Opinion
(X03)HHDCV166066432S
08-23-2018
Paul John FERRI v. Nancy POWELL-FERRI et al.
UNPUBLISHED OPINION
OPINION
Hon. Ingrid L. Moll, Judge of the Superior Court
This matter, sounding in common-law and statutory vexatious litigation, arises out of the filing and prosecution of a cross complaint by defendant Nancy Powell-Ferri (Powell-Ferri) against plaintiff Paul John Ferri (Ferri) in a separate action in which Ferri and Powell-Ferri were both defendants and Powell-Ferri was represented by defendants Thomas Parrino, Esq. (Parrino) and the law firm Nusbaum & Parrino, P.C. (Nusbaum & Parrino) (together, Parrino defendants). See Michael J. Ferri, Trustee et al. v. Nancy Powell-Ferri et al., No. HHD-CV11-6024470S, judicial district of Hartford, transferred, No. MMX-CV11-6006351S, judicial district of Middletown, transferred, No. HHD-CV11-6054626S, judicial district of Hartford (trustees’ action). On April 27, 2018, in the present case, this court entered an order (1) granting the Parrino defendants’ motion for summary judgment (# 152.00) and (2) denying both of Ferri’s motions for summary judgment (## 153.00, 165.00), as well as Powell-Ferri’s motion for summary judgment (# 156.00). (# 166.00.) This omnibus memorandum of decision sets forth the court’s reasoning with respect to each such motion.
I
Factual and Procedural Background
The following undisputed facts and procedural background, as recited by our Supreme Court in the trustees’ action, are relevant to the adjudication of the instant motions. "Powell-Ferri filed an action for dissolution of her marriage to Ferri on October 26, 2010 ... Ferri is the sole beneficiary of a trust created by his father, Paul John Ferri, Sr., in 1983 (1983 trust). [Michael Ferri and Anthony Medaglia (the trustees) ] were named as trustees of the 1983 trust. Michael Ferri is Ferri’s brother and business partner.
"The 1983 trust provides that, after Ferri attained the age of thirty-five, he would have the right to withdraw principal from the trust in increasing percentages depending on his age. In March 2011, while the underlying dissolution action was pending, the [trustees] created a second trust whose sole beneficiary was Ferri (2011 trust). The [trustees] then distributed a substantial portion of the assets in the 1983 trust to the 2011 trust.
"Ferri testified in his deposition that he thought the 1983 trust was worth between $60 and $70 million at some point before this transfer."
"Unlike the terms of the 1983 trust, the terms of the 2011 trust do not allow Ferri to withdraw principal. Instead, under the terms of the 2011 trust, the [trustees] have all of the control and decision-making power as to whether Ferri will receive any of the trust income or assets.
"The trial court found that Ferri did not have a role in creating the 2011 trust or decanting any of the assets from the 1983 trust. The trial court further found that it was undisputed that Ferri took no action to recover the trust assets when Michael Ferri informed him of the creation of the 2011 trust and the decanting of the assets. The trial court characterized the reasoning behind this inaction as follows: ‘[Ferri] does not want to sue his family ... and he believes the [trustees] are acting in his best interest.’
"After the [trustees] created the 2011 trust and transferred the assets from the 1983 trust to it, they instituted the present declaratory judgment action seeking a ruling from the court that they had validly exercised their authority in transferring the assets and that Powell-Ferri had no interest in the 2011 trust assets. Powell-Ferri filed a counterclaim asserting claims of common-law and statutory fraud, civil conspiracy, and seeking a declaratory judgment. After the trial court struck counts alleging fraud and conspiracy, Powell-Ferri filed a second amended counterclaim, later revised, asserting claims of breach of fiduciary duty, breach of loyalty, tortious interference with an expectancy, and seeking a declaratory judgment, as well as the cross complaint that is the subject of this appeal.
"Ferri filed a motion for summary judgment, claiming that the cross complaint failed to state a cause of action, and that even if it did set out a cause of action, there was no genuine issue of material fact to support Powell-Ferri’s claims. Powell-Ferri opposed the motion on procedural grounds, namely that summary judgment is not the proper means to test the legal sufficiency of a complaint, and on the merits.
"The trial court granted the motion for summary judgment, concluding that Powell-Ferri failed to state a cause of action. The trial court reasoned that, while marital partners have a fiduciary responsibility of full and open disclosure to each other, that responsibility does not extend to require spouses to recover assets belonging to the marital estate. The trial court observed that while spouses may not dissipate assets, ‘at a minimum dissipation in the marital dissolution context requires financial misconduct involving marital assets, such as intentional waste or a selfish financial impropriety, coupled with a purpose unrelated to the marriage.’ Gershman v. Gershman, 286 Conn. 341, 350-51, 943 A.2d 1091 (2008). The trial court concluded that there was no allegation that Ferri ‘engaged in intentional waste or selfish impropriety.’ The court further reasoned that if such allegations were present, ‘[t]here is no societal expectation embodied in the law which impels or compels a divorcing spouse to take affirmative steps to recover an asset removed from the marital estate by the action of a third party alone.’ Accordingly, the court determined that the cause of action Powell-Ferri urged should not be recognized in Connecticut." (Footnote in original.) Ferri v. Powell-Ferri, 317 Conn. 223, 225-27, 116 A.3d 297 (2015).
Powell-Ferri appealed from the decision granting Ferri’s motion for summary judgment, and the Supreme Court affirmed, concluding that the cross complaint failed to state a legally sufficient cause of action. Id. at 224 ("We conclude that this state does not require a party to a dissolution action to take affirmative steps to recover marital assets taken by a third party ...").
On or about February 19, 2016, Ferri commenced the instant action sounding in vexatious litigation against Powell-Ferri and the Parrino defendants, claiming that the initiation and prosecution of the cross complaint in the trustees’ action were vexatious. The operative complaint is Ferri’s revised complaint dated March 10, 2017 (revised complaint), which sets forth the following counts: (1) count one- common-law vexatious litigation, as to Powell-Ferri; (2) count two- statutory vexatious litigation under General Statutes § 52-568, as to Powell-Ferri; (3) count three- common-law vexatious litigation, as to Parrino; (4) count four- statutory vexatious litigation under § 52-568, as to Parrino; (5) count five- common-law vexatious litigation, as to Nusbaum & Parrino; and (6) count six- statutory vexatious litigation under § 52-568, as to Nusbaum & Parrino. (# 139.00.) On June 5, 2017, Powell-Ferri filed an answer. (# 140.00.) She has not asserted any special defenses. On October 2, 2017, the Parrino defendants filed a revised answer to the revised complaint. (# 147.00.)
Notably, Powell-Ferri has not asserted an advice of counsel defense, which, when proven, serves as a complete defense to a vexatious litigation claim. Diamond 67, LLC v. Oatis, 167 Conn.App. 659, 689-90, 144 A.3d 1055 (citing Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978) ), cert. denied, 323 Conn . 927, 150 A.3d 230 (2016).
Parrino Defendants’ Motion for Summary Judgment
On January 2, 2018, the Parrino defendants filed their motion for summary judgment on the respective counts directed to them in counts three through six, as well as a supporting memorandum of law with appended exhibits (Parrino defendants’ motion). (# 152.00.) On January 24, 2018, Ferri filed his opposition to the Parrino defendants’ motion, as well as an affidavit of Jeffrey J. Mirman, Esq., with appended exhibits. (## 159.00, 160.00.) On February 15, 2018, the Parrino defendants filed their reply. (# 164.00.)
Ferri’s Motion for Summary Judgment Against Parrino Defendants
In his opposition to the Parrino defendants’ motion, Ferri cross moved for summary judgment with respect to counts three through six. On February 20, 2018, the court entered the following order: "It appearing ... that plaintiff cross moves for summary judgment against the Parrino defendants, a separate motion must be filed. Such motion may reference the above memorandum of law, which need not be re-filed." (# 159.86.) On February 21, 2018, Ferri filed the contemplated motion for summary judgment as to liability only, with respect to counts three through six, directed to the Parrino defendants. (# 165.00.)
Powell-Ferri’s Motion for Summary Judgment
On January 2, 2018, Powell-Ferri filed a motion for summary judgment with respect to counts one and two, as well as a supporting memorandum of law (Powell-Ferri’s motion). (## 156.00, 157.00.) On January 24, 2018, Ferri filed his opposition to Powell-Ferri’s motion. (# 158.00.) Powell-Ferri did not file a reply.
Ferri’s Motion for Summary Judgment Against Powell-Ferri
On January 2, 2018, Ferri filed a motion for summary judgment directed to counts one and two against Powell-Ferri, as well as a supporting memorandum of law, an affidavit of Jeffrey J. Mirman, Esq., and appended exhibits. (## 153.00-155.00.) On January 31, 2018, Powell-Ferri filed an objection thereto. (# 161.00.) On February 5, 2018, Ferri filed his reply. (# 162.00.)
On February 20, 2018, the court heard oral argument on the above motions for summary judgment. Additional facts will be set forth as necessary.
II
Standard of Review
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009).
"It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Cas. Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "A party may not ... rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Buell Indus., Inc. v. Greater New York Mut. Ins. Co., 259 Conn. 527, 558, 791 A.2d 489 (2002). "A party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Emphasis in original.) Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Taylor v. Barberino, 136 Conn.App. 283, 289-90, 44 A.3d 875 (2012) (affirming summary judgment in favor of defendant where plaintiffs failed to satisfy burden, following burden shift, to demonstrate existence of issue of material fact).
"The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967). A material issue of fact is one that will affect the outcome of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969)." 2830 Whitney Ave. Corp. v. Heritage Canal Dev. Assocs., Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994). "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46. Practice Book § 17-45(b) contemplates that any response to a motion for summary judgment will include "opposing affidavits and other available documentary evidence." See City of New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005) (holding that trial court "should not have considered that evidence in support of the plaintiff’s motion for summary judgment because of the violation of Practice Book § 17-45").
III
Legal Principles
A
Common-Law Vexatious Litigation
"In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008). "[T]o establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a termination of suit in the plaintiff’s favor." (Internal quotation marks omitted.) Id.
With regard to the element of probable cause, "[t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of ... Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. City of New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991). "Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law. Cosgrove Development Co. v. Lafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980); see 3 Restatement (Second), Torts § 681B." DeLaurentis, 220 Conn. at 252-53.
The probable cause standard is not more stringent in the context of a vexatious litigation claim against an attorney and/or law firm. Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 100, 102, 912 A.2d 1019 (2007). Instead, the critical question is whether "on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe" he or she had probable cause to bring or pursue the litigation. (Emphasis added.) Id. at 104-05. The standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated and/or continued the litigation. Id. at 98.
"Probable cause, of course, can be lost during the course of an action. See, e.g., DeLaurentis[, 220 Conn. at 248] (there may be liability for vexatious ‘initiation, continuation or procurement of civil proceedings’ [emphasis added; internal quotation marks omitted] )." Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 45 n.6, 127 A.3d 304, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015); see also, e.g., Restatement (2d) Torts, § 674, cmt. d ("attorney may also be subject to liability if he takes an active part in continuing a civil proceeding properly begun, for an improper purpose and without probable cause"); Diamond 67, LLC v. Oatis, No. X03-HHD-CV12-6030610S, 2017 WL 5056255, at *14 (Conn.Super. Sept. 18, 2017).
B
Statutory Vexatious Litigation
"The statutory cause of action for vexatious litigation exists under § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages [i.e., treble damages]." (Footnote omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC, 286 Conn. at 554. General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
IV
Parrino Defendants’ Motion for Summary Judgment (# 152.00)
The Parrino defendants move for summary judgment with respect to counts three through six of the revised complaint, claiming that there is no genuine issue of material fact regarding the probable cause element of each of those counts. Specifically, they contend that they had probable cause to file the cross complaint against Ferri in the trustees’ action and pursue the appeal from the trial court’s decision granting summary judgment in favor of Ferri on the cross complaint. The court agrees.
The Parrino defendants’ motion for summary judgment refers to the cross complaint as having been filed "in the underlying divorce action," but that is clearly an error. (# 152.00 at 1.)
For purposes of their motion, the Parrino defendants do not dispute that they initiated the cross complaint or that such proceeding terminated in Ferri’s favor. (# 152.00 at 10.) Their motion is directed solely at the probable cause element of each of Ferri’s claims.
The following background is relevant to the court’s adjudication of the instant motion. Powell-Ferri commenced a dissolution action against Ferri in October 2010. The automatic orders pursuant to Practice Book § 25-5 became effective as to Ferri upon service. Section 25-5 provides in relevant part: "(b) In all cases involving a marriage or civil union, whether or not there are children: (1) Neither party shall sell, transfer, exchange, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, except in the usual course of business or for customary and usual household expenses or for reasonable attorneys fees in connection with this action." Practice Book § 25-5(b)(1). It was Parrino’s understanding that, at the time the dissolution action was commenced, Ferri, the sole beneficiary of the 1983 trust, had a vested and unrestricted right to direct the withdrawal of up to 75 percent of the assets of the 1983 trust, which, according to Ferri’s deposition testimony in the dissolution action was valued between $60 and $70 million. While the dissolution action was pending, the trustees of the 1983 trust created the 2011 trust and decanted virtually all of the assets of the 1983 trust into the 2011 trust. Ferri does not enjoy, however, the same right to withdraw principal and income from the 2011 trust, and it is undisputed that Ferri took no action to challenge the decanting of the 1983 trust.
On September 13, 2012, Nusbaum & Parrino filed firm appearances (signed by Parrino), on behalf of Powell-Ferri, in the dissolution action and the trustees’ action. Based on the facts recited above, Parrino pursued similar, but not identical, paths in the respective actions. Although Ferri does not challenge the Parrino defendants’ conduct in the dissolution action, the court recites the following as background to the challenged activity in the trustees’ action. On October 12, 2012, the Parrino defendants filed in the dissolution action a motion for contempt for Ferri’s alleged violation of the automatic orders, resulting from his inaction after the decanting. The trial court, Munro, J., described the issues presented by such motion as "whether, under the facts of this case, it is a violation of the automatic orders for a party to fail to initiate a legal action to recover an asset of the marriage, and if so, does the failure to do so result in a finding of contempt." Powell-Ferri v. Ferri, No. MMXFA 104014157S, 2013 WL 3958260, at *1 (Conn.Super. July 10, 2013) . On July 10, 2013, the court denied the motion, principally reasoning that "[n]owhere in the automatic orders is there a duty to act. The duties throughout the automatic orders are injunctive in nature, prohibiting conduct that would disturb the status quo, essentially." Id. at *4. Notably, however, the court made the following observation: "The question of whether [the automatic] orders, under the facts of this case, require [Ferri] to take an affirmative action to protect his interest in the 1983 Trust is a difficult one." Id. at *3. The court also stated: "Whether any relief is available to [Powell-Ferri] under the facts of this case is not immediately clear. [Ferri] has taken no affirmative action to prevent the loss of this asset to the marital estate; and it is precisely the lack of affirmative action of which [Powell-Ferri] complains. Whether that meets the present definition of asset dissipation in the marital context is unclear ... [C]ourts have traditionally recognized dissipation in the following paradigmatic contexts: gambling, support of a paramour, or the transfer of an asset to a third party for little or no consideration. Well-defined contours of the doctrine are somewhat elusive, however, particularly in more factually ambiguous situations.’ Gershman v. Gershman, 286 Conn. 341, 346-47, 943 A.2d 1091 (2008) ... Whether inaction is tantamount to a ‘factually ambiguous situation’ alluded to in Gershman is not before the court presently. That shall wait until either the final hearing or a motion addressing the same." Powell-Ferri, 2013 WL 3958260, at *4-5.
Meanwhile, in the trustees’ action, the Parrino defendants drafted and filed the cross complaint, which they labeled "Breach of Duty to Preserve Marital Assets during a Dissolution Action." In the cross complaint, the Parrino defendants alleged, on behalf of Powell-Ferri, that: (1) by virtue of the dissolution action filed against him, Ferri had a duty to preserve marital assets, including those held in the 1983 trust; (2) Ferri was aware of the trustees’ creation of a new trust with the intent to deprive Powell-Ferri of her equitable interest in trust assets and "has taken no action to pursue his right and obligation to seek the return of the trust assets to the 1983 Trust"; and (3) Powell-Ferri has been harmed as a result thereof. Ferri moved for summary judgment on the cross complaint on the ground that it failed to plead a cause of action and that repleading could not save the deficiency (thereby rendering a motion for summary judgment, as opposed to a motion to strike, the proper procedural mechanism under the circumstances). In opposing Ferri’s motion for summary judgment, the Parrino defendants advocated for the recognition of a new cause of action sounding in tort, as an extension of duties already existent between spouses, whereby a divorcing spouse would have a duty to prevent the dissipation of marital assets by a third party or undo the dissipation after the fact. As explained in part I of this opinion, the trial court, Munro, J., granted Ferri’s motion for summary judgment, and the Supreme Court affirmed the judgment, "conclud[ing] that this state does not require a party to a dissolution action to take affirmative steps to recover marital assets taken by a third party." Ferri, 317 Conn. at 224.
Against the factual and procedural backdrop explained above, the court has carefully reviewed, among other things, the relevant filings and decisions in the trustees’ action relating to the cross complaint. The recitation in the accompanying text is by way of summary only.
Based on the facts known to them, the Parrino defendants pursued the above approach in order to advance their client’s interest in the assets of the 1983 trust, as a marital asset, that existed at the time of the commencement of the dissolution action. See Lichaj v. Sconyers, 163 Conn.App. 419, 427, 137 A.3d 26 (2016) ("Sconyers had probable cause to bring the underlying action against Nicole Lichaj. The underlying action sought a resolution of the dispute about the interpretation of the language in the deed regarding the means of maintaining the right-of-way, and an acrimonious relationship needed to be addressed. Regardless of how the issue ultimately would be resolved, the matter clearly and objectively required resolution, one way or another").
In doing so, the Parrino defendants acted within relevant ethical bounds. Rule of Professional Conduct 3.1 provides: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law ..." (Emphasis added.) An excerpt of the commentary to Rule 3.1 provides in part: "The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change. The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law." Rules of Professional Conduct 3.1, commentary. Applying these principles to the present case, and having carefully reviewed the Parrino defendants’ filings in support of the cross complaint at the trial and appellate levels, the court concludes that the Parrino defendants complied with Rule 3.1’s requirements concerning making good faith, nonfrivolous arguments in support of an extension of existing law.
Relatedly, taking into account the facts known by Parrino and the theory pressed in the cross complaint at the trial and appellate levels, the court concludes that an attorney familiar with Connecticut law could reasonably believe that probable cause existed to initiate and prosecute the cross complaint and to pursue an appeal from the granting of Ferri’s motion for summary judgment thereon. Thus, as a matter of law, the Parrino defendants had probable cause to initiate and prosecute the cross complaint at the trial and appellate levels. There is no dispute of material fact as to the circumstances that gave rise to the existence of such probable cause. See id. at 428 (affirming grant of summary judgment on ground that probable cause existed as matter of law).
Ferri’s arguments in opposition to the Parrino defendants’ motion are unavailing. First, much of Ferri’s memorandum is devoted to merely rehashing the merits of why the cause of action advocated by the Parrino defendants was properly rejected. The analysis falls short, however, because it does not demonstrate, upon proper burden shifting, the requisite frivolity in the Parrino defendants’ efforts to have the court, either at the trial level or on appeal, extend the duties that divorcing spouses owe one another.
Second, despite Ferri’s repeated assertions to the contrary, the viability of the cross complaint did not depend on any false allegation that Ferri knew of the trustees’ intention to decant the 1983 trust prior to the actual decanting. In addition to the plain terms of the cross complaint and the Parrino defendants’ summary judgment opposition filed on behalf of Powell-Ferri, during oral argument on Ferri’s motion for summary judgment on the cross complaint, Parrino made clear: "Nowhere do we plead that [Ferri] failed to act prior to the decanting. His subsequent failure to act after he gained knowledge of the decanting is an act of omission." In the present case, the Parrino defendants have demonstrated that the viability of the theory advanced in the cross complaint was never dependent on any false premise that Ferri knew about the decanting prior to its occurrence. Accordingly, the court rejects Ferri’s contention that the Parrino defendants lacked probable cause because they knew that Ferri only learned about the decanting after-the-fact but proceeded with the cross complaint anyway.
While Ferri relies on temporal language in a special defense asserted by Powell-Ferri in connection with the trustees’ direct claims, Ferri’s counsel acknowledged during oral argument before this court that such special defense against the trustees does not serve as a basis for Ferri’s vexatious litigation claims against the defendants in the present case.
Third, the fact that no other jurisdiction had recognized the legal theory that the Parrino defendants were pressing in the cross complaint does not, in itself, render its pursuit without probable cause. "[P]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause ... The lower threshold of probable cause allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win ... Were [the court] to conclude ... that a claim is unreasonable wherever the law would clearly hold for the other side, [it] could stifle the willingness of a lawyer to challenge established precedent in an effort to change the law. The vitality of our common-law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories." (Emphasis in original.) Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 47-48, 127 A.3d 304 (2015) (quoting Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 103-04, 912 A.2d 1019 (2007) ); see also Restatement (Second), Torts § 675, cmt. f ("To hold that the person initiating civil proceedings is liable unless the claim proves to be valid, would throw an undesirable burden upon those who by advancing claims not heretofore recognized nevertheless aid in making the law consistent with changing conditions and changing opinions. There are many instances in which a line of authority has been modified or rejected. To subject those who challenge this authority to liability for wrongful use of civil proceedings might prove a deterrent to the overturning of archaic decisions").
Based on the foregoing, the court grants the Parrino defendants’ motion for summary judgment (# 152.00). See Stuart v. Freiberg, 316 Conn. 809, 823, 116 A.3d 1195 (2015) ("If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law").
See footnote 10 of this opinion.
V
Ferri’s Motion for Summary Judgment as to Parrino Defendants (# 165.00)
Ferri cross moves for summary judgment, as to liability only, with respect to counts three through six of the revised complaint directed to the Parrino defendants. In support of the motion, Ferri relies on the arguments made, and documents submitted, in opposition to the Parrino defendants’ motion for summary judgment (see ## 159.00, 160.00). Because the court has considered Ferri’s and the Parrino defendants’ competing arguments with regard to counts three through six and found the element of probable cause in favor of the Parrino defendants, see part IV of this opinion, the court denies Ferri’s motion for summary judgment directed to the Parrino defendants.
VI
Powell-Ferri’s Motion for Summary Judgment (# 156.00)
Powell-Ferri moves for summary judgment with respect to counts one and two, claiming that she is entitled to judgment as a matter of law because she had probable cause to prosecute the cross complaint. (## 156.00, 157.00 at 2.) In support of her motion, Powell-Ferri did not submit any affidavits nor append any documentation. Instead, she relies exclusively, and without amplification, on "[t]he operative facts ... set forth in Ferri, Trustee v Nancy Powell-Ferri et al., 317 Conn. 223." (# 157.00 at 1.) Although Powell-Ferri contends in her four-page memorandum that she "had knowledge of ‘facts,’ viz., that her divorcing husband’s brother and trustee had transferred more than $60,000,000.00 of trust assets to which the divorcing husband had once had access" (id. at 3), and that "[t]here are ample facts to justify what she did" (id. at 4), she has not submitted any evidence to allow the court to make any factual findings regarding Powell-Ferri’s "knowledge of facts, actual or apparent," DeLaurentis, 220 Conn. at 256, which is part and parcel of making a probable cause determination. Moreover, although the court has carefully reviewed the Supreme Court’s decision in Ferri v. Powell-Ferri, 317 Conn. 223, 116 A.3d 297 (2015), on which Powell-Ferri exclusively relies in support of her motion, such decision does not recite any trial court findings with respect to Powell-Ferri ’s knowledge. Powell-Ferri simply has not put forth any evidence to support a finding that she possessed "a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." DeLaurentis, 220 Conn. at 256. Finally, Powell-Ferri’s citation to Rules of Professional Conduct 3.1 and an excerpt of the related commentary (# 157.00 at 4) lends her no support, as she has not asserted an advice of counsel defense.
Of course, any arguments of counsel contained with the memorandum of law do not constitute admissible evidence to support the granting of summary judgment.
In sum, in the absence of any factual showing to demonstrate no genuine issue of material fact with regard to probable cause on the part of Powell-Ferri, the court concludes that Powell-Ferri, as the party seeking summary judgment, has not sustained her burden to show the absence of any genuine issue of material fact. Accordingly, the court denies Powell-Ferri’s motion for summary judgment.
See Marinos v. Poirot, 308 Conn. 706, 711-12, 66 A.3d 860 (2013) ("A party moving for summary judgment is held to a strict standard ... To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." [Citation omitted; internal quotation marks omitted.) )
VII
Ferri’s Motion for Summary Judgment Against Powell-Ferri (# 153.00)
Ferri moves for summary judgment against Powell-Ferri, with respect to liability only, on counts one and two of the revised complaint, which sound in common-law and statutory vexatious litigation, respectively. Ferri argues that he-is entitled to judgment as a matter of law because: (1) no genuine issue of material fact exists as to the lack of probable cause underlying Powell-Ferri’s initiation and prosecution of the cross complaint; (2) no genuine issue of material fact exists concerning the malice element of Ferri’s claims; and (3) it is undisputed that the cross complaint terminated in Ferri’s favor. Because the court disagrees with the first and second of these contentions, the court denies Ferri’s motion for summary judgment directed to Powell-Ferri.
First, as explained in part III of this opinion, in order to prove a common-law and/or statutory vexatious litigation claim, a plaintiff must prove the lack of probable cause. Thus, in order for Ferri to prevail against Powell-Ferri on summary judgment, he must show, among other things, that there is no genuine issue of material fact that Powell-Ferri initiated and prosecuted the cross complaint without probable cause. On pages 10-17 of his memorandum, Ferri relies on a series of admissions and failures of recall on the part of Powell-Ferri, which need not be repeated here, to demonstrate that she lacked a bona fide belief in the existence of facts, actual or apparent, essential under the law to pursue the cross complaint. Having carefully considered that compendium, the court concludes that the facts developed on this record, without more, are insufficient in the summary judgment context to establish the lack of probable cause on the part of Powell-Ferri. See DeLaurentis, 220 Conn. at 252 ("[w]hether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court"). Therefore, on this basis, the court denies Ferri’s motion for summary judgment as to counts one and two.
Second, as discussed in part III.A of this opinion, in order to satisfy one’s burden to prove a vexatious litigation claim under the common law, one must prove malice. Bernhard-Thomas Building Systems, 286 Conn. at 554. "In a vexatious suit action, the defendant is said to have acted with ‘malice’ if he acted primarily for an improper purpose; that is, ‘for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based’; 3 Restatement (Second) Torts § 676; such as the desire to ‘occasion expense’ to the other party." DeLaurentis, 220 Conn. at 256 n.16. In the present case, Ferri has not satisfied his burden to demonstrate that Powell-Ferri initiated and prosecuted the cross complaint primarily for an improper purpose. For example, Ferri has submitted no evidence that Powell-Ferri pursued the cross complaint in order to cause him to incur expense. Rather, the record reflects at least some evidence that the cross complaint was borne out of a purpose that the court cannot find is improper as a matter of law, namely, the possibility- albeit based on a novel legal theory- of Powell-Ferri recovering damages based on the 1983 Trust (1) of which Ferri was the beneficiary throughout their marriage, (2) of which Ferri had enjoyed the right to seek withdrawal of up to 75 percent of the assets at the time of the commencement of Ferri and Powell-Ferri’s dissolution action, and (3) which was substantially decanted by the trustees during the pendency of such action.
In support of his argument that there is no genuine issue of material fact regarding the element of malice, Ferri makes the following representations: (1) Powell-Ferri never made a demand upon Ferri to take action against the trustees for a return of the assets to the 1983 trust; (2) instead of requesting an order compelling Ferri to seek a return of the assets, the cross complaint sought only undefined monetary damages; (3) Ferri and Powell-Ferri were not getting along at the time the cross complaint was filed; and (4) Powell-Fern had lost her driver’s license and temporary custody of her children. (Pl. Mem. at 17-18.) Notably, Ferri makes the first, third, and fourth of these contentions without any citation to the evidentiary record. Such contentions are, therefore, not properly before the court. In any event, these contentions, which the court finds to be of little probative value- even if properly supported by the record- do not require a finding that Powell-Ferri acted with malice in connection with the cross complaint. Moreover, although Ferri is correct that the existence of malice may be inferred from the absence of probable cause, DeLaurentis, 220 Conn. at 256 n.16, Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978), the permitted inference is not mandatory, and the court finds that such an inference would not be warranted here, even if the court found a lack of probable cause on the part of Powell-Ferri in initiating and prosecuting the cross complaint. Therefore, the court concludes that Ferri has not satisfied his burden to prove the absence of a genuine issue of material fact as to the malice element of his common-law vexatious litigation claim in count one. Accordingly, the court denies Ferri’s motion for summary judgment as to count one on this additional, independent ground.
Based on the foregoing, the court denies Ferri’s motion for summary judgment directed to Powell-Ferri.
VIII
Conclusion
For the foregoing reasons, (1) the Parrino defendants’ motion for summary judgment (# 152.00) is granted; (2) Ferri’s motion for summary judgment directed to the Parrino defendants (# 165.00) is denied; (3) Powell-Ferri’s motion for summary judgment (# 156.00) is denied; and (4) Ferri’s motion for summary judgment directed to Powell-Ferri (# 153.00) is denied.
In its April 27, 2018 order, the court directed that summary judgment shall enter in favor of Parrino on counts three and four of the revised complaint and in favor of Nusbaum & Parrino on counts five and six thereof. (# 166.00.)