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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doing so, we considered whether the plaintiff’s fraud
claim was premised on communication of a false state-
ment, like a defamation claim; Simms v. Seaman, supra,
308 Conn. 548; whether embedded in a fraud claim is
a balancing test with stringent safeguards that protect
against inappropriate retaliatory litigation while incen-
tivizing the reporting of wrongdoing, like a vexatious
litigation claim; id., 549; whether the fraud claim was
easy to allege but difficult to prove, like defamation
claims; id.; and whether, as with defamation claims, not
recognizing the litigation privilege for such an action
would ‘‘open the floodgates to a wave of litigation in this
state’s courts challenging an attorney’s representation,
especially in foreclosure and marital dissolution actions
in which emotions run high and there may be a strong
motivation on the part of the losing party to file a retalia-
tory lawsuit.’’ Id., 568. In Simms, after considering these
issues, we came down firmly on the side of applying
the litigation privilege to a fraud claim against an attor-
ney. See id., 568–69. We conclude similarly in the pres-
ent case that the plaintiff’s statutory theft claim has
more in common with a defamation claim than an abuse
of process, vexatious litigation or malicious prosecu-
tion claim, which therefore militates in favor of applying
the privilege.
The elements of a claim of statutory theft under § 52-
564 provide that ‘‘[a]ny person who steals any property
of another, or knowingly receives and conceals stolen
property, shall pay the owner treble his damages.’’ This
court has explained that ‘‘[s]tatutory theft under . . .
§ 52-564 is synonymous with larceny [as defined in]
General Statutes § 53a-119 . . . .’’ (Citation omitted;
internal quotation marks omitted.) Stuart v. Stuart, 297
Conn. 26, 41, 996 A.2d 259 (2010). The definition of
larceny under § 53a-119 includes various fraudulent
probable cause; and (4) the proceeding terminated in the plaintiff’s favor.’’
Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007).
January 25, 2022 CONNECTICUT LAW JOURNAL Page 49

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