Kenneson v. Eggert

• Citation: 230 A.3d 795,196 Conn.App. 773
• Decision Date: 31 March 2020
• Docket Number: AC 42170
• Court: Appellate Court of Connecticut
• Parties: Kimberly KENNESON v. Celia EGGERT et al.

196 Conn.App. 773

230 A.3d 795

Kimberly KENNESON

v.Celia EGGERT et al.

AC 42170

Appellate Court of Connecticut.

Argued November 19, 2019

Officially released March 31, 2020

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

Andrew P. Barsom, Hartford, with whom, on the brief, was Robert D. Laurie, West Hartford, for the appellees (defendants).

DiPentima, C. J., and Elgo and Devlin, Js.

DiPENTIMA, C.J.

After the trial court granted the motion to dismiss filed by the defendants, Celia Eggert and Nationwide Mutual Fire Insurance Company (Nationwide), the self-represented plaintiff, Kimberly Kenneson, filed this appeal. On appeal, the plaintiff contends that the court erred by concluding that the defendants’ statements and actions were protected under the litigation privilege.¹ We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and relevant procedural history, as recited in an earlier decision of this court involving these parties, are relevant to this appeal. See Kenneson v. Eggert , 176 Conn. App. 296, 170 A.3d 14 (2017). In January, 2007, the plaintiff commenced a civil action against Carl Rosati and Michael Altman for negligence, battery and recklessness [arising from a physical altercation between Rosati and Altman that injured the plaintiff]. 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 [for negligence] and $380,037.38 against Rosati [$45,037.38 in negligence and $335,000 in recklessness]. 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 [Shane Gingras] appeared in court for a hearing [on a motion to seal filed by the plaintiff] and a settlement conference [that Eggert requested]. 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 she ultimately accepted." (Footnote omitted.) Id., at 299–300, 170 A.3d 14.

"Pursuant to the settlement agreement, the plaintiff signed a general release and 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.’ " Id., at 300, 170 A.3d 14. The plaintiff then filed the withdrawal form with the court the following day on July 19, 2011.

"The plaintiff subsequently discovered that she was unable to collect damages against 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 had 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 Pellegrino'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 court heard oral argument and denied the plaintiff's motions [for compliance with the court's discovery orders]. The court held 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 was unable to prove her claims for common-law fraud." Id., at 300–302, 170 A.3d 14.

The plaintiff then appealed to this court. In that appeal, she argued that the court erred by concluding that the intentional misrepresentation aspect of her fraud claim was barred by collateral estoppel. Id., at 299, 170 A.3d 14. This court noted that, in her amended complaint filed in December, 2014,² the plaintiff essentially alleged two claims of fraud: intentional misrepresentation and fraudulent nondisclosure. The plaintiff first alleged that Eggert "falsely represented to the plaintiff ... that she would not get any of her $67,556.07 award against ... Altman unless she signed a document ... to settle the judgment ...." (Internal quotation marks omitted.) Id., at 303, 170 A.3d 14. Second, the plaintiff alleged that "Eggert, with the intent to deceive the plaintiff, knowingly failed to disclose and/or concealed that [the release and the withdrawal] would result in the loss of the plaintiff's right to reallocate damages ...." (Internal quotation marks omitted.) Id., at 303, 170 A.3d 14. This court reversed the trial court's determination that there was no genuine issue of material fact on the plaintiff's intentional misrepresentation claim; id., at 307, 170 A.3d 14 ; but affirmed the court's determination that she was collaterally estopped from raising the fraudulent nondisclosure aspect of her fraud claim. Id., at 312, 170 A.3d 14. The matter was remanded back to the trial court. Id., at 314, 170 A.3d 14.

Following the remand, the defendants filed the motion to dismiss that is the subject of this appeal. In their memorandum of law in support of the motion, the defendants argued that the litigation privilege³ barred the plaintiff's claim and, as a result, the court lacked subject matter jurisdiction. The trial court, Brazzel-Massaro, J. , agreed with the defendants and granted their motion to dismiss. The court found that the defendants had satisfied the requirements for absolute immunity under the litigation privilege. This appeal followed. Additional facts will be set forth as necessary.

We begin with the well established standard of review for reviewing a trial court's decision on a motion to dismiss. "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." Metcalf v. Fitzgerald , 333 Conn. 1, 6–7, 214 A.3d 361 (2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 854, 205 L. Ed. 2d 460 (2020).

We next set forth the relevant law applicable to the litigation privilege. "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." (Internal quotation marks omitted.) Bruno v. Travelers Cos. , 172 Conn. App. 717, 724–25, 161 A.3d 630 (2017).

"Connecticut has long recognized the litigation privilege ... [and has extended it] to judges, counsel and witnesses participating in judicial proceedings." (Citations omitted; internal...