Brenda Greene v. Kevin Keating et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT DATED DECEMBER 17, 2012 (# 174.00) and DEFENDANTS KEVIN and NANCY KEATING'S CROSS MOTION FOR SUMMARY JUDGMENT DATED FEBRUARY 15, 2013 (# 180.00)

There are three matters before this court:  (1) An analysis of the plaintiff's complaint, (2) A decision on the plaintiff, Brenda Greene's Motion for Summary Judgment dated December 17, 2012 and, (3) A decision on the defendants, Kevin and Nancy Keating's, Cross Motion for Summary Judgment dated February 15, 2013 (# 180.00).   The third defendant, the law firm of Rucci, Burnham, Carta, Carello and Reilly, LLP, is not a party to either of these two Motions for Summary Judgment.

The plaintiff, Brenda Greene's, Motion for Summary Judgment alleges that;  “there are no genuine issues of material fact.”   She is seeking a summary judgment in her favor on the seven counts of vexatious litigation brought against the defendants, Kevin Keating and Nancy Keating (# 174.00).   The Keatings' Cross Motion for Summary Judgment alleges that;  “there is no genuine issue of material fact that they brought the underlying lawsuit, entitled Keating v. Greene, Superior Court, judicial district of Stamford, Docket No. CV 07–4011089 S against the plaintiff, Brenda Greene, (1) with probable cause and (2) pursuant to the advise of counsel.   Therefore, the plaintiff's vexatious litigation claim must fail as a matter of law and summary judgment should be entered in the defendants' favor.”

The operative complaint in this vexatious lawsuit is the original complaint dated October 1, 2010.   The plaintiff, Brenda Greene, alleges seven separate counts of vexatious litigation.   Kevin and Nancy Keating are named as defendants in six of the seven counts.   The Second Count of vexatious litigation against the defendant law firm, Rucci, Burnham, Carta, Carello and Reilly, LLP, is not now before this court.   The allegations of that Second Count have been incorporated by reference in the successive counts of vexatious litigation brought against the defendants, Kevin Keating and Nancy Keating.   Rucci, Burnham, Carta, Carello and Reilly, LLP is also named as a defendant along with the Keatings in the Third Count, Fourth Count, Fifth Count, Sixth Count and Seventh Count.   The Keatings are named as the only defendants in the First Count of vexatious litigation.   Each of these seven counts of vexatious litigation relate to the seven counts in the underlying lawsuit in which Kevin Keating and Nancy Keating were represented by the law firm of Rucci, Burnham, Carta, Carello and Reilly, LLP as against the plaintiff in this case, Brenda Greene.   The underlying lawsuit was pending in the Superior Court, judicial district Stamford/Norwalk at Stamford, Docket No. FST CV 07–4011089 S returnable on March 13, 2007.   The law firm of Rucci, Burnham, Carta, Carello and Reilly, LLP has not filed its own Motion for Summary Judgment.

The underlying lawsuit involved three plots of real property created in a subdivision located on Runkenhage Road, Darien, Connecticut and one adjoining lot.   The subdivision map was recorded in the Darien Land Records and provided deeded easements for ingress and egress from Runkenhage Road to three lots.   This easement is shown on a 1928 map recorded in the Darien land records as Map 423.   Brenda Greene of 10 Runkenhage Road is the owner of the lot that fronts on Runkenhage Road though which lot the easement to the other two lots run.   Kevin and Nancy Keating are the owners of 12 Runkenhage, a rear lot.   J. David and Sandra S. Wilson own 8 Runkenhage Road, another rear lot.   Mona T. Slack owns 6 Runkenhage Road, the lot adjacent to the easement.   The only access to 8 and 10 Runkenhage Road is through the Greene property at 10 Runkenhage Road by way of the deeded easement.   Mona T. Slack of 6 Runkenhage Road claimed a prescriptive use over the easement even though her lot fronts on Runkenhage Road.

A lawsuit was filed by Mona T. Slack against Brenda Greene.   It was returnable to the Superior Court, judicial district of Stamford/Norwalk at Stamford on October 4, 2005, Docket Number FST CV 05–4006654 S. This Slack lawsuit arose out of a 2005 landscaping project engaged in by Brenda Greene including the construction of pillars along the easement.   That lawsuit proceeded to trial.   A judgment and injunctive relief in favor of Mona T. Slack entered on December 19, 2006 (# 148.00 in FST CV 05–4006654 S).  The trial court found:  “Upon the action of the defendant to construct concrete pillars in the area of the plaintiff's driveway with the intention of planting shrubbery in between, thereby hindering and potentially blocking the plaintiff's access, the plaintiff immediately filed her claims in this court.” (# 148.00, page 6.) The judgment was appealed by Brenda Greene.   The appeal was removed to the Supreme Court.   A decision confirming the trial court's judgment was issued by the Connecticut Supreme Court on December 29, 2009.  Mona T. Slack v. Brenda B. Greene, 294 Conn. 418 (2009).   None of the defendants in this vexatious litigation lawsuit were parties in the Slack v. Greene litigation.

Prior to the commencement of the Keating lawsuit, the Wilsons and Brenda Greene were involved in a lawsuit emanating over Brenda Greene's 2005 landscaping project.   That lawsuit was returnable to the Superior Court, judicial district of Stamford/Norwalk at Stamford on November 8, 2005, Docket Number FST CV 05–4007109 S. None of the defendants in this case were parties to that lawsuit.   The Wilson and Greene parties settled their differences privately and the complaint and counterclaim were later withdrawn.   A judgment by stipulation entered on June 7, 2006. (# 136.55 in FST CV 05–4007109 S).

In the underlying seven-count lawsuit the Keatings claimed that Brenda Greene embarked upon that same 2005 landscaping project, which restricted the easement and interfered with the ingress and egress rights that Nancy Keating and Kevin Keating enjoyed.

At the conclusion of the Slack v. Greene trial and the issuance of the written December 19, 2006 trial court decision, the Keatings commenced this lawsuit by their February 22, 2007 Complaint.   The pleadings were closed and the matter was claimed to a court trial list.   The Keatings alleged seven counts and all seven counts proceeded to trial against Brenda Greene in the underlying lawsuit, all arising out of the 2005 Brenda Greene landscaping project and all related to the Keatings' easement.   The First Count sought prescriptive easement rights.   The Second Count sought relief by implied easement.   The Third Count was a damage claim for interference with right of way.   The Fourth Count sought an injunction for malicious erection of a structure.   The Fifth Count also sought damages for malicious erection of a structure.   The Sixth Count sought money damages for private nuisance.   The Seventh Count claimed a disturbance of a right.   Each of these seven counts was tried to a conclusion before Edward R. Karazin, J.T.R.

In the underlying case, the evidence was presented by Attorneys Rucci, Burham, Carta, Carello and Reilly on behalf of both Kevin Keating and Nancy Keating.   When the plaintiffs concluded their direct case, Brenda Greene's attorney moved pursuant to P.B. § 15–8 to dismiss each of the seven counts of the Keatings' complaint for failure to establish a prima facie case.   Judge Karazin heard oral argument, took the motion under advisement, and ordered that the Greenes commence their evidence.   He denied the motion to dismiss in a November 16, 2009 Memorandum of Decision (# 139.20).  “In this case, the court finds that the plaintiff has established a prima facie case sufficient to cause the motion to dismiss to be denied.” (# 139.20, page 1) The testimony in the court trial ended.   Post hearing briefs were filed on December 8, 2010 and reply post-hearing briefs were filed by February 19, 2010.   Judge Karazin issued his Memorandum of Decision on April 23, 2010.   He rendered judgment for Brenda Greene on all the counts of the Keatings' complaint (# 153.00).   Neither party filed an appeal nor any post decision motions.

The plaintiff, Brenda Greene, did not file a motion pursuant to Gen.Stat. § 52–226a seeking a determination by the trial judge of a special finding.  “In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon, or in any civil action tried to the court, not more than fourteen days after judgment has been rendered, the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith.   Any such finding by the court shall be admissible in any subsequent action brought pursuant to section 52–568.”   At no other time did Brenda Greene file a request for a special finding pursuant to Gen.Stat. § 52–226a.

The court has applied all the requisite standards for decisions by trial courts in motion for summary judgment without the need to restate those standards in this Memorandum of Decision.   Covello v. Darien, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 08–5008909 5 (October 22, 2010, Tierney, J.T.R.) [51 Conn. L. Rptr. 40];  Forrest v. Sothebys International Realty, Inc. et al., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. FST CV 11–6010200 S (January 9, 2013, Tierney, J.T.R.).

The first issue that the court must deal with is an analysis of the present vexatious litigation complaint and the interpretation of the pleadings contained in that complaint.

Pleadings have an essential purpose in the judicial process ․ The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried ․ For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings ․ [A]ny judgment should conform to the pleadings, the issues and the prayers for relief.  (Citations omitted;  emphasis omitted;  internal quotation marks omitted.)  Dickman v. Office of State Ethics, Citizen's Advisory Board, 140 Conn.App. 754, 759–60, 60 A.3d 297, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013).

Abdo v. Abdulrahman, 144 Conn.App. 514, 581 (2013).

The interpretation of pleadings is always a question of law for the court ․ Our review of the trial court's interpretation of the pleadings therefore is plenary ․ Furthermore, we have long eschewed the notion that pleadings should be read in a hyper technical manner.   Rather, the modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ The complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between parties ․ Our reading of the pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such way as to strain the bounds of rational comprehension ․

Grenier v. Commissioner of Transportation, 306 Conn. 523, 536 (2012).

“When any claim made in a complaint, crosscomplaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.”  P.B. § 10–3(a).   The absence of a citation to a statute in a complaint is not controlling if, as a matter of law, the specific allegations of a pleading are sufficient to invoke the statutory remedy.  Priore v. Longo–McLean, 143 Conn.App. 249, 256 (2013);  Ferreira v. Pringle, 255 Conn. 330, 340 (2001).  “The absence of a citation to § 13a–149 ․ is of no importance, as a complaint may still contain allegations sufficient to invoke that statute.”  Himmelstein v. Windsor, 116 Conn.App. 28, 39 (2009);  aff'd, 304 Conn. 298 (2012);  Priore v. Longo–McLean, supra, 143 Conn.App. 256.

In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute.  Spilke v. Wicklow, 138 Conn.App. 251, 259 (2012), cert. denied, 307 Conn. 945 (2013);  Town of Lisbon v. R.S.T. Excavation, LLC, Superior Court, judicial district of New London at New London, Docket No. CV 10–6006180 (February 19, 2013, Sheldon, J.).   The elements for vexatious litigation at common law require one to prove a want of probable cause, malice and a termination of a civil suit in the plaintiff's favor.   Spilke v. Wicklow, supra, 138 Conn.App. 259.   Double or treble damages are not available for successful vexatious litigation at common law.

The statute authorizing causes of action for vexatious litigation states:  “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.”  Gen.Stat. § 52–568.   There are two different forms of vexatious litigation contained in Gen.Stat. § 52–568;  one permitting double damages and the second permitting treble damages.   The statutory claim for vexatious litigation permitting double damages requires the following elements “The essential elements of such a statutory vexatious litigation action are:  (1) the defendant procured or initiated a prior lawsuit against the plaintiff;  (2) the defendant did so without probable cause;  and (3) the prior proceeding terminated in the plaintiff's favor.”  Charlotte Hungerford Hospital v. Creed, 144 Conn.App. 100, 108 (2013);  Somers v. Chan, 110 Conn.App. 511, 542 (2008).   The statutory claim for vexatious litigation permitting treble damages requires the same three elements for double damages with the additional element of “a malicious intent unjustly to vex and trouble such other person.”

This court must now examine the pleadings to determine which of these three claims of vexatious litigation has been alleged.   The operative complaint is the original complaint dated October 1, 2010.

The body of complaint does not allege that the plaintiff is seeking a claim for common-law vexatious litigation.   Her Claims for Relief as to each of the seven counts of her complaint do not seek compensatory, ordinary or money damages.   The court concludes that the plaintiff, Brenda Greene, has not made a claim of vexatious litigation at common law.

The body of the complaint fails to cite Gen.Stat. § 52–568.   That statute is prominently cited in each of the seven numbered Claims for Relief at the end of the plaintiff's vexatious litigation complaint.   Each of the seven Claims for Relief ends with the same phrase:  “pursuant to Section 52–568 of the Connecticut General Statutes.”   The court finds that the plaintiff is alleging a claim for statutory vexation litigation in each of the seven counts.

The question now is whether or not the plaintiff is seeking double damages requiring the plaintiff to prove “without probable cause” or whether the plaintiff is seeking treble damages requiring the plaintiff to prove “without probable cause,” and with “a malicious intent unjustly to vex and trouble such other person.”   Each of the seven Claims for Relief claims treble damages “pursuant to Section 52–568 of the Connecticut General Statutes.”   There are no claims for double damages in the plaintiff's Claims for Relief.   Although the body of the complaint does not allege Gen.Stat. § 52–568, the central allegation seeking treble damages is contained in each of the seven counts by the following language:

“26. The First Count of the Keating Complaint was vexatious and malicious.”

“37. The First Count of the Keating Complaint was instituted by the defendant law firm without probable cause and was vexatious and malicious.”

“44. The Second Count of the Keating Complaint was initiated by the Keatings and instituted by the defendant law firm without probable and was vexatious and malicious.”

“52. The Third Count of the Keating Complaint was initiated by the Keatings and instituted by the defendant law firm without probable and was vexatious and malicious.”

“63. The Fifth Count of the Keating Complaint was vexatious and malicious.”

“65. The Fifth Count of the Keating Complaint was vexatious and malicious.”

“67. The Sixth Count of the Keating Complaint was vexatious and malicious.”

The court hereby finds the entire seven-count complaint against the defendants, Nancy Keating, and Kevin Keating, brought by the plaintiff, Brenda Greene, for vexatious litigation is based upon the malicious intent portion of Gen.Stat. § 52–568 seeking only treble damages.   The court will examine the documents furnished to the court to determine whether the plaintiff's Motion for Summary Judgment (# 174.00) should be granted on the basis that there was no material issue of fact as to the element of malicious intent.   A similar examination will be conducted on the Keating's Cross Motion for Summary Judgment (# 180.00).

No one decision, either appellate or trial, defines the phrase “with a malicious intent unjustly to vex and trouble such other person.”  Gen.Stat. § 52–568;  Burgess v. State, 52 Conn.Sup. 562, 573 (2013) [54 Conn. L. Rptr. 496].   Numerous cases discuss and define the concept of malice in many formats:  criminal statutes, civil statutory causes of action, statutory exemptions, and common-law causes of action.   In most of those decisions discussion of malice use the following phrases:  “with malice,” “maliciousness,” “malicious intent,” malicious prosecution or malicious injury.”   Usually the discussion of the various forms of malice also discuss the concepts of wilful, wanton, intentional and/or reckless.   For example, the common-law definition of “willful and malicious injury” was discussed as follows:  “Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved.   Not only the action producing the injury but the resulting injury must be intentional.   A wilful or malicious injury is one caused by design.   Wilfulness and malice alike import intent ․ [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances ․” Quimby v. Kimberly Clark Corporation, 28 Conn.App. 660, 667 (1992).

“While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.”  West Haven v. Hartford Insurance Co., 221 Conn. 149, 161, fn.3 (1992).   As used in Gen.Stat. § 4–165, the terms wanton, reckless or malicious require the plaintiff to demonstrate “on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts ․ In order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ In sum, such conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent.”  Shay v. Rossi, 253 Conn. 134, 181 (2000).

Judge Sheldon noted the difficulty of obtaining a single definition of malicious in Dillman v. Allen–Warren, Superior Court, judicial district of Waterbury of Waterbury, Complex Civil Litigation Docket No. X02–CV 00–0167578 S (July 22, 2002, Sheldon, J.) [32 Conn. L. Rptr. 722].   In the context of Gen.Stat. § 7–308 involving liability of firefighters, Judge Sheldon concluded that:  “The term ‘wilful and malicious' as used in the statute, requires proof of intent to cause injury.”   Judge Bear adopted the following definition of malice in a vexatious litigation lawsuit from a decision authored by Judge Rubinow in The Meadows Condominium Association, Inc. v. Redman, Superior Court, judicial district of Middlesex at Middletown, Docket Number MMX CV 07–5001823 S (July 30, 2009, Rubinow, J.).

In footnote 12 of such decision, Judge Rubinow explained the meaning of malice or malicious intent as used in General Statutes § 52–568(2):

Albeit factually addressing issues related to libel, Venturi v. Savitt, Inc., 191 Conn. 588, 593, 468 A.2d 933 (1983), reminds us of the proper definition of malice or malicious intent insofar as civil matters are concerned:  “Proto v. Bridgeport Herald Corporation, 136 Conn. 557, [564], 72 A.2d 820 (1950) ․ defines malice in fact as not necessarily meaning hatred, spite or ill will against the plaintiff but as meaning that there must have been some improper or unjustifiable motive ․” on the defendant's part in undertaking the conduct at issue.  (Emphasis added.)

Decker v. Martin, Superior Court, judicial district of Middlesex at Middletown, Docket Number MMX CV 09–6000884 S (April 14, 2010, Bear, J.).

In The Meadows Condominiums case, Judge Rubinow after adopting that footnote 12 definition of malice, found the following proof of malice:  “This testimony is consolidated with the defendant's admission, at trial, in which he voluntarily stated that he had filed the tort/bad faith action because he wanted the plaintiff to experience ‘statutory destruction’ ․ In the context of the parties' history of foreclosure judgment and the pending but unresolved appeal, the defendant's oral expressions promote the inference that he pursued the tort/bad faith litigation for vindictive reasons, not with the just intention of receiving fair and reasonable damages for any loss he may have sustained.”  Id.

The probable cause standard is a very low standard for litigants to meet.   “[P]robable cause [however] may be present even where a suit lacks merit.”   Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, 281 Conn. 84, 103 (2007).  “[T]he lower threshold of probable cause allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win ․” (Citations omitted, internal quotation marks omitted.)  ․”Were we to conclude ․ that a claim is unreasonable wherever the law would clearly hold for the other side, we could stifle the willingness of a lawyer to challenge established precedent in an effort to change the law.   The vitality of our common law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories.”  (Citations omitted, internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, supra, 281 Conn. 104;  Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn.App. 762, 763 (2008):  “Taken as a whole, the evidence is sufficient to establish that the defendant's ‘motivating intent or design’ in the pursuit of his tort claim was ‘to harm the plaintiff ․’ all fulfilling the requisite legal measure of ‘malicious intent’ in the context of the pending vexatious litigation action.   See § 52–568(2);  Venturi v. Savitt, Inc., supra, 191 Conn. at 593;  Proto v. Bridgeport Herald Corporation, supra, 136 Conn. at 564.”   The Meadows Condominium Association, Inc. v. Redman, Superior Court, judicial district of Middletown at Middlesex, Docket Number MMX CV 07–5001823 S (July 20, 2009, Rubinow, J.).

The court will now review the underlying Keating v. Greene litigation for evidence of malice.  Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 656 (2013).

The Keatings commenced the underlying lawsuit on February 22, 2007 against Brenda Greene only after the successful litigation by Mona T. Slack against Brenda Greene that resulted in a December 19, 2006 trial court judgment against Brenda Greene.   The Keatings commenced this lawsuit after June 7, 2006 settlement of the Greene and Wilson lawsuit.   Both lawsuits dealt with the same ingress and egress easement.   The legal and factual claims were somewhat different but all three lawsuits dealt with Brenda Greene's 2005 landscaping project.   After consideration of all the facts at the conclusion of the plaintiff's direct case in the underlying lawsuit, Judge Karazin made a finding that the Keatings had produced sufficient prima facie evidence as to all seven counts and denied Brenda Greene's Motion for Judgment of Dismissal filed pursuant to P.B. § 15–8.   He issued a two-page Memorandum of Decision denying this P.B. § 15–8 motion on November 16, 2009 (# 139.20, FST CV 07–4011089 S).  In that Memorandum of Decision, Judge Karazin made no findings of any acts of maliciousness on behalf of the Keatings against Brenda Greene.   To the contrary, the trial court found that the Keatings had established a prima facie case for all of the counts of the underlying lawsuit.   Judge Karazin issued his April 23, 2010 Memorandum of Decision in the trial in chief denying the plaintiff's claims for relief.   Judge Karazin made no finding of maliciousness by the Keatings in that Memorandum of Decision (# 153.00, FST CV 07–4011089 S).

Brenda Greene did not claim that any of the seven counts filed by the Keatings in the underlying lawsuit were malicious in her extensive pretrial memorandum of law dated September 8, 2009 (# 133.10).   No allegation of malice were contained in Brenda Greene's Motion for Judgment of Dismissal dated September 28, 2009 (# 138.10) filed pursuant to P.B. § 15–8.   No claim of malice by the Keatings appears in Brenda Greene's Post–Trial Memorandum of Law dated November 23, 2009 (# 141.10) nor in her proposed Finding of Facts dated November 23, 2009 (# 142.10).   No claim of malice is contained in Brenda Greene's Post–Trial Reply Memorandum of Law dated December 8, 2009 (# 143.00/ # 144.00).

Brenda Greene claimed that the evidence supported her counterclaim in the underlying lawsuit against the Keatings, claiming both misuse of easement and trespass. (# 141.00, page 3.) Judge Karazin found otherwise and found for the Keatings on the counterclaim. (# 153.00, page 20.)

In rendering his decision against the Keatings, the court noted the stringent conditions required to establish a prescriptive easement and found that the Keatings did not meet their burden of proof.   This finding cannot support a claim that the Keatings acted with malice in the underlying lawsuit, and raises no material issue of fact as to the Keatings' malice.   In the underlying lawsuit no motions for summary judgment were filed by Brenda Greene against any of the Keatings' seven counts and no motions for contempt were filed against the Keatings.   Brenda Greene did not seek sanctions in the underlying lawsuit for litigation misconduct.  CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 325, 394 (1996).

The following documents were presented to the court in support of the two Motions for Summary Judgment.   No party objected to those documents nor requested a ruling by this court on whether those documents can be considered by this court.   They are attached to the following pleadings:  # 174.00 Motion for Summary Judgment dated December 17, 2012, together with documents and Memorandum of Law (109 pages):  # 179.00 Objection to Plaintiff's Motion for Summary Judgment dated February 15, 2013 (9 pages);  # 180.00 Defendants Kevin and Nancy Keating's Cross Motion for Summary Judgment dated February 15, 2013, together with documents and Memorandum of Law (338 pages);  and # 189.00 Reply to Plaintiff's Objection to Cross–Motion for Summary Judgment dated February 22, 2013 (8 pages).   The Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment dated February 18, 2013 (# 181.00, 168 pages) was not before this court since it was filed by the defendant, Rucci, Burnham, Carta, Carello & Reilly, LLP. That defendant law firm is not a party to either of the two Motions for Summary Judgments argued before this court.

The court has examined all the materials and Memorandum of Law submitted to this court by both the plaintiff, Brenda Greene, and the defendants, Nancy Keating and Kevin Keating, in support of their respective positions.   The court has reviewed the three mentioned Greene lawsuits.   The question before this court is whether there is a material issue of fact as to the element of malicious.

“It is well established that a plaintiff has the same right to submit a weak case as he has to submit a strong one.”  Curran v. Kroll, 303 Conn. 845, 857 (2012);  Cadle Co. v. D'Addario, 268 Conn. 441, 462 (2004).   The judicial policy preference is to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant by day in court.  Rutke v. City of Meriden, 145 Conn.App. 202, 216 (2013);  Millbrook Owners Association, Inc. v. Hamilton Standard, 259 Conn. 1, 16 (2001).  “The general rule of law known as the American rule is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception ․ This rule is generally followed throughout the country ․ Connecticut adheres to the American rule.”  Aaron Manor, Inc. v. Irving, 307 Conn. 608, 616–17 (2013).   Connecticut public policy requires each litigant to pay for their own attorney fees and litigation costs.   The American Rule is the rule in Connecticut.  TES Franchising, LLC v. Feldman, 286 Conn. 132, 148 (2008).   Vexatious litigation is not a recognized method of fee-shifting in Connecticut.  Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 326, 337 (2013).

The plaintiff devoted two full pages of the December 17, 2012 Memorandum of Law to the claim that the “institution of the lawsuit by the Keatings was malicious.” (# 174.00, pages 23–25.)   She raised five factual claims that the culpability by the Keatings rose to the level of malice:  no attempt was made by the Keatings to discover the available facts, none of the Keatings' predecessors in title claimed the right to use any portion of the Murphy/Greene property beyond the deeded easements, upon consulting with their attorneys the Keatings furnished no facts that the prescriptive or implied easement claims were sustainable, the lack of probable cause in the Keatings' claims were communicated to the Keatings' attorneys, and the extra four feet of the Greene project would not affect the right of the Keatings to make full use of the driveway to their residence.

In support of these claims, the plaintiffs cited an Am.Jur. treatise, a Connecticut advice of counsel case and the two Connecticut cases from 1832 and 1888, each without a quote or page number.   These two cases cited did not stand for the proposition of law claimed in the plaintiff's Memorandum of Law. Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 94 (2007).   The plaintiff's citation to Ives v. Bartholomew, 9 Conn. 309 (1832) fails to include that case's definition of malice.  “Malice, in reference to the subject, is any improper motive.”  Ives v. Bartholomew, supra, 9 Conn. 313.  Ives v. Bartholomew stands for the proposition that malice is not merely absence of probable cause, but an otherwise improper motive.

Stone v. Stevens, 12 Conn. 219, 230 (1837), was cited by the plaintiff in the Conclusion section for the definition of probable cause as compared to the concepts of suspicion and conjecture.   Further examination of Stone v. Stevens reveals the additional requirement of proving “that the motives of the defendant were malicious.”  Stone v. Stevens, supra, 12 Conn. 226.   The plaintiff did not cite to that portion of Stone v. Stevens.

Judge Karazin found that the Keatings provided evidence and argued facts on each of the elements of the seven counts before him.   As a result of that finding, he denied the P.B. § 15–8 Motion to for Judgment of Dismissal (# 139.20, FST CV 07–4011089 S).  The court found that the Keatings had established a prima facie case.   The evidence disclosed that the Keatings' use of a paved easement was affected by Brenda Greene's 2005 landscaping project.   The Keatings produced witnesses supporting the necessary elements of each of the seven counts.   Despite that proof, the trial court after hearing all of the evidence offered by Brenda Greene, found against the Keatings on each of the seven counts.   None of the five above mentioned factual claims demonstrate an intention by the Keatings to accomplish anything other than the full and complete use of their easement as understood by the Keatings.   None of the five above mentioned factual claims demonstrate any malicious intent by the Keatings to use the underlying lawsuit to injure Brenda Greene.

The Brenda Greene 2005 landscaping project removed a paved portion of the driveway that had existed for over 15 years.   It also narrowed the easement's passable area and restricted the ability of fire trucks to access the Keating home.   The entire easement, the 16–foot–width section from Runkenhage Road to the Wilson property and the 10–foot–width section from the Wilson property to the Keating property, were affected by Brenda Green's 2005 landscaping project.

The Keatings claim that they filed the underlying lawsuit with the intent to restore the full use of the easement to the condition that existed before the 2005 Brenda Greene landscaping project.   The documents and arguments offered by Brenda Greene in favor of her Motion for Summary Judgment and in opposition to the Keatings' Cross Motion for Summary Judgment did not establish any otherwise malicious intent by the Keatings in the initiation and prosecution of the underlying lawsuit.

The court finds that there is no material issue of fact that the underlying lawsuit was commenced and litigated consistent with the purposes addressed in a September 20, 2005 letter from Kevin and Nancy Keating to Brenda Greene. (# 124.00, Exhibit F.) The purposes addressed in the September 20, 2005 letter and the underlying lawsuit were the same;  to protect the easement rights the Keatings had to their landlocked property at 12 Runkenhage Road, Darien, Connecticut.   There is no material issue of fact that the underlying lawsuit had any other purpose.   In addition on December 19, 2006 the court in Slack v. Greene found that there was a prescriptive easement over the portion of the easement closest to Runkenhage Road. This finding was confirmed by the Supreme Court in 2009.  Slack v. Greene, 294 Conn. 418 (2008).

The court finds that not only is there no material issue of fact as to any act by the Keatings that amounts to a malicious intent as prescribed by Gen.Stat. § 52–568, there is no evidence whatsoever of any acts of maliciousness on behalf of the Keatings.

For the reasons stated, the court denies the plaintiff Brenda Greene's Motion for Summary Judgment dated December 17, 2012 (# 174.00) as to all six counts against Kevin Keating and Nancy Keating.

For the reasons stated, the court grants the defendants Kevin and Nancy Keating's Cross Motion for Summary Judgment dated February 15, 2013 (# 180.00) as to all six counts against Kevin Keating and Nancy Keating.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.