Opinion
No. CV 03 00709355
March 30, 2004
MEMORANDUM OF DECISION RE HEARING IN DAMAGES
On March 9, 2004, a hearing in damages was conducted. The plaintiff represented by counsel was present and testified; no defendant appeared either individually or through counsel. The defendant had been defaulted for failure to appear at a pretrial conference ordered by the court on February 26, 2004. (Scholl, J.)
At the time of the pretrial conference, the defendant had been represented by counsel and at some point, the plaintiff received communication that the defendant was intending to file a bankruptcy petition. Subsequently the defendant filed an appearance in lieu of his attorney. The plaintiff's counsel stated at the hearing in damages that he had not received any communication from the defendant, from any counsel acting on behalf of the defendant or been served with any bankruptcy petition.
The governing complaint alleges that the defendant initiated a civil action against the plaintiff, accusing her of violating the Connecticut Unfair Trade Practices Act and tortuous interference with a business relationship, which action was subsequently withdrawn by the defendant; that this action was brought without probable cause and with malicious intent to vex and trouble the plaintiff; and that the defendant is liable for double and treble damages pursuant to General Statutes § 52-568. This statute provides in pertinent part that: "[a]ny person who commences and prosecutes any civil action or complaint against 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."
The court finds the following facts based upon the credible evidence offered at the hearing. The plaintiff was employed by the defendant for approximately three years as a bookkeeper. In May 2000, the plaintiff decided to leave the employment of the defendant due to problems occurring at the job. She informed the clients for whom she was performing the bookkeeping duties that she was leaving. A replacement was hired and the plaintiff trained the replacement.
The defendant brought the civil action against the plaintiff alleging that she had made misrepresentations to at least five of his clients in order to improperly solicit their business for herself when she was leaving the defendant's employment. The plaintiff vehemently denied any such solicitation and obtained affidavits from several of these clients in which they denied that any such misrepresentations or improper solicitations had been made.
The plaintiff was extremely distraught over the lawsuit and was forced to take medication for a period of time in order to deal with her anxiety. She attempted to settle the matter in order to avoid litigation expenses with the defendant through his counsel, but such attempts were refused, to the point of even refusing to make a demand for damages. The plaintiff was forced to incur legal expenses to defend the action. The defendant subsequently withdrew the civil action unilaterally.
In an action for vexatious litigation, one must prove lack of probable cause, malice and termination of the prior suit in favor of the plaintiff. Blake v. Levy, 191 Conn. 257, 263, 464 A.2d 52 (1983). Probable cause was defined in DeLaurentis v. City of New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991) as "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 matter 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." Furthermore, a defendant in a vexatious litigation suit 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." Id., 256 n. 16.
Based upon the credible testimony of the plaintiff and the affidavits which the plaintiff obtained, the court finds that the defendant lacked probable cause to pursue a claim against the plaintiff and acted with for a purpose other than that of securing the proper adjudication of the claim, that is, with malice.
The plaintiff is claiming damages as follows: (1) legal and related expenses incurred by her in defending the CUPTA action; (2) legal fees incurred in the prosecution of this vexatious litigation suit; and (3) compensatory damages arising from her mental and emotional suffering arising from the bringing of the vexatious action.
Proven damages and costs are as follows:
Legal fees incurred in the prior action $ 1,445.00 Legal fees and costs in the instant action $12,128.00 Emotional distress and anguish $ 5,000.00 Total: $17,128.00
The damages that may be awarded to a plaintiff in a vexatious litigation suit brought pursuant to General Statutes § 52-568 are double the plaintiff's compensatory damages, or treble damages if the plaintiff has proven "actual malice, that is, had proved malice by means of evidence with respect to the [defendant's] mental state . . ." DeLaurentis v. City of New Haven, supra, 220 Conn. 269, n. 27. Having found malicious intent on the part of the defendant based upon the lack of probable cause and his unwillingness to attempt to settle the matter, the damages shall be calculated by determining the compensatory damages and then tripling that amount. See, Yatsenick v. Himes, 11 Conn. L. Rptr. 31, 34 n. 4 (February 1, 1994, Gaffney, J.).
Judgment for the plaintiff in the amount of $51,384.00.
Swienton, J.