The plaintiff sought to recover damages from the defendant, an attorney,
for alleged statutory theft arising from the defendant’s conduct during
prior judicial proceedings involving the foreclosure of the plaintiff’s
property. The defendant, acting as attorney for B Co., brought an action
against the plaintiff to foreclose a municipal lien that B Co. had pur-
chased from the city of Bridgeport. The plaintiff thereafter commenced
this action alleging that the defendant, in the course of the foreclosure
proceeding, made false representations to the court with the intent to
default the plaintiff for failure to appear and to render a judgment of
strict foreclosure. The plaintiff alleged that the defendant intended to
deprive the plaintiff of his property and/or to appropriate the property
to B Co., committing theft pursuant to statute (§ 52-564). The court
granted the defendant’s motion to dismiss the action for lack of subject
matter jurisdiction on the ground that the defendant was protected by
absolute immunity pursuant to the litigation privilege, and, from the
judgment rendered thereon, the plaintiff appealed to this court. Held:
1. The trial court properly granted the defendant’s motion to dismiss, this
court having determined, as a matter of first impression, that the defen-
dant was protected by absolute immunity from the plaintiff’s action for
statutory theft under § 52-564: following an evaluation of the competing
public policy considerations, including the underlying purpose of judicial
proceedings, the similarity between statutory theft and claims of fraud
and defamation, which are protected by the privilege, and the availability
of other remedies, this court reasoned that the plaintiff’s claim of statu-
tory theft did not require a consideration of whether the underlying
purpose of the foreclosure litigation was improper, rather, the plaintiff’s
claim raised the issue of whether an attorney’s conduct, while represent-
ing a client during a judicial proceeding brought for a proper purpose,
was entitled to absolute immunity; moreover, a claim of statutory theft
under § 52-564 is more analogous to a claim of fraud, as opposed to a
claim of vexatious litigation or abuse of process, because the plaintiff
had to prove that the defendant obtained the property in the foreclosure
action through false representations made to the court in the foreclosure
action, and, because the privilege protected the defendant’s communica-
tions, they were shielded by absolute immunity, regardless of the nature
of the plaintiff’s cause of action; furthermore, the required elements of
statutory theft do not contain inherent safeguards against inappropriate
retaliatory litigation, public policy does not support permitting claims
of statutory theft against attorneys, as it would inhibit candor in judicial
proceedings, and attorneys who engage in serious misconduct, such as
that alleged by the plaintiff, are subject to a number of possible sanctions,
and the availability of these alternative remedies serves as a deterrent
to attorney misconduct.
2. The plaintiff could not prevail on his claim that, even if the litigation
privilege applied to the defendant’s conduct during the foreclosure pro-
ceeding, the trial court improperly granted the defendant’s motion to
dismiss where some of the defendant’s alleged conduct was perpetrated
outside the scope of judicial proceedings: although the plaintiff claimed
that the defendant delayed the recording of the certificate of foreclosure,
in light of the fact that the litigation privilege applies to documents
prepared in connection with a judicial proceeding, the defendant’s action
was clearly conducted in connection with the foreclosure proceeding
and fell within the scope of the litigation privilege; this court rejected
the plaintiff’s claim that the subsequent sale of the foreclosed property
constituted conduct by the defendant outside the scope of the privilege,
as the complaint did not contain any allegations of wrongdoing by the
defendant with respect to the sale of the property, rather, the complaint
alleged that the defendant’s misconduct eventually resulted in the sale
of the property by B Co., and, as the complaint did not allege that the
defendant was involved in wrongdoing with respect to the sale after
title had vested in B Co., or that the sale was procured through the
services of the defendant, the plaintiff’s claim lacked merit; moreover,
even construing the allegations of the complaint as alleging a claim for
statutory theft on the basis of the defendant’s conduct concerning the
sale of the property, the sale of the foreclosed property was an integral
step in the foreclosure process, and the defendant’s conduct in assisting
B Co. with that sale was relevant to that proceeding and, thus, fell within
the scope of the litigation privilege.
Argued January 13—officially released June 16, 2020 Procedural History