Opinion
HHDCV146055493S
03-10-2017
Greene Law, P.C. v. 2 National Place, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS ##124 AND 127
CESAR A. NOBLE, J.
This matter comes before the court on the cross motions for summary judgment of the parties. The issues presented in the parties' motions for summary judgment are (1) whether the plaintiff has met its burden of proving that there is no genuine issue of material fact that the defendants did not have probable cause to commence the underlying action and (2) whether the defendants have met their burden of proving that there are no genuine issues of material fact that they did have probable cause for claims of breach of fiduciary duty, statutory civil theft pursuant to General Statutes § 52-564, and unjust enrichment in the underlying action. For the following reasons the court denies both motions for summary judgment.
FACTS
The plaintiff, Greene Law, P.C. (Greene Law), commenced this action by service of process on the defendants, Patrick Boatman, Jenna Sternberg, the Law Offices of Patrick W. Boatman, LLC, (Boatman Law Firm), 2 National Place, LLC, (2 National), and Charles Levesque on November 24, 2014. The plaintiff's complaint sounds in vexatious litigation pursuant to General Statutes § 52-568(1), vexatious litigation with malicious intent pursuant to General Statutes § 52-568(2), and common-law vexatious litigation. The plaintiff's complaint alleges the following facts. Boatman is an attorney licensed to practice law in Connecticut and a member of the Boatman Law Firm. Sternberg is an attorney licensed to practice law in Connecticut and is an employee of the Boatman Law Firm. Since a vexatious litigation suit is a type of malicious prosecution action and is based upon a prior civil action, the facts from the underlying action are, therefore, necessary for the determination of this suit.
2 National and Levesque were withdrawn from this action on April 23, 2015.
A
Underlying Action
In the underlying action, the defendants, Boatman Law Firm, Boatman, and Sternberg, alleged the following facts on behalf of their clients, Levesque and 2 National, as summarized in the appellate decision of the underlying action. " [2 National], a Connecticut limited liability company of which the sole member is Charles Levesque, alleged that [Michael] Reiner was licensed to practice law in Connecticut, and that prior to April 2008, he practiced at the law firm of Reiner, Reiner & Bendett, P.C., in Farmington. On or about April 1, 2008, Reiner terminated his employment at Reiner, Reiner & Bendett, P.C., and became employed by [Greene Law], a Connecticut corporation that had formed on or about March 31, 2008. Reiner previously had performed 'various legal services' for the plaintiff while he was practicing at Reiner, Reiner & Bendett, P.C., and continued to do so after he began working for [Greene Law]. [Levesque] understood that [2 National] owed no legal fees to Reiner, Reiner & Bendett, P.C., as of April 2008, when Reiner left the firm. At some point prior to July 16, 2008, [2 National] retained Reiner to represent it in connection with a closing of the sale of real property that it owned known as 2 National Place in Danbury. [Levesque, acting through his attorneys, ] alleged that '[p]rior to the closing, Reiner had stated that he would only charge the fee of $1,000 for the legal work associated with the closing and would hold the balance of the money for the benefit of the plaintiff.' On July 16, 2008, with Reiner's assistance, Levesque closed on the sale of the property. At that time, 'the settlement agent disbursed to [Greene Law] the sum of $293,750, which was deposited in an [IOLTA] held by [Greene Law].' Greene Law subsequently transferred $195,000 of that sum from the account to [Levesque]. [Greene Law] then paid to Reiner, by check, the account's remaining balance of $98,750, allegedly without the [2 National's] knowledge or consent. Reiner later refused [2 National's] demands to return the funds in excess of the agreed upon sum of $1,000 or to provide the plaintiff with an accounting of the funds. Levesque further alleged that Reiner and Greene Law fraudulently claimed that the payment of $98,750 was intended to compensate Reiner for previous fees owed either to him or Reiner, Reiner & Bendett, P.C.
" In count one of the complaint, [Levesque] alleged that because Reiner was working for Greene Law at the time of the closing, Greene Law therefore 'owed [2 National] a fiduciary duty, independent of the fiduciary duty owed by Reiner, ' and it breached that duty by failing to account for or to deliver the funds to the plaintiff, and by failing to 'memorialize the basis upon which . . . [Greene Law was] accepting custody and responsibility for the plaintiff's funds.' In count two, [2 National] alleged that [Greene Law] was liable for statutory theft pursuant to § 52-564, because Greene Law and Reiner " intended to permanently deprive the plaintiff of its property, " when Greene Law received the funds or when Reiner subsequently refused to account for or to return them. Finally, in count three, [Levesque] alleged that [Greene Law] and Reiner were liable under a theory of unjust enrichment as a result of Reiner's refusal to return the funds disbursed by [Greene Law]. In each count [2 National] alleged that it suffered damages." 2 National Place, LLC v. Reiner, 152 Conn.App. 544, 546-48, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014).
On January 28, 2013, Greene Law successfully moved for summary judgment as to the operative complaint. The trial court, Rittenbrand, J., found that Greene Law had (1) fulfilled its fiduciary duty owed to 2 National; (2) that Greene Law did not deprive 2 National of its property; (3) that Greene Law did not benefit from the Reiner payment; (4) and that Greene law was not liable for any bad acts which may have been committed by Reiner. 2 National Place, LLC v. Reiner, Superior Court, judicial district of Hartford, Docket No. CV-11-6024043-S, ((January 28, 2013, Rittenbrand, J.). On May 5, 2013, 2 National appealed the trial court's decision, which was affirmed by the Appellate Court. 2 National Place, LLC v. Reiner, supra 152 Conn.App. 546-48. 2 National filed a petition for certification with the Supreme Court of Connecticut, which was subsequently denied. Id.
B
Current Action
The plaintiff alleges the following additional facts in their complaint in the current action. At the time of the closing, on July 16, 2008, the loans due on the property exceeded $4,000,000. In order to sell the property, 2 National required the lending bank to agree to accept less than the full amount owed to release its lien. Additionally, Levesque was concerned about having a sizeable capital gains tax obligation due to the Internal Revenue Service, and requested the lending bank lessen the amount it would receive from the closing by an additional amount. After engaging Reiner as counsel for this transaction, in early 2008, Reiner joined the plaintiff in an " of counsel" capacity. Reiner brought the transaction file to the plaintiff, and the plaintiff, thereby, assumed the role as 2 National's closing attorney firm. Other than the work done by Reiner to finalize the documents and attend the closing, the plaintiff had little involvement in the transaction as Reiner had done the bulk of the work while a principal at his former firm.
On April 24, 2015, the defendants filed an answer denying most of the allegations to the complaint. The defendants filed a motion for summary judgment, a memorandum of law in support, and exhibits on July 2, 2015, which the amended on July 6, 2015. The plaintiff filed a motion for summary judgment, a memorandum of law in support, and exhibits on July 7, 2015. Both the plaintiff and the defendants filed their opposition memoranda to each other's motions for summary judgment on November 1, 2016. The defendants filed their reply brief on November 8, 2016.
STANDARD
" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
General Statutes § 52-568 states in relevant part that, " [a]ny 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." " [T]o 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." (Citation omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008). " Malice may be inferred from lack of probable cause . . . A statutory action for vexatious litigation under General Statutes § 52-568 . . . 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." (Citations omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94-95, 912 A.2d 1019 (2007).
" 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 . . . 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 . . . 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; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991). " Accordingly, the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94-95. " Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." DeLaurentis v. New Haven, supra, 220 Conn. 252-53. " [P]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause . . . The lower threshold of probable cause allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win . . . Were we to conclude . . . that a claim is unreasonable wherever the law would clearly hold for the other side, we could stifle the willingness of a lawyer to challenge established precedent in an effort to change the law. The vitality of our common law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories." (Citations omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103-04.
DISCUSSION
The plaintiff moves for summary judgment (#127) on the grounds that the defendants lacked probable cause to commence and prosecute the underlying action as well appealing to the appellate courts. The defendants counter arguing that there was probable cause in the underlying action. In addition, the defendants move for summary judgment (#124) arguing that they are entitled to summary judgment as a matter of law as there are no genuine issues of material fact that the defendants had probable cause to commence the underlying action. The plaintiff disagrees.
I
Plaintiff's Motion for Summary Judgment
The court will first review the plaintiff's motion for summary judgment. In the present action, the plaintiff argues in its motion for summary judgment that there is no genuine issue of material fact that the defendants lacked probable cause to commence the underlying action against the plaintiff and subsequently, lacked probable cause to prosecute the action, file an appeal with the Appellate Court, and file a petition for certification with the Supreme Court. The defendants argue in their opposition that Greene's affidavit fails to refute the investigation undertaken by Boatman prior to filing the underlying action and relies on inadmissible evidence. The defendants further argue that this court should not look to and/or rely on the appellate decision in the underlying action because probable cause was not the issue before the appellate court. Finally, the defendants argue that an attorney familiar with Connecticut law would have reasonably believed that the underlying claims were viable, and that the defendants had probable cause to commence and prosecute the underlying action. In support of its motion, the plaintiff presents the following evidence: the affidavit of Gary Greene, principal of the plaintiff, copies of the trial and appellate decisions in the underlying action, a copy of the HUD-1 settlement form (HUD-1), the defendants' responses to the requests for admissions, and deposition testimony of Gary Greene, principal of the plaintiff.
In Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 772, 886 A.2d 1248 (2005), the court explained that it must consider whether there was probable cause as to each individual count of the underlying complaint. In the present case, the plaintiff argues generally that the defendants lacked probable cause to bring, prosecute, and appeal the underlying action, but the plaintiff fails to demonstrate by way of evidence how the defendants lacked probable cause as to the each individual count in the complaint. Moreover, the court cannot consider the plaintiff's affidavit because the majority of the statements made by Greene are either (1) simply conclusions of law not based on factual support or (2) inadmissible hearsay. See Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007) (holding that hearsay evidence is inadmissible for purpose of supporting or defeating motion for summary judgment); see also 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994) (holding that if affidavit contains inadmissible evidence it will be disregarded).
" [Our Supreme Court has] repeatedly . . . stated that [the court is] not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court." (Citations omitted; internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." Ferri v. Powell-Ferri, supra, 317 Conn. 228.
The admissible evidence that the plaintiff has submitted does not demonstrate that the defendants did not have probable cause as to the underlying action. The plaintiff's brief and evidence focus on the final outcome of the underlying action after discovery was concluded and evidence was provided and tried before the courts. The final outcome of the underlying action is not in dispute--the activities taken and mindset of the parties prior to the underlying action being commenced is at issue now. The key inquiry in this action, however, is probable cause--what the defendants knew or should have known when the case was commenced. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103.
The plaintiff also argues that the defendants lacked probable cause to continually prosecute the underlying action and to appeal the trial court's decision. The plaintiff argues that it was clear after judgment in the underlying action that the defendants lacked any evidence to support their claims against the plaintiff. Specifically, there was no evidence provided to support the allegation that a separate agreement to use a portion of the " attorneys fees" monies for future legal fees existed. The defendants rely on the separate agreement as probable cause for the underlying claims. Similarly, the plaintiff argues that the defendants did not attempt to prove in the underlying action that the plaintiff benefited from the money distributed to Reiner.
The Appellate Court believes this argument unavailing. " [I]n assessing probable cause, [our Supreme Court] phrased the critical question as whether on the basis of the facts known by the law firm . . . he or she had probable cause to bring the lawsuit . . . As is implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit . . . Further, [our Supreme Court] warned that [p]robable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause." (Emphasis added.) Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 35, 929 A.2d 729, 740 (2007). In the present case, the plaintiff does not appear to be arguing that the defendants did not have probable cause at the time of the commencement of the underlying action, but rather, that the defendants lacked probable cause to " continue" the underlying action.
Furthermore, whether a party has probable cause to appeal a decision depends on whether the party had probable cause to bring the action in the lower court. As the court cannot at this time conclude whether the defendants had probable cause to commence the underlying action, the court cannot now conclude the defendants had probable cause to appeal. See Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 56, 127 A.3d 304, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015) (holding that if party had probable cause in underlying action then it had probable cause to appeal, and deciding to contrary would be inconsistent).
The plaintiff's motion for summary judgment is therefore denied. The plaintiff has failed to show that there is genuine issue of material fact, that as a matter of law, the defendants lacked probable cause as to each individual count of the underlying complaint. Moreover, it would be premature for the court to consider whether malicious intent exists as General Statutes § 52-568(2) and common-law vexatious litigation require a determination of both probable cause and malicious intent.
II
Defendants' Motion for Summary Judgment
The court will now address the defendants' motion for summary judgment. The defendants argue in their motion for summary judgment that there are no genuine issues of material fact, and that they are entitled to judgment as a matter of law because the undisputed facts show that the defendants had probable cause to commence and prosecute the underlying action. They further argue that engaging in motion practice, filing an appeal with the Appellate Court, and filing a petition for certification with the Supreme Court are not " civil actions" for the purpose of vexatious litigation. The plaintiff counters in its opposition to the defendants' motion for summary judgment that the defendants' investigation, prior to bringing the underlying action, was insufficient to establish probable cause, and that the defendants had a duty to withdraw the underlying action against the plaintiff pursuant to Rule 3.1 of the Rules of Professional Conduct. The defendants reply that the plaintiff failed to provide admissible evidence that contradicts the material facts set forth in their motion for summary judgment. Moreover, the defendants note that the plaintiff does not dispute that (1) Reiner had an agreement with Levesque, (2) that the plaintiff had an obligation to communicate with Levesque after he became a client of the firm, (3) that the money wired into the plaintiff's IOLTA account placed certain obligations on the plaintiff, (4) that the plaintiff realized that the attorneys fee set forth in the HUD-1 was an error, (5) that there was no billing from the plaintiff to Levesque for its services in the sale of the property, and (6) that the plaintiff did not have a legal services agreement with Levesque.
A
Breach of Fiduciary Duty
The defendants argue that they had probable cause to bring a claim of breach of fiduciary duty against the plaintiff. In support of their motion, the defendants present the following evidence: affidavit of Boatman; affidavit of Sternberg; letters and emails between Reiner and Boatman; correspondence from Boatman to Adam Bendett, principal of Reiner's former firm; Levesque's billing statements from the plaintiff; and the plaintiff's motions to withdraw its appearance from representing Levesque's entities in various actions that commenced prior to the underlying action.
" [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." Iacurci v. Sax, 313 Conn. 786, 800, 99 A.3d 1145 (2014). " Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence . . . Such burden shifting occurs in cases involving claims of fraud, self-dealing or conflict of interest." Barber v. Skip Barber Racing School, LLC, 106 Conn.App. 59, 75, 940 A.2d 878 (2008).
" Professional negligence alone, however, does not give rise automatically to a claim for breach of fiduciary duty. Although an attorney-client relationship imposes a fiduciary duty on the attorney . . . not every instance of professional negligence results in a breach of fiduciary duty." (Citation omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56, 717 A.2d 724 (1998). " [A] fiduciary . . . [has] the duty to deal fairly with [its client], not simply to act reasonably based upon the relevant information . . . That is, the duty to make a 'reasonable' business decision based upon all the circumstances [is] not necessarily the equivalent of a duty to deal fairly, as a fiduciary, with the [client]." 2 National Place, LLC v. Reiner, supra, 152 Conn.App. 553.
" [V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss . . . Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee." (Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004).
In defendants' memorandum of law in support of their motion for summary judgment, the defendants only argue that the plaintiff was liable for Reiner's acts as he was an employee of the firm. The defendants don't address the claim of apparent authority in the underlying complaint and, therefore, neither can this court. Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120.
In the present case, at the commencement of the underlying action, the defendants believed or understood that (1) Levesque had signed a HUD-1 authorizing that $98,750 would be released to Michael Reiner as payment of attorneys fees; (2) $293,750 (proceeds of the sale) was deposited in the plaintiff's IOLTA account; (3) Levesque received $195,000 of the proceeds from the sale of the property; (4) Reiner was employed by the plaintiff at the time of the closing unbeknownst to Levesque; (5) Reiner continued to perform legal work for Levesque and his entities at the plaintiff; (6) there was an agreement between Reiner and Levesque to apply $1000 of the attorneys fees to Reiner's fee for the closing and to use the remainder of the attorneys fees towards future legal fees; and (7) Levesque and his entities did not receive bills for several years. The defendants, however, have failed to demonstrate by way of their exhibits that they had a " bona fide belief" that Reiner was acting within the scope of his employment with the plaintiff when he allegedly breached his fiduciary duty in light of the fact that Reiner had brought the client file with him when he changed firms. The defendants did not present evidence that Reiner was acting in furtherance of the plaintiff. See A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 209, 579 A.2d 69 (1990).
Furthermore, the defendants have failed by way of their exhibits to demonstrate that they had a " bona fide belief" that that the plaintiff had acted in an unfair manner to its fiduciary. See DeLaurentis v. New Haven, supra, 220 Conn. 256. Although, the defendants present evidence that there was a fiduciary relationship between Levesque and the plaintiff, a fiduciary relationship alone is not sufficient for the defendant to have probable cause for breach of fiduciary duty. Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, supra, 247 Conn. 56. There remains a genuine issue of material fact, however, as to the exact employment relationship between Reiner and the plaintiff. More specifically, the defendants have not presented evidence of how clients were transferred to the plaintiff, notified of the change in firms, how the plaintiff was made aware of what files Reiner was bringing to the plaintiff, how the attorneys fees were to be disbursed between Reiner and the plaintiff, or why the defendants' investigation did not include contacting the plaintiff before commencing the underlying action. Consequently, although it is undisputed that the defendants did investigate, prior to commencing the underlying action, there is a genuine issue of material fact, that as a matter of law, the defendants sufficiently and reasonable investigated the fee arrangement between Reiner and the plaintiff, and whether the plaintiff knew that Levesque was being charged $98,750 in attorneys fees and if those fees were intended for future legal fees. There are genuine issues of material fact and, therefore, the motion for summary judgment is denied as to breach of fiduciary duty.
B
Statutory Civil Theft
The defendants next argue that they had probable cause to bring a claim of statutory civil theft under General Statutes § 52-564 in the underlying action. " Section 52-564 provides: Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages. [Our courts] consistently have held that [s]tatutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119. A person commits larceny within the meaning of . . . § 53a-119 when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner." (Citations omitted, internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn.App. 99, 113-14, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012). Therefore, the defendants must have had knowledge of facts sufficient to justify a reasonable person to believe that there are reasonable grounds for prosecuting a claim of statutory civil theft. The defendants argue that it is undisputed that they knew at the commencement of the underlying action that: (1) $293,750 of the settlement proceeds were wired to the plaintiff's IOLTA account; (2) the plaintiff disbursed $195,000 of the settlement funds to Levesque; and (3) 2 National and Levesque believed the remaining funds were being held for future legal work by Reiner and/or the plaintiff. The defendants do not, however, offer any evidence to support that, as a matter of law, they had probable cause to believe that the plaintiff stole the $98,750 disbursed to Reiner, nor did the defendants present evidence that the plaintiff knowingly received and concealed the money that was disbursed to Reiner as attorneys fees in accordance with the HUD-1 signed by Levesque. There is a genuine issue of material fact regarding the evidence relied on by the defendants to establish probable cause to commence this underlying action against plaintiffs specifically because at the commencement of the suit, the defendants had received an email from Reiner indicating that the money was for past legal fees. There are genuine issues of material fact and, therefore, the motion for summary judgment as to the claim for statutory civil theft is denied.
C
Unjust Enrichment
The defendants also argue that they had probable cause to pursue a claim of unjust enrichment against the plaintiff in the underlying action. " Unjust enrichment is a very broad and flexible equitable doctrine that has as its basis the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff . . . The doctrine's three basic requirements are that (1) the defendant was benefited, (2) the defendant unjustly failed to pay the plaintiff for the benefits, and (3) the failure of payment was to the plaintiff's detriment." Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001). The defendants argue that at the time the action commenced they knew or believed that the plaintiff had received the proceeds from the sale of the property and that Reiner was employed by the plaintiff on the date of the closing. The defendants further argue that, at the time suit commenced, Reiner agreed to hold the $98,750 as a retainer for future legal work for 2 National and Levesque.
The defendants have not presented any evidence to support a finding that an agreement existed between Reiner and Levesque regarding the use of the $98,750 as future legal fees. The sum of $98,750 is only located on the HUD-1, which indicates that the monies are to be disbursed to Reiner. There is a genuine issue of material fact, that as a matter of law, the defendants sufficiently and reasonable investigated the fee arrangement between Reiner and the plaintiff, and whether the plaintiff knew that Levesque was being charged $98,750 in attorneys fees and if those fees were intended for future legal fees. There is also a genuine issue of material fact as to why Levesque did not receive any legal bills from the plaintiff for several years if such an arrangement did exist. Even assuming that the $98,750 were to be used as future legal fees, then there would still need to be an accounting of what work Levesque and/or his entities were being billed for, and that the funds, which came from the sale of 2 National's property, could be used for Levesque's other entities. Finally, there is a genuine issue of material fact why the defendants' investigation did not include contacting the plaintiff before commencing the underlying action. As there are genuine issues of material fact, the motion for summary judgment as to the claim for unjust enrichment is denied.
The defendants' motion for summary judgment is therefore denied because there are genuine issues of material fact, that as a matter of law, the defendants had probable cause to bring the claims in the underlying action. As noted above, it would be premature for the court to consider whether malicious intent exists as General Statutes § 52-568(2) and common-law vexatious litigation require a determination of both probable cause and malicious intent.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for summary judgment is denied as is the defendants' motion for summary judgment as there are genuine issues of material fact as to both.