Nardozzi v. Perez

• Decision Date: 17 May 2022
• Docket Number: AC 44539
• Citation: 212 Conn.App. 546,276 A.3d 441
• Parties: James NARDOZZI v. Armando PEREZ et al.
• Court: Connecticut Court of Appeals

212 Conn.App. 546

276 A.3d 441

James NARDOZZI

v.Armando PEREZ et al.

AC 44539

Appellate Court of Connecticut.

Argued January 20, 2022

Officially released May 17, 2022

James J. Healy, Hartford, for the appellant (defendant city of Bridgeport).

Eric R. Brown, for the appellee (plaintiff).

Elgo, Clark and Sheldon, Js.

ELGO, J.

The defendant city of Bridgeport¹ appeals from the judgment of the trial court denying in part its motion to dismiss the action of the plaintiff, James Nardozzi. On appeal, the defendant claims that the court improperly denied its motion to dismiss the ninth count of the plaintiff's complaint on the ground of absolute immunity arising from the litigation privilege. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff, a former officer within the defendant's police department, served as the defendant's assistant police chief between November, 2012, and January, 2016. In March, 2017, the plaintiff brought an action against the defendant sounding in wrongful termination (termination action). The parties reached a settlement agreement with respect to the termination action on March 4, 2020.²

In May, 2018, during the pendency of the termination action, the plaintiff unsuccessfully applied for the defendant's vacant chief of police position. The position was subsequently awarded to Armando Perez.

On October 13, 2020, the plaintiff filed the present complaint "alleg[ing] a conspiracy among the [defendant, Perez and David Dunn] to rig the competitive examination process to fill the position of chief of police in the [defendant's] police department from at least March, 2018, through December, 2018."³ On November 13, 2020, the defendant filed a motion to dismiss with respect to the fourth and ninth counts of the complaint on the ground, inter alia, that the plaintiff's claims were barred by absolute immunity under the litigation privilege.⁴ The defendant argued that the fourth count of the complaint, which alleged that the defendant had fraudulently withheld information concerning the cheating scheme while negotiating a settlement with the plaintiff in the termination action, implicated its conduct during prior litigation proceedings such that absolute immunity under the litigation privilege barred the plaintiff's claim. As to the ninth count, the defendant construed the plaintiff's allegations of computer crime in violation of General Statutes § 53a-251 as a "derivative statutory claim" of the fraud alleged in the fourth count, which, in the defendant's view, merited extending absolute immunity under the litigation privilege to that claim as well. The plaintiff filed an opposition to the motion to dismiss accompanied by a memorandum of law on January 4, 2021, in which he argued, inter alia, that the litigation privilege did not extend to criminally fraudulent behavior and that dismissal with respect to the fourth count of the complaint would not further the public policy aims recognized by Connecticut courts as underlying the development of the litigation privilege. The parties appeared before the court for oral argument on the motion on January 26, 2021.

On January 27, 2021, the court granted in part the defendant's motion to dismiss. The court held that the fourth count of the plaintiff's complaint, which alleged that the defendant fraudulently failed to disclose the cheating scheme during settlement negotiations with respect to the termination action, constituted a protected communication that fell within the litigation privilege. The court further reasoned that the fourth count "is not being used to shield criminal activity" and "is instead directed to an alleged failure to provide the plaintiff with information concerning the cheating scandal during the negotiations of the settlement agreement." In order to prevent a "[direct] attack on the settlement process" of the termination action, the court concluded that the litigation privilege warranted dismissal of the fourth count.

With respect to the ninth count, however, the court denied the defendant's motion. As the court stated: "The actions allegedly taken by Dunn and Perez were not taken in the context of a judicial proceeding. Instead, Dunn and Perez are alleged to have conspired and shared information using their work computers in furtherance of their scheme to cheat in the process of hiring a new chief of police. The allegations in count nine are not dependent upon the fraud claim in count four. The actions asserted in count nine have nothing to do with the judicial proceedings of the first lawsuit. Accordingly, the litigation privilege does not apply and count nine need not be dismissed for that reason." In support of this conclusion, the court further observed that "[t]he claim asserted in count nine is also distinct from the claims raised in the [plaintiff's] first lawsuit." This appeal followed.

On appeal, the defendant claims that the court improperly denied its motion to dismiss the ninth count of the plaintiff's complaint on the ground of absolute immunity.

Our resolution of this claim is governed by the following standard of review and legal principles. "[I]n ruling upon whether a complaint survives a motion to dismiss, 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. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. ... Because a challenge to the jurisdiction of the court presents a question of law, our review of the court's legal conclusion is plenary." (Internal quotation marks omitted.) Scholz v. Epstein , 198 Conn. App. 197, 226, 232 A.3d 1155 (2020), aff'd, 341 Conn. 1, 266 A.3d 127 (2021) ; see also Simms v. Seaman , 308 Conn. 523, 530, 69 A.3d 880 (2013) (explaining that whether absolute immunity applies is question of law over which review is plenary).

"As the doctrine of absolute immunity concerns a [trial] 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).

"Before addressing the applicability of the litigation privilege, [w]e begin our analysis with a review of [this] doctrine ... as set forth in Simms v. Seaman , [supra, 308 Conn. at 531–40, 69 A.3d 880 ]. In Simms , [our Supreme Court] noted that the doctrine of absolute immunity originated in response to the need to bar persons accused of crimes from suing their accusers for defamation. ... The doctrine then developed to encompass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, parties, and witnesses. ... We further noted that, [l]ike other jurisdictions, Connecticut has long recognized the litigation privilege, and that [t]he general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an action in slander ....

"[T]he purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. ... [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint. ... Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine [of absolute immunity] was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state. ... As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with complaints or to testify." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Dorfman v. Smith , 342 Conn. 582, 271 A.3d 53 (2022).

"Th[e] court in Simms , however, explained that there are limits to the application of the litigation privilege. ... Specifically, the litigation privilege does not bar claims for abuse of process, vexatious litigation, and malicious prosecution. ... This is because whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests ....

"Specifically, Simms identified the following factors as relevant to any determination of whether policy considerations support applying absolute immunity to any particular cause of action: (1) whether the alleged conduct subverts the underlying purpose of a judicial proceeding in a...