Nancy Forsstrom v. Robert E. Smanik et al. (2014)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

Before this court is defendants' motion for summary judgment.   Plaintiff here sues the hospital, her former employer, and Robert Smanik, its Chief Executive Officer, for what she claims was their vexatious defense of an earlier suit she brought relative to the circumstances of her termination and severance pay.   She seeks damages from both defendants.   They raise several defenses to this suit and contend it should be summarily adjudicated.

I. Details of the Prior Action (“Morrow v. Day Kimball Hospital ”)

Named Nancy Morrow at the time, plaintiff filed a complaint in this judicial district on December 30, 2009, against Day Kimball Hospital, docket number WWM–CV–16001074S.   There is no dispute that plaintiff had worked at the hospital for some time prior to August 21, 2009, in various capacities.   On that date, in the course of a meeting between her and Smanik, her employment effectively came to an end.¹  She left unhappy with the terms of her separation, both as to its label and more acutely as to her belief that she was entitled to severance pay at a certain level.   Her complaint set forth her grievance against the defendant in three counts.   The essence of each is that Smanik, the hospital's chief executive officer, had 1) terminated her without cause (count one, captioned “Breach of Contract”);  2) that the hospital had reneged on a policy requiring that it pay her severance pay equal to either six or twelve months' salary (count two, “Promissory Estoppel”);  and that “the defendant breached its clear and definite promise to pay the plaintiff severance pay and did so with tortious intent” (count three, “Breach of Covenant of Good Faith and Fair Dealing”).   The three counts are intimately related, in that the second and third incorporate verbatim the allegations of the first, with the second adding that simple allegation of a promise broken, and the third adding the claim that the breach of contract was intentional and tortious.

In its answer, the hospital admitted some of her allegations as to the background of her employment relationship, but denied each of the complaint's material allegations of wrongdoing on its part.   It did not assert any special defenses.

Ultimately, the case reached a jury.   The jury rendered a defendant's verdict on counts one and three, and a plaintiff's verdict on count two.   It awarded her $41,200 in severance pay.   The trial court (Vacchelli, J.) denied a motion to set aside the verdict, and entered judgment for the plaintiff in the amount of $41,200.   Defendant appealed, but a few weeks later satisfied the judgment and withdrew the appeal.

II. Specific Allegations Made in This Suit

Now known as Nancy Forsstrom, plaintiff filed this action on August 20, 2012.   The two counts of her complaint share twenty-six paragraphs.   The first count aims at the behavior of the hospital and of Smanik in his official capacity and in its caption states that it is brought on account of their “asserting defenses in prior lawsuit without probable cause and with malicious intent to vex and trouble the plaintiff,” pursuant to Conn. Gen.Stat. 52–568.”

To fully grasp the present motion requires an understanding of the precise allegations she has made.   The first sixteen paragraphs recite her version of the events of 2009, culminating in paragraph 17's note that “plaintiff was forced to bring a lawsuit in Superior Court in the Judicial District of Windham.”   She asserts that in the jury trial, held between June 7 and June 17 of 2011, defendants' participation was vexatious because:

¶ 18 The jury found as a matter of fact that the plaintiff had been promised by the personnel manual to six months' severance pay.   The defendants' post-trial challenge was rejected by the court, and the court entered judgment in the amount of six months' severance pay.

¶ 19 Defendant Smanik attended the trial as the representative of Day Kimball Hospital and testified in the hospital's defense.

¶ 20 The hospital presented two defenses.   One was that there was no clear and definite promise in the personnel manual for severance pay.   The second defense was that the plaintiff was terminated for cause and therefore was not entitled to severance pay.

¶ 21 Both defenses were patently false and were pursued by Smanik and Day Kimball Hospital in bad faith, without probable cause, and with malicious intent to vex and trouble the plaintiff.

¶ 22 It was revealed at trial that after Smanik told the plaintiff he would speak to the Board to see if the Board would agree to enhance severance, what he really did was tell the Board the plaintiff had quit voluntarily and therefore was owed no severance pay at all.   Defendant Smanik intentionally and with malice misled the Board of Directors in order to deprive the plaintiff of severance pay.

¶ 23 By asserting in the litigation the claim that the plaintiff voluntarily quit, the defendants deliberately were untruthful.   In upholding the jury award, the court held:

[S]he was in financial jeopardy and had no new job prospects at the time.   She wanted to stay, but was leaving because her employer was unhappy with her performance.   She was leaving under pressure to resign.   She resigned to save face, and in a mutual parting of the ways.   She was familiar with the hospital practice in providing severance pay in similar cases pursuant to the personnel policy manual, and there was evidence in the case that the hospital had consistently given severance pay in similar situations.   Thus, there was ample evidence that plaintiff was leaving in reliance on getting a promised severance pay.

¶ 24 Even though the plaintiff eventually won the trial and was paid her severance pay, she did not personally receive any money.   The defendants forced her to incur legal expenses in excess of her severance pay.

¶ 25 The defendants' refusal also caused the plaintiff extreme emotional distress after her termination and during prosecution of her lawsuit.   This included having to endure the defendants misrepresenting her character, talents, and work performance.

¶ 26 The plaintiff claims double or treble damages.

Essentially, then, there are three aspects to her claim of vexatious litigation, stemming from defendants' assertions as to:  1) severance pay, specifically defendants' assertion that “there was no clear and definite promise in personnel policy manual for severance pay” (¶ 20), a defense that was “patently false and pursued in bad faith, without probable cause, and with malicious intent to vex and trouble the plaintiff” (¶ 21), after Smanik had told “the Board that plaintiff had quit voluntarily and therefore was owed no severance pay at all ․ with malice” (¶ 22);  2) that she was terminated for cause, which, she alleges, involves their assertion at trial “that the plaintiff was terminated for cause and therefore was not entitled to severance pay” ¶ 20), and is also a defense that was “patently false and pursued in bad faith, without probable cause, and with malicious intent to vex and trouble the plaintiff” (¶ 21), and which further caused her to have “to endure the defendants misrepresenting her character, talents, and work performance” (¶ 25);  and, finally, 3) that she voluntarily resigned, evident by their contention throughout the litigation—deliberately and untruthfully—”that the plaintiff voluntarily quit” (¶ 23).

The second count adds four paragraphs aimed at Smanik personally, attributing to him a malicious intent to benefit and enrich himself by means of misleading statements of fact both to plaintiff and to the board of directors of their employer, the hospital, and that he directed the hospital to defend against her suit in the absence of probable cause (¶¶ 27–29).   The court construes the second count as an effort to achieve a judgment against him individually under the vexatious litigation statute.²

III. Elements of an Action for Vexatious Defense

§ 52–568 provides a remedy to anyone injured by the decision of an opposing party to “commence and prosecute any civil action or complaint” or to “assert a defense to any civil action or complaint” without probable cause;  and, if malice be shown, the available damages are augmented.   The term “vexatious litigation” applies to such behavior on the part of a plaintiff in the first suit, as well as to such conduct on the part of a prior defendant—although, as to defendants, the unacceptable conduct is sometimes referred to as “vexatious defense.”   Suits against those who were plaintiffs in the first instance appear to outnumber those against former defendants by some order of magnitude, and few of the latter have yielded lengthy decisions;  it is undisputed, nevertheless, that the two categories are mirror images of each other and analytically indistinguishable;  see, Berry v. Gormley, CV01 038 33 82, Superior Court, judicial district of Bridgeport (November 26, 2002;  Wolven, J.).

To prevail on a claim of vexatious litigation behavior under this statute, a plaintiff must establish in the second case three essential elements:  “(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).  “[T]o establish a claim for vexatious litigation at common law, one must prove ‘want of probable cause, malice and a termination of suit in the plaintiff's favor.’  ․ The statutory cause of action for vexatious litigation ․ ‘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;’ “ Bernhard–Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554 (2008).  “[T]he tort of vexatious litigation sets forth stringent requirements that a plaintiff must meet in order successfully to prevail on a claim.   The elements utilize a balancing test that effectively protects the interests of both complaining witnesses and individuals charged in complaints, and properly ensures that complaining witnesses who bring claims in good faith will be insulated from suit;  Rioux v. Barry, 283 Conn. 338, 351 (2007) ․ In an action of this nature, “[t]he existence of probable cause is an absolute protection ․ and what facts, and whether particular facts, constitute probable cause is always a question of law;” Vandersluis v. Weil, 176 Conn. 353, 356 (1978).

In Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84 (2007), the Court elucidated many of the principles controlling the case at bar.  “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 ․ [t]he existence of probable cause is an absolute protection ․ [and] whether particular facts constitute probable cause is always a question of law”;  id., 94.  (Citations omitted.)  “․ 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 ․ Accordingly, the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one”;  id., 94–95.   (Citations omitted.)  “[T]he definition of civil probable cause that was set forth by this court more than 100 years ago ․ has not changed since ․ enunciated in Wall v. Toomey, 52 Conn. 35, 36 (1884) ․ civil probable cause constitutes ‘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;’ “ id., 102.   Finally, “[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;” id., 103.

IV. Procedures in Determination of Motion for Summary Judgment

In considering defendants' motion, the process which the court must adhere to is that recently articulated in Marinos v. Poirot, 308 Conn. 706 (2013), at pages 711–12, as follows:

Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”   A party moving for summary judgment is held to a “strict standard.”   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ 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 (citations omitted).

In application of that process, the court requires of the moving party a showing excluding any real doubt as to any issue of material fact as to its right to a judgment on the allegations as they presently stand, and, if the moving party makes at least a prima facie showing that such is the case, then to require of each opposing party a showing revealing that there is evidence to establish that material facts are genuinely disputed and cannot be resolved summarily.

V. Particulars of the Defendants' Motion, and Plaintiff's Objection

Defendants' motion, accompanied by a memorandum of law and several hundred pages of exhibits, was filed on April 30.   Plaintiff objected, and filed her own memorandum accompanied by other exhibits.   Defendants responded with a reply memorandum and additional exhibits on July 29.   Argument on the motion occurred on August 4.

Defendants make three primary arguments in support of their motion, namely that 1) there was probable cause for belief in the facts justifying the strategy they employed in Morrow v. Day Kimball;  2) they relied upon advice of counsel in that suit, which is a good and sufficient defense, and 3) plaintiff waived her claim in this suit by failing to seek a finding allowed by C.G.S. § 52–226a as to lack of merit regarding the defenses in Morrow.

A. The Argument Regarding Probable Cause

As indicated above in the outline of plaintiff's present claims, her complaint encompassed three theories supporting her claim of vexatious defense, which are aptly described as the severance pay claim, the termination for cause claim, and the voluntary quit claim.   Reading the complaint's first sentence in paragraph 20 as informed by paragraph 23, it is clear that in trial one the primary defense was that plaintiff resigned, which eliminated her entitlement to severance pay;  but additionally, reading the second sentence of paragraph 20, defendants argued in the alternative that if she were found not to have resigned, she had therefore been terminated for cause, again eliminating her entitlement to severance pay.   Defendants' memorandum of law in support of this motion admits that this was the structure of its defense.

The parties appear to have moved beyond the argument over a termination for cause.   To the complaint's paragraph 20, which asserts that the hospital made this accusation in trial one, the defendants' answer in this case says “admitted,” but qualifies the admission by stating that this was “one of several” defenses raised previously.   Their discussion of this same issue in their present memorandum is fleeting, merely noting that they argued this premise in the first suit as an alternative to their theory that plaintiff had resigned voluntarily, but as a distant second to their primary defense.   Neither party used these summary judgment proceedings as an occasion to expound upon the use, fair or foul, of the termination for cause defense in trial one, and now, in her affidavit opposing this motion, plaintiff states the following at paragraph 28:

28.  I understand that the defendants in this case contend that, at trial, they insisted I was terminated for cause.   That is not accurate.   Before trial, the defendants put in pleadings that I was terminated with just cause, but the Chairman of the Board of the Hospital testified at his deposition before trial that he knew nothing about me being terminated for cause.   The board was told by Smanik, falsely, that I quit.   Thus, by the time this case got to trial, the defendant abandoned the claim.

Given this statement under oath that defendants did not in fact pursue this particular gambit in the first trial, and the lack of any treatment of it in the briefs of either party, the court will deem it abandoned.

The “voluntary quit” issue is intertwined with the “severance pay” issue.   In the first trial, if defendants had persuaded the finder of fact that plaintiff had resigned, presumably her entitlement to any severance pay would thereupon have been foreclosed.   Defendants argue in this motion that regardless of the outcome, there existed probable cause for them to believe that plaintiff had resigned, and thus to proceed on that basis in defense of the first suit.   They support their memorandum with a submission of transcripts of certain testimony in the first trial, indicating the nature and quality of the evidence upon which a belief as to plaintiff's resignation could be founded.

1). On June 7, 2011, plaintiff's counsel expressed in his opening statement:  “what the evidence, I think will show is that Ms. Morrow approached Mr. Smanik to negotiate a resignation ․” (Ex. A to motion for summary judgment, p. 58.)   Later, examining his client on that day, he asked:  “Okay, if you fast forward for a moment, in August of 2009 you resigned, is that true? ”  “Yes.” (Ex. A, p. 123.)   Later, she added:  “when I left the meeting he had indicated to me that he would go to the board and ask for a year severance, which I knew was an exception to the policy, that I had explained why I was hoping for an exception.   So I assumed that he was going to advocate for me.”  (Ex. A, p. 143.)

2). On June 16, Nancy Contillo, Human Resources Director and the only other attendee besides Smanik and plaintiff at the August 21, 2009 meeting, gave her account of what had transpired.   Q:  “Can you tell us what happened at the meeting?”   A:  “Sure. The meeting began with Nancy, and Bob, and myself, just exchanging some general pleasantries.   Apparently, Nancy had been out for a couple of days ill, not feeling well, Mr. Smanik had asked her how she was feeling.   Then followed up by asking her if she had called the meeting.   Gave her an opportunity to explain what the reason for the meeting was.   She began by saying that she had not been feeling well due to her inability to perform the job in the manner set forth by Mr. Smanik.   That she, as a result of that, was going to be submitting, or was giving her resignation from the position of vice president of development.”  (Ex. F, p. 75.)

3). Plaintiff had requested permission to personally inform her three staff members of the imminence of her departure.   Each subsequently prepared a report for management as to what she told them.   They testified as follows:

a).  Beth Altenbrand, Hospital Financial Coordinator, on June 16:  Q:  “[had you written] that “Nancy pulled her chair into my office, closed my door, and told me she was resigning and Friday was her last day.   Did—first of all, did that happen?”   A. “Yes, I did.”   Q:  “Did you know before she pulled you into your—came into your office and told you that she was thinking of resigning?”   A:  “No, I did not.”   Q:  “Did Ms. Morrow indicate to you in that conversation that Mr. Smanik had fired her?”   A:  “No.” (Ex. F, p. 21.)

b). Victoria Bates, Hospital Events Manager for Development, also on June 16:  Q:  “Farther down the page it says:  ‘She handed in her resignation to Bob at that time.’   And the she there is Ms. Morrow.   Do you recall whether she said that she was turning in her resignation in writing or verbally when you were talking?”   A:  “No. That's a figure of speech.   I see what—Okay.   No. I didn't know whether it was verbal or written.”   Q:  “Okay.” A:  “Just resigned.”  (Ex. F, p. 44.)

c). Marie Monich, Administrative Coordinator for Development, testified on June 8 that when Ms. Morrow came in and told her she was leaving, she had not indicated that she was terminated or fired, nor that she had reached any agreement with Smanik, nor that he had forced her out, but that her departure was due to “a difference of opinion to the way in which she was handling her responsibilities.”  (Ex.B, p. 153.)

4). On June 14, plaintiff's counsel asked Smanik:  “she told you at some point, for the reasons which we discussed, that she's made the decision to resign, correct?”  “Yes ․ I believe that I had stated I recall being surprised when she made her statement that she had made the decision to resign ․” (Ex. D, p. 95.)   Further on, questioning turned to what he had told the Board (see complaint, ¶ 22):  “What you did is you told the Board that Ms. Morrow's request for a year of severance did not meet the policy”;  “I told the Board that she had requested a year's severance;” “And you told them that it did not meet the policy;” “I told them that she had resigned and as such—yes, a resignation would not fall under the policy.”  (Ex. D, p. 115.)  (Emphasis added, throughout.)

To summarize, at least five witnesses,³ including plaintiff herself, testified that she had told Smanik, in essence, “I am resigning” in the course of their August 21 meeting.   The issue here is whether he had probable cause to believe that was her decision.   The standard for determining whether a person has probable cause to believe in the existence of a certain fact 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”;  Wall v. Toomey, supra;  and the standard “is a purely objective one”;  Falls Church Group, Ltd., supra.  “On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”(Citations omitted;  internal quotation marks omitted.)  Rockwell v. Quintner, 96 Conn.App. 221, 229–30, (2006).   On the subject of probable cause, defendants have achieved the threshold of “a showing that it is quite clear what the truth is,” Marinos v. Poirot, supra, and succeeded in shifting to plaintiff the burden of establishing that there is a “real doubt as to the existence of any genuine issue of material fact.”

Plaintiff's reply includes her own affidavit of facts.   Much of her affidavit sets forth the background of the present dispute and is not of assistance in determining the precise issue of probable cause.   Paragraphs 22, 23 and 27 of the affidavit lay out her claims on this point.   Consistent with paragraph 22 of her complaint, these aver that Smanik went to the Board and announced she had quit voluntarily, and that he did so with malice, and with intent to mislead the Board, and that this deception thwarted her attempt to get severance pay.   Aside from this allegation of malice, and the express accusation that Smanik lied, she brings in no other evidence upon which a jury might base a verdict here adverse to defendants.

Her perception of malice, and that it motivated Smanik, is central to her argument here.   Malice may have motivated Smanik, although this court has seen no evidence to that effect.   But is this a material fact?  “A ‘material fact’ is a fact that will make a difference in the result of the case;” Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 590 (1998).   As in the instant matter, plaintiff Norse Systems had prevailed at an earlier trial, and sued under § 52–568 alleging both vexatious litigation and malice.   A jury in the earlier case had awarded Norse over one million dollars, and expressly found that Tingley's suit was filed with malice.   In this subsequent action, the appellate court affirmed the trial court's rendering of a summary judgment for Tingley, notwithstanding the finding of malice.   At page 595, that decision observes that “[a]lthough malice is probably a motivating factor in much litigation, malice alone is not sufficient to prove vexatious litigation.   Want of probable cause may prove malice, but malice does not prove a lack of probable cause.”   The trial court there had found that the toxin of malice did not dilute Tingley's proof that the facts known to it prior to the suit constituted probable cause for its bringing what in the end turned out to be a futile lawsuit.   See also, Greene v. Keating, Superior Court, judicial district of Stamford–Norwalk, Docket No. FSTCV10–6007166 (September 11, 2013;  Tierney, J.T.R.) (a decision case including a lengthy discussion of malice, resulting in the granting of a vexatious-litigation's defendant's motion for summary judgment, and citing Curran v. Kroll, 303 Conn. 845, 857 (2012), to the effect that “[i]t is well established that a [party] has the same right to submit a weak case as he has to submit a strong one.”

On the subject of whether Smanik lied, plaintiff argues, essentially, that she prevailed in the first trial and that result inescapably establishes that the jury must have concluded that Smanik lied.   Generally speaking, to base a vexatious litigation claim on the fact of having prevailed in the first lawsuit is unavailing;  as the Falls Church Group case indicates, “[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;” 281 Conn. 84, 103.   Even a party's loss of the first case on summary judgment does not establish that the party litigated that case vexatiously;  Ancona v. Manafort Bros., Inc., 56 Conn.App. 701 (2000).

Plaintiff's argument here begins with a statement of the elements of the promissory estoppel count upon which she prevailed.   As recited in her memorandum, those elements, as applied to her first case, are:

(1) The defendant made a clear and unambiguous promise to pay the plaintiff severance pay if she resigned,

2) the defendant reasonably should have expected the plaintiff to resign in reliance on that promise,

3) the plaintiff reasonably resigned based on that reliance, and

4) enforcement of that promise is the only way to avoid injustice to the plaintiff.

She summarizes:  “Morrow/Forsstrom won.   The jury decided she proved all four elements and was owed her severance pay.   In order to reach that conclusion, the jury had to find as a matter of fact that 1) the plaintiff did not quit voluntarily;  and 2) she was not fired for cause.”  (Emphasis in original.)

The court does not share that assessment.   The verdict (and Judge Vacchelli's denial of the motion to set it aside) make inescapable only the conclusion that plaintiff was entitled to severance pay.   The jury finding establishes that plaintiff was entitled to the benefit of Day Kimball's policy, perhaps set forth in its personnel manual or perhaps arising from the course of conduct with respect to previously terminated employees, affording a person situated such as she was to severance pay upon termination.   The jury's finding does not refute the existence of probable cause for the belief that plaintiff meant her words “I am resigning” to mean “I am resigning.”   The jury did not have to reject the premise that she had voluntarily quit, or to conclude that the hospital defense was based upon a lie.   Its finding is consistent with any number of assumptions as to what her words really meant, e.g., that she knew of the policy and assumed she would benefit by it, or that she had been speaking conditionally, or that she may have misspoken, or even that she made that statement unequivocally and then retracted it upon second thought.   She did not even fully prevail, as she seems to believe;  the jury awarded her only six months of severance pay, when she was looking for a full year's worth.

The plaintiff offers no proof that she did not speak the words attributed to her.   Smanik quoted her verbatim to the board.   She makes a “Yes, but ․” argument, to the effect that what she said was not all that she meant, or did not require the severance pay consequence which the hospital regarded as dictated by its policy provisions, and insists that a second jury must determine that defendants' use of her own words was a distortion.   Her proffer is insufficient to entitle her to bring this case to trial.   This court holds, as a matter of law, that there is no evidence here to refute defendants' claim that Smanik had probable cause to maintain in the first trial that plaintiff had voluntarily quit her job.

Before concluding this part of this memorandum, the court notes plaintiff's argument that issue preclusion doctrines should estop the defendants from asserting any defense to her claim of vexatious litigation:  “[t]he doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ․ [C]ollateral estoppel, or issue preclusion prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim;” plaintiff's memorandum, pp. 11–12.   Those principles don't support plaintiff's position.   Plaintiff's present claims of malice and duplicity involve the same behavior plaintiff addressed in suit one's “tortious intent” count, rejected by the same jurors who rendered the award on count two.   Because defendants did not base their present motion upon any theory of issue preclusion, the court will only state that the theory does not assist plaintiff's case.

B. The Advice of Counsel Defense

Defendants' first special defense to plaintiff's action, which plaintiff has denied, is that their strategy in the first case followed the advice of their attorney, Patrick Noonan.   This special defense is the subject of their second argument on this motion for summary judgment.

“Advice of counsel is a complete defense to an action of ․ vexatious suit when it is shown that the defendant ․ instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing ․ The defendant has the burden of proof with respect to this special defense ․ Whether there was a full and fair disclosure of material facts as required by the advice of counsel defense is a question of fact;” Verspyck v. Franco, 274 Conn. 105, 112 (2005).   Plaintiff vigorously objects to this defense, but does not argue that the “question of fact” nature of the defense categorically precludes the entry of a summary judgment on the issue.   There are precedents recognizing a defendant's right to pursue a summary judgment motion raising the advice of counsel as a defense to a vexatious litigation claim.   See, Middlebury Dairy Bar, LLC v. Moschello, Superior Court, judicial district of Waterbury, Docket No. CV06–4010862–S (July 6, 2007;  Gallagher, J.);   and Beaulieu v. K & R Nursing Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV09 6005182S (November 3, 2011;  Schuman, J.).   The court has found none holding to the contrary.

In Spear v. Summit Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 92–0525939 (June 20, 1996;  Sheldon, J.), the court outlined a checklist of factors sustaining a defendant's invocation of this defense:

First, the defendant must actually have consulted with legal counsel about his decision to file a criminal complaint or institute a civil action.

Second, the consultation with legal counsel must be based on a full and fair disclosure by the defendant of all facts he knew or was changed with knowing concerning the basis for his contemplated complaint or action.

Third, the lawyer to whom the defendant turns for advice must be one from whom the defendant can reasonably expect to receive an accurate, impartial opinion as to the viability of his claim.

The fourth element of the defense of reliance upon the advice of counsel is, of course, that the defendant, having sought such advice, actually did rely upon it.

Fifth and finally, if all other elements of the defense are satisfactorily established, the defendant must show that his reliance on counsel's advice was made in good faith.

Two affidavits present the defendants' factual support for this defense.   Smanik's recites that the hospital contacted its insurance carrier following service of the 2009 action, and Attorney Noonan was assigned to defend.   He met with counsel on several occasions.   Attorney Noonan met individually with those potential witnesses within the hospital's control, and had access to all requested documentation relevant to the case.   Smanik had no previous acquaintance with Attorney Noonan and knew of no personal allegiances or biases on his part which would adversely impact his ability to assess the hospital's defenses objectively.   The Smanik affidavit is silent as to whether he personally informed Noonan fully of the facts surrounding plaintiff's departure.

Noonan's affidavit confirms what Smanik has related, and adds considerable substance.   Specifically, he avers that he advised the hospital to pursue the two precise theories with which plaintiff's paragraph 20 takes issue, namely that plaintiff resigned and that termination for cause was a second available defense.   In formulating that strategy, he had sat through the depositions of both plaintiff and Smanik, as well as that of the hospital's board chairman, John Miller.   He attended to the process of formulating and responding to discovery requests in the case.   He interviewed other hospital employees who had knowledge of the case.   He was not surprised by any revelations at trial to any degree causing him to second-guess his advice.   His opinion (see Attachment A to his affidavit) was formed in reliance upon statements of three witnesses other than Smanik who stated that plaintiff had resigned, and other information he had discovered.

Both affidavits have drawn plaintiff's fire as to the propriety of their incorporating by reference a separate document,⁴ instead of laying out the content of that document in the affidavits in its entirety.   The court has reviewed that document and notes that it consists of citations to the testimony of various witnesses in the first trial.   The affiants' point is that the substance of their testimony was consistent with Noonan's pretrial understanding of the case, and bore out what he believed to be the factual predicate to plaintiff's claims.   The court has not given great weight to the “FACTUAL OVERVIEW” in analyzing this defense, as what these witnesses said at trial did not inform counsel of the details he needed to know in advance of trial and so could not have been involved in the formulation of a defense strategy.   Plaintiff is correct that laying out the specific details relied upon in the affidavit is preferable to incorporating by reference large parts of another document, but this is a matter of form, not substance.

Additionally, plaintiff protests that “Noonan cleverly declines to reveal in his affidavit what information his client, Smanik, CEO of Day Kimball Hospital, gave him”;  memorandum, p. 16.   What plaintiff ignores is that Day Kimball Hospital, not Smanik, was the client/defendant Noonan was representing.   Smanik was a hospital officer and employee and a witness in the case, but not Noonan's client.   In representing a corporation, Noonan had a right and a duty to investigate the details necessary to advise the corporate client, and the court knows of no rule restricting the scope of his investigation to contacts with a single person;  the plaintiff cannot insist that only Smanik be the conduit of that information.   In fact, had Noonan thus limited himself, plaintiff would have a much stronger argument that Noonan lacked full disclosure of the material facts.

Plaintiff submitted no additional factual evidence by affidavit or otherwise in response to this second ground of the present motion.   Still, she makes a spirited argument that the defense should fail on its own lack of merit.

In the Middlebury Dairy Bar case, the court granted the vexatious-litigation defendant's motion for summary judgment based upon the advice of counsel defense.   The first suit involved Moschello's unsuccessful attempts to regain possession of premises occupied by the dairy bar through the filing of a summary process action.   As in the instant case, the defendants' motion in the second suit included an affidavit affirming consultation with counsel preceding the bringing of the first suit, disclosure of all facts known to the party, and reliance upon the advice of counsel, in good faith and without ulterior motives.   In response, “plaintiffs do not present any evidence to dispute the fact that the defendants disclosed all facts to their attorneys in the course of this litigation.”   Rather, they argued, as does plaintiff here, that there was a lack of probable cause for bringing the first action.   Weighing the submissions before it on the motion, the court held that it need not reach the issue of probable cause.   By introducing the affidavit, the defendants had met their burden under Practice Book § 17–45;  the only way the defense could thereafter be defeated on summary judgment would be by plaintiffs' offering evidence to dispute the fact that there was full and fair disclosure.   They had not done so, and, therefore, their objection to the motion for summary judgment failed.

In Beaulieu v. K & R Nursing Services, Inc., the vexatious-litigation defendant accompanied its motion for summary judgment based upon advice of counsel with an affidavit of its principal asserting that she relied upon the advice of an attorney in filing the underlying action, and an affidavit of the attorney averring that he advised her that defendant had a valid civil action against Beaulieu and other parties.   In response, Beaulieu contended that the affidavits did not adequately disclose that the principal provided to the attorney “a full and fair statement of all facts within [her] knowledge, or which [she] was charged with knowing ․” The court undertook a careful scrutiny of both affidavits, and concluded that while imperfect in form they together established that counsel had at his disposal all the salient facts of the parties' interrelationship upon which to base his advice, whereas plaintiff could not point to any material facts that the client had failed to disclose to the lawyer.   Accordingly, it granted the motion for summary judgment.

Viewing the present case in light of those authorities, and taking the Spear v. Summit Medical factors into account, this court holds that 1) the defendants did actually consult with legal counsel about the defense made in the first case;  2) the hospital, a corporate defendant, through the input of not only Smanik but of all the other personnel named in the Noonan affidavit, plus the discovery process in the first suit, presented to counsel a full and fair disclosure of all facts material to the first suit; ⁵  3) Noonan had no bias affecting his independent judgment and could reasonably be expected to deliver to the hospital an accurate, impartial opinion as to the viability of its defenses;  4) the hospital, having sought such advice, actually did rely upon it;  and 5) the defendants have shown that their reliance on counsel's advice was made in good faith.

It is only the fifth conclusion that requires further commentary.   The gravamen of plaintiff's challenge to the invocation of this defense is that in light of the jury finding in the first case, a) Noonan's advice necessarily could not have been based upon all the material facts, or b) if all those facts were made known to him, then Noonan had to have “coached Smanik ․ to testify falsely;” plaintiff's memorandum, p. 10.   She demands that a jury make this determination.

The court has already explained how the jury verdict does not equate to a finding that Smanik lied in the first trial.   There are readily discernible explanations for the verdict consistent with the assumption that Smanik testified with at least probable cause to believe that he was testifying truthfully.   The insinuation that Noonan suborned perjury, therefore, is not an inevitable alternative explanation for the strategy adopted.

C. The Argument of Waiver for Failure to Invoke C.G.S. § 52–226a

The defendants' final argument is that plaintiff waived her right to bring a vexatious litigation action when she allowed the first trial to conclude without filing a motion under § 52–226a seeking a special finding that the defense therein was made without merit and not in good faith.   Had she done so, the first court could have made factual findings admissible in this action.

The statute cited was enacted in 1986, in the form of Public Act 86–338, with but minor amendments thereafter. § 52–568, the statute under which plaintiff is now proceeding, has been extant in a form essentially unchanged, at least as to the aspects involved in this matter, since the comprehensive revision of statutes that occurred in 1949;  moreover, “ § 52–568 represents a statutory codification of the common-law cause of action for vexatious litigation,” Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 46 (2007), a cause of action recognized in the common law almost two centuries ago;  see Whipple v. Fuller, 11 Conn. 582 (1836), and cases cited therein.

Defendants are asking this court to declare that the General Assembly intended in enacting the 1986 legislation to make the special finding process a prerequisite to the filing of a vexatious litigation action.   They cite no compelling authority for that conclusion, and their entire argument, occupying a little more than one page of their forty-page memorandum, is not much more than an afterthought.   In fact, much contrary authority exists.   In a case involving the same argument, Just Breakfast & Things!!!, LLC v. Vidiaki, LLC, Superior Court, judicial district of New London, Docket No. CV109–5014092 (January 31, 2013;  Martin, J.), the court noted:  “The application of § 52–226a has been addressed by our Superior Courts, ‘[s]uch a [special] finding is not a prerequisite to the commencement of a vexatious suit action.  [T]he legislature provided that such a request for a finding ‘may’ be made, and that such a finding is admissible in a subsequent action.   See § 52–226a.   It did not require that such a finding be made as a threshold step to bringing a vexatious suit claim.   See Shea v. Chase Manhattan Bank, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 96 0149647 (June 15, 2000, Tierney, J.) (‘No motion for special finding is necessary prior to the commencement of a vexatious litigation lawsuit.’).'   Strom v. Curtiss, Superior Court, judicial district of Middlesex, Docket No. CV 00 0092123 (November 8, 2002, Shapiro, J.) (special finding not prerequisite to suit pursuant to § 52–568).”   In Rutenberg v. Rosenblit, Superior Court, judicial district of Hartford, Docket No. CV88–0353700 (March 14, 1994;  Hennessey, J.) [11 Conn. L. Rptr. 161], the court expressly ruled that “a special finding issued pursuant to General Statutes § 52–226a is not a prerequisite to the commencement of an action for vexatious litigation.”

The court will not grant summary judgment on this basis.

VI. Disposition of the Second Count, as to Smanik

On a prior occasion in this action, defendants attempted to have Smanik released as a defendant on the basis that he was not a party to the first suit.   In denying his motion to strike, the court (Calmar, J.) ruled that “the plaintiff's complaint sufficiently alleges that Smanik played an individual, personal, and material role in causing the hospital to assert vexatious defenses in the prior civil action that was ultimately decided in the plaintiff's favor.   The facts allege that Smanik caused such defenses to be asserted without probable cause and with a malicious intent in both his official and personal capacities.   Further, nothing precludes the plaintiff from proceeding against Smanik in either capacity in a claim for vexatious litigation.”   Memorandum of Decision on Motion to Strike, pp.   6–7 [56 Conn. L. Rptr. 248].   That holding, on a motion to strike, of course allows a decision in his favor on a motion for summary judgment if his submissions otherwise support that result.

The present motion is filed on behalf of both defendants, but does not separately state the case as to why the motion ought to be granted on Smanik's behalf.   Plaintiff's reply is directed at the inadequacy of the motion as to both defendants, but does not go into an independent analysis as to how Smanik either deserves or does not deserve to be the beneficiary of his employer's motion.

In the event that either party pursues any further orders on this score, the court wants the record to be clear.

Smanik and the hospital, in count one of the complaint, are charged with identical behavior.   The argument that plaintiff cannot prove the lack of probable cause to sustain her action on that count, having been accepted by this court above, applies equally to both defendants.   Thus, on the basis of the defendants' first claim in their motion, both defendants are entitled to summary judgment on that first count.

The hospital is entitled to summary judgment on the additional ground that it heeded advice of counsel.   Smanik, on the other hand, was not represented individually by Noonan.   The parties did not brief that distinction, which may or may not be significant, and thus the court will not today decide whether he can avail himself of that defense.

Finally, the second count, addressing Smanik alone, is intrinsically interwoven with the first count.   The two counts share their first twenty-six paragraphs, which include the allegations relating to lack of probable cause.   Having determined that question in favor of the defendants, what is left in count two as a contested issue of fact?   Only the individual defendant's “malicious intent” and motivation to “benefit and enrich himself.”   Standing alone, they provide no basis for a judgment against him.   Accordingly, on the basis of presence of probable cause, summary judgment should also enter on Smanik's behalf on count two.

VII. Orders

For the reasons set forth above:

1) The motion for summary judgment is granted as to both defendants on the first count.

2) The motion for summary judgment is granted as to Smanik on the second count.

3) Judgment may enter in favor of both defendants.

Boland, J.

FOOTNOTES

FN1. Technically, she remained an employee through the close of business on August 28..  FN1. Technically, she remained an employee through the close of business on August 28.

FN2. The need for this conclusion arises from the fact that there is a paragraph 30, similar to paragraph 25 of the first count, introducing a detail causing some confusion as to whether that is plaintiff's sole quest.   In those paragraphs, she alleges that Smanik's action and his bad faith caused her “to suffer extreme emotional distress by preventing her from getting severance pay,” and then caused her “additional emotional distress in the manner in which he caused the hospital to defend against her legal claims.”   Is she merely asserting that emotional distress is one consequence of his vexatious and deceitful behavior, although that is not generally recognized among the damages available to a vexatious litigation plaintiff?   Or is she asserting a separate claim for intentional infliction of emotional distress?   The answer is clear in the light of earlier proceedings in this case.   Via, first, a request to revise, and, later, a motion to strike, defendants sought to have Smanik released from the suit in his individual capacity.   Both efforts were unsuccessful.   Plaintiff's memoranda in response to each, however, treat paragraph 30 as an aspect of the vexatious defense cause of action and dispel any suspicion that she intended to advance any separate claim for emotional distress..  FN2. The need for this conclusion arises from the fact that there is a paragraph 30, similar to paragraph 25 of the first count, introducing a detail causing some confusion as to whether that is plaintiff's sole quest.   In those paragraphs, she alleges that Smanik's action and his bad faith caused her “to suffer extreme emotional distress by preventing her from getting severance pay,” and then caused her “additional emotional distress in the manner in which he caused the hospital to defend against her legal claims.”   Is she merely asserting that emotional distress is one consequence of his vexatious and deceitful behavior, although that is not generally recognized among the damages available to a vexatious litigation plaintiff?   Or is she asserting a separate claim for intentional infliction of emotional distress?   The answer is clear in the light of earlier proceedings in this case.   Via, first, a request to revise, and, later, a motion to strike, defendants sought to have Smanik released from the suit in his individual capacity.   Both efforts were unsuccessful.   Plaintiff's memoranda in response to each, however, treat paragraph 30 as an aspect of the vexatious defense cause of action and dispel any suspicion that she intended to advance any separate claim for emotional distress.

FN3. The court regards that portion of Monich's testimony cited by defendants to be ambiguous as to any admission by plaintiff that she quit voluntarily..  FN3. The court regards that portion of Monich's testimony cited by defendants to be ambiguous as to any admission by plaintiff that she quit voluntarily.

FN4. Both the Smanik (¶ 8) and the Noonan (¶ 9) affidavits allude to “․ the information outlined in Section II FACTUAL OVERVIEW, pages 2–5, of the MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT in Case No. WWM–CV–10–6005759S.”   As a housekeeping detail, it should be noted that there is no case numbered “CV 10–6005759.”   The earlier case bore docket number CV10–6001074, and this one docket number CV12–6005759.   Because there was no motion for summary judgment filed in the earlier case;  the court was able to determine that the text described is actually part of the memorandum of law in this, the 2012 case.   Plaintiff's counsel apparently figured this out too..  FN4. Both the Smanik (¶ 8) and the Noonan (¶ 9) affidavits allude to “․ the information outlined in Section II FACTUAL OVERVIEW, pages 2–5, of the MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT in Case No. WWM–CV–10–6005759S.”   As a housekeeping detail, it should be noted that there is no case numbered “CV 10–6005759.”   The earlier case bore docket number CV10–6001074, and this one docket number CV12–6005759.   Because there was no motion for summary judgment filed in the earlier case;  the court was able to determine that the text described is actually part of the memorandum of law in this, the 2012 case.   Plaintiff's counsel apparently figured this out too.

FN5. This finding follows this court's examination of the voluminous record of the first case and the voluminous presentation on the instant motion.   Plaintiff has isolated any no particular detail kept from Noonan prior to the commencement of the first trial, except her insistence that Smanik lied and acted with malice.   The former postulate is unsubstantiated, and the latter, even if true, immaterial..  FN5. This finding follows this court's examination of the voluminous record of the first case and the voluminous presentation on the instant motion.   Plaintiff has isolated any no particular detail kept from Noonan prior to the commencement of the first trial, except her insistence that Smanik lied and acted with malice.   The former postulate is unsubstantiated, and the latter, even if true, immaterial.

Boland, John D., J.