Charlotte Hungerford Hospital v. Kevin Creed et al. (2011)

MEMORANDUM OF DECISION RE SHORT CALENDAR FEBRUARY 7, 2011

The defendant, William Plante, has moved to strike (# 112) counts three and six of the plaintiff's complaint.   This motion must be denied for the reasons which are stated very briefly below.   The Court has ruled (Memorandum # 118) on a prior, similar motion to strike based on the same allegations, (Pickard, J.) [49 Conn. L. Rptr. 10].

Malice is not required to be alleged or proven in a suit for vexatious litigation brought under General Statutes § 52-568.   That statute does not include any reference to malice being an element.  “The statutory cause of action for vexatious litigation exists under § 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.”  (Internal quotation marks omitted.)  Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008).

Count three is based upon “the first action” only.   There is no doubt that action was terminated in favor of the plaintiff and no appeal was taken.

Count six is based upon “the second action” which was terminated in favor of the plaintiff following a trial in the Superior Court.   The case was appealed and the Supreme Court affirmed the trial court's ruling in favor of the plaintiff.   See Plante v. Charlotte Hungerford Hospital, 300 Conn. 33 (2011).   Consequently, the defendant's argument that the plaintiff cannot plead that the prior action was terminated in its favor is moot.

The complaint alleges that Plante is liable, pursuant to the doctrine of respondeat superior, for the tortious conduct of his attorney, Kevin Creed.   Attorneys and law firms may be liable for vexatious suit if, “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.”  (Internal quotation marks omitted.)  Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 35, 929 A.2d 729 (2007).   The two counts attacked by this motion to strike contain sufficient allegations to support claims for vexatious suit against Plante.   Whether probable cause existed to commence both actions cannot be decided on a motion to strike.   The claims made by Plante that probable cause existed amount to speaking objections.   These claims must await a motion for summary judgment or trial.

The motion to strike the said counts three (3) and six (6) is denied.

BY THE COURT

Roche, J.

Roche, Vincent E., J.