Opinion
CV175038333S
02-06-2018
Alan GORDON v. ECKERT SEAMANS CHERIN & MELLOTT, LLC
UNPUBLISHED OPINION
OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On May 8, 2017, the self-represented plaintiff, Alan Gordon (plaintiff), filed a summons and complaint against the defendants, Eckert Seamans Cherin & Mellot, LLC, a law firm, and Safeguard Properties, LLC, a property management firm, both of whom had been engaged on behalf of their client, Deutsche Bank, in a foreclosure action brought against the mortgagor, Paul Vossbrinck. The plaintiff stored personal property on the foreclosed property with the permission of Vossbrinck and later of the tenant, Owen Kozlovich, but was not a party to the foreclosure action. In his complaint, the plaintiff alleges that several articles of his property, including several registered boats and a registered motorcycle, were unlawfully seized by the defendants sometime between December 2013, and April 2014. The plaintiff alleges that he was granted the permission of Vossbrinck, the owner of the premises, and Kozlovich to store his personal property on the premises from January 2012 to May 2014. The plaintiff does not allege that he had any interest in the premises. He alleges that " Accredited Home Lenders foreclosed on" the premises sometime " during 2012." According to the foreclosure action and the summary process action, of which this court takes judicial notice, the foreclosing mortgagee was not Accredited Home Lenders, but Deutsche Bank National Trust Company, as Indenture Trustee on behalf of the Holders of the Accredited Mortgage Loan Trust 2005-4 Asset Back Notes, who was substituted as plaintiff in the foreclosure action. The defendant represented the foreclosing mortgagee in that action, who became owner of the property pursuant to a judgment of strict foreclosure that was entered by the court on June 21, 2011. Subsequently, on April 4, 2012, the mortgagee filed an application for execution of ejectment and the court granted that application on April 30, 2012. The tenant Kozlovich raised issues as to his ejectment from the premises, however, Deutsche Bank obtained a judgment for immediate possession after trial, on January 22, 2014, and the appeal from that judgment was dismissed. Def. Exs. C; D.
This court is mindful that the plaintiff is self-represented and " [a]lthough [this court] will not entirely disregard our rules of practice, [it does] give great latitude to pro se litigants in order that justice may both be done and be seen to be done ... For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can [this court] disregard completely our rules of practice." (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn.App. 293, 296, 933 A.2d 728 (2007).
Because the present motion relates only to the defendant Eckert Seamans Cherin & Mellot, LLC, this memorandum will hereinafter refer to that party as the defendant.
See Deutsche Bank National Trust Co. v. Vossbrinck, Superior Court, judicial district of Waterbury, Docket No. CV-085007144-S. Subsequent to the commencement of the foreclosure action, on January 6, 2010, Accredited Home Lenders, Inc. assigned the subject mortgage deed and note, and cause of action to Deutsche Bank National Trust Company. On January 27, 2010, Accredited Home Lenders filed a motion to substitute Deutsche Bank National Trust Company as Indenture trustee on behalf of the holders of the Accredited Mortgage Loan Trust 2005-4 Asset Backed Notes. The court granted the motion on February 10, 2010. This court takes judicial notice of the foreclosure action and the summary process action relating to the subject premises and the tenant Kozlovich. See Bruno v. Geller, 136 Conn.App. 707, 717, n.3. 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012) " [T]rial court is permitted to take judicial notice of court files in other cases. See Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003) (‘[t]here is no question that the trial court may take judicial notice of the file in another case’ [internal quotation marks omitted] ); Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 865 n.4, 675 A.2d 441 (1996) (taking judicial notice of outcome of criminal trial); McCarthy v. Commissioner of Correction, 217 Conn. 568, 580 n.15, 587 A.2d 116 (1991) (court may take judicial notice of contents of files in other Superior Court cases)."
The court entered judgment of strict foreclosure on the subject premises on June 21, 2011. Deutsche Bank National Trust Co. v. Vossbrinck, supra, Docket No. CV-085007144-S (Docket Entry No. 159). On January 3, 2012, the court opened the judgment to extend the law day to January 24, 2012. The law day passed without redemption and title in the subject premises became absolute on January 27, 2012.
The plaintiff alleges that on or about April 2014, his property was removed by " Eckert Seamans Cherin & Mellott, LLC and or their agent and other defendant, Safeguard Properties, LLC." The plaintiff further alleges that after learning that his property had been removed he contacted both defendants and demanded the return of his property but " despite repeated demands and court process, has never seen any of his property again." The plaintiff alleges that he " has been permanently deprived, unlawfully so, of his valuable possessions." The complaint contains three counts. Count one is for replevin; count two is for civil theft; and count three is for conversion.
On August 7, 2017, the defendant filed the present motion to dismiss and accompanying memorandum of law, arguing that the actions alleged in the complaint were in pursuit of the foreclosure order and are protected by absolute immunity deriving from the litigation privilege. The defendant attached the certificate of foreclosure against Vossbrinck, an ejection order against Kozlovich dated January 22, 2014, and a dismissal of Kozlovich’s appeal dated March 26, 2014. The plaintiff filed a memorandum in opposition to the motion to dismiss on August 30, 2017, arguing that the defendant had operated outside of its legal mandate in seizing the plaintiff’s property. Oral argument on the motion was heard at short calendar on October 10, 2017.
DISCUSSION
I
Legal Standard
As a threshold issue, " the doctrine of absolute immunity concerns a court’s subject matter jurisdiction." Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014). Subject matter jurisdiction is properly addressed by a motion to dismiss. Practice Book § 10-30(a)(1). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 626, 79 A.3d 60 (2013). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). " A court deciding a motion to dismiss must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide." (Internal quotation marks omitted.) Hinde v. Specialized Education of Connecticut, Inc., 147 Conn.App. 730, 740-41, 84 A.3d 895 (2014). " Once the question of lack of jurisdiction of a court is raised ... [t]he court must fully resolve it before proceeding further with the case." Bateson v. Weddle, 306 Conn. 1, 7, 48 A.3d 652 (2012).
" When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009). " In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ... other types of undisputed evidence ... and/or public records of which judicial notice may be taken ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ... Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ... If affidavits and/or other evidence submitted in support of a defendant’s motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ... or other evidence, the trial court may dismiss the action without further proceedings ... If, however, the defendant submits either no proof to rebut the plaintiff’s jurisdictional allegations ... or only evidence that fails to call those allegations into question ... the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. at 651-52. " [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413-14, 35 A.3d 188 (2012). It is well established that, " in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 626.
The issue for this court to decide is whether absolute immunity is a bar to causes of action for replevin, civil theft and conversion brought against a mortgagee’s legal representative, where personal property stored at the foreclosed property was removed by the mortgagee’s legal representative in pursuit of a lawful execution of ejectment and possession following a lawful foreclosure.
II
A
The Litigation Privilege In Connecticut
Although not directly on point, the case of Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013) and the historical background of the litigation privilege in Connecticut set forth therein provides this court with guidance in determining whether the litigation privilege should be applied here. In Simms the former husband, Robert Simms sued his former wife’s attorneys for fraud and intentional infliction of emotional distress for allegedly concealing his former wife’s true financial condition during an alimony proceeding. The trial court granted the attorney defendants’ motions to strike on grounds of absolute immunity. Thereafter, the trial court granted the defendants’ motion for judgment. Simms appealed and the Appellate Court affirmed. The Supreme Court granted certification to appeal. The Supreme Court affirmed the Appellate Court and concluded that the litigation privilege applied to the plaintiff’s fraud and intentional infliction of emotional distress claims.
In reaching its decision the court began with a historical picture of the litigation privilege generally and in Connecticut law. With respect to the litigation privilege in Connecticut, the court observed that: " Like other jurisdictions, Connecticut has long recognized the litigation privilege. In Blakeslee & Sons v. Carroll, 64 Conn. 223, 29 A. 473 (1894) (Blakeslee), an action in slander for allegedly false and malicious testimony by a witness, the court explained: ‘The 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 ... Id., 232, . Relying on English authorities, including Munster, Dawkins, and Kennedy v. Hilliard, 10 Ir. C. L. Rep. 195 (1859) (considering absolute immunity with respect to statement in affidavit by witness), the court added that the privilege ‘extends to judges, counsel and witnesses’ participating in judicial proceedings. Blakeslee & Sons v. Carroll, supra, 232, .
" Since Blakeslee, this court frequently has acknowledged the privilege. See, e.g., Hassett v. Carroll, 85 Conn. 23, 35-36, 81 A. 1013 (1911) (‘The publication of defamatory words may be under an absolute, or under a qualified or conditional, privilege. Under the former there is no liability, although the defamatory words are falsely and maliciously published. The class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings, and acts of [s]tate. One publishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice.’); Petyan v. Ellis, [ 200 Conn. 243, 245-46, 510 A.2d 1337 (1986) ] (‘There is a long-standing common-law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy ... The effect of an absolute privilege is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously.’ [C]tation omitted; internal quotation marks omitted.] ); Mozzochi v. Beck, 204 Conn. 490, 494-95, 529 A.2d 171 (1987) (‘we have afforded to attorneys, as officers of the court, absolute immunity from liability for allegedly defamatory communications in the course of judicial proceedings’); Hopkins v. O’Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007) (‘[i]t is well settled that [defamatory] communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy’ [internal quotation marks omitted] ); Rioux v. Barry, [ 283 Conn. 338, 344, 927 A.2d 304 (2007) ] (‘[w]e consistently have held that absolute immunity bars defamation claims that arise from statements made in the course of judicial or quasi-judicial hearings’); Gallo v. Barile, 284 Conn. 459, 465-66, 935 A.2d 103 (2007) (‘[i]t is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy’ [internal quotation marks omitted] ).
" Connecticut courts have adopted the privilege for all of the same reasons articulated by courts in other jurisdictions. In Blakeslee, the court explained that the privilege was ‘founded upon the principle that in certain cases it is advantageous for the public interest that persons should not be in any way fettered in their statements, but should speak out the whole truth, freely and fearlessly.’ (Internal quotation marks omitted.) Blakeslee & Sons v. Carroll, supra, 64 Conn. 232, . The court described the privilege as being rooted in the public policy that ‘a judge in dealing with the matter before him, a party in preparing or resisting a legal proceeding, [or] a witness in giving evidence in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.’ (Internal quotation marks omitted.) Id. The court also noted with approval a discussion of the privilege in Dawkins v. Lord Rokeby, 7 L.R.-E. & I. App. 744 (H.L.1875), in which Lord Penzance observed that the ‘supposed hardship’ of the rule of precluding a civil remedy in such circumstances ‘assumes the untruth and assumes the malice ... [Yet] [w]hether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment.’ (Internal quotation marks omitted.) Blakeslee & Sons v. Carroll, supra, 233, , quoting Dawkins v. Lord Rokeby, supra, at 7 L.R.-E. & I. App. 755-56. Lord Penzance ultimately rejected the idea of submitting such questions to the jury because of the ‘simple and obvious’ reasons that a witness ‘free from malice’ could be judged otherwise and that ‘the expense and distress of ... harassing litigation’ might cause a witness not to speak openly and freely. (Internal quotation marks omitted.) Blakeslee & Sons v. Carroll, supra, 233, , quoting Dawkins v. Lord Rokeby, supra, at 7 L.R.-E. & I. App. 756.
" One century later, the court in Rioux similarly declared: ‘The 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 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; internal quotation marks omitted.) Rioux v. Barry, supra, 283 Conn. 343-44, 927 A.2d 304; see also Petyan v. Ellis, supra, 200 Conn. 246, (‘[t]he policy underlying the [absolute] privilege 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’ [internal quotation marks omitted] ).
" This jurisdiction also has recognized the importance of access to the courts and the existence of remedies other than lawsuits as reasons for granting absolute immunity to attorneys for making allegedly defamatory statements. See Mozzochi v. Beck, supra, 204 Conn. 494-95, (‘[b]ecause litigants cannot have [unfettered] access [to our courts] 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’); cf. DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991) (‘While no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness’ statements. Parties or their counsel who behave outrageously are subject to punishment for contempt of the court.’). Accordingly, the rationales adopted by Connecticut courts are consistent with those of other jurisdictions." Simms v. Seaman, supra, 308 Conn. 536-40.
B
Scope of Privilege
" In recent decades, Connecticut attorneys have tested the limits of the privilege with respect to alleged misconduct other than defamatory statements during judicial proceedings, with mixed results. In Mozzochi, an abuse of process case, this court determined that attorneys are not protected by absolute immunity against claims alleging the pursuit of litigation for the unlawful, ulterior purpose of inflicting injury on the plaintiff and enriching themselves and their client, despite knowledge that their client’s claim lacked merit, because such conduct constituted the use of legal process in an improper manner or primarily to accomplish a purpose for which it was not designed. Mozzochi v. Beck, supra, 204 Conn. 491-92, 494, . The court nevertheless sought to reconcile its responsibility to ensure unfettered access to the courts and to avoid a possible chilling effect on would-be litigants of justiciable issues by limiting liability to situations in which the plaintiff ‘can point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client.’ Id., 497, ; see also Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772-76, 802 A.2d 44 (2002) (recognizing abuse of process claim against counsel); DeLaurentis v. New Haven, supra, 220 Conn. 264, (same).
" [The Supreme Court] has [a]so] determined that absolute immunity does not bar claims against attorneys for vexatious litigation or malicious prosecution. With respect to vexatious litigation, the court in Mozzochi explained that it previously had ‘assumed, without discussion [in Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978) ], that an attorney may be sued in an action for vexatious litigation, arguably because that cause of action has built-in restraints that minimize the risk of inappropriate litigation.’ Mozzochi v. Beck, supra, 204 Conn. 495, . Twenty years later, the court in Rioux expressly permitted a claim for vexatious litigation against defendants who were not attorneys but who claimed absolute immunity as members of the state police for allegedly false statements they had made in the course of a quasi-judicial proceeding. See Rioux v. Barry, supra, 283 Conn. at 341-43, 348-49, . The court reasoned that, ‘whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests’; id., 346, ; and ‘the fact that the tort of vexatious litigation itself employs a test that balances the need to encourage complaints against the need to protect the injured party’s interests counsels against a categorical or absolute immunity from a claim of vexatious litigation.’ Id., 347, . The court concluded that the stringent requirements of the tort of vexatious litigation, including that the prior proceeding had terminated in the plaintiff’s favor, ‘provide[d] adequate room for both appropriate incentives to report wrongdoing and protection of the injured party’s interest in being free from unwarranted litigation. Thus, because the tort of vexatious litigation strikes the proper balance, it is unnecessary to apply an additional layer of protection to would-be litigants in the form of absolute immunity.’ Id. For similar reasons, [the] court has not barred claims against attorneys for malicious prosecution in criminal cases, which require proof of the same elements as vexatious litigation claims. See McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982) (‘[a]n action for malicious prosecution against a private person requires a plaintiff to prove that: [1] the defendant initiated or procured the institution of criminal proceedings against the plaintiff; [2] the criminal proceedings have terminated in favor of the plaintiff; [3] the defendant acted without probable cause; and [4] the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice’); see also Vandersluis v. Weil, supra, 176 Conn. 356, (‘A vexatious [litigation] suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor.’).
" The court in Rioux concluded, however, that absolute immunity did bar the plaintiff’s claim of intentional interference with contractual or beneficial relations. Rioux v. Barry, supra, 283 Conn. 350, . The court reasoned: ‘First, the underlying purpose of absolute immunity applies just as equally to this tort as it does to the tort of defamation. Second, this tort does not contain within it the same balancing of relevant interests that are provided in the tort of vexatious litigation. Third, the elements of intentional interference with contractual or beneficial relations do not provide the same level of protection against the chilling of a witness’ testimony as do the elements of vexatious litigation. A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant’s knowledge of that relationship; (3) the defendant’s intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant’s tortious conduct ... These elements simply do not have the same stringency as those that are the hallmark ... of a claim for vexatious litigation. For this reason, insofar as the balancing that applies, this tort is more like defamation than vexatious litigation. Therefore, the same balancing test applies to it as applies to defamatory statements: if made in the course of a judicial or quasi-judicial proceeding, they are absolutely immune.’ (Citations omitted.) Id., 350-51, .
" Similarly, [the] court ... found no basis for a claim of intentional infliction of emotional distress arising out of a privileged communication consisting of a defamatory statement made in the course of a quasi-judicial proceeding. See Petyan v. Ellis, supra, 200 Conn. 245, 254, . In reaching this conclusion, the court in Petyan cited an amended version of § 46 of the First Restatement of Torts; see A.L.I., Restatement of the Law (Torts) § 46, p. 612 (Sup. 1948); which provided in relevant part that ‘[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily injury resulting from it.’ (Emphasis in original; internal quotation marks omitted.) Petyan v. Ellis, supra, at 254, 510 A.2d 1337, quoting A.L.I., supra, at § 46, p. 612. The court explained: ‘Although ... § 46 [of the Restatement (Second) of Torts] does not contain the same reference to privilege, the issue of privilege, in the context of the intentional infliction of emotional distress, is discussed in comment (g) [of the Restatement (Second) ]: " The conduct, although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress." Since the defendant [in Petyan ] had an absolute privilege to [make the statements at issue], she was exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress." (Emphasis added.) Petyan v. Ellis, supra, 254-55, . In DeLaurentis v. New Haven, supra, 220 Conn. 264, , [the] court further concluded that statements made in pleadings and in court cannot independently form the basis for a cause of action alleging intentional infliction of emotional distress." (Emphasis in original; footnotes omitted.) Simms v. Seaman, supra, 308 Conn. 540-45.
Within the above legal backdrop, the court in Simms went on to conclude " that attorneys are shielded by the litigation privilege from claims of fraud. [The court] reach[ed] this conclusion because fraudulent conduct by attorneys, while strongly discouraged, (1) does not subvert the underlying purpose of a judicial proceeding, as does conduct constituting abuse of process and vexatious litigation, for which the privilege may not be invoked, (2) is similar in essential respects to defamatory statements, which are protected by the privilege, (3) may be adequately addressed by other available remedies, and (4) has been protected by the litigation privilege in federal courts, including the United States Supreme Court and the Second Circuit Court of Appeals, for exactly the same reasons that defamatory statements are protected." (Emphasis in original.) Id., 545-6.
The Supreme Court’s discussion in Simms about the distinction between claims of abuse of process and vexatious litigation, to which the privilege does not apply, and claims of fraud and defamation, to which the privilege does apply, is instructive in this court’s determination of whether the litigation privilege applies here. The court reasoned that claims of abuse of process and vexatious litigation " challenge the underlying purpose of the litigation rather than an attorney’s role as an advocate for his or her client. See Barrett v. United States, 798 F.2d 565, 573 (2d Cir. 1986) (articulating functional approach in concluding that ‘[t]he fact that [the assistant attorney general defending the state of New York in a wrongful death action] may or may not have engaged in questionable or harmful conduct during the course of his representation of the [s]tate in [the] litigation is irrelevant’ and that ‘[t]he immunity attaches to his function, not to the manner in which he performed it’). Specifically, abuse of process claims must allege the improper use of litigation ‘to accomplish a purpose for which it was not designed.’ Mozzochi v Beck,. supra, 204 Conn. 494, . Likewise, vexatious litigation claims must allege, inter alia, that the defendant acted primarily for a purpose other than that of bringing an offender to justice and without probable cause. E.g., Rioux v. Barry, supra, 283 Conn. 347, . In contrast, a claim of fraud, including the claim that the defendants ... deliberately concealed material evidence from the plaintiff and incorrectly portrayed the plaintiff’s former spouse as economically disadvantaged, does not require consideration of whether the underlying purpose of the litigation was improper but, rather, whether an attorney’s conduct while representing or advocating for a client during a judicial proceeding that was brought for a proper purpose is entitled to absolute immunity. Consequently, this court’s reasons for precluding use of the litigation privilege in cases alleging abuse of process and vexatious litigation have no application to claims of fraud." (Emphasis added.) Id., 546-47.
Similarly, here, the plaintiff’s factual allegations giving rise to his claims of replevin, civil theft and conversion do not require consideration of whether the underlying purpose of the litigation was improper but rather, whether the defendant’s conduct in having the plaintiff’s personal property removed, while representing a mortgagee, in pursuing a lawful execution of ejectment and possession following a lawful foreclosure, was for a proper purpose, and thus, entitled to absolute immunity.
The court recognizes that the plaintiff has not alleged that the defendant made statements during the course of a judicial proceeding which caused him harm, but rather, alleges that the defendant wrongfully took his property. While the initial focus of the litigation privilege was statements of counsel made during the course of litigation, Connecticut " [c]ourts have extended the doctrine of absolute immunity to other common-law torts. In Petyan v. Ellis, [supra, 200 Conn. 254-55], our Supreme Court recognized that the doctrine of absolute immunity applied to the tort of intentional infliction of emotional distress, stating that ‘the defendant had an absolute privilege to state her reasons for the termination of the plaintiff’s employment in the fact-finding supplement solicited by the employment security division, [as] she was exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress.’ (Internal quotation marks omitted.) Id., 255. In Perugini v. Guiliano, supra, Superior Court, Docket No. CV 10 5016077, the trial court applied the doctrine of absolute immunity to negligent infliction of emotional distress. It noted that ‘[t]here is nothing in the elements of the offense which would guard against the concerns for which absolute immunity is afforded in the first instance ... the balancing test favors immunity.’ Id. In Rioux v. Barry, supra, 283 Conn. 350-51, the Supreme Court extended the absolute immunity doctrine to the tort of intentional interference with contractual or beneficial relations. It reasoned that: ‘First, the underlying purpose of absolute immunity applies just as equally to [intentional interference with contractual or beneficial relations] as it does to the tort of defamation. Second, [the] tort does not contain within it the same balancing of relevant interests that are provided in the tort of vexatious litigation. Third, the elements of intentional interference with contractual or beneficial relations do not provide the same level of protection against the chilling of witness testimony as do the elements of vexatious litigation.’ Id. [As previously discussed] [i]n Simms v. Seaman, [the Supreme Court] applied the doctrine to common-law fraud, [and affirmed the Appellate Court’s finding that] ‘there are no safeguards to prevent unwarranted ligation, and it certainly is foreseeable that allowing such a cause of action to commence would have a chilling effect on the attorney-client relationship and on an attorney’s zealous representation of his or her client.’ Simms v. Seaman, 129 Conn.App. 651, 672, 23 A.3d 1, (2011), aff’d, 308 Conn. 523 (2013). See also Tucker v. Bitonti, 34 Conn.Supp. 643, 647, 382 A.2d 841 (App.Sess. 1977) (applying doctrine of absolute privilege to invasion of privacy by false light )." (Emphasis added.) Jones v. Delallo, supra, Superior Court, Docket No. CV-10-5029297-S; See also, Stradinger v. Griffin Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-15-5026406-S, (December 11, 2015, Roraback, J.) (court extended doctrine of absolute immunity to plaintiff s claims of statutory theft, civil conspiracy based on statutory theft, CUTPA, and intentional and negligent infliction of emotional distress claims, brought against law firm hired to provide debt collection services for hospital. As in Simms, and other previously cited cases that expanded the privilege to cover torts other than defamation, the court determined that the plaintiff’s claims " appear analogous to a fraud claim and similarly contain none of the inherent safeguards to prevent inappropriate retaliatory litigation that the claims of malicious prosecution, vexatious litigation, and abuse of process have" ).
" ‘In order for the plaintiff to prevail in a case for liability under ... [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe.’ (Internal quotation marks omitted.) Petyan v. Ellis, supra, 200 Conn. at 253." (Footnote in original.) Jonas v. Delallo, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029297-S (December 11, 2012, Bellis, J.) , n.7.
" The elements of the tort of negligent infliction of emotional distress are: ‘(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress.’ Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003)." (Footnote in original.) Id., n. 8.
" ‘A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant’s knowledge of that relationship; (3) the defendant’s intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant’s tortious conduct.’ Rioux v. Barry, supra, 283 Conn. at 351." (Footnote in original.) Id., n.9.
" ‘The essential elements of an action in common-law fraud ... are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.’ Simms v. Seaman, supra, 129 Conn.App. at 671." (Footnote in original.) Id., n.10.
" In order to establish invasion of privacy by false light, the plaintiff must show (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Jonap v. Silver, 1 Conn.App. 550, 557-58, 474 A.2d 800 (1984)." (Footnote in original.) Id., n.11.
The tort of statutory theft is codified at General Statues § 52-564, which provides: " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages." " The elements that the plaintiffs must prove to obtain treble damages under the civil theft statute, § 52-564, are the same as the elements required to prove larceny, pursuant to General Statutes § 53a-119." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 695, 713, 54 A.3d 564 (2012), cert. denied, 308 Conn. 901, 60 A.3d 287 (2013). According to § 53a-119, " [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner ... It must be shown that (1) there was intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner ... The essential cause of action is a wrongful exercise of dominion over personal property of another." (Internal quotation marks omitted.) Kosiorek v. Smigelski, 138 Conn.App. 713.
" The [e]ements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff ... There is, however, no independent claim of civil conspiracy. Rather, [t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself ... Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort ... [T]he essence of a civil conspiracy ... [is] two or more persons acting together to achieve a shared goal that results in injury to another." (Citations omitted; emphasis in original; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006). " Thus, the purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor’s conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing. Implicit in this purpose, and in the principle that there must be an underlying tort for the viability of a civil conspiracy claim, is the notion that the coconspirator be liable for the damages flowing from the underlying tortious conduct to which the coconspirator agreed." Id., 636.
" General Statutes § 42-110g(a) provides in relevant part: ‘Any person who suffers any ascertainable loss of money or property ... as a result of the use or employment of a method, act or practice prohibited by Section 42-110b, may bring an action ... to recover actual damages.’ ‘[T]he words " any ascertainable loss" as used in [§ 42-110g(a) ] do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case.’
Piels v. Bendett and McHugh, P.C., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-14-5030189-S, (September 19, 2016, Arnold, J.) , is also instructive in the court’s determination of whether absolute immunity applies in the present case. There, the plaintiff commenced an action against the defendant law firm who represented the plaintiff’s mortgagee and who commenced a foreclosure action against the plaintiff, notwithstanding the plaintiff and his co-borrower had contracted to sell the property and, a sale of the property had been scheduled. There was no question, however, that the plaintiff and his co-borrower were in default of their mortgage note obligations due to the failure to make monthly payment on the mortgage note. In addition, the plaintiff was notified by and through defendant counsel who was representing the mortgage lender, Wells Fargo, that the lender considered the mortgage loan in default and that a foreclosure of mortgage action would commence in court if the default was not cured within thirty-two days of the written default notice. On August 6, 2013, the defendant law firm, representing the mortgage lender commenced the foreclosure action in court. Several days following August 30, 2013, the date on which the sale of the property was scheduled, the plaintiff cured the default and paid the lender the remaining of the balance on the loan that was due and owing, including a disputed amount of $2119. The plaintiff commenced the action against the defendant law firm claiming that the defendant’s filing of the foreclosure action was not authorized by Wells Fargo and that the defendant filed the action for the sole purpose of securing an unwarranted legal fee. The court held that the plaintiff’s claims of unjust enrichment, negligence, breach of duty of good faith and fair dealing, violation of CUTPA, and negligent infliction of emotional distress were barred by the doctrine of absolute immunity.
The trial court noted that the alleged conduct of the defendant law firm in Piels did not involve fraud, neither did the conduct involve statements made in court, but rather involved the commencement of the foreclosure action for, as the plaintiff claimed, the sole purpose of securing an unwarranted legal fee. In the present case, the plaintiff claims that the defendant law firm, who represented a mortgagee that had foreclosed upon property where the plaintiff’s possessions were stored, and who was pursuing the lawful execution of an order of ejectment and possession, wrongfully took his property. Like the plaintiff in Piels, the plaintiff here has not alleged fraud, or that the defendant made statements which resulted in harm to him or loss of his property. Neither does the plaintiff in his complaint point to specific misconduct intended to cause specific injury to him outside the normal contemplation of private litigation.
In applying the privilege, the court in Piels reasoned: " While the present action, as set forth in the plaintiff’s Third Amended Complaint, does not allege fraud as against the defendant law firm, the court views it as a retaliatory action by the plaintiff for the defendant law firm’s role in representing its client, Wells Fargo, in pursuing a foreclosure of mortgage action ... This is not a case where the defendant attorneys abused the judicial system by pursuing litigation for ‘the unlawful, ulterior purpose of inflicting injury on the plaintiff and enriching themselves and their client, despite knowledge that their client’s claim lacked merit.’ Simms v. Seaman, 308 Conn. 523, 540-41, (2013). The debt on the mortgage loan, as evidenced by the mortgage note was clearly in default. There are no counts in the Third Amended Complaint that allege the defendant engaged in an abuse of process or vexatious litigation. The plaintiff cannot point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation. See id. The plaintiff’s complaint is grounded in allegations that by representing Wells Fargo and commencing a foreclosure action in its client’s behalf, the defendant attorneys earned and charged the plaintiff unwarranted legal fees.
" The absolute privilege ‘is not intended to protect counsel who may be motivated by a desire to gain an unfair advantage over their client’s adversary from subsequent prosecution for bad behavior but, rather, to encourage robust representation of clients and to protect the vast majority of attorneys who are innocent of wrongdoing from harassment in the form of retaliatory litigation by litigants dissatisfied with the outcome of a prior proceeding.’ Id., 563. ‘Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client.’ Id. " Piels v. Bendett and McHugh, P.C., supra, Superior Court, Docket No. CV-14-5030189-S.
This case, as in Piels, is grounded in accusations against a law firm representing a foreclosing mortgagee in a foreclosure action. The complaint lacks any allegations identifying specific acts of wrongdoing or misconduct by the law firm. As previously noted, the plaintiff only alleges that the defendant removed the plaintiff’s possessions from the foreclosed property. Likewise, this court therefore views the present action by the plaintiff against the defendant law firm as a retaliatory action by the plaintiff for the defendant’s role in representing its client, in pursuing the lawful execution of ejectment and possession following a lawful foreclosure. The plaintiff’s complaint lacks any specific details of the acts by the defendant, other than the allegations that plaintiff’s possessions had been removed from foreclosed property. Significantly, during oral argument, the plaintiff admitted that he had retrieved his possessions, but subsequently restored them at the premises knowing full well that a foreclosure action was pending on the property, only to return to again retrieve the property and discovered that it had been removed. The court therefore views plaintiff’s lawsuit as nothing other than retaliatory and, therefore, barred by absolute immunity.
The Supreme Court in Simms also noted that courts in other jurisdictions have expanded the litigation privilege to torts other than defamation and noted that " courts in many jurisdictions have followed an approach that has strengthened the litigation privilege, not abrogated it. As commentators and scholars have observed, ‘[a]s new tort theories have emerged, courts have not hesitated to expand the privilege to cover theories, actions, and circumstances never contemplated by those who formulated the rule in medieval England .’ (Internal quotation marks omitted.) P. Hayden, supra, 54 Ohio St. L.J. 998. One objective of expanding the privilege has been ‘to prevent plaintiffs from subverting the purposes of the defamation privilege by bringing actions on other legal theories ... Thus, courts have applied the privilege to bar causes of action for, among others, [as previously discussed,] intentional infliction of emotional distress; interference with contractual relationship; fraud; invasion of privacy; abuse of process; and negligent misrepresentation.’ Id. ; see also 3 R. Mallen & J. Smith, supra, § 22:8, at pp. 186-88. Another objective simply has been to recognize that the privilege should apply to other acts associated with an attorney’s ‘function as an advocate .’ Dory v. Ryan, supra, 25 F.3d at 83; see also Abanto v. Hayt, Hayt & Landau, P.L, United States District Court, Docket No. 11-24543-CIV, (S.D.Fla. September 19, 2012) (litigation privilege applied to statutory cause of action under Florida Consumer Collection Practices Act); Hahn v. United States Dept. of Commerce, United States District Court, Docket No. 11-6369 (ES), (D.N.J. September 10, 2012) (‘broadly applicable’ litigation privilege applies ‘to any communication [1] made in judicial or quasi-judicial proceedings; [2] by litigants or other participants authorized by law; [3] to achieve the objects of litigation; and [4] that have connection or logical relation to the action’ [internal quotation marks omitted] ); Rickenbach v. Wells Fargo Bank, N.A., 635 F.Supp.2d 389, 401-02 (D.N.J. 2009) (litigation privilege applies to claims against attorney for negligence and breach of duty of good faith and fair dealing because privilege is ‘broadly applicable’ and implied abrogation of privilege is not favored); Linder v. Brown & Herrick, 189 Ariz. 398, 405-06, 943 P.2d 758 (App. 1997) (litigation privilege applies to claims of fraud); Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007) (‘the litigation privilege applies in all causes of action, whether for common-law torts or statutory violations,’ including alleged violations of Florida Consumer Collection Practices Act and Florida Unfair and Deceptive Trade Practices Act); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994) (litigation privilege applies to claim of tortious interference with business relationship because ‘absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... [as] long as the act has some relation to the proceeding" ); Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 34 (Utah 2003) (litigation privilege applies to claim of deceit when complaint alleges that attorneys made statements with intent to deceive courts)." (Emphasis added.) Simms v. Seaman, supra, 308 Conn. 566-68.
Significantly, the court in Simms observed that " abrogation of the litigation privilege to permit claims of fraud could open the floodgates to a wave of litigation in this state’s courts challenging an attorney’s representation, especially in foreclosure and marital dissolution actions in which emotions run high and there may be a strong motivation on the part of the losing party to file a retaliatory lawsuit. Abrogation of the privilege also would apply to the claims of pro se litigants who do not understand the boundaries of the adversarial process and thus could give rise to much unnecessary and harassing litigation. [The court therefore] conclude[d] that the Appellate Court properly determined that attorneys are protected by the litigation privilege against claims of fraud for their conduct during judicial proceedings." (Emphasis added.) Id., 568.
Likewise, abrogation of the privilege to permit claims such as in the present case could open floodgates to a wave of litigation challenging an attorney’s representation in pursuit of lawful execution of ejectment and possession orders in the context of lawful foreclosures. To allow the plaintiff’s claims in this case is contraindicated to the intended purpose of the privilege: " [T]o ensure unfettered access to the courts and to avoid a possible chilling effect on would be litigants of justiciable issues by limiting liability to situations in which the plaintiff ‘can point to specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.’ " Id., 541. Thus, the application of the privilege should " encourage robust representation of clients and ... protect the vast majority of attorneys who are innocent of wrongdoing from harassment in the form of retaliatory litigation by litigants dissatisfied with the outcome of a prior proceeding." Id., 563. " Any other rule would ineluctably interfere with the attorney’s primary duty of robust representation of the interests of his or her client." Id., 541.
Finally, the plaintiff’s claims of replevin, civil theft and conversion in counts one, two, and three are, therefore, barred by absolute immunity if the conduct complained of has a sufficient connection to a judicial proceeding. " ‘The scope of privileged [conduct] ... extends not merely to [that which occurs] directly [w]thin] a tribunal, but also to ... preparatory [conduct] or [conduct] that may be directed to the goal of the proceeding.’ Hopkins v. O’Connor, 282 Conn. 821, 832, 925 A.2d 1030 (2007). The Restatement (Second) of Torts also provides that ‘[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.’ 3 Restatement (Second), Torts § 586, p. 247 (1977). ‘The privilege ... is confined to statements [or conduct] ... by an attorney while performing his function as such.’ Id., comment (c), p. 248. ‘It is not absolutely essential, [however], in order to obtain the benefits of absolute privilege, that the [conduct occur, or] the [communication] be spoken in open court or contained in a pleading, brief, or affidavit.’ (Internal quotation marks omitted.) McManus v. Sweeney, 78 Conn.App. 327, 335, (2003). Our Supreme Court has also held that when communications [or conduct occurs or] are made to a limited and discrete group in preparation of the case and made for the purpose of marshaling evidence for a future proceeding, the statements [or conduct] are subject to absolute immunity. Kelley v. Bonney, 221 Conn. 549, 573-74, 606 A.2d 693 (1992). Thus, the privilege applies to communications [or conduct], formal or otherwise, that have taken place both before and during a judicial or quasi-judicial proceeding as long as the communication [or conduct] has some relation to the proceeding and the public interest is advanced by affording the statements absolute immunity.’ Jonas v. Delallo, supra, 55 Conn.L.Rptr. at 230-31." Stradinger v. Griffin Hospital, supra, Superior Court, Docket No. CV-15-6026406-S.
Here, although the alleged wrongful conduct by the defendant was after the foreclosure proceeding, it was in the course of legal representation of the mortgagee throughout the foreclosure and summary process actions. Absolute immunity, therefore, bars the plaintiff’s replevin, civil theft, and conversion claims in counts one, two, and three.
" In Connecticut, replevin proceedings are governed by statute rather than by the rules that apply to common-law actions of replevin.
" The tort of [c]onversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights ... Thus, [c]onversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm ... The term owner is one of general application and includes one having an interest other than the full legal and beneficial title." (Citation omitted; internal quotation marks omitted.)
CONCLUSION
For the foregoing reasons, counts one, two, and three of the plaintiff’s complaint are dismissed for lack of subject matter jurisdiction based on absolute immunity as to the defendant Eckert Seamans Cherin & Mellott, LLC. The defendant’s motion to dismiss is therefore granted.
Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-13, 440 A.2d 810 (1981). " ‘The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ... Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation ... It is well settled that in determining whether a practice violates CUTPA [our Supreme Court has] adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise- whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers or competitors or other businessmen ... [The Court] also noted that all three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ... Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy ... Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.’ (Citations omitted; internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 155-56, 645 A.2d 505, 509 (1994)." (Citation omitted.) Konikowski v. Stephen Cadillac GMC, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, X03-CV-17-6078564-S, (December 27, 2017, Moll, J.) .
Cornelio v. Stamford Hospital, 246 Conn. 45, 49, 717 A.2d 140 (1998). General Statutes § 52-522 provides, in relevant part: In an action of replevin, no cause of action, except of replevin or for a conversion of the goods described in the writ of replevin, may be stated. General Statutes § 52-515 states: The action of replevin may be maintained to recover any goods or chattels in which the plaintiff has a general or special property interest with a right to immediate possession and which are wrongfully detained from him in any manner, together with the damages for such wrongful detention." (Emphasis omitted; internal quotation marks omitted.) Leasing Technologies International, Inc. v. Uniscribe Professional Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. CV-01-0181875-S (D’Andrea, J.T.R., July 23, 2002) (32 Conn.L.Rptr. 547, 548). A replevin action " is not a contract action and, thus, it is not within the court’s power to determine which party has superior title to the [property]. Rather, this is a replevin action, which involves a comparison of the superiority and inferiority of competing rights to possess the [property]." (Emphasis in original; footnote omitted.) Angrave v. Oates, 90 Conn.App. 427, 430, 876 A.2d 1287 (2005). " The action of replevin is founded in tort. There must be a tortious taking or detention of property; a mere breach of contract is not sufficient. Hence, it is no remedy to enforce a contract or recover damages for its nonperformance ... This [action] seems to have been instituted originally for the sole purpose of enforcing specifically a contract, and to have been prosecuted solely for the purpose of recovering damages for its breach- a manifest departure from the object of a replevin [action]." (Citation omitted.) Mead v. Johnson, 54 Conn. 317, 319, 7 A. 718 (1886). " A court’s finding of the right to immediate possession in a replevin action raises a question of fact ... [which is] reviewed] ... under the clearly erroneous standard." (Citation omitted.) Angrave v. Oates, supra, 90 Conn.App. 429.
Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770, 905 A.2d 623 (2006).