Superior Court of Connecticut, Judicial District of Ansonia-Milford, Milford
MEMORANDUM OF DECISION
Barry K. Stevens, J.
STATEMENT OF THE CASE
This action was instituted by the plaintiff, James Rockwell, in April 2013 against the defendants, Donate Rockwell and Ian Cole. The complaint alleges that in 2009, defendant Rockwell commenced a civil action against the plaintiff for money damages and that defendant Ian Cole was the attorney who represented her in that action (the 2009 action). There is no dispute that in the 2009 action, judgment entered in favor of the plaintiff and against the defendant Rockwell following a jury trial. The first count of the present complaint is against defendant Rockwell and the second count is against Cole. Both counts assert claims for vexatious litigation and allege that the 2009 action was prosecuted by the defendants " without probable cause, and with a malicious intent to unjustly vex and trouble the plaintiff." The complaint seeks compensatory damages as well as treble damage pursuant to General Statutes § 52-568. The defendants filed answers denying the plaintiff's claims.
Jury selection in the present action began on May 5, 2015. On the first day of evidence, May 12, 2015, the court reconsidered a prior ruling on defendant Rockwell's motion to dismiss, and after further review, the court granted her motion to dismiss for lack of personal jurisdiction based on the plaintiff's failure to serve this defendant at her proper address. The case continued against Cole as follows. During the trial, the plaintiff suffered a medical emergency that interrupted the trial proceedings and required the court to release the jury. Defendant Cole then requested the court to reconsider its earlier denial of his motion to bifurcate the probable cause issue from the issues of malice and damages.
The motion to bifurcate requested the court to first conduct a preliminary hearing before the court without the jury on the probable cause issue on the ground that this issue presented a legal question for the court's determination. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). The plaintiff opposed the defendant's request for reconsideration. After considering the parties' positions, the court granted this request for reconsideration and granted the motion for bifurcation. The court heard evidence on the issue of probable cause on May 19, 20, and 21, 2015. The plaintiff filed his post-hearing brief on June 22, 2015, and the defendant filed his post-hearing brief on July 8, 2015. For the following reasons, the court finds that probable cause existed supporting the commencement of the 2009 action.
The law regarding the elements necessary to prove a claim for vexatious litigation is well established. " To establish [a claim of vexatious litigation under the common law], it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor . . . 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 . . .
" [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 . . . Finally, the existence of probable cause is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular facts, constitute probable cause is always a question of law . . . [T]he [probable cause] standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit . . . Further . . . [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 . . .
" Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." (Citations omitted; emphasis in original; internal quotation marks omitted.) Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 34-35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).
The question of probable cause requires the court to determine (1) the facts known to the defendant at the time that he filed suit and (2) whether, with knowledge of those facts, a reasonable attorney familiar with Connecticut law would believe that probable cause existed to bring suit. Id., 35. A fair preponderance of the evidence establishes that there is no dispute that Cole knew the following facts when he commenced the 2009 action.
The gravamen of the 2009 action was an agreement executed by the parties in March 1994. (Exhibit A.) The agreement states that it is a " joint venture" between James Rockwell and Donate Rockwell. Under the terms of the agreement, Donate gave James $22, 104.50 for him to purchase securities. The agreement itself did not identify the name of the securities. The agreement indicates that " James W. Rockwell, Jr. desires to guarantee the total investment amount to Donate S. Rockwell." The key substantive provisions of the agreement stated the following:
THAT upon the complete sale or liquidation of the Investment, if the total value of the entire Investment, taking into account all prior transactions involving the Investment, exceeds $22, 104.00, then Donate S. ...