Opinion
HHDCV145037957S
06-30-2016
Jeffrey Roller v. Scott McFadden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Cesar A. Noble, J.
The defendant, Scott McFadden, has moved for summary judgment in this vexatious suit claim by the plaintiff, Jeffrey Roller, and asserts the absence of genuine issues of material fact relative to whether he acted with malice and without probable cause in instituting a prior litigation against the plaintiff. The plaintiff's complaint alleges the defendant prosecuted a certain civil action docketed as HHD-CV13-5037255 (prior action) in which the defendant alleged claims of slander, defamation, intentional infliction of emotional distress and fraud. The complaint, which makes claims under both common-law and statutory theories of vexatious suit, alleges that the defendant commenced and prosecuted the prior action without probable cause and with a malicious intent unjustly to vex and trouble the plaintiff Roller.
The defendant asserts by way of affidavit that he had leased a first floor apartment in a home owned by the plaintiff, which lease terminated due to conflict between the parties. He further avers in the affidavit that Roller engaged in tortious conduct upon which the prior action was predicated. Finally, he makes factual assertions which in his view establish the prior action was neither filed with malicious intent nor with an absence of probable cause. For example he references communications between Roller and his father, emails, communications with his prior employer and to the police which he makes the general claim were false.
The plaintiff objects and offers his own affidavit in which he makes general, conclusory, allegations including that the defendant's assertions are not wholly true and the defendant intended to smear the plaintiff's reputation.
Summary judgment may be rendered 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." Practice Book § 17-49. " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).
" In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action [require] proof that a civil action has been prosecuted . . . Additionally, to 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 . . . The statutory cause of action for vexatious litigation exists under [General Statutes] § 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." Scalise v. E. Greyrock, LLC, 148 Conn.App. 176, 181, 85 A.3d 7, 11 (2014) citing Spilke v. Wicklow, 138 Conn.App. 251, 259, 53 A.3d 245 (2012), cert. denied, 307 Conn. 945, 60 A.3d 737 (2013). " For the purposes of a vexatious suit action, [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 precaution, prudence and judgment, under the circumstances, in entertaining it . . . 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.) DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991). The probable cause standard is an objective one which does not consider the defendant's subjective beliefs. Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 100-03, 912 A.2d 1019 (2007).
The court finds that there remain genuine issues of material facts which the defendant, who bears the burden to establish the absence of same, has failed to remove from the real of dispute. The issue presented is whether the defendant has established that the factual allegations supporting claims of slander, defamation, intentional infliction of emotional distress and fraud, the theories of liability alleged in the prior action, were brought with probable cause. While the numerous emails and affidavit attached to the motion certainly document a contentious relationship between the parties, the defendant's motion fails to provide any basis for establishing that the specific predicate allegations of the prior complaint were brought with probable cause.
For the above reasons the defendant's motion for summary judgment is denied.