Robert Aft v. Lawrence Hogan (2010)

MEMORANDUM OF DECISION

The present action was commenced by the plaintiff, Robert Aft, on August 7, 2008.   This lawsuit stems from a complicated legal history between the plaintiff and the defendant, Lawrence Hogan, regarding a terminated construction contract between the parties.   In count one of the eight-count complaint,¹ the plaintiff makes a vexatious litigation claim against the defendant and alleges that the defendant filed a lawsuit against the plaintiff on June 18, 2007, which was assigned the docket number MMX CV 07 5002568.   He asserts that the underlying lawsuit was filed without probable cause and with malice and was later dismissed on May 2, 2008.   In counts three and five, the plaintiff makes claims against the defendant for violations of General Statutes § 52-568(1) and (2), respectively.   Finally, in count seven, the plaintiff makes an abuse of process claim against the defendant and further alleges that the defendants brought and maintained the underlying lawsuit in an improper manner and for the purpose of attacking a final judgment entered in the plaintiff's favor in yet another lawsuit.   In his prayer for relief, the plaintiff seeks compensatory damages, punitive damages and costs.

The defendant filed an answer and special defenses on October 15, 2008, to which the plaintiff replied on October 21, 2008.   On February 17, 2010, the defendant filed a motion for summary judgment.   That motion is accompanied by a memorandum of law.   The plaintiff filed an opposition brief on March 3, 2010.   The court heard oral arguments on the matter on October 12, 2010.

DISCUSSION

“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.”  (Internal, quotation marks omitted.)  Durrant v. Board of Education, 284 Conn. 91, 99-100 n.7, 931 A.2d 859 (2007).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any issue of material fact.”  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).   Once the movant has met his burden, the burden shifts to the opposing party to “present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of a disputed issue.”  Id., 319.

The defendant makes several arguments in support of his motion for summary judgment.   With regard to counts one, three and five, the defendant contends that the plaintiff cannot maintain these claims for vexatious litigation.   In addition, the defendant argues that he is entitled to summary judgment on count seven of the plaintiff's complaint because he commenced the underlying action for a proper purpose.   In support of his motion, the defendant submits his affidavit, a “remodeling construction agreement” signed by both parties and other documents.

In opposition to the defendant's motion, the plaintiff argues that he is able to maintain a vexatious litigation claim against the defendant.   He also argues that summary judgment is inappropriate for his abuse of process claim against the defendant because it requires a finding of fact regarding intent.   In support of his arguments, the plaintiff submits:  a mechanic's lien filed by the defendant on the plaintiff's property, dated December 13, 2001;  an application for discharge of the mechanic's lien with a court order discharging the lien;  and copies of court hearings and case histories involving the parties.

I. COUNTS ONE, THREE AND FIVE

Counts one, three and five of the plaintiff's complaint are claims for both common-law and statutory vexatious litigation.  “In Connecticut, the cause of action for vexatious litigation exists at both common law and pursuant to statute.”  Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008).   The requirements for maintaining a common-law vexatious litigation claim are well established.  “[T]o 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 § 52-568 ² ․ and differs from the common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages.”  (Internal citation omitted;  internal quotation marks omitted.)  Id.. Both causes of action “require proof that a civil action has been prosecuted.”  (Internal quotation marks omitted.)  Id.

Our Supreme Court has held that “an application for a prejudgment remedy does not commence a civil action for purposes of a subsequent claim for vexatious litigation ․ A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action.   A civil action, in contrast, resolves the merits of the parties' claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy.   Accordingly ․ [a] plaintiff cannot base its claim for vexatious litigation on the ․ filing of an unsuccessful prejudgment remedy application.”  Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 560-61.

The plaintiff bases his vexatious litigation claims on Superior Court docket number MMX CV 07 5002568.   The parties differ in their characterization of the nature of this underlying case.   In support of his motion for summary judgment, the defendant argues that the case was a prejudgment remedy application, which he declined to prosecute and was thereafter dismissed.   In response, the plaintiff argues that the evidence demonstrates that an “actual lawsuit” was filed by the defendant more than a year after the defendant's application for prejudgment remedy, and that such lawsuit was filed without probable cause and with malice.   This court takes judicial notice of the file Hogan v. Aft, docket number MMX CV 07 5002568.   See Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977).

A review of that court file reveals that the underlying case was limited to the defendant's application for prejudgment remedy, which was dismissed by the court on May 2, 2008 “for failure to close the pleadings ․” There were no subsequent pleadings filed after that date.   More specifically, the defendant never filed a summons or complaint under docket number MMX CV 07 5002568, and therefore, no civil action was commenced against the plaintiff under that docket number.   Thus, there is no genuine issue as to whether the plaintiff's vexatious litigation claims are based upon the defendant's application for prejudgment remedy.   As a result, the defendant is entitled to summary judgment as a matter of law on counts one, three and five of the plaintiff's complaint because an application for prejudgment remedy is not a sufficient basis for a vexatious litigation claim.

II. COUNT SEVEN

In count seven, the plaintiff makes an abuse of process claim.   He alleges that the defendants brought the aforementioned lawsuit in “an improper manner and primarily to accomplish a purpose for which it was not designed, that is, to collaterally attack a final judgment entered in favor of the plaintiff in an earlier lawsuit ․ Docket Number MMX CV 02 0097144.”  “An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.”   (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn 394, 403 876 A.2d 522 (2005).  “[T]o prevail on an abuse of process claim, the plaintiff must establish that the defendant used a judicial process for an improper purpose.”  Id., 407.

“A party does not abuse legal process merely by filing a lawsuit.   To allege a viable cause of action for abuse of process, a claimant must point to specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.”  (Internal quotation marks omitted.)   Norse Systems, Inc., v. Tingley Systems, Inc., 49 Conn.App. 582, 601-02, 715 A.2d 807 (1998).

The defendant contends that he is entitled to summary judgment on the plaintiff's abuse of process claim for three reasons.   First, he argues that his “prejudgment claims” sought recovery of money owed to him.   In addition, he claims that the plaintiff “is unable to show misuse based upon a decision to withdraw the subject claim ․” Finally, he asserts the plaintiff should not be able to state a claim for abuse of process because the plaintiff has initiated six separate legal actions against the defendant.

In response, the plaintiff argues that summary judgment is inappropriate as to his abuse of process claim because the intent of the defendant in commencing the underlying action is at issue.   He also asserts that there are facts sufficient to permit a jury to find that the true purpose of the defendant's action was to “pressure the [plaintiff] into paying debt that all agreed he did not owe.”

This court notes, that “[w]hile summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated ․ [t]he summary judgment rule would be rendered sterile ․ if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion ․ Our Supreme Court has held that even with respect to motive, intent or good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact.”  (Internal quotation marks omitted.)  Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001).

The purpose of a prejudgment remedy is to secure property so that it will be available if a judgment is obtained in the plaintiff's favor.  Morris v. Cee Dee, LLC, 90 Conn.App. 403, 412, 877 A.2d 899, cert. granted, 275 Conn. 929, 883 A.2d 1245 (2005).   In his affidavit, the defendant attests that the underlying prejudgment remedy action was commenced to recover the amount of $110,000 for renovation work performed for the plaintiff, for which he was not paid.   This is exactly the intended use and purpose of a prejudgment remedy.

The evidence submitted by the plaintiff is not sufficient to support a determination by this court that defendant sought a prejudgment remedy for the purpose of injuring the plaintiff by pressuring him to pay a debt he did not owe.   Moreover, the plaintiff's assertion that the defendant used judicial process against him for an improper purpose is not sufficient to contradict the defendant's attestations.   This court concludes that the defendant has met his burden of proving that there is no genuine issue of material fact regarding the plaintiff's abuse of process claim.

CONCLUSION

For the foregoing reasons, the motion for summary judgment is granted.

Woods, J.

FOOTNOTES

FN1. Counts two, four and six were made against William Butler.   Butler's motion to dismiss was granted by the court on November 24, 2008..  FN1. Counts two, four and six were made against William Butler.   Butler's motion to dismiss was granted by the court on November 24, 2008.

FN2. Section 52-568 provides:  “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”.  FN2. Section 52-568 provides:  “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

Woods, Glenn A., J.