Background
Conrad Membrino brought an intentional infliction of emotional distress (IIED) action against his siblings, Ralph and Roberta, and Ralph’s wife Alda, arising from a probate conservatorship proceeding that began in 2012. Conrad alleged that Ralph and Roberta “fraudulently instituted an involuntary conservatorship proceeding” against their elderly mother, Emily, by “falsely testif[ying] at a Probate Court hearing . . . that Emily suffered from dementia.” As a result, Ralph was appointed conservator of Emily’s estate and Roberta was appointed conservator of her person.
Conrad alleged that the defendants then used their conservator authority to cut him off from his mother almost entirely during the final two years of her life. He claimed he was permitted to see Emily only twice between 2012 and her death in September 2014, and that police were called within an hour of each visit. He further alleged that Roberta disconnected Emily’s telephone in September 2014 “for the specific purpose of preventing [him] from having any contact with [Emily] during the final days of her life.” A Probate Court order eventually allowed Conrad to see Emily on September 21, 2014—just five days before she died.
The trial court (Massicotte, J.) sua sponte raised the litigation privilege as a potential jurisdictional bar, ordered briefing, and ultimately dismissed the action for lack of subject matter jurisdiction. Conrad appealed.
The Court’s Holding
The Connecticut Appellate Court affirmed, holding that the litigation privilege (absolute immunity) applied to Conrad’s IIED claim because it was predicated on conduct in furtherance of the Probate Court conservatorship proceeding—specifically, the alleged fraudulent institution of that proceeding and false testimony within it. Because the privilege implicates subject matter jurisdiction, it could be raised at any time—even sua sponte by the court—and could not be waived. This disposed of Conrad’s argument that the defendants had forfeited the defense by not raising it for seven years.
The court applied the three-factor framework from Simms v. Seaman, 308 Conn. 523 (2013), and Dorfman v. Smith, 342 Conn. 582 (2022). The first factor—whether the IIED claim challenges the purpose of the underlying proceeding—was neutral. The second factor—whether the alleged conduct is similar to defamatory statements—weighed in favor of applying the privilege, because the claims were predicated on alleged false communications during the probate proceeding. The third factor—whether adequate alternative remedies existed—weighed “heavily” in favor of the privilege, because Conrad was an active participant in the probate proceeding with full access to remedies within that forum, including the ability to challenge the conservatorship appointment and raise fraud. Conrad himself acknowledged he was still pursuing a probate appeal.
The court also rejected Conrad’s argument that conduct outside the courtroom—calling police, disconnecting telephones, changing locks—fell beyond the privilege’s reach. Because Conrad had framed all harm as flowing from the conservator authority “fraudulently obtained” through the proceeding, the downstream actions were taken pursuant to that authority and could not be carved out as independent torts.
Key Takeaways
- Connecticut’s litigation privilege is jurisdictional in nature, meaning it can be raised at any stage—even sua sponte—and cannot be waived by a party’s failure to assert it promptly.
- The privilege extends beyond defamation to bar IIED and other tort claims when the alleged conduct is rooted in statements or actions taken during judicial proceedings, including Probate Court conservatorship matters.
- A plaintiff who frames all alleged harm as flowing from fraudulently obtained judicial authority cannot carve out downstream out-of-court conduct—such as restricting access, disconnecting telephones, or calling police—as independently actionable when that conduct was taken pursuant to the authority obtained in the proceeding.
Why It Matters
This decision significantly expands the practical understanding of Connecticut’s litigation privilege in the probate and family law context. For practitioners handling elder law and conservatorship disputes—an area of increasing importance as Connecticut’s population ages—the case makes clear that the privilege shields not only courtroom testimony but also conduct taken pursuant to authority obtained through probate proceedings, even when that conduct occurs well outside the courtroom. Aggrieved family members who believe conservatorship proceedings were initiated fraudulently must challenge the conservatorship directly within the Probate Court system rather than pursuing collateral tort actions in Superior Court. The decision also reinforces that Connecticut courts apply a robust balancing test under Simms and Dorfman, and that the availability of alternative remedies within the underlying proceeding weighs heavily against permitting collateral civil actions predicated on litigation conduct.