Elwell v. Kellogg
| Docket Number | AC 45296 |
| Decision Date | 08 August 2023 |
| Parties | LISA ELWELL v. WILLIAM BRADLEY KELLOGG |
| Court | Connecticut Court of Appeals |
1
LISA ELWELL
v.
WILLIAM BRADLEY KELLOGG
No. AC 45296
Court of Appeals of Connecticut
August 8, 2023
Argued March 7, 2023
Procedural History
Action to recover damages for, inter alia, the defendant's alleged vexatious litigation, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, and transferred to the judicial district of Fairfield, where the court, Stevens, J., granted in part the defendant's motion to strike; thereafter, the case was transferred to the judicial district of Stamford-Norwalk, Complex Litigation Docket, where the court, Ozalis, J., granted the defendant's motion for summary judgment, denied the plaintiffs motion for partial summary judgment, and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.
Jay Christopher Rooney, with whom was Meghan Buckley, for the appellant (plaintiff).
Robert C. E. Laney, with whom were Ryan V. Nobile, and, on the brief, Karen L. Allison, for the appellee (defendant).
Prescott, Moll and Cradle, Js.
OPINION
MOLL, J.
The plaintiff, Lisa Elwell, appeals from the judgment of the trial court rendered in favor of the defendant, William Bradley Kellogg. On appeal, the plaintiff principally claims that the court improperly (1) denied her motion for partial summary judgment and granted the defendant's motion for summary judgment directed to count two of her complaint sounding in vexatious litigation and (2) granted the defendant's motion to strike count three of her complaint asserting a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.[1] We affirm the judgment of the trial court.
The following facts, which are undisputed, and procedural history are relevant to our resolution of this appeal. In June, 2012, Allyson Forsythe, the sole owner and president of the Writers' Workshop (Workshop), a company that represents published authors, hired the defendant to represent the Workshop as its attorney in an effort to seek restitution from Jake Elwell,[2] the plaintiffs then husband. Elwell was employed as a literary agent for the Workshop between May, 1998, and sometime prior to June, 2012, and was responsible for, inter alia, collecting from various publishers royalties that were owed to the Workshop. Forsythe hired the defendant to seek restitution from Elwell in the amount of $220,000, which Elwell allegedly embezzled during the course of his employment with the Workshop.
In the fall of 2012, the defendant, Forsythe, and Douglas Tween, Elwell's attorney, exchanged several email communications in which the defendant and Forsythe continually sought from Elwell, through Tween, payments in restitution toward the total amount of $220,000. In December, 2012, Elwell made two separate payments, totaling $28,100, to the Workshop. Thereafter, the defendant made several attempts to secure another payment in restitution or a payment plan from Elwell through Tween; however, by July, 2013, Elwell had neither made another payment nor agreed to a payment plan. On July 17,2013, the defendant communicated via email to Tween that, "[a]s an alternative to litigation," Forsythe, on behalf of the Workshop, would enter "into an arrangement with [Elwell]" in which Elwell, among other things, would (1) sign a promissory note in the amount of $220,000, (2) make monthly payments of $1500 for two years, credited toward the total amount, at which point the principal balance of $184,000 would become due (balloon payment), and (3) secure the note by a mortgage deed in the principal amount of $220,000, executed by both Elwell and the plaintiff in favor of the Workshop on their jointly owned marital home located at 4 Pine Street in Darien.
On July 25, 2013, Elwell signed the promissory note, in which, as is relevant here, he agreed to (1) make
monthly payments of $1500 for two years, totaling $36,000, beginning on August 1, 2013, and ending on August 1, 2015, at which point the balloon payment would become due, and (2) secure the note by executing a mortgage deed on his and the plaintiff's marital home, where the mortgage deed would not be recorded unless Elwell defaulted on either the monthly or balloon payments. On that same day, Elwell and the plaintiff executed a mortgage deed in favor of the Workshop on their marital home.
The plaintiff made the $1500 monthly payments for the two year period set forth in the promissory note.[3]When the balloon payment became due on August 1, 2015, Elwell did not pay it then or at any time thereafter.[4]As a result, on September 3, 2015, the Workshop, through the defendant, commenced an action against Elwell and the plaintiff in which the Workshop, in its operative complaint, sought, inter alia, to foreclose the mortgage on their marital home. See The Writers' Workshop, Inc. v. Elwell, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-15-6026560-S (foreclosure action).
The foreclosure action was tried to the court, Hon. David R. Tobin, judge trial referee, over the course of seven nonconsecutive days beginning on May 23, 2017, and concluding on September 8, 2017. The defendant was the Workshop's sole attorney in the foreclosure action until the first day of trial on May 23, 2017, when another attorney, Robert A. Lacobelle, filed an appearance on behalf of the Workshop in addition to the defendant.[5] Thereafter, on June 29, 2017, Lacobelle filed an appearance on behalf of the Workshop in lieu of the defendant.
On November 30, 2017, while the foreclosure action was pending, the plaintiff filed a voluntary chapter 13 petition for bankruptcy in the United States Bankruptcy Court for the District of Connecticut,[6] which triggered an automatic bankruptcy stay in the foreclosure action pursuant to 11 U.S.C. § 362.[7] On December 7,2017, while the automatic stay was in effect, the trial court issued its memorandum of decision in the foreclosure action (December 7, 2017 decision), in which it ordered a foreclosure only as to Elwell's interest in the marital home, which he had quitclaimed to the plaintiff in 2016.[8]See footnote 4 of this opinion. On August 10, 2018, the plaintiff filed in the Bankruptcy Court a motion for relief from the automatic stay. On August 20, 2018, the Bankruptcy Court issued a written order granting relief to the plaintiff from the automatic stay, permitting her "to exercise [her] rights, if any, with respect to a final judgment in [the foreclosure action] in accordance with applicable nonbankruptcy law . . . ."[9] On August 22, 2018, the plaintiff filed a notice of relief from the bankruptcy stay in the foreclosure action.
On September 28, 2018, Forsythe, on behalf of the
Workshop, and the plaintiff entered into a settlement agreement, in which, relevant here, the Workshop agreed to release the plaintiff from the mortgage deed and to withdraw the foreclosure action as to both Elwell and the plaintiff. Forsythe also agreed to cooperate in a "companion case" to be brought by the plaintiff against the defendant, and, in doing so, to waive any attorney-client privilege between Forsythe and the defendant regarding the defendant's professional conduct during the relevant period. In addition, on September 28, 2018, Forsythe, on behalf of the Workshop, and the plaintiff, also entered into a "stipulation to enter final judgment," in which they stipulated, inter alia, that the foreclosure court may enter a final judgment "as to the claims by or between [the Workshop] and [the plaintiff] only."
On October 22, 2018, the defendant filed in the foreclosure action a motion for permission to be made a party for the limited purpose of filing an appeal from the December 7, 2017 decision.[10]
On October 31, 2018, while the foreclosure action remained pending, the plaintiff commenced the present action against the defendant by way of a four count complaint. The plaintiff asserted claims for abuse of process (count one), statutory vexatious litigation under General Statutes § 52-568 (count two), violation of CUTPA (count three), and civil conspiracy (count four). Most relevant to this appeal, with respect to her vexatious litigation claim, the plaintiff alleged that the defendant had commenced the foreclosure action against her without probable cause and with malice.
On November 26, 2018, the plaintiff filed in the foreclosure action an amended motion for stipulated judgment.[11] On the same day, the court, Genuario, J., granted the plaintiffs motion and rendered judgment in accordance with the stipulation. On December 18, 2018, the court denied the defendant's motion for permission to be made a party to the foreclosure action.[12]On February 4, 2019, the Workshop withdrew the foreclosure action in its entirety.
On July 23, 2019, the defendant filed in the present action a motion, accompanied by a supporting memorandum of law, seeking to strike count three of the plaintiffs complaint asserting a violation of CUTPA. On August 22, 2019, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. On September 23,2019, the defendant filed a reply memorandum. On September 27, 2019, with leave of the court, Stevens, J., the plaintiff filed a surreply memorandum. On January 16, 2020, the court issued a memorandum of decision striking count three of the plaintiffs complaint.[13] On February 5, 2020, the defendant filed a motion for judgment on the stricken third count, contending that the plaintiff had failed to file a new pleading within fifteen days after the court had stricken that
count. See Practice Book § 10-44 ("in those instances where . . . any count in a complaint . . . has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within [fifteen days after the granting of any motion to strike], the judicial authority may, upon motion, enter judgment against...
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