Field v. Kearns, No. 14689

CourtAppellate Court of Connecticut
Writing for the CourtLANDAU
Docket NumberNo. 14689
PartiesArthur FIELD v. James M. KEARNS.
Decision Date07 November 1996

Page 148

682 A.2d 148
43 Conn.App. 265
Arthur FIELD
v.
James M. KEARNS.
No. 14689.
Appellate Court of Connecticut.
Argued March 22, 1996.
Decided Sept. 24, 1996.
Certification Denied Nov. 7, 1996.

Page 149

Michael W. Lyons, Norwalk, with whom, on the brief, was Arthur M. Field, for appellant (plaintiff).

Julie Harris, Glastonbury, for appellee (defendant).

Martin B. Margulies, Bridgeport, and Martha Stone, Hartford, filed a brief, for Connecticut Civil Liberties Union Foundation as amicus curiae.

Before LANDAU, SCHALLER and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

This is an appeal by the plaintiff, Arthur Field, from the judgment of the trial court granting the motion by the defendant, James M. Kearns, for summary judgment as to all counts of a seven count complaint and denying the plaintiff's cross motion for partial summary judgment.

On appeal, the plaintiff claims that the trial court improperly determined that (1) bar grievants are entitled to absolute immunity from claims of abuse of process and vexatious litigation as alleged in the first, second, and third counts of the complaint, (2) the defendant was entitled to judgment on the fourth and [43 Conn.App. 267] counts of the complaint because he owed no duty to the plaintiff under negligence law and under the provisions of the Connecticut Unfair Trade Practice Act, General Statutes § 42-110a et seq. (CUTPA), and (3) the defendant was entitled to judgment on the fifth and sixth counts involving publication of a earlier complaint filed by the defendant. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff is an attorney who represented Wendy Wirtz in 1989 in a closing on the purchase of a house. In 1991, Wirtz became involved in a foreclosure action involving the same real estate. In February, 1992, Wirtz retained the defendant, also an attorney, to represent her in a malpractice lawsuit against the plaintiff. On February 4, 1992, the defendant requested from the plaintiff, in writing, that the plaintiff notify his professional malpractice insurance carrier of the lawsuit. Thereafter, a correspondence ensued between the two attorneys that could most charitably be described as unpleasant. The plaintiff declined to notify his insurance carrier and refused to furnish any information regarding his malpractice carrier.

In addition to the malpractice lawsuit, the defendant, on April 27, 1992, also filed a complaint against the plaintiff with the statewide grievance committee (committee) alleging that the plaintiff obstructed the judicial process by failing to appear in the lawsuit and by failing to confirm that his malpractice carrier had been notified of the existence of the claim. The plaintiff responded to the subsequent inquiry of the local panel of the committee by furnishing a copy of the declarations page of his professional liability policy. 1 On June 17, 1992, the [43 Conn.App. 268] sent

Page 150

a copy of the complaint in the new civil action to the insurance carrier's claims department. 2

In an amended complaint filed February 3, 1993, the plaintiff instituted the underlying action that culminated in this appeal. In the complaint, the plaintiff alleges that the filing and pursuit of the grievance by the defendant constituted an abuse of process (count one); that the failure of the defendant to withdraw the grievance after the first lawsuit was withdrawn was also an abuse of process (count two); that the defendant's filing of, pursuit of, and failure to withdraw the grievance constituted vexatious litigation (count three); that the preparation and pursuit of the pending lawsuit filed on behalf of Wirtz constituted negligence on the part of the defendant (count four); that, by mailing copies of the civil and grievance complaints against the plaintiff to the plaintiff's malpractice insurance carrier, the defendant tortiously interfered with the plaintiff's business relationship with the carrier (count five); that the publishing of the civil and grievance complaints constituted libel (count six); and that the defendant's actions violated the provisions of CUTPA (count seven).

After unsuccessfully moving to strike all counts of the complaint, the defendant filed an answer denying the allegations in the complaint and asserting three special defenses in which he claimed that he (1) "has an absolute privilege against any liability arising out [of his] complaint ... [filed] with the [committee]," (2) has "absolute immunity against liability arising out [of his] complaint ... [filed] with the [committee] and for representations made in the course of judicial proceedings" and (3) "has a conditional privilege as to [43 Conn.App. 269] set forth in the complaint." The defendant filed a motion for summary judgment and the plaintiff filed an objection. The plaintiff also filed a motion for summary judgment as to liability. 3

The trial court granted the defendant's motion for summary judgment and denied the plaintiff's motion for partial summary judgment. The court determined that "the public policy of protecting the courts and the public from unethical and unprofessional attorneys is so strong that there is absolute immunity for the complainant in filing or otherwise causing the institution of attorney disciplinary proceedings." Having found that the theory of absolute immunity applies to the defendant, the court ruled that the defendant was entitled to summary judgment on the first, second and third counts of the amended complaint. The court further opined that the "content of statements in civil actions is likewise privileged," and granted summary judgment "as a matter of law" as to the sixth count. As to the fourth and seventh counts, because the plaintiff "failed to allege, let alone prove by any competent evidence ... that [the defendant] owed any duty to [him]," the court ruled that those counts also had to fall casualty to the motion for summary judgment. Last, as to the fifth count, the court ruled that summary judgment was appropriate because the plaintiff produced no evidence of "any harm to his business relationship with his carrier or anyone else as a result of [the defendant's] actions." This appeal follows.

"The standards governing our review of a trial court's decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no [43 Conn.App. 270] issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn.App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180

Page 151

Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... Bassin v. Stamford, 26 Conn.App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts.... Trotta v. Branford, supra, [at] 410 [601 A.2d 1036]." (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn.App. 569, 572-73, 626 A.2d 1306 (1993).

"Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment.... [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Fleet Bank, N.A. v. Galluzzo, 33 Conn.App. 662, 665-66, 637 A.2d 803, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994).

I

The plaintiff first claims that the trial court improperly determined that bar grievants are entitled to absolute immunity for the content of statements made during a judicial or quasi-judicial proceeding. The issue [43 Conn.App. 271] whether bar grievants are entitled to absolute immunity for statements made to the committee, pursuant to the teachings of Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986), and its progeny, is a question of first impression in Connecticut. We conclude that absolute immunity does exist.

A

In Connecticut, parties to or witnesses before judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of statements made therein. Petyan v. Ellis, supra, 200 Conn. at 245-46, 510 A.2d 1337. "The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not.... It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character. [W.] Prosser & [W.] Keeton, Torts (5th Ed. [1984] ) § 114, pp. 818-19." (Internal quotation marks omitted.) Id., at 246, 510 A.2d 1337.

The function of the committee in conducting investigations into alleged attorney misconduct has been labeled sui generis--neither civil or criminal. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 238, 558 A.2d 986 (1989). As a result, the bar grievance process is not correctly labeled a judicial proceeding. 4 In determining whether a proceeding is quasi-judicial,...

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