Opinion
No. CV 04-0184600S
July 7, 2005
MEMORANDUM OF DECISION
This is a decision on a motion to strike filed by the defendant, Manuel N. Vieira, dated January 18, 2005.
On January 3, 2005, the plaintiff, Frederick Dlugokecki, filed an amended five-count complaint alleging claims against the defendant for slander per se, slander per quod, invasion of privacy, intentional infliction of emotional distress and negligent infliction of emotional distress. The following facts are alleged in the amended complaint: the plaintiff is a practicing attorney. The defendant, Manuel Vieira, is a principal in Paddock Ridge, LLC (Paddock Ridge), which has a pending application before the inland wetlands commission of the borough of Naugatuck (Commission). The pending application involves a one and three-tenths-acre parcel located adjacent to an approximately six-acre pond owned by the plaintiff. The commission had previously issued a cease and desist order against Paddock Ridge.
On April 7, 2004, the commission held a public hearing on Paddock Ridge's application. In attendance at the hearing were the plaintiff, the defendant, Keith Rosenfeld, Carol Miner and thirty-six other individuals, including four attorneys and six of the plaintiff's clients. During hearing, the defendant made the following statement, which forms the basis of all of the plaintiff's claims: "With respect to Attorney Dlugokecki the reason that he has such a huge interest in my project is because about seven months ago he made an extortionary demand of me, of $150,000.00 to go AWAY . . . And furthermore, I will provide this Commission with maps that he filled in five acres of wetlands on Michael Lane." This statement was heard by everyone at the hearing because it was amplified over a loud speaker system.
On January 18, 2005, the defendant filed a motion to strike the amended complaint in its entirety on the ground that the alleged defamatory statements were subject to absolute immunity. Alternatively, the CT Page 11046-j defendant argues that each individual count should be stricken on the ground that the plaintiff fails to allege facts sufficient to state claims upon which relief can be granted. On February 13, 2005, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. The plaintiff contends that absolute immunity does not apply and that he has alleged sufficient facts to support his claims.
I.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
II.
The defendant's primary argument is that all five counts fail to state a claim upon which relief can be granted because the statements in question are subject to absolute immunity, in that the defendant made the statements during a quasi-judicial hearing. The defendant argues that the plaintiff has not sufficiently pleaded facts to show that the statements were not privileged. In response, the plaintiff argues that the defendant's statements are not privileged because the statements were not pertinent to the controversy before the commission and were irrelevant to and outside of the context of the hearing.
A.
As a preliminary matter, a motion to strike is a proper procedure in which to determine whether an alleged defamatory statement is absolutely CT Page 11046-k privileged because it was made during a quasi-judicial proceeding. The issue of whether a communication is published in the course of a judicial proceeding so as to obtain the benefit of the absolute privilege is a question of law, McManus v. Sweeney, 78 Conn.App. 327, 334 (2003).
In Several Superior Court cases, judges have granted motions to strike claims of defamation on the grounds of absolute privilege. See Curry v. Turyek, Superior Court, judicial district of New Britain, Docket No. CV 02 0517359 (February 26, 2003, Bryant, J.); Raye v. Wesleyan University, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0098865 (April 10, 2003, Aurigemma, J.); Bieluch v. Ayres, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 01 0186099 (May 8, 2002, Downey, J.); Carrubba v. Moskowitz, 81 Conn.App. 382, 401, 840 A.2d 557, cert. granted, 265 Conn. 916, 847 A.2d 310 (2004) (proper procedure for using special defense of qualified quasi-judicial immunity is motion to strike or motion for summary judgment.). The unprivileged publication of a defamatory statement is an element of defamation. See Kelley v. Bonney, 221 Conn. 549, 563, 606 A.2d 693 (1992); see also Cweklinsky v. Mobil Chemical Co., 297 F.3d 154, 159 (2d. Cir., 2002); Abrahams v. Young Rubicam, Inc., 793 F.Sup. 404, 407 (1992), affirmed in part, reversed in part, 79 F.3d 234 (2d Cir. 1996), cert. denied, 519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996), certified question answered, 240 Conn. 300, 692 A.2d 709 (1997). As such, the court concludes that a motion to strike is proper to determine the issue of absolute privilege.
B.
"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." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986). The absolute privilege accorded to statements made in connection with a court proceeding is based on a strong public policy to encourage "participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability." Alexandru v. Strong, 81 Conn.App. 68, 84, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). "The policy underlying the 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.) Petyan v. Ellis, supra, 200 Conn. 246. "Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would CT Page 11046-l be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit" Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787 (2005).
"[L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature . . . Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., 271 Conn. 78, 84, 856 A.2d 372 (2004). "The `judicial proceeding' to which the [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or `quasi-judicial,' in character." (Internal quotation marks omitted.) Id.; see also Petyan v. Ellis, supra, 200 Conn. 246; Kelley v. Bonney, supra, 221 Conn. 565-66.
"Whether a particular proceeding is quasi-judicial in nature, for the purposes of triggering absolute immunity, will depend on the particular facts and circumstances of each case." Craig v. Stafford Construction, Inc., supra, 271 Conn. 84. The factors that are used in determining whether a proceeding is quasi-judicial in nature are "whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties . . . Further, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides." (Citation omitted; internal quotation marks omitted.) Id., 85; see also Kelley v. Bonney, supra, 221 Conn. 567. Albeit in cases involving different issues, our Supreme Court has stated that municipal zoning boards operate in a quasi-judicial capacity. See Astarita v. Liquor Control Commission, 165 Conn. 185, 188, 332 A.2d 106 (1973); Kyser v. Zoning Board of Appeals, 155 Conn. 236, 251, 230 A.2d 595 (1967); Nielsen v. Zoning Board of Appeals, 152 Conn. 120, 123, 203 A.2d 606 (1964). CT Page 11046-m
The Connecticut appellate courts have not determined whether proceedings before wetlands commissions are quasi-judicial. Therefore, the court is required to examine the pertinent factors outlined above. Pursuant to General Statutes § 22a-42(b), Connecticut municipalities are required to establish inland wetlands agencies to carry out the provisions of the Inland Wetlands and Watercourses Act, General Statutes § 22a-36 to 22a-45. Under § 22a-42a, inland wetlands agencies "shall through regulation provide for (1) the manner in which the boundaries of inland wetland and watercourse areas in their respective municipalities shall be established and amended or changed, (2) the form for an application to conduct regulated activities, (3) notice and publication requirements, (4) criterial and procedures for the review of applications, and (5) administration and enforcement." Once a municipality has adopted wetlands regulations, any person proposing to conduct an activity on an inland wetland must file an application with the local wetlands agency. See General Statutes § 22a-42a(c)(1). The agency has the authority to hear arguments and decide whether applications should be granted, denied or limited. See General Statutes § 22a-42a(c)(1) and (d)(1). The agency has some discretion in making its decisions. See General Statutes § 22a-42a(c)(2). Its decisions are binding and it may revoke or suspend a permit if it finds that the applicant failed to comply with the terms thereof, See General Statutes §§ 22a-42a(d)(1) and 22a-43. After examining the factors that are used in determining whether a proceeding is quasi-judicial in nature, it is clear that the borough of Naugatuck inlands wetland commission is a quasi-judicial administrative agency because it exercises the powers of such an administrative agency.
C.
The next issue is whether the defendant's statements come within the privilege. The plaintiff has alleged that the defamatory statements occurred during the course of the wetlands commission hearing. The quasi-judicial proceedings privilege is limited to the extent that it is "available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation, although it need not be strictly relevant to any issue involved in it." (Internal quotation marks omitted.) Alexandru v. Dowd, 79 Conn.App. 434, 439, 830 A.2d 352, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003). "The judicial proceedings privilege `extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy . . .'" McManus v. Sweeney, supra, 78 Conn.App. 335. "The fact that the defamatory publication is an unwarranted inference from the alleged or existing facts is not enough to deprive the party of his privilege, if the reference itself has some bearing on the litigation." 3 Restatement (Second), Torts §§ 58, comment CT Page 11046-n (c), p. 249 (1977).
The two derogatory statements as alleged by the plaintiff involved an "extortionary" demand regarding the subject property before the commission and an allegation that the plaintiff illegally filled in wetlands. In this case, the defendant's remarks were somewhat related to the matter that was before the inland wetlands commission, i.e., the defendant's application to the commission. The plaintiff is alleged in the complaint to be an adjacent property owner with an interest in the controversy. The statements by the defendant arguably were made to expose any bias of the plaintiff to the commission and to undermine his credibility. While the statements appear to be prejudicial, inflammatory and would not be relevant in a court of law, they were references that had a bearing on the controversy before the commission. Therefore, the court finds that the defendant's remarks fall within the quasi-judicial proceedings privilege.
D.
As to the plaintiff's claims for slander, "[t]he effect of an absolute privilege in a defamation action is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously." (Internal quotation marks omitted.) Craig v. Stafford Construction, Inc., supra, 271 Conn. 84. "That absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous." (Citations omitted; internal quotation marks omitted.) Alexandru v. Strong, supra, 81 Conn.App. 83 (applying absolute privilege to statements made in course of judicial proceedings and affirming trial court's granting of summary judgment on claim of intentional infliction of emotional distress). Since the plaintiff's claims for slander per se and slander per quod were based upon statements which were absolutely privileged, the motion to strike counts one and two are granted.
E.
As to the plaintiff's remaining claims for invasion of privacy, intentional and negligent infliction of emotional distress, they must also be stricken. "(S)tatements in pleadings or in court, cannot independently be made the basis for an action in . . . intentional infliction of emotional distress," (citations omitted.) DeLaurentis v. New Haven, 200 Conn. 225, 264 (1991). "Because the plaintiff's claims for invasion of privacy and intentional infliction of emotional distress are founded upon the same conduct as her libel and slander claims, the absolute privilege also bars recovery on those claims," Alexandru v. CT Page 11046-o Dowd, supra, 79 Conn.App. 438 n. 4.
The absolute privilege bars any effective tort remedy for pertinent communications made in a judicial or quasi-judicial proceeding. "There is, of course, no really effective civil remedy against perjurers; that lack is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say . . . The common-law absolute privilege itself is not confined to the testimony of a witness but extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding." (Citations omitted; internal quotation marks omitted.) Preston v. O'rourke, 74 Conn.App. 301, 311-12 (2002).
This court has not found any appellate decisions, nor has the plaintiff cited any, which allow a plaintiff any tort recovery as alleged, which arise out of a defendant's communications in a judicial or quasi-judicial proceeding. Since the plaintiff's claims are resulting from the alleged comments of the defendant which are absolutely privileged, the defendant's motion to strike counts three, four and five are granted.
III.
Because of the court's decision in Part II above, the court need not address the defendant's alternate grounds in their motion to strike. In conclusion, the defendant's motion to strike the plaintiff's amended complaint in its entirety is granted.
Matasavage, J.