Vandersluis v. Weil

• Decision Date: 19 December 1978
• Citation: 176 Conn. 353,407 A.2d 982
• Court: Connecticut Supreme Court
• Parties: John P. VANDERSLUIS v. Steve WEIL et al.

Page 982

407 A.2d 982

176 Conn. 353

John P. VANDERSLUIS v. Steve WEIL et al.

Supreme Court of Connecticut.

Argued Oct. 17, 1978.

Decided Dec. 19, 1978.

Melvin J. Silverman, Norwalk, with whom, on the brief, was Miklos P. Koleszar, East Norwalk, for appellants (defendants).

Francis G. Pennarola, Danbury, with whom, on the brief, was Edward J. Gallagher, Danbury, for appellee (plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

Steve Weil, hereinafter designated as the defendant, initiated suit against John P. Vandersluis, hereinafter designated as the plaintiff. That action terminated with a judgment in favor of the plaintiff. The plaintiff then brought the present case in the nature of a claim of vexatious action against the defendant ¹ and his counsel. The jury found the issues for the plaintiff against the defendant only and awarded damages of $12,000. The defendant has appealed from the judgment rendered.

Evidence adduced at the present trial established the following: The plaintiff is the owner of a dwelling and land on Candlewood Isle in the town of New Fairfield. The defendant owned an abutting lot. The plaintiff first met the defendant in 1968, when the defendant was removing rocks from the plaintiff's property. The plaintiff had intended to use these rocks for a seawall. The next time they met was in the spring of 1969, when the defendant showed the plaintiff the plans for a house he intended to build on his property. Sometime later in 1969 they discussed the defendant's plans for a well for his lot. On that occasion the plaintiff stated that the well might be too close to a neighboring septic system. In June, 1970, the defendant told the plaintiff that he was having trouble placing his septic system on his property because of the proximity of the plaintiff's well to the property line. The defendant inquired if he could purchase the plaintiff's well. The plaintiff declined the offer. On July 30, 1970, the defendant asked the plaintiff if he would sign a waiver of distance between the defendant's septic system and the plaintiff's well. The plaintiff refused. The defendant then stated, "I built many homes in that area, and I managed to get around worst obstacles. But I tried to be nice to you, but if I have to fight bullets with bullets, I will."

In early August, 1970, the defendant instituted suit against the plaintiff alleging that the plaintiff interfered with the defendant's contract rights by threatening and harassing two individuals and their corporations, that is, Miles Harris of Sanitary Wells, Inc., and Philip Mazzuca of Danbury Septic Tank Service, making it impossible for them to perform their contract with the defendant. The complaint and amended complaint were drawn by Attorney Mark F. Gross, who was also a defendant in the present action and who relied on the facts related to him by the defendant. The action brought by the defendant terminated on March 22, 1972, with a judgment in favor of the plaintiff.

The complaint in this action is not brought under General Statutes § 52-568 allowing treble damages for a vexatious suit but is brought for compensatory damages that were suffered by the plaintiff.

A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. 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. Calvo v. Bartolotta, 112 Conn. 396, 397, 152 A. 311; Schaefer v. O. K. Tool Co., 110 Conn. 528, 148 A. 330. Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action. Paranto v. Ball, 132 Conn. 568, 571, 46 A.2d 6; McGann v. Allen, 105 Conn. 177, 186, 134 A. 810. Malice may be inferred from lack of probable cause. Zenik v. O'Brien, 137 Conn. 592, 596-97, 79 A.2d 769; Thompson v. Beacon Valley Rubber Co., 56 Conn. 493, 496, 16 A. 554. The want of probable cause, however, cannot be inferred from the fact that malice was proven. McGann v. Allen, supra, 105 Conn. 187, 134 A. 810.

The defendant claims that the former suit was initiated with probable cause at the time the action was brought and therefore the trial court should have set the verdict aside. "The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause, is always a question of law." Brodrib v. Doberstein, 107 Conn. 294, 296, 140 A. 483, 484. And, as previously stated, want of probable cause may not be inferred from proof of malice. McGann v. Allen, supra, 105 Conn. 187, 134 A. 810.

Evidence was produced that the plaintiff made no threats to either the well digger or the septic system contractor. Neither of those workmen told the defendant that they were threatened, harassed or prevented from doing work by the plaintiff. The well digger did not install the well at the time because of personal problems and the septic system contractor did not install the system because he was never authorized to proceed in that project by the defendant. These facts and circumstances, which the jury could have found were known or should have been known by the defendant, establish that the defendant had no knowledge sufficient to justify a reasonable person in instituting an action against the plaintiff. Moreover, the jury could have found that the defendant told his attorney that the plaintiff did threaten and prevent each of those persons from installing the facilities for which the defendant had contracted. The court was not in error in refusing to set aside the verdict in that regard.

The defendant next claims that the verdict was excessive. From the evidence presented, it is apparent that the lawsuit brought by the defendant caused quite an upheaval in the plaintiff's life. While it was pending, the plaintiff was extremely upset and unable to sleep. The situation created marital strife. The attachment of his property and bank account caused considerable worry in view of his company's regulation concerning attachments and garnishment. He had to borrow money to pay his bills and worried about his checks bouncing. The plaintiff, who was an airline pilot, had to rearrange his flight schedule many times in order to consult his attorney and to attend court. His attorney's bill was $1250, his investigator's bill was $207.36 and a deposition fee was $128.74.

"The amount of the award is a matter within the province of the trier of the facts. Slabinski v. Dix, 138 Conn. 625, 629, 88 A.2d 115; Gondek v. Pliska, 135 Conn. 610, 617, 67 A.2d 552 . . . Then too, denial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration. Adams v. Mohican Hotel, 124 Conn. 400, 403, 200 A. 336; Ganter v. MacKay, 120 Conn. 691, 692, 180 A. 310 . . . It is with these principles in mind that this court must examine the defendant's claim that the amount of the verdict is exorbitant and unjust in the light of all the evidence. Such a claim raises a question of law. The issue here is not whether this court would have awarded more or less. It is whether the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to offend the sense of justice and compel a conclusion that the jury were influenced by partiality, prejudice or mistake." Gorczyca v. New York, N. H. & H. R. Co., 141 Conn. 701, 703, 109 A.2d 589, 591. With these principles in mind, it cannot be held that the damages awarded were excessive.

The defendant further claims that the court was in error in its charge regarding damages in that it instructed the jury that punitive or exemplary damages were recoverable.

Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825; Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220; Hall v. Smedley Co., 112 Conn. 115, 119, 151 A. 321. If awarded, they are restricted to cost of litigation less taxable costs of the action being tried and not that of any former trial. Collens v. New Canaan Water Co., supra, 155 Conn. 488, 234 A.2d 825; ...