Scholz v. Epstein, 341 Conn. 1 (2021)

Citation: Scholz v. Epstein, 341 Conn. 1 (2021)
Parent Document: Scholz v. Epstein, 341 Conn. 1 (2021)
Jurisdiction: Connecticut (state)
Effective Date: 2021-09-29
Original Source: https://www.courtlistener.com/opinion/6244827/scholz-v-epstein/ ↗

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            The plaintiff argues that our public policy weighs
         against applying the litigation privilege to bar his claim
         of statutory theft because ‘‘it involves a series of calcu-
         lated acts of dishonesty [that] go far beyond, and are
         much more sinister than, mere defamatory statements.’’
         To distinguish his statutory theft claim from the tort of
         defamation, the plaintiff points out that theft involves
         criminal conduct and requires proof of specific intent,
         which, according to him, ‘‘is quantitatively and qualita-
         tively more stringent than simply proving a malicious
         purpose.’’ The plaintiff also argues that, unlike defama-
         tion, statutory theft is not premised on communication,
         and the Appellate Court improperly focused on the
         defendant’s lying to the trial court rather than on the
         defendant’s stealing from the plaintiff. Finally,
         addressing the court’s concern in Simms about increased
         litigation, he argues that, rather than claims of statutory
         theft opening the floodgates to retaliatory litigation,
         attorneys who properly serve process in a foreclosure
         proceeding would have nothing to fear. In fact, he
         argues, by affording immunity as to his statutory theft
         claim, we would open a different kind of floodgate by
         immunizing thieving attorneys. We disagree.
           In considering the plaintiff’s arguments, it is helpful
         to examine how we analyzed a similar argument in
         Simms in relation to a claim of fraud. Specifically, this
         court in Simms compared the elements of fraud to the
         elements of defamation6 and vexatious litigation.7 In
            6
              ‘‘To establish a prima facie case of defamation, the plaintiff must demon-
         strate that: (1) the defendant published a defamatory statement; (2) the
         defamatory statement identified the plaintiff to a third person; (3) the defam-
         atory statement was published to a third person; and (4) the plaintiff’s
         reputation suffered injury as a result of the statement.’’ (Internal quotation
         marks omitted.) Simms v. Seaman, supra, 308 Conn. 547–48.
            7
              ‘‘Vexatious litigation requires a plaintiff to establish that: (1) the previous
         lawsuit or action was initiated or procured by the defendant against the
         plaintiff; (2) the defendant acted with malice, primarily for a purpose other
         than that of bringing an offender to justice; (3) the defendant acted without
Page 48                        CONNECTICUT LAW JOURNAL                          January 25, 2022

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