Rousseau v. Weinstein

Decision Date25 May 2021
Docket NumberAC 42902
Parties Robert ROUSSEAU et al. v. Richard P. WEINSTEIN et al.
CourtConnecticut Court of Appeals

Daniel J. Krisch, Hartford, for the appellants (plaintiffs).

Cristin E. Sheehan, with whom, on the brief, were James L. Brawley, Hartford, and Patrick J. Day, for the appellees (named defendant et al.).

Raymond J. Plouffe, Jr., Shelton, for the appellees (defendant Mark H. Dean et al.).

Alvord, Prescott and Moll, Js.

ALVORD, J.

The plaintiffs, Robert Rousseau and Preferred Display, Inc.1 (Preferred Display), appeal from the summary judgment rendered by the trial court in favor of the defendants2 Mark H. Dean, Mark H. Dean, P.C.,3 Richard P. Weinstein, and Weinstein & Wisser, P.C.4 On appeal, the plaintiffs claim the court erred by holding that (1) the marital dissolution action between Rousseau and Madeleine Perricone was not a prior

pending action and (2) the defendants had probable cause to continue a civil action based on similar claims against Rousseau in the dissolution action. We conclude that probable cause to continue the action existed and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the complaint, and procedural history are relevant to our discussion of the claims on appeal. Rousseau and Perricone were married in 2007. On or about March 30, 2010, Rousseau commenced a dissolution action (dissolution action). Perricone filed a cross complaint in the dissolution action, alleging that she suffered personal financial losses as a result of financial misconduct, fraud, and duress committed by Rousseau, acting both individually and through Preferred Display, in connection with several financial investments she made during the course of their marriage.

On or about September 1, 2011, Perricone retained Weinstein to commence a civil action (civil action) against the plaintiffs. On or about September 22, 2011, Dean was retained to assist with the prosecution of Perricone's claims in the dissolution action. Dean consulted with Carlo Forzani, one of Perricone's dissolution attorneys, and became familiar with the details of the financial misconduct claims that were being made against Rousseau in the dissolution action. Dean also consulted with Weinstein and learned that the proposed civil action would be making the same claims of financial misconduct that had been made by Perricone in the dissolution action.

From about September 1 through November 30, 2011, Weinstein consulted with Perricone, her dissolution attorneys, and the forensic accountant involved in the dissolution action to investigate the details of Perricone's claims of financial misconduct against Rousseau. On November 30, 2011, Weinstein filed the civil action in which Perricone asserted claims of breach of fiduciary

duty, securities fraud, misappropriation of funds, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., against Rousseau and Preferred Display. The civil action also contained claims against various individuals and entities that allegedly aided and abetted Rousseau's financial misconduct.5 Although the claims of financial misconduct alleged in the civil action were more specific and detailed, they were essentially the same allegations raised and prosecuted by Perricone in her cross complaint against Rousseau in the dissolution action.

On December 2, 2011, in the dissolution action, Perricone moved to consolidate the civil action into the dissolution action. During oral argument on the motion, Perricone's dissolution attorney, Jeffrey Ginzberg, argued that consolidation was necessary because some of the issues that would be litigated were "part and parcel" of both actions. Ginzberg further argued: "I don't think it's fair to have to have my client go through an ordeal that's [going to] take an entire month to present to the court only to have to turn around and do it all over again involving basically the same issues and this time in the second case, having a set of defendants from which to recover the money." The court denied Perricone's motion to consolidate.

On or about December 20, 2011, Dean filed an appearance on behalf of Perricone in the civil action, appearing in addition to Weinstein.

Trial in the dissolution action occurred over twelve days in January, February and March, 2012. On or about

January 23, 2012, Rousseau wrote to Perricone, Weinstein, and Dean, stating that the claims being made in the civil action as to Rousseau and Preferred Display were the same as those that Perricone was alleging and prosecuting in the dissolution action. As a result, Rousseau demanded that Perricone, Weinstein, and Dean withdraw the civil action. They refused to do so.

On August 6, 2012, the trial court issued its memorandum of decision dissolving the marriage of Rousseau and Perricone (dissolution decision). In the dissolution decision, the court concluded that Rousseau did not, either individually or through Preferred Display, engage in the financial misconduct claimed by Perricone and that Perricone's claims were not credible. The court further explained that it had examined the allegations of the civil action and that the "allegations raised against [Rousseau] and [Preferred Display] are more specific and detailed but essentially the same allegations raised by [Perricone] in the dissolution action." As part of the dissolution decision, the court ordered Perricone to "release and hold [Rousseau and Preferred Display] indemnified and harmless from any and all claims of action pending in Hartford Superior Court captioned Perricone v. Rousseau , bearing docket number HHDCV-11-6027402-S. In addition, [Perricone] shall be responsible for 100 percent of [Rousseau's] legal fees in defending the civil action if [Rousseau] and/or [Preferred Display] remain parties to that action."

Perricone timely appealed the dissolution decision, arguing, in part, that the trial court erred by ordering her to release and hold Rousseau harmless in the civil action. On March 25, 2014, this court affirmed the dissolution decision.6 See

Rousseau v. Perricone , 148 Conn. App. 837, 854, 88 A.3d 559 (2014). On April 17, 2014, Weinstein withdrew the civil action.

In August, 2014, the plaintiffs commenced the present action against Perricone and Weinstein. In October, 2015, the plaintiffs added Dean and his law firm as additional defendants. In their three count third amended complaint, the plaintiffs asserted common-law and statutory claims of vexatious litigation against the defendants. The plaintiffs alleged that the allegations and claims made by the defendants in the civil action were identical to those made in the dissolution action and, therefore, were precluded by the prior pending action doctrine and lacked probable cause.

On January 7, 2019, Weinstein and Dean moved for summary judgment. Weinstein moved for summary judgment on the grounds that the plaintiffs waived their right to assert the prior pending action doctrine as a defense by failing to file timely a motion to dismiss and that he had probable cause to believe that the civil action was not identical to the dissolution action. Dean moved for summary judgment on the ground that there was no prior pending action when the civil action was commenced because the constructive trust claim in Perricone's second amended cross complaint had been withdrawn. The court, Moukawsher, J ., granted the motions of the defendants,7 and the plaintiffs appealed. Additional facts will be set forth as necessary.

Before we address the plaintiffs’ claims on appeal, we first set forth the applicable standard of review of a trial court's granting of a motion for summary judgment. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is

no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. ... Once the moving party has met its burden [of production] ... the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. ... The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. ... Our review of the decision to grant a motion for summary judgment is plenary. ... We therefore must decide whether the court's conclusions were legally and logically correct and find support in the record." (Internal quotation marks omitted.) Amity Partners v. Woodbridge Associates, L.P. , 199 Conn. App. 1, 6–7, 234 A.3d 1109 (2020).

I

The plaintiffs first claim that "the trial court improperly held that the [dissolution action] was not a prior pending action, and, thus, the civil [action] was not vexatious, even though Perricone made the same claims against the same parties in the two suits."8 We disagree with the plaintiffs’ contention that an action subject to

dismissal under the prior pending action doctrine is necessarily vexatious and that the defendants were not entitled to summary judgment as a matter of law.

The following additional facts and procedural history are relevant to our resolution of this claim. In count two of her second amended cross complaint in the 2010 dissolution action, Perricone alleged a constructive trust claim against Rousseau. Specifically, Perricone alleged that Rousseau...

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