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Rockwell v. Rockwell

Court of Appeals of Connecticut

December 5, 2017


          Argued September 12, 2017

          James W. Rockwell, Jr., self-represented, the appellant (plaintiff).

          Raymond J. Plouffe, Jr., for the appellee (defendant Ian A. Cole).

          Lavine, Elgo and Bear, Js.


          ELGO, J.

         In this vexatious litigation action, the self-represented plaintiff, James W. Rockwell, Jr., appeals from the judgment of the trial court rendered in favor of the defendant Attorney Ian A. Cole.[1] On appeal, the plaintiff claims that the court (1) improperly bifurcated trial of the issue of probable cause from the issues of malice and damages, (2) violated his right to a jury trial and (3) improperly determined that the defendant had probable cause to prosecute the underlying action. We disagree and, accordingly, affirm the judgment of the trial court.

         The genesis of the present dispute is a breach of contract action commenced in 2009 (2009 action) by the plaintiff's former spouse, Donate S. Rockwell (Donate). The 2009 action concerned a written agreement between the plaintiff and Donate (agreement), which states that they ‘‘have entered into a joint venture for the purchase of certain securities.'' Pursuant thereto, Donate agreed to invest $22, 104.50 in unspecified securities, which were held in an investment account managed exclusively by the plaintiff.[2] The plaintiff, in turn, agreed to ‘‘guarantee the total investment amount to [Donate].''[3] That notarized agreement was drafted by the plaintiff's representative and was signed by the plaintiff and Donate.

         At all relevant times, the defendant appeared as legal counsel for Donate in the 2009 action. Following an initial consultation with her, the defendant sent a demand letter to the plaintiff dated December 3, 2008, in which he requested payment of approximately $18, 000 that allegedly was due and owing to Donate pursuant to the agreement. The defendant never received a response from the plaintiff.

         Seven weeks later, the defendant filed an application for a prejudgment remedy on Donate's behalf. The court, Tyma, J., held a hearing on that application, which focused in large part on distributions from the investment account made prior to its liquidation in 2007. At that time, the plaintiff[4] introduced into evidence certain financial records from Donate's investment account, which he had subpoenaed. In her testimony, Donate acknowledged that, on multiple occasions prior to liquidation, she received distributions to make capital gains tax payments associated with the investment account, including a payment of ‘‘$18, 000 at one point.'' Because the relevant provisions of the agreement required the parties to take ‘‘into account all prior transactions involving the Investment''; see footnote 3 of this opinion; the plaintiff testified that, in his view, the term ‘‘prior transaction'' included any distribution from the investment account. He thus argued that the financial records before the court indicated that Donate had received ‘‘more than her initial money back.'' The defendant disagreed, arguing that the distributions in question were not proceeds applicable to the guarantee provisions of the agreement but, rather, were distributions for capital gains taxes on the investment account. The court ultimately denied the application for a pre-judgment remedy. In so doing, the court remarked that although the granting of prejudgment relief was not warranted, the breach of contract issue was ‘‘appropriate for litigation.''

         The defendant thereafter commenced the 2009 action against the plaintiff on behalf of Donate. Her one count complaint alleged in relevant part: ‘‘On or about March 8, 1994, the [plaintiff], in order to induce [Donate] to invest $22, 104.50 in a joint investment with him, guaranteed repayment to [Donate] of her entire investment of $22, 104.50. . . . In reliance upon said guarantee, [Donate] invested with the [plaintiff] the sum of $22, 104.50. . . . The guarantee provided, in pertinent part, that upon complete sale or liquidation of the investment, if the value realized was less than $22, 104.50 then the [plaintiff] would pay to [Donate] ‘the entire value of the investment, plus an additional amount sufficient to provide her with the total amount of $22, 104.00' . . . . The investment was liquidated on or about July 17, 2007 . . . .'' Upon liquidation, the complaint alleged that Donate received $1190.60 in proceeds. The complaint further alleged that, one day later, the plaintiff made a ‘‘partial payment'' of $4000 to Donate in response to her request that he ‘‘honor the [agreement], '' but thereafter refused to pay the $16, 913.90 ‘‘balance due [to Donate] under the terms of the [agreement].'' Appended to the complaint was a copy of the agreement.

         Following a period of discovery, the plaintiff filed a motion for summary judgment, claiming that ‘‘[t]he total amount withdrawn by [Donate] from the Investment was $45, 495.90, an amount in excess of the amount [the plaintiff] guaranteed she would receive from the Investment.'' The court, Hiller, J., denied that motion.

         A jury trial was held in 2010, at which both the plaintiff and Donate testified. In addition, the jury was presented with documentary evidence from both parties. When the trial concluded, the jury returned a verdict in favor of the plaintiff.[5] The court then rendered judgment in favor of the plaintiff in accordance with that verdict.

         In 2013, the plaintiff, now self-represented, commenced the present vexatious litigation action. His complaint alleged in relevant part that the defendant, in his capacity as legal counsel to Donate, ‘‘commenced and prosecuted'' the 2009 action ‘‘without probable cause and with malicious intent to unjustly vex and trouble the [plaintiff].'' His prayer for relief sought compensatory damages and treble damages pursuant to General Statutes § 52-568. In his answer, the defendant denied the substance of those allegations. The defendant also filed a special defense, in which he averred in relevant part that ‘‘[t]here was probable cause to commence the underlying suit to determine the meaning and effect of disputed contractual guarantee language . . . .'' On December 2, 2014, the plaintiff filed a certificate of closed pleadings with the trial court, in which he claimed a jury trial.

         A jury was selected and a trial was scheduled for May, 2015. On the first day of trial, the plaintiff filed a request for a one week continuance, which the court denied. At that time, the court, Stevens, J., explained to the plaintiff that ‘‘[t]his trial date has been outstanding for a significant period of time. You have proceeded to pick a jury which is now ready to proceed, and if this case is going to be continued . . . it probably will have to be continued for a month or two in order to accommodate the scheduling.''

         The court then turned its attention to the defendant's ‘‘motion to bifurcate the issue of probable cause for trial to the court, '' in which the defendant argued that the issue of whether probable cause exists is always a question of law for the court to decide. In denying that request, the court noted that ‘‘the most prudent and effective use of judicial resources and economy is for the case to be tried to the jury and then for the court to address the issue as it may be presented by the parties at the end of the evidence.''

         The court then asked the plaintiff which witness he would be calling first. When the plaintiff stated that his first witness would not be present that day, the court responded: ‘‘Well, if they're not going to be here today then we can't hear them today, so what witness are you going to call next? They'll have to appear tomorrow. And if they are not going to be here this week then they will not be heard because this case is not going to be continued to accommodate an absent witness in this case in light of the scheduling issues that I've already articulated.'' When the plaintiff indicated that ‘‘[t]he other witnesses that I subpoenaed are not here, '' the court stated: ‘‘Well again, Mr. Rockwell, I appreciate that you are representing yourself, but in order for this case to proceed you're going to put on some evidence. Now either you're going to have to testify, you're going to have somebody else to testify, we're going to have to hear some evidence. . . . This case has been scheduled for some time to start today. You were aware of the fact that this case was scheduled to start today some time ago, and as a result you are required to do what you need to do in order to have witnesses here.'' When the court then asked who the first witness would be, the plaintiff asked for ‘‘a recess until 2 p.m.'' because he had ‘‘left [his] papers at home . . . .'' The court then inquired as to whether the plaintiff could at least make an opening statement, to which the plaintiff indicated that he had ‘‘left it at home.''

         At that time, the court advised the plaintiff as follows: ‘‘Listen to me very carefully. This case has been scheduled for trial today for some time now. As the plaintiff, you are required to be prepared to present whatever you want to present to the jurors today and tomorrow. That requires you to be prepared to make whatever presentations or arguments that you want to make to the juror[s] as part of opening statements. You have to be prepared today and tomorrow to offer whatever documents you want the jurors to consider. You have to be prepared to offer whatever witnesses you want to call. You have to do that today and tomorrow. I appreciate that you are representing yourself . . . but it does not provide an excuse for not complying with the law and the rules and procedures of this court. They apply to you whether you are represented by an attorney or not. We can try to accommodate you as the law permits and as procedure allows, but you're still going to have to put on your case. . . . And you have today and tomorrow to do it.'' The court then recessed the case until 2 p.m.

         When court resumed that afternoon, the plaintiff made an opening statement. He then called Donate as a witness, repeatedly asking her whether she had made certain withdrawals from the investment account created pursuant to the agreement. In her testimony, Donate insisted that she ‘‘didn't withdraw anything out of that account.'' With respect to approximately $45, 000 in distributions that she received from the investment account prior to its liquidation, Donate testified that she ‘‘didn't withdraw anything. It was paid for taxes.'' When the plaintiff then asked who paid those taxes, Donate responded, ‘‘You did, and you also called my tax person every time, every year, and day you handled something.'' Donate further testified that, on November 5, 2008, she told the defendant that the only proceeds that she ever received from the investment account was $1165.90. Later in her testimony, the plaintiff asked the court for a recess, which the court granted. Following that recess, the plaintiff requested additional time to ‘‘take care of a medical problem.'' The court promptly adjourned the proceeding for the day, advising the jurors that the case would resume at 9:30 a.m. the next day.

         When the proceeding resumed the following day, the plaintiff was not present. The court noted for the record that the clerk's office had received a telephone call from the plaintiff's wife, who indicated that the plaintiff woke up not feeling well and, therefore, was taken to a hospital. As a result, the court excused the jury for the day. At that time, the court expressed its concern as to the availability of jurors moving forward, stating: ‘‘[T]he jurors when they were impaneled last week were advised that the case-that the schedule of the case in terms of their commitment was going to involve their time through Friday of this week. Well, it's apparent that this case is not going to be finished this week, so one of the things we do need to do is address with the jurors their schedule and confirm that they are available next week. Looking at the witness list and the rate at which we went yesterday, I am seriously concerned about whether or not we can be done next week either, but that would be the goal.'' Given those circumstances, the defendant asked the court to ‘‘please reconsider my earlier motion to bifurcate, '' opining that ‘‘to convert this to an evidentiary hearing on probable cause . . . would fairly balance the interests of the defendant . . . who is the sole defendant in this case.'' In response, the court advised the defendant that it would not address that request without the plaintiff present. Rather, the court noted that the plaintiff ‘‘will be here tomorrow, and with his presence we can revisit these issues which you would like the court to address . . . .''

         The following day was Thursday, May 14, 2015. The plaintiff, who was present in court that morning, furnished a doctor's note asking the court to excuse him from any proceedings over the next three days. In response, the defendant renewed his request that the court reconsider its ruling on the motion to bifurcate. After taking that request under advisement, the court noted certain ‘‘procedural issues'' stemming from the continuance proposed by the plaintiff's doctor. The court remarked, and the plaintiff confirmed, that when the jury was empaneled, it was ‘‘told that [its] time commitment would be this week.'' The court then brought in the jurors and inquired as to their availability the following week and whether ‘‘having to be in court for those days . . . would create a severe conflict, problem, or hardship for any of [them] for any reason . . . .'' Three of the eight jurors so indicated. Although the plaintiff subsequently assented to continuing with only five jurors, the defendant declined to do so. As a result, the court proceeded to discharge the jury.[6]

         The court then returned its attention to the defendant's motion to bifurcate, explaining that ‘‘[o]ne of the reasons I [originally] was disinclined to entertain the motion to bifurcate was judicial economy. The jury had been picked. Put the evidence on . . . before me and the jury once and be done. That was one of the reasons I denied it although it may not have been expressly articulated that way. I just used the phrase judicial economy and efficiency. But again, the situation now is quite different because of the delays we've had this week and the continued delay we're going to have as the result of the plaintiff's present request [for a three day continuance].'' The court continued: ‘‘[W]hen the motion for bifurcation was first presented to me, it was after the jury had been empaneled. The parties were already engaged in jury selection and the jurors were here ready to hear evidence. At that time it seemed to be most prudent and efficient for the evidence to proceed for the jurors. . . . As we sit here today the procedural situation is qualitatively different. You folks do not have a jury now because of the circumstances which have been presented, and in order to acquire one you're going to have to go through jury selection again. That being the case, I'm of the view that I have now heard some of the evidence, it does make sense at this point for me to now hear whatever other evidence that the parties may need to present on the probable cause issue. And if the case can be resolved on the basis of that, then it will be resolved on the basis of that. And for whatever reason either factual or legal the matter cannot be resolved on the basis of that, then the parties will then be in ...

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