Opinion
HHDCV165043246S
12-08-2017
Rosa Lee KLANESKI v. LAW OFFICES OF HOWARD LEE SCHIFF, P.C.
UNPUBLISHED OPINION
OPINION
ROBERT B. SHAPIRO, JUDGE
The court heard argument at short calendar on November 6, 2017 concerning the defendant’s motion for summary judgment (# 140). After considering the parties’ written submissions and arguments, the court issues this memorandum of decision.
I
Background
This matter concerns an underlying debt collection action, Portfolio Recovery Associates, LLC v. Rosa L. Klaneski, Docket No. HHD CV 16 6065583 (collection action), in which the defendant law firm, Law Offices of Howard Lee Schiff, P.C. (Schiff) represented the plaintiff Portfolio Recovery Associates, LLC and in which the plaintiff in this matter, Rosa Lee Klaneski, was a self-represented defendant. In her two-count third revised complaint (# 129), the plaintiff seeks to recover damages for negligent infliction of emotional distress and for violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA).
The court briefly summarizes the plaintiff’s allegations. The plaintiff alleges that, in preparing her defense in the collection action, she suffered emotional distress as a result of the prospect of being wrongfully sued for a debt she did not owe. See complaint, first count, ¶ 3. She alleges that Schiff brought a fraudulent action against her. She also alleges that, after a failed motion for summary judgment, the collection action was withdrawn. See complaint, first count, ¶ 8. She also alleges that Schiff’s actions in the collection action were meant to scare, frighten and coerce her and to cause emotional distress. See complaint, first count, ¶ 8.
In the second count, concerning CUTPA, the plaintiff incorporates the allegations from her first count, and, in addition, alleges that Schiff wrongfully sought to collect an uncollectable debt in the collection action, see complaint, second count, ¶ 16, and that Schiff regularly enters unauthenticated documents in legal proceedings as part of a pattern of behavior which amounts to a general business practice. See complaint, second count, ¶ ¶ 18, 20. She alleges that Schiff is engaged in the illicit business practice of using inadmissible evidence in civil proceedings to attempt to collect uncollectable debts. See complaint, second count, ¶¶ 21-23.
II
Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
III
Discussion
A
First Count: Negligent Infliction of Emotional Distress
In support of its motion, Schiff argues that it is absolutely immune from any liability for negligent infliction of emotional distress based on the litigation privilege, since the claims made by the plaintiff are based on representations which were uttered or published in the course of a judicial proceeding. Schiff also argues that it owed no duty of care to the plaintiff and that there is no evidence to demonstrate that its conduct was sufficiently wrongful to present an unreasonable risk of causing the plaintiff emotional distress.
The Appellate Court recently has addressed absolute immunity for claims of negligent infliction of emotional distress. In Stone v. Pattis, 144 Conn.App. 79, 72 A.3d 1138 (2013), the plaintiffs brought a claim for negligent infliction of emotional distress against attorneys who were opposing counsel in a prior federal action. Specifically, they alleged that the attorneys had " various conspiracies with the Pattis defendants regarding the subpoenaing of witnesses, erroneous statements of fact to the federal court, and improper discussions with the Westport police department regarding subpoenaed witnesses ..." Id., 99. The Appellate Court upheld the trial court’s granting of defendants’ motion to dismiss on the basis of the litigation privilege.
Recognizing that it was an issue of first impression in Connecticut, the court in Stone looked to Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013), and its " elucidation of the history and application of immunity during judicial proceedings." Stone v. Pattis, supra, 144 Conn.App. 98. The court held that " [a]lthough the plaintiffs in the present case claim that their negligent infliction of emotional distress claim stems from their abuse of process claim, the substance of their allegations are based on actions taken and communications made by the ... defendants during their defense of the town of Westport during the federal action. Thus, following the delineation set forth in Simms, their claim challenges the Howd defendants in their capacity as advocates for the town of Westport." Id.
The court reasoned that the allegations against the attorneys were all " communications made within the context of a judicial proceeding, namely the federal action, rendering the Howd defendants absolutely immune from suit by the plaintiffs for any such communications." Id., 99. The court concluded that " the allegations supporting their claim of negligent infliction of emotional distress are based on communications protected by absolute immunity from suit." Id.
The Stone court further cited the reasoning in Simms that suits against attorneys based on conduct arising out of their defense of a client " could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore, negatively affect their ability to act as zealous advocates for their clients." (Internal quotation marks omitted.) Id., 98-99.
Subsequently, in Perugini v. Giuliano, 148 Conn.App. 861, 89 A.3d 358 (2014), where negligent infliction of emotional distress was also alleged, the court similarly found that the defendant attorney’s conduct was absolutely privileged. In Perugini, the plaintiff brought a claim for negligent infliction of emotional distress against the law firm and attorney that represented his former wife in a prior divorce proceeding. Specifically, he alleged that the defendant attorney: " (1) failed to disclose a conflict of interest with the presiding judge, (2) exerted improper influence over the judge to obtain favorable monetary rulings, and (3) filed court actions without [the wife’s] consent for her own financial benefit." Id., 874. The Appellate Court affirmed dismissal of the claim for negligent infliction of emotional distress on the basis of absolute immunity. See id., 875.
Citing both Simms and Stone, the court reasoned that in " actions based on alleged misconduct by an attorney in his role as advocate ... the law protects attorneys from suit in order to encourage zealous advocacy on behalf of their clients, unrestrained by the fear of exposure to tort liability." (Citation omitted.) Id., 873. The court held that all of the conduct alleged by the plaintiff " occurred in the context of the dissolution proceedings between the plaintiff and [his former wife]. [The attorney] therefore is immune from any claim of negligent infliction of emotional distress arising from that conduct." Id., 874.
The court also recognized that " the plaintiff alleged that certain proceedings at issue were not brought for a proper purpose, as they were allegedly initiated by [the attorney] without [the former wife’s] consent for the sole purpose of self-enrichment" and that " [t]hese allegations may have properly formed the basis for an abuse of process action ..." Id. Even there, the court reasoned that " the allegation that certain judicial proceedings were not brought for a proper purpose does not in itself remove immunity for attorneys in negligent infliction of emotional distress actions ... In order to avoid dismissal, such an action against an attorney must allege conduct that occurred outside the scope of judicial proceedings." (Citations omitted.) Id.
Here, the plaintiff’s allegations concerning Schiff’s conduct only concern actions taken in the debt collection action and other, similar judicial proceedings. No conduct is alleged which occurred outside the scope of judicial proceedings. Accordingly, Schiff has shown that, based on the litigation privilege, it is absolutely immune from the plaintiff’s negligent infliction of emotional distress claim. Accordingly, the court need not consider Schiff’s other arguments concerning this count.
B
Second Count: CUTPA
As to CUTPA, Schiff argues that it does not apply here, where the basis of the claim is its previous representation of the plaintiff’s opponent in the collection action. It also contends that the plaintiff has not shown that she suffered an ascertainable loss as a result of Schiff’s conduct. As discussed above, the plaintiff asserts that Schiff engages in a general business practice of using inadmissible evidence in civil proceedings to attempt to collect uncollectable debts.
In Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 461 A.2d 938 (1983), cited by the plaintiff, the court held that " [w]e need not in this case decide whether every provision of CUTPA permits regulation of every aspect of the practice of law by every member of the bar of this state. For now, we need conclude only that CUTPA’s regulation of ‘the conduct of any trade or commerce’ does not totally exclude all conduct of the profession of law. For the purpose of sustaining an investigatory demand, we conclude that CUTPA applies to the conduct of attorneys." Id., 520-21.
More recently, in Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 802 A.2d 44 (2002), the Supreme Court discussed the boundaries of a CUTPA claim against an attorney. In Suffield, the plaintiff’s CUTPA claim alleged that the defendant attorney and law firm " engaged in an unfair and deceptive practice when they obtained an execution in excess of the amount provided in the stipulated judgment between the parties" in a prior dispute. Id., 780-81.
" [O]nly the entrepreneurial aspects of the practice of law are covered by CUTPA." (Citation omitted.) Id., 781. " [T]he most significant question in considering a CUTPA claim against an attorney is whether the allegedly improper conduct is part of the attorney’s professional representation of a client or is part of the entrepreneurial aspect of practicing law." Id., 781. The court held that although the defendants’ actions " may be actionable professional misconduct, we conclude that these allegations do not support a CUTPA claim because obtaining an execution on a judgment relates to the representation by the defendant attorney and law firm of their client and not to the entrepreneurial, aspect of practicing law." Id. at 781-82.
" [A]lthough all lawyers are subject to CUTPA, most of the practice of law is not. The ‘entrepreneurial’ exception is just that, a specific exception from CUTPA immunity for a well-defined set of activities- advertising and bill collection, for example ... It is not a catch-all provision intended to subject any arguably improper attorney conduct to CUTPA liability. Therefore, the mere fact that the actions of the attorney and the law firm might have deviated from the standards of their profession does not necessarily make the actions entrepreneurial in nature." (Citation omitted.) Id., 782.
Even where intentional misconduct of an attorney is alleged, the Suffield court reasoned that " our justification for exempting negligent malpractice from CUTPA claims- that liability would have a chilling effect on lawyers’ duty of robust representation- applies equally to intentional misconduct ... It is of no consequence that the plaintiff in the present case is alleging intentional misconduct. By shielding attorneys from CUTPA liability for professional conduct, we do not intend to protect intentional malpractice, just as we never have intended to protect negligent malpractice. Rather, protecting professional conduct from CUTPA liability ensures that no attorney is discouraged from intentional and aggressive actions, believed to be in the interest of a client, by fear of being held liable under CUTPA in the event that the action is later deemed to have been an intentional deviation from the standards of professional conduct." Id., 783-84.
Just as " [o]btaining an execution to collect on a court judgment is the heart of an attorney’s representation of a client because it is a means by which the attorney secures actual compensation for the judgment obtained by the client, " id., 782, representation by Schiff in the collection action which was adverse to the plaintiff related to the representation by Schiff of its client and not to the entrepreneurial aspect of practicing law. Likewise, the plaintiff’s allegations of a general practice of engaging in the use of unauthenticated documents to collect uncollectable debts in other matters also relates to legal representation provided by Schiff, and not to the entrepreneurial aspect of practicing law. Accordingly, CUTPA is inapplicable to the conduct at issue. The court need not consider Schiff’s argument concerning ascertainable loss.
CONCLUSION
For the reasons stated above, the defendant has shown that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Accordingly, the defendant’s motion for summary judgment is granted.
It is so ordered.