Rieffel v. Johnston-Foote

• Decision Date: 10 May 2016
• Docket Number: No. 37762.,37762.
• Citation: 165 Conn.App. 391,139 A.3d 729
• Court: Connecticut Court of Appeals
• Parties: Bich–Ha Henriette RIEFFEL et al., v. Penelope D. JOHNSTON–FOOTE et al. (AC 37762)

165 Conn.App. 391

139 A.3d 729

Bich–Ha Henriette RIEFFEL et al.

v.Penelope D. JOHNSTON–FOOTE et al. (AC 37762)

No. 37762.

Appellate Court of Connecticut.

Argued Feb. 29, 2016.

Decided May 10, 2016.

Peter M. Ryan, Darien, for the appellants (plaintiffs).

Brian J. Farrell, Jr., for the appellees (named defendant et al.).

Kelley Franco Throop, New Canaan, for the appellees (defendant Diane Jones et al.).

Douglas R. Steinmetz, Westport, for the appellees (defendant Dan Tredwell et al.).

Peter E. DeMartini, with whom, on the brief, was Charles A. Deluca, Stamford, for the appellees (defendant Daniel W. Moger, Jr., et al.).

KELLER, MULLINS and PELLEGRINO, Js.

PER CURIAM.

The plaintiffs, Bich–Ha Henriette Rieffel and Marc A. Rieffel, appeal from the summary judgment rendered on their complaint in favor of the defendants, Penelope D. Johnston–Foote, Rayh Foote, also known as Ray Foote, Diane Jones, Michael B. Jones, Dan Tredwell, Lucinda Tredwell, Sue Baker, Attorney Daniel W. Moger, Jr., Daniel W. Moger, LLC, the Penelope Johnston–Foote Family Qualified Personal Residence Trust (trust), and LWT Associates, LLC (LLC).¹ In their complaint, the plaintiffs sought damages for vexatious litigation and abuse of process against several of their neighbors individually (Johnston–Foote, Foote, the Tredwells, the Joneses, and Baker), the owners of property on which certain neighbors resided (the trust and the LLC), the neighbors' attorney (Moger) and his law firm (Daniel W. Moger, LLC), for having filed a forcible entry and detainer action against the plaintiffs, which subsequently was withdrawn.² On appeal, the plaintiffs claim that in rendering summary judgment in the defendants' favor the court improperly concluded that (1) the attorney defendants had probable cause to pursue the underlying forcible entry and detainer action; (2) the affidavits of several of the neighbor defendants were competent evidence of their special defense to the vexatious litigation counts of reliance on the advice of counsel; (3) the trust and the LLC were not properly named as defendants because they were not parties to the underlying forcible entry and detainer action; and (4) the defendants' pursuit of the underlying action was not an abuse of process because the exclusive remedy available to the neighbor defendants was an action to quiet title. We affirm the judgment of the trial court.

Evidence of the following facts appears in the record. The plaintiffs and the individual neighbor defendants all live in a secluded neighborhood on a private road, known as Thrushwood Road, off of Indian Head Road in the Riverside section of Greenwich. An unnamed right-of-way and a portion of Thrushwood Road are located on the land of the plaintiffs. For purposes of the summary judgment action and this appeal, rights of ingress and egress to the respective residences of the individual neighbor defendants over the unnamed right-of-way and Thrushwood Road are conceded by the plaintiffs. Near the head of Thrushwood Road, a small open shed or wooden stanchion, located on the plaintiffs' property, contained the mailbox of the plaintiffs and four mailboxes of the individual neighbor defendants. The individual neighbor defendants' mailboxes had existed at this particular location for periods of time ranging from ten years to more than forty years.

In an undated letter addressed to “Dear Neighbors,” Bich–Ha Henriette Rieffel demanded that the individual neighbor defendants remove the stanchion and their mailboxes on or before November 27, 2012. On or about December 10, 2012, the plaintiffs served several of the neighbor defendants with a “Notice of Termination of License,” informing them that their “license and privilege to maintain a mailbox ... on the property owned by [the plaintiffs] ... is hereby terminated....” The notice advised the neighbor defendants that their license terminated as of December 17, 2012, and that the mailboxes and the stanchion should be removed by the close of the business day on that date.

The individual neighbor defendants objected to the plaintiffs' demands and retained Moger in December, 2012, to protect their interests. Between December 17, 2012, and January 8, 2013, counsel for the plaintiffs and Moger exchanged correspondence regarding the dispute. On or about January 25, 2013, the plaintiffs removed the four mailboxes and the stanchion; the mailboxes of the individual neighbor defendants were left in the driveways of their respective properties. After Moger recommended to his clients the institution of a forcible entry and detainer action pursuant to General Statutes § 47a–43

, the individual neighbor defendants authorized the action against the plaintiffs. An unsigned summons and complaint was presented to a judge, who signed the summons on January 29, 2013. Service subsequently was made on the plaintiffs. A court date of February 7, 2013, was set at the housing session of the Superior Court in Norwalk. On that date, the housing court judge apparently expressed some doubts about the strength of the case, and the plaintiffs filed a motion for summary judgment. Another court date was set, but, after consulting with his clients, Moger withdrew the entry and detainer action on February 19, 2013.³

On August 6, 2013, the plaintiffs commenced this action against the attorney defendants and the individual neighbor defendants who had been plaintiffs in the forcible entry and detainer action. In addition, the trust and the LLC were named as defendants although they were not parties to the forcible entry and detainer action. The complaint contained twenty-four counts. Each of the individual neighbor defendants, the trust, and the LLC were sued for common-law vexatious litigation, statutory vexatious litigation pursuant to both General Statutes § 52–568(1) and (2)

,⁴ common-law abuse of process, and common-law abuse of process with malice.⁵ The attorney defendants were sued for common-law vexatious litigation, statutory vexatious litigation pursuant to § 52–568(1) and (2)

, and common-law abuse of process.

All of the defendants filed answers denying the essential allegations of the plaintiffs' complaint. The neighbor defendants all pleaded the special defense of reliance upon the advice of counsel. Subsequently, all of the defendants filed motions for summary judgment accompanied by supporting memoranda of law and affidavits. The attorney defendants also annexed exhibits to their motion, on which, in addition to Moger's affidavit, the neighbor defendants additionally relied. The plaintiffs responded, objecting to the granting of summary judgment, with memoranda and counteraffirmations.⁶

The court, by memorandum of decision,⁷ granted the motion for summary judgment filed by the attorney defendants after determining that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a result, the attorney defendants were entitled to judgment in their favor as a matter of law. The court first determined that the evidence did not reveal the existence of a genuine issue of material fact with respect to whether the attorney defendants had probable cause to recommend to clients and to commence the forcible entry and detainer action against the plaintiffs. On the basis of the evidence before it, the court determined that such probable cause existed. The court stated that “[t]he existence of probable cause eliminates the major necessary predicate for the various vexatious suit claims asserted by the plaintiffs....”⁸ Next, the court determined that the evidence demonstrated that the attorney defendants did not abuse process because the forcible entry and detainer action was not instituted for a purpose for which such an action was not designed, thereby rejecting the plaintiffs' claim that the attorney defendants actually intended to bring a quiet title action. The court determined that what was sought only was the retention of the neighbor defendants' claimed possessory rights to their mailboxes.⁹ Further, the court determined that the plaintiffs, in their abuse of process claims against the attorney defendants, had failed to allege or prove that the attorney defendants engaged in specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.¹⁰

With respect to the motions for summary judgment filed by the neighbor defendants, the court, in a separate memorandum of decision, determined that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a matter of law, the neighbor defendants were entitled to judgment in their favor. The court determined that the evidence demonstrated that the neighbor defendants had provided Moger with any and all facts concerning the mailboxes, including their removal and placement on their properties, and that there was no evidentiary support for the plaintiffs' claim that the neighbor defendants' disclosure of facts to Moger was less than candid or incomplete.¹¹ The court further concluded that Bich–Ha Henriette Rieffel's affirmation, which she filed in response to the neighbor defendants' motions for summary judgment, did not give rise to an issue of material fact with respect to her assertion of bad faith or malice against the neighbor defendants attributable to the removal of the mailboxes.

On the basis of its assessment of the submissions before the court, the court then determined that the neighbor defendants had established the essential elements of their special defense of advice of counsel to the vexatious litigation claims of the plaintiffs. Finally, the court determined that the individual neighbor defendants did not abuse process because they did not bring their action to settle or quiet title, as the plaintiffs asserted, and therefore did not use legal...