Idlibi v. Ollennu

I
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               AMMAR A. IDLIBI v. JEREMIAH
                  NII AMAA OLLENNU
                       (AC 42697)
                       Elgo, Alexander and Devlin, Js.

                                   Syllabus

The plaintiff sought damages from the defendant attorney for abuse of
    process, legal malpractice, malicious prosecution, and negligent and
    intentional infliction of emotional distress, arising out of his conduct
    during his representation of the plaintiff’s former spouse, C, in her
    marital dissolution action against the plaintiff. The plaintiff alleged that
    the defendant knowingly notarized a fraudulent interrogatory response
    by C, counseled C to provide false testimony to a police detective that
    the plaintiff had assaulted her, and failed at any time to correct C’s
    false testimony under oath regarding the alleged assault. The trial court
    granted the defendant’s motion to dismiss, finding that the plaintiff did
    not have an attorney-client relationship with the defendant and that the
    defendant’s conduct was protected by the doctrine of litigation privilege.
    On the plaintiff’s appeal to this court, held:
1. The trial court erred in dismissing the plaintiff’s abuse of process claim
    on the ground of the litigation privilege, as the claim was not within
    the scope of the privilege.
2. The trial court properly found that, as the plaintiff at no time had an
    attorney-client relationship with the defendant, the plaintiff lacked
    standing to bring a legal malpractice claim against him.
3. The trial court erred in dismissing the plaintiff’s malicious prosecution
    claim on the ground of the litigation privilege, as the claim was not
    within the scope of the privilege.
4. The trial court properly found that the plaintiff’s claims of negligent and
    intentional infliction of emotional distress were barred by the litigation
    privilege, as the defendant’s conduct was privileged pursuant to Simms
    v. Seamen (

308 Conn. 523

) and Stone v. Pattis (

144 Conn. App. 79

).
       Submitted on briefs May 10—officially released July 6, 2021

                             Procedural History

  Action to recover damages for, inter alia, abuse of
process, and for other relief, brought to the Superior
Court in the judicial district of New Britain, where the
court, Aurigemma, J., granted the defendant’s motion
to dismiss; thereafter, the court denied the plaintiff’s
motion to reargue, and the plaintiff appealed to this
court. Affirmed in part; reversed in part; further pro-
ceedings.
  Ammar A. Idlibi, the appellant, submitted a brief
(plaintiff).
                          Opinion

   DEVLIN, J. The self-represented plaintiff, Ammar A.
Idlibi, appeals from the judgment of the trial court dis-
missing his complaint against the defendant, Jeremiah
Nii Amaa Ollennu, in its entirety. On appeal, Idlibi
claims that the court erred by granting Ollennu’s motion
to dismiss. We reverse, in part, the judgment of the
trial court.
   The present case is Idlibi’s third appeal to this court
arising from the dissolution of his marriage to his former
wife, Katie N. Conroy. Conroy commenced a marital
dissolution action on May 26, 2015. Ollenu represented
Conroy in the dissolution proceedings. On August 15,
2016, following a trial, the trial court, Carbonneau, J.,
rendered judgment dissolving the parties’ marriage and
issuing financial orders. Conroy v. Idlibi, Superior
Court, judicial district of New Britain, Docket No. FA-
XX-XXXXXXX-S (August 15, 2016), aff’d, 

183 Conn. App.
460

, 

193 A.3d 663

, cert. denied, 

330 Conn. 921

, 

194 A.3d
289

 (2018). Idlibi appealed from the dissolution judg-
ment, claiming that ‘‘the court erred (1) by finding that
neither party bore greater responsibility for the break-
down of the marriage and (2) in making financial awards
that were favorable to [Conroy].’’ Conroy v. Idlibi, 

183
Conn. App. 460

, 461, 

193 A.3d 663

, cert. denied, 

330
Conn. 921

, 

194 A.3d 289

 (2018). This court affirmed the
judgment of the trial court.1 

Id.

 Our Supreme Court
then denied Idlibi’s petition for certification to appeal.
Conroy v. Idlibi, 

330 Conn. 921

, 

194 A.3d 289

 (2018).
Thereafter, Idlibi moved to open the dissolution judg-
ment, alleging that Conroy committed fraud in (1) deny-
ing, in an interrogatory, that during the marriage, she
had sexual relations with someone other than her
spouse, and (2) falsely testifying that Idlibi had
assaulted her. Conroy v. Idlibi, 

204 Conn. App. 265

,
266,      A.3d      (2021). Idlibi alleged that Conroy had
told Ollennu, her attorney, that she was having sexual
relations with another man, and that, despite having
this knowledge, Ollennu notarized the interrogatory
response denying the same. 

Id., 291 n.2

. (Flynn, J.,
dissenting). The trial court denied the motion to open
and, in a divided opinion, this court affirmed. 

Id., 266

.
Idlibi’s petition for certification to appeal was granted
in part by our Supreme Court. Conroy v. Idlibi,
Conn.      ,      A.3d      (2021).
   On December 21, 2018, Idlibi instituted the present
action against Ollennu, alleging various legal claims
arising from his alleged role in Conroy’s purportedly
false interrogatory response and false testimony that
Idlibi had assaulted her. Specifically, Idlibi alleges that
Ollennu committed (1) abuse of process, (2) legal mal-
practice, (3) malicious prosecution, (4) negligent inflic-
tion of emotional distress, and (5) intentional infliction
of emotional distress. On February 19, 2019, Ollennu,
pursuant to Practice Book § 10-30, filed a motion to
dismiss Idlibi’s complaint.2 On February 27, 2019, the
court granted Ollennu’s motion, dismissing the com-
plaint in its entirety on the grounds that (1) Idlibi did
not have an attorney-client relationship with Ollennu,
and (2) the doctrine of absolute immunity applies to
Ollennu’s conduct. On March 7, 2019, Idlibi, pursuant
to Practice Book § 11-12, filed a motion to reargue. That
motion was denied by the court. Idlibi then appealed to
this court, claiming that the trial court erred by granting
Ollennu’s motion to dismiss.3 Additional facts will be
set forth as necessary.
   ‘‘[Our] review of the trial court’s ultimate legal conclu-
sion and resulting [decision to] grant [a] motion to dis-
miss will be de novo. . . . In any consideration of the
trial court’s dismissal, we take the facts as alleged in
the complaint as true and [construe] them in a manner
most favorable to the pleader.’’ (Citation omitted; inter-
nal quotation marks omitted.) Morgan v. Hartford Hos-
pital, 

301 Conn. 388

, 395, 

21 A.3d 451

 (2011). ‘‘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 . . . 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. . . . Our case law dif-
ferentiates between actions based on alleged miscon-
duct by an attorney in his role as advocate, such as
defamation and fraud, and actions that challenge the
underlying purpose of the litigation itself, such as vexa-
tious litigation and abuse of process. . . . For the for-
mer category, the law protects attorneys from suit in
order to encourage zealous advocacy on behalf of their
clients, unrestrained by the fear of exposure to tort
liability.’’ (Citations omitted; internal quotation marks
omitted.) Perugini v. Giuliano, 

148 Conn. App. 861

,
873, 

89 A.3d 358

 (2014). With these principles in mind,
we review each count of Idlibi’s complaint in turn.
                              I
                  ABUSE OF PROCESS
   In the first count of his complaint, Idlibi alleges that
Ollennu ‘‘misused the legal process . . . to accomplish
the unlawful ulterior purpose of misleading the [trial]
court and winning the [dissolution] case.’’ Specifically,
Idlibi claims that Ollennu ‘‘abus[ed] the legal process
of sworn [i]nterrogatories . . . in an improper manner
for the ulterior purpose of presenting false evidence
[to] the court.’’ The court dismissed this claim, finding
that it was ‘‘barred by the doctrine of absolute immu-
nity/litigation privilege.’’4
  ‘‘Connecticut has long recognized the litigation privi-
lege. . . . The general rule is that defamatory words
spoken [on] an occasion absolutely privileged, though
spoken falsely, knowingly, and with express malice,
impose no liability for damages recoverable in an action
in slander . . . . [T]he privilege extends to judges,
counsel and witnesses participating in judicial proceed-
ings . . . and acts of [s]tate. . . . [T]he privilege was
founded [on] 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.
. . . [Our Supreme] [C]ourt described the privilege as
being rooted in the public policy that a judge in dealing
with the matter before him, a party in preparing or
resisting a legal proceeding, [or] a witness in giving
evidence in a court of justice, shall do so with his mind
uninfluenced by the fear of an action for defamation
or a prosecution for libel. . . . This jurisdiction also
has recognized the importance of access to the courts
and the existence of remedies other than lawsuits as
reasons for granting absolute immunity to attorneys for
making allegedly defamatory statements.’’ (Citations
omitted; internal quotation marks omitted.) Simms v.
Seaman, 

308 Conn. 523

, 536–40, 

69 A.3d 880

 (2013).
  The coverage afforded by the litigation privilege,
however, is not without its limits. Our Supreme Court
has held that in ‘‘an abuse of process case . . . attor-
neys are not protected by absolute immunity against
claims alleging the pursuit of litigation for the unlawful,
ulterior purpose of inflicting injury on the plaintiff and
enriching themselves and their client, despite knowl-
edge that their client’s claim lacked merit, because such
conduct constituted the use of legal process in an
improper manner or primarily to accomplish a purpose
for which it was not designed.’’ 

Id., 540

–41. In an abuse
of process action, ‘‘the exigencies of the adversary sys-
tem have not been deemed to require absolute immunity
for attorneys.’’ Mozzochi v. Beck, 

204 Conn. 490

, 495,

529 A.2d 171

 (1987). Accordingly, ‘‘an attorney may be
sued for misconduct by those who have sustained a
special injury because of an unauthorized use of legal
process.’’ 

Id.

   In the present case, taking the facts as alleged in the
first count of the complaint as true and construing them
in a manner favorable to the pleader, we conclude that
Idlibi alleges a claim of abuse of process against
Ollennu.5 Because such a claim is not within the scope
of the litigation privilege, we conclude that the court
erred in dismissing the claim on this ground. Accord-
ingly, we reverse the judgment of the court as to the
abuse of process claim in count one.
                            II
                LEGAL MALPRACTICE
  In the second count of his complaint, Idlibi alleges
that Ollennu engaged in legal malpractice by ‘‘deviat[-
ing] from the [requisite] standard of care by violating
the Rules of Professional Conduct . . . .’’ In dismissing
the claim of legal malpractice, the court found that
Idlibi lacked standing because he never had an attorney-
client relationship with Ollennu. Lack of standing impli-
cates the court’s subject matter jurisdiction. See
Deutsche Bank National Trust Co. v. Thompson, 

163
Conn. App. 827

, 831–32, 

136 A.3d 1277

 (2016).
   It is well established that a plaintiff lacks standing
to bring a legal practice action unless he or she can
‘‘establish . . . the existence of an attorney-client rela-
tionship . . . .’’ Mayer v. Biafore, Florek & O’Neill, 

245
Conn. 88

, 92, 

713 A.2d 1267

 (1998). Because it is clear
that an attorney-client relationship at no time existed
between Idlibi and Ollennu, we conclude that the court
properly found that Idlibi lacked standing to bring a
legal malpractice claim against Ollennu. Accordingly,
we affirm the judgment of the court dismissing Idlibi’s
claim of legal malpractice.
                            III
              MALICIOUS PROSECUTION
   In the third count of his complaint, Idlibi alleges that
Ollennu engaged in malicious prosecution. Specifically,
he claims that Ollennu ‘‘counseled his client to mislead
[a] police detective for the purpose of procuring the
institution of criminal proceedings against [Idlibi],’’ and
that ‘‘[b]y counseling his client to continue asserting an
accusation of assault against [Idlibi], Ollennu procured
the institution of criminal proceedings against [him].’’
The court dismissed this claim after finding that it was
barred by the doctrine of litigation privilege.
   As discussed previously, the coverage afforded by
the litigation privilege is not limitless. In addressing the
limits of the litigation privilege, our Supreme Court has
specifically held ‘‘that absolute immunity does not bar
claims against attorneys for . . . malicious prosecu-
tion.’’ Simms v. Seaman, supra, 

308 Conn. 541

. ‘‘Both
[malicious prosecution and abuse of process] deal with
the same problem—the perversion of the legal system.’’
1 F. Harper et al., Harper, James and Gray on Torts (3d
Ed. 2006) § 4.9, p. 561. The policy considerations that
counsel in favor of extending absolute immunity to
attorneys for claims of defamation or fraud do not sup-
port extending such immunity to abuse of process or
malicious prosecution.
  In the present case, taking the alleged facts as true
and construing them in favor of the pleader, we con-
clude that Idlibi has alleged a claim of malicious prose-
cution against Ollennu.6 Because a claim of malicious
prosecution is not within the scope of the litigation
privilege, the court erred in dismissing the malicious
prosecution claim in count three on this ground.
Accordingly, we reverse the judgment of the court in
this regard.
                                      IV
         INFLICTION OF EMOTIONAL DISTRESS
   In the fourth and fifth counts of his complaint, Idlibi
alleges that Ollennu, through his conduct, either negli-
gently or intentionally, inflicted emotional distress on
him. Specifically, Idlibi claims that ‘‘[Ollennu’s] conduct
during [the meeting he and Conroy had with a police
detective] not only procured the institution of criminal
charges against [him], but also directly inflicted severe
emotional distress and mental anguish on [him] . . . .’’
The court dismissed these claims after finding that they
were barred by the doctrine of litigation privilege.
  Our Supreme Court has held that claims alleging
infliction of emotional distress that arise from the privi-
leged conduct of an attorney are barred by the litigation
privilege. See Simms v. Seaman, supra, 

308 Conn.
569

–70; see also Petyan v. Ellis, 

200 Conn. 243

, 246,

510 A.2d 1337

 (1986) (holding that litigation privilege
applies to claims of intentional infliction of emotional
distress); Stone v. Pattis, 

144 Conn. App. 79

, 98, 

72 A.3d
1138

 (2013) (holding that litigation privilege applies to
claims of negligent infliction of emotional distress).
   In the present case, Ollennu’s conduct on which Idlibi
relies for these claims was privileged, as Ollennu was
acting in his capacity as counsel for Conroy. Because
Ollennu’s conduct at issue here was privileged, we con-
clude that the court properly found that these claims
were barred by the litigation privilege. Accordingly, we
affirm the judgment of the court as to its dismissal of
Idlibi’s claims of negligent and intentional infliction of
emotional distress.
  The judgment is reversed only with respect to the
dismissal of the abuse of process and malicious prose-
cution claims in counts one and three and the case is
remanded for further proceedings according to law; the
judgment is affirmed in all other respects.
      In this opinion the other judges concurred.
  1
     This court dismissed as moot that portion of the appeal challenging the
trial court’s finding that if Idlibi obtained a monetary judgment against
Conroy in a separate proceeding, that would be considered a significant
change in circumstances warranting review of Idlibi’s alimony obligation.
Conroy v. Idlibi, supra, 

183 Conn. App. 461

 n.2.
   2
     Practice Book § 10-30 provides in relevant part that ‘‘lack of jurisdiction
over the subject matter’’ is a ground for dismissal.
   3
     Ollennu did not file an appellate brief. Therefore, this appeal will be
considered on the basis of Idlibi’s brief and the record only.
   4
     We note that the terms ‘‘absolute immunity’’ and ‘‘litigation privilege’’
historically have been used interchangeably by the courts. See Simms v.
Seaman, 

308 Conn. 523

, 525 n.1, 

69 A.3d 880

 (2013).
   5
     We express no view as to the legal sufficiency of this allegation.
   6
     Again, we express no view as to the legal sufficiency of this allegation.

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