Opinion
No. MMX CV09-6000884 S
April 14, 2010
MEMORANDUM OF DECISION
In this case the plaintiff seeks to increase the amount of a prejudgment remedy previously granted by the court on counts two and three of the plaintiff's second amended complaint. Decker v. Martin, 2010 Ct.Sup. 3138, No. MMX CV09-6000884 S, Superior Court, Judicial District of Middlesex at Middletown (Bear, J., January 19, 2010). The plaintiff now seeks to modify/increase its prejudgment remedy by $20,000.00 with respect to the first count of her amended complaint which alleges a claim of vexatious litigation based on the dismissal of a small claims case brought by the defendant against the plaintiff setting forth claims that such defendant had no standing to make against the plaintiff.
The applicable prejudgment remedy statutes are as follows:
General Statutes § 52-278d provides in part that
. . . The hearing shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . .
In a recent decision Judge Shortall noted that General Statutes § 52-278d clearly mandates that, in seeking a prejudgment remedy, a plaintiff must show probable cause that a judgment will issue in an amount equal to, or greater than, the amount of the prejudgment sought.
(Emphasis added.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 147 (2008). "Section 52-278d(a) requires that a trial court make a probable cause determination as to both the validity of the plaintiff's claim and the amount of the remedy sought."
Id., 145-46.
Weber v. Schultz, 2009 Ct.Sup. 19322, 19323, No. CV 09 5014210, Superior Court, Judicial District of New Britain at New Britain (Shortall, J.T.R., November 30, 2009). See also Crotty v. Tuccio Development, Inc., 119 Conn.App. 775, 781 (2010).
General Statutes § 52-278k, entitled "Modification of prejudgment remedy," provides:
The court may, upon any application for prejudgment remedy under section 52-278c, 52-278e, 52-278h or 52-278i, modify the prejudgment remedy requested as may be warranted by the circumstances. The court may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy granted or issued under this chapter upon the presentation of evidence which would have justified such court in modifying or denying such prejudgment remedy under the standards applicable at an initial hearing.
The plaintiff's claim for vexatious litigation is pursuant to General Statutes § 52-568(2) instead of the common law; 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.
Because of the amount of compensatory damages claimed by the plaintiff, the issue before the court is whether the plaintiff has demonstrated probable cause that a judgment will enter in her favor for treble damages. If the answer is no, then based on what the plaintiff has claimed as damages at this point the plaintiff will be unable to establish probable cause for the additional $20,000.00 she seeks as a prejudgment remedy.
In a recent decision, Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553-54, 944 A.2d 329 (2008), Justice Vertefeuille explained the Connecticut law of vexatious litigation:
We begin with a brief review of the law of vexatious litigation in this state. The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. Verspyck v. Franco, 81 Conn.App. 646, 647, 841 A.2d 267 (2004), rev'd on other grounds, 274 Conn. 105, 874 A.2d 249 (2005); see 8 S. Speiser, C. Krause A. Gans, American Law of Torts (1991) § 28:20, p. 113 ("The action for malicious prosecution is a recognition of the right of an individual to be free from unjustifiable litigation . . . [and] has been extended into the field of wrongful initiation of civil suits . . . The purpose of the action is to compensate a wronged individual for damage to his reputation and to reimburse him for the expense of defending against the unwarranted action." [C]itation omitted.]). 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 . . ." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001). 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." Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). 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." Id. In the context of a claim for vexatious litigation, "the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991).
(Footnotes omitted.) As set forth above, the purpose of such action is to compensate a wronged individual for two elements of damages: damage to her reputation and for the expense of defending against the unwarranted action.
While the defendant may actually believe "in the facts alleged and the validity of the claim asserted" by her in the dismissed small claims action, such subjective belief is insufficient to establish probable cause for such suit if she objectively "lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." The standards to be applied in determining whether the defendant had a reasonable, good faith belief in the facts she alleged and in the validity of the claim she asserted in her small claims action were set forth in DeLaurentis v. New Haven, 220 Conn. 225, 256-57, 597 A.2d 807 (1991):
For 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 caution, prudence and judgment, under the circumstances, in entertaining it." Wall v. Toomey, 52 Conn. 35, 36 (1884); accord Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). "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." Shea v. Berry, 93 Conn. 475, 477, 106 A. 761 (1919). 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. See Albertson v. Raboff, 46 Cal.2d 375, 382, 295 P.2d 405 (1966); 3 Restatement (Second), Torts 662, comment (c), 675, comment (d); cf. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (proof that an affiant included a false or reckless statement on a warrant affidavit may void the warrant); compare State v. Hamilton, 214 Conn. 692, 707 n. 6, 573 A.2d 1197, vacated on other grounds, 498 U.S. 933, 111 S.Ct. 334, 112 L.Ed.2d 299 (1990) (the test for probable cause is objective; an arresting or investigating officer's good faith is insufficient).
Utilizing such an objective standard of analysis, the court finds that the plaintiff has established probable cause for the court to conclude that the defendant lacked a reasonable, good faith basis for any belief she may have had concerning her allegations against the plaintiff in the small claims action, in the validity of the claims she asserted on her own behalf against the plaintiff for damages and in her standing to advance such claims in such forum.
The next question is whether a small claims action is a civil action as that term is used in our jurisprudence:
Because the prosecution of a civil action is a prerequisite to the filing of a viable vexatious litigation claim, we next consider what is required for the initiation of a civil action in this state. General Statutes § 52-45a provides the following procedure for initiating a civil action: "Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable."fn8 See Practice Book § 8-1(a) ("Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiff's complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable").
That civil actions must be commenced with a signed writ of summons or attachment is a matter of significance. As this court previously has opined, "[t]he subject of signing and issuing process in civil actions is one of consequence. Such signing is one of the processes of law by which a man may be deprived of his liberty and property. It is carefully guarded. It is not to be done indiscriminately . . . The signing of a writ by a person as a commissioner of the Superior Court is not a mere ministerial act . . . The canons of professional ethics require that a lawyer decline to institute an action if he is convinced that it is intended to harass or injure the opposite party or work an oppression or wrong." (Citations omitted.) Sharkiewicz v. Smith, 142 Conn. 410, 412-13, 114 A.2d 691 (1955); see Feldmann v. Sebastian, 261 Conn. 721, 729, 805 A.2d 713 (2002) (noting that "writ of summons `shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable'"); Hillman v. Greenwich, 217 Conn. 520, 524-25, 587 A.2d 99 (1991) (This court noted that "[a] summons is part of a citation . . . [which] is a command to a duly authorized officer to summon the [defendant] . . . to appear in court on a specific day to answer the [complaint] . . . [T]he citation, signed by competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command . . . Without it, the officer would be little more than a deliveryman." [Citations omitted; emphasis added; internal quotation marks omitted.]); Brunswick v. Inland Wetlands Commission, 25 Conn.App. 543, 547, 596 A.2d 463 (1991) (noting that due process of law requires that writ commencing action be signed "by . . . a . . . commissioner of the Superior Court . . . or a . . . clerk of the court to which it is returnable" [internal quotation marks omitted]), rev'd on other grounds, 222 Conn. 541, 610 A.2d 1260 (1992); Sargent v. Capital Airlines, Inc., 96 Conn.App. 320, 325, 901 A.2d 55 (2006) (referring to "fatal [defect]" in case in which plaintiff failed to sign both writ of summons and complaint).
Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 554-55. A small claims matter is a civil action. See, e. g., General Statutes §§ 51-345, 51-346 and 51-15. See also, e.g., Practice Book §§ 7-10 and 17-4 and Tobin Melien v. Bressler, 2002 Ct.Sup. 2818, 2819-21, No. CV00-0443619S, Superior Court, Judicial District of New Haven at New Haven (Booth, J., March 4, 2002). Additionally General Statutes § 52-568 refers to not only civil actions but also to complaints:
Any person who commences and prosecutes any civil action or complaint against another . . .
In the small claims writ and notice of suit form utilized by the defendant, the following appears:
The undersigned, being duly sworn, deposes and says that the signer has read the claim and, to the best of the signer's knowledge, information and belief, there is good ground to support it.
The defendant took such oath and signed her small claims complaint.
As set forth above General Statutes § 52-568 provides in part:
Any person who commences and prosecutes any civil action or complaint against another . . . (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.
In The Meadows Condominium Association, Inc. v. Redman, 2009 Ct.Sup. 12745, 12755-56, No. MMX-CV-07-5001823-S, Superior Court, Judicial District of Middlesex at Middletown (Rubinow, J., July 30, 2009), Judge Rubinow found that the plaintiff had proved that the defendant violated General Statutes § 52-568(2):
Credible and reliable evidence supports the determination that the defendant filed and pursued the May 2005 action for the purpose of intentionally inconveniencing and financially ruining both the plaintiff and the law firm which served as its counsel; this serves the functional equivalent of having pursued the lawsuit with "malicious intent unjustly to vex and trouble" as expressly contemplated by § 52-568(2). In reaching this conclusion, the court fully credited Atty. Barba's testimony concerning the defendant's oral admission, which established that he brought the tort/bad faith lawsuit with the express intention of making the parties involved in the underlying foreclosure action "pay for what had happened to him in the foreclosure." (Tes. Barba.) See Venturi v. Savitt, Inc., supra, 191 Conn. 593, citing Proto v. Bridgeport Herald Corporation, supra, 136 Conn. 564. This testimony is consistent with the defendant's admission, at trial, in which he voluntarily stated that he had filed the tort/bad faith action because he wanted the plaintiff to experience "statutory destruction," an outcome he submitted, without reason, was contemplated by the treble damage component of § 52-568(2). (Tes. Redman.) In the context of the parties' history of foreclosure judgment and the pending but unresolved appeal, the defendant's oral expressions promote the inference that he pursued the tort/bad faith litigation for vindictive reasons, not with the just intention of receiving fair and reasonable damages for any loss he may have sustained.
Other evidence further supports the conclusion that the defendant brought his tort/bad faith claims against the plaintiff with legally malicious purpose. For instance, the amount claimed for damages in the defendant's tort/bad faith lawsuit was overtly disproportionate to any amount of financial loss the defendant sustained as the result of the plaintiff's successful prosecution of the foreclosure action. The defendant's tort/bad faith lawsuit claimed that the plaintiff was liable for damages in excess of $100,000.00, and further sought "trebling" of any damages that might be awarded in that matter, pursuant to "CGS Section 52-568." (Complaint ¶ 11, defendant's tort/bad faith lawsuit.) As found in Part I, above, the total amount of damages awarded by the court in the foreclosure action was $2,821.00, representing common fees, late charges, parking fines and interest, plus $3,500.00 representing appraisal, title search, and attorneys fees. Given the nature of the other allegations in the defendant's tort/bad faith lawsuit, the extraordinarily high amount claimed for damages is consistent "with a malicious intent unjustly to vex and trouble" the plaintiff, within the meaning of § 52-568(2), and further consistent with defendant's admitted desire to expose the plaintiff to "statutory destruction." (Tes. Redman.)
See also Bojko v. Lima, 2009 Ct.Sup. 8431, 8438, No. PJR-CV-07-5015527S, Superior Court, Judicial District of Hartford at Hartford (Aurigemma, J., May 12, 2009), and Natrillo v. Mongero, 2006 Ct.Sup. 7967, No. NNH CV06 4017921, Superior Court, Judicial District of New Haven at Meriden (Pittman, J., March 24, 2006).
In footnote 12 of such decision, Judge Rubinow explained the meaning of malice or malicious intent as used in General Statutes § 52-568(2):
Albeit factually addressing issues related to libel, Venturi v. Savitt, Inc., 191 Conn. 588, 593, 468 A.2d 933 (1983), reminds us of the proper definition of malice or malicious intent insofar as civil matters are concerned: " Proto v. Bridgeport Herald Corporation, 136 Conn. 557, [564], 72 A.2d 820 (1950) . . . defines malice in fact as not necessarily meaning hatred, spite or ill will against the plaintiff but as meaning that there must have been some improper or unjustifiable motive . . ." on the defendant's part in undertaking the conduct at issue. (Emphasis added.)
The Meadows Condominium Association, Inc. v. Redman, supra, 2009 Ct.Sup. at 12755.
The plaintiff has met the prejudgment remedy probable cause standard to establish that in filing and prosecuting her small claims complaint the defendant acted without probable cause to do so and with "with a malicious intent unjustly to vex and trouble" the plaintiff. Such small claims complaint was dismissed after a contested hearing. The plaintiff has also demonstrated that there is probable cause for the court to find that her damages pursuant to the first count of her complaint are at least $20,000.00.
The prejudgment remedy previously entered by the court is modified and increased from $10,000.00 to $30,000.00.