Opinion
FSTCV136020100S
02-22-2017
Maurice Nizzardo, et al. v. Mary Badoyannis, et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON THE DEFENDANT MARY BADOYANNIS' SEPTEMBER 1, 2016 MOTION TO DISMISS (#127.00)
HON. KEVIN TIERNEY, JUDGE TRIAL REFEREE.
The defendant, Mary Badoyannis, a Connecticut licensed attorney, is invoking the litigation privilege and claiming as an attorney that she has absolute immunity from this instant lawsuit. The parties briefed the legal and factual issues and furnished oral argument on January 9, 2017. The parties waived testimony.
The defendant, Mary Badoyannis, claims that the litigation privilege provides absolute immunity from this lawsuit based upon her statements and conduct during a lawsuit to wit, the representation by Mary Badoyannis as attorney of record in a dissolution of marriage action pending between Marie Bongiorno, her client, and George Bongiorno, a non-client.
The doctrine of absolute immunity as applied to statements made in the context of judicial and quasi-judicial proceedings is rooted in the public policy of encouraging witnesses, both complaining and testimonial, to come forward and testify in either criminal or civil actions. 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 risks that individuals will occasionally abuse the privilege by making false and malicious statements" . . . 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.Rioux v. Barry, 283 Conn. 338, 343-44, 927 A.2d 304 (2007).
One of the latest case issued by our Appellate Court is dated March 22, 2016.
As the doctrine of absolute immunity concerns a court's subject matter jurisdiction . . . We are mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged . . . The question before us is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive dismissal on the grounds of absolute immunity.Tyler v. Tatoian, 164 Conn.App. 82, 87, 137 A.3d 801 (2016). See Villages, LLC v. Longhi, 166 Conn.App. 685, 699-700, 142 A.3d 1162 (2016).
A more complete discussion of the litigation privilege resulting in absolute immunity was rendered by a trial court in Piels v. Bendett and McHugh, P.C., Superior Court, judicial district of Fairfield at Bridgeport, Docket Number FBT CV 14-5030189 S, (September 19, 2016, Arnold, J.) . In Piels the plaintiff homeowner, the borrower of a defaulting mortgage, through his legal counsel on July 10, 2013, notified the defendant, Bendett and McHugh, P.C., the law firm representing the mortgage lender, that Piels had contracted to sell the subject real property with a sale scheduled for August 30, 2013. A copy of the contract of sale was sent to Bendett and McHugh, P.C. informing them that the outstanding mortgage principal and past due interest, attorney fees and costs due Wells Fargo Bank, N.A., the mortgage lender and client of Bendett and McHugh, P.C., would be paid at the August 30, 2013 closing. Plaintiff's legal counsel requested that no foreclosure action be instituted by Wells Fargo Bank, N.A. On July 15, 2013 Bendett and McHugh, P.C., sent a mortgage payoff statement to plaintiff's counsel with additional release of attorneys fees in the amount of $2, 356.50 necessary to defray the anticipated mortgage closing costs. Despite the fact that August 30, 2013 was the scheduled closing, on August 6, 2013 Wells Fargo Bank, N.A., by Bendett and McHugh, P.C., commenced a foreclosure action against the plaintiff, Piels. This caused the plaintiff to suffer mental stress, anxiety and embarrassment. The closing did take place on August 30, 2013 and the mortgage was paid off in full along with the claimed attorneys fees. Five days later Bendett and McHugh, P.C., prepared a release of lis pendens, recorded it on the land records and withdrew the foreclosure action against the plaintiff. The plaintiff then commenced this lawsuit against Bendett and McHugh, P.C., who responded by a Motion to Dismiss claiming that the court lacked subject matter jurisdiction due to the litigation privilege, which granted absolute immunity to Bendett and McHugh, P.C. The trial court cited virtually every case in Connecticut on the subject of absolute immunity including Simms v. Seaman, 308 Conn. 523, 536-40, 69 A.3d 880 (2013).
The trial court in Piels found as follows: " For the reasons set forth in Simms v. Seaman, supra, and the cases cited therein, the court finds that the doctrine of absolute immunity shields the defendant law firm for its action in representing Wells Fargo Bank in the foreclosure action filed against the plaintiff, and hereby grants the defendant's motion to dismiss." Id. The trial court noted the following types of litigation that have been held to be subject to dismissal under the litigation privilege: intentional infliction of emotional distress, negligent misrepresentation, and intentional interference with contractual or beneficial relations. The trial court found that litigation privilege extends to judges, counsel and witnesses participating in judicial proceedings. Citing Simms v. Seaman, supra, 308 Conn. 536-37, the trial court noted: " 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, 69 A.3d 880 (2013)."
" In this regard, we have refused to apply absolute immunity to causes of action alleging the improper use of the judicial system." MacDermid, Inc. v. Leonetti, 310 Conn. 616, 629, 79 A.3d 60 (2013); Tyler v. Tatoian, 164 Conn.App. 82, 88, 137 A.3d 801 (2016).
There are three matters that need to be discussed in the Motion to Dismiss now before the court: (1) The classification of the allegations against Attorney Mary Badoyannis in the operative complaint dated October 7, 2013 (#100.31); (2) whether the acts alleged against Attorney Mary Badoyannis in the complaint occurred during a judicial proceeding; and (3) the analysis of the facts to determine whether the litigation privilege is applicable.
The first matter is classification of the plaintiff's operative complaint. The original complaint is dated October 7, 2013 and it is the operative complaint (#100.31). It is a three-count complaint. The First Count and Third Count are against the defendant, Marie Bongiorno, who is not subject to this Motion to Dismiss. The Second Count is against Mary Badoyannis only and is the target of this Motion to Dismiss.
Pleadings have an essential purpose in the judicial process . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . . For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings . . . [A]ny judgment should conform to the pleadings, the issues and the prayers for relief. (Citations omitted; emphasis omitted; internal quotation marks omitted.) Dickman v. Office of State Ethics, Citizen's Advisory Board, 140 Conn.App. 754, 759-60, 60 A.3d 297, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013).Abdo v. Abdulrahman, 144 Conn.App. 574, 581, 74 A.3d 452 (2013).
The interpretation of pleadings is always a question of law for the court . . . Our review of the trial court's interpretation of the pleadings therefore is plenary . . . Furthermore, we have long eschewed the notion that pleadings should be read in a hyper technical manner. Rather, the modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . The complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between parties . . . Our reading of the pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such way as to strain the bounds of rational comprehension . . .Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012).
" When any claim in a complaint, crosscomplaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number." P.B. § 10-3(a). The absence of a citation to a statute in a complaint is not controlling if, as a matter of law, the specific allegations of a pleading are sufficient to invoke the statutory remedy. Priore v. Longo-McLean, 143 Conn.App. 249, 256, 70 A.3d 147 (2013); Ferreira v. Pringle, 255 Conn. 330, 340, 766 A.2d 400 (2001). " The absence of a citation to § 13a-149 . . . is of no importance, as a complaint may still contain allegations sufficient to invoke that statute." Himmelstein v. Windsor, 116 Conn.App. 28, 39, 974 A.2d 820 (2009), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012); Priore v. Longo-McLean, supra, 143 Conn.App. 256.
Paragraphs 1 through 11 of the First Count, which is the entirety of the First Count as against Marie Bongiorno, has been incorporated by reference into the Second Count as against Mary Badoyannis. Paragraph 10 of the First Count and thus incorporated into the Second Count alleges: " Marie Bongiorno intentionally interfered with the rights of the plaintiffs as set forth within said exhibit A." Paragraph 1 of the complaint states: " On or about December 16, 2013 George Bongiorno executed an agreement by and between himself and the plaintiffs, which agreement is annexed hereto as exhibit A." The court finds that the First Count of the complaint as against Marie Bongiorno is claiming an action for intentionally interfering with contractual rights.
Those same allegations have been incorporated in the Second Count against Mary Badoyannis. Following these eleven allegations is paragraph 18 that alleges the operative bad acts as against Mary Badoyannis; " By her acts and conduct Mary Badoyannis, aided, abetted, assisted, and conspired with Marie Bongiorno to cause George Bongiorno to execute and deliver said transfer documents in contravention of his obligations as set forth in exhibit A." This court finds that the Second Count against Mary Badoyannis is claiming an action for aiding and abetting an intentional interference with contractual rights.
In the plaintiffs' October 28, 2016 Objection to Motion to Dismiss (#132.00) the plaintiff characterizes the allegations of the Second Count as against Mary Badoyannis in the nature of statutory theft and misuse of legal process (#132.00, page 1). There is no Count in the complaint that is labeled statutory theft. Statutory theft is a statutory remedy. " Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble damages." Gen. Stat. § 52-564. " Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119." Suarez-Negrete v. Trotta, 47 Conn.App. 517, 520, 705 A.2d 215 (1998). General Statutes § 52-564 has not been pled either in the complaint or in the Claims for Relief. The treble damages permitted under the statutory theft statute have not been alleged in either the complaint or in the Claims for Relief. The elements of intentional withholding and larceny that are necessary to support a claim of statutory theft under § 52-564 are not found in the allegations of the complaint.
The plaintiffs also claim that the allegations against Mary Badoyannis are in the nature of an abuse of process. There is no Count in the complaint that is labeled abuse of process. A claim of abuse of process is not subject to the litigation privilege and does not afford absolute immunity to an attorney who is engaged in that conduct. Simms v. Seaman, supra, 308 Conn. 540-41; Piels v. Bendett and McHugh, P.C., id.
An action for abuse of process lies against any person using " a legal process against another in an improper manner or to accomplish a purpose for which it was not designed." Varga v. Pareles, supra, 667, 81 A.2d 112; Schaefer v. O.K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of " a legal process . . . against another primarily to accomplish a purpose for which it is not designed . . ." (Emphasis added.) Comment b to § 682 explains that the addition of " primarily" is meant to exclude liability " when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." See also 1 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 4.9; R. Mallen & V. Levit, Legal Malpractice (2d Ed. 1981) § 61; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 121.Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987).
Accordingly, we conclude that an attorney may be sued for misconduct by those who have sustained a special injury because of an unauthorized use of legal process. In permitting such a cause of action, we must, however, take care " not to adopt rules which will have a chilling and inhibitory effect on would-be litigants of justiciable issues." Morowitz v. Marvel, 423 A.2d 196, 197-98 (D.C.App. 1980); Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978); Spencer v. Burglass, 337 S.2d 596, 601 (La.App. 1976), writ of review denied, 340 So.2d 990 (La. 1977).Mozzochi v. Beck, supra, 204 Conn. 495.
The court after analyzing the plaintiff's alternative claims finds that the allegations of the Second Count of the complaint against Mary Badoyannis sound in aiding and abetting intentional interferences with contractual rights.
The court turns to the second matter, whether or not the actions of Attorney Mary Badoyannis occurred in a judicial proceeding. The defendant, Marie Bongiorno, was married to George Bongiorno. Mr. and Mrs. Bongiorno had acquired substantial assets including businesses and real property. Exhibit A was part of the estate planning process that George Bongiorno had entered into. Its purpose was the making of gifts that would reduce his taxable estate and transfer assets to the four children issue of the marriage of Marie Bongiorno and George Bongiorno. Exhibit A attached to the complaint was that estate planning contract dated December 16, 2003. It was executed by George Bongiorno and the two plaintiffs herein, Maurice Nizzardo and Frank Bongiorno. The December 16, 2003 Exhibit A states: " In consideration of the personal guarantees of Frank and Maurice, George agrees to commence an estate plan by which he will gift out all of his current ownership interests in any and all of his real property and businesses equally to his four children; Frank, Michele, Bridjay and John at 25% each."
The operative complaint alleges that Marie Bongiorno was aware of this contract and so was her attorney, Mary Badoyannis. The allegations of the Second Count claim that Mary Badoyannis prepared transfer documents that were executed by George Bongiorno, which conveyed certain property interests covered by Exhibit A to Marie Bongiorno. The plaintiffs claim that these transfers were inconsistent with the terms of Exhibit A, the December 16, 2003 estate planning agreement. The exact dates of the preparation and execution of the transfer documents were not before this court. The actual transfer documents were not submitted to this court for review. The parties all agree that Mary Badoyannis prepared and had the transfer documents executed during the period of time a dissolution of marriage action was pending in the Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST FA 10-4018151 S. Attorney Mary Badoyannis commenced the above dissolution of marriage action representing Marie Bongiorno against George Bongiorno returnable February 23, 2010. She remained as Marie Bongiorno's litigation attorney in that dissolution of marriage action until she withdrew the action on January 19, 2011. The preparation and execution of the transfer documents by the defendant in that dissolution action, George Bongiorno, occurred between February 2010 and January 2011 while the dissolution of marriage action was pending according to the defendant's September 1, 2016 Memorandum of Law (#128.00, page 2, page 17); Bongiorno et al. v. J& G Realty, LLC et al., 162 Conn.App. 430, 434-35, 437-38, 131 A.3d 1230 (2016).
This court takes judicial notice of the pendency of that dissolution of marriage action. At all times during the dissolution action, Attorney Mary Badoyannis represented Marie Bongiorno. George Bongiorno was not represented by counsel during this dissolution of marriage action. At no time during the dissolution of marriage action was George Bongiorno represented by counsel. No judgment ever entered in the dissolution of marriage action. Although the dates of the preparation of the transfer documents and the dates of the execution of the transfer were not before this court, the inference furnished to this court by all counsel was that the transfer documents were prepared by Mary Badoyannis and Mary Badoyannis obtained the signature of George Bongiorno on the transfer documents during the period of time that the above dissolution of marriage action was pending in the Superior Court.
Although case law talks about statements made by attorneys in judicial proceedings as being subject to the litigation privilege, the litigation privilege covers actions by the attorney. Petyan v. Ellis, 200 Conn. 243, 245-46, 510 A.2d 1337 (1986); Piels v. Bendett and McHugh, P.C., id.; Simms v. Seaman, supra, 308 Conn. 527. Although the transfer documents were not judicial pleadings filed in the dissolution of marriage litigation, the dissolution of marriage litigation was primarily concerned with the disposition of the substantial assets owned by Marie Bongiorno and George Bongiorno. The transfer of the assets by the transfer documents prepared by Mary Badoyannis and executed by George Bongiorno with the assistance of Mary Badoyannis accomplished the same purpose as a judicial transfer in a dissolution of marriage action. The court therefore finds that the preparation of the transfer documents by Mary Badoyannis and the execution of the transfer documents by Mary Badoyannis by George Bongiorno were part of the duties that Mary Badoyannis had in protecting her client's interest, in the dissolution of marriage action. Mercer v. Blanchette, 133 Conn.App. 84, 90, 33 A.3d 889 (2012); Gallo v. Barile, 284 Conn. 459, 466-67, 935 A.2d 103 (2007); Villages, LLC v. Longhi, 166 Conn.App. 685, 699-700, 142 A.3d 1162 (2016); Stone v. Pattis, 144 Conn.App. 79, 96-100, 72 A.3d 1138 (2013). The court now turns to the third matter, whether the litigation privilege is applicable to the Second Count as against the defendant, Mary Badoyannis. " Courts in many jurisdictions have followed an approach that has strengthened the litigation privilege, not abrogated it . . . 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." Simms v. Seaman, supra, 308 Conn. 566.
This court finds the preparation of the transfer documents and the execution of the transfer documents under the supervision of Mary Badoyannis by George Bongiorno is covered by the litigation privilege. The court further finds that those actions were: (1) made in judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of litigation; and (4) have a connection or logical relation to the underlying litigation. Simms v. Seaman, supra, 308 Conn. 566-68.
The court finds that the Second Count of this complaint filed by the plaintiffs, Maurice Nizzardo and Frank Bongiorno, as against the defendant, Attorney Mary Badoyannis, is a claim of aiding and abetting intentional interferences with contractual rights and as such is subject to the litigation privilege. Rioux v. Barry, supra, 283 Conn. 344. Our Supreme Court has specifically held that intentional interference with contractual rights is subject to the litigation privilege and affords absolute immunity to an attorney defendant. Rioux v. Barry, supra, 283 Conn. 343-44; Law Offices of Frank N. Peluso, P.C. v. Rendahl, 170 Conn.App. 364, 367-68 (2017).
The September 1, 2016 Motion to Dismiss filed by the defendant, Mary Badoyannis (#127.00) is granted.
This terminates the Second Count of the October 7, 2013 complaint (#100.31). The Motion to Dismiss is not addressed nor does it affect the continued viability of the First Count against Marie Bongiorno and the Third Count against Marie Bongiorno. Mary Badoyannis is no longer a party in this litigation, the Motion to Dismiss (#127.00) having been granted.