Bernhard-Thomas Bldg. Systems v. Dunican, 27465.

• Decision Date: 20 March 2007
• Docket Number: No. 27465.,27465.
• Court: Connecticut Court of Appeals
• Parties: BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. Chet DUNICAN et al.

918 A.2d 889

100 Conn.App. 63

BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. Chet DUNICAN et al.

No. 27465.

Appellate Court of Connecticut.

Argued November 16, 2006.

Decided March 20, 2007.

Alan R. Spirer, Westport, for the appellant (plaintiff).

Richard A. Roberts, with whom was Jennifer J. Cavalier, Cheshire, for the appellee (defendant Jacques J. Parenteau).

SCHALLER, GRUENDEL and MIHALAKOS, Js.

SCHALLER, J.

The plaintiff, Bernhard-Thomas Building Systems, LLC, appeals from the judgment of the trial court rendered in favor of the defendant Jacques J. Parenteau.¹ On appeal, the plaintiff claims that the court improperly struck four counts of its complaint. We affirm the judgment of the trial court.

In its operative complaint, the plaintiff alleged the following facts that are relevant to the issues on appeal.² The plaintiff employed Chet Dunican from April, 2002, until February, 2004, as an at-will employee. On December 19, 2003, the defendant, an attorney licensed to practice in Connecticut, filed an application for a prejudgment remedy on behalf of Dunican against the plaintiff in the amount of $3.5 million. The court, Leuba, J., held a hearing over the course of several days and on March 10, 2004, denied the application. Specifically, the court stated that it had applied the probable cause standard and concluded that Dunican had failed to sustain his burden with respect to any of his claims. Following the denial of the application for a prejudgment remedy, Dunican withdrew his claims against the plaintiff.

The plaintiff commenced the present action and alleged that it had expended substantial attorney's fees in response to Dunican's application. The plaintiff filed a nine count complaint against both Dunican and the defendant.³ Counts five and six of the complaint alleged that the defendant had violated General Statutes § 52-568(1) and (2). Count seven set forth a cause of action for common-law vexatious litigation. Count eight alleged an abuse of process by the defendant. These counts were based on the defendant's filing of the application for a prejudgment remedy and sending a copy of the application to the Weitz Company, the plaintiff's largest client, in order "to vex and trouble the [p]laintiff" and "to attempt to pressure the [p]laintiff to pay money" to Dunican. The plaintiff further alleged that the defendant and Dunican indicated that if it refused to pay Dunican money, Dunican would reveal embarrassing information regarding "members" of the plaintiff and their families.

The defendant moved to strike the counts against him by a motion filed August 24, 2005. On January 18, 2006, the court, Hon. David W. Skolnick, judge trial referee, granted the motion and struck the counts against the defendant.⁴ With respect to the claims of statutory and common-law vexatious litigation, the court concluded that an application for a prejudgment remedy did not constitute a civil action that terminated in favor of the plaintiff, a necessary element to the tort of vexatious litigation. With respect to the cause of action for abuse of process, the court stated that the allegations contained in the complaint failed to establish that the defendant's actions "were in furtherance of a primary purpose other than to secure a prejudgment remedy. Rather, these allegations merely show that an ulterior motive existed."

Pursuant to Practice Book § 10-44, the defendant, on February 7, 2006, moved for judgment on the stricken counts against him.⁵ The court granted this motion, without objection, on February 27, 2006. This appeal followed. Additional facts will be set forth as necessary.

As an initial matter, we identify the appropriate standard of review. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [defendants' motion] is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Indeed pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 88 Conn.App. 1, 4-5, 868 A.2d 69 (2005), aff'd, 280 Conn. 310, 907 A.2d 1188 (2006); see also Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006); Heim v. California Federal Bank, 78 Conn.App. 351, 358-59, 828 A.2d 129, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003). We will address each of the stricken counts in turn.

I

The plaintiff first claims that the court improperly struck counts five, six and seven of its operative complaint. Specifically, the plaintiff argues that the court improperly concluded that the application filed by the defendant on behalf of Dunican for a prejudgment remedy did not constitute a "prior civil action," which is an element of vexatious litigation. We disagree.

We begin our discussion by setting forth the elements of the common-law tort of vexatious litigation. Our Supreme Court has stated: "In a malicious prosecution or vexatious litigation action, it is necessary to prove want of probable cause, malice and a termination of [the] suit in the plaintiffs' favor. . . . [Establishing] a cause of action for vexatious suit requires proof that a civil action has been prosecuted not only without probable cause but also with malice. . . . It must also appear that the litigation claimed to be vexatious terminated in some way favorable to the defendant therein." (Citations omitted emphasis added; internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 538, 457 A.2d 656 (1983); Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.1991) § 162, p. 432.

We now identify the elements of statutory vexatious litigation. Section 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." This court has stated that "[t]he elements of a common-law or statutory cause of action for vexatious litigation are identical." Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 596, 715 A.2d 807 (1998); see also Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9 (1903); Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 766-67, 886 A.2d 1248 (2005); Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn.App. 459, 467, 874 A.2d 266 (2005), aff'd, 281 Conn. 84, 912 A.2d 1019 (2007); Shurman v. Duncan, 14 Conn.Supp. 293, 294 (1946).⁶ The question, therefore, is whether the court properly concluded that a prejudgment remedy⁷ is not a civil action⁸ for purposes of vexatious litigation.

At the outset of our analysis, we note that this appears to be a question of first impression for the appellate courts of our state.⁹ We note, however, that prior cases, although not precisely on point with the present issue, provide us with guidance. For example, in Howard v. Robertson, 27 Conn.App. 621, 623, 608 A.2d 711 (1992), the plaintiff had refused to pay a balance owed to the defendant, who had constructed a house for her. The defendant filed a counterclaim and was awarded damages on February 3, 1986. Id. On January 10, 1989, the plaintiff filed an application for a prejudgment remedy and intended to file a petition for a new trial on the basis of her discovery of previously undetectable defects in her home. Id. Following a hearing, the court denied the application for a prejudgment remedy. Id. The plaintiff did not file the petition for a new trial until April 17, 1989, more than three years after the conclusion of the original trial. Id., at 124, 608 A.2d 711.

The defendant successfully moved for summary judgment on the ground that the petition for a new trial was filed outside of the applicable three year statute of limitations. Id. We affirmed the judgment. "[A] writ of summons is a statutory prerequisite to the commencement of a civil action. . . . [I]t is an essential element to the validity of the jurisdiction of the court . . . . Although the writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . the plaintiff's complaint must contain the basic information and direction normally included in a writ of summons. . . . A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court. . . .

"[T]he writ accompanying the prejudgment remedy documents did not specify a return date by which the defendant would have to file an appearance. This is a necessary component of a writ by which a civil action is commenced. General Statutes § 52-45a. Although the documents served on the defendant were sufficient to give notice of a prejudgment remedy hearing, they were insufficient to serve as the basis for a petition for new trial. Contrary to the plaintiff's assertions, the prejudgment remedy documents are not the equivalent of...