Scholz v. Epstein

• Decision Date: 16 June 2020
• Docket Number: AC 42419
• Citation: 198 Conn.App. 197,232 A.3d 1155
• Court: Connecticut Court of Appeals
• Parties: Stephen W. SCHOLZ v. Juda J. EPSTEIN

198 Conn.App. 197

232 A.3d 1155

Stephen W. SCHOLZ

v.Juda J. EPSTEIN

AC 42419

Appellate Court of Connecticut.

Argued January 13, 2020

Officially released June 16, 2020

Jonathan J. Klein, Bridgeport, for the appellant (plaintiff).

Daniel J. Krisch, Hartford, with whom, on the brief, were Joshua M. Auxier and Stephen P. Fogerty, Westport, for the appellee (defendant).

Alvord, Elgo and Eveleigh, Js.

EVELEIGH, J.

This appeal concerns an issue of first impression in Connecticut: whether an attorney is protected by absolute immunity under the litigation privilege from a claim of statutory theft¹ arising from the attorney's conduct during prior judicial proceedings. The plaintiff, Stephen W. Scholz, appeals from the judgment of the trial court granting the motion of the defendant, Attorney Juda J. Epstein, to dismiss the plaintiff's action for statutory theft for lack of subject matter jurisdiction on the ground that the defendant was protected by absolute immunity pursuant to the litigation privilege. On appeal, the plaintiff claims that the court erred in (1) granting the defendant's motion to dismiss and determining that the litigation privilege affords the defendant absolute immunity from the plaintiff's action for statutory theft, which was brought pursuant to General Statutes § 52-564, (2) ruling that the public policy considerations underlying the litigation privilege are served by affording the defendant absolute immunity from civil liability for his alleged criminal conduct that was the basis for the statutory theft claim, (3) its application of the balancing of interests test set forth in Simms v. Seaman , 308 Conn. 523, 543–44, 69 A.3d 880 (2013), and (4) granting the motion to dismiss and determining that the defendant was absolutely immune from liability for statutory theft where some of the defendant's alleged criminal conduct was perpetrated outside the scope of judicial proceedings. We affirm the judgment of the trial court.

The following facts, as alleged in the plaintiff's complaint, and procedural history are relevant to our review of the claims on appeal. The plaintiff, who resides at 405 Helen Street in Bridgeport, became the owner of an adjacent lot located at 744 Stillman Street in Bridgeport (Stillman property). When the plaintiff failed to pay the real property taxes on the Stillman property in the amount of $1018.74 that were owed to the city of Bridgeport (city), the city recorded a certificate of lien on the land records on April 7, 2014, for the unpaid taxes, interest and related charges. The lien was thereafter sold to Benchmark Municipal Tax Services, Ltd. (Benchmark), pursuant to an assignment that was recorded on the land records on April 29, 2014. Benchmark is a client of the defendant, who is an attorney licensed to practice law in the state of Connecticut. Pursuant to a writ of summons and complaint dated April 22, 2016, the defendant, acting as Benchmark's attorney, commenced a civil action against the plaintiff to foreclose the lien. According to the complaint in the present case, "[t]he summons recited the address of the owner of the [Stillman] property, [the plaintiff], as ‘69 Settlers Farm Road, Monroe, CT 06468,’ " and "[t]he state marshal's return of service, dated April 26 and 29, 2016 ... does not reflect that service was made on [the plaintiff], nor does it describe any effort made by the state marshal to locate [the plaintiff] or to attempt to effect service on him."

The plaintiff further alleged in his complaint that "throughout his prosecution of the foreclosure action, [the defendant] knew that [the plaintiff] resided at 405 Helen Street ... not 69 Settlers Farm Road" in Monroe by virtue of certain facts. Those facts include the following: (1) a tax bill for the property that was issued by the city and included the plaintiff's correct address, which was a matter of public record; (2) a demand letter written by the defendant to the plaintiff, addressed to the plaintiff at 405 Helen Street in Bridgeport; (3) a letter written by the defendant to the plaintiff rejecting a payment the plaintiff tendered, which also was addressed to the plaintiff at 405 Helen Street in Bridgeport; (4) a marshal's return of service from a previous tax lien foreclosure action brought against the plaintiff by the defendant on behalf of Benchmark regarding real property taxes that were due on the property at 405 Helen Street, which stated that service was made on the plaintiff at his usual place of abode, 405 Helen Street in Bridgeport; and (5) evidence showing that the defendant had served the plaintiff with other documents at that address as well.

According to paragraph 12 of the complaint, the defendant filed a motion to cite in the plaintiff as a defendant in the civil action to foreclose the lien "on the basis of six specific representations he made to the court, all of which were materially false and which [the defendant] knew were materially false when he made them, namely, that: [1] at the time the action was commenced, he believed that ... [the plaintiff] had been properly served; [2] [the plaintiff] was unable to be served; [3] [the defendant] directed a state marshal to effectuate service upon [the plaintiff], but [the plaintiff] was not at any of the ‘possible locations’; [4] [the defendant] had done his due diligence in trying to locate [the plaintiff] but ‘all possible locations’ had been exhausted ... [5] the notice most likely to come to the attention of [the plaintiff] was the publication of an order of notice of the institution of the foreclosure action in the Connecticut Post, a newspaper circulated in the Bridgeport area, once a week for two successive weeks; and [6] ‘the last known address of [the plaintiff] is unknown.’ " Paragraph 13 of the complaint alleged that the defendant "knew that those six representations he made to the court were materially false when he made them" for a number of reasons, including that the defendant knew that the marshal's return of service did not reflect that any service was made on the plaintiff and that the return of service did not describe any effort made by the marshal to locate the plaintiff, and that the defendant knew the possible locations where the plaintiff could have been found, and knew that the plaintiff resided, and could have been properly served, at 405 Helen Street in Bridgeport. In paragraph 16, the plaintiff further alleged that the defendant perpetrated "a fraud upon the court" through his conduct in "knowingly making materially false representations to the court with the intent to induce and cause the court to rely on those statements to order notice by publication and, ultimately, to default [the plaintiff] for failure to appear and to enter a judgment of strict foreclosure ...."

On November 9, 2016, the defendant filed a motion to default the plaintiff for failure to appear in the foreclosure action, which was granted, and, on December 2, 2016, the defendant filed a motion for a judgment of strict foreclosure. According to the complaint, the defendant sought a judgment of strict foreclosure, rather than a foreclosure by sale, by misleading "the court to believe that [the plaintiff's] equity in the property was tens of thousands of dollars less than it truly was by procuring and filing with the court an appraisal report ... [that] was flawed on its face ...." The court granted the motion for a judgment of strict foreclosure on January 9, 2017. The plaintiff alleged that "[b]y wrongfully misleading the court into entering a judgment of strict foreclosure, rather than a judgment of foreclosure by sale, [the defendant] purposefully evaded the requirement of posting a sign on the property within a few feet of the front door of [the plaintiff's] residence at 405 Helen Street ... announcing a scheduled foreclosure auction sale, and thereby purposefully deprived [the plaintiff] of notice that a foreclosure of the property was pending, and purposefully deprived him of the opportunity to redeem the property from the foreclosure or otherwise to act to protect his ownership interest in the property."

The plaintiff further alleged that "[a]s a result of the conduct of [the defendant] [as] alleged ... [the plaintiff] was unaware ... that the tax lien foreclosure action had even been commenced, let alone that it had gone to judgment, that the law days had run, that Benchmark had taken title to the property by strict foreclosure and that Benchmark had sold the property to third parties for a windfall profit ...." Because the plaintiff operated a business on both the property at 405 Helen Street and the Stillman property, he was suddenly faced with the realization that he no longer owned the Stillman property and that his business and livelihood might be destroyed by the loss of the Stillman property. Therefore, he alleged that he was "forced to buy back the [Stillman] property ...." Accordingly, in paragraph 38 of the complaint the plaintiff alleged that the defendant "wrongfully engaged in the conduct alleged ... with the intent to deprive [the plaintiff] of his property and/or to appropriate the property to Benchmark, thereby committing [statutory] theft in violation of ... § 52-564, and causing [the plaintiff] great financial loss."

On June 19, 2018, the defendant filed a motion to dismiss the plaintiff's action for lack of subject matter jurisdiction on the basis of the litigation privilege. In support of his motion, the defendant claimed that because all of the acts alleged in the complaint were committed by the defendant in connection with the litigation process in the foreclosure action, and because he was "acting within the litigation process as counsel for the lienholder in the foreclosure action," he was shielded by the litigation privilege from the plaintiff's claim for statutory theft. On July 17, 2018, the plaintiff filed a memorandum of law in opposition to the defendant's motion to dismiss, claiming that "[t]he absolute...