The plaintiff sought to recover damages from the defendant attorney E, and
the defendant insurance company, N Co., claiming that E had committed
fraud against the plaintiff and that N Co. was vicariously liable for E’s
actions. The plaintiff had previously brought an action for, inter alia,
negligence against A, who was insured by N Co., and another individual,
R. A was represented by E on behalf of N. Co. in the negligence action,
in which the jury awarded the plaintiff damages against both A and R.
Pursuant to a settlement agreement in that action, the plaintiff signed
a general release and withdrawal form in exchange for settling the case
against A. The plaintiff later discovered that she would be unable to
recover damages from R, and moved to open the judgment in the negli-
gence action, claiming that E had engaged in unfair and deceptive behav-
ior by instructing her to sign the release without explaining what it was
and how it could affect the judgment in that action. After the trial court
in the negligence action denied her motion to open and concluded that
there was no evidence that E had coerced the plaintiff into signing the
release, the plaintiff commenced the present action alleging fraud against
E and N Co. Thereafter, the court granted the defendants’ motion for
summary judgment, concluding that the plaintiff was collaterally
estopped from asserting her fraud action because the issue had been
addressed in the negligence action, and the plaintiff appealed to this
court. This court reversed in part the judgment of the trial court, conclud-
ing that the trial court improperly granted the defendants’ motion for
summary judgment as to the plaintiff’s claim for intentional misrepresen-
tation because there were genuine issues of material fact whether that
claim had been fully and fairly litigated at the hearing on the motion to
open the negligence action, and remanded the case for further proceed-
ings. Following the remand, the defendants filed a motion to dismiss
the action on the ground that the litigation privilege barred the plaintiff’s
claim. The trial court rendered judgment dismissing the action, conclud-
ing that the defendants had satisfied the requirements for absolute immu-
nity under the litigation privilege, from which the plaintiff appealed to
this court. Held:
1. The plaintiff could not prevail on her claims that the trial court erred in
concluding that the litigation privilege implicated the subject matter
jurisdiction of the court and that the defendants timely filed their motion
to dismiss; the doctrine of absolute immunity concerns a court’s subject
matter jurisdiction and challenges to a court’s subject matter jurisdiction
can be raised at any time and cannot be waived.
2. The trial court properly granted the motion to dismiss and concluded that
E’s statements were protected by the litigation privilege; E’s statements
made during a postverdict settlement conference were made during a
judicial proceeding, there is no requirement that statements be made
in a courtroom, under oath, or in a pleading in order to be considered
part of a judicial proceeding and the postverdict settlement conference
was part of the ongoing litigation between the parties and was judicial
in nature, and the statements were relevant to the subject matter of
the judicial proceeding, as the purpose of the conference was for the
defendants to reach an agreement with the plaintiff and, thus, E’s state-
ments about signing the withdrawal were relevant to the conference.
Argued November 19, 2019—officially released March 31, 2020 Procedural History