Opinion
No. CV 03 0082603 S
November 6, 2006
MEMORANDUM OF DECISION
The parties to this litigation are brother and sister who have been enmeshed in a bitter dispute over their father's estate for a number of years.
Both parties were before this Court earlier in 2006 in connection with an appeal from probate in the matter of the estate of Nicholas J. Byrne, Sr. In that case, as in this one, the parties appeared pro-se and a decision was rendered in that case on July 25, 2006. In that ruling the Court denied Mr. Byrne's claims against the estate for reimbursement of educational expenses and administrative fees as inappropriate. It also denied Mrs. Banta's claim for $3,500 for administratrix or executrix fees for failure of proof. Nicholas J. Byrne, Jr. v. Mark R. Spurling et al. No. CV05-400258 S Tolland J.D. 7/25/06. To the Court's knowledge Mr. Byrne has taken an appeal to the Appellate Court while Mrs. Banta has not done so.
In the present case Mr. Byrne sued his sister (Banta), alleging that she was holding approximately $15,000 that was entrusted to her to be used for their mother's and father's burial expenses. He alleges that Banta has refused to use the money for burial expenses and, therefore, she should be required to put that amount into the estate of their father. (Their mother having predeceased him.)
On May 18, 2005, Mrs. Banta filed an answer denying the allegations (Pleading No. 116). On May 20, 2005, (Pleading No. 118) Mrs. Banta filed a counterclaim seeking payment of $2,800 from Mr. Byrne in his capacity as executor or administrator of the estate, because that sum had been awarded to her by the Probate Court.
This issue was the subject of the Probate Appeal referred to above which was denied by this Court for lack of evidence. The Probate Appeal was, by statute, a trial de novo in the Superior Court. ($2,800 was the amount approved by the Probate Court.)
Mr. Byrne, on June 6, 2005, filed his answer to the counterclaim. (Pleading No. 122.)
The next significant event in this convoluted case was a judgment of dismissal against the plaintiff on July 25, 2005 for his failure to attend a pretrial scheduled for July 13, 2005. (Scholl, J). However, the plaintiff's motion to open the judgment of dismissal was granted on July 30, 2005, (Fuger, J.).
Then on September 3, 2005, Banta filed a second counterclaim of "malicious prosecution" seeking damages of $250,000. (Pleading No. 130.)
On January 24, 2006, a second judgment of dismissal was entered against the plaintiff for failure to file a certificate of closed pleadings and trial list claim by January 13, 2006, as ordered by the Court, (Peck, J.) This last dismissal was not reopened, thus this trial concerns itself only with Mrs. Banta's counterclaims.
As noted, in addition to her counterclaims for the $2,800 fee awarded to her by the Probate Court. (Pleading No. 118.) Mrs Banta filed a second counterclaim on September 30, 2005, alleging malicious prosecution. Essentially, she claims that the plaintiff's lawsuit against her was frivolous, baseless and without merit.
Further, and although this second counterclaim does not specifically say so, as further evidence of the plaintiff's malice, she claims that the plaintiff has improperly intimidated her witnesses. She alludes to this claim in her trial memorandum dated October 13, 2006 (Pleading No. 145) in the last sentence of page one which states "All just unwarranted actions designed to intimate (sic) and punish those who challenge him."
With this background the Court will turn to a discussion of the counterclaims.
A defendant may file a counterclaim against a plaintiff provided that such counterclaim arises out of the transaction which is the subject of the plaintiff's complaint. Connecticut Practice Book § 10-10.
The defendant's earlier counterclaim in which she seeks $2,800 which was awarded to her by the Probate Court must fail on two grounds:
First, it does not arise out of the transaction which is the subject of the plaintiff's complaint, that being a claim for approximately $15,000 belonging to their father's estate which was being wrongfully withheld by the defendant.
Second, this issue was raised and decided by this Court on July 25, 2006 in the probate appeal. That case involved the same parties and the very same issue was fully litigated. The doctrine of issue preclusion is applicable to the facts of this case. Vanliner Ins. Co. v. Fay, 98 Conn.App. 125 (2006). It cannot now be relitigated. Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527 (2006).
The second counterclaim more properly alleges a cause of action for vexatious suit rather than malicious prosecution. "A vexatious suit is a type of malicious prosecution action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint" [made against a party]. The same principles apply, however, to both causes of action. It is necessary for the counter claimant to prove lack of probable cause, malice and a termination of the suit in the counter claimant's favor. Yankee Drywall, Inc. v. MacLauchlin, 2006 Ct.Sup. 5157, Jud. Dist. Of Middlesex, (2006), Harleston, J. and cases cited therein.
In this case the plaintiff's suit was dismissed for his failure to comply with the court's order to file a Certificate of Closed Pleadings and claim for the trial list. These facts constitute a termination of the suit in the defendant's favor, thus satisfying the favorable termination requirement. The Court, however, does not find the defendant has proven the plaintiff brought this action without probable cause. The defendant is required to prove that the plaintiff, in bringing the suit, lacked a reasonable, good faith belief in the facts alleged and the validity of his asserted claim. DeLaurentis v. New Haven, 220 Conn. 225, 256 (1991).
The fact that the plaintiff suffered a disciplinary dismissal is not evidence of a lack of probable cause. Ancona v. Manafort Bros., Inc., 56 Conn.App. 707-10 (2000). Probable Cause "requires no more than a reasonable belief that there is a chance that a claim may be held valid upon adjudication." Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 62-63 (1993).
Our Appellate Court has enunciated a "lenient standard" for determining if a plaintiff had probable cause to commence an action. Those which lack probable cause are the least meritorious of all meritless suits. Falls Church Group v. Tyler, Cooper and Alcorn, 89 Conn.App. 459, 467-68 (2005). The bringing of a weak case is not enough to create liability. Wong v. Tabor, 422 N.E. 2d 1285-86. Indeed, the lack of probable cause cannot be inferred from the fact that malice is proven. Vandersluis v. Weil, 176 Conn. 353, 356 (1978). Malice is, in fact, a motivating factor in much litigation. See id.
It is obvious that the parties to this action have a high degree of mistrust toward each other and that mutual mistrust is behind much of the litigation between them. The allegations back and forth have caused a family rift, not only between the parties but with other family members, as was testified to by Mrs. Banta.
Construing the evidence pursuant to the elements and case law of vexatious suit, the Court finds there was probable cause to at least allege that Mrs. Banta had been entrusted some $15,000 to her to cover funeral expenses for her parents and that, if proven, should be funds of the estate. Nor is the fact that the plaintiff misstated the year of their mother's death in his complaint as being 2000 when in fact she died in 1996, which could have statute of limitations ramifications, persuasive to the defendant's case. Mr. Byrne testified it was a mistake or typographical error. In any event this is an easily verifiable or correctable mistake and would have very little, if any, impact on raising the statute of limitations defense, if that were appropriate.
Lastly, as to the claim that the plaintiff tampered with the defendant's witnesses. Mrs. Banta's daughter, Deborah Kelly Miller, testified that she was intimidated by the plaintiff who had shouted at her in a public place and who had sent a package to her employer (a bank) claiming she had a gambling problem and was apt to embezzle from the bank, among other non-flattering statements. That she claims, intimidated her to the point where she was afraid to testify in the Probate Court hearing (which was ultimately appealed to the Superior Court).
Reynaldo Banta, the defendant's husband, similarly testified he felt intimidated by the plaintiff.
These witnesses did, of course, testify in this case and were not so intimidated during the course of this trial.
The counterclaim, to be viable, must arise out of the same transaction as the complaint in this case. The allegations of witness tempering in a prior trial do not meet the "same transaction test."
For the foregoing reasons, the Court, in the counterclaim in this case finds the issues for the plaintiff, Nicholas J. Byrne, Jr. and orders that judgment enter for said Nicholas J. Byrne, Jr. on the counterclaim.