Anne Carbone v. Carlos Diez et al. (2011)

Memorandum of Decision

Presently before the court is a motion for Summary Judgment (# 132.00) filed by the sole remaining defendant, Michael Goldman.¹  On September 28, 2010, the plaintiff, Anne Carbone, withdrew her claims against defendants Carlos Diez and Diana Diez and filed a second amended complaint setting forth six counts directed solely against defendant Michael Goldman.

All six counts arise out of the following alleged facts.   The plaintiff was a licensed real estate agent employed by Coldwell Banker Real Estate and was a member of the Mid–Fairfield County Association of Realtors, Inc. and the chair of the Zoning Board of Appeals of Norwalk.   On or about September 23, 2005, the Diezes engaged the plaintiff to list their single family home for sale with the Consolidated Multiple Listing Service.   As part of the plaintiff's pre-listing review of the premises, the plaintiff inspected the Diezes' home and noticed what appeared to be a second kitchen due to the presence of a built-in oven.   The plaintiff advised Carlos Diez that the oven should be removed based on her understanding that a second kitchen was not permitted under the applicable Norwalk zoning regulations.   The Diezes removed the oven, and the plaintiff listed the premises.   In the listing, the Diezes advertised the former second kitchen as a “wet bar.”

The plaintiff ultimately received an offer on the home, which the Diezes accepted.   Shortly thereafter the Diezes called the plaintiff to ask if they would be permitted to rescind the transaction, as they no longer wished to sell the home due to a sudden illness suffered by Diana Diez's father.   The plaintiff and the erstwhile purchasers agreed to rescind the transaction, and the Diezes removed their home from the market.

On or about May 24, 2006, while reviewing recent listings, the plaintiff noticed that the Diezes home had been re-listed for sale by another broker.   The new listing advertised a “kitchenette” and no longer a “wet bar.”   From a conversation with the Norwalk zoning inspector, Aline Rochefort, the plaintiff learned that the Diezes had not obtained a zoning permit for an additional kitchen.   Thereafter, the plaintiff orally lodged an “anonymous” complaint with the office of the Norwalk Zoning Inspector.   The plaintiff further alleges that the office of the Norwalk Zoning Inspector has long had a policy of accepting “anonymous” zoning complaints.   Rochefort inspected the Diez residence and determined that it contained a second, non-permitted kitchen.   Consequently, Rochefort found a zoning violation and issued a cease and desist order dated October 16, 2006.   To contest the order, the Diezes engaged defendant Michael Goldman as their attorney.   On October 25, 2006, the defendant filed an appeal with the Zoning Board of Appeals on behalf of the Diezes from the cease and desist order.   The Zoning Board of Appeals heard the appeal on December 7, 2006.   The plaintiff recused herself from participation in that hearing.   The appeal was rejected.

Meanwhile, on December 4, 2006, the Diezes and the defendant filed a complaint against the plaintiff with the Norwalk Common Council Committee of Ethics,² alleging violations of § 32–4 of the Norwalk Code of Ethics by the plaintiff.   The defendant provided a copy of their complaint to the Norwalk Hour and the Advocate, two daily newspapers of general circulation in local towns.   On December 29, 2006, the defendant, acting on behalf of the Diezes, filed a complaint with the Mid–Fairfield County Association of Realtors, Inc., claiming that the plaintiff's conduct violated the Code of Ethics and Standards of Practice of the National Association of Realtors.

In the first count of her complaint the plaintiff alleges a claim of statutory vexatious litigation under General Statutes § 52–568 ³ with respect to the complaint filed with the Norwalk Common Council.   The second count of the plaintiff's complaint asserts in claim of common-law vexatious litigation with respect to the same complaint.   The plaintiff alleges that as a direct result of the filing of the complaint with the Norwalk Common Council, the plaintiff was dismissed from her job at Coldwell Banker on December 6, 2006 and for several months was unable to secure alternate employment or affiliation to permit her to pursue self-employment as a licensed real estate agent.   The plaintiff also alleges that the complaint was made without probable cause within the meaning of General Statutes § 52–568 and/or with malicious intent to vex and to trouble unjustly the plaintiff, within the meaning of § 52–568.   On or about April 6, 2007, the Diezes and the defendant withdrew their complaint to the Norwalk Common Council because the Diezes were exhausted by the ordeal.   The next day, the Norwalk Common Council met in executive session and decided to continue the investigation anyway.   On May 1, 2007, the Norwalk Common Council proceeded on the complaint against the plaintiff and dismissed the ethics charges.   As a result of the actions of the Diezes and the defendant, the plaintiff alleges to have suffered financial loss, damage to her reputation in the community and emotional distress.

The third count asserts a claim of statutory vexatious litigation based on the complaint filed with the Mid–Fairfield County Association of Realtors, Inc. The fourth count sets forth a claim of common law vexatious litigation based on the complaint filed with the Mid–Fairfield County Association of Realtors, Inc.

The fifth count sounds in negligent infliction of emotional distress and alleges the following facts.   The defendant's aforementioned conduct ⁴ created an unreasonable risk of causing emotional distress to the plaintiff, the plaintiff's distress was foreseeable and severe enough to cause potentially illness or bodily harm, the defendant's conduct in fact caused emotional distress upon the plaintiff, and as a result of the defendant's actions, the plaintiff suffered financial loss, damage to her reputation and emotional distress.   Finally, the sixth count sounds in defamation of character, or libel, and alleges that the allegations made in the complaint to the Norwalk Common Council and published in the local press were false and malicious, were made with actual malice and caused the plaintiff financial loss, damage to her reputation in the community and emotional distress.⁵

The defendant's motion for summary judgment was filed on August 2, 2011.   Attached to the memorandum supporting that motion were portions of the depositions of the plaintiff and the defendant, depositions of Carlos and Diana Diez, the deposition of Zoning Inspector Aline Rochfort, the form on which the “anonymous” complaint made against the Diezes by the plaintiff was recorded, documents relating to the zoning appeal filed by the Diezes with the Norwalk Zoning Board of Appeals, the Norwalk Code of Ethics and the Code of Ethics and Standards of Practice of the National Association of Realtors.   On September 15, 2011, the plaintiff filed a memorandum of law in opposition to the motion.   Attached to the opposition were portions of the depositions of the plaintiff, the defendant, Carlos Diez and Rochefort.   The opposition also included a portion of the deposition of plaintiff's expert witness, Attorney John Wayne Fox, who opined that even if all the claims made by the defendant and the Diezes in their complaint filed with the Norwalk Common Council were true, there was no probable cause to believe that the Norwalk Code of Ethics had been violated.   The plaintiff also filed a copy of the story, which was published in the Norwalk Hour on December 6, 2006.   In a reply on September 28, 2011, the defendant filed an opinion from Attorney Michael LaValle stating that a reasonable person in the position of the defendant could conclude that the plaintiff's conduct created an appearance of impropriety justifying the filing of an ethics complaint.   Also included in the reply were portions of the deposition of Thomas J. Milazzo, the manager of the Coldwell Banker branch, who terminated the plaintiff's employment following the publication of the article in the Norwalk Hour. The matter was heard at the short calendar on October 3, 2011.

In his motion for summary judgment the defendant first claims that he is entitled to summary judgment on the first four counts because, as a matter of law, the plaintiff cannot bring common law and statutory vexatious litigation claims in the same action.   The defendant further claims that he is also entitled to summary judgment as a matter of law on the first four counts because the filing of the two ethics complaints against the plaintiff was privileged.   Finally, the defendant claims that he is protected by absolute immunity from the plaintiff's claims of negligent infliction of emotional distress and defamation set forth in the plaintiff's fifth and sixth counts, respectively.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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.)  Sherman v. Ronco, 294 Conn. 548, 553–54 (2010).  “The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”   Viola v. O'Dell, 108 Conn.App. 760, 763–64 (2008).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “The test is whether a party would be entitled to a directed verdict on the same facts ․ A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.”  (Emphasis in original;  internal quotation marks omitted.)  Byrne v. Burke, 112 Conn.App. 262, 268 (2009).

IMPROPER JOINDER

The defendant first argues that the plaintiff cannot assert common law and statutory vexatious litigation claims in the same lawsuit pursuant to Whipple v. Fuller, 11 Conn. 582, 29 Am.Dec. 330 (1836).   The defendant claims that despite its antiquity, that case is still good law and binding precedent.   The plaintiff argues that the defendant could have asserted a claim of improper joinder by filing a timely motion to strike ⁶ and that by filing his answer the defendant waived his right to file such a motion to strike.   Furthermore, the plaintiff claims that Whipple does not conform with present day practice, has not been cited by an appellate court for 177 years and is no longer good law.

The court agrees with the plaintiff that defendant's claims of misjoinder might have been addressed had the defendant elected to file a motion to strike.   In Gaudino v. East Hartford, 87 Conn.App. 353, 357–58 (2005), the Appellate Court considered a claim that a party had waived the right to contest the legal sufficiency of a claim when it failed to file a timely motion to strike.   The court stated:  “Although [this court] do[es] not condone the use of a motion for summary judgment as a response to a defective pleading when a motion to strike would suffice, [this court] can find no statute, rule or case that prohibits the use of a motion for summary judgment in this context.   In fact, [the] Supreme Court has stated that [i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.   If he fails so to do, it is not the burden of the defendant to attempt to correct the deficiency, either by motion, demurrer or otherwise ․ Thus, failure by the defendants to demur to any portion of the amended complaint does not prevent them from claiming that the [plaintiffs] had no cause of action and that a judgment in their favor was not warranted.”  (Internal quotation marks omitted.)   Gaudino v. East Hartford, supra, 87 Conn.App. 357–58.   In this case, the defendant does not claim that the plaintiff failed to assert a legally sufficient cause of action, but rather that the plaintiff improperly joined two causes of action.   Had the defendant filed a successful motion to strike, the plaintiff could have chosen to proceed on either a statutory claim of vexatious litigation or a common law one.   In the view of the court, it would be inequitable at this stage of the proceedings to grant the defendant's motion for summary judgment as to the first four counts of the plaintiff's complaint, thereby denying the plaintiff the right to pursue either statutory or common law claims.

In addition, the court agrees with the plaintiff's claim that principles underlying the Whipple decision are no longer in accord with present day jurisprudence.   In Whipple, the defendant had brought a suit against the plaintiff for slander, seeking money damages.   The defendant procured a writ of attachment on the plaintiff's property, and the plaintiff subsequently brought suit against the defendant for statutory vexatious litigation and for common law vexatious litigation.   The Superior Court found that the defendant was liable under both claims, and a default judgment was entered against the defendant.   The defendant then appealed.   In reversing, the Supreme Court of Errors held that, as a general matter, causes of action that involve the same legal questions and require the same judgment may be joined.   Nevertheless, the court held that “to this rule there are many exceptions.”  Whipple v. Fuller, supra, 11 Conn. 586.   The court stated that the basis for the exceptions is “that the forms of proceeding in some, as well as the essential nature and forms of the judgment in others of these actions, are different from the forms of proceeding and judgment in all other cases.”  Id., 587.   The court noted that because a cause of action for statutory vexatious litigation permits treble damages, whereas a plaintiff alleging common law vexatious litigation may recover only single damages, “[t]he law requires a judgment upon one of these counts, to be essentially different from the judgment to be rendered upon the other.”  Id. The court expressed its concern that “[i]f a general verdict be given for the plaintiff ․ is the court to assess single, or double damages?”  Id. The court thus concluded that claims for statutory vexatious litigation and for common law vexatious litigation could not be joined in the same suit.  Id.

Although the ruling in Whipple is clear, its vitality is not.   The Superior Court is split on the issue of whether Whipple remains good law.   Indeed, two Superior Court cases have explicitly declined to follow Whipple,⁷ while another two have recognized it as still good law.⁸  The courts that continue to recognize Whipple have held that although Whipple “has been questioned ․ Whipple has not been overruled.   It thus remains the law.”   (Citations omitted.)   Traina v. Manousos, Superior Court, judicial district of Hartford, Docket No. CV 04 0831625 (August 29, 2005, Lavine, J.);   accord Chiocchio v. Alden, Superior Court, judicial district of New Haven, Docket No. CV 97 0395862 (June 27, 2002, Silbert, J.) (32 Conn. L. Rptr. 413).   Nevertheless, the premise on which Whipple bases its holding has been called into question given statutory and appellate developments in the law since Whipple was decided.   See, e.g., TMK Associates v. Landmark Development, Superior Court, judicial district of New London, Docket No. 562077 (August 21, 2003, Corradino, J.) (35 Conn. L. Rptr. 387).   In TMK Associates, the court noted that the predecessor to General Statutes § 52–97 was passed in the late nineteenth century, allowing for joinder of causes of action.   That statute is now embodied in Practice Book § 10–21.   The court further stated that Practice Book § 10–25 allows for “alternative and even inconsistent pleadings ․” Id., 389.  “[A]bsent a showing of prejudice to the opposing parties, there is no general prohibition of inconsistent pleadings ․” (Citation omitted;  internal quotation marks omitted.)  Id. The court also questioned how to reconcile the statement in Whipple that claims for common law vexatious litigation and for statutory vexatious litigation “separately considered” are “good” with Practice Book § 9–5, which allows for consolidation of trials “where it will expedite the court's business without creating an injustice to the parties.”  (Internal quotation marks omitted.)   Id. “[I]f consolidation were to be permitted for separate suits which respectively make the claim for common-law vexatious litigation and statutory vexatious litigation, why cannot both be joined in one suit by means of different counts?   Our modern practice would simply require separate verdict forms for each claim.”  Id. Further reasoning that the state of the law has changed since Whipple was decided so as to render the decision obsolete, the court analyzed different types of claims that the appellate courts have allowed to be joined in the same suit, even though the damages allowed for each claim are different.  Id. The court thus held that “[o]ur modern rules of practice have, in effect, gone beyond Whipple and our appellate courts have abrogated its operation.”  Id.

The court finds that it is logically inconsistent and judicially inefficient to proscribe the joinder of common law and statutory vexatious litigation claims while having the option under Practice Book § 9–5 to consolidate those actions for trial upon a party's motion or by the court, sua sponte.   Finally, the fact that since 1836 no appellate court has cited Whipple as authority casts doubt on its present day vitality.   The court finds that the holding of Whipple is obsolete and no longer represents controlling authority.   Accordingly, the court denies the defendant's motion for summary judgment on the ground of improper joinder.

EXISTENCE OF PROBABLE CAUSE

The defendant correctly points out that the absence of probable cause is an essential element of each of the four counts alleging vexatious litigation.   In his motion for summary judgment the defendant claims that he had probable cause to initiate both the complaint with the Norwalk Common Council and the one filed with the Mid–Fairfield County Association of Realtors, Inc.

“A [common law] vexatious suit is a type of malicious prosecution action ․ [I]t is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor ․ Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action ․ The want of probable cause, however, cannot be inferred from the fact that malice was proven ․ A statutory action for vexatious litigation under General Statutes § 52–568 ․ differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages.”   (Citations omitted;  internal quotation marks omitted.)  Falls Church Group v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 94 (2007).

“The test for deciding whether a litigant acted with probable cause also is well settled.   For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of.   Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.   Accordingly, the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one.”   (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 94–95.

“[T]he existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law.”  (Internal quotation marks omitted.)  Id., 94.  “[B]ut when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law.”  DeLaurentis v. New Haven, 220 Conn. 225, 252–53 (1991);  accord Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671 (1980).  “The determination of probable cause in an action for vexatious litigation turns on the defendant's state of mind concerning the litigation ․ Summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Internal quotation marks omitted.)   Curran v. Dixon, Superior Court, judicial district of Fairfield, Docket No. CV 01 0381522 (November 8, 2004, Dewey, J.);   accord Taylor v. Convent of St. Birgitta, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98 0164709 (September 8, 2000, Karazin, J.) and Talcott Mountain Science Center of Student Involvement, Inc. v. Abington Ltd., Superior Court, judicial district of Hartford, Docket No. 95 0549521 (January 7, 1998, Hennessey, J.).  “[A] determination of the existence of probable cause in prior litigation cannot be made absent an evidentiary hearing.”  Curran v. Dixon, supra, Superior Court, Docket No. CV 01 0381522.  “[A]n evaluation of probable cause can only be made after all of the evidence has been produced at trial.”   D.R.S. Consultants v. Loforese, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 99 0067392 (July 12, 2000, Arnold, J.).

In this case, both parties rely on the deposition testimony of the defendant and the Diezes.   The defendant testified:  “[T]he Diezes believe that what Ms. Carbone had done was wrong, they thought that she used information she gained by their being realtor against them.   They thought that there was obviously someone on the inside going on with the complaints that were made.   And they were very upset, they felt that they wanted justice, they felt that they wanted authorities to look into it and to decide whether or not what Ms. Carbone did was indeed not appropriate, and they wanted all of those different stones to be unturned.”   Defendant's Exhibit N, Defendant's Deposition, 37–38.   The defendant further testified:  “We then reviewed the city of ethics—city of Norwalk ethics code, and at some point the [Mid–Fairfield County Association of Realtors] ethics procedures.   Talked to the Diezes about whether they wanted to do those things.   They felt a complete sense of outrage over what happened to them, they wanted these ethical lapses, violations investigated by the authorities.   So we filled out the applications.”  Id., 51.   The defendant also testified that “while there was a statute that listed certain things, that there are also common law duties and common law expectations of privacy and expectations of fiduciary duty and expectations of what you expect when you talk to a professional and possibly orally contracted confidentiality, and I considered the sum of all of those things when I concluded that this complaint was brought with probable cause ․ believe that through rules of the agency and other things, it is very—a very easy conclusion to reach that there are certain things that are unethical to do, and what Ms. Carbone did was one of them.”  Id., 119.

Although the defendant's testimony addresses the issue of probable cause, it relies on the subjective feelings, motives and intent of the Diezes and the defendant, rather than solely on objective factors.   Accordingly, it appears that there remain genuine issues of material fact as to the existence of probable cause for the defendant to file the ethics complaints against the plaintiff.   Moreover, each side has disclosed expert witnesses and submitted their depositions or statements for the court's consideration.   The experts disagree on whether the defendant, as a practicing attorney, should have known whether probable cause existed for the filing of the complaints against the plaintiff.   The court finds that there are genuine issues of material fact that preclude the granting of summary judgment to the defendant on the first four counts on the ground that no probable cause existed for the filing of the ethics complaints against the plaintiff.   The motion for summary judgment as to those counts is, accordingly, denied.

ABSOLUTE IMMUNITY

Lastly, the defendant argues that the doctrine of absolute immunity protects him from the plaintiff's claims of negligent infliction of emotional distress and defamation as set forth in the plaintiff's fifth and sixth counts, respectively.   The defendant claims that all of his alleged statements, both to the local newspapers and in the ethics complaints, were made in the course of the quasi-judicial proceedings before the Norwalk Zoning Board of Appeals and the Norwalk Common Council and, accordingly, were entitled to the protection of absolute immunity.⁹

“Statements made in preparation for or during a quasi-judicial proceeding are, as a matter of public policy, entitled to absolute immunity from liability.”   Craig v. Stafford Construction, Inc., 78 Conn.App. 549, 550 (2003).  “The effect of an absolute privilege in a defamation action is that damages cannot be recovered for a defamatory statement even if it is published falsely and maliciously ․ [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature ․ Once it is determined that a proceeding is quasi-judicial in nature, the absolute privilege that is granted to statements made in furtherance of it extends to every step of the proceeding until final disposition.”  (Citations omitted;  internal quotation marks omitted.)   Kelley v. Bonney, 221 Conn. 549, 565–66 (1992).  “The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly.   It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not ․ It extends ․ to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character.”   (Internal quotation marks omitted.)  Craig v. Stafford Construction, Inc., supra, 78 Conn.App. 554.

“[Q]uasi-judicial is defined as the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.”  (Internal quotation marks omitted.)  Id. “[I]n determining whether a proceeding is quasi-judicial ․ the principal factors to be considered are whether the body has the power to:  (1) exercise judgment and discretion;  (2) hear and determine or to ascertain facts and decide;  (3) make binding orders and judgments;  (4) affect the personal or property rights of private persons;  (5) examine witnesses and hear the litigation of the issues on a hearing;  and (6) enforce decisions or impose penalties.”  (Internal quotation marks omitted.)  Id.;  accord Kelley v. Bonney, supra, 221 Conn. 567.   The court's “inquiry into whether a proceeding is quasi-judicial is not limited to an operational analysis of the proceeding to determine whether it falls within the exact contours of prior cases.   A proceeding may be characterized as quasi-judicial in nature even if it does not manifest all of the relevant factors that [the] case law has identified.”   Craig v. Stafford Construction, Inc., supra, 78 Conn.App. 554–55.

The Supreme Court has extended absolute immunity for defamatory statements to statements that are the subject of a claim for intentional infliction of emotional distress.  Peytan v. Ellis, 200 Conn. 243, 255 (1986).   A Superior Court applied the logic of Peytan to extend further absolute immunity to claims for negligent infliction of emotional distress.   Chester v. Willey, Superior Court, judicial district of Hartford, Docket No. 374862 (June 11, 1991, Hennessey, J.).   In that case, the court held that “[absolute] immunity, where one is ‘well aware’ of the result his actions will cause, [as in the case of intentional infliction of emotional distress] equally precludes liability when one is merely negligent in his awareness of the result.   The court's holding in Peytan supports defendant's claim that he is immune from liability for the negligent infliction of emotional distress.”  Id.

In this case, the Norwalk Common Council is authorized to conduct hearings pursuant to Norwalk Code § 32–12.   That provision provides that any person, including a member of the Board of Ethics, may file a written complaint and that upon receipt of the complaint by the Board, an investigating panel will be appointed to determine whether there is probable cause for a violation of the Code of Ethics.   If the panel concludes that there is probable cause, the Board of Ethics will appoint a hearing board, which shall initiate a public hearing process to determine whether the defendant committed a violation of the Code of Ethics.   In the public hearing, the investigating panel members have the responsibility of gathering and presenting evidence to the hearing board.   Norwalk Code § 32–12(C)(5) provides:  “The hearing board shall hold hearings in accordance with its regulations and procedures adopted under this Ethics Code and shall call such witnesses and admit such evidence as the hearing board determines to be appropriate.   The investigating panel and the respondent shall each have the right to present evidence and witnesses subject to the rules and regulations adopted by the Board of Ethics under this Ethics Code.” The hearing board shall determine whether a violation of the Code of Ethics has been proven by clear and convincing evidence.   If the hearing board determines that such a violation has been proven by clear and convincing evidence, it shall state its findings of fact and conclusions of law in writing and shall specify the Code section violated.   Norwalk Code § 32–12(C).

These provisions of the Norwalk Code clearly demonstrate that the Board of Ethics has authority to conduct proceedings of a quasi-judicial nature.   Thus, ethics hearings conducted by the Board are quasi-judicial.   Accordingly, the court finds that the content of the ethics complaint filed by the defendant with the Norwalk Common Council is protected by absolute immunity.

Nevertheless, the analysis shifts for the defendant's alleged statements to the Norwalk Hour and the Stamford Advocate newspapers.   The issue is whether these statements were made in the course of, or in furtherance of, the quasi-judicial proceedings before the Norwalk Zoning Board of Appeals or the Norwalk Common Council.  “Whether a communication is published in the course of a judicial proceeding, so as to obtain the benefit of the absolute privilege, is a question of law for the court to decide ․” McManus v. Sweeney, 78 Conn.App. 327, 334 (2003).  “In determining whether an occasion is absolutely privileged, the pivotal factor is frequently to whom the matter is published ․ The privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged.”  (Internal quotation marks omitted.)  Id., 335–36.  “Publication to the news media is not ordinarily sufficiently related to a judicial proceeding to constitute a privileged occasion.”  Kelley v. Bonney, supra, 221 Conn. 549, 576;  accord McManus v. Sweeney, supra, 78 Conn.App. 341 n.8. “Publication to the media is ordinarily not privileged because, [t]he salutary policy of allowing freedom of communication in judicial proceedings does not warrant or countenance the dissemination and distribution of defamatory accusations outside of the judicial proceeding ․ The privilege or immunity granted to defamatory statements in judicial proceedings is a narrow one.”  (Internal quotation marks omitted.)  Kelley v. Bonney, supra, 221 Conn. 576.

The fact that defamatory statements made to the news media are ordinarily not a privileged communication does not mean, however, that all accusations made to the news media are subject to a defamation claim.  “Publication to the media of material that the media was independently entitled to view ․ cannot provide a basis for a claim of defamation.”  Id. Thus, the issue in this case becomes whether the Norwalk Hour or Stamford Advocate would have been entitled to access to the complaint, regardless of the defendant's actions.   See id., 576–77.   Such an inquiry requires an analysis of the scope of the Freedom of Information Act (FOIA).

General Statutes § 1–210(a) of the FOIA provides in relevant part that any person has the right to inspect, copy or receive a copy of “all records maintained or kept on file by any public agency ․” General Statutes § 1–200(5) defines “public records or files” as “any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency ․” In opposition to the defendant's motion, the plaintiff argues that the Norwalk Common Council did not have possession of the ethics complaint at the time that the defendant made the alleged defamatory statements to the local newspaper and, thus, the news media could not have obtained the information independently from the Norwalk Common Council under the FOIA. In reply, the defendant claims that the fact that the president of the Norwalk Common Council may not have seen the complaint at the time the defendant made the statements to the news media does not prove that the defendant had not yet filed the complaint when he contacted the newspapers.   The defendant further argues that the plaintiff acknowledges that the complaint was filed on the same day she was contacted by the media.   It is clear from this dispute that there remains a genuine issue of material fact as to whether the Norwalk Common Council was in possession of the complaint at the time the defendant made the statements to news media.   The public's right to access to a public record, such as the ethics complaint in this case, hinges on whether the public agency was in possession of the document.   See §§ 1–200(5) and 1–210(a).   Accordingly, this court cannot conclude, as a matter of law, that under the FOIA the news media had a right to access to the complaint so as to extend absolute immunity to the defendant for his statements made to the local newspapers.   See Kelley v. Bonney, supra, 221 Conn. 576–77.

In DeLaurentis v. New Haven, 220 Conn. 225 (1991), the then mayor of New Haven drew up a summons setting forth charges against the plaintiff, the former chairman of the New Haven parking authority commission.   The mayor disclosed the charges in a public press release, and the plaintiff brought suit against the city of New Haven and the mayor alleging, among other things, intentional infliction of emotional distress for the mayor's publication of the accusations to the news media.   The court held that the mayor's publication to the media of material contained within a formal summons was entitled to absolute immunity.   DeLaurentis v. New Haven, 220 Conn. 225, 266 (1991).   The court cited Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434, in which the “United States Supreme Court immunized from defamation liability an executive officer who issued a public statement, not contained in a pleading, discussing the impending discharge of a subordinate official.”  Id., 265.   The court further stated:  “By contrast, many courts have refused to apply the absolute privilege for statements contained in pleadings when copies of the pleadings are circulated to parties unconnected with the judicial proceeding, including the media ․ Where the subject of the pleadings is the conduct of a public official, the public is, however, inevitably connected with the proceeding.”   (Citations omitted.)  Id., 265–66.   The court concluded that “without choosing between these two positions” the mayor's publication of the accusations in the complaint were privileged.  Id., 266.

The present case is distinguished, however, from DeLaurentis to the extent that the parties have not presented any evidence as to whether the plaintiff is a public official.   See Kelley v. Bonney, supra, 221 Conn. 579 (noting that parties offered evidence “[w]ith respect to the plaintiff's status as a public official”).   Absent such evidence, the court cannot conclude, as a matter of law, that the defendant's statements to the local news media were privileged because the public was inevitably connected with the ethics proceeding against the plaintiff.   Further, the defendant, who made the statements, was clearly not a public official, unlike the speakers in DeLaurentis and Barr. Therefore, DeLaurentis is not controlling.

Similarly, Kelley v. Bonney, supra, 221 Conn. 549, is distinguished from the present case.   In Kelley, one of the defendants, a member of the Groton Board of Education, provided The New London Day newspaper with a copy of a petition and complaint brought against the plaintiff, a former Groton junior high school teacher, to investigate long-standing parent and student complaints of misconduct concerning the plaintiff and to revoke the plaintiff's teaching certificate.   The plaintiff brought suit against the defendant for defamation and intentional infliction of emotional distress.   The court concluded that the defendant was protected by absolute immunity “because The [New London] Day had a statutory right to the information provided by [the defendant] ․” Kelley v. Bonney, supra, 221 Conn. 579.   In the present case, however, as discussed above, a genuine issue of material fact remains as to whether the Norwalk Hour and Stamford Advocate had a statutory right to the ethics complaint because it is unclear whether the complaint was a public record within the meaning of § 1–200(5).

The defendant further claims that because the complaint filed with the Norwalk Common Council included an allegation that a public official was improperly using her office against the citizens of Norwalk, the complaint involved a matter of general public concern, such that Rule of Professional Conduct 3.6 permitted the defendant to transmit his allegations to the media.  Rule 3.6(a) provides:  “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”  Rule 3.6(b)(2) provides, however, that a lawyer may state “information contained in a public record ․” The parties have not presented any evidence as to whether the defendant's statements to the news media had a “substantial likelihood of materially prejudicing” the plaintiff's adjudication before the Norwalk Board of Ethics.   Therefore, there remains a genuine issue of material fact as to whether the defendant was precluded from making the statements to the news media under Rule 3.6.   Furthermore, as discussed above, there remains a genuine issue of material fact as to whether the ethics complaint to the Norwalk Common Council was in the possession of the Common Council at the time the defendant made the statements to the news media and, therefore, was a public record within the meaning of § 1–200(5).   Accordingly, the court cannot conclude, as a matter of law, that the defendant was permitted under Rule 3.6 to make statements to the local news media regarding the ethics complaint.

Because the defendant is entitled to absolute immunity for the statements made in the ethics complaint to the Norwalk Common Council while, at the same time, a genuine issue of material fact exists as to whether the defendant is entitled to absolute immunity for his statements made to the local news media, the issue arises as to whether the court can grant the defendant summary judgment exclusively for the statements in the ethics complaint.  “Connecticut does not have a procedure for rendering judgment for a defendant on part of a count unless it disposes of all the issues in a count.”  (Internal quotation marks omitted.)   Salyer v. Carey, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. X08 CV 04 4003396 (April 18, 2007, Jennings, J.).  “There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.   Nevertheless, some courts have found that the language of Practice Book § 17–51 ․ authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim ․ The Connecticut Supreme Court recently noted, but did not resolve, this split of authority.  Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 809 n.41 (2009).   This court has previously determined that a party cannot isolate a single issue ․ and resolve it on a motion for summary judgment ․ Consequently, in the absence of appellate authority to the contrary, this court will adhere to its past rulings and determine that it cannot grant summary judgment as to the allegations within a count.”  (Citations omitted;  internal quotation marks omitted.)   Estrada v. Stamford Board of Education, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 06 5002313 (November 19, 2010, Tobin, J.).   Because a genuine issue of material fact remains as to whether the defendant is protected by absolute immunity for specific factual allegations within the plaintiff's counts of defamation and negligent infliction of emotional distress, the defendant's motion for summary judgment is, accordingly, denied for all factual allegations within those counts.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion for summary judgment as to all counts.

David R. Tobin, J.

FOOTNOTES

FN1. In this memorandum of decision Michael Goldman will be referred to as the defendant..  FN1. In this memorandum of decision Michael Goldman will be referred to as the defendant.

FN2. In this memorandum of decision, for brevity of sake the Norwalk Common Council Committee of Ethics hereinafter will be referred to as the Norwalk Common Council..  FN2. In this memorandum of decision, for brevity of sake the Norwalk Common Council Committee of Ethics hereinafter will be referred to as the Norwalk Common Council.

FN3. “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”.  FN3. “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

FN4. The fifth count incorporates by reference only the first twenty-four paragraphs of the first count and, therefore, does not reallege the defendant's filing of the complaint with the Mid–Fairfield County Association of Realtors, Inc..  FN4. The fifth count incorporates by reference only the first twenty-four paragraphs of the first count and, therefore, does not reallege the defendant's filing of the complaint with the Mid–Fairfield County Association of Realtors, Inc.

FN5. As with the fifth count, the sixth count does not reallege the defendant's filing of the complaint with the Mid–Fairfield County Association of Realtors, Inc..  FN5. As with the fifth count, the sixth count does not reallege the defendant's filing of the complaint with the Mid–Fairfield County Association of Realtors, Inc.

FN6. Practice Book § 10–39(a) provides:  “Whenever any party wishes to contest ․ (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”.  FN6. Practice Book § 10–39(a) provides:  “Whenever any party wishes to contest ․ (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”

FN7. See Raymond Road Associates, LLC v. Taubman Centers, Inc., Superior Court, judicial district of Waterbury, Docket No, X02 CV 07 5007877 (March 3, 2009, Eveleigh, J.) (47 Conn. L. Rptr. 313), and TMK Associates v. Landmark Development, Superior Court, judicial district of New London, Docket No. 562077 (August 21, 2003, Corredino, J.) (35 Conn. L. Rptr. 387)..  FN7. See Raymond Road Associates, LLC v. Taubman Centers, Inc., Superior Court, judicial district of Waterbury, Docket No, X02 CV 07 5007877 (March 3, 2009, Eveleigh, J.) (47 Conn. L. Rptr. 313), and TMK Associates v. Landmark Development, Superior Court, judicial district of New London, Docket No. 562077 (August 21, 2003, Corredino, J.) (35 Conn. L. Rptr. 387).

FN8. See Traina v. Manousos, Superior Court, judicial district of Hartford, Docket No. CV 04 0831625 (August 29, 2005, Lavine, J.), and Chiocchio v. Alden, Superior Court, judicial district of New Haven, Docket No. CV 97 0395862 (June 27, 2002, Silbert, J.) (32 Conn. L. Rptr. 413)..  FN8. See Traina v. Manousos, Superior Court, judicial district of Hartford, Docket No. CV 04 0831625 (August 29, 2005, Lavine, J.), and Chiocchio v. Alden, Superior Court, judicial district of New Haven, Docket No. CV 97 0395862 (June 27, 2002, Silbert, J.) (32 Conn. L. Rptr. 413).

FN9. As noted above, the fifth and sixth counts incorporate by reference only part of the first count and, therefore, do not reallege the defendant's filing of the complaint with the Mid–Fairfield County Association of Realtors, Inc..  FN9. As noted above, the fifth and sixth counts incorporate by reference only part of the first count and, therefore, do not reallege the defendant's filing of the complaint with the Mid–Fairfield County Association of Realtors, Inc.

Tobin, David R., J.