Opinion
No. CV 04-104655-S
August 2, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendants have moved for summary judgment on the grounds that there is no genuine issue of material fact as to whether the defendants had probable cause and lacked malice in commencing an appeal on which the plaintiff's vexatious suit claim is founded.
Factual and Procedural Background
This vexatious suit action arises from a personal injury lawsuit filed against the defendant, Robert Lefebvre, by the plaintiff, captioned Toni M. Smith v. Robert A. Lefebvre, CV-01-0096118-S ("underlying action"), which was tried to a jury with a verdict rendered on August 7, 2003. The jury awarded the plaintiff $5,500 in economic damages and nothing in non-economic damages. On August 11, 2003, the plaintiff filed a motion for additur and the defendant filed a motion for collateral source reduction In an order dated August 27, 2003, the trial court granted the plaintiff's motion for additur and awarded an additur of $7,500 in non-economic damages. The court's order indicated that a new trial would be ordered if the parties did not accept the court's decision by September 30, 2003.
On September 8, 2003, the defendants filed an appeal from the August 27, 2003 court order granting an additur. On October 15, 2003, the defendants filed an appeal from the August 27, 2003 court order for a new trial if the motion for additur was not accepted by September 30, 2003. The defendants then filed a motion to consolidate their appeals on November 24, 2003. The Appellate Court assigned oral argument in the defendants' appeals for April 23, 2004. By letter dated April 12, 2004 staff counsel for the Appellate Court asked the parties to be prepared to address at oral argument questions that the court might have regarding whether the appeals were subject to dismissal for lack CT Page 11889-i of a final judgment pursuant to Smith v. Otis Elevator Co., 33 Conn.App. 99 (1993) because the trial court had not ruled on the defendants' motion for collateral source reduction.
The plaintiff had not raised the final judgment issue or any other issue concerning the defendants' motion for collateral source reduction in her appellate brief. On April 22, 2004 the defendant Sheehan attempted to reach an agreement with Attorney Croman, plaintiff's counsel, as to the amount of collateral source reduction. His purpose was to eliminate the collateral source hearing issue and, thereby, eliminate the final judgment issue prior to arguing the appeal.
Attorney Croman did not agree with the amount of Attorney Sheehan's proposed collateral source reduction and, therefore, the parties were unable to agree on the collateral source reduction amount. Attorney Sheehan then reclaimed his motion for collateral source reduction and withdrew the appeal of the additur, obviously because he did not want to waste his time or his opponent's time arguing an appeal which might be defeated, not on the merits, but because of the lack of a final judgment.
The plaintiff filed this vexatious suit action with a return date of June 15, 2004. The complaint alleges that the defendants' appeals were "vindictive, vexatious and without probable cause," and that because of the defendants "vindictive, frivolous and vexatious litigation at the appellate level," the plaintiff suffered damages.
The defendants have submitted a number of documents in support of the summary judgment including affidavits from Attorney Sheehan and Robert Lefebvre which state that the appeal of the additur was filed based on a good faith belief that based on the evidence presented in the underlying action, the jury was justified in not awarding any noneconomic damages and the additur of $7,500 was legally improper and that the appeal was not filed for any malicious purpose.
The plaintiff has presented the affidavit of Attorney Alan Spargo which states that "there is probable cause that Mark Sheehan withdrew [the appeals] vexatiously and with malice . . . If Sheehan knew the motion [for collateral source reduction] was pending, he should have known that it may have precluded appellate review." CT Page 11889-j
Discussion of the Law and Ruling
Practice Book § 17-49 (formerly § 384) 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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530 cert. denied. 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn, 277, 279, 567 A.2d 829 (1989).
"A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint." Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). Vexatious suit is "the appellation given in this State to the cause of CT Page 11889-k action created by statute (General Statutes § 6148 [now General Statutes § 52-568])[fn.4] for the malicious prosecution of a civil suit . . . which we have said was governed by the same general principles as the common-law action of malicious prosecution." Schaefer v. O.K. Tool Co., 110 Conn. 528, 534, 148 A. 330 (1930); see also Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 596, 715 A.2d 807 (1998) ("[t]he elements of a common-law or statutory cause of action for vexatious litigation are identical"). To establish a cause of action for vexatious suit, a plaintiff must prove, inter alia, that a prior suit was brought without probable cause. See General Statutes § 52-568; DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991). "Lack of probable cause for institution of the original proceedings is the very gist of the action for [vexatious litigation] . . ." 30 Am.Jur.2d Proof of Facts, p. 226 (1982). "The existence of probable cause is an absolute protection . . . and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Vandersluis v. Weil, supra, 176 Conn. 356. As such, our review is plenary. See Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 708, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).
Falls Church Group v. Tyler, Cooper and Alcorn, 89 Conn.App. 459, 467-68 (2005).
The defendants here did not "institute" an action. Rather, they filed an appeal in an action instituted by the plaintiff. The plaintiff has submitted no case law in which the filing of an appeal has been deemed to be the "institution of an action" for purposes of vexatious litigation. To find that an appeal could constitute vexatious litigation would be contrary to the "the need to ensure open access to the courts and vigorous representation by counsel" which the Court in Falls Church found to be paramount to the need to prevent vexatious claims. See 89 Conn.App. at 469.
The plaintiff's brief and the affidavit of Attorney Spargo do not complain about the institution of the appeal. They argue that the withdrawal of the appeal by the defendants constituted a CT Page 11889-l vexatious suit. Again, the plaintiff has provided no authority to support her claim that the withdrawal of a suit or an appeal can be vexatious. Given that the definition of vexatious litigation is the "institution" of an action without probable cause, it is difficult to determine how the withdrawal of an appeal can fit within that definition. See QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 360-61, n. 16, 773 A.2d 906 (2001).
If the filing or withdrawal of an appeal can constitute a vexatious suit, then such filing or withdrawal is not actionable unless it was done without probable cause. In this case the defendants' appeal of the court ordered additur was authorized by Connecticut General Statutes § 52-228a, which provides:
In any jury case where the court orders a decrease in the amount of the judgment or an increase in the amount of the judgment, the party aggrieved by the order of remittitur or additur may appeal as in any civil action. The appeal shall be on the issue of damages only, and judgment shall enter upon the verdict of liability and damages after the issue of damages is decided.
The plaintiff doesn't claim that the defendants lacked probable cause to file the appeal from the court's decision on the additur. Rather, she claims that the appeal lacked probable cause because there was no final judgment. Again, the plaintiff presents no authority for this proposition. The cases from the Appellate and Supreme Courts are replete with instances in which appeals are filed, briefed and argued and there is still a question as to the existence of a final judgment. See Matey v. Estate of Dember, 85 Conn.App. 198, 856 A.2d 511 (2004); State v. Rosario, 81 Conn.App. 621, 841 A.2d 254 (2004); Ragin v. Lee, 78 Conn.App. 848, 829 A.2d 93 (2003); Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 818 A.2d 14 (2002). Based on those cases and many others in preceding years in which able counsel filed appeals notwithstanding the lack of a final judgment, it is clear that the determination of whether there is a final judgment is sometimes difficult to make. Indeed, the plaintiff's lawyer in this case failed to file a motion to dismiss or otherwise bring up the issue in response to the defendant's appeal.
In Falls Church, the Appellate Court enunciated a "lenient standard" for determining whether an attorney had probable cause CT Page 11889-m to commence an action. Under that standard the only suits which are deemed to lack probable cause are "[s]uits which all reasonable lawyers agree totally lack merit — that is, those which lack probable cause — are the least meritorious of all meritless suits." 89 Conn.App. at 474. The reasons for adopting such a standard were explained by the Court as follows:
"[W]e must be ever mindful that an attorney's role is to facilitate access to our judicial system for any person seeking legal relief. As such, probable cause is not to be judged merely upon some personal assessment of a claim's merit. It must encompass consideration of the law's desire to fully meet the clients needs. While an attorney is under an ethical duty to avoid suit where its only purpose is to harass or injure, if a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client's interests must be paramount . . . [T]he very nature of our adversary system of law mandates that the most useful and meaningful tests in this area must be derived from an attorney's ethical and professional obligations to his client . . ." We thus emphasize that any standard of probable cause must insure that the attorney's duty to his client to present his case vigorously in a manner as favorable to the client as the rules of law and professional ethics will permit is preserved . . . Mere negligence in asserting a claim is not sufficient to subject an attorney to liability for the bringing of suit. As [one] court . . . astutely observed, [t]o create liability only for negligence, for the bringing of a weak case, would be to destroy his efficacy as advocate of his client and his value to the court, since only the rare attorney would have the courage to take other than the easy case . . . "We recognize that through an effort to protect every citizen's free access to the courts some innocent persons may suffer the publicity, expense and other burdens of defending ill-founded lawsuits. While this is regrettable, the chilling effect that a broad rule of attorney liability would have upon the legal system, and ultimately upon its popular acceptance as a means of dispute resolution, appears to outweigh the value of the protection it would afford to those CT Page 11889-n who might be deemed innocent defendants." (Citations omitted; emphasis added; internal quotation marks omitted.) Wong v. Tabor, supra, 422 N.E.2d 1285-86.
Reasonable attorneys would clearly disagree as to whether or not the defendants properly took the appeal in this case. Appeals to the Appellate and Supreme Court are subject to time restrictions. See Rules of Appellate Procedure, §§ 63-1, 63-2. In this case, the court's order specified that if the defendants did not accept the additur by September 30, 2003, then a new trial would be ordered. Faced with that language and the Rules of Appellate Procedure governing time to appeal, the defendant's attorney had probable cause to file the appeal to preserve his client's rights notwithstanding the possible lack of final judgment.
Similarly, faced with the prospect of arguing an appeal which might not be considered on its merits, but, instead, might be rejected for want of a final judgment, the defendants had probable cause to withdraw the appeal.
Therefore, even if the filing or withdrawal of an appeal can constitute vexatious litigation, which appears questionable, the defendant attorney had probable cause to file and withdraw the appeal in the underlying action. There is no evidence that the defendant client did anything other than follow the advice of his attorney. Therefore, summary judgment is granted in favor of the defendants.
By the court,
Aurigemma, J. CT Page 11889-o