Scholz v. Epstein

Excerpt

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 Appellat