Lichaj v. Sconyers

• Decision Date: 01 March 2016
• Docket Number: AC 37214
• Court: Connecticut Court of Appeals
• Parties: CHESTER LICHAJ ET AL v. J. MICHAEL SCONYERS ET AL

CHESTER LICHAJ ET AL v. J. MICHAEL SCONYERS ET AL

AC 37214

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued October 26, 2015

March 1, 2016

Beach, Keller and West, Js.

(Appeal from Superior Court, judicial district of Litchfield, Pickard, J.)

John R. Williams, for the appellants (plaintiffs).

Robert W. Cassot, with whom, on the brief, was Cristin E. Sheehan, for the appellees (named defendant et al.).

Opinion

BEACH, J. The plaintiffs, Chester Lichaj and Nicole Lichaj, appeal from the summary judgment rendered by the trial court in favor of the defendants J. Michael Sconyers and Ackerly Brown, LLP.¹ We affirm the judgment of the trial court granting the motion for summary judgment.

The present action sounds in vexatious litigation. Chester Lichaj and Nicole Lichaj alleged, in their complaint, that David Welles, Lori Welles, and their attorney, Sconyers, previously brought a vexatious, meritless action against them. The trial court granted motions for summary judgment in favor of all the defendants; the plaintiffs appeal only as to Sconyers. The prior underlying action was tried to the court, which ruled in favor of the Welleses; this court reversed the trial court's judgment and remanded the case with direction to vacate the injunction and for further proceedings. Because the trial court in the present action considered the facts and procedural history of the prior action, we begin with a discussion of that action, as recounted in this court's appellate opinion.

"[David Welles and Lori Welles] own and reside at 37 Ballyhack Road in West Cornwall. [Chester Lichaj and Nicole Lichaj] own and reside at 39 Ballyhack Road. Pursuant to a deed, [the Lichajes] have a right-of-way over the [Welles'] land for the purpose of gaining access to their property from Ballyhack Road. The fifty foot wide right-of-way extends from Ballyhack Road, over a portion of the [Welles'] land, to the [Lichajes'] residence, a distance of approximately 1400 feet. The right-of-way provides the only means of access for the parties from Ballyhack Road, a public highway, to their residences.

"In 2004, Chester Lichaj began using his tractor to remove snow from the right-of-way. The [Welleses] made multiple requests to both [of the Lichajes] that he stop plowing the right-of-way because Lori Welles' father historically had plowed it for them and if an emergency arose, they preferred to call a professional to attend to the snowplowing. Nevertheless, Chester Lichaj periodically plowed the right-of-way with his own tractor even though Lori Welles' father also continued to plow the right-of-way until his truck failed during the 2005-2006 winter. Thereafter, the [Welleses] hired David Hurlburt to plow the driveway. Chester Lichaj, however, continued to plow the driveway as well during the same winter. This pattern continued, with the [Welleses] hiring Hurlburt but Chester Lichaj still plowing the driveway with his tractor, despite requests from the [Welleses] that he not do so.

"Thereafter, in March, 2009, [David Welles and Lori Welles] initiated this action seeking a permanent injunction prohibiting Chester Lichaj from plowing the right-of-way. The [Lichajes] filed a counterclaim sounding in tort alleging that [David Welles and Lori Welles] intentionally and maliciously interfered with their use of the right-of-way and the quiet enjoyment of their land. The [Lichajes] also claimed intentional and negligent infliction of emotional distress. More specifically, they alleged that on multiple occasions while Chester Lichaj plowed snow off the right-of-way he was accosted verbally by David Welles in an aggressive and abusive manner." (Footnotes omitted.) Welles v. Lichaj, 136 Conn. App. 347, 349-50, 46 A.3d 246, cert. denied, 306 Conn. 904, 52 A.3d 730 (2012).

The Lichajes moved for summary judgment, and the motion was denied by the court, Danaher, J. The matter then was tried to Judge Danaher, who granted an injunction in favor of David Welles and Lori Welles that enjoined Chester Lichaj from performing maintenance on the right-of-way over the property of the Welleses. The court found in favor of Nicole Lichaj as to the claim for an injunction. The court found that "no further action [was] necessary with regard to the [Lichajes'] counterclaim." The Lichajes appealed from the judgment of the trial court. On appeal, this court reversed the judgment of the trial court and remanded the case; id., 359;² this court determined that the trial court had abused its discretion in granting the injunction as to the right-of-way and misinterpreted the deed. Id., 356, 359.

The Lichajes then brought the present action claiming statutory and common-law vexatious litigation against the Welleses, Sconyers and Ackerly Brown, LLP. The Lichajes alleged, inter alia, that the underlying injunctive action was brought and maintained without probable cause. Sconyers and Ackerly Brown, LLP, moved for summary judgment on the ground that there was no genuine issue of fact or law as to the existence of probable cause to initiate the underlying injunctive action. In the motion for summary judgment, Sconyers and Ackerly Brown, LLP, maintained that there was probable cause because the Welleses had prevailed at trial in the underlying action as against Chester Lichaj, their claim against Nicole Lichaj survived summary judgment, and the facts known to Sconyers were sufficient for him to believe that there was probable cause to commence the injunctive action against both Chester Lichaj and Nicole Lichaj. In a September, 2014 memorandum of decision, the court, Pickard, J., granted Sconyers' motion for summary judgment. The court reasoned that, as a matter of law, the finding of the trial court in the underlying action in favor of the Welleses, who were represented by Sconyers, as to their claim against Chester Lichaj was conclusive evidence of probable cause as to him, and the reversal of that claim on appeal was not inconsistent with the existence of probable cause.³ See Byrne v. Burke, 112 Conn. App. 262, 275-76, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).

The court rendered summary judgment against Nicole Lichaj as well. Although judgment had not been rendered against her in the prior case, the motion for summary judgment had been denied with respect to her. The court in the present case held that the denial of the motion for summary judgment in the prior case precluded a finding that there had not been probable cause to pursue that action. The court cited Havilah Real Property v. Early, 216 Md. App. 613, 626-28 and n.13, 88 A.3d 875 (2014), which explains that decisions discussing the issue fall generally into two categories: some jurisdictions, such as California, Georgia, Pennsylvania and the United States Court of Appeals for the Eighth Circuit, conclude that a denial of a motion for summary judgment creates a presumption of probable cause sufficient by itself to defeat a subsequent claim for vexatious litigation; others, such as Kentucky, Arizona and Vermont, conclude that a denial of a motion for summary judgment is but one factor to consider in the analysis of probable cause. The court in the present case noted that there was no controlling Connecticut precedent on the issue and decided to follow the line of cases that hold that a previous denial of a motion for summary judgment is conclusive evidence of the existence of probable cause to bring the prior action. Because Nicole Lichaj's motion for summary judgment had been denied, the court concluded that there had been probable cause to bring the underlying action against her and granted the motion for summary judgment. This appeal followed.

"The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. . . . 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 . . . . 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. . . . The statutory cause of action for vexatious litigation exists under [General Statutes] § 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. . . .

"In assessing probable cause in vexatious litigation actions against attorneys and law firms, the critical question [is] whether on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit. . . . As is implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit." (Citation omitted; internal quotation marks omitted.) Schaeppi v. Unifund CCRPartners, 161 Conn. App. 33, 45-46, 127 A.3d...