Chris Ogren v. Alfred S. Lassen, Jr. et al. (2013)

MEMORANDUM OF DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT

I

FACTS

The plaintiff, Chris Ogren, has brought the present vexatious litigation action against the defendants, Alfred Lassen, Susan Lassen, Arthur Hudon, and the Law Offices of Arthur Hudon.¹  This action arises from a prior lawsuit brought by the Lassens against Ogren, Lassen v. Ogren, which was filed under docket number CV–07–5004349–S (“underlying action”).²  Arthur Hudon, of the Law Offices of Arthur Hudon, served as the Lassens' legal counsel in the underlying action.   The following facts are relevant to this action.

The underlying action arose from a dispute regarding the management of a piece of commercial property in Kensington (“the property”).   In November 1993, Susan Lassen, Ogren, and Gayl Czaplicki formed a joint venture, known as the Cambridge Heights Realty Associates (“CHRA”).³  (Hudon Mem., # 163, Exh. C.) The exclusive purpose of the joint venture was to acquire the property to house two unrelated businesses owned or operated by its members:  OVL Manufacturing, Inc. (“OVL”) and Falcon Machine (“Falcon”).⁴  (Hudon Mem., # 162);  (Pl.Mem., # 185).   The CHRA's joint venture agreement provided that a voluntary petition for bankruptcy by one of the CHRA members “shall dissolve the Joint Venture.”  (Hudon Mem., # 163, Exh. C.)

The property was purchased by the CHRA on November 7, 1993;  (Pl.Affidavit, # 181, Exh. B);  and title remained in CHRA's name throughout the underlying action.  (Pl.Affidavit, # 181.)   Ogren took on much of the responsibility in the day-to-day operations of the property, including making certain the bills were paid and the property was maintained.   Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. CV–07–5004349–S (September 28, 2011, Swienton, J.).

In May 22, 2000, the Lassens filed a voluntary joint petition for relief under Chapter 7 of the United States Bankruptcy Code. (Pl.Aff., # 181, Exh. C.) Susan Lassen's 25% share in the CHRA was sold by the bankruptcy trustee at an auction in 2005.  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.   Susan Lassen purchased that interest from the bankruptcy trustee at the auction for $28,025.⁵  Id. On July 31, 2005, Susan Lassen, signed a “Bill of Sale” conveying her “right, title and interest” in the CHRA to Alfred Lassen.  Id.

On June 5, 2007, the Hudon defendants filed a ten-count complaint on behalf of the Lassens against Ogren (“underlying complaint”).⁶  The underlying complaint included the following claims:  (1) common law conversion;  (2) statutory theft pursuant to General Statutes § 52–564;  (3) breach of good faith;  (4) breach of contract;  (5) unjust enrichment;  (6) seeking an accounting;  (7) seeking apportionment of receivership, dissolution of the partnership, and liquidation of the assets;  (8) seeking a decree to quiet title;  (9) seeking a partition of the real estate;  and (10) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”).  (Underlying Complaint.)

The underlying action was tried before the court, Swienton, J. Judgment was entered in favor of Ogren and against the Lassens on every count of the complaint.  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.⁷  In addressing counts one, two, three, five, six, eight, and nine, which the court explained “derive from the plaintiffs' claims that they are entitled to the relief claimed because of the ownership interest of one or both of them claims to hold,” the court held that “[a]ll of these counts fail because there was no evidence that either or both of the plaintiffs hold or ever held any ownership in the Property.”  Id. The court additionally stated:  “The plaintiffs also lack standing to enforce the property rights because the Property is owned not by the plaintiffs but by an entity in which one or both of the plaintiffs claim to have some ownership interest.”  Id.

In collectively addressing counts four, seven, and ten, where the plaintiffs sought “to recover damages in their alleged capacity as members of a Connecticut joint venture known as Cambridge Heights Realty Associates,” the trial court held that, because Susan Lassen had transferred the interest in the CHRA that she had obtained through the bankruptcy trustee's 2005 auction to Alfred Lassen, “Susan Lassen does not own any interest in CHRA, and therefore, she is without standing to assert any claim as an owner of any interest in the joint venture.”  Id. The court additionally found that Alfred Lassen's interest in the CHRA was merely “a liquidating dividend in a dissolved joint venture.”   The trial court thus held in Ogren's favor on all counts arising from both the Lassen's alleged capacity as members of the CHRA.⁸

On October 11, 2011, the Hudon defendants filed a motion for extension of time to file an appeal on the Lassens' behalf.  (Underlying Action, # 135.)   Ogren objected to that motion on the ground that the Lassens failed to show good cause for the extension.  (Underlying Action, # 136.)   On November 7, 2011, the Lassens filed an appeal to the Appellate Court.  (Underlying Action, # 137.)   On November 15, 2011, Ogren filed a motion to dismiss the appeal on the grounds it was not timely filed.   Lassen v. Ogren, Appellate Court, Docket No. 34007.   The Lassens withdrew that appeal on December 1, 2011.  (Underlying Action, # 139.)

On February 27, 2012, Ogren filed the present three-count complaint against the Lassens and the Hudon defendants.   The first count, which has been brought against all defendants under General Statutes § 52–568(1), alleges vexatious litigation for their commencement and prosecution of the underlying action.   Counts two and three, which have been brought only against the Lassens, respectively allege violations of General Statutes § 52–568(2) and common-law vexatious litigation.

On June 14, 2013, the Hudon defendants moved for summary judgment on the ground that there is no genuine issue of material fact that there was probable cause to initiate and prosecute the underlying claims (# 162).   The motion was accompanied by a memorandum and supporting exhibits (# 163).   Ogren filed a memorandum in opposition to the Hudon defendants' motion (# 185) and filed an opposing affidavit with supporting exhibits (# 181).   On August 2, 2013, Ogren filed a cross motion for summary judgment against all defendants on the first count of the complaint (# 178) along with a supporting memorandum (# 179) and an affidavit by Ogren (# 180).   The Hudon defendants objected to Ogren's motion for summary judgment and filed an opposing memorandum (# 187).

On September 3, 2013, the Lassens filed a separate motion for summary judgment (# 191) and objection to Ogren's motion (# 190).   The Lassens' motion and objection both fully adopted the Hudon defendants' arguments.   Ogren filed an objection to the Lassens' motion for summary judgment on September 24, 2013 (# 192).

The court heard oral argument on this matter on September 6, 2013.   Additional facts are set forth below where necessary.

II

DISCUSSION

“Summary judgment is a method of resolving litigation when 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 ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

“Once the moving party has met its burden, however, the opposing party must 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 such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   When a party moves for summary judgment “and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”  Heyman Associates No. 1 v. Ins. Co of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).

“The essential elements of ․ 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, 72 A.3d 1175 (2013).  “A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint.   To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor ․ 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 ․ Malice may be inferred from lack of probable cause ․ The want of probable cause, however, cannot be inferred from the fact that malice was proven ․ A statutory action for vexatious litigation under General Statutes § 52–568 ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94.

“[T]he existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law.”  (Internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007).

The Hudon defendants, the Lassens, and Ogren have each filed motions for summary judgment.   The present complaint's first count, brought under § 52–568(1) ⁹ against the Hudon defendants and the Lassens, is the subject of the pending cross motions.   This court will first address the cross motions regarding claims against the Hudon defendants and will then address motions regarding the Lassens.

A

Hudon Defendants

The Hudon defendants argue that the court must grant their motion for summary judgment and deny Ogren's because there is no genuine issue of material fact that the Hudon defendants had probable cause to commence and prosecute the underlying action.   Ogren contends that there is no genuine issue of material fact that the Hudon defendants prosecuted the underlying action without probable cause.

“[F]or purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable [person] in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of ․ Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.”  (Citations omitted;  internal quotation marks omitted.)   Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 100–01.

“[I]n assessing probable cause, the [Supreme Court] phrased the critical question as whether, 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 ․ As is implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit.”  (Citation omitted;  internal quotation marks omitted.)  Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).   “[P]robable cause may be present even where a suit lacks merit.   Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause.”  (Emphasis in original;  internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103.  “The 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 ․ 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.”  (Internal quotation marks omitted.)  Id., 103–04.

The trial court in the underlying action, Swienton, J., categorized the underlying complaint into two groups:  (1) the first, second, third, sixth, eighth, and ninth counts, which arose from the Lassens' purported ownership interest in the property (“ownership claims”);  and (2) the fourth, seventh, and tenth counts of the underlying complaint in which “the Lassens both sought to recover damages from Ogren in their alleged capacity of members of' the CHRA (“CHRA claims”).   Lassen v. Ogren, Superior Court, supra, Superior Court, Docket No. CV–07–5004349–S.   Ogren claims that the Hudon defendants did not have probable cause to initiate either group of claims.   The Hudon defendants contend that, because the property was owned by the CHRA and the joint venture agreement included rights to the property's management and revenues, there is also no genuine issue of material fact that they had probable cause to initiate both the CHRA claims and the ownership claims.   Consequently, this court will first address the CHRA claims and will then address the ownership claims.

1.

CHRA Claims

The trial court's decision grouped the fourth, seventh, and tenth counts of the underlying complaint because those counts related to the Lassens' alleged capacity as members of the CHRA. The Hudon defendants contend that there is no genuine issue of material fact that, at the time that the underlying action was initiated, there was probable cause to believe that one or both Lassens held an ownership interest in the CHRA. Ogren counters that there is no genuine issue of material fact that the Hudon defendants had no probable cause to bring the CHRA claims because:  (a) “as of the date of the filing of the Prior Action, neither of the Lassens could have been a member of CHRA because CHRA had been dissolved as of May 22, 2000, and the Hudon Defendants admit that they knew this before they filed the Prior Action”;  and (b) “it was a factual impossibility that both of the Lassens held this interest at the time the Prior Action was commenced.”  (Pl.Mem., # 179.)   The court will address each argument.

a

The Bankruptcy

Ogren first argues that the Hudon defendants lacked probable cause to assert the CHRA claims because the joint venture agreement provided that the CHRA “shall dissolve” in the event that any of its members declared for bankruptcy.   According to Ogren, the Hudon defendants “could not have possibly believed that the Lassens were members of the CHRA when they knew the CHRA had been dissolved in May 2000” due to the Lassens' Chapter 7 bankruptcy petition.  (Pl.Mem., # 179.)   Ogren also contends that “based on the undisputed fact that the CHRA was dissolved on May 22, 2000, two of the CHRA Claims clearly were barred by the applicable statute of limitations.” ¹⁰  Id.

The Hudon defendants do not dispute that they were aware that the Lassens had filed a bankruptcy petition before initiating the underlying case.   The Hudon defendants nevertheless argue that there is no genuine issue of material fact that they had a probable cause to believe that, “[a]lthough the bankruptcy petition triggered the dissolution of the joint venture, it did not terminate the joint venture.”  (Emphasis added.)  (Hudon Mem., # 162.)   According to the Hudon defendants, a reasonable attorney familiar with Connecticut law would have believed he had probable cause to prosecute the CHRA claims because the bankruptcy petition merely started the process of winding up the joint venture and did not immediately terminate all of the members' rights.

In support of their motion, the Hudon defendants have provided Arthur Hudon's affidavit, where he averred that the Lassens were referred to him by another attorney in 2006, and that he held numerous meetings and discussions with the Lassens and questioned them extensively about the joint venture, property and bankruptcy.  (Hudon Affidavit, # 162.)   Hudon stated that he found the Lassens' account to be coherent and truthful, and had no reason to doubt any part of the facts they conveyed to him.  Id. Hudon filed the underlying action on behalf of the Lassens “[b]ased on a good faith belief as to the accuracy of the information the Lassens provided, and following legal research.”  Id.

Hudon averred that the Lassens conveyed the following in their numerous conversations.   In 1998, Ogren, without the knowledge or consent of the other joint ventures, leased space in the property to another co-tenant, AeroComposite.  (Hudon Affidavit, # 162.)   Ogren had been receiving rental payments from the tenants but had not distributed any portion of the rental income to anyone else holding an interest in the joint venture.  Id. Ogren locked Falcon out of the property in 1999, and that Falcon had stopped using the building altogether by 2004.¹¹  Id. Czaplicki brought an action against Ogren in 2002.   The trial court in that case found against Ogren and ordered him to pay the CHRA lost rent which would have been received by Falcon, as well as one-half of real estate taxes assessed.   The trial court also ordered Ogren to cease any liquidation of the joint venture until a full accounting of revenues and expenses was provided.  Id.;  see Czaplicki v. Ogren, Superior Court, judicial district of New Britain, Docket No. CV–02–0515486–S (January 5, 2004, Kremski, J.T.R.).   These findings were in large part affirmed by the Appellate Court.  Id. See Czaplicki v. Ogren, 87 Conn.App. 779, 868 A.2d 61 (2005).   Ogren had been receiving rental payments from tenants but had not distributed any portion of the rental income to anyone else holding an interest in the CHRA. (Hudon Affidavit, # 162.)   The joint venture had earned profits that Ogren did not distribute to CHRA members.   Id. Ogren, in violation of the joint venture agreement, failed to provide the CHRA members an accounting and failed to distribute proceeds recovered as the result of a prior lawsuit brought by Ogren against Gary Czaplicki.  Id. Despite their numerous requests, the Lassens were not granted access to the property, were not provided with an accounting, and did not receive any distributions of profits from the joint venture.  Id.

In May 2005, Susan Lassen purchased her former 25% interest in the CHRA at a trustee auction ¹² where Ogren, after entering several bids, ultimately underbid Susan Lassens' $36,100 winning bid.  Id. Susan Hudon indicated “that she signed a document purporting to transfer her interest to Mr. Lassen, but she believed that she was still the owner of the interest because the document was not filed on the land records.   Mr. Lassen stated that he believed he held the twenty-five percent ownership interest in the joint venture.”   Id.

Hudon additionally averred that he reviewed “the joint venture agreement, corporate filings pertaining to the joint venture and correspondence from the law firm of Halloran & Sage, LLP to Mr. Lassen regarding dissolution of the joint venture and the winding up of its affairs.”  Id. Section 10 of the joint venture agreement provided procedures for winding up the CHRA and included the rights of distribution of net profits and the proceeds from liquidation to its members.  (Hudon Mem., # 163, Exh. C.) In a May 26, 2006 correspondence to Mr. Lassen, Robert Cox of Halloran & Sage, who claimed to be Ogren's attorney, wrote:  “[u]pon the sale of the CHRA, which will wind up the affairs of the joint venture, you will receive an accounting of the joint venture proceeds.”  (Emphasis added.)  (Hudon Affidavit, # 162, Exh. 3.)

Hudon additionally stated that he “researched and analyzed Connecticut case law and secondary sources on a number of contract, tort, property, and damages issues, in order to assess the viability of the Lassens potential claims.”   (Hudon Affidavit, # 162.)   For example, the post-trial reply brief that the Hudon defendants filed on the Lassens' behalf in the underlying action cited language from Curley v. Kaiser, 112 Conn.App. 213, 962 A.2d 167 (2009), to support the argument that the Lassens' rights to the joint venture survived the bankruptcy petition and that the affairs of the joint venture had not yet wound up.¹³  (Underlying Action, # 127.)

In response to the Hudon defendants' motion and in support of his own motion for summary judgment, Ogren has averred that “the bankruptcy petition filed by Susan Lassen resulted in the dissolution of the joint venture pursuant to the Agreement, as a result of which I thereafter assumed the role of liquidating joint venturer, began winding up the affairs of CHRA, and liquidating the interest of Susan Lassen, which had no value.”  (Ogren Affidavit, # 181.)   Ogren claims that, because the Lassens' bankruptcy petition dissolved the joint venture, the Hudon defendants did not have probable cause to bring an action for rents, profits or income in the underlying action.   Ogren specifically contends that section 10.4 of the joint venture agreement ¹⁴ and General Statutes § 34–362(b),¹⁵ which the underlying trial court relied upon, terminated the Lassens' rights as joint venturers when they filed their May 22, 2000 bankruptcy petition.  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.

This court finds that the Hudon defendants have met their burden of demonstrating that there is no genuine issue of material fact that they had probable cause to initiate the CHRA claims, and Ogren has failed to present evidence demonstrating a disputed factual issue.   Arthur Hudon's affidavit demonstrates that the Hudon defendants relied upon representations from their clients, the Lassens, in initiating the underlying action.   Ogren does not dispute that Susan Lassen acquired an interest in the CHRA by outbidding Ogren at the May 2005 trustee auction.   There is also no dispute that both Ogren and Susan Lassen entered bids of over $18,000 for the post-bankruptcy stake in the CHRA. Moreover, Ogren does not challenge that Alfred Lassen received a correspondence from Robert Cox in 2006, which indicated that the CHRA's affairs had not yet been wound up.   Language in the joint venture agreement, as well as case law, distinguishes winding up from dissolution and would have justified a belief by a reasonable attorney familiar with Connecticut jurisprudence that CHRA members had enforceable rights, even after filing a bankruptcy petition.   All of this would have indicated to a reasonable attorney that the Lassens' stake in the CHRA had value after bankruptcy was filed.

Ogren invites the court to address issues that have already been litigated as if it were deciding the merits of the underlying action.   This court declines that invitation.   The Hudon defendants do not dispute that the trial court found in Ogren's favor in all counts.   Nevertheless, in a vexatious litigation action “the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit.”  (Emphasis added;  internal quotation marks omitted.)  Embalmers' Supply Co. v. Giannitti, supra, 103 Conn.App. 35.   Although the trial court concluded that Susan Lassen's interest in the CHRA “had no value” and rejected evidence put forward by the Lassens regarding the value of their post-bankruptcy interest in the CHRA, “[p]robable cause may be present even where a suit lacks merit.   Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause.”  (Emphasis omitted;  internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103.

The Hudon defendants have demonstrated that they had a good faith basis in initiating actions arising out of the Lassens' interest in the CHRA. By merely citing the contractual and statutory language that the trial court ultimately relied upon, Ogren has failed to demonstrate that there is a disputed issue that the Hudon defendants lacked a reasonable, good faith belief in the facts alleged and the validity of the claim asserted when the underlying action was initiated.   Consequently, there is no genuine issue of material fact that the Hudon defendants had probable cause to assert claims arising from the Lassens' interest in the CHRA in the underlying action.

b

CHRA Claims on Behalf of Both Lassens

All counts in the underlying action were brought on behalf of both Alfred and Susan Lassen.   In counts four, seven, and ten of the underlying complaint, the plaintiff alleged that “one or both of the plaintiffs [the Lassens] and the defendant [Ogren] were members of a Connecticut joint venture known as Cambridge Heights Realty Associates ․” (Underlying Complaint.)   Ogren contends that the Hudon defendants could not have had probable cause to bring the CHRA claims because “there existed no set of circumstances under which both of the Lassens could have owned an interest in the CHRA, and probable cause did not exist to support the allegation that Susan Lassen owned any interest in CHRA at the time the Prior Action was commenced.”  (Emphasis in original.)   (Pl.Mem., # 185.)   The Hudon defendants claim that there is no genuine issue of material fact that they had probable cause to claim that one or both of the Lassens had an interest in the CHRA.

Arthur Hudon averred that, before he initiated the underlying action, Susan Hudon informed him that following her purchase of an interest in the CHRA at the May 2005 trustee auction, “she signed a document purporting to transfer her interest to Mr. Lassen, but she believed that she was still the owner of the interest because the document was not filed on the land records.   Mr. Lassen stated that he believed he held the twenty-five percent ownership interest in the joint venture.”  (Hudon Affidavit, # 162.)   Arthur Hudon further explained:  “Given the facts as I understood them, including evidence that each of the Lassens had held an ownership interest in the joint venture following the bankruptcy, and out of an abundance of caution, I included both Mr. and Mrs. Lassen as plaintiffs in the Lassen Action.   Further, given that the joint venture held title to the Property and out of an abundance of caution, I included claims on behalf of the Lassens as both members of the joint venture and as possessing an ownership interest in the Property.”   The court finds that the Hudon defendants have met their burden of demonstrating there is no genuine issue of material fact that they had a reasonable, good faith belief to bring claims on behalf of the Lassens as CHRA members.

Ogren contends that the Hudon defendants could not have had probable cause to bring the CHRA claims on behalf of both the Lassens because it was legally impossible that both of them had an interest in the CHRA. Ogren maintains that the Hudon defendants, as legal counsel, should have known that there is no requirement that an assignment of an interest in a joint venture be recorded on the land records even if their clients did not.¹⁶  The court does not agree that this creates a genuine issue of material fact regarding probable cause.

The Hudon defendants have demonstrated, through Arthur Hudon's affidavit, that the Lassens had expressed confusion regarding their ownership interest in the CHRA at the time that the underlying action was initiated.¹⁷  Nevertheless, there is no dispute that both the Lassens owned an interest in the CHRA at some point following the trustee auction.   Arthur Hudon's affidavit additionally establishes that he filed the underlying action based on a good faith belief as to the accuracy of the information the Lassens provided and that he included both of the Lassens as plaintiffs out of an abundance of caution.   Ogren's affidavit does not contradict the materials submitted by the Hudon defendants.   Based on what Arthur Hudon knew when the underlying action was initiated, a reasonable attorney would have had probable cause to initiate the CHRA claims on behalf of both Lassens.   This court, therefore, finds there is no genuine issue of material fact that the Hudon defendants had probable cause to initiate the CHRA claims.¹⁸

2.

Ownership Claims

In the first, second, third, fifth, sixth, eighth, and ninth counts of the underlying complaint, the Lassens, represented by the Hudon defendants alleged that “one or both of the plaintiffs, is an owner of a certain piece of property together with buildings thereon located at 49 Cambridge Heights, Kensington, Connecticut.”  (Underlying Complaint.)   The trial court's decision categorized those counts and held:  “All of these counts ․ derive from the plaintiffs' claims that they are entitled to relief claimed because of the ownership of one or both of them claims to hold.   All of these counts fail because there was no evidence that either or both of the plaintiffs hold or ever held any ownership in the Property.”  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.

In the present complaint, Ogren alleges that the ownership claims were commenced and prosecuted without probable cause because “at no time prior to or at the commencement of the Lassen Action or during the prosecution thereof did either of the Lassens have any ownership interest in or to the Property.”   (Pl.Mem., # 179.)   The Hudon defendants move for summary judgment on the ground that there is no genuine issue of material fact that they had probable cause to commence the underlying action because there was probable cause to bring actions related to the Lassens' interest in the CHRA and, therefore, also had probable cause to bring causes of action arising from ownership in the property, the CHRA's sole asset.   Ogren has moved for summary judgment because “neither of the Lassens was or could be deemed to have been an owner of the property in any legally cognizable sense at the time the Defendants commenced the Lassen Action, and thus, probable cause did not exist for the assertion of the Ownership Claims in the Prior Action.”  (Pl.Mem., # 179.)

In support of the Hudon defendants' motion, Arthur Hudon averred:  “given that the joint venture held title to the Property and out of an abundance of caution, I included claims on behalf of the Lassens as both members of the joint venture and as possessing an ownership interest in the Property.”  (Hudon Affidavit).   Arthur Hudon further stated that he reviewed relevant documents, prior litigation involving Ogren and the CHRA, and researched and analyzed Connecticut case law and secondary sources to assess the validity of the Lassens' potential claims.  Id. Arthur Hudon specifically averred:  “The case law I reviewed stated that the term ‘owner’ may be construed differently than the term ‘title.’   Specifically, I reviewed case law stating that the term ‘owner’ is one of general application and flexible meaning.   It includes more than full legal title and varies from the absolute proprietary interest to a mere possessory right.”  Id.

This court has taken judicial notice of the record of the underlying action.   See footnote 2. On July 18, 2007, Ogren filed a “Motion to Dismiss or, in the Alternative, for Summary Judgment.”  (Underlying Action, # 101.)   In support of that motion, Ogren claimed that the Lassens lacked standing to bring the underlying ownership claims on the ground that:  “It is indisputable ․ that neither of the Plaintiffs owns or has ever owned the Property.   At best, the Plaintiff's own an interest in a joint venture that owns the Property in its own name.”  Id. The Hudon defendants, arguing on the Lassens' behalf in opposition, did not contend that the Lassens did not have legal title to the property.  (Underlying Action, # 102.)   Instead, the Hudon defendants contended that the Lassens had an interest in the entity that held legal title to the property, the CHRA, and, therefore, had standing to bring claims arising from ownership in the property.  Id., see also (Underlying Action, # 127).

The Hudon defendants cited Connecticut case law to support the position that “the term owner can be construed differently than the term title.” ¹⁹  (Emphasis added;  internal quotation marks omitted.)  (Underlying Action, # 102);  see, e.g., Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 329, 852 A.2d 703 (2004) (“The term ‘owner’ is one of general application and includes one having an interest other than the full legal and beneficial title ․ The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right ․ It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof”);  Hope v. Cavallo, 163 Conn. 576, 580–84, 316 A.2d 407 (1972) (although not title holder, state was owner of truck and subject to suit under General Statutes § 52–556, because state had exclusive possession and control over truck, and insured it);  Gill v. Petrazzuuoli Bros., Inc., 10 Conn.App. 22, 28, 521, A.2d 212 (1987) (“Because of our conclusion that an owner of an automobile may be a person other than the title or registration holder, we hold that the plaintiff had the requisite standing, as an owner, to bring an action for the loss of the car”);  DeLeon v. Fonda, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–97–0059096–S (April 2, 1998, Ripley, J.T.R.) (partner has standing to bring cause of action against another partner under § 34–339(b) to enforce rights related to status of property despite property's title being in partnership's name).

The court, Pittman, J., denied Ogren's motion and articulated.  “The [Lassens] have filed an affidavit of Susan Lassen that tends to show that the plaintiffs continue to have an interest in an entity that owns the Cambridge Heights property and that the plaintiffs are being deprived of the monetary benefits of that ownership by the conduct of the defendant.  [Ogren] has filed an affidavit and a set of documents that tends to show that he purchased Susan Lassen's interest in the partnership that owned the Cambridge Heights property.   These competing documents present a question of fact.”  (Emphasis added.)  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.

The Hudon defendants argue that the ownership claims were based on the Lassens' interest in the CHRA, the entity that held title to the property.   This court held in part III A1 of this decision that there is no genuine issue of material fact that the Hudon defendants had probable cause to assert claims based on the Lassens' purported interest in the CHRA. Arthur Hudon has averred that he filed the underlying action after reviewing relevant documents and conducting legal research.   A review of the record from the underlying case demonstrates that the Hudon defendants had a good faith basis for prosecuting the underlying ownership claims, which is apparent through their use of legal authority to support their argument that an owner has a broader definition than a legal title holder.   In denying Ogren's motion, even the underlying court, Pittman, J., found that Susan Lassen's affidavit, which supported the ownership claims through a claimed interest in the CHRA, created an issue of fact.²⁰  This court finds that the Hudon defendants have met their burden of showing the nonexistence of any issue of fact that a reasonable attorney familiar with Connecticut law would believe that he or she had probable cause to bring the ownership claims in the underlying action.

Ogren argues that the Hudon defendants could not have harbored a reasonable, good faith belief that the Lassens owned the property because they knew that the CHRA actually held legal title to the property when they commenced the underlying action.   Ogren additionally asserts that “the Hudon Defendants cannot pick an extremely broad statement out of case law such as the term owner is one of general application and flexible meaning, and argue that the general principle allows any plaintiff to assert that he or she is the owner of property based on whatever definition of owner that party chooses to apply.”   (Internal quotation marks omitted.)  (Pl.Mem., # 185.)   This court is not persuaded.

Our Supreme Court has held that the outcome of an action is not indicative of whether there was probable cause to commence and prosecute that action.   See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103.   Moreover, there is strong public policy in this state against deterring attorneys from pursuing causes of action that may have a very low likelihood of success or advocating for changes in the law.  “The 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 ․ 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;  emphasis added;  internal quotation marks omitted.)  Id., 103–04;  see also Rules of Professional Conduct 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law ․” [emphasis added] ).

Neither party has disputed that the ownership claims were rejected by the trial court.   Nevertheless, the standard for probable cause is “necessarily dependent on what the attorney knew when he or she initiated the lawsuit.”   (Emphasis added.)  Embalmers' Supply Co, v. Giannitti, supra, 103 Conn.App. 35.   The Hudon defendants have demonstrated that they had a reasonable, good faith belief in asserting the ownership claims based upon the Lassens' alleged interest in the CHRA, the entity that held title to the property.   Ogren has failed to present evidence that demonstrates the existence of some disputed factual issue regarding the ownership claims.²¹  Indeed, an attorney would have a near impossible task of pursuing “novel, although potentially unsuccessful, legal theories”;  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103;  without the ability to urge courts to apply general statements of case law in new ways.   This court, therefore, finds that there is no genuine issue of material fact that a reasonable attorney familiar with Connecticut law would have believed he had probable cause to bring the ownership claims.²²

3.

The Appeal

Ogren has alleged that “[t]he appeal was commenced and/or prosecuted without probable cause, and the Lassens and the Hudon Defendants lacked a reasonable, good faith belief that the appeal was timely filed or that any of the grounds for the appeal had merit.”   After the underlying trial court entered its decision, the Hudon defendants filed a motion for extension of time to file an appeal on the Lassens' behalf on October 11, 2011.²³  Ogren objected to that motion.   The Hudon defendants filed an appeal on November 7, 2013.   Ogren filed a motion to dismiss that appeal with the Appellate Court on the grounds that it was not timely filed.   The Lassens withdrew the appeal on December 1, 2011.

The Hudon defendants argue that Arthur Hudon believed that the appeal was timely because he had filed a motion for extension of time before the statutory period had elapsed.   The Hudon defendants have provided Arthur Hudon's affidavit, wherein he averred that he “did not agree with the court's decision ․ and filed a motion for extension of time, in order to investigate the issues to be raised on appeal.”  (Hudon affidavit, # 162.)   Hudon also averred that he “believed that due to the motion for extension of time, the appeal would be timely.”  Id. Ogren argues that the Hudon defendants lacked probable cause to believe that their appeal was timely filed because they “never marked their motion for extension of time ready for adjudication or otherwise obtained adjudication of the motion.”  (Pl.Mem., # 192.)   According to Ogren “the mere filing of the motion of extension of time could not, in and of itself, have served to extend the deadline to appeal.”  Id.

In parts III A1 and 2 of this decision, this court found that there is no issue of material fact that the Hudon defendants had probable cause to commence and prosecute the CHRA and ownership claims in the underlying action.   The trial court entered judgment in favor of Ogren on all counts;  the Hudon defendants did not agree with that holding.   Therefore, the court finds that there is no genuine issue of material fact that the Hudon defendants had probable cause to file an appeal the merits of that decision.   The court additionally finds that the Hudon defendants demonstrated that there is no genuine issue of material fact they had probable cause to file an appeal beyond the twenty-day period prescribed under Rules of Appellate Procedure § 66–1.   It is not disputed that the Hudon defendants filed a motion for extension of time before that period expired.   While that motion has never been marked for adjudication, Hudon has averred that he thought the appeal was timely filed due to filing the motion for an extension of time.

Ogren is correct that, for the purposes of appealing to the Appellate Court, merely filing of a motion for extension of time does not extend the deadline.   However, for the purposes of determining whether there was probable cause to file an appeal in the underlying action, this court finds that the Hudon defendants have demonstrated a reasonable, good faith belief in the validity of the filed appeal.   First, it is not disputed that there was a pending motion for extension of time when the appeal was filed.   Although merely filing a motion for an extension of time does not extend the filing deadline, it is not disputed that the appeal would have been timely if the filed motion for an extension was granted.   Additionally, failing to timely file an appeal is a waivable, nonjurisdictional defect.   See Parlato v. Parlato, 134 Conn.App. 848, 850 n.1, 41 A.3d 327 (2012) (“The twenty-day time limit set forth in Practice Book § 63–1(a) ․ is not jurisdictional, and where the appellee has failed to file a motion to dismiss the appeal within the ten-day time limit set forth in Practice Book § 66–8, we have deemed any claim of untimeliness to be waived”).   Therefore, this court finds there is no genuine issue of material fact that the Hudon defendants had probable cause to appeal the underlying action.

This court has held that there is no genuine issue of material fact that the Hudon defendants had probable cause to commence and prosecute the CHRA and ownership claims and to appeal the underlying trial court decision.   Therefore, the Hudon defendants' motion for summary judgment is granted and Ogren's motion for summary judgment is denied as to count one against the Hudon defendants.

B

The Lassens

The Lassens, who are self-represented, have filed a motion for summary judgment and objection and have “adopt[ed] the brief and arguments submitted by the co-defendant, Arthur Hudon ․” Lassen Mem., # 190 & # 191.   Ogren argues that the Lassens' motion must be denied on procedural grounds and because the Lassens and the Hudon defendants “stand in different positions in relation to the plaintiff, and therefore the Lassens cannot simply ‘adopt’ the arguments and positions of their co-defendant.”  (Pl.Mem., # 192.)

Ogren first argues that the Lassens' motion must be denied because the Lassens failed to obtain the court's permission to file the motion pursuant to Practice Book § 17–44.²⁴  This matter has been scheduled for trial and jury selection is scheduled for January 14, 2014.   This court is aware that “Practice Book § 17–44 ․ provides that a party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”  Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn.App. 136, 140 n.3, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000).   No such motion for leave has been filed here.

The Hudon defendants' motion for summary judgment, which the Lassens fully adopt, was first filed in June 2013, in plenty of time to have the matter decided without interfering with trial or trial preparation.   The Hudon defendants thereafter moved for permission to file said motion nunc pro tunc, and said motion was granted by the court, Abrams, J., on July 8, 2013.   The Hudon defendants and Ogren have thoroughly briefed all issues raised in the cross motions for summary judgment.   The Lassens appeared on their own behalf at oral argument on this matter.   Accordingly, the court will not refuse to consider the Lassens' motion for summary judgment because of the technical failure of the Lassens to first obtain leave to file the motion.   See Wallace v. Connecticut Union Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV–96–0131386 (October 24, 2001, Pittman, J.) (30 Conn. L. Rptr. 613) (entertaining defendants' motion for summary judgment where no permission motion for leave had been filed).

“The test for deciding whether a litigant acted with probable cause also is well settled.   For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of ․ Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.”  (Emphasis in original;  internal quotation marks omitted.)   Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94–95.

The Hudon defendants have adopted the Hudon defendants' arguments in full.   As previously stated, Arthur Hudon averred that the underlying action was referred to him in 2006 and he met with the Lassens and spoke with them over the telephone a number of times prior to initiating the underlying action.  (Hudon affidavit, # 162.)   Hudon has additionally averred that he “questioned the Lassens extensively, both to obtain a full and accurate account of the joint venture, property and bankruptcy history and to test my understanding of the pertinent facts.”  Id. In part III A1 a of this decision, the court described the information that Arthur Hudon averred was conveyed to him by Lassens.

Ogren contends that the Lassens cannot rely solely on the materials submitted by the Hudon defendants because the Lassens and their co-defendants stand in different positions and, consequently, the Lassens must submit evidence as to what their respective knowledge of the facts was, which they have failed to do.   This court agrees.

It is well established that “the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one. ”  (Emphasis added.)  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 95.   Nevertheless, the Lassens have not submitted their own affidavits or other evidence attesting to their knowledge of the facts at the time the suit was initiated.   Although the Hudon defendants have submitted an affidavit attesting to what the Lassens conveyed to their attorney, the Lassens themselves have submitted no evidence regarding their knowledge of the facts at the time the underlying case was commenced.   Therefore, the court is unable to conclude, at this time, that the Lassens had “knowledge of facts ․ strong enough to justify a reasonable man in the belief that he ha[d] lawful grounds for prosecuting” the underlying action.  Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94–95.   In the absence of such personal affidavits or other evidence, the court is unable to grant summary judgment in favor of the Lassens, as they have failed to meet their burden of demonstrating that there is no genuine issue of material fact that they had probable cause to commence the underlying action.   Accordingly, their motion for summary judgment is denied without prejudice.   See Reed v. Coletta, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 11–6018275 S (Nov. 15, 2012, Fischer, J.) (2012 Ct.Sup. 3020) (motion for summary judgment denied without prejudice in the absence of supporting documents);  GGCP, Inc. v. Frank Crystal & Co., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 06 5001622 (July 8, 2008, Jennings, J.) (45 Conn. L. Rptr. 840, 842) (court denied defendant's motion for order “without prejudice to renewal ․ because, in the court's view ․ the briefs and materials submitted by the parties do not squarely address the precise issues in dispute or provide the court with an adequate basis [for] deciding the ․ issue”).

Additionally, Ogren has failed to meet his burden of demonstrating that he is entitled to summary judgment.   This court has granted the Hudon defendants' motion for summary judgment and held there is no genuine issue of material fact that the Hudon defendants had probable cause to initiate the underlying action.   Arthur Hudon relied upon the information provided by the Lassens, “considered the Lassens' account to be coherent and convincing” and, after reviewed relevant documents and conducting research, filed the action on their behalf.²⁵  (Hudon affidavit, # 162.)   While the materials submitted by the Hudon defendants may be at this time insufficient for the court to grant summary judgment on the Lassens' behalf, they are sufficient to demonstrate factual issues precluding Ogren's motion for summary judgment.   There are as yet unresolved factual issues regarding the whether the Lassens had probable cause to initiate and prosecute the underlying action and, therefore, Ogren's motion for summary judgment is denied.

The Lassens' and Ogren's motions cross motions for summary judgment are denied.

IV

CONCLUSION

The Hudon defendants' motion for summary judgment is granted and Ogren's corresponding objection is overuled.   The Lassens' motion for summary judgment is denied without prejudice, and Ogren's objection to that motion is sustained.   Ogren's motion for summary judgment is denied and the corresponding objections are sustained.

BY THE COURT

Gleeson, J.

FOOTNOTES

FN1. In this decision, Alfred Lassen and Susan Lassen are collectively referred to as “the Lassens” and Arthur Hudon and the Law Offices of Arthur Hudon are collectively referred to as the “Hudon defendants.”.  FN1. In this decision, Alfred Lassen and Susan Lassen are collectively referred to as “the Lassens” and Arthur Hudon and the Law Offices of Arthur Hudon are collectively referred to as the “Hudon defendants.”

FN2. The court has taken judicial notice of the underlying action's record as well as the record of its subsequent appeal to the Appellate Court, filed under docket number 34007.  “There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties.”  (Internal quotation marks omitted.)  Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995)..  FN2. The court has taken judicial notice of the underlying action's record as well as the record of its subsequent appeal to the Appellate Court, filed under docket number 34007.  “There is no question that the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties.”  (Internal quotation marks omitted.)  Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995).

FN3. At formation, Susan Lassen and Ogren each owned 25% of the CHRA;  Czaplicki owned the remaining 50%.  (Hudon Mem., # 163, Exh C.).  FN3. At formation, Susan Lassen and Ogren each owned 25% of the CHRA;  Czaplicki owned the remaining 50%.  (Hudon Mem., # 163, Exh C.)

FN4. Czaplicki owned Falcon;  Alfred Lassen and Ogren jointly owned OVL. Alfred Lassen eventually ended his involvement in the company and his interest was sold to Ogren at a 2005 bankruptcy trustee auction.   Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. CV–07–5004349–S (September 28, 2011, Swienton, J.)..  FN4. Czaplicki owned Falcon;  Alfred Lassen and Ogren jointly owned OVL. Alfred Lassen eventually ended his involvement in the company and his interest was sold to Ogren at a 2005 bankruptcy trustee auction.   Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. CV–07–5004349–S (September 28, 2011, Swienton, J.).

FN5. The trial court decision stated that Susan Lassen purchased the interest in the CHRA at the 2005 trustee auction for $28,025 because she purchased the interest for $36,000 and used a credit of $8,000 as an exemption.  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S..  FN5. The trial court decision stated that Susan Lassen purchased the interest in the CHRA at the 2005 trustee auction for $28,025 because she purchased the interest for $36,000 and used a credit of $8,000 as an exemption.  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.

FN6. Ogren purchased Czaplicki's interest in the CHRA shortly after the trustee's auction, making Ogren the only other CHRA member and, consequently, sole defendant when the underlying action was initiated.   Hudon Affidavit, # 162..  FN6. Ogren purchased Czaplicki's interest in the CHRA shortly after the trustee's auction, making Ogren the only other CHRA member and, consequently, sole defendant when the underlying action was initiated.   Hudon Affidavit, # 162.

FN7. It is noted that the parties in the underlying action never raised the issue of whether the Lassens or the Hudon defendants had probable cause to bring the underlying action against Ogren;  accordingly neither Judge Swienton nor Judge Pittman addressed that issue.   The decisions and factual findings from the underlying action are, therefore, not dispositive regarding probable cause..  FN7. It is noted that the parties in the underlying action never raised the issue of whether the Lassens or the Hudon defendants had probable cause to bring the underlying action against Ogren;  accordingly neither Judge Swienton nor Judge Pittman addressed that issue.   The decisions and factual findings from the underlying action are, therefore, not dispositive regarding probable cause.

FN8. The trial court rejected the Lassens' testimony that “the plaintiffs were the successful bidders at the auction;  that Susan attempted to transfer her interest to her husband;  that she believes she is still the owner of the 25 percent interest because the document is not filed on the land records;  and that although Alfred believes he is the owner, he also correctly recognizes that as a married couple both Lassens are considered the owners.”  (Internal quotation marks omitted.)  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S..  FN8. The trial court rejected the Lassens' testimony that “the plaintiffs were the successful bidders at the auction;  that Susan attempted to transfer her interest to her husband;  that she believes she is still the owner of the 25 percent interest because the document is not filed on the land records;  and that although Alfred believes he is the owner, he also correctly recognizes that as a married couple both Lassens are considered the owners.”  (Internal quotation marks omitted.)  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S.

FN9. General Statutes § 52–568(1) provides in relevant part:  “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 ․” (Emphasis added.).  FN9. General Statutes § 52–568(1) provides in relevant part:  “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 ․” (Emphasis added.)

FN10. Ogren cites General Statutes § 52–576, which provides a six-year statute of limitation for breach of contract actions, and General Statutes § 42–110g(f), which provides a three-year period to bring an action under CUTPA..  FN10. Ogren cites General Statutes § 52–576, which provides a six-year statute of limitation for breach of contract actions, and General Statutes § 42–110g(f), which provides a three-year period to bring an action under CUTPA.

FN11. The dispute between Falcon and Ogren regarding the financial affairs of the CHRA was the topic of litigation in Czaplicki v. Ogren, 87 Conn.App. 779, 868 A.2d 61 (2005)..  FN11. The dispute between Falcon and Ogren regarding the financial affairs of the CHRA was the topic of litigation in Czaplicki v. Ogren, 87 Conn.App. 779, 868 A.2d 61 (2005).

FN12. The Hudon defendants have attached a portion of Ogren's deposition from August 26, 2010.   Ogren admitted in his deposition that he had entered a bid in excess of $18,000 at the May 2005 trustee auction where Susan Lassen purchased the disputed ownership interest in the CHRA. (Hudon Mem., # 163, Exh. F.).  FN12. The Hudon defendants have attached a portion of Ogren's deposition from August 26, 2010.   Ogren admitted in his deposition that he had entered a bid in excess of $18,000 at the May 2005 trustee auction where Susan Lassen purchased the disputed ownership interest in the CHRA. (Hudon Mem., # 163, Exh. F.)

FN13. Specifically, the Hudon defendants cited Appellate Court language that distinguished “dissolution” and “winding up”:  “The act of dissolution is merely the commencement of the winding up process ․ Winding up the partnership business entails selling its assets, paying its debts, and distributing the net balance, if any, to the partners in cash according to their interests ․ When the winding up is completed, the partnership entity terminates ․ Dissolution is not in itself a termination of the partnership or the rights and powers of partners, for many of these persist during the winding up process.   Rather, the term is descriptive of a change in the partnership relation which ultimately culminates in its termination, and is but a preparatory step to termination in which an accounting and a wind-up of the business are also necessary steps ․ After dissolution, partners are still held to be liable, and have duties to maintain, amongst each other.”  (Emphasis added;  citation omitted;  internal quotation marks omitted.)  Curley v. Kaiser, supra, 112 Conn.App. 225–26..  FN13. Specifically, the Hudon defendants cited Appellate Court language that distinguished “dissolution” and “winding up”:  “The act of dissolution is merely the commencement of the winding up process ․ Winding up the partnership business entails selling its assets, paying its debts, and distributing the net balance, if any, to the partners in cash according to their interests ․ When the winding up is completed, the partnership entity terminates ․ Dissolution is not in itself a termination of the partnership or the rights and powers of partners, for many of these persist during the winding up process.   Rather, the term is descriptive of a change in the partnership relation which ultimately culminates in its termination, and is but a preparatory step to termination in which an accounting and a wind-up of the business are also necessary steps ․ After dissolution, partners are still held to be liable, and have duties to maintain, amongst each other.”  (Emphasis added;  citation omitted;  internal quotation marks omitted.)  Curley v. Kaiser, supra, 112 Conn.App. 225–26.

FN14. Section 10.1(b) of the joint venture agreement provided that the purchase price of a disassociated joint venturers' interest in liquidation would be “an amount equal to the amount that would have been distributed under Section 10.4 to the other Joint Venturers upon dissolution of the Joint Venture if the assets of the Joint Venture had been sold in dissolution ․” (Hudon Mem., # 163, Exh. C.).  FN14. Section 10.1(b) of the joint venture agreement provided that the purchase price of a disassociated joint venturers' interest in liquidation would be “an amount equal to the amount that would have been distributed under Section 10.4 to the other Joint Venturers upon dissolution of the Joint Venture if the assets of the Joint Venture had been sold in dissolution ․” (Hudon Mem., # 163, Exh. C.)

FN15. General Statutes § 34–362(b) provides:  “The buyout price of a dissociated partner's interest is the amount that would have been distributable to the dissociating partner under subsection (b) of section 34–378 if, on the date of dissociation, the assets of the partnership were sold at a price equal to the greater of the liquidation value or the value based on a sale of the entire business as a going concern without the dissociated partner and the partnership were wound up as of that date.   Interest must be paid from the date of dissociation to the date of payment.”.  FN15. General Statutes § 34–362(b) provides:  “The buyout price of a dissociated partner's interest is the amount that would have been distributable to the dissociating partner under subsection (b) of section 34–378 if, on the date of dissociation, the assets of the partnership were sold at a price equal to the greater of the liquidation value or the value based on a sale of the entire business as a going concern without the dissociated partner and the partnership were wound up as of that date.   Interest must be paid from the date of dissociation to the date of payment.”

FN16. Ogren additionally alleges that the Hudon defendants had a conflict of interest in representing both the Lassens in the underlying action;  however, a potential conflict of interest is unrelated to the present issues before the court..  FN16. Ogren additionally alleges that the Hudon defendants had a conflict of interest in representing both the Lassens in the underlying action;  however, a potential conflict of interest is unrelated to the present issues before the court.

FN17. Ogren initially moved to dismiss claims made on Alfred Lassen's behalf in the underlying action on the ground that he did not have standing to bring CHRA claims.  (Underlying Action, # 101.).  FN17. Ogren initially moved to dismiss claims made on Alfred Lassen's behalf in the underlying action on the ground that he did not have standing to bring CHRA claims.  (Underlying Action, # 101.)

FN18. Because the court finds that there is no genuine issue of material fact that the Hudon defendants had probable cause to bring the CHRA claims, the court additionally rejects Ogren's argument that there is a factual issue as to whether there was probable cause to bring the CHRA claims in light of the applicable statutes of limitation.   See General Statutes § 42–110g(f) and General Statutes § 52–576.   There is no genuine issue that the Hudon defendants had probable cause to believe that the Lassens' interest in the CHRA still had value after Susan Lassen purchased her interest at the 2005 trustee auction.   The Hudon defendants, therefore, also had probable cause to believe that the underlying action was not barred by applicable statutes of limitation because it was initiated within two years of the trustee auction..  FN18. Because the court finds that there is no genuine issue of material fact that the Hudon defendants had probable cause to bring the CHRA claims, the court additionally rejects Ogren's argument that there is a factual issue as to whether there was probable cause to bring the CHRA claims in light of the applicable statutes of limitation.   See General Statutes § 42–110g(f) and General Statutes § 52–576.   There is no genuine issue that the Hudon defendants had probable cause to believe that the Lassens' interest in the CHRA still had value after Susan Lassen purchased her interest at the 2005 trustee auction.   The Hudon defendants, therefore, also had probable cause to believe that the underlying action was not barred by applicable statutes of limitation because it was initiated within two years of the trustee auction.

FN19. Ogren has claimed that the Hudon defendants “do not provide even a single citation to authority to support” their position that they had probable cause to maintain an ownership in the joint venture necessarily included an interest in the property.  (Pl.Mem., # 185.)   A review of the underlying action's record reveals several Connecticut cases that the Hudon defendants relied upon in the underlying action, however..  FN19. Ogren has claimed that the Hudon defendants “do not provide even a single citation to authority to support” their position that they had probable cause to maintain an ownership in the joint venture necessarily included an interest in the property.  (Pl.Mem., # 185.)   A review of the underlying action's record reveals several Connecticut cases that the Hudon defendants relied upon in the underlying action, however.

FN20. Ogren misconstrues the court's holding regarding his “Motion to Dismiss and/or Summary Judgment” by claiming that the court merely held that the Lassens alleged they had an ownership interest in the property.   In deciding that motion, the court specifically held that issues of material fact existed because Susan Lassen's affidavit indicated “that the plaintiffs continue to have an interest in an entity that owns the Cambridge Heights property.”  (Emphasis added.)  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S (June 24, 2008, Pittman, J.)..  FN20. Ogren misconstrues the court's holding regarding his “Motion to Dismiss and/or Summary Judgment” by claiming that the court merely held that the Lassens alleged they had an ownership interest in the property.   In deciding that motion, the court specifically held that issues of material fact existed because Susan Lassen's affidavit indicated “that the plaintiffs continue to have an interest in an entity that owns the Cambridge Heights property.”  (Emphasis added.)  Lassen v. Ogren, supra, Superior Court, Docket No. CV–07–5004349–S (June 24, 2008, Pittman, J.).

FN21. Ogren has urged the court to review the underlying complaint because “there is not a single mention anywhere in any of those counts of CHRA or of the Joint Venture Agreement.”  (Pl.Mem., # 185.)   A review of the record demonstrates that the issue of whether the Lassens' could assert ownership claims based upon their claimed interest in the CHRA was litigated during the underlying case.Judge Swienton and Judge Pittman both addressed this theory in the underlying case.   See, e.g., Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. 07–5004349–S (September 28, 2011, Swienton, J.) (“plaintiffs also lack standing to enforce the property rights because the Property is owned not by the plaintiffs but by an entity in which one or both of the plaintiffs claim to have some ownership interest”), Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. 07–5004349–S (June 24, 2008, Pittman, J.) (Susan Lassen's affidavit indicated “that the plaintiffs continue to have an interest in an entity that owns the Cambridge Heights property”).   This court, therefore, does not find that Ogren's assertion demonstrates the existence of a disputed factual issue regarding probable cause..  FN21. Ogren has urged the court to review the underlying complaint because “there is not a single mention anywhere in any of those counts of CHRA or of the Joint Venture Agreement.”  (Pl.Mem., # 185.)   A review of the record demonstrates that the issue of whether the Lassens' could assert ownership claims based upon their claimed interest in the CHRA was litigated during the underlying case.Judge Swienton and Judge Pittman both addressed this theory in the underlying case.   See, e.g., Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. 07–5004349–S (September 28, 2011, Swienton, J.) (“plaintiffs also lack standing to enforce the property rights because the Property is owned not by the plaintiffs but by an entity in which one or both of the plaintiffs claim to have some ownership interest”), Lassen v. Ogren, Superior Court, judicial district of New Britain, Docket No. 07–5004349–S (June 24, 2008, Pittman, J.) (Susan Lassen's affidavit indicated “that the plaintiffs continue to have an interest in an entity that owns the Cambridge Heights property”).   This court, therefore, does not find that Ogren's assertion demonstrates the existence of a disputed factual issue regarding probable cause.

FN22. In determining whether there is a genuine issue as to whether the Hudon defendants had probable cause to commence and prosecute the underlying action, this court likewise rejects Ogren's reliance on General Statutes § 34–313, which provides that “[a] partnership is an entity distinct from its partners,” and General Statutes § 34–315, which states that “[p]roperty acquired by a partnership is property of the partnership and not of the partner individually.”   In the underlying action, the Hudon defendants did not contend that the Lassens themselves had legal title to the property, but rather, claimed that the Lassens had the right to bring causes of action arising from an ownership interest in the property through their claimed interest in the CHRA..  FN22. In determining whether there is a genuine issue as to whether the Hudon defendants had probable cause to commence and prosecute the underlying action, this court likewise rejects Ogren's reliance on General Statutes § 34–313, which provides that “[a] partnership is an entity distinct from its partners,” and General Statutes § 34–315, which states that “[p]roperty acquired by a partnership is property of the partnership and not of the partner individually.”   In the underlying action, the Hudon defendants did not contend that the Lassens themselves had legal title to the property, but rather, claimed that the Lassens had the right to bring causes of action arising from an ownership interest in the property through their claimed interest in the CHRA.

FN23. Pursuant to Rules of Appellate Procedure § 63–1(a), “an appeal must be filed within twenty days of the date notice of the judgment or decision is given” unless an extension is given pursuant to Rules of Appellate Procedure § 66–1(a)..  FN23. Pursuant to Rules of Appellate Procedure § 63–1(a), “an appeal must be filed within twenty days of the date notice of the judgment or decision is given” unless an extension is given pursuant to Rules of Appellate Procedure § 66–1(a).

FN24. Practice Book § 17–44 provides in relevant part:  “In any action, except administrative appeals which are not enumerated in Section 14–7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial ․”.  FN24. Practice Book § 17–44 provides in relevant part:  “In any action, except administrative appeals which are not enumerated in Section 14–7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial ․”

FN25. Ogren suggests that the court cannot rely on Arthur Hudon's affidavit to support the Lassens' motion for summary judgment because “[i]t is possible ․ Attorney Hudon was told something by the Lassens and reasonably relied thereon, whereas the Lassens may have known that to be untrue.”  (Def.Mem., # 192.)   Ogren has presented no evidence, however, contradicting the veracity of the account that the Arthur Hudon averred that the Lassens gave him prior to commencing the underlying action.   This court, therefore, finds this argument to be unpersuasive.  “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11..  FN25. Ogren suggests that the court cannot rely on Arthur Hudon's affidavit to support the Lassens' motion for summary judgment because “[i]t is possible ․ Attorney Hudon was told something by the Lassens and reasonably relied thereon, whereas the Lassens may have known that to be untrue.”  (Def.Mem., # 192.)   Ogren has presented no evidence, however, contradicting the veracity of the account that the Arthur Hudon averred that the Lassens gave him prior to commencing the underlying action.   This court, therefore, finds this argument to be unpersuasive.  “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.

Gleeson, Marcia J., J.