Opinion
No. MMX-CV-07-5001823-S
July 30, 2009
MEMORANDUM OF DECISION AFTER TRIAL
This memorandum of decision addresses the allegations of vexatious litigation raised by the plaintiff, The Meadows Condominium Association, Inc., through its complaint filed on January 17, 2007 (#102, vexatious litigation action), as well as the issues raised though the counterclaims of "Abuse of Process, Fraud and Intentional Infliction of Emotional Distress . . ." filed by the defendant, John Redman, on March 5, 2007 (#103, vexatious litigation action). The matter was tried to the court; the plaintiff was represented by counsel, and the defendant represented himself. The parties submitted post-trial briefs for the court's consideration (#119.5 and #120, vexatious litigation action).
For the reasons discussed herein, the court finds that the plaintiff has met its burden of proving the operative allegations of the complaint, while the defendant has failed to meet his burden of proving that he is entitled to relief under any of the counterclaims. Accordingly, judgment enters in favor of the plaintiff.
I FACTUAL FINDINGS AND PROCEDURAL HISTORY
The court used the standard applicable to civil matters to address the parties' claims. As has been ably summarized: "[i]n a civil case such as this the party asserting a claim has the burden of proving it by a `preponderance of the evidence.' Thus the Plaintiff on [its] claims, and the Defendant on [his] Counterclaims . . . had the same burden. `[I]n an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier's mind a reasonable belief that it is more probable than otherwise that the fact or issue is true.' Holmes v. Holmes, 32 Conn.App. 317, 318, cert. denied, 228 Conn. 902 (1993)." Coster v. Duquette, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. UWY-CV07-5005297 S (Dec. 3, 2008, Scholl, J.).
Two witnesses presented evidence and were subject to cross examination at trial: Ronald Barba, an attorney who has represented the plaintiff and the defendant. The parties tendered documentary exhibits, and stipulated that the court could take judicial notice of a number of documents and court files relevant to prior litigation between them. Considering the evidence in its totality, and utilizing the applicable measure, the court finds the following to have been proved by a preponderance of the evidence.
"It is an abiding principle of our jurisprudence that `[t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party.' (Citations omitted; internal quotation marks omitted.) Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981)." Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006); see also Somers v. Chan, 110 Conn.App. 511, 530, 955 A.2d 667 (2008) . . . In sum, "[t]he determination of the credibility of the witnesses is a function of the trial court . . ." Id. "The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . `[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence.' (Internal quotation marks omitted.) Russell v. Russell, 91 Conn.App. 619, 642, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). `In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.' (Internal quotation marks omitted.) In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." Welsch v. Groat, supra, 95 Conn.App. 666-67.
The parties have been legal adversaries for years. Their history of court-related conflicts places the present vexatious litigation in context.
The plaintiff manages The Meadows Condominium, a common interest community. The defendant has been the owner of the residential property known as Unit #15 of The Meadows Condominium. In early 2003, the plaintiff brought a foreclosure action against the defendant, his sister and his brother to recover unpaid condominium fees and charges, along with approximately $14,000.00 in fines and unpaid window-related assessments, and litigation costs. (Tes. Redman.) That matter, in which the defendant was originally represented by counsel, was formally known as The Meadows Condominium Association v. Robert Redman, Docket No. MMX CV03-0100941S (hereinafter "the foreclosure action"). While the defendant did not personally attend the trial of the foreclosure action, his attorney was present throughout. (Tes. Barba.)
On November 18, 2004, after trial, the court (Silbert, J.) issued its memorandum of decision finding in favor of the plaintiff as against the defendant, John Redman, alone. (#116, foreclosure action) (hereinafter "Foreclosure Memorandum of Decision"). In opposition to the foreclosure action, the defendant had claimed in part that the plaintiff had "harassed him over an allegedly improper plumbing hook-up . . ." for which he had been vindicated; the Foreclosure Memorandum of Decisions reflects the court's consideration of the defendant's argument. Id. The foreclosure court found, however that there was no reasonable nexus "between this and other minor events, on the one hand, and the imposition of the fines which [were] the subject of [the foreclosure action], on the other." Id. Moreover, the foreclosure court had considered the defendant's contention that the fines at issue were unjustified because, among other things, he "was living in Georgia throughout the period covered by the [foreclosure action's] allegations" so that he "had no obligation to grant [the plaintiff] access to [his condominium] unit." Id. In the absence of authority, the foreclosure court further declined to accept this aspect of the defendant's claims. Id. Additionally, the foreclosure court rejected the Meadows Condominium Association's arguments that the defendant should be held financially responsible for payment of fines related to window replacement issues, notwithstanding the supporting testimony of witness who were found to have "testified credibly" concerning the imposition of such fines. Id. The court rejected this aspect of the plaintiff's arguments upon its determination that "the [plaintiff condominium association's] Board Minutes should be taken as the best evidence of actions actually taken by the Board, and those Minutes do not reflect the imposition of the window fines in question." Id.
Robert Redman, the named defendant in the foreclosure action, is the plaintiff's brother. (Tes. Redman.) The foreclosure action against the defendant's brother and sister had been withdrawn.
Accordingly, the foreclosure court did not award all the damages the plaintiff had requested: the court denied the demand for payment of the window-related costs, but the defendant was ordered to pay other monetary and equitable relief to the condominium association. Id. A judgment of foreclosure by sale (#117, foreclosure action) was entered on November 18, 2004 upon the court's express finding that the defendant owed the plaintiff a "debt . . . of $2,821.00, including $2,016.00 as common fees, $180.00 in late charges, $225.00 in parking fines and $400.00 in interest." (#116, foreclosure action; Foreclosure Memorandum of Decision). The court also ordered the defendant to pay an appraisal fee of $350.00, a title search fee of $150.00 and $3,000.00 as attorneys fees. Id.
On December 8, 2004, through his successor counsel, Atty. Patrick Labbadia, the defendant filed a Motion to Reargue the court's decision in the foreclosure action. (#118, foreclosure action.) The plaintiff objected to the motion to reargue. (#119 and #120, foreclosure action.) On January 6, 2005, the court (Silbert, J.) denied the defendant's motion to reargue, and sustained the plaintiff's objection thereto. On January 26, 2005, the defendant appealed the court's decision in the foreclosure action. (#122, foreclosure action.)
On May 10, 2005, while that appeal was pending, the defendant, self-represented, brought suit against the plaintiff and six individual defendants to recover damages and losses which he claimed they caused through misfeasance or malfeasance in connection with general condominium association matters, and by specific pursuit of the foreclosure action against him. That matter was known as John W. Redman v. Meadows Condominium Association et al., Docket No. MMX CV05-4002799S. (See Ex. 1, representing the complaint and accompanying documents) (hereinafter "the defendant's tort/bad faith lawsuit.") The defendant's tort/bad faith lawsuit claimed, among other things, that he owned a unit of the Meadows Condominium, and that the plaintiff had: sued him "on 21 February 2003 in an ongoing action alleging non-payment of `properly assessed' fines" (¶¶ 1, 16.A., defendant's tort/bad faith lawsuit); "deliberately or accidentally ignored" the condominium association's own bylaws in assessing these fines against him (¶ 16.B., defendant's tort/bad faith lawsuit); "ignored [its] legal duty to provide notice" to the defendant of proceedings related to breach of certain rules, thus showing "bad faith on the part of" the plaintiff (¶ 16.C., defendant's tort/bad faith lawsuit); "initiated and maintained [the foreclosure] action through some manifestation of bad faith" and that "the [foreclosure] suit was meritless, mendacious and vexatious" (¶ 16.D., defendant's tort/bad faith lawsuit); that the plaintiff's behavior "constitute[d] harassment and interfere[d] with [his] right to Quiet enjoyment (¶ 17.B., defendant's tort/bad faith lawsuit); that the actions of the plaintiff had "harassed, degraded and humiliated" the defendant (¶ 18.A., defendant's tort/bad faith lawsuit); that the plaintiff had "in defiance of legal duties and obligations . . . without the consent of the [defendant] remove[d] an allocated interest, namely [the defendant's] storage unit, causing [him] great economic harm" (¶ 18., defendant's tort/bad faith lawsuit); and that the plaintiff had neglected its duty to maintain the premises (¶ 19., defendant's tort/bad faith lawsuit). Furthermore, the defendant's tort/bad faith lawsuit alleged that "[o]n the lawsuit filed by [the plaintiff] on 21 February 2003, the [plaintiff] falsely stated" that his brother and sister were owners of the property in question, causing harm to his family unit (¶ 20.A, defendant's tort/bad faith lawsuit; see also ¶ 20.C, defendant's tort/bad faith lawsuit.); and that the plaintiff had exhibited "a policy of intimidation" and "bad faith" towards him with regard to installation of a satellite dish antenna. (¶ 21., defendant's tort/bad faith lawsuit.)
The individual defendants were: Robert Mitchell, Ronald Bender, Sabrina Tracy, Tom Fitting; Fran Ciccioni, and Ed Stephens. (Ex. 1; see also Ex. 4.)
On November 1, 2005, through its per curiam opinion in Meadows Condominium Association v. Robert Redman et al., 92 Conn.App. 903, 884 A.2d 23 (2005), the Appellate Court affirmed the trial court's judgment of foreclosure. Accordingly, on November 21, 2005, the court (Aurigemma, J.) again issued a judgment of foreclosure by sale in favor of the plaintiff, and adverse to the defendant. (#127, foreclosure action.)
In the spring of 2005, the plaintiff had brought a second foreclosure action against the defendant individually, in the matter known as The Meadows Condominium Association v. John Redman, Docket No. MMX-CV05-4003095. Insufficient evidence was presented to enable the court to discern the specific nature or extent of the particular issues raised in this second foreclosure action. However, the parties stipulated that this matter was withdrawn on October 26, 2006, and that the court entered a judgment of dismissal on December 13, 2006.
The defendant's tort/bad faith lawsuit was tried to the court; the plaintiff was represented by counsel; the defendant represented himself during this trial. (Ex. 4, Tes. Barba.) At the conclusion of the defendant's evidence, the plaintiff moved for dismissal due to the defendant's failure to make out a prima facie case. See Practice Book § 5-8. The court (Aurigemma, J.) granted this motion, and rendered judgment in favor of the Meadows Condominium Association and the other defendants on December 13, 2006. (#133, defendant's tort/bad faith lawsuit; see also Tes. Barba.) The defendant's tort/bad faith lawsuit was thus ended by the court's entry of a judgment of dismissal, effectively terminating that action in favor of the present plaintiff.
At the time of this dismissal, Practice Book § 15-8 read, in pertinent part, as follows: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case."
On April 18, 2007, the defendant moved to open the December 13, 2006 judgment of dismissal for failure to make out a prima facie case that had been entered in connection with his defendant's tort/bad faith lawsuit against the plaintiff (#134, defendant's tort/bad faith lawsuit). This motion to open was denied, and the plaintiff's objection to the motion to open (#135, defendant's tort/bad faith lawsuit) was sustained by the court (Aurigemma, J.) on May 14, 2007.
As noted, the plaintiff filed the pending complaint on January 17, 2007 (#102, vexatious litigation action). The plaintiff has generally alleged that the defendant had engaged in vexatious litigation by pursuing his tort/bad faith lawsuit, which had been dismissed for failure to make out a prima facie case at trial. (#102, vexatious litigation action.) On March 5, 2007, the defendant filed his answer to the vexatious litigation complaint, and presented his counterclaims against the plaintiff condominium association. (#103, vexatious litigation action.)
The defendant has styled his affirmative claims as "countersuits." (#103, defendant's tort/bad faith lawsuit.) For clarity throughout, the court has referenced these allegations as "counterclaims." See Practice Book § 10-10, allowing a defendant to "file counterclaims against any plaintiff . . ." (Emphasis added.)
II PLAINTIFF'S PENDING CLAIMS
The vexatious litigation complaint consists of a single count brought against the defendant, and the plaintiff's appended claim for damages. In relevant part, the pending complaint alleges that: the plaintiff had filed a foreclosure action against the defendant to recover unpaid fines and assessments lawfully levied by the plaintiff in connection with the unit he owned at The Meadows Condominium; in November 2004, the court entered a judgment of foreclosure by sale in response to the plaintiff's successful foreclosure action; in May 2005, as a result of the plaintiff's foreclosure action against him, the defendant filed his tort/bad faith lawsuit against the plaintiff; in November 2005, the Appellate Court upheld the judgment of foreclosure in favor of the plaintiff and against the defendant; on December 13, 2006, the court dismissed the defendant's tort/bad faith lawsuit for failure to state a prima facie case and judgment in favor of the plaintiff; the defendant knew or should have known that he had no probable cause to have brought his tort/bad faith lawsuit against the plaintiff in May of 2005; and that "[a]s a direct and proximate cause of the [defendant's] vexatious and groundless lawsuit, the Plaintiff incurred legal fees and expenses in the amount of $9,209.12." (¶ 8, #102, vexatious litigation action.) The plaintiff claimed therefore an award of money damages, other legal and equitable relief within the court's discretion, and "[t]reble [d]amages pursuant to C.G.S. § 52-568." (#102, vexatious litigation action.) Through its post-trial brief, the plaintiff has specifically asked this court to find that it "paid nine thousand twenty nine dollars and seventy cents ($9,027.75) in attorneys fees . . ." to defend the tort/bad faith lawsuit. (#119.5, vexatious litigation action.) The plaintiff asked for judgment in its favor, and "requested that this Court order treble damages against the Defendant in favor of the Plaintiff in the amount of twenty seven thousand eighty three dollars and twenty five cents ($27,083.75)." (#19.5, vexatious litigation action.)
General Statutes 52-568 provides the legislative basis for a claim for damages based upon a groundless or vexatious suit, providing in pertinent part: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others . . . (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."
The court relied upon fundamental principles of Connecticut law in resolving the vexatious litigation issues here raised by the plaintiff. "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 [vexatious litigation] is a recognition of the right of an individual to be free from unjustifiable litigation . . . 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.'). 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 . . .' QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001)." (Footnote omitted; internal citations omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553-54, 944 A.2d 329 (2008). "[T]he elements of malicious prosecution and common-law vexatious litigation essentially are identical . . . We have summarized the required showing for both causes of action as follows: `To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor.' Vandersluis v. Weil, [ 176 Conn. 353, 356, 407 A.2d 982 (1978)]." Bhatia v. Debek, 287 Conn. 397, 405-06, 948 A.2d 1009 (2008); see also Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007).
"[Vexatious suit] is the appellation given in this [s]tate to the cause of action created by statute (General Statutes § 6148 [now § 52-568]) 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." (Internal quotation marks omitted; external citation omitted.) Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, 281 Conn. 84, 103, 912 A.2d 1019 (2007). In view of the ample Connecticut law applicable to the subject of the parties' present litigation, the court declines the defendant's suggestion that reference should be made to other jurisdictions' construction of vexatious litigation issues. (See Defendant's Post-Trial Brief, #120, vexatious litigation action.)
"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.' [ Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94]." Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554. "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.' To establish a statutory claim thereunder, it is necessary to prove, at a minimum, want of probable cause . . . and a termination of suit in the plaintiff's favor.' (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, [ supra, 281 Conn. 94]." Somers v. Chan, supra, 110 Conn.App. 541-42. See also Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554.
A TERMINATION OP THE PRIOR ACTION
Whether the pending matter is founded upon statutory or common law principles, the court must address the same preliminary issue: whether the plaintiff has met the "condition precedent to the institution of an action for vexatious litigation[, which] is that the original action has terminated unsuccessfully" insofar as the present defendant is concerned. (Citations omitted.) Somers v. Chan, supra, 110 Conn. 542. See also Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554 (the prosecution of a civil action is a prerequisite to the filing of a viable vexatious litigation claim). As the plaintiff has met the applicable burden of proof, the court finds this first issue in its favor.
Reliable, probative evidence in this matter establishes that the defendant brought his tort/bad faith lawsuit against the plaintiff in May 2005 after the plaintiff had prevailed in the foreclosure action; that the defendant's tort/bad faith lawsuit was tried to the court; that on December 13, 2006, after trial, the court ruled that the defendant had failed to make out a prima facie case; and that the court dismissed the defendant's tort/bad faith lawsuit, effectively finding the matter in favor of The Meadows Condominium Association, among others. See Practice Book § 15-8. The origination of the defendant's tort/bad faith lawsuit and the resulting dismissal fully satisfy the plaintiff's burden of proving that the defendant had prosecuted the defendant's tort/bad faith lawsuit, and that the "original action has terminated unsuccessfully" notwithstanding the defendant's claims to the contrary. Somers v. Chan, supra, 110 Conn. 542; Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554.
B PROBABLE CAUSE
The court next turns to the issue of whether the defendant had probable cause to bring his tort/bad faith lawsuit against the plaintiff. As the burden of proof has been met, the court also finds this second issue in favor of the plaintiff.
"The test for deciding whether a litigant acted with probable cause . . . is well settled." Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94. "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)." Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554. See also Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94, 100-01; Embalmer's Supply Co. v. Giannitti, 103 Conn.App. 20, 34, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). "`[F]or 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 [person] 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 [person] in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of . . .' (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, [ supra, 220 Conn. 256]; accord Wall v. Toomey, 52 Conn. 35, 36 (1884). Accordingly, the probable cause standard applied to a vexatious litigation against a litigant is a purely objective one." Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94-95. In determining whether the plaintiff has met its burden of proving probable cause, "under our case law, it is well settled that the same standard applies under the common law and the statute." Id., 103. "[W]hat facts, and whether particular facts, constitute probable cause is always a question of law. (Quotation marks omitted; external citations omitted.) Id., 94. See also Embalmer's Supply Co. v. Giannitti, supra, 103 Conn.App. 34.
"[T]he definition of civil probable cause . . . was set forth by this court more than 100 years ago. That definition has not changed since this court enunciated in Wall v. Toomey, [ 52 Conn. 35, 36 (1884)] . . ." (External citation omitted.) Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 102.
To resolve the issue of probable cause according to this time-tested standard, the court must first determine the facts of which the defendant had actual or apparent knowledge at the time he filed his tort/bad faith lawsuit against the plaintiff. Embalmer's Supply Co. v. Giannitti, supra, 103 Conn.App. 35. The court may properly utilize circumstantial evidence to assess this element, as the defendant's knowledge of these facts may be either "actual or apparent" insofar as analysis of vexatious litigation is concerned. Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94, 100-01. The court must next ascertain whether, "with knowledge of those facts, a reasonable [person] would believe that he or she had probable cause to bring suit" against the plaintiff based on claims as filed in the defendant's tort/bad faith lawsuit. Embalmer's Supply Co. v. Giannitti, supra, 103 Conn.App. 35; Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, CT Page 12753 281 Conn. 100-01.
As to the first prong, the facts of which the defendant had knowledge, actually or apparently, at the time he filed his tort/bad faith lawsuit are clearly evident in this case. See Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 100-01. In his answer to the vexatious litigation complaint, and through his trial testimony, the defendant effectively admitted his knowledge, when he brought his tort/bad faith lawsuit, that court had ruled against him in the foreclosure action, and that the court had considered many of his arguments in the course of resolving that matter by ordering a judgment of foreclosure by sale in November 2004, to his detriment. (#103, defendant's tort/bad faith lawsuit.) The defendant similarly admitted that he filed his tort/bad faith suit in May 2005 as a direct and proximate result of the foreclosure action that had been brought by the plaintiffs, even though he knew that he had lost that litigation, a result he was attempting to ameliorate through his pending appeal of the foreclosure judgment. (#103, defendant's tort/bad faith lawsuit.) These admissions are sufficient to establish that in May 2005, when he filed his tort/bad faith lawsuit against the plaintiff, the defendant had actual or apparent knowledge that the court had found the foreclosure action to have been properly and meritoriously brought against him; they are further sufficient to support the conclusion that the defendant knowingly and intentionally filed his tort/bad faith lawsuit, without just cause, in an effort to grieve the plaintiff had started the lawful foreclosure action against him. Embalmer's Supply Co. v. Giannitti, supra, 103 Conn.App. 35.
Other evidence supports the determination that the defendant had actual notice that the issues raised in the tort/bad faith lawsuit had been essentially resolved by the foreclosure ruling, in a manner adverse to the defendant. The defendant's imputed knowledge of the content, orders and implications of the judgment of foreclosure against him are apparent from the Foreclosure Memorandum of Decision, which bears an indication that in November 2004 a copy of the written memorandum was sent to the defendant's counsel, Atty. Labbadia. The defendant's actual knowledge of the court's full consideration of the issues, and its finding in favor of the plaintiff, are further evidenced through the fact that on December 8, 2004, Atty. Labbadia filed a Motion to Reargue the judgment of foreclosure; that motion, filed on the defendant's behalf, expressly acknowledged the subject matter raised in the trial of the underlying foreclosure action, the content of the Memorandum of Decision, and the result adverse to the defendant. (#118, foreclosure action.) It is uncontested that the court (Silbert, J.) denied the motion to reargue on January 6, 2005, and that the judgment of foreclosure was thereafter appealed by the defendant, representing himself. In addition, the defendant's complaint in the tort/bad faith lawsuit expressly admits knowledge that he was sued successfully by the plaintiff in the underlying foreclosure action (Ex. 1, ¶¶ 16.A., 17.C., 20.A.) and that he had brought the defendant's tort/bad faith lawsuit while the judgment of foreclosure was on appeal (Ex. 1, ¶ 16.F.). Given the totality of these circumstances, there is ample basis for finding that when he filed his tort/bad faith lawsuit, the defendant knew that the court had considered the evidence brought against him, and his defensive arguments, but had found in favor of the Meadows Condominium Association in the foreclosure action.
It is axiomatic that "[t]he knowledge and admissions of an attorney are imputed to his client . . ." (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 195, 914 A.2d 533 (2007).
The court next determines whether, "with knowledge of those facts, a reasonable [person] would believe that he or she had probable cause to bring suit" against the plaintiff based on claims presented in the defendant's tort/bad faith lawsuit. Embalmer's Supply Co. v. Giannitti, supra, 103 Conn.App. 35; Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 100-01. The court concludes that the knowledge of facts concerning the court's decision in the foreclosure action, whether actual or apparent, would have led a reasonable person to conclude that he or she had no lawful grounds for bringing such a complaint against the plaintiff. Objectively viewed, the allegations of the defendant's tort/bad faith lawsuit could not be justified given the broad scope and clear result of the foreclosure litigation. While the defendant had brought an appeal from the judgment of foreclosure, that appeal had not been resolved in his favor prior to his institution of the tort/bad faith lawsuit. In the face of an unfavorable judgment, mere expectation of prevailing on an appeal does not provide a reasonable person with grounds "strong enough to justify . . . the belief that he has lawful grounds for prosecuting the [the opponent] in the manner complained of . . ." (Citations omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94-95.
The evidence impels the determination that defendant filed his tort/bad faith lawsuit under circumstances that would have led a reasonable person to conclude there was no basis for maintaining "a bona fide belief in the existence of the facts essential under the law for [that] action . . ." Id., citing DeLaurentis v. New Haven, supra, 220 Conn. 256. To the contrary, given the entry of the court's adverse judgment in the foreclosure action, the court's denial of the motion to reargue that result, and the pendency of the appeal without resolution, the record is void of any circumstances "such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining . . ." a cause of action such as that brought by the defendant against the plaintiff in May of 2005. Id.
As the defendant evidence is sufficient to find that the defendant lacked "a reasonable, good faith belief in the facts alleged and the validity of the claim asserted" when bringing his tort/bad faith claim in May 2005, the plaintiff has met its burden of proof on this issue. Id.; see also Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554.
C MALICE
The court next addresses the plaintiff's claim that it is entitled to treble damages because the defendant's tort/bad faith lawsuit was "vexatious and groundless." (¶ 8, #102, vexatious litigation action.) This claim requires the court to ascertain whether the plaintiff has proved that the defendant prosecuted the tort/bad faith lawsuit with malice. See § 52-568(2); see also Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950). See also DeLaurentis v. New Haven, [ supra, 220 Conn. 269 fn.27]; Venturi v. Savitt, Inc., 191 Conn. 588, 593, 468 A.2d 933 (1983). The court finds this third issue in favor of the plaintiff.
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.)
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.
The defendant's resentment toward the plaintiff, adversely affecting his credibility in this matter, is further evident in his pattern of repetitive efforts to open the November 2004 judgment of foreclosure. On November 4, 2005, notwithstanding the published opinion of the Appellate Court, the defendant moved to open the judgment of foreclosure (#126, foreclosure action). As noted in Part I, on November 21, 2005, the court reissued a judgment of foreclosure by sale (#127, foreclosure action), effectively denying this motion to open the judgment. On January 23, 2006, notwithstanding the Appellate Court's opinion, the defendant yet again moved to open the judgment against him in the foreclosure action (#133, foreclosure action); on that day, this motion was denied by the court (Booth, J.). On April 18, 2007, the defendant, filed a Motion to Reopen Judgment as a Matter of Right (#144, foreclosure action). On July 9, 2007, the defendant filed a Motion to Reopen Judgment (Amended) (#146, foreclosure action). On October 1, 2007, the plaintiff filed an Objection to Amended Motion to Reopen Judgment (#147, foreclosure action). On October 8, 2007, the defendant filed a Motion to Reargue issues related to the foreclosure judgment (#151, foreclosure action); the court (Holzberg, J.) denied this motion on October 10, 2007. On October 11, 2007, the defendant filed a Memoranda in Support of Motion 146 [motion to open judgment of foreclosure] (#152, foreclosure action). On October 29, 2007, the court (Holzberg, J.) filed its Memorandum of Decision re Defendant's Motion to Open (#153, foreclosure action), yet again denying the relief sought by the defendant.
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.)
In reaching this conclusion, the court has fully considered the abundant evidence establishing that even though the foreclosure court had found him to be legally liable to the plaintiff, the defendant has remained unwilling or unable to accept any responsibility for the circumstances that led to the entry of that judgment against him. The tenor and content of the defendant's trial testimony reflected his long-standing feeling, contrary to the ruling, that he has been victimized by the plaintiff and its agents notwithstanding the affirmance of that ruling by the Appellate Court, the multiple court orders denying reargument or reconsideration of the decision in the foreclosure action, and/or the dismissal of his tort/bad faith lawsuit for failure to make out a prima facie case. The defendant's attitude at trial reflected disaffection and distrust toward the plaintiff and its agents, and revealed his persistent sense of indignation at what he perceives, despite the foreclosure judgment against him, to have been inappropriate treatment he received from the condominium association in the past.
The defendant's enmity toward the plaintiff and its agents is further apparent in his Answer to the pending complaint, which alleges, among other things, that "[a]s a direct and proximate cause of the foul and evil deeds of Plaintiff's and Counterdefendants they should be finally punished by the courts they have so-far perverted successfully and bear all costs as well." (Emphasis added.) (#103, vexatious litigation action.)
The defendant's continuing bias against the plaintiff was manifest throughout his demeanor and questioning of Atty. Barba at trial, and colored his own testimony on the subject of his purpose in bringing the tort/bad faith lawsuit to his detriment. Exhibit 2 represents an email communication which the defendant transmitted to Atty. Barba on January 27, 2007, after the tort/bad faith lawsuit had been dismissed, and after the defendant had lost his appeal of the foreclosure judgment. (Ex. 2; Tes. Barba.) Referring to the plaintiff's counsel, the subject heading of this email states: "I told you I was not done with you, Ron." (Ex. 2.) The email then expresses the defendant's antagonism toward Atty. Barba and the plaintiff as follows: "I am going after you and your firm and the [Meadows Condominium] association and I will see you all destroyed as business entities. You are so without ethics." (Emphasis added.) (Ex. 2.) This communication clearly establishes the defendant's animus toward the plaintiff and its agents, and renders his testimony as to the purpose for bringing the tort/bad faith lawsuit to be of little weight. (Ex. 2.)
The court finds inadequate basis for crediting the defendant's assertion that the text he used in this email merely expressed his intent to access money damages that were legally due to him by the plaintiff. Such an interpretation is wholly unsupported in this matter, given its inconsistency with the language of Exhibit 2, with the history of the defendant's loss in the foreclosure action, and with the Appellate Court's opinion. The court further declines to credit the defendant's explanation that he brought his tort/bad faith claim not with malice or vindictive intent, but because he had not received "due process" in the foreclosure action; because the plaintiff had fined him without reliance upon its own rules; because the plaintiff had sued his brother and sister; because he had not been invited to attend condominium association meetings; because the plaintiff had instituted a second foreclosure action against him that was subsequently withdrawn; or because the entire foreclosure action had been brought against him by the plaintiff "based on fraud." (Tes. Redman.) Those issues had been sufficiently addressed in the Foreclosure Memorandum of Decision, which was resolved in favor of the plaintiff. See #116, foreclosure action, and Part I, above; see also Part III, below. Although the defendant also claimed that he brought the tort/bad faith lawsuit because he lacked effective legal representation in the foreclosure action, even if that subject was appropriate for the court's consideration, the evidence was insufficient to permit the court to make any related factual findings.
Taken as a whole, the evidence is sufficient to establish that the defendant's "motivating intent or design" in the pursuit of his tort claim was "to harm the plaintiff . . ." all fulfilling the requisite legal measure of "malicious intent" in the context of the pending vexatious litigation action. See § 52-568(2); Venturi v. Savitt Inc., supra, 191 Conn. 593; Proto v. Bridgeport Herald Corporation, supra, 136 Conn. 564.
III DEFENDANT'S ANSWER AND COUNTERCLAIMS
The defendant vigorously asserts that the plaintiff acted fraudulently in bringing the original foreclosure action against him without advising the trial court of a particular condominium association rule change; he claims that his own opinion on this subject, with the other evidence, is sufficient to support a finding of fraud so as to justify an award of damages on his behalf in the course of the pending litigation. (Tes Redman.) The defendant has also presented the court with three counterclaims; he bears the burden of proving a counterclaim by a fair preponderance of the evidence. See Holmes v. Holmes, supra, 32 Conn.App. 318; Coster v. Duquette, supra, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. UWY-CV07-5005297 S.
The court finds that the defendant has failed to meet his burden of proof on any of the counterclaims at issue. In addition, the defendant has clearly admitted that the issues he has raised through his counterclaims are "substantially" the same as those issues and arguments he has previously presented "several times" before other tribunals, and that he "certainly raised them in [his Appellate] brief." (Tes. Redman.) At trial, the defendant moreover admitted that he had previously "more or less summarized" the present counterclaim related to allegations of the plaintiff's fraud through his Motion to Open as of Right (#144, foreclosure action), which was effectively resolved, along with his amended motion to open (#146, foreclosure action), in favor of the plaintiff (#153, Tes. Redman.) As such, these issues are not properly before the court, and the defendant cannot prevail on his counterclaims.
The defendant acknowledges that the counterclaim issues and the defendant's "argumentation [which] is the same" had been previously presented to the court through his defense to the foreclosure action, his prosecution of the underlying defendant's tort/bad faith lawsuit, and his unsuccessful pursuit of further remedy at the Appellate Court. (Tes. Redman.) The court notes the following trial colloquy between plaintiff's counsel and the defendant (Tr. 3/4/09).
COUNSEL: So with regards to the claims you're making in your countersuit, you've raised them in the appeal, you raised them in the lawsuit entitled Redman v. Meadows Condominium, CV054002799, and now you're raising them here again today; is that correct?
MR. REDMAN: That's correct.
In the absence of appropriate authority, the court declines to adopt the defendant's proposed conclusion that even though they have been previously litigated, because his counterclaim allegations are based on fraud, principles of "res judicata" do not apply in this case. See, e.g., Rodriguez v. Saucier, 108 Conn.App. 599, 602, 948 A.2d 1067 (2008), citing Powell v. Infinity Ins. Co., 282 Conn. 594, 601-02, 922 A.2d 1073 (2007) ("The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.").
A COUNTERCLAIM — COUNT 1
Entitled "COUNT 1," the defendant's first counterclaim essentially contests the results of the prior litigation between the parties. The defendant alleges that the plaintiff, with others, "did illegally and improperly pervert the legal process to obtain an unjust result. In a succession of lawsuits (CV-03-0100941-S —, CV-05-4003095-S — and the instant suit . . .) the Meadows Condominium Association and its agents . . . did, with malice and ill intent, falsely charge John Redman with violating one or more Bylaws, Regulations and Documents of the Association for the purpose of transferring ownership of his unit to another because he had become `troublesome' to the management of the association." (#103, Count 1, vexatious litigation action.) He further alleges that the foreclosure judgment was the result of "[f]raud . . . used in the submission of every single filing of the Plaintiff Association . . . The fraud consisted of misrepresenting the Bylaws, Rules and Documents to the court . . . Such behavior is prima [facie] violation of the R.I.C.O. act." (#103, Count 1, vexatious litigation action.) The defendant seeks treble damages from the plaintiff as the result of this conduct.
This first counterclaim presents allegations and assertions that are inapposite or inapplicable to the vexatious litigation complaint. There is insufficient evidentiary or legal basis to support the defendant's claim that because it was based upon false statements and other events the defendant considers to be fraudulent in nature, "Judge Silbert's decision [in the foreclosure action], however arrived at, has no meaning or precidental (sic) standing." (#103, vexatious litigation action.) Moreover, the defendant's allegations concerning fraudulent and/or misleading conduct on the part of the plaintiffs, directed at him and/or at the court, were raised in the defendant's tort/bad faith lawsuit which was concluded through the December 2006 judgment of dismissal. (#133, defendant's tort/bad faith lawsuit; see also Tes. Barba.) This aspect of the defendant's counterclaim was also resolved against him through the previously referenced Memorandum of Decision re Defendant's Motion to Open filed on October 29, 2007, which denied the relief sought by the defendant. (#153, foreclosure action.) The defendant's counterclaim allegations were furthermore the subject of the trial court's repeated denials of his motion to open the judgment dismissing the defendant's tort/bad faith claim litigation. The history of the litigation between the parties, and the responsive rulings issued by the court, require the determination that the defendant's first counterclaim are not properly before the court and therefore cannot protect him from judgment in this vexatious litigation action.
That Memorandum of Decision addresses the defendant's argument that the plaintiff committed fraud by amending the condominium association bylaws "by adding a comma following a certain clause," by failing to inform the court of this amendment, and by failing to notify him of certain condominium association meetings in which the imposition of fines upon him was authorized. Memorandum of Decision re Defendant's Motion to Open (#153, foreclosure action). The court denied the defendant's motion to open because he had "failed to identify any false statements by the plaintiff that induced the court to wrongfully enter judgment on behalf of the plaintiff." Id.
Even if the allegations and assertions presented in the first counterclaim were applicable to the pending matter, the defendant has failed to meet his relevant burden of proof. See Holmes v. Holmes, supra, 32 Conn.App. 318; Coster v. Duquette, supra, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. UWY-CV07-5005297 S. There was no evidence from which the court could conclude that the plaintiff has, at any time, engaged in any intentional acts or omissions, "with malice and ill intent," or that it made false, misleading statements; there has been no evidence from which the court could reasonably conclude that if such acts or omissions occurred antecedent to or in connection with either the foreclosure action or the defendant's tort/bad faith litigation. (#103, vexatious litigation action.) In the present case, as in the foreclosure action, the defendant has "failed to identify any false statements by the plaintiff" that were in any way material to the foreclosure action or to any other relevant events. Memorandum of Decision re Defendant's Motion to Open (#153, foreclosure action). He has not sufficiently identified any statements that, in any way, "induced the court to wrongfully enter judgment on behalf of the plaintiff." Id. Despite his protests and arguments, then, the defendant has not proved the existence of any statements that served as probable cause for pursuing his tort/bad faith lawsuit. See Part II.B. Under all these circumstances, the assertions in Count 1 of the counterclaim provide no basis for allotting relief to the defendant.
B COUNTERCLAIM — COUNT 2
The defendant's second counterclaim is entitled "COUNT 2-Fraud (on behalf of the State of Connecticut)." (#103, Count 2, vexatious litigation action.) This count claims essentially that the plaintiff presented "a series of false, misleading statements" to and/or withheld pertinent information from the court during the litigation of the foreclosure action, thereby perpetuating a fraud upon the court that prevented the rendition of a valid judgment against him. (#103, Count 2.a., vexatious litigation action.) Specifically, this claim now asserts that during the 2004 foreclosure action, the plaintiff told the court that the defendant had violated a rule "against keeping trailers on the property," knowing that this rule was ambiguous, and nonetheless "proceeded to knowingly prosecute [him] for violating a defective rule." (#103, Count 2.b., vexatious litigation action.) The defendant further asserts that the plaintiff "KNEW at all times that these statements were falsehoods and that the lack of the withheld facts would be relied on by the court," all of which caused him to lose his property rights. (Emphasis in the original.) Id. In addition, the plaintiff claims that the court "was damaged by the misrepresentation and suffered by the FRAUD committed by Plaintiff . . ." insofar as the Meadows Condominium Association failed to provide him with notice of which his ostensible rule violations were the subject.) (#103, Count 2.c., vexatious litigation action.)
At trial, the defendant explained: "Well, [plaintiff's counsel] more or less is trying to indicate that if someone rules — a government body rules that black is white that I should take their word for it. I don't believe that I'm bound to take anybody's word for it when I see fraud and I allege fraud and I've got all these issues, changing the [condominium association] rule, ex post facto imposition of [parking] fine, not inviting me to a meeting. I believe that's still fraud and fraud vitiates all rulings of any court.
"There's no long standing ruling of any court that can stand in the way of fraud no matter who made it, no matter what the circumstances, if it's the Supreme Court of the United States. It has no res judicata value. It's got no value at all." (Tr. 3/4.09.)
The court is constrained to again find that the allegations of this counterclaim are inapposite to the pending vexatious litigation complaint. The trial court's judgment of foreclosure after hearing, the affirmance issued by the Appellate Court, the dismissal of the defendant's tort/bad faith litigation in favor of the plaintiff, and the trial court's decisions not to open those judgments support the conclusion that the allegations in this second counterclaim are untimely, previously resolved, and provide no basis for relief in the context of the pending vexatious litigation complaint. Even if this counterclaim was appropriately raised in response to the plaintiff's vexatious litigation lawsuit, the defendant has failed to meet his burden of proving these assertions by the preponderance of the evidence. See Holmes v. Holmes, supra, 32 Conn.App. 318; Coster v. Duquette, supra, Superior Court, Judicial District of Waterbury at Waterbury, Docket No. UWY-CV07-5005297 S. Therefore, the defendant cannot prevail on Count 2 of his counterclaim.
C COUNTERCLAIM — COUNT 3
The defendant's third and final counterclaim is entitled "COUNT 3 — Intentional infliction of emotional distress." In this count, the defendant effectively alleges that the plaintiff's acts or omissions with regard to withholding information from the court and/or making false and misleading statements during the foreclosure action "were undertaken intentionally and with reckless disregard . . . The conduct was outrageous, intolerable and unlawful." (#103, Count 3, vexatious litigation action.)
To establish a claim of intentional infliction of emotional distress, a party must plead and prove the four conjunctive elements: "`(1) that the [plaintiff] intended to inflict emotional distress or that [it] knew or should have known that emotional distress was the likely result of [its] conduct; (2) that the conduct was extreme and outrageous; (3) that the [plaintiff's] conduct was the cause of the [defendant's] distress; and (4) that the emotional distress sustained by the [defendant] was severe.' (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568, 922 A.2d 280, cert., denied, 284 Conn. 910, 931 A.2d 935 (2007). `Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . [I]t is the intent to cause injury that is the gravamen of the tort.' (Internal quotation marks omitted.) Id., 569." Davis v. Davis, 112 Conn.App. 56, 65-66, 962 A.2d 140 (2009).
Even if the defendant had properly raised this issue before the court, there is insufficient evidence from which the court could reasonably conclude that the plaintiff, at any time, engaged in intentional infliction of emotional distress as defined at law. See Part III.B., above. The defendant has failed to provide direct or circumstantial evidence sufficient to enable the court to conclude that the Meadows Condominium Association at any time either intended to inflict emotional distress upon it, or that it knew or should have known that emotional distress was the likely result of its conduct. The evidence is further insufficient to establish that any acts or omissions on the part of plaintiff were in any way extreme and outrageous under the circumstances of this case. Even if the evidence is sufficient to prove this element of intentional infliction of emotional distress, there is inadequate evidence to support a reasonable finding that the plaintiff's behavior in any way caused an effect upon the defendant that was serious or severe in nature or extent.
In reaching its conclusion as to the third counterclaim, the court acknowledges the vigor with which the defendant protests this litigation, and notes the allegations of intentional misconduct and consequent damages were placed at issue his tort/bad faith lawsuit. Even as the court found on December 13, 2006 that the defendant had failed to make out a prima facie case in support of his 2005 allegations, the court finds that the evidence submitted in the course of the pending vexatious litigation action fails to support this aspect of the defendant's counterclaim. Under these circumstances, the defendant cannot prevail on Count 3 of his counterclaims. Davis v. Davis, supra, 112 Conn.App. 65.
IV AWARD OF DAMAGES TO PLAINTIFF
As found in Part III, the defendant has not met his burden of proof on any of the counterclaims. In contrast, as found in Part II, the plaintiff has met its burden of proving the operative allegations of its vexatious litigation complaint: termination of the prior action in its favor, lack of probable cause for the pursuit of the defendant's tort/bad faith lawsuit, and legal malice on the defendant's part in bringing that suit. The plaintiff has therefore established not only grounds sufficient for the court to award damages for vexatious litigation, but has also met its burden of proving the necessary "basis for higher damages" than those for which it would be eligible if the element of malice had not been proved. Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554. Accordingly, the plaintiff is entitled to an award of attorneys fees as punitive damages, as requested. Stohlts v. Gilkinson, 87 Conn.App. 634, 646, 867 A.2d 860 (2005). Moreover, the plaintiff is entitled to treble this award of damages due to the sufficient proof of legal malice related to the defendant's pursuit of his underlying tort/bad faith lawsuit. See § 52-568.
"Generally, attorneys fees may not be recovered, either as costs or damages, absent contractual or statutory authorization . . . Attorneys fees may be awarded, however, as a component of punitive damages." (Emphasis added.) Stohlts v. Gilkinson, supra, 87 Conn.App. 634, 646. In Connecticut, "[p]unitive damages are permissible in a vexatious suit action." DeLaurentis v. New Haven, supra, 220 Conn. 267 n. 26, citing Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). However, "`[a]n award of attorneys fees is not a matter of right. Whether any award is to be made and the amount thereof lie within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case . . . A court has few duties of a more delicate nature than that of fixing counsel fees . . .' (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Owen, 88 Conn.App. 806, 816, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005)." Bobinski v. Kalinowski, 107 Conn.App. 622, 628, 946 A.2d 283 (2008).
"Our Supreme Court has long `held that there is an undisputed requirement that the reasonableness of attorneys fees and costs must be proven by an appropriate evidentiary showing . . . We also have noted that courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described . . . and that [c]ourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorneys fees.' (Citations omitted; internal quotation marks omitted.) Smith v. Snyder, 267 Conn. 456, 471, 839 A.2d 589 (2004). The court is permitted to assess the reasonableness of the fees requested using any number of factors, including its general knowledge of the case, sworn affidavits or other testimony, itemized bills and the like . . . [T]he value of [reasonable attorneys fees] is based on many considerations.' (Internal quotation marks omitted.) Id., 480." Bobinski v. Kalinowski, supra, 107 Conn.App. 629.
In the present matter, the complaint provided the defendant with ample notice that the plaintiff sought damages by way of "legal fees and expenses in the amount of $9,209.12." (#102, ¶ 8, vexatious litigation action.) In addition, the appended demand for relief put the defendant on notice that the plaintiff was requesting an award of treble damages in view of the vexatious litigation that had been pursued through the defendant's tort/bad faith claim. (#102, vexatious litigation action.)
At trial, the court received credible and reliable evidence establishing that the plaintiff's attorneys commenced work in defense of the defendant's tort/bad faith lawsuit on August 8, 2005 and continued work on related issues through and including October 16, 2007. (Ex. 4; Tes. Barba.) The plaintiff incurred a total of $8,555.35 in reasonable attorneys fees related to its response to the defendant's tort/bad faith lawsuit and the defendant's efforts at opening the judgment of dismissal for failure to make out a prima facie case. (Ex. 4; Tes. Barba.) (#134, #135 defendant's tort/bad faith lawsuit.) Using the afore-referenced measure, based on the evidence adduced at trial, the court finds that attorneys fees were fair and reasonable as charged, and that this amount serves as an appropriate measure of punitive damages. (Ex. 4, Tes. Barba.) See Bobinski v. Kalinowski, supra, 107 Conn.App. 629.
The court credits the testimony establishing that Exhibit 4 accurately reflects $8,555.35 as the total amount of legal fees incurred by the Meadows Condominium Association in defense of the tort/bad faith lawsuit. (Tes. Barba.) Exhibit 4 also reflects a charge to the plaintiff of $474.35 representing related legal expenses, albeit not legal fees, for court reporter's services.
Moreover, as found in Part II.C., above, the plaintiff has fully met its burden of proving the element of legal malice requisite to imposition of an award of treble damages, such as that sought in this matter. The plaintiff is entitled to an underlying award of $8,555.35 representing the attorneys fees necessitated by the defendant's pursuit of the tort/bad faith lawsuit and his consequent motion to open the judgment of dismissal, as described herein. The plaintiff having proved a sufficient evidentiary basis for this underlying award, and having proved the defendant's relevant legal malice, it is entitled to a total award of $25,666.05, representing three times the underlying damage amount.
In anticipation of this award, the plaintiff has asked the court to order "that the funds held by the Clerk's Office be released to the law firm of Alexander Crow, LLC for disbursement pursuant to the requested judgment on the Plaintiff's complaint." (#119.5, vexatious litigation action.) The court file reflects that an order granting a prejudgment remedy was issued by the court (McWeeny, J.) in the vexatious litigation case on February 5, 2007 (#100.30, vexatious litigation action). This order expressly permits the plaintiff to "attach to the value of $30,000.00, without interest and costs, the personal property (Docket No. MMX CV03-100941-S) of the defendant held by the Clerk of the Superior Court at Middletown." (Emphasis added.) Id. The order thus references property held in the foreclosure action, which is not presently before the court. Accordingly, while entering judgment in the plaintiff's favor, the court declines at this time to further respond to this aspect of the plaintiff's argument.
IV
CONCLUSION
The court has found that the defendant commenced and prosecuted the underlying tort/bad faith lawsuit, known as John W. Redman v. Meadows Condominium Association et al., Docket No. MMXCV054002799S, without probable cause; that the matter was terminated unsuccessfully for the present defendant and in favor of the present plaintiff; and that the defendant brought his tort/bad faith lawsuit with the legally malicious intent to unjustly to vex and trouble the plaintiff. Accordingly, the defendant shall pay the plaintiff the treble damages contemplated by such cases as Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554, citing § 52-568. See also Falls Church Group, Ltd. v. Tyler, Cooper Alcorn, LLP, supra, 281 Conn. 94; Somers v. Chan, supra, 110 Conn. App. 541-42. Damages are measured by trebling the attorneys fees expended by the prevailing party in the defense of the underlying, terminated matter, an amount here proved to be $25,666.05.
WHEREFORE, judgment shall enter for the plaintiff and against the defendant in the amount of $25,666.05, plus taxable court costs.