MICHAEL J. FIONDELLA, JR., TRUSTEE, ET AL.
CITY OF MERIDEN ET AL.
October 9, 2018
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
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.
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. 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
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.
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.
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.
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.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.
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. The plaintiffs appealed, claiming, in
essence, that the court improperly granted the
defendants' motion to dismiss pursuant to the litigation
privilege. We agree.
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 ...