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*********************************************** 
MICHAEL J. FIONDELLA, JR., TRUSTEE, ET AL.

v. CITY OF MERIDEN ET AL.

(AC 40813)

DiPentima, C. J., and Lavine and Harper, Js.

Syllabus

The plaintiffs, owners of certain real property in a subdivision in Meriden,

brought this action against the defendants A and H, owners of real

property in the subdivision, and their attorney, M, alleging claims for,

inter alia, fraud and civil conspiracy, and seeking injunctive and declaratory relief, as well as monetary damages. In 2004, A and H, represented

by M, had brought a declaratory judgment action asserting adverse

possession of certain land in the subdivision that comprised portions

of a driveway that was adjacent to their home but was located on

abutting land. The trial court rendered judgment in favor of A and H in

that action, finding that they had acquired title to the disputed portions

of the driveway by way of adverse possession, and this court affirmed

the trial court’s judgment. Thereafter, the plaintiffs, certain abutting

landowners in the subdivision, commenced the present action, claiming

that the defendants had failed to give them notice of the declaratory

judgment action, as required by the applicable rule of practice (§ 17-56

[b]), and conspired and schemed to conceal the declaratory judgment

action from the plaintiffs. The defendants subsequently filed a motion

to dismiss for lack of subject matter jurisdiction, claiming that the

alleged wrongful conduct was shielded by the litigation privilege. The

trial court granted the motion to dismiss and rendered judgment thereon,

from which the plaintiffs appealed to this court. Held that the trial court

improperly granted the defendants’ motion to dismiss and applied the

litigation privilege in favor of the defendants to conclude that it lacked

subject matter jurisdiction; because the primary allegation of fraud in the

plaintiffs’ complaint concerned the defendants’ intentional and wrongful

conduct in depriving the plaintiffs of notice of the declaratory action

and concealing that action, which did not occur during a judicial proceeding or involve the defendants’ conduct or statements made during a

judicial proceeding, the defendants were not shielded by the litigation

privilege, and, therefore, the trial court was not without subject matter jurisdiction.

Argued October 9—officially released December 11, 2018

Procedural History

Action seeking damages for, inter alia, fraud, and

seeking declaratory and injunctive relief, brought to the

Superior Court in the judicial district of New Haven at

Meriden, where the court, Hon. John F. Cronan, judge

trial referee, granted the motion to dismiss filed by

the defendant Adele G. Eberhart et al., and rendered

judgment thereon, from which the plaintiffs appealed

to this court. Reversed; further proceedings.

Dominic J. Aprile, for the appellants (plaintiffs).

Vincent T. McManus, Jr., for the appellees (defendant Adele G. Eberhart et al.).
Opinion

LAVINE, J. The plaintiffs, Michael J. Fiondella, Jr.,

trustee of the Jo-An Carabetta 1983 Irrevocable Trust

(trust), and The Meriden Homestead, LLC, appeal from

the judgment of the trial court dismissing the counts

of the complaint alleged against the defendants, Adele

G. Eberhart, Harry S. Eberhart, and Vincent T. McManus, Jr.1 On appeal, the plaintiffs claim that the court

improperly (1) applied the litigation privilege in favor

of the defendants to conclude that it lacked subject

matter jurisdiction and (2) construed the fraud and civil

conspiracy allegations against the defendants. We agree

that the court improperly applied the litigation privilege

to determine that it lacked subject matter jurisdiction.

We, therefore, reverse the judgment of the trial court.2

The historical facts underlying the present appeal

were set out in Eberhart v. Meadow Haven, Inc., 111

Conn. App. 636, 960 A.2d 1083 (2008), a declaratory

judgment action in which the Eberharts sought to obtain

ownership of certain land by means of adverse possession. Id., 638. The land at issue lies under a driveway

adjacent to their home in the Shaker Court subdivision

(subdivision) in Meriden. Id. On October 5, 1966,

Meadow Haven, Inc. (Meadow Haven), conveyed lot

seven in the subdivision to the Eberharts. Id. Lot seven

is one of thirty lots in the subdivision and sits on the

corner of Sandy Lane, a public way, and Shaker Court,

an unpaved right-of-way. Id. When the Eberharts moved

into their home on lot seven, they used the driveway that

Meadow Haven had installed to reach Sandy Lane. Id.

The Eberharts later learned that the driveway was

not located on lot seven but on an abutting lot. Id., 639.

The Eberharts informed Joseph Carabetta, a Meadow

Haven principal, who had the land surveyed. He then

resubdivided the abutting lot to move the Eberharts’

property line to encompass the driveway. A deed

reflecting the enlargement of lot seven, however, never

was filed in the land records. Id. The revised subdivision, therefore, never went into effect, but the Eberharts

relied on Carabetta’s representations that the ‘‘problem

had been fixed.’’ Id., 640. The Eberharts made exclusive

use of the driveway, planted a hedge, installed light

posts and planters, and maintained the driveway and

lawn over the disputed area. Id.

In 2004, the Eberharts commenced an action seeking

a declaratory judgment that they were the legal owners

of the land under the driveway by operation of the

doctrine of adverse possession. Following a trial, the

court, Jones, J., found by clear and convincing evidence

that the Eberharts were the owners of the subject parcels by adverse possession and rendered a declaratory

judgment in their favor. Id., 638–39. Meadow Haven

appealed, and this court affirmed the declaratory judgment. Id., 649.
On July 7, 2016, the plaintiffs commenced the present

action alleging claims for fraud, slander of title, and

civil conspiracy. Specifically, the plaintiffs alleged that

they were owners of certain lots in the subdivision,

that the defendants failed to give them notice of the

declaratory judgment action, and that they only recently

had learned of the declaratory judgment. On December

5, 2016, the defendants filed a motion to dismiss the

present action on the ground that the court lacked subject matter jurisdiction because the litigation privilege

shielded them from the claims alleged by the plaintiffs.3

The plaintiffs filed an opposition to the motion to dismiss, arguing that the defendants were not protected

by the litigation privilege because the allegations of the

complaint were not predicated on statements made in

the course of a declaratory judgment action but on the

defendants’ intentional conduct to conspire and conceal

the declaratory judgment action from them.

The motion to dismiss was heard at short calendar

on May 25, 2017. The court, Hon. John F. Cronan,

judge trial referee, issued a memorandum of decision

on August 18, 2017, granting the defendants’ motion

on the ground that the litigation privilege shielded the

defendants from the plaintiffs’ claims.4 The plaintiffs

appealed, claiming, in essence, that the court improperly granted the defendants’ motion to dismiss pursuant

to the litigation privilege. We agree.

‘‘The standard of review for a court’s decision on a

motion to dismiss . . . is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record,

the court is without jurisdiction. . . . [O]ur review of

the court’s ultimate legal conclusion and resulting

[determination] of the motion to dismiss will be de

novo. . . . When a . . . court decides a jurisdictional

question raised by a pretrial motion to dismiss, it must

consider the allegations of the complaint in their most

favorable light. . . . In this regard, a court must take

the facts to be those alleged in the complaint, including

those facts necessarily implied from the allegations,

construing them in a manner most favorable to the

pleader. . . . The motion to dismiss . . . admits all

facts, which are well pleaded, invokes the existing

record and must be decided upon that alone. . . . In

undertaking this review, we are mindful of the well

established notion that, in determining whether a court

has subject matter jurisdiction, every presumption

favoring jurisdiction should be indulged.’’ (Citations

omitted; internal quotation marks omitted.) Dayner v.

Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d

1192 (2011).

We begin with a review of the law regarding the

litigation privilege. ‘‘The litigation privilege developed

centuries ago in the context of defamation claims. See

Simms v. Seaman, 308 Conn. 523, 531, 69 A.3d 880

(2013). The privilege evolved, in part, to protect lawyers
from civil actions for words spoken during the course

of legal proceedings. . . . Absolute immunity for

defamatory statements made in the course of judicial

proceedings has been recognized by common-law

courts for many centuries and can be traced back to

medieval England. . . . The rationale articulated in the

earliest privilege cases was the need to bar persons

accused of crimes from suing their accusers for defamation. . . .

‘‘Connecticut has long recognized the litigation privilege, and our Supreme Court has stated that the privilege extends to judges, counsel and witnesses

participating in judicial proceedings. . . . [O]ur

Supreme Court explained that the privilege was

founded upon the principle that in certain cases it is

advantageous for the public interest that persons should

not be in any way fettered in their statements, but

should speak out the whole truth, freely and fearlessly. . . .

‘‘It is well settled that communications uttered or

published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy. . . . The effect

of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement

even if the statement is false and malicious.’’ (Citations

omitted; emphasis in original; internal quotation marks

omitted.) Villages, LLC v. Longhi, 166 Conn. App. 685,

699–700, 142 A.3d 1162, cert. denied, 323 Conn. 915,

149 A.3d 498 (2016).

Our Supreme Court ‘‘consistently [has] applied the

doctrine of absolute immunity to defamation actions

arising from judicial or quasi-judicial proceedings.’’

Rioux v. Barry, 283 Conn. 338, 345, 927 A.2d 304 (2007).

It has expanded ‘‘absolute immunity to bar retaliatory

civil actions beyond claims of defamation. For example,

[our Supreme Court has] concluded that absolute immunity bars claims of intentional interference with contractual or beneficial relations arising from statements

made during a civil action. . . . [It has] also precluded

claims of intentional infliction of emotional distress

arising from statements made during judicial proceedings on the basis of absolute immunity. . . . Finally,

[it] most recently applied absolute immunity to bar

retaliatory claims of fraud against attorneys for their

actions during litigation.’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) Bruno v.

Travelers Cos., 172 Conn. App. 717, 726, 161 A.3d 630

(2017); see also Simms v. Seaman, supra, 308 Conn.

566–69 (litigation privilege afforded to any act occurring

during course of judicial proceeding).

Our Supreme Court, however, has ‘‘recognized a distinction between attempting to impose liability upon a

participant in a judicial proceeding for the words used

therein and attempting to impose liability upon a litigant
for his improper use of the judicial system itself. See

DeLaurentis v. New Haven, [220 Conn. 225, 263–64,

597 A.2d 807 (1991)] (whether or not a party is liable for

vexatious suit in bringing an unfounded and malicious

action, he is not liable for the words used in the pleadings and documents used to prosecute the suit . . . ).

In this regard, [our Supreme Court has] refused to apply

absolute immunity to causes of action alleging the

improper use of the judicial system.’’ (Emphasis altered;

internal quotation marks omitted.) MacDermid, Inc. v.

Leonetti, 310 Conn. 616, 629, 79 A.3d 60 (2013).

In their brief, the plaintiffs argue that their cause of

action does not arise out of statements made in the

course of litigation; rather, the claims arise out of the

intentional conduct of the defendants, who purposely

took steps to conceal from the plaintiffs that they had

commenced the declaratory judgment action.5 The primary allegation of fraud concerns the defendants’ intentional and wrongful conduct in depriving the

subdivision lot owners of notice and their purposeful

concealment of the actions that they knew were contrary to the property rights and interests of the lot

owners.6

In support of their position, the plaintiffs note

that, pursuant to Practice Book § 17-56 (b),7

the defendants were obligated to join them in the declaratory

judgment action or to provide them with notice of its

pendency. This is so, they claim, because ‘‘the notice

requirement ensures that interested persons are aware

of the requested declaratory relief and are able to move

to intervene to protect their interests, should they

choose to do so.’’ Batte-Holmgren v. Commissioner of

Public Health, 281 Conn. 277, 288, 914 A.2d 996 (2007).

The plaintiffs contend that lot owners in a subdivision

are required to be joined or given notice of a declaratory

judgment action; see Mannweiler v. LaFlamme, 232

Conn. 27, 33, 653 A.2d 168 (1995); and that a lot owner

may reasonably anticipate the use of streets disclosed

on the subdivision map. See Lucy v. Oram, 114 Conn.

642, 647, 159 A. 655 (1932) (so-called Whitton rule: test

of when lot owner, who purchases lot in development

where streets are shown on plan, will be permitted to

enforce right to use street, depends upon whether street

is of benefit to owner). The plaintiffs’ complaint alleges

that the deeds to their properties reference the subdivision map that depicts access via Shaker Court.8 On

the basis of the deeds, public documents and notice

requirements, the plaintiffs alleged that the defendants

conspired and schemed with the city defendants to

deprive them of notice of the declaratory judgment

action.

The plaintiffs also argue that the trial court improperly relied on Simms v. Seaman, supra, 308 Conn. 523,

and factually similar cases, in which the claim of fraud

was asserted against a party opponent in prior litigation

and the statement was made during the course of a
judicial proceeding. The present action is not factually

similar because the plaintiffs were not parties in the

declaratory judgment action and their fraud claim is

not based on statements made in that action. This court

has stated that the ‘‘policy and history of the [litigation]

privilege lead us to conclude that [the privilege] extends

to bar claims of fraud against a party opponent." Tyler

v. Tatoian, 164 Conn. App. 82, 92, 137 A.3d 801, cert.

denied, 321 Conn. 908, 135 A.3d 710 (2016). The fraud

the plaintiffs alleged against the defendants is not

asserted pursuant to prior litigation between them.

Most importantly, the plaintiffs’ claims focus on the

alleged wrongful conduct engaged in by the defendants,

rather than on the words uttered during a judicial proceeding. The plaintiffs alleged that the defendants

engaged in fraud by purposefully concealing the existence of the declaratory judgment action as part of a

scheme and conspiracy. They argue, and we agree, that

the facts of this case are somewhat similar to those of

Villages, LLC v. Longhi, supra, 166 Conn. App. 685. In

Villages, LLC, this court determined that a member of

the planning and zoning commission who engaged in

ex parte communications and was biased against the

plaintiff, Villages, LLC, was not protected by the litigation privilege when she participated in the commission’s

meeting to act on that plaintiff’s applications. Id., 707. In

its memorandum opposing a motion to dismiss, Villages,

LLC argued that "its claims are not predicated on what

the defendant [commission member] stated at the commission meeting, but on her bias and ex parte communication . . . ." (Emphasis in original.) Id., 696. This

argument is legally similar to the one made by the plaintiffs in the present case. We conclude that the allegations of the plaintiffs’ complaint in the present case are

not predicated on statements made during the course of

litigation, but are based on the defendants’ intentional

conduct that did not occur during a judicial proceeding.

The defendants, therefore, are not shielded by the litigation privilege.

Whether the plaintiffs will prevail on the merits of

their claim is, of course, not before us at this time.9

They have persuaded us, however, that, with respect

to the claims alleged, the defendants are not protected

by the litigation privilege and the court, therefore, was

not without subject matter jurisdiction. The plaintiffs’

claims are predicated on the defendants’ alleged intentional conduct to deprive them of notice of the declaratory judgment action rather than on the defendants’

conduct or statements made during a judicial proceeding. The court, therefore, improperly granted the defendants’ motion to dismiss.

The judgment is reversed and the case is remanded

for further proceedings according to law.

In this opinion the other judges concurred.

1 McManus, an attorney, represented the Eberharts in the underlying
declaratory judgment action and in the present case. The city of Meriden,

James Anderson, former city zoning enforcement officer, and Dominick

Caruso, former city planner, also were served as defendants. They are not

parties to this appeal, and we refer to them as the city defendants in this

opinion. We refer to Adele G. Eberhart and Harry S. Eberhart jointly as the

Eberharts where necessary, and to the Eberharts and McManus collectively

as the defendants.

2 Because we conclude that the trial court improperly dismissed the counts

against the defendants for lack of subject matter jurisdiction, we do not

reach the plaintiffs’ second claim.

3 The motion to dismiss addressed the counts alleged against the defendants, namely, counts one, two, six, seven and eight. The motion to dismiss

did not address the counts alleged against the city defendants.

4

In its memorandum of decision, the trial court stated that its decision

was guided by MacDermid, Inc. v. Leonetti, 310 Conn. 616, 629–30, 79 A.3d

60 (2013) (whether and what form of immunity applies in given case is

matter of policy that requires balancing of interests), and Rioux v. Barry,

283 Conn. 338, 350–51, 927 A.2d 304 (2007) (same). The court noted that

the plaintiffs did not allege that the defendants had abused the judicial

system and pursued litigation for an unlawful or improper purpose. In other

words, the plaintiffs were not challenging the purpose of the declaratory

judgment action. See Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112

(1951) (abuse of process lies against any person using legal process against

another in improper manner or to accomplish purpose for which it was

not designed).

The court, however, stated that the plaintiffs’ claim occurred during the

course of the judicial proceedings and that the defendants’ actions were

shielded by the litigation privilege. The court found that the plaintiffs’ slander

of title claim against the defendants arose from the testimony Anderson

gave at trial and that those statements were privileged. With respect to

the plaintiffs’ claims of civil conspiracy, the court stated that there is no

independent cause of action for civil conspiracy and that to state a cause

of action, a claim of civil conspiracy must be joined with allegations of a

substantive tort. See Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d

522 (2005). The court reasoned that the plaintiffs’ slander of title claims

were the underlying actions on which civil conspiracy was based. Because

the defendants were shielded by the litigation privilege with respect to the

slander of title claim, the court concluded that there was no underlying tort

to support the civil conspiracy claims.

We note that in ruling on a motion to dismiss, the question before the

court generally is whether the court has subject matter jurisdiction. See

Practice Book § 10-30. It is not to determine whether the complaint states

a cause of action on which relief may be granted, which properly is raised

by means of a motion to strike. See Practice Book § 10-39. ‘‘[A] motion to

strike challenges the legal sufficiency of a pleading, and, consequently,

requires no factual findings by the court. . . . We take the facts to be those

alleged in the complaint . . . and we construe the complaint in the manner

most favorable to sustaining its legal sufficiency. . . . [I]f facts provable

in the complaint would support a cause of action, the motion to strike must

be denied.’’ Larobina v. McDonald, supra, 274 Conn. 400.

5 The plaintiffs attempt to bolster their argument that the defendants

sought to conceal the declaratory judgment action by bringing that prior

action in the judicial district of New Haven, rather than in Meriden where

the subdivision is located and the parties reside.

6 Specifically the plaintiffs alleged: ‘‘26. As part of, and in furtherance

of, their continuous scheme and conspiracy, the Defendants agreed that

Defendant Anderson would provide testimony in the [declaratory judgment

action], which testimony was knowingly contrary to City of Meriden records,

official maps and other documents, or was in reckless disregard of the truth.

‘‘27. As part of, and in furtherance of, their continuous scheme and conspiracy, the Defendants concealed their continuous course of conspiratorial

conduct and other wrongful acts from the Plaintiffs, from the Court and

from the public at large.

* * *

‘‘33. After the events recited in the foregoing paragraphs occurred, and

after the Defendants achieved the goal of their conspiracy through the overt

acts set forth above, the Defendants further agreed and conspired with the

intent to and for the purpose of preventing Plaintiffs from discovering the

true facts regarding Defendants’ conduct and to prevent Plaintiffs from

being able to ascertain the existence of the causes of action set forth in the
prior counts of this Complaint.’’

7 Practice Book § 17-56 (b) provides in relevant part: ‘‘All persons who

have an interest in the subject matter of the requested declaratory judgment

that is direct, immediate and adverse to the interest of one or more of the

plaintiffs or defendants in the action shall be made parties to the action or

shall be given reasonable notice thereof. . . . The party seeking the declaratory judgment shall append to its complaint . . . a certificate stating that

all such interested persons have been joined as parties to the action or have

been given reasonable notice thereof. If notice was given, the certificate

shall list the names, if known, of all such persons, the nature of their interest

and the manner of notice.’’

8 The complaint alleges in relevant part: ‘‘11. On April 26, 1972, lot numbers

for the lots show on that certain Map No. 3372 entitled, ‘Resubdivision of

Country View Heights Section II Shaker Court–Meriden’ dated March 27,

1972 (the ‘Shaker Court Resubdivision Map’), were approved by the Tax

Assessor of the City of Meriden.

‘‘12. 24 Shaker Court is and has been at all times relevant designated by

the Tax Assessor of the City of Meriden as ‘Map/Lot: 0911-0323-0003-005A

Card Number 1.’

‘‘13. Shaker Court is and has been at all times relevant listed as a public

street on the official City of Meriden Zoning Map, through and including

the Map Revision dated November 14, 2013 and effective as of November

14, 2013 (the ‘Zoning Map’), and is shown on the Zoning Map as a public

street in the same fashion as all other public streets are shown.’’

9

In their brief on appeal, the defendants failed to address squarely the

litigation privilege. They raised arguments more applicable to a motion to

strike such as whether the complaint fails to state a cause of action or

whether the action is barred by the statute of limitations, and other arguments more properly directed to the merits of the plaintiffs’ cause of action.

We decline to address those arguments as they are not pertinent to an

analysis of the trial court’s subject matter jurisdiction.