Fiondella v. City of Meriden

          Argued October 9, 2018

         Procedural History

         Action seeking damages for, inter alia, fraud, and seeking declaratory and injunctive relief, brought to the Superior Court in the judicial district of New Haven at Meriden, where the court, Hon. John F. Cronan, judge trial referee, granted the motion to dismiss filed by the defendant Adele G. Eberhart et al., and rendered judgment thereon, from which the plaintiffs appealed to this court. Reversed; further proceedings.

          Dominic J. Aprile, for the appellants (plaintiffs).

          Vincent T. McManus, Jr., for the appellees (defendant Adele G. Eberhart et al.).

          DiPentima, C. J., and Lavine and Harper, Js.

          OPINION

          LAVINE, J.

         The plaintiffs, Michael J. Fiondella, Jr., trustee of the Jo-An Carabetta 1983 Irrevocable Trust (trust), and The Meriden Homestead, LLC, appeal from the judgment of the trial court dismissing the counts of the complaint alleged against the defendants, Adele G. Eberhart, Harry S. Eberhart, and Vincent T. McMa-nus, Jr.^[1] On appeal, the plaintiffs claim that the court improperly (1) applied the litigation privilege in favor of the defendants to conclude that it lacked subject matter jurisdiction and (2) construed the fraud and civil conspiracy allegations against the defendants. We agree that the court improperly applied the litigation privilege to determine that it lacked subject matter jurisdiction. We, therefore, reverse the judgment of the trial court.^[2]

         The historical facts underlying the present appeal were set out in Eberhart v. Meadow Haven, Inc., 111 Conn.App. 636, 960 A.2d 1083 (2008), a declaratory judgment action in which the Eberharts sought to obtain ownership of certain land by means of adverse possession. Id., 638. The land at issue lies under a driveway adjacent to their home in the Shaker Court subdivision (subdivision) in Meriden. Id. On October 5, 1966, Meadow Haven, Inc. (Meadow Haven), conveyed lot seven in the subdivision to the Eberharts. Id. Lot seven is one of thirty lots in the subdivision and sits on the corner of Sandy Lane, a public way, and Shaker Court, an unpaved right-of-way. Id. When the Eberharts moved into their home on lot seven, they used the driveway that Meadow Haven had installed to reach Sandy Lane. Id.

         The Eberharts later learned that the driveway was not located on lot seven but on an abutting lot. Id., 639. The Eberharts informed Joseph Carabetta, a Meadow Haven principal, who had the land surveyed. He then resubdivided the abutting lot to move the Eberharts' property line to encompass the driveway. A deed reflecting the enlargement of lot seven, however, never was filed in the land records. Id. The revised subdivision, therefore, never went into effect, but the Eberharts relied on Carabetta's representations that the ‘‘problem had been fixed.'' Id., 640. The Eberharts made exclusive use of the driveway, planted a hedge, installed light posts and planters, and maintained the driveway and lawn over the disputed area. Id.

         In 2004, the Eberharts commenced an action seeking a declaratory judgment that they were the legal owners of the land under the driveway by operation of the doctrine of adverse possession. Following a trial, the court, Jones, J., found by clear and convincing evidence that the Eberharts were the owners of the subject parcels by adverse possession and rendered a declaratory judgment in their favor. Id., 638-39. Meadow Haven appealed, and this court affirmed the declaratory judgment. Id., 649.

         On July 7, 2016, the plaintiffs commenced the present action alleging claims for fraud, slander of title, and civil conspiracy. Specifically, the plaintiffs alleged that they were owners of certain lots in the subdivision, that the defendants failed to give them notice of the declaratory judgment action, and that they only recently had learned of the declaratory judgment. On December 5, 2016, the defendants filed a motion to dismiss the present action on the ground that the court lacked subject matter jurisdiction because the litigation privilege shielded them from the claims alleged by the plaintiffs.^[3]The plaintiffs filed an opposition to the motion to dismiss, arguing that the defendants were not protected by the litigation privilege because the allegations of the complaint were not predicated on statements made in the course of a declaratory judgment action but on the defendants' intentional conduct to conspire and conceal the declaratory judgment action from them.

         The motion to dismiss was heard at short calendar on May 25, 2017. The court, Hon. John F. Cronan, judge trial referee, issued a memorandum of decision on August 18, 2017, granting the defendants' motion on the ground that the litigation privilege shielded the defendants from the plaintiffs' claims.^[4] The plaintiffs appealed, claiming, in essence, that the court improperly granted the defendants' motion to dismiss pursuant to the litigation privilege. We agree.

         ‘‘The standard of review for a court's decision on a motion to dismiss . . . is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [O]ur review of the court's ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts, which are well pleaded, invokes the existing record and must be decided upon that alone. . . . In undertaking this review, we are mindful of the well established notion that, in ...