Simms v. Seaman, SC 18839

Decision Date21 May 2013
Docket NumberSC 18839
CourtConnecticut Supreme Court

The "officially released" date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the "officially released" date appearing in the opinion. In no event will any such motions be accepted before the "officially released" date.

All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.

The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Vertefeuille, Js.

John R. Williams, for the appellant (plaintiff).

Patrick M. Noonan, with whom were William H. Prout, Jr., and, on the brief, Matthew H. Geelan, for the appellee (named defendant).

Nadine M. Pare, for the appellees (defendant Kenneth J. Bartschi et al.).

Raymond J. Plouffe, Jr., for the appellee (defendant Susan A. Moch).

Arnold H. Rutkin and Alexander J. Cuda filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae.


ZARELLA, J. The principal issue in this appeal is whether attorneys are protected by the common-law doctrine of absolute immunity1 against claims of fraud and intentional infliction of emotional distress2 arising out of their conduct during judicial proceedings.3 The plaintiff, Robert Simms, appeals from the judgment of the Appellate Court affirming the judgment of the trial court rendered in favor of the defendants Penny Q. Seaman, Susan A. Moch, Kenneth J. Bartschi, Brendon P. Levesque and Karen L. Dowd.4 The plaintiff claims that his former spouse, Donna Simms, and the defendants, her former attorneys, are liable for fraud and intentional infliction of emotional distress because they failed to disclose her true financial situation during postdissolution proceedings in which the plaintiff sought modification of the alimony award. The defendants counter that the conduct of attorneys during judicial proceedings is absolutely privileged. They further contend, as alternative grounds for affirmance, that the plaintiff's complaint fails to state a cause of action for fraud or intentional infliction of emotional distress. We affirm the judgment of the Appellate Court.

The following facts and procedural history are set forth in the Appellate Court's opinion. "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 [on October 25, 2005]. Donna Simms appealed from that judgment [on November 10, 2005], and, on August 14, 2007, [this] [c]ourt 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 [this] [c]ourt.

"Moch represented Donna Simms during the years 2006 and 2007.5 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 [this] [c]ourt 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.' The defendants made such representations despite [allegedly] knowingthat Donna Simms had become the beneficiary of a substantial bequest from her uncle, Albert Whittington Hogeland.6 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 [allegedly] intentionally concealed this information until, under orders from the trial court, Seaman, on May 27, 2008, finally disclosed the information [when updated financial affidavits were required].

"On October 17, 2008, the trial court ruled that . . . information concerning the inheritance . . . improperly had been concealed from the court and from the plaintiff.7 [According to 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 [allegedly] suffered severe emotional distress because of these events.

"[On the basis of these allegations, the] plaintiff filed an amended complaint in the Superior Court on June 19, 2009.8 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, respec-tively.9 The defendants filed motions to strike these counts of the complaint on the ground of absolute immunity or privilege and on the alternative 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 [under Petyan v. Ellis, 200 Conn. 243, 251-52, 510 A.2d 1337 (1986)], granted the motions. The court upon motion, thereafter, rendered judgment in favor of the defendants." Simms v. Seaman, 129 Conn. App. 651, 653-55, 23 A.3d 1 (2011).

The plaintiff appealed to the Appellate Court, claiming that the trial court improperly had determined that the defendants were absolutely immune from liability for damages on grounds of fraud and intentional infliction of emotional distress. Id., 655-66. The defendants argued that the trial court properly had determined that the plaintiff's claims were barred by the doctrine of absolute immunity and urged, as an alternative ground for affirming the trial court's judgment, that the plaintiff's complaint had failed to state a cause of action. Id., 656. The Appellate Court concluded that the claims were precluded by the litigation privilege and, with one panel member dissenting, affirmed the trial court's judgment. Id., 656, 674. The Appellate Court applied thebalancing test set forth in Rioux v. Barry, 283 Conn. 338, 346-51, 927 A.2d 304 (2007); see Simms v. Seaman, supra, 129 Conn. App. 669-72; and concluded that the defendants' alleged misstatements and omissions were absolutely immune because the essential elements and burdens of proof required for claims of fraud and intentional infliction of emotional distress did not provide "sufficient built-in restraints to prevent unwarranted litigation while, at the same time, encouraging attorneys to provide full and robust representation of their clients and to provide such clients with their unrestricted and undivided loyalty." Simms v. Seaman, supra, 671-72. Thereafter, we granted the plaintiff's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly determine that claims of fraud and intentional infliction of emotional distress brought against attorneys for conduct that occurred during judicial proceedings were barred as a matter of law by the doctrine of absolute immunity?" Simms v. Seaman, 302 Conn. 915, 27 A.3d 373 (2011).

"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. 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 court's ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 583, 50 A.3d 802 (2012). Additionally, whether attorneys are protected by absolute immunity for their conduct during judicial proceedings is a question of law over which our review is plenary. See, e.g., Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009); Alexandru v. Dowd, 79 Conn. App. 434, 439, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003); McManus v. Sweeney, 78 Conn. App. 327, 334, 827 A.2d 708 (2003); see also 3 Restatement (Second), Torts § 619 (1), p. 316 (1977).

The plaintiff contends that absolute immunity does not bar claims of fraud and...

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