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JAY M. TYLER ET AL. v. RICHARD TATOIAN
              (AC 37799)
             Lavine, Sheldon and Mullins, Js.
Argued November 19, 2015—officially released March 22, 2016

(Appeal from Superior Court, judicial district of
              Tolland, Cobb, J.)
  Bruce D. Tyler, self-represented, and Jay M. Tyler,
self-represented, the appellants (plaintiffs).
  Kathleen Eldergill, for the appellee (defendant).
                           Opinion

   SHELDON, J. The issue in this case is whether the
litigation privilege, also referred to as absolute immu-
nity,1 shields a defendant from claims of fraud and viola-
tions of the Connecticut Unfair Trade Practices Act
(CUTPA)2 arising from communications made during
the course of a prior litigation between the parties. The
plaintiffs, Jay M. Tyler and Bruce D. Tyler, appeal from
the trial court’s judgment granting the defendant Rich-
ard Tatoian’s motion to dismiss. The plaintiffs are broth-
ers who were named, inter alios, as beneficiaries of
their mother’s trust, for which the defendant, an attor-
ney, served as trustee. The alleged mismanagement of
the trust by the defendant was the subject of a prior
litigation between these parties, and on the basis of
various communications made by the defendant in that
prior litigation, the plaintiffs brought this action alleging
fraud and violations of CUTPA. The defendant filed a
motion to dismiss, asserting that the litigation privilege
applied to his statements because they were made in
the course of the prior litigation, and thus that he was
absolutely immune. The trial court agreed with the
defendant and dismissed the plaintiffs’ complaint in its
entirety. On appeal, the plaintiffs claim error in the trial
court’s application of absolute immunity to their claims
of fraud and violations of CUTPA, which they assert
fall under an exception to absolute immunity for causes
of action alleging an improper use of the judicial system.
We affirm the judgment of the trial court.
   For purposes of this appeal, we must take as true
the following facts as set forth in the plaintiffs’ com-
plaint. See Rioux v. Barry, 283 Conn. 338, 341, 927 A.2d
304 (2007) (‘‘[b]ecause in this appeal we review the trial
court’s ruling on a motion to dismiss, we take the facts
to be those alleged in the complaint, construing them
in a manner most favorable to the pleader’’ [internal
quotation marks omitted]). The plaintiffs’ mother, Ruth
Tyler, established a trust naming the plaintiffs as benefi-
ciaries and the defendant as trustee. Following their
mother’s death, the plaintiffs commenced an action3
against the defendant in early 2011, alleging, inter alia,
that he had mismanaged the trust by failing to diversify
the trust’s assets.4 The defendant testified during a depo-
sition in that case that he had relied on the advice of
an investment advisor in deciding not to diversify the
trust assets. In response to that testimony, the plaintiffs
requested that the defendant pursue a claim against the
advisor to recover for the losses of the trust pursuant
to General Statutes § 45a-541i.5 The defendant declined
this request, and the court likewise denied the plaintiffs’
motion to compel the defendant to seek recovery from
the advisor. The plaintiffs thus attempted to recover
from the investment advisor directly by citing in the
advisor and amending their complaints, which the court
ultimately dismissed for lack of standing. Upon that
dismissal, the plaintiffs amended their complaints
against the defendant to include counts seeking dam-
ages for his failure to pursue a claim against the advisor
to recover for the losses of the trust. In order to prevail
on their claims, the plaintiffs had to establish that the
defendant relied on the advice of the investment adviser
in deciding not to diversify the trust funds. At trial in
October, 2013, the defendant testified that he had not
relied on the advisor’s advice in deciding not to diversify
the trust assets. The jury returned a verdict for the
defendant.
   Following the jury’s verdict against the plaintiffs in
the initial action, the plaintiffs commenced a second
action against the defendant on October 28, 2014, in
the judicial district of Tolland, alleging fraud and viola-
tions of CUTPA. In their claim of fraud, the plaintiffs
alleged that the defendant’s differing testimony at his
deposition and at trial constituted a fraud that caused
them to waste resources in pursuing claims against the
investment advisor and the defendant for the losses of
the trust’s assets, and that such fraud constituted an
abuse of the legal system. In the CUTPA count, the
plaintiffs alleged that the defendant engaged in unfair
business practices by (1) ‘‘perpetrating a fraud on the
plaintiffs by making false statements under oath’’; (2)
intimidating Jay Tyler by sending him a letter stating
that ‘‘unless he withdrew his claims ‘immediately’ the
costs incurred by him and the trust ‘[would] result in
a claim against him for the cost of defenses, including
legal fees’ ’’; and (3) seeking court approval for account-
ings of the trust that included exorbitant fees when he
had no fee agreement with Ruth Tyler.
   The defendant filed a motion to dismiss the plaintiffs’
complaint, claiming that the defendant’s communica-
tions in the initial case were made during the course
of judicial proceedings and were thus protected by the
litigation privilege. The court granted the motion, ruling
that ‘‘[t]he defendant’s statements made in court and
in a deposition in that prior action are absolutely privi-
leged under the legal doctrine known as the ‘litigation
privilege.’ Simms v. Seaman, 308 Conn. 523 [69 A.3d
880] (2013); Rioux v. Barry, [supra] 283 Conn. 338
. . . . Because the plaintiffs’ action is premised wholly
on statements made by the defendant in connection
with judicial proceedings, and those statements are
absolutely privileged, this case is dismissed.’’ The plain-
tiffs filed a motion to reargue the motion to dismiss,
which the court granted. The court denied the relief
requested but clarified its initial dismissal of the com-
plaint as follows: ‘‘[T]he court clarifies that its prior
order granting the defendant’s motion to dismiss also
applies to count two of the complaint, which relies
upon a litigation related letter, which is attached to the
complaint. See Hopkins v. O’Connor, 282 Conn. 821,
832, 925 A.2d 1030 (2007) (‘[t]he scope of privileged
communication extends not merely to those made
directly to a tribunal, but also to those preparatory
communications that may be directed to the goal of the
proceeding’) . . . .’’
  The plaintiffs claim that the trial court erred in not
recognizing the exception from absolute immunity for
cases in which the plaintiff alleges that the defendant
improperly used the judicial system. The defendant
responds that all of his statements were made in the
course of a judicial proceeding, and that the limited
exception for claims alleging an improper use of the
judicial system does not apply.
   ‘‘Because the resolution of this claim requires us to
consider the trial court’s ultimate legal conclusion and
its resulting judgment of dismissal, our review is de
novo.’’ Rioux v. Barry, supra, 283 Conn. 343. ‘‘As the
doctrine of absolute immunity concerns a court’s sub-
ject matter jurisdiction . . . 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. . . . The
question before us is whether the facts as alleged in
the pleadings, viewed in the light most favorable to
the plaintiff, are sufficient to survive dismissal on the
grounds of absolute immunity.’’ (Citations omitted;
internal quotation marks omitted.) Perugini v. Giuli-
ano, 148 Conn. App. 861, 873, 89 A.3d 358 (2014).
   ‘‘It is well settled that communications uttered or
published in the course of judicial proceedings are abso-
lutely privileged so long as they are in some way perti-
nent to the subject of the controversy.’’ (Internal
quotation marks omitted.) Hopkins v. O’Connor, supra,
282 Conn. 830–31. The privilege extends beyond state-
ments made during a judicial proceeding to ‘‘prepara-
tory communications that may be directed to the goal
of the proceeding.’’ Id., 832. The litigation privilege was
initially applied to bar claims of defamation. See Simms
v. Seaman, supra, 308 Conn. 531–40 (detailing history
of litigation privilege). More recently, however, our
Supreme Court has expanded the scope of immunity
afforded to statements made during the course of a
judicial proceeding beyond defamation. See, e.g, id.,
568–69 (‘‘attorneys are protected by the litigation privi-
lege against claims of fraud for their conduct during
judicial proceedings’’); Rioux v. Barry, supra, 283 Conn.
350 (‘‘absolute immunity does bar the plaintiff’s claim of
intentional interference with contractual or beneficial
relations’’); Petyan v. Ellis, 200 Conn. 243, 255, 510 A.2d
1337 (1986) (absolute immunity bars claim of inten-
tional infliction of emotional distress based on allegedly
defamatory statement).
   In expanding the scope of the litigation privilege,
however, our Supreme Court has ‘‘recognized a distinc-
tion between attempting to impose liability upon a par-
ticipant 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. . . .
In this regard, we have refused to apply absolute immu-
nity to causes of action alleging the improper use of
the judicial system.’’ (Citation omitted.) MacDermid,
Inc. v. Leonetti, 310 Conn. 616, 629, 79 A.3d 60 (2013);
see also, e.g., id., 625–26 (litigation privilege did not
shield claim by employee against employer alleging that
employer had brought action against employee solely
in retaliation for employee exercising his rights under
Workers’ Compensation Act); Rioux v. Barry, supra,
283 Conn. 343 (‘‘in the context of a quasi-judicial pro-
ceeding, absolute immunity does not attach to state-
ments that provide the ground for the tort of vexatious
litigation’’); Mozzochi v. Beck, 204 Conn. 490, 495, 529
A.2d 171 (1987) (‘‘an attorney may be sued for miscon-
duct by those who have sustained a special injury
because of an unauthorized use of legal process’’).
   According to our Supreme Court, ‘‘whether and what
form of immunity applies in any given case is a matter
of policy that requires a balancing of interests.’’ Rioux
v. Barry, supra, 283 Conn. 346. Accordingly, in Rioux,
our Supreme Court looked to the following factors to
determine whether absolute immunity barred claims
of vexatious litigation or intentional interference with
contractual or beneficial relations: (1) whether ‘‘the
underlying purpose of absolute immunity applies just
as equally to [that] tort as it does to the tort of defama-
tion’’; (2) whether ‘‘[that] tort . . . contain[s] within it
the same balancing of relevant interests that are pro-
vided in the tort of vexatious litigation’’; (3) whether
‘‘the elements of [that tort] . . . provide the same level
of protection against the chilling of a witness’ testimony
as do the elements of vexatious litigation’’; and (4)
whether ‘‘[that] tort is more like defamation than vexa-
tious litigation.’’ (Citations omitted.) Id., 350–51; see
also MacDermid, Inc. v. Leonetti, supra, 310 Conn.
622 n.5.
  However, in MacDermid, Inc., our Supreme Court
clarified that ‘‘the factors considered in Rioux . . . are
simply instructive. In Rioux, we emphasized that
whether and what form of immunity applies in any given
case is a matter of policy that requires a balancing of
interests. . . . We also observed that, in previous cases
that had presented a question of the applicability of the
doctrine of absolute immunity, we applied the general
principles underlying that doctrine to the particular con-
text of those cases. . . . Furthermore, the cases fol-
lowing Rioux have not relied exclusively or entirely
on the factors enumerated therein, but instead have
considered the issues relevant to the competing inter-
ests in each case.’’ (Citations omitted; internal quotation
marks omitted.) MacDermid, Inc. v. Leonetti, supra,
310 Conn. 630–31.
  In examining the competing interests and public poli-
cies at stake, our Supreme Court has focused on the
need to ensure candor from all participants in the judi-
cial process. See, e.g., id., 628 (‘‘in expanding the doc-
trine of absolute immunity to bar claims beyond
defamation, this court has sought to ensure that the
conduct that absolute immunity is intended to protect,
namely, participation and candor in judicial proceed-
ings, remains protected regardless of the particular tort
alleged in response to the words used during participa-
tion in the judicial process’’); Gallo v. Barile, 284 Conn.
459, 466, 935 A.2d 103 (2007) (‘‘The policy underlying
the privilege is that in certain situations the public inter-
est in having people speak freely outweighs the risk
that individuals will occasionally abuse the privilege by
making false and malicious statements. . . . The ratio-
nale underlying the privilege is grounded upon the
proper and efficient administration of justice. . . . Par-
ticipants in a judicial process must be able to testify
or otherwise take part without being hampered by fear
of [actions seeking damages for statements made by
such participants in the course of the judicial proceed-
ing]. . . . Put simply, absolute immunity furthers the
public policy of encouraging participation and candor
in judicial . . . proceedings. This objective would be
thwarted if those persons whom the common-law doc-
trine was intended to protect nevertheless faced the
threat of suit.’’ [Citation omitted; internal quotation
marks omitted.]); DeLaurentis v. New Haven, 220
Conn. 225, 264, 597 A.2d 807 (1991) (‘‘[w]itnesses and
parties to judicial proceedings must be permitted to
speak freely, without subjecting their statements and
intentions to later scrutiny by an indignant jury, if the
judicial process is to function’’).
  In accord with the stated public policy of ensuring
candor in judicial proceedings, the court in Petyan v.
Ellis, supra, 200 Conn. 250, 252, held that an employer’s
statements made to the state labor department during
a dispute over the employee’s eligibility for unemploy-
ment compensation benefits were privileged from
claims for libel and intentional infliction of emotional
distress. In holding that the employer’s statements were
protected by the litigation privilege, our Supreme Court
recognized that ‘‘the dictates of public policy require
that an employer involved in an unemployment compen-
sation proceeding be able to state candidly his or her
reasons for terminating an employee as long as the
employer’s statement bears a reasonable relation to the
purpose of the proceeding. Otherwise employers might
be reluctant to respond to the employment security
division at all or their reply might be colored by fear
of subsequent litigation or liability.’’ Id., 250–51.
   Our Supreme Court also has recently examined
whether absolute immunity barred a claim of fraud,
albeit in the context of whether it barred the claim
against the attorneys of a party opponent who allegedly
had concealed their client’s true financial status during
alimony proceedings. See Simms v. Seaman, supra, 308
Conn. 525–26. In deciding that claims of fraud against
attorneys are protected by the litigation privilege, it
explained: ‘‘We reach this conclusion because fraudu-
lent conduct by attorneys, while strongly discouraged,
(1) does not subvert the underlying purpose of a judicial
proceeding, as does conduct constituting abuse of pro-
cess and vexatious litigation, for which the privilege
may not be invoked, (2) is similar in essential respects
to defamatory statements, which are protected by the
privilege, (3) may be adequately addressed by other
available remedies, and (4) has been protected by the
litigation privilege in federal courts, including the
United States Supreme Court and the Second Circuit
Court of Appeals, for exactly the same reasons that
defamatory statements are protected.’’ (Emphasis in
original.) Id., 545–46.
   With this history and precedent in mind, we conclude
that absolute immunity bars the plaintiffs’ claim of fraud
against the defendant. Although not all of the reasoning
in Simms applies when the person invoking the privi-
lege is not representing a party as an attorney, the
underlying policy and history of the privilege lead us
to conclude that it extends to bar claims of fraud against
a party opponent. It is precisely this type of communica-
tion that the litigation privilege was intended to protect
because the benefit of encouraging defendants to speak
candidly in judicial proceedings outweighs the risk of
a defendant abusing the privilege by lying under oath.
See Gallo v. Barile, supra, 284 Conn. 466.
   Moreover, some of the available remedies discussed
by the court in Simms would apply when the person
accused of fraudulent activity is a party opponent,
including ‘‘fil[ing] a motion to open the judgment; see,
e.g., Jucker v. Jucker, 190 Conn. 674, 677, 461 A.2d 1384
(1983) (‘a judgment . . . may be subsequently opened
if it is shown that [it] was obtained by fraud or inten-
tional material misrepresentation’).’’ Simms v. Seaman,
supra, 308 Conn. 552. In addition, as the court in
DeLaurentis v. New Haven, supra, 200 Conn. 264,
noted: ‘‘While no civil remedies can guard against lies,
the oath and the fear of being charged with perjury are
adequate to warrant an absolute privilege for a witness’
statements. Parties or their counsel who behave out-
rageously are subject to punishment for contempt of
the court. Parties and their counsel who abuse the pro-
cess by bringing unfounded actions for personal
motives are subject to civil liability for vexatious suit
or abuse of process.’’ (Footnote omitted.)
   Finally, the exception elucidated in MacDermid, Inc.,
does not apply in this case. The plaintiffs here have
alleged fraud, and even though they claim that that
fraud constituted an abuse of the legal system, they
have not brought a claim against the defendant for
abuse of process. The court in Simms said: ‘‘[A]buse
of process claims must allege the improper use of litiga-
tion to accomplish a purpose for which it was not
designed. . . . In contrast, a claim of fraud, including
the claim that the defendants in the present case deliber-
ately concealed material evidence from the plaintiff and
incorrectly portrayed the plaintiff’s former spouse as
economically disadvantaged, does not require consider-
ation of whether the underlying purpose of the litigation
was improper but, rather, whether an attorney’s con-
duct while representing or advocating for a client during
a judicial proceeding that was brought for a proper
purpose is entitled to absolute immunity.’’ (Citations
omitted; internal quotation marks omitted.) Simms v.
Seaman, supra, 308 Conn. 546–47. The defendant here
did not use a legal process against the plaintiffs in order
to accomplish a purpose for which it was not designed;
the defendant merely participated in the process initi-
ated by the plaintiffs. The fact that the plaintiffs charac-
terized the defendant’s allegedly fraudulent conduct as
an abuse of the legal system does not mean that it falls
within the limited exception announced in MacDer-
mid, Inc.
   The same policy of ensuring candor in the judicial
process leads us to conclude that the plaintiffs
remaining claims based upon alleged violations of
CUTPA are also barred by absolute immunity. The plain-
tiffs’ first claim under CUTPA is based upon the same
allegations of fraud alleged in count one, and thus is
barred for the same reasons. Their second claim under
CUTPA is predicated upon a letter sent by the defendant
to Jay Tyler on June 24, 2011. The letter, which was
attached to the complaint as an exhibit, relates to the
initial action between the parties, and ‘‘notifie[s] plain-
tiff Jay Tyler that unless he withdr[aws] [those] claims
‘immediately,’ the costs incurred by [the defendant] and
the trust ‘will result in a claim against him for the cost
of defenses, including legal fees.’ ’’ The plaintiffs argue
that the letter was sent after the commencement of the
initial action, and thus cannot be considered a ‘‘prelimi-
nary’’ or ‘‘preparatory’’ communication. The plaintiffs
are correct that this letter did not precede the service
of the writ of summons and complaint in the initial
action. However, the letter was published in the course
of, and was clearly pertinent to, a judicial proceeding.
‘‘[T]he long-standing common law rule [is] that commu-
nications 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 contro-
versy. . . . Additionally, the court recognized that the
absolute privilege that is granted to statements made
in furtherance of a judicial proceeding extends to every
step of the proceeding until final disposition.’’ (Citation
omitted; internal quotation marks omitted.) Hopkins v.
O’Connor, supra, 282 Conn. 826. Finally, their third
claim under CUTPA is based upon the defendant’s
attempt to seek approval from the court for his account-
ing of the trust. Whether the defendant’s attempt was
in writing or oral, which is not clear from the face of
the complaint, it was uttered or published in the course
of a judicial proceeding, and thus is also barred by the
litigation privilege. See id.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     Our Supreme Court has said: ‘‘The terms absolute immunity and litigation
privilege are . . . [interchangeable] . . . . See, e.g., R. Burke, Privileges
and Immunities in American Law, 31 S.D. L. Rev. 1, 2 (1985) (defining
privilege as a special favor, advantage, recognition or status and immunity
as a special exemption from all or some portion of the legal process and
its judgment).’’ (Internal quotation marks omitted.) Simms v. Seaman, 308
Conn. 523, 525 n.1, 69 A.3d 880 (2013).
   2
     General Statutes § 42-110a et seq.
   3
     In the prior litigation, Bruce Tyler was named as a defendant; however,
he also filed a cross complaint against the defendant alleging identical claims
to those in Jay Tyler’s complaint.
   4
     Additional facts and the procedural history of that case are detailed in
Tyler v. Tyler, 163 Conn. App. 594,         A.3d       (2016).
   5
     General Statutes § 45a-541i provides: ‘‘(a) A trustee may delegate invest-
ment and management functions that a prudent trustee of comparable skills
could properly delegate under the circumstances. The trustee shall exercise
reasonable care, skill and caution in: (1) Selecting an agent; (2) establishing
the scope and terms of the delegation, consistent with the purposes and
terms of the trust; and (3) periodically reviewing the agent’s actions in order
to monitor the agent’s performance and compliance with the scope and
terms of the delegation.
   ‘‘(b) In performing a delegated function, an agent owes a duty to the
trustee and to the trust to exercise reasonable care to comply with the
scope and terms of the delegation and to exercise the delegated function
with reasonable care, skill and caution. An attempted exoneration of the
agent from liability for failure to meet such a duty is contrary to public
policy and void.
   ‘‘(c) A trustee who complies with the requirements of subsection (a) of
this section is not liable to the beneficiaries or to the trust for the decisions
or actions of the agent to whom the function was delegated.
   ‘‘(d) By accepting the delegation of a trust function from the trustee of
a trust that is subject to the law of this state, an agent submits to the
jurisdiction of the courts of this state and can be held liable by the courts
of this state for any breach of duty arising out of the delegation agreement
or the terms of sections 45a-541 to 45a-541l, inclusive.’’
