Simms v. Seaman

• Court: Appellate Court of Connecticut
• Citation: 23 A.3d 1,129 Conn.App. 651
• Decision Date: 28 June 2011
• Docket Number: No. 31809.,31809.
• Parties: Robert SIMMSv.Penny Q. SEAMAN et al.

129 Conn.App. 651
23 A.3d 1

Robert SIMMS
v.
Penny Q. SEAMAN et al.

No. 31809.

Appellate Court of Connecticut.

Argued Oct. 29, 2010.Decided June 28, 2011.

[23 A.3d 1]

John R. Williams, New Haven, for the appellant (plaintiff).Patrick M. Noonan, with whom, on the brief, was Matthew H. Geelan, Guilford, for the appellee (named defendant).Raymond J. Plouffe, Jr., Shelton, for the appellee (defendant Susan A. Moch).Nadine M. Pare, Cheshire, for the appellees (defendant Kenneth J. Bartschi et al.).BISHOP, BEAR and STOUGHTON, Js.^*BEAR, J.

[129 Conn.App. 653] The plaintiff, Robert Simms, appeals from the judgment of the trial court rendered

[23 A.3d 2]

in favor of the defendants Penny Q. Seaman, Susan A. Moch, Kenneth J. Bartschi, Brendon P. Levesque and Karen L. Dowd.¹ On appeal, the plaintiff claims that the court improperly struck the claims for fraud and intentional infliction of emotional distress filed against the defendants on the ground of absolute immunity and, thereafter, improperly rendered judgment in favor of the defendants. We affirm the judgment of the trial court.

The following facts as alleged in the plaintiff's amended complaint are relevant to our resolution of the appeal.² The plaintiff and Donna Simms were married from 1961 until 1979, when they divorced and the plaintiff was ordered to pay periodic alimony. The plaintiff filed a motion to modify the alimony payments on November 29, 2004, which was granted by the court. Donna Simms appealed from that judgment, and, on August 14, 2007, our Supreme Court reversed the judgment and remanded the case to the trial court for further proceedings. Simms v. Simms, 283 Conn. 494, 510, 927 A.2d 894 (2007).

From late 2005 until approximately August 14, 2007, Bartschi, Levesque and Dowd represented Donna Simms in her appeal to the Supreme Court.

[129 Conn.App. 654] Moch represented Donna Simms during the years 2006 and 2007. During that time, Moch filed at least one motion for pendente lite counsel fees in the Superior Court on behalf of Donna Simms. Seaman represented Donna Simms in the Superior Court from approximately March, 2007, until October 17, 2008. All defendants failed to disclose the true financial circumstances of Donna Simms.

Throughout the periods that the defendants represented Donna Simms, they affirmatively represented to the Superior Court and to the Supreme Court that Donna Simms “was in highly disadvantaged economic circumstances” and that the plaintiff should “be compelled to pay substantial sums of money to Donna Simms for her necessary support and maintenance.” ³ The defendants made such representations despite knowing that Donna Simms had become the beneficiary of a substantial bequest from her uncle, Albert Whittington Hogeland.⁴ In June, 2006, Donna Simms received approximately $310,000 from Hogeland's estate, and, in February, 2008, she received another $49,000. Despite the defendants' affirmative obligation to disclose these assets to the courts, they intentionally concealed this information, until, under orders from the trial court, Seaman, on May 27, 2008, finally disclosed the information.

On October 17, 2008, the trial court ruled that such information concerning the

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inheritance of Donna [129 Conn.App. 655] Simms improperly had been concealed from the court and from the plaintiff. The wrongful concealment of this financial information caused the plaintiff to incur more than $400,000 in legal expenses and other costs and expenses, including travel, medical expenses, loss of income and loss of investment value. Additionally, the plaintiff has suffered severe emotional distress because of these events.

The plaintiff filed an amended complaint in the Superior Court on June 19, 2009. Counts one and four were brought against Seaman for fraud and intentional infliction of emotional distress, respectively. Counts two and five were brought against Moch for fraud and intentional infliction of emotional distress, respectively. Counts three and six were brought against Bartschi, Levesque and Dowd for fraud and intentional infliction of emotional distress, respectively.⁵ The defendants filed motions to strike these counts of the complaint on the ground of absolute immunity or privilege and on the alternate ground of failure to state a claim. The court, concluding that such claims against attorneys for conduct that occurred during judicial proceedings were barred as a matter of law by the doctrine of absolute immunity, granted the motions. The court upon motion, thereafter, rendered judgment in favor of the defendants. This appeal followed.

On appeal, the plaintiff claims that the court improperly struck the claims for fraud and intentional infliction of emotional distress filed against the defendants on the ground of absolute immunity and, thereafter, improperly rendered judgment in favor of the defendants. Specifically, the plaintiff claims that the court “erred in holding as a matter of law that attorneys are [129 Conn.App. 656] absolutely immune to suits for money damages for frauds and extreme and outrageous acts causing severe emotional distress perpetrated in their roles as adversary attorneys.” The defendants argue that the court properly concluded that the claims, which stemmed from alleged misrepresentations and omissions that occurred in connection with judicial proceedings, are barred by the doctrine of absolute immunity. In the alternative, the defendants have presented alternate grounds for affirming the court's judgment; see Practice Book § 63–4(a)(1)(A); arguing that the claims fail to state a cause of action for fraud or for the intentional infliction of emotional distress. Bartschi, Levesque and Dowd also raise as alternate grounds for affirmance that they, as appellate counsel for Donna Simms, did not owe a duty to disclose her inheritance and that their alleged conduct did not result in any damages to the plaintiff. After considering the relevant interests, we conclude that the plaintiff's claims against the defendant attorneys are barred by the doctrine of absolute immunity, also known as the litigation privilege.

Initially, we set forth the appropriate standard of review. “In an appeal from a judgment granting a motion to strike, we operate in accordance with well established rules.... A motion to strike challenges the legal sufficiency of a pleading ... and, consequently, requires no factual findings by the trial court. As a result, our review of the [trial] court's ruling is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency.... [I]f facts provable in the complaint would support

[23 A.3d 4]

a cause of action, the motion to strike must be denied.... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly ... rather than narrowly. [129 Conn.App. 657] ... If facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 129–30, 2 A.3d 859 (2010).

In this case, the court, ruling orally, stated: “[T]he law of lawyer immunity as set forth in Petyan v. Ellis, [200 Conn. 243, 245, 510 A.2d 1337 (1986) ] ... is that the ... law of lawyer immunity from the civil process is absolute, and I ... just don't see the exception for it that [the plaintiff's counsel] does. And, of course, lawyers have been accused ... sometimes rightly, sometimes wrongly, of concealing evidence and fraudulently making claims for a very long time, but this rule has been unvarying, and, you know, frankly, my own view, for what it's worth, is that the courts could not function within it, which is not to say that lawyers may not be subject to appropriate discipline, professional discipline for ... imposing a fraud on the court. That may very well be the case, but that is the path the law has chosen.... I just view the rule of Petyan v. Ellis as absolute, and what I'm going to do in each case is ... simply grant the motion[s] citing Petyan v. Ellis ....”

The plaintiff argues that Petyan and the cases related to it concern defamation claims brought against attorneys and that such cases are not relevant here because we are concerned with intentional fraudulent conduct perpetrated on the court and on the plaintiff. He also argues that those cases “concern statements directed against the plaintiff in the subsequent litigation while the present case concerns fraud upon the court, which had the intended result of injuring the plaintiff.” Furthermore, he contends, “there is nothing in the public policy of this state as articulated by the published decisions [that] precludes the imposition of liability upon [129 Conn.App. 658] lawyers who engage in the sorts of intentionally fraudulent conduct alleged here.” Finally, the plaintiff argues that this case is less akin to Petyan and more akin to Mozzochi v. Beck, 204 Conn. 490, 497, 529 A.2d 171 (1987), in which our Supreme Court stated that, under certain circumstances, third party abuse of process claims may be brought against attorneys. We are not persuaded by the plaintiff's arguments.

In Mozzochi v. Beck, supra, 204 Conn. at 490, 529 A.2d 171, the primary case relied on by the plaintiff, our Supreme Court reiterated that it has granted absolute immunity to attorneys who made allegedly defamatory statements in the course of a judicial proceeding. The court noted that “[b]ecause litigants cannot have such access without being assured of the unrestricted and undivided loyalty of their own attorneys, we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings.” Id., at 494–95, 529 A.2d 171. The plaintiff relies on...