Alesia DiFederico v. Daniel E. Jacobs et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 124

The plaintiff commenced this action against all the defendants in nine counts alleging statutory vexatious litigation pursuant to General Statutes § 52–568 and common-law vexatious litigation.

The defendant N. Warren Hess, III, is an attorney who represented the defendants Jacobs and Groman in a civil action against the plaintiff in the superior court for the judicial district of Waterbury at Waterbury in Docket No. CV–04–4000303–S.   The underlying action resulted in judgment entering in the plaintiff's favor on April 25, 2008 after a trial to the court and issuance of a memorandum of decision.

The defendant Hess now moves for summary judgment in this action based on two grounds:  (1) that the action is barred by the statute of limitations pursuant to General Statutes § 52–577 and (2) that the defendants Jacobs and Groman (who also are defendants in the present action) had probable cause to commence and maintain the cause of action against the plaintiff in the prior action.

“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 of 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.”  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).

“A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

I.

Statute of Limitations

Summary judgment is appropriate on statute of limitations grounds when the “material facts concerning the statute of limitations [are] not in dispute ․” Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).

In this case there is a question of material fact regarding when and if Attorney Hess ceased representation of the defendants Jacobs and Groman.

The factual scenario in this case is distinguishable from Balletti v. Alter, Superior Court, judicial district of Hartford at Hartford, Docket No. CV–94–0541996–S (September 25, 1998, Peck, J.) [23 Conn. L. Rptr. 70], and Windels v. Hart Investment Properties, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–08–5019114 (February 1, 2010, Arnold, J.) [49 Conn. L. Rptr. 354].   Therefore, summary judgment is denied on the issue of whether the statute of limitations bars this action.

II.

Probable Cause

On the issue of whether Attorney Hess had probable cause to maintain and prosecute the underlying action, the court adopts the reasoning in Heid v. Lyons, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–98–0338856S (November 16, 2000, Melville, J.).

In Heid v. Lyons, supra, the court opined as follows:

The key issue in an action grounded in vexatious litigation is whether the action was brought without probable cause.   Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action.  Norse Systems, Inc. v. Tingley Systems, Inc., supra, 594.   The existence of probable cause is an absolute protection, and what facts, and whether particular facts, constitute probable cause is always a question of law.  Id. However, when the facts themselves are in dispute, the court may submit the issue of probable cause in the first instance to the jury as a mixed question of fact and law.   DeLaurentis v. New Haven, supra, 220 Conn. 252–53.

Whether the defendant had probable cause when he instituted the original civil proceedings against the plaintiff necessarily involves a determination of his knowledge or lack of knowledge of certain facts at that time along with a determination as to whether he held a reasonable, good faith belief in the validity of his claims.   Pepe v. Perrotti, Superior Court, judicial district of New Haven at New Haven, Docket No. 307426 (June 21, 1993, Thompson, J.).   Similarly, the element of malice raises questions of improper or unjustifiable motive.   See Haxhi v. Moss, 25 Conn.App. 16, 19, 591 A.2d 1275 (1991).   Such questions do not lend themselves to summary judgment.   Summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).   A question of intent raises an issue of material fact, which cannot be decided on a motion for summary judgment.  Picataggio v. Romeo, 36 Conn.App. 791, 794, 654 A.2d 382 (1995).   Therefore, it is clear that in this case there are questions of material fact to be resolved before the court can determine whether the defendant acted with probable cause and with malicious intent.

Heid v. Lyons, supra, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–98–0338856S (November 16, 2000, Melville, J.).

Therefore, the defendant's motion for summary judgment also is denied on the issue of whether the defendant had probable cause to commence and/or maintain the underlying action.

Agati, J.

Agati, Salvatore C., J.