Dorfman v. Smith, 342 Conn. 582 (2022)

Citation: Dorfman v. Smith, 342 Conn. 582 (2022)
Parent Document: Dorfman v. Smith, 342 Conn. 582 (2022)
Jurisdiction: Connecticut (state)
Effective Date: 2022-03-29
Original Source: https://www.courtlistener.com/opinion/10278647/dorfman-v-smith/ ↗

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supra, § 682, comment (b), p. 475. Comment (a) to § 682
further provides that ‘‘it is immaterial that the process
was properly issued, that it was obtained in the course
of proceedings that were brought with probable cause
and for a proper purpose, or even that the proceedings
terminated in favor of the person instituting or initiating
them. The subsequent misuse of the process, though
properly obtained, constitutes the misconduct for which
the liability is imposed under the rule stated in this
[s]ection.’’ (Emphasis added.) 3 Restatement (Second),
Torts, supra, § 682, comment (a), p. 474. Thus, Mozzochi
and § 682 of the Restatement (Second) of Torts clearly
indicate that the fact that the underlying proceedings
had a proper overall purpose does not immunize a party
from a claim for abuse of process when the claim alleges
that the defendant has used a particular judicial proce-
dure for an improper purpose, as, indeed, the majority
concedes. See part II A of the majority opinion (‘‘the
plaintiff’s cause of action must itself challenge the pur-
pose of the underlying litigation or litigation pro-
cedure’’).10
10
In Simms v. Seaman, supra, 308 Conn. 523, we analyzed whether fraud
claims are sufficiently similar to abuse of process claims and vexatious
litigation claims to be exempt from the litigation privilege. We stated that,
to avoid the litigation privilege, ‘‘abuse of process claims must allege the
improper use of litigation to accomplish a purpose for which it was not
designed. . . . Likewise, vexatious litigation claims must allege, inter alia,
that the defendant acted primarily for a purpose other than that of bringing an
offender to justice and without probable cause.’’ (Citation omitted; internal
quotation marks omitted.) Id., 546. The majority in Simms concluded that
fraud claims based on litigation conduct are barred by the privilege because,
unlike abuse of process claims, they ‘‘[do] not require consideration of
whether the underlying purpose of the litigation was improper but, rather,
whether an attorney’s conduct while representing or advocating for a client
during a judicial proceeding that was brought for a proper purpose is entitled
to absolute immunity.’’ Id., 546–47.
I have no quarrel with Simms, but it would be a serious mistake to view
that case as holding that any claim of litigation misconduct involving false
speech is always covered by the litigation privilege, so long as the ‘‘underlying
purpose of the litigation’’ itself is legitimate. That conclusion would, in one
stroke, largely eviscerate the tort of abuse of process as explicated in § 682
of the Restatement (Second) of Torts, Mozzochi v. Beck, supra, 204 Conn.
Page 100 CONNECTICUT LAW JOURNAL March 29, 2022

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