unfair and deceptive'' behavior when she instructed her to sign the release ‘‘without explaining what it was and how it can affect a judgment.''

         Altman filed an objection, arguing that the release was valid and that the plaintiff was aware of the nature of the document when she signed it. On June 20, 2014, the court, Pellegrino, J., heard oral argument on the plaintiff's motion to open. During oral argument, Judge Pellegrino questioned the plaintiff regarding the alleged fraud committed by Eggert. Judge Pellegrino ultimately denied the plaintiff's motion, noting that there was no evidence that Eggert had coerced the plaintiff into signing the release, and that the release, by its terms, provided that the plaintiff had read the document with care. The plaintiff did not appeal from Judge Pellerino's decision.

         On July 17, 2014, the plaintiff commenced the present action against the defendants, alleging that Eggert had committed fraud against the plaintiff and that Nationwide was vicariously liable for her actions. The plaintiff subsequently made several discovery requests to the defendants, and the defendants objected. After a hearing, the court ordered the defendants to produce responsive documents and to provide a privilege log for any documents they redacted or withheld. The defendants subsequently provided a large number of documents, but withheld several e-mails between them, claiming that those communications were protected by attorney-client privilege and the work product doctrine. The plaintiff filed motions for compliance against both defendants. The court heard oral argument and denied the plaintiff's motions. The court held that the plaintiff was not entitled to materials protected by the attorney client privilege or the work product doctrine, and that the plaintiff had offered ‘‘[n]o quantum of proof . . . to support a claim of civil fraud which would permit the privilege to be pierced.''

         On December 4, 2014, the defendants filed a motion for summary judgment, arguing that the plaintiff's claim was barred by the doctrine of collateral estoppel, because Judge Pellegrino's decision on the plaintiff's motion to open in the negligence action had previously addressed the fraud issue. They also argued that the claim was barred by the terms and conditions of the release. The plaintiff filed a memorandum of law in opposition to the motion to which the defendants replied, and the parties appeared for argument on August 8, 2015. The court held that the plaintiff was collaterally estopped from asserting her fraud claims and that, even if collateral estoppel did not apply, the defendants were entitled to summary judgment because the plaintiff ...


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