Bernhard-Thomas Bldg. Systems v. Dunican
Decision Date | 22 April 2008 |
Docket Number | No. 17899.,17899. |
Citation | 944 A.2d 329,286 Conn. 548 |
Court | Connecticut Supreme Court |
Parties | BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. Chet DUNICAN et al. |
Alan R. Spirer, Westport, for the appellant (plaintiff).
Richard A. Roberts, with whom, on the brief, was Jane S. Bietz, Cheshire, for the appellee (defendant Jacques J. Parenteau).
ROGERS, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.
The dispositive issue in this certified appeal is whether the Appellate Court properly concluded that a prejudgment remedy application is not a civil action for purposes of a subsequent claim for the tort of vexatious litigation. We agree that such an application is not a civil action for purposes of a subsequent claim for vexatious litigation, and accordingly, we affirm the judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the following facts and the relevant procedural history. "The plaintiff [Bernhard-Thomas Building Systems, LLC] employed [the named defendant] Chet Dunican1 from April, 2002, until February, 2004, as an at-will employee. On December 19, 2003, the defendant [Jacques J. Parenteau, an attorney representing Dunican] filed an application for a prejudgment remedy on behalf of Dunican against the plaintiff in the amount of $3.5 million [in anticipation of a wrongful discharge litigation against the plaintiff]. 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. . . .
Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63, 65-67, 918 A.2d 889 (2007). The plaintiff's appeal to the Appellate Court followed.
In that appeal, the plaintiff claimed that the trial court improperly had granted the defendant's motion to strike four counts of its operative complaint. Specifically, the plaintiff asserted that the trial court had struck counts five through seven of the plaintiff's complaint after "improperly conclud[ing] 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." Id., at 68, 918 A.2d 889. Additionally, the plaintiff claimed that the trial court improperly had struck the eighth count of its amended complaint because "the court improperly concluded that the claims for abuse of process were not predicated on `specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.' " Id., at 76-77, 918 A.2d 889.
The Appellate Court affirmed the decision of the trial court in all respects. Id., at 65, 918 A.2d 889. Specifically, it concluded that the trial court properly had struck counts five through seven of the plaintiff's complaint because the plaintiff had failed to allege an element of the tort of vexatious litigation because the defendant's application for a prejudgment remedy did not commence a civil action. Id., at 76, 918 A.2d 889. The court further concluded that the trial court properly had struck the plaintiff's claim for abuse of process because the operative complaint had "failed to allege that the defendant used legal process, the application for a prejudgment remedy, primarily to accomplish a purpose for which it is not designed." Id., at 78, 918 A.2d 889. This certified appeal followed.5
As a preliminary matter, we set forth the applicable standard of review. (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
The plaintiff contends that the Appellate Court improperly concluded that an application for a prejudgment remedy is not a civil action for the purpose of a subsequent claim for the tort of vexatious litigation. Specifically, the plaintiff asserts that a writ of summons and complaint, which are used to commence a civil action, and an application for a prejudgment remedy "are more alike than they are distinct," and that the substantive import of a civil action and an application for a prejudgment remedy are equivalent. The defendant responds that the relevant statutory scheme, in addition to a number of Connecticut cases, makes it clear that an application for a prejudgment remedy is in fact not a civil action for purposes of a subsequent claim for the tort of vexatious litigation. We agree with the defendant.
We begin with a brief review of the law of vexatious litigation in this state. The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. Verspyck v. Franco, 81 Conn.App. 646, 647, 841 A.2d 267 (2004), rev'd on other grounds, 274 Conn. 105, 874 A.2d 249 (2005); see 8 S. Speiser, C. Krause & A. Gans, American Law of Torts (1991) § 28:20, p. 113 ( . In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action "[require] proof that a civil action has been prosecuted . . . ." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001). Additionally, to establish a claim for vexatious litigation at common law, one must prove "want of probable cause, malice and a termination of suit in the plaintiff's favor." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). The statutory cause of action for vexatious litigation exists under § 52-568,7 and "differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." Id. In the context of a claim for vexatious litigation, "the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991).
Because the prosecution of a civil action is a prerequisite to the filing of a viable vexatious litigation claim, we next consider what is required for the initiation of a civil action in this state. General Statutes § 52-45a provides the following procedure for initiating a civil action: 8 See Practice Book § 8-1(a) (...
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