Opinion
CV145034948S
09-01-2016
Gray Sobran v. Beverly Kohl [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#110)
Robin L. Wilson, J.
The plaintiff, Gray Sobran, commenced this action by service of writ, summons and complaint against his former wife the defendant, Beverly Sobran and Stacy Votto, defendant's attorney in an underlying family court action. The return date is August 19, 2014, and the complaint was returned to court on August 13, 2014. " On February 18, 2015, the defendant, Stacy Votto, filed a request to revise wherein the plaintiff was requested to delete all counts of his complaint, or in the alternative, revise his complaint to separate the counts of the complaint as between the two defendants. The plaintiff did not object to the request to revise and as such, in accordance with Practice Book § 10-37(a), the request to revise was granted on February 18, 2015. The plaintiff did not file a revised complaint within the time set forth in the Practice Book and on March 27, 2015, the defendant filed a motion for nonsuit. Thereafter, the court issued an order requiring the plaintiff to file an amended complaint consistent with the defendant's request to revise on or before May 26, 2015.
" On May 21, 2015, the plaintiff filed an amended complaint which sets forth five counts. Count one alleges fraud and wrongful incarceration; count two alleges intentional infliction of emotional distress; count three alleges negligent infliction of emotional distress; count four alleges breach of contract; and count five alleges promissory estoppel. All of the allegations contained in each count are directed against the defendant, Beverly Sobran. None of the counts contain[ed] allegations directed against the defendant Stacy Votto. The defendant, Stacy Votto . . . filed a motion to dismiss the plaintiff's complaint as to her on grounds that the court lack[ed] subject matter jurisdiction. More specifically, the defendant Stacy Votto argue[d] that by failing to allege facts that could establish a claim against her, the plaintiff lack[ed] standing necessary to establish subject matter jurisdiction." Sobran v. Votto, Superior Court, judicial district of New Haven, Docket No. CV-CV-14-5034948-S, (August 4, 2015, Wilson, J.). On August 4, 2015, this court dismissed the action against Stacy Votto for lack of subject matter jurisdiction. Id.
The defendant, Beverly Kohl has filed a motion to dismiss the plaintiff's first amended complaint for lack of subject matter jurisdiction. The defendant, Sobran argues that the court lacks subject matter jurisdiction because the plaintiff's first amended complaint is a collateral attack on a judgment which is a procedurally impermissible substitute for appeal. As a basis for his fraudulent and/or negligent representation claims, the plaintiff alleges that defendant Sobran through her attorney falsely and/or negligently represented that the plaintiff had contributed to his IRA and earned more money than he supposedly did. The plaintiff further alleges that these alleged false and/or negligent representations to the court resulted in the court holding him in contempt, his incarceration and having to pay the purge amount. Thus, as a second ground for dismissal, the defendant further argues that any statements made by the plaintiff in the family case are the subject of absolute immunity. Oral argument on the motion was heard on August 29, 2016.
DISCUSSION
I
Legal Standard
" 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 motion to dismiss . . . essentially asserts that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007); Pedro v. Miller, 281 Conn. 112, 116, 914 A.2d 524 (2007). " Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008)." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685 (2014). " It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Citations omitted; internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2015). In addition, " [w]hen 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." (Citations omitted, internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
II
Collateral Attack on Prior Judgment
The defendant argues that the court lacks subject matter jurisdiction because the plaintiff's cause of action " is a thinly-veiled guise to collaterally attack the Court's prior determination of its Order of contempt in the underlying divorce matter and, as such, is impermissible." Def. Memo, p. 3.
" The [court's prior determination of its order of contempt] is final and may not be opened or set aside unless a motion to do so is filed, pursuant to Practice Book 326 [now § 17-4], within four months from the date of its rendition . . . After that period, absent waiver, consent or other submission to jurisdiction, a court lacks the power to modify or correct [said order] other than for clerical reasons . . . A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake . . . Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs in the tribunal's conclusive decision . . . A collateral attack on a judgment is a procedurally impermissible substitute for an appeal. (Citation omitted; internal quotation marks omitted.) Joe's Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 876, 675 A.2d 441 (1996)." Kupersmith v. Kupersmith, 146 Conn.App. 79, 94, 78 A.3d 860 (2013).
In the present case, the family court determined, after a full and complete hearing, that the defendant willfully failed to pay child support and alimony in the amount of $38,522 and ordered the defendant to be incarcerated until he purged himself from contempt. Here, the plaintiff is not claiming that the family court lacked subject matter jurisdiction. The plaintiff's causes of action in the present case are predicated on alleged false and/or negligent statements made by the defendant former wife, Sobran during the contempt proceedings, which could have been raised, and probably was raised before the family court. Likewise, the plaintiff's breach of contract and promissory estoppel claims relate to the contempt proceedings and raise issues which the plaintiff could have and probably did raise before the family court in the prior contempt proceeding. Moreover, the plaintiff could have " resorted to direct proceedings to correct perceived wrongs in the [family] tribunal's . . . order of contempt"; Kupersmith v. Kupersmith, supra, 146 Conn.App. 94; by filing a motion to reopen or appealing the order, however he failed to do so.
" [L]itigation regarding subject matter jurisdiction must take into account the important principle of the finality of judgments, particularly when the parties had the opportunity to challenge the jurisdiction of the dissolution court. Id., at 69, 561 A.2d 951. We then stated that [l]itigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments." (Internal quotation marks omitted.) Id., at 69-70, 561 A.2d 951. Urban Redevelopment Com'n of Stamford v. Katsetos, 86 Conn.App. 236, 241, 242, 860 A.2d 1233 (2004). Although the plaintiff here has not challenged the subject matter jurisdiction of the family court, it is important to note that " [o]ur Supreme Court . . . has stated that there are boundaries to challenges concerning the issue of subject matter jurisdiction. As we have only recently observed . . . [t]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal. James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16, esp. 695-97; Restatement (Second), Judgments 15 (Tent. Draft No. 5 1978) . . . Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. James & Hazard, op. cit. 695; Restatement (Second), Judgments, supra. " (Citation omitted; emphasis added; internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 103-04, 616 A.2d 793 (1992); see also City of Torrington v. Zoning Commission, 261 Conn. 759, 767-69, 806 A.2d 1020 (2002); Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979).
Accordingly, this court lacks subject matter jurisdiction over the plaintiff's present cause of action because it is an impermissible collateral attack on the family court's findings and order of contempt.
III
Absolute Immunity
The defendant argues that the court lacks subject matter jurisdiction because any statements made by her either in her pleadings, or through her testimony, in the family case, are the subject of absolute immunity. " The litigation privilege, also referred to as the doctrine of absolute immunity, implicates the court's subject matter jurisdiction and is, therefore, properly raised in a motion to dismiss." See Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014); Stone v. Pattis, 144 Conn.App. 79, 96-97, 72 A.3d 1138 (2013).
" [T]he 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." Chadha v. Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005). Those who participate in judicial or quasi-judicial proceedings are entitled to absolute immunity for the content of the statements they make in such proceedings. See Field v. Kearns, 43 Conn.App. 265, 271, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996) (absolute immunity for grievant for contents of statements made during bar grievance proceeding). [A]bsolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. Chadha v. Hungerford Hospital, supra, 272 Conn. at 787.
" The doctrine of absolute immunity has been applied to preclude a variety of causes of action where the claims are predicated on statements made in judicial or quasi-judicial proceedings. See, e.g., Simms v. Seaman, 308 Conn. 523, 569-70, 69 A.3d 880 (2013) (intentional infliction of emotional distress); Rioux v. Barry, 283 Conn. 338, 350, 927 A.2d 304 (2007) (intentional interference with contractual relations); Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004) (defamation); DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991) (intentional infliction of emotional distress); Magnan v. Anaconda Industries, Inc., 37 Conn.Supp. 38, 43, 429 A.2d 492 (1980), rev'd on other grounds, 193 Conn. 558, 479 A.2d 781 (1984) (defamation); Stone v. Pattis, supra, 144 Conn.App. at 79 (negligent infliction of emotional distress). The privilege affords protection against certain claims relating to the commencement and prosecution of a cause of action . . .; MacDermid, Inc. v. Leonetti, 310 Conn. 616, 617, 79 A.3d 60 (2013). Absolute immunity extends to judges, attorneys, and witnesses participating in such proceedings. Simms v. Seaman, supra, 308 Conn. at 536-37.
" In order to find that the doctrine of absolute immunity is applicable, the court must engage in a two-part analysis. Bruno v. The Travelers Companies, Superior Court, judicial district of Danbury, Docket No. DBD-CV-14-5009251-S, (Jan. 5, 2015, Truglia, J.). First, the court must determine whether the statements at issue were made in the context of a judicial or quasi-judicial proceeding. Id. (citing Hopkins v. O'Connor, 282 Conn. 821, 832-33, 925 A.2d 1030 (2007). The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function . . . This privilege extends to every step of the proceeding until final disposition. Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986). The absolute immunity doctrine applies to statements that are preliminary to a judicial proceeding; Stone v. Pattis, supra, 144 Conn.App. at 97; and to statements made in pleadings or other documents prepared in connection with such a proceeding; Petyan v. Ellis, supra, 200 Conn. at 251-52; as well as to statements made directly before the court.
" If the court finds that the statements in question were made in a judicial or quasi-judicial proceeding, the court must next determine the relevance of the statements to the proceedings. Bruno v. The Travelers Companies, supra, Superior Court, Docket No. DBD-CV 14-5009251-S, . It 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." (Citations omitted; internal quotation marks omitted.) Gallo v. Barile, 284 Conn. 459, 465-66, 935 A.2d 103 (2007). " The standard for determining the relevance of the statements to the judicial proceedings is a broad one: [t]he test for relevancy is generous . . . (Citation omitted; internal quotation marks omitted.) Id. at 467. The requirement of relevancy is very liberally construed; statements will be deemed relevant so long as they have 'some relation' or a 'reasonable relation' or 'may possibly' be pertinent to the subject of the inquiry. Technical relevancy within the rules of evidence is not required. (Citation omitted; internal quotation marks omitted; footnotes omitted.) Bruno v. The Travelers Companies, supra, Superior Court, Docket No. DBD-CV-14-5009251-S, (quoting R. Smolla, Law of Defamation (2d Ed.2008) § 8.13, pp. 8-12.8 to 8-13)." Rendahl v. Peluso, Superior Court, judicial district of Stamford-Norwalk, Docket No. FSTCV156025089S, (March 18, 2016, Heller, J.).
In the present case, the plaintiff alleges the following predicate facts upon which he bases his causes of action in the first amended complaint. " 5. During approximately June 12, 2012, Defendant Kohl fraudulently fabricated the amount of money Plaintiff Sobran allegedly owed her for alimony, child support, Nantucket property rental income together with other monetary obligations. These obligations and other conditions were set out in a divorce decree entered in January of 2011 in the underlying proceeding. Defendant Kohl filed pro se an initial motion for contempt on September 11, 2011 requesting payment of 'approximately $6,000' for her share of Nantucket property rental income together with $1,000.00 for maintenance and utilities. Defendant Kohl filed a second motion for contempt pro se on July 15, 2012 requesting payment of 'approximately $6,900' for her share of Nantucket rental income together with $6,751.00 for 'child expense' and former marital home expenses; 6. At the hearing convened on November 6, 2012 to address the second filed contempt motion, Defendant [Kohl] was represented by attorney Stacie Votto. The transcript from the proceeding indicates that the court in determining the motion for contempt stated that the June 13, 2012 contempt motion 'indicates child expenses, other expenses due, certain incomes due on property in Nantucket.' During the hearing, Votto represented to the court that 'the total arrearage for 2011 is $19,975' . . .'and the total for 2012 is $15,735' based on fraudulent information furnished by Defendant Kohl. Defendant Kohl through her attorney also falsely represented to the court that Sobran had added $40,000.00 to his IRA, earned some $50,000.00 more than he did and surreptitiously attempted to hide money allegedly owed to Defendant Kohl together with other false and/or negligent representations; 7. Based on these false representations (including the misrepresentation that Plaintiff Sobran had the ability to pay the falsely alleged sum that was owed), Plaintiff Sobran was incarcerated for six days and ordered to paid (sic) Defendant Kohl $36,238.00 as a result of the order entered by the court on November 6, 2012. Plaintiff Sobran was freed from jail because a family member paid the $36,238 that was in fact not owed; 8. At the time these representations were made on November 6, 2012 and thereafter, Defendant Kohl knew these representations were false and/or negligently made; 9. At the time these misrepresentations were made on November 6, 2012 and thereafter, Defendant Kohl failed to provide any supporting documentation to Plaintiff Sobran detailing the money allegedly owed to Defendant Kohl; 10. As a result of the Defendant Kohl's intentionally false and/or negligently made statements to Judge Gould, Plaintiff Sobran was found in contempt and incarcerated from November 6, 2012 to November 11, 2012. Plaintiff Sobran was also made to pay $36,238.00 to Defendant Kohl that was in fact not owed because of the Defendant Kohl's fraudulent and/or negligent conduct; [and] 11. Defendant Kohl also acted in a manner consistent with her earlier fraud perpetrated on the court and Plaintiff Sobran that prevented Plaintiff Sobran from correcting the injustice that was rendered as a result of the Defendant Kohl's actions." Pl. First Amend. Compl.
The plaintiff's claims of fraud and wrongful incarceration, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract and promissory estoppel are all based upon false and/or negligent statements and/or representations the defendant allegedly made during the contempt proceeding which is clearly a judicial proceeding. Thus, the first prong of the absolute immunity test has been met. Additionally, all of the statements allegedly made were clearly pertinent to the subject of the underlying controversy. In other words, the alleged false and/or negligent statements clearly have " 'some relation' or a 'reasonable relation' or 'may possibly' be pertinent to the subject of the [contempt proceeding]." Rendahl v. Peluso, supra, Superior Court, Docket No. FSTCV156025089S, . Considering the plaintiff's allegations in a light most favorable to the plaintiff, and indulging every presumption in favor of jurisdiction, the court finds that the plaintiff's claims are barred by the litigation privilege.
CONCLUSION
Accordingly, for the foregoing reasons, the defendant's motion to dismiss is granted because the plaintiff's claims are an impermissible collateral attack on the court's prior determination of its order of contempt, and because the false and/or negligent statements plaintiff claims defendant made were made during the course of a judicial proceeding and therefore barred by the litigation privilege.