The plaintiff, S, sought to recover damages from the defendant attorney for
alleged statutory (§ 52-564) theft in connection with the defendant’s
conduct during prior judicial proceedings involving the foreclosure of
a municipal lien filed against S’s real property. The defendant, acting
as B Co.’s attorney, commenced the prior action to foreclose the lien,
which B Co. had purchased from a municipality. During the foreclosure
action, S was defaulted for failure to appear, and the court thereafter
rendered a judgment of strict foreclosure. After the running of the law
days, and approximately six months after title vested in B Co., the
defendant filed a certificate of foreclosure in the municipal land records.
B Co. subsequently sold the property to a third party. S alleged in the
present action that the defendant, with the intent to deprive S of his
property or to appropriate the property to B Co., had perpetrated a
fraud on the trial court during the foreclosure proceedings by knowingly
making materially false representations about the state marshal’s inabil-
ity to serve process on S and about the value of S’s property, which
purportedly led the court to render the foreclosure judgment. The trial
court granted the defendant’s motion to dismiss the present action for
lack of subject matter jurisdiction, concluding that, because all of the
defendant’s alleged conduct occurred during the foreclosure proceed-
ings, S’s statutory theft claim was barred by the litigation privilege,
which affords attorneys absolute immunity from liability for certain
statements made or conduct during judicial proceedings. The Appellate
Court affirmed the trial court’s judgment, concluding that all of the
defendant’s allegedly wrongful conduct occurred within the underlying
foreclosure proceedings and that the balancing of policy considerations
weighed in favor of applying absolute immunity to S’s claim of statutory
theft. On the granting of certification, S appealed. Held:
1. The Appellate Court correctly determined that the litigation privilege
afforded the defendant absolute immunity from liability for statutory
theft, this court having concluded, after considering the underlying pur-
pose of the judicial proceedings, the similarity between statutory theft
and claims of defamation and fraud, and the availability of other reme-
dies, that the policy considerations raised by the parties supported
applying absolute immunity to S’s statutory theft claim:
a. S’s statutory theft claim did not challenge or subvert the purpose
of the underlying foreclosure proceeding but, instead, challenged the
defendant’s role as an advocate for his client, B Co., in a judicial proceed-
ing, which S acknowledged was properly brought in light of his failure
to pay his property taxes, and the litigation privilege absolutely bars
causes of action arising from attorney advocacy; moreover, it was clear
from the elements of statutory theft, which requires a plaintiff to establish
that the defendant stole the plaintiff’s property or received and concealed
stolen property, that S’s claim of statutory theft did not challenge the
purpose of the underlying foreclosure proceeding; furthermore, S’s statu-
tory theft claim was premised on the defendant’s allegedly false or mis-
leading communications to the court during that proceeding, and
communication is a necessary advocacy tool that the litigation privilege
protects, regardless of the false or malicious nature of the communi-
cation.
b. The fact that S’s statutory theft claim was more akin to claims of
defamation and fraud, which are protected by the litigation privilege,
than to claims of vexatious litigation and abuse of process, which are
not protected by the litigation privilege, militated in favor of applying
the privilege in the present case: S’s statutory theft claim, like a defama-
tion claim, was premised on the communication of false statements, and
S alleged that the defendant fraudulently took his property by false
pretenses, which constitutes statutory theft under this court’s case law
interpreting § 52-564; moreover, it was of no consequence that the defen-
dant made the false statements at issue to a court rather than to S
himself, as the plaintiff’s statutory theft claim was nonetheless premised
on false communications.
c. Certain alternatives, other than civil liability, including the filing of a
grievance against the defendant or a collateral action challenging the
defendant’s allegedly fraudulent actions, were available to the plaintiff
to address the defendant’s alleged conduct; moreover, the plaintiff did
not cite to any federal or state precedent holding that absolute immunity
does not apply to a claim of statutory theft or a similar type of claim.
2. The plaintiff could not prevail on his claim that, even if the litigation
privilege applies to claims of statutory theft, it was inapplicable in the
present case to the extent that the defendant’s delayed recording of the
certificate of foreclosure on the land records and his role in the subse-
quent sale of the property purportedly occurred outside the scope of
the foreclosure action: the defendant, in his capacity as B Co.’s attorney
in the foreclosure proceeding, was required by statute (§ 49-16) to record
the foreclosure certificate on the land records, and, thus, that act was
conducted in connection with, and as a required step in, the foreclosure
proceeding; moreover, with respect to the defendant’s conduct in
assisting B Co. with the sale of the property, although the plaintiff alleged
that B Co. had ultimately sold the property to a third party, the plaintiff
did not allege that the defendant was involved in the sale of the property
in any way or that he otherwise committed statutory theft in relation
to that sale.
Argued April 28—officially released September 29, 2021* Procedural History