Opinion
No. CV07-5008955 S
July 18, 2011
MEMORANDUM OF DECISION
A.
In this case a complaint for vexatious suit was filed in January of 2007 against the defendant Kenneth Spilke and Jennifer Ballard. From what the court can construct from the file a motion for default for failure to plead was granted as to Mr. Spilke on March 26, 2007. On the order page of the motion (#103) the clerk wrote "upon review the court recognizes an appearance was filed for Jennifer Ballard was in file as of 3/22/07 so default for failure to plead should have been granted on 3/26/07." This note is dated 1/30/08. The plaintiff filed a request for a hearing in damages based on the default. Present counsel for the defendant entered the case after the default and filed a motion to strike the case from the hearing in damages list. Judge Silbert denied the motion on October 5, 2010. As noted, the default was granted as to the original complaint which, as to the two above named defendants, was based on a claim of vexatious suit under common law and § 52-568 of the General Statutes. The operative complaint for the default then appears to be the January 2007 complaint; the first revised complaint was not filed until May 2007.
The defendant Kenneth Spilke was involved in an acrimonious divorce proceeding. The divorce was granted in 2003. Mr. Spilke in October 2004, through counsel, filed a Motion for Contempt Post-Judgment against the pro se plaintiff Georgina Spilke. The vexatious suit claim arises out of the filing of this motion which the plaintiff contested. Judge Frazzini ruled in the plaintiff's favor.
In Rioux v. Barry, 283 Conn. 338, 347 (2007) the court held that: "Vexatious litigation requires a plaintiff to establish that (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice (3) the defendant acted without probable cause and (4) the proceeding terminated in the plaintiff's favor." A simpler rendition is set forth in Blake v. Levy, 191 Conn. 257, 263 (1983) where the court said: "We have held that a claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff's favor." As to the requirement of malice: ". . . 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 . . . thus while malice may be inferred from lack of probable cause, lack of probable cause may not be inferred from malice," Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 710 (2000).
In any event the matter was set down, as indicated for a hearing in damages and was heard by this court on February 21, 2011. The court will briefly discuss the nature of such a hearing. Practice Book Section 17-34 explicitly provides that unless a defendant gives notice to the plaintiff that the allegations of the complaint are to be contested . . ."the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as related to the amount of damages . . ." No such notice was filed by the defendants here.
Another way of putting it is to say "that the entry of a default operates as a confession by the defaulted defendant of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment . . . The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive," United National Indemnity Co. v. Zullo, 143 Conn. 124, 129-30 (1956), quoted in Murray v. Taylor, 65 Conn.App. 300, 334, 335 (2001), also see Catalina v. Nicoletti, 90 Conn.App. 219, 221 (2005), Marcus v. DuPerry, 25 Conn.App. 293, 295-96 (1991).
As said in Abbott Terrace Health Center, Inc. v. Parawich, 120 Conn.App. 78, 86 (2010): "As a consequence of the default, the defendant was bound by the material factual allegations set forth in the plaintiff's complaint . . . We thus must examine those allegations to ascertain whether, as the plaintiff argues, they are sufficient on their face to establish a valid claim for the relief requested," also see Richey v. Main Street Stafford, LLC, 110 Conn.App. 209, 220 (2008), Catalina v. Nicolelli, 90 Conn.App. 219, 221 (2005).
In any event "case law makes clear that after default by the defendants, (a plaintiff would be) entitled to at least nominal damages for each adequately pleaded cause of action, not every item of claimed damage," Richey v. Main Street Stafford, LLC, id.
It should be noted that at a hearing in damages, the damages need only be proven by a preponderance of evidence standard even though, for example, it would have been necessary to have established the liability claim by a higher standard, Whitaker v. Taylor, 99 Conn. 719, 734-35 (2007).
Giving the pleadings a liberal reading not only does it make a claim for vexatious suit at common law but it also proceeds under the vexatious suit statute, § 52-568. To prevail under the statute the same elements must be proven as in the common-law claim. The chief distinction in these two remedies is the nature of the punitive damages that may be awarded under the statute.
Before turning to the facts of the case the court will make some general remarks about the damage issue which is of course central to a hearing in damage claim. Both under the common law and statutory claim a plaintiff must prove any damages by a preponderance of the evidence. In a claim such as this a plaintiff is entitled to be compensated for economic loss and noneconomic damages such as mental anguish, humiliation, embarrassment, mortification, shame, fear, and damage to reputation, Wochek v. Foley, 193 Conn. 582, 488 (1984).
To recover damages, however, a causal connection must be shown between the alleged unlawful conduct and any injuries claimed to have been suffered.
B.
Let us turn to the facts of this case and the context in which they appear. Judge Frazzini succinctly describes the contempt motion in his October 14, 2005 decision.
The defendant's (Mr. Spilke's) motion for contempt claims that his ex-wife (Ms. Spilke) has violated a provision in the dissolution decree barring her from pursuing a deficiency judgment against him in a foreclosure action on a condominium unit that was once the marital home. The defendant claims the plaintiff has violated this clause because a limited liability company (LLC) owned by the plaintiff's sons has acquired and exercised the right to proceed on the deficiency judgment. The plaintiff (Ms. Spilke) denies that the LLC, owned by her sons, is acting on her behalf.
After a thorough review of the evidence Judge Frazzini said:
After considering all of the evidence here, and weighing the credibility of the witnesses — in particular, that of Ms. Spilke, whom the court found to be truthful and credible, the court concludes, on balance, that the defendant has not proven that J. Diamond Properties, LLC was only acting as the plaintiff's agent, alter ego, or surrogate in purchasing the mortgage and note from KILM and in pursuing the deficiency judgment against the defendant and has not met his burden of proving that the plaintiff is violating the provisions of the dissolution judgment barring her from pursuing the deficiency judgment. The motion for contempt is therefore denied.
The court also noted that the parties to this contempt motion appeared "on several days during the winter of 2004-2005 and the spring and summer of this year (2005). The plaintiff testified as well as two witnesses for the defense and a woman from the Bank of America subpoenaed to bring certain bank records of Ms. Spilke. A motion to reargue the court's ruling was filed and denied on July 18, 2007.
As a result of liability being established by way of the default, Ms. Spilke, first requests judgment enter in her favor in the amount of $4,791,689. This figure included $150,000 "for the income due me for the . . . assets . . ." for the real estate property $250,000, for the suffering and pressure imposed on her as a result of the motion for contempt she demanded, trebled pursuant to the statute "minus what I received in the divorce settlement."
The plaintiff's post-trial brief then modifies the damage claim insofar as the court does not accept this four million dollar plus claim: There is a demand for "compensatory damages for pain and suffering" in the amount of $70,000, this was aggravated by the loss of an opportunity to relocate to Chicago to help and be of service to her mother for which compensation in the amount of $40,000 is demanded, time to prepare to contest the contempt motion is then calculated at 80 to 100 hours with resultant claim for $2,500 punitive damages for intimidation by defendant's lawyers in the amount of $20,000 then Ms. Spilke claims loss of earnings at a rate of $36,000 per year while the contempt was being litigated for a total of $70,000. Ms. Spilke also requests treble damages on the first two figures of $70,000 and $40,000 on this alternate damage claim increasing those figures to $330,000. The total damage claim on this alternate theory of recovery then is $422,500.
Confusingly enough in a plea for treble damages under the vexatious suit statute she makes a demand of $1,500,000 in the conclusion to her brief roughly trebling the $422,500 figure. Interestingly the argument made underlines the fact that Ms. Spilke makes a damage claim not based on damages specifically arising out of the contempt action but seeks to be compensated for all the injustices, fraud and "years of intense unhappiness" visited upon her and her children. The court it is said must award $1,500,000 "to discourage further tyranny of these defendants."
The court in no way disputes her assertions about her past treatment but given the specific nature of the action brought and the requirements of proximate cause it concludes the claims made are far beyond what is just and reasonable. The issue before the court, however, must be the damages caused the plaintiff by the vexatious suit at hand — i.e. the bringing of the contempt motion. It cannot be the function of this court to make amends through this judgment, for every past misdeed and unfair and irresponsible act now alleged against the defendant Spilke. Such a result was a constant theme advocated during the plaintiff's presentation. There was much testimony and argument presented about the defendant's abandonment of the children, his fraudulent concealment of assets to avoid marital obligations and tax responsibilities, and all of the pain and suffering caused the plaintiff long before the contempt action was brought let alone contemplated. Testimony about the effects of an absent father or difficult financial circumstances caused by failure to live up to marital and paternal obligations was well presented by a family pastor and Ms. Spilke herself. But all of these actions or failures to act occurred well before the contempt action.
The plaintiff's basic theory seems to be that the motion to contempt was another fraudulent attempt to keep hidden assets concealed since if a deficiency judgment were allowed those assets would be discovered. Default has entered so the court accepts this allegation made in the complaint as true. But on the separate question of damages emanating from this contempt action the court cannot piggy back on this claim all the deleterious effects of similarly fraudulent activities perpetrated by Mr. Spilke in the past; those effect long antedated the contempt litigation.
As to the emotional distress calculation this is not meant to imply that a continuing course of conduct over a long period of time cannot be a factor in the aggravation it causes someone because of raising prior memories of wrongful treatment in a person who after a bitter experience had thought the past had been over and done with. But the court cannot award compensatory damages based on emotional distress in such a way as to be purely punitive in character or condone thereby an attempt to undo a divorce settlement previously entered into.
Examining the claim for $422,500 in damages, the court will now review the separate aspects of that claim. A claim is made for $70,000 in lost earnings. The court cannot make such an award. The evidence indicated Ms. Spilke stopped working in 2003, a decision unrelated to the initiation of contempt proceedings. She said she was thwarted, because of the contempt litigation, from going to Chicago to help her mother. She further testified that she would have gotten a good recommendation from her former employer and there were job opportunities in the Chicago area which she could have taken advantage of if she were able to move. But these broad statements were not backed by any supporting evidence or even detail from Ms. Spilke. Judge Frazzini indicated the actual contempt litigation went over a few days in the end of 2004 to the beginning of 2005. The motion to reargue was filed some two years later but that is just what it was; from Judge Frazzini's opinion it does not appear that new witnesses were called for the reargument so that was what was involved — a one-day argument prior to a decision. Thus, a few days of trial attendance were required in 2004-2005 and perhaps a day to deal with the reargument motion. Why could Ms. Spilke not have pursued and obtained employment during all that time? What would have even prevented her from moving to Chicago; out of state litigants appear in our courts to litigate matters originating here prior to their leaving Connecticut constantly in family and other matters. There is nothing to indicate this highly intelligent woman could not have negotiated these complications attendant on relocation with a concomitant right to then demand reimbursement for travel expenses and lost wages for the few days she had to come back to the Connecticut courts? Perhaps even more to the point, Judge Frazzini's decision of July 18, 2007 where he denied the defendant's motion to reargue his prior ruling requesting the plaintiff be held in contempt also indicates he denied the plaintiff's motion to vacate the settlement agreement and apparently her cross motion for contempt. The filing of the motion to vacate was filed in July of 2005 by the plaintiff — hardly an impediment created by the defendants for a move to Chicago.
These observations, as far as the thwarted move to Chicago as a basis for emotional distress is concerned, also has an effect, at least to the court, of valuing downward this aspect of her emotional distress claim.
But the court will not go to the other extreme by saying Ms. Spilke is not entitled to damages for emotional distress as a result of the vexatious suit, that is the contempt action. In the following discussion the court must accept the allegations of the complaint as proven since default was entered. She was threatened with contempt for violating a paragraph of a settlement agreement entered into by the parties just two years before and according to the complaint was instituted solely to hide fraudulently concealed assets which, although apparently known about by her, was not further pursued because she wanted to settle the case and apparently move on with her life. One can imagine her aggravation and distress in being accused of violating a provision of an agreement she entered into despite her belief that the defendant had acted in the improper way alleged in concealing and transferring his assets.
This litigation even if it need not have prevented Ms. Spilke from moving to Chicago to be with her mother complicated the decision whether or not to do so and must have been a source of emotional distress.
She also must have experienced distress proceeding from her annoyance in having to spend 80 to 100 hours to prepare for what was knowingly bogus litigation. The court found the claim of hours spent interesting from another perspective — she did not claim hundreds of hours were spent on the matter but gave what appears to be an honest estimate of the time actually spent.
The court concludes that given the factual allegations of the complaint and the testimony presented by Ms. Spilke she is entitled to $1 in nominal damages for economic damages and $10,000 in non-economic damages on her common-law claim, she would also be entitled to the same compensatory damage claim on the statutory claim under § 52-568 of the General Statutes. Double damages are, of course, not warranted so that the total compensatory damage award is $10,001.
Punitive damages, although otherwise justified on the common-law claim would only cover the cost of litigation and the plaintiff, who is pro se, would only be entitled to be reimbursed on a bill of costs. Given the serious allegations of the complaint treble damages would be warranted under the statute which will make the total judgment $30,003.
D.
The final question then is who should the judgment lie against. The court has read and reread the complaint and cannot conclude how or in what manner the defendant Ballard was directly responsible for instigating the motion for contempt or can be said, in any ascertainable way, to have caused the damage resulting from the unsupported and unjust motion as dictated by the complaint. If we examine the language of United National Indemnity Co. v. Zullo, supra and Abbott Terrace Health Center v. Parawich, it is instructive. United National says a default operates as a confession by the defaulted party (here Ballard) of the material facts alleged "which are essential to entitle the plaintiff to some of the relief prayed," 143 Conn. at pp. 129-30. Abbot Terrace says that in a hearing in damages after default the judge must examine those (material) allegations to ascertain whether, as the plaintiff argues, they are sufficient on their face, to establish a valid claim for the relief requested, 120 Conn.App. at page 86. Failure to accept this qualification would lead to arguably silly results — i.e. someone is defaulted on a complaint which is not legally viable, that would not have withstood a motion to strike for example but a court would have to go directly to the damage claim without further ado.
The original complaint contains a litany of how the defendants Kenneth Spilke and Ballard conspired to conceal marital assets and Mr. Spilke falsely testified as to his business activities. It then claims Kenneth Spilke and Ballard hired an attorney and his firm who were originally defendants but who were removed from the case pursuant to a motion to strike. In any event the attorney is said to have filed the motion for contempt, at issue here "on behalf of his client Kenneth Spilke." In the 55 paragraphs of the entire complaint there is no actual link between any efforts made to hide Mr. Spilke's assets by Ballard to the actual filing of the motion for contempt; for all the complaint alleges this was an adventure he pursued on his own.
In any event the court awards total damages in the amount of $30,003 (compensatory damages with treble damages) against the defendant Kenneth Spilke and one dollar in nominal damages against the defendant Ballard on all claims.
The court would note that given its views on the $422,500 claim being made it follows that the $4,000,000 plus claim is not accepted by the court.