Patrick J. Gillis v. Elizabeth Gaary (2010)

MEMORANDUM OF DECISION-MOTION FOR SUMMARY JUDGMENT # 111

FACTUAL AND PROCEDURAL BACKGROUND

On November 13, 2009, the plaintiff, Patrick J. Gillis, filed a two-count complaint against the defendant, Elizabeth Gaary.   This action arises out of proceedings concerning a claim for dissolution of marriage and other relief brought by the defendant against the plaintiff, specifically out of the execution of a capias issued by the court, Schofield, J., on August 31, 2009.   On June 7, 2010, the defendant filed a motion for summary judgment and a memorandum in support, as well as an affidavit of Eric J. Broder, and an affidavit of the defendant.   The plaintiff filed a memorandum in opposition on June 15, 2010, to which the defendant filed a reply on June 17, 2010.   The matter was heard at short calendar on June 22, 2010.

DISCUSSION

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

“A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”   Practice Book § 17-45.  “[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on personal knowledge;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  (Internal quotation marks omitted.)   Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).

“Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)   Bonington v. Westport, 297 Conn. 297, 305 (2010).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ․ Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material.”  (Internal quotation marks omitted.)  Karwowsky v. Fardy, 228 Conn.App. 480, 485, 984 A.2d 480 (2009).   The court, however, may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

The defendant argues that there are no genuine issues as to any material fact and that the defendant is entitled to judgment as a matter of law.   Specifically, the defendant argues that there does not appear to be any material dispute in the facts giving rise to this claim, as the application for issuance of and execution of the capias is a matter of record.   Additionally, the issuance of the subpoena and the application for the capias was a decision made solely by Attorney Broder.   In support of her argument, the defendant submits the affidavits of Attorney Eric J. Broder, with exhibits attached, and of the defendant herself.   The exhibits attached to Attorney Broder's affidavit are as follows:  (1) the subpoena and return of service issued on October 29, 2008, for the plaintiff to attend a deposition on December 2, 2008;  (2) the subpoena and return of service issued on October 29, 2008, for the plaintiff to appear at a case management conference scheduled for January 6, 2009;  (3) email records dated November 12, 2008, providing copies of the subpoenas to the plaintiff;  (4) the subpoena and return of service issued on August 26, 2009, for the plaintiff's appearance in court on August 31, 2009;  (5) the transcript of the proceedings of August 31, 2009;  (6) the capias issued by the court on August 31, 2009, for the plaintiff's appearance on September 4, 2009;  (7) the transcript of the proceedings on September 4, 2009;  (8) and the letter by the grievance committee, dated January 15, 2010, dismissing the plaintiff's grievance complaint.

The plaintiff argues that there is no blanket privilege in the state of Connecticut for statements made in open court, or in pleadings, which protects against causes of action other than slander.   The plaintiff further argues that, as the causes of action asserted in the plaintiff's complaint in the instant matter do not include those for defamation of character, the complaint states a valid cause of action against the defendant for the untrue statements uttered by her through counsel in open court which directly resulted in the plaintiff's unlawful incarceration and the damages suffered by him thereby.   The plaintiff does not submit any evidence in support of his memorandum in opposition.

The defendant replies that the lynchpin of the plaintiff's complaint is his contention that Attorney Broder, in making the application for capias, allegedly made false representations to the Court, to the effect that the plaintiff had failed to honor subpoenas in the past, and that he was under subpoena for the appearance on August 31, 2009, and as a result the court issued the capias.   Accordingly, the defendant argues the immunity runs to Attorney Broder's purported statements to the court.   Additionally, the defendant argues that the plaintiff fails to respond to any of the defendant's evidentiary submission, and that the court was in possession of the subpoena and marshal's return when the court issued the capias.   Finally, the defendant argues that the plaintiff fails to allege that the capias issued by the court was used in an improper manner or not for its intended purpose.

“[B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.   The requirement of authentication applies to all types of evidence, including writings ․ Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.”  (Citation omitted;  internal quotation marks omitted.)  Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).

In the present case, both of the affidavits submitted by the defendant, are properly sworn and signed.   Further, all of the exhibits attached to Attorney Broder's affidavit are properly authenticated by the affidavit.   Moreover, because the plaintiff fails to object to any of the evidence presented by the defendant, any objection is deemed waived and the documents are admissible within the court's discretion.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).¹

“[I]n Connecticut, parties to or witnesses before judicial or quasi-judical proceedings are entitled to absolute immunity for the content of statements made therein.”  (Internal quotation marks omitted.)  Lega Siciliana Social Club, Inc. v. St. Grermaine, 77 Conn.App. 846, 856, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).  “It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so 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 a defamatory statement even if it is published falsely and maliciously ․ The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements.”  (Internal quotation marks omitted.)  Watts v. Chittenden, 115 Conn.App. 404, 413-14, 972 A.2d 770, cert. denied on other grounds, 293 Conn. 932, 981 A.2d 1077 (2009).

Further, “[General Statutes § ]52-143 authorizes the trial court to issue a capias to compel the appearance of a witness who fails to appear without justification.   The statute does not, however, make it mandatory for the court to issue a capias when a witness under subpoena fails to appear;  issuance of a capias is in the discretion of the court ․ [which] has the authority to decline to issue a capias when the circumstances do not justify or require it.”  (Emphasis in original;  internal quotation marks omitted.)  Housing Authority v. DeRoche, 112 Conn.App. 355, 372-73, 962 A.2d 904 (2009).

In the present case, the plaintiff alleges that the defendant's communications in the context of the judicial proceeding on August 31, 2009, were false representations of fact, directly causing the court's issuing of the capias, which caused the plaintiff to be temporarily incarcerated.   The plaintiff, however, does not have a cause of action under the law for defamatory statements made during judicial proceedings.   Further, the defendant submits admissible evidence, demonstrating that the issuance of the capias was based upon subpoenas and marshal's returns attesting to their service to the plaintiff, and that the decision to issue the subpoenas and to apply to the court for the capias was made by Attorney Broder.   Accordingly, the defendant meets her burden in proving the absence of any issues of material fact, that she is entitled to judgment as a matter of law, as the plaintiff lacks a cause of action against the defendant.   Further, the plaintiff fails to submit any evidence creating an issue of fact, and the plaintiff fails to argue or submit evidence to the effect that the issuance of a capias based upon the representations made to the court was inappropriate.

CONCLUSION

The defendant has met her burden of proof in demonstrating the absence of any material issues of fact.   The plaintiff has failed to show the existence of any genuine issues of fact.   Therefore, the defendant is entitled to judgment as a matter of law.   The motion for summary judgment is granted.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. During short calendar on June 22, 2010, the defendant submitted Judge Munro's memorandum of decision from the underlying divorce action, dated June 17, 2010.   The plaintiff objected to its submission into evidence, and the document was never formally entered as an exhibit.   As Judge Munro's decision is not necessary to decide the issues in the present case, the court will disregard the decision for purposes of the present motion for summary judgment..  FN1. During short calendar on June 22, 2010, the defendant submitted Judge Munro's memorandum of decision from the underlying divorce action, dated June 17, 2010.   The plaintiff objected to its submission into evidence, and the document was never formally entered as an exhibit.   As Judge Munro's decision is not necessary to decide the issues in the present case, the court will disregard the decision for purposes of the present motion for summary judgment.

Brazzel-Massaro, Barbara, J.