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Rogan v. Rungee

Court of Appeals of Connecticut

May 3, 2016

MICHAEL ROGAN
v.
SALLY RUNGEE

Argued January 19, 2016

Appeal from Superior Court, judicial district of New Britain, Hon. Joseph M. Shortall, judge trial referee.

Rose Longo-McLean, for the appellant (plaintiff).

Jon L. Schoenhorn, for the appellee (defendant).

Beach, Sheldon and Prescott, Js.

OPINION

PRESCOTT, J.

The plaintiff, Michael Rogan, appeals from the judgment of the trial court rendered, in part, in favor of the defendant, Sally Rungee, on her counterclaim for abuse of process, common-law vexatious litigation, and statutory vexatious litigation. On appeal, the plaintiff claims that the court improperly (1) awarded damages to the defendant for emotional distress for abuse of process, (2) awarded treble emotional distress damages, and (3) held that the plaintiff failed to prove his affirmative defense that he acted on the advice of legal counsel. We disagree and affirm the judgment of the trial court.

The following facts, as found by the trial court or undisputed in the record, and procedural history are relevant to our review. ‘‘It began . . . with an ill conceived but straightforward complaint by [the plaintiff] that [the defendant] had ‘falsely and maliciously accused [him] of creating a public disturbance . . . [an infraction] of which [she] knew he was innocent.’ That accusation, the complaint went on to allege, caused him to be arrested and charged with that offense and to suffer damage to his reputation and extreme emotional distress. The complaint correctly alleged further that the charge was subsequently nolled. This alleged conduct by [the defendant] gave rise to four counts in the complaint, namely, malicious prosecution (count one), slander (count two), and intentional and negligent infliction of emotional distress (counts three and four).’’ (Footnote omitted.)

This alleged malicious prosecution arose from events occurring in the early morning of January 3, 2008. The defendant had called the Berlin Police Department to complain about lights shining into her bedroom window from the rear of the plaintiff’s house. Sergeant Chris Tralli and Officers Ryan Gould and Brian Falco of the Belin Police Department responded to the call. Although the plaintiff alleges that the lights in question were Christmas lights, upon arrival at the plaintiff’s house, Officer Falco noted that ‘‘[t]he light in question was on the second story deck on the rear of [the plaintiff’s] house and looked to be a blue LED strobe light similar to lights used in [vehicles] of volunteer firemen. The light was angled directly at [the defendant’s] house and appeared to be done so deliberately.’’ This was not the first time that the police had responded to a complaint about this light and had ordered the plaintiff to turn it off. Consequently, the plaintiff was issued an infraction ticket for creating a public disturbance. It was on the basis of receiving this infraction ticket that the plaintiff claimed that he was maliciously prosecuted by the defendant, although he was never arrested, never paid any fine, and never appeared in court concerning the infraction ticket.

‘‘On January 5, 2009, the court, Trombley, J., struck counts two, three, and four [of the plaintiff’s complaint] for their failure sufficiently to allege the elements of the respective causes of action. [Although] the court denied the motion to strike count one [for malicious prosecution], it had barely survived, but it took three more years and a change in Connecticut law for count one of [the plaintiff’s] complaint to be disposed of by summary judgment in favor of [the defendant]. . . .

‘‘In the meantime, however, [the defendant] had upped the ante by filing a counterclaim that accused [the plaintiff] of abusing the court’s process by bringing his malicious prosecution lawsuit ‘not in pursuit of justice’ but as ‘improper retaliation for the efforts of [the defendant] to stop the harassing, bizarre, and criminal misconduct of [the plaintiff] over several years.’ . . . [The defendant’s] counterclaim sought damages also for intentional infliction of emotional distress, based on [the plaintiff’s] alleged seeking of a warrant for [the defendant’s] arrest for harassment, after she had made a telephone call to the fire department officials of the town of Berlin claiming that [the plaintiff, who was a volunteer firefighter] had engaged in inappropriate behavior and was mentally ill. A third count alleged a conspiracy between [the plaintiff] and Berlin fire and police officials to cause [the defendant] severe emotional distress.

‘‘After she obtained summary judgment on the malicious prosecution count of [the plaintiff’s] complaint in 2012, [the defendant] amended her counterclaim to include counts for common-law (count four) and statutory (count five) vexatious litigation. . . . Because all of the counts of [the plaintiff’s] complaint had been stricken or had been disposed of by summary judgment in favor of [the defendant], by the time this case came on for trial on February 26, 2014, the only issues before the court were those raised by the [defendant’s] five count counterclaim.’’ (Footnotes omitted; citation omitted.)

A bench trial was held on February 26 and 27, and March 5, 2014. On July 23, 2014, the court issued a memorandum of decision with respect to liability only. The court held that the defendant had proved by a preponderance of the evidence all of the elements of abuse of process and common-law and statutory vexatious litigation. The court further held, however, that the defendant had failed to prove by a preponderance of the evidence all of the elements of intentional infliction of emotional distress and civil conspiracy. In the July 23, 2014 memorandum, the court deferred making a determination as to the appropriate amount of damages to award the defendant.

On November 6, 2014, the court issued a memorandum of decision with respect to damages. The court determined that the defendant had proven $35, 000 in emotional distress damages pursuant to her abuse of process (count one) and statutory vexatious litigation (count five) claims. The court trebled the emotional distress damages pursuant to General Statutes § 52-568 (2), [1] and awarded the defendant $105, 000, as damages for those counts. The court further awarded the defendant the nominal sum of $1 in compensatory damages and $20, 000 in reasonable attorney’s fees as punitive damages for ...


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