Argued
December 3, 2018.
Appeal
from the Superior Court in the judicial district of Tolland,
Graham, J.
Page 803
[Copyrighted Material Omitted]
Page 804
[Copyrighted Material Omitted]
Page 805
Bruce
D. Tyler, Somers, self-represented, and Jay M. Tyler,
self-represented, the appellants-cross appellees
(defendants).
Bruce
S. Beck, Manchester, for the appellee-cross-appellant
(plaintiff).
Sheldon,
Keller and Moll, Js.[*]
OPINION
KELLER,
J.
[194
Conn.App. 4] The plaintiff, Richard Tatoian, in his capacity
as trustee of the Ruth B. Tyler Irrevocable Trust, brought
the underlying vexatious litigation action against the
defendants,
Page 806
Bruce D. Tyler (Bruce Tyler) and Jay M. Tyler (Jay Tyler).
The defendants are among the beneficiaries of the trust. In
2010, Jay Tyler commenced an action (prior action) against,
among others, the plaintiff and Bruce Tyler. Jay Tyler named
the plaintiff as a defendant in all seven counts of his
complaint, but counts three through seven of the complaint
were brought against the plaintiff exclusively. Essentially,
with respect to the plaintiff, Jay Tyler alleged in his [194
Conn.App. 5] complaint that, in a variety of ways, the
plaintiff had performed deficiently as trustee and sought
money damages and equitable relief. In 2011, Bruce Tyler
brought a cross complaint in the prior action. All four
counts of the cross complaint, which was brought against the
plaintiff exclusively, are nearly identical to the claims
raised in counts four through seven of the complaint. Bruce
Tyler sought, inter alia, money damages. After the plaintiff
prevailed in the prior action, he commenced the present
action, sounding in common-law and statutory vexatious
litigation, for, inter alia, attorneys fees and costs he
incurred, on behalf of the trust, in defending himself in the
prior action. Following a court trial in the present action,
the trial court found that the defendants lacked probable
cause to bring one of the claims against the plaintiff in the
prior action. Accordingly, the court rendered judgment in
part in the plaintiffs favor and awarded him a portion of
the attorneys fees and costs he incurred in defending the
prior action.
The
defendants appeal from the judgment of the trial court and
raise the following claims: (1) the court lacked subject
matter jurisdiction over the plaintiffs causes of action
because he lacked standing at the time of the commencement of
the present action; (2) the court improperly failed to
consider whether the settlor of the trust, Ruth B. Tyler
(Ruth Tyler), was subjected to undue influence in connection
with the creation of the trust; (3) the court misinterpreted
relevant law in its analysis of whether, in the prior action,
the defendants had probable cause to claim that the plaintiff
had violated General Statutes § 45a-541c by failing to
diversify trust assets; and (4) the court misinterpreted
relevant law in its analysis of whether the plaintiff could
prevail in the present action merely by demonstrating that
the defendants lacked probable cause to bring one of the
claims that they brought against him in the prior action.
[194
Conn.App. 6] The plaintiff cross appeals from the judgment of
the trial court. He claims that, although the court properly
concluded that one of the claims raised against him by the
defendants in the prior action was not supported by probable
cause, the court erroneously failed to conclude that the
defendants lacked probable cause to bring the remaining
claims and had acted with malice in bringing the
claims.[1]
We
disagree with the claims raised in the defendants appeal but
agree, in part, with the claim raised in the plaintiffs
cross appeal. Accordingly, we affirm in part and reverse in
part the judgment of the trial court.
I
FACTS
AND PROCEDURAL HISTORY
In its
initial memorandum of decision, the court found the following
facts, many of which are not in dispute: "The
defendants, [Jay Tyler] and [Bruce Tyler], are the sons of
the late [Ruth Tyler]. The defendants ... have three
brothers; Thomas J. Tyler [ (Thomas Tyler) ], Russell
Page 807
J. Tyler [ (Russell Tyler) ], and John E. Tyler, Jr. [ (John
Tyler, Jr.) ].
"Bruce Tyler and Thomas Tyler are attorneys licensed to
practice in this state.
"In 1984, [Bruce Tyler] represented his mother, Ruth
Tyler, in executing a will that stated that the Tyler child
with the lowest net worth would receive enough money from her
estate to equalize that childs net worth with that of the
sibling with the second lowest net worth. [Bruce Tyler] gave
Ruth Tyler the original of the 1984 will and he kept a copy
for his records. [Bruce Tyler] did not tell his siblings
about the 1984 will or provide them with a copy because he
understood that as her attorney he had an obligation not to
disclose such information without her consent.
[194
Conn.App. 7] "Under the 1984 will, [Jay Tyler], the
youngest of Ruth Tylers five sons, would have received the
entirety of Ruth Tylers estate. [Jay Tyler] first learned
about the 1984 will from [Bruce Tyler] after Ruth Tyler died
in 2010.
"In 1988, Ruth Tyler and her husband, John Tyler, the
defendants father, executed new wills in which they divided
their assets equally among their five sons. This 1988 will
was also prepared by [Bruce Tyler], who was present when the
will was executed and took the oaths. [Bruce Tyler] did not
tell Jay Tyler that their parents had changed the will to
leave their estate to their five children equally. At trial,
[Bruce Tyler] claimed that he did not recall preparing the
1988 will for his parents.
"In 1990, Ruth and John Tyler took out a loan on the
family home in order to loan Jay Tyler $50,000. [Bruce Tyler]
assisted his parents in obtaining the bank loan. Under his
agreement with his parents, [Jay Tyler] was required to pay
back the loan in full with interest and to make monthly
payments to his parents.
"In 1991, [Bruce Tyler] borrowed $25,000 from his
parents to use for college tuition. He, too, was required to
pay back this loan with interest. [Bruce Tyler] repaid his
parents at least $10,000 on this loan.
"John Tyler, Ruth Tylers husband, died in 1997.
"In 1999, Ruth Tyler executed a new will with the
assistance of her son, Thomas Tyler. Under this will, Ruths
five sons would share equally in her estate; however, any
outstanding loan amounts owed to her would be deducted from
that childs share of the estate and redistributed to the
others. At that time, she [granted] her son [John Tyler, Jr.]
her power of attorney.
"[Bruce Tyler] could not recall if his mother told him
about the 1999 will. [Jay Tyler] was not aware of the 1999
will until after his mother died.
[194
Conn.App. 8] "On August 3, 2004, the plaintiff received
a call from Thomas Tyler notifying him that his mother, Ruth
Tyler, would be calling him to discuss estate planning. The
next day, Ruth Tyler called the plaintiff, and they met on
August 10, 2004. The plaintiff is an attorney who has
practiced in Enfield for forty years in the area of trusts,
wills, and estates. He had known Ruth Tyler for fifty years,
as their families were neighbors.
"At their meeting on August 10, 2004, Ruth Tyler
explained that she had prepared a will in 1999, which she
wished to maintain. She also told the plaintiff that she
wanted to create a trust to preserve her assets in the event
she went into a nursing home. They also discussed the
execution of a living will and revised power of attorney,
again designating her son, [John Tyler, Jr.]. The plaintiff
met with [John Tyler, Jr.], who held Ruth Tylers power of
attorney, and he gave the plaintiff a copy of the 1999 will.
Page 808
"The plaintiff prepared the trust based on Ruth Tylers
instructions and explained its contents to her in detail. In
order to accomplish Ruth Tylers purpose to preserve her
assets and avoid probate, the trust was irrevocable. The
plaintiff was made the trustee of the trust. Ruth Tyler
agreed to the trust provisions.
"The trust adopted the provisions of the 1999 will, and
provided that Ruth Tylers five sons would share equally in
her estate, subject to the direction that any sums due and
owing to the [g]rantor [Ruth Tyler] by her sons [Bruce Tyler
and Jay Tyler], shall be deducted from any share which they
are to receive under the trust.
"According to the trust, the trustee had full power and
authority to manage and control the trust estate, which
included the right to invest and reinvest the trust assets.
The trustees may make and change such investments from time
to time according to their discretion; and they may continue
to hold any stocks, securities [194 Conn.App. 9] or other
property received by them hereunder, without any duty of
diversification. During his time as trustee, the plaintiff
had discussions with an investment advisor but decided not to
make any trades or any changes to the investments of the
trust assets.
"Under the section [of the trust entitled (t)rustee
(a)ccountings], the trust provides: The [t]rustee shall
render an account at least once each twelve months to each
adult beneficiary .... The account shall show the receipts,
disbursements and distributions of principal and income since
the last accounting, and the assets on hand. If no objection
shall be made to any account so rendered within ninety (90)
days after a copy thereof has been deposited in the mail
addressed to any person entitled thereto, as hereinabove
provided, such beneficiary shall be conclusively presumed to
have approved or assented to all actions reflected in the
account so rendered. Prior to Ruth Tylers death, the
plaintiff only sent accountings to Ruth Tyler and [John
Tyler, Jr.].
"The trust identifies Ruth Tyler as grantor and refers
to her as grantor throughout the trust. Although the trust
includes some limited definitions, it does not define the
term beneficiary.
"The trust contains an incontestability of trust clause,
which provides that if any beneficiary under the trust
shall contest the validity of the trust, they shall not be
entitled to any benefit under the trust.
"The trust also provides a provision entitled
Exculpation of Individual Trustees that provides: No
individual trustee shall be liable [for] any mistake or error
of judgment, or for any action taken or omitted, either by
the trustee or by any agent or attorney employed by the
trustee, or for any loss or depreciation in value of the
trust, except in the case of willful misconduct.
"After the trust was executed, Ruth Tylers assets were
transferred to the trust. The assets included Bank [194
Conn.App. 10] of America stock held by Smith Barney as the
investment advisor. The Bank of America stock had been owned
by Ruth and John Tyler for many years. At year end in 2006,
the trust estate had a value of just under $500,000, with
$362,504 attributed to stocks. At some point, Ruth Tyler sold
her home and those cash proceeds were added to the trust,
making the value of the trust approximately $500,000.
"Neither defendant Bruce Tyler [nor] Jay Tyler [was]
aware that their mother created the trust until after her
death in 2010; however, both were aware that she had wanted
to do so.
"Ruth Tyler died on April 1, 2010.
Page 809
"The plaintiff liquidated the assets of the trust and
converted them to cash for distributions to the
beneficiaries. He also prepared accountings, which he filed
with the Probate Court, and provided to the defendants. At
that time, the value of the trust assets had decreased
substantially to approximately $270,000, with the stock value
having decreased to approximately $146,000 from its high
several years before of $362,504.
"After Ruth Tylers death, Bruce Tyler told Jay Tyler
... about the trust, and Bruce Tyler told Jay Tyler about the
1984 will. When [Jay Tyler], who is not a lawyer, learned
about the trust, he had concerns that the plaintiff had kept
the trust a secret and should have been providing him
accountings during his mothers lifetime. Although [Jay
Tyler] disputed that he owed his mother any money, he was
also concerned that his mothers trust essentially
disinherited him, which he did not believe she would do,
leading him to believe that she had been influenced by Thomas
Tyler. Jay Tyler believed that the plaintiff had conspired
with Thomas Tyler and that they had unduly influenced Ruth
Tyler to cheat him out of his inheritance. Jay Tyler
claimed that Thomas Tyler was not a nice person and enjoyed
putting Jay down, and [that] the fact that Thomas Tyler
[194 Conn.App. 11] was aware of the trust and will, was a
red flag. Also, when Jay Tyler learned from Bruce Tyler
that the trust had decreased substantially in value, he was
concerned that the plaintiff had not complied with prudent
investor rules, which he learned about from Bruce Tyler.
"[Jay Tyler] decided that he wanted to bring a lawsuit
for the purpose of seeking to have the 1984 will deemed
operative, and pursuant to which he would benefit
substantially. He asked his brother Bruce Tyler for
assistance. At first, Bruce Tyler declined and told Jay Tyler
to contact an attorney. When he spoke to Bruce Tyler a second
time and again sought his assistance, Bruce Tyler agreed to
help Jay Tyler with the paperwork. Bruce Tyler told Jay Tyler
that he was not his attorney and that he was acting on his
own.
"With Bruce Tylers assistance, Jay Tyler prepared a
complaint against all of his brothers, including Bruce Tyler,
who were the other beneficiaries of the trust and heirs under
the 1999 will, and the plaintiff as trustee. The suit was
served on or about December 23, 2010, and was filed in [the
judicial district of Fairfield at Bridgeport] on January 28,
2011....
"[Jay Tylers] initial complaint alleged that the
plaintiff had conspired [with Thomas Tyler] to keep the trust
and the 1999 will a secret from him, that as a result of this
conspiracy, Jay Tyler was wrongfully deprived of his share of
Ruth Tylers estate, and that the plaintiff had a duty to
communicate with Jay Tyler and to furnish him annual accounts
of the trust during Ruth Tylers lifetime and failed to do
so. He also made claims of undue influence against Thomas
Tyler.
"[Bruce
Tyler] admitted all of the allegations of Jay Tylers
complaint and filed a cross complaint against the plaintiff,
dated March 21, 2011. In that complaint, Bruce Tyler asserted
that the plaintiff had a duty to provide him with accountings
for the trust during Ruth Tylers lifetime, and that the
plaintiff had violated General Statutes § 45a-541, because he
failed to act as a [194 Conn.App. 12] prudent investor in
investing and managing the assets of the trust. Bruce Tyler
also alleged that the plaintiff failed to diversify the
investments of the trust in violation of the same statute,
and that his failure to provide accountings to Bruce Tyler
during Ruth Tylers lifetime deprived him of his right to
seek an order from the Probate Court to compel the plaintiff
not to maintain the securities he
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had received in the trust, which right was claimed to be
afforded by General Statutes § 45a-204.
"On October 11, 2011, Bruce Tyler amended his cross
complaint, with the courts permission, to proceed against
the plaintiffs investment adviser and his employer, alleging
that they were liable because the plaintiff had relied on
their advice and management of the securities in the trust
account. On February 7, 2012, Bruce Tylers cross complaint
against the investment adviser and his employer was dismissed
for lack of standing.
"On April 10, 2012, [Bruce Tyler] amended his cross
complaint against the plaintiff to add an additional claim
alleging that the plaintiff should have sued an investment
advisor who had provided advice seeking to recover the lost
value of stocks owned by the trust and that the plaintiff was
therefore liable to Bruce Tyler.
"On
June 21, 2012, [Jay Tyler] amended his complaint adding all
of the additional claims against the plaintiff that had been
previously made by Bruce Tyler in his cross complaint against
the plaintiff.[2]
"Judgment
entered in favor of the plaintiff on Jay Tyler and Bruce
Tylers operative complaints after the [194 Conn.App. 13]
partial granting of summary judgment and a jury
verdict.[3]
Page 811
"To defend the claims against him in the [prior] action,
the plaintiff, on behalf of the trust, hired counsel [194
Conn.App. 14] and has incurred attorneys fees in the amount
of $114,889 and costs in the amount of $2111.82."
(Footnotes added and footnotes omitted.)
In
support of his vexatious litigation claims in the present
action, the plaintiff, in his capacity as trustee, relied on
the claims brought against him in the prior action in both
the operative complaint brought by Jay Tyler and the
operative cross complaint brought by Bruce Tyler. The
plaintiff also alleged that all of the counts brought against
him either were terminated by way of summary judgment or
resolved by a jury in his favor. The plaintiff alleged that
"[a]lthough ... [Bruce Tyler] was named as a defendant
in the complaint and in the amended complaint [brought by Jay
Tyler], in reality ... [Bruce Tyler] and ... Jay Tyler were
not adversaries but were, in fact, acting in concert.
Moreover, in addition to filing his cross complaint and the
amendments thereto ... [Bruce Tyler] directed and controlled
the initiation of the action, including preparing [194
Conn.App. 15] and arranging for service of the complaint and
all other relevant pleadings filed by ... [Jay Tyler] as were
necessary for the commencement and prosecution of the
action."
In
count one, the plaintiff asserted a cause of action sounding
in common-law vexatious litigation, seeking compensatory and
punitive damages. The plaintiff alleged in relevant part:
"The action, including the complaint and cross
complaint, was brought and prosecuted by the defendants
without probable cause in that the defendants lacked
knowledge of the facts, actual or apparent, strong enough to
justify a reasonable belief that they had lawful grounds to
bring and prosecute the causes of action alleged against the
plaintiff." The plaintiff alleged that "[i]n
bringing and prosecuting the [prior] action, [the] defendants
acted with malice based on one or more of the following: [a]
[the] defendants
Page 812
lacked probable cause to bring and prosecute the action; [b]
the action was brought and prosecuted primarily for an
improper purpose; [c] the defendants knew or reasonably
should have known that they had no valid claim against the
plaintiff based on the facts asserted in the complaint,
amended complaint, cross complaint and amended cross
complaint and/or that any claims made by the defendants
against the plaintiff would have been barred by the
provisions of the trust or the laws of the state of
Connecticut." The plaintiff alleged that "[t]he
aforesaid actions on the part of the defendants were taken
with a malicious intent unjustly to vex, annoy and harass the
plaintiff" and "constitute vexatious litigation
under Connecticut common law." The plaintiff alleged
that he had incurred attorneys fees and costs in defending
the prior action and bringing the present action.
In
count two, the plaintiff, relying on the allegations set
forth in count one, asserted a claim of statutory [194
Conn.App. 16] vexatious litigation, seeking double damages
pursuant to General Statutes § 52-568 (1).[4]
In
count three, the plaintiff, also relying on allegations set
forth in count one, asserted a claim for statutory vexatious
litigation, seeking treble damages pursuant to § 52-568
(2).[5]
The
defendants separately filed answers and special defenses in
which they denied the allegations that the complaint and the
cross complaint had been brought without probable cause, that
they had acted with malice in bringing and prosecuting the
prior action, and that their actions had constituted
vexatious litigation under the common law or §
52-568.[6] The respective pleadings filed by the
defendants mirrored one another. First, the defendants
claimed that, in bringing the prior action against the
plaintiff, they lacked the requisite intent to have engaged
in vexatious litigation. Second, the defendants claimed that
the plaintiff commenced the present action prior to the
termination of the prior action, thus depriving the court of
subject matter jurisdiction over the plaintiffs action.
Third, the defendants claimed that the plaintiff lacked the
authority under the trust to bring the present action.
Fourth, the defendants claimed the present action reflected
the plaintiffs improper motivation in that, rather than
acting in the best interest of the trust, he is motivated by
his own [194 Conn.App. 17] malice and vindictiveness toward
the defendants and not by any acts of the defendants. Fifth,
the defendants claimed that in the present action the
plaintiff had violated General Statutes § 52-226a by failing
to obtain a certificate from the court in the prior action
confirming that the action was vexatious in
nature.[7] Sixth, the defendants
Page 813
claimed that the plaintiff had engaged in fraud. In his
replies to the special defenses filed by the defendants, the
plaintiff denied each and every allegation raised therein.
Later, the court granted the plaintiffs motion for summary
judgment with respect to the second, third, and fifth special
defenses raised by the defendants. At trial, the defendants
expressly abandoned the first and fourth special defenses.
After
the court, Cobb, J., denied a motion filed by Bruce
Tyler to dismiss the plaintiffs vexatious litigation
action,[8] a trial took place over the course of
three days in May, 2016. Thereafter, the parties submitted
posttrial briefs. On December 7, 2016, the court set forth
its ruling in a thorough memorandum of decision.
Having
set forth its findings of fact, which we previously have
recited in this opinion, the court addressed the merits of
the plaintiffs claims in relevant part as follows: "The
cause of action for vexatious litigation permits a party who
has been wrongly sued to recover damages.... In Connecticut,
the cause of action for vexatious litigation exists both at
common law and [194 Conn.App. 18] pursuant to statute. Both
the common-law and statutory causes of action [require] proof
that a civil action has been prosecuted .... Additionally, to
establish a claim for vexatious litigation at common law, one
must prove want of probable cause, malice and a termination
of suit in the plaintiffs favor.... The statutory cause of
action for vexatious litigation exists under § 52-568, and
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.... In either type of action, however,
[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....
"The court concludes that the ... commencement of the
[prior] action against the plaintiff [by Jay Tyler], and
[the] ... cross complaint against the plaintiff [by Bruce
Tyler], satisfies the first element that they prosecuted
actions against the plaintiff. The court also finds that the
[prior] action terminated in the plaintiffs favor, either by
summary judgment or a jury verdict in the plaintiffs favor.
Thus, the court must determine the remaining elements;
whether the [prior] action was prosecuted without probable
cause and with malice.
"The plaintiff conceded at argument that if he fails to
prove his vexatious litigation claim as to one of the
defendants claims in the [prior] action, this action fails.
As explained below, the court finds that the plaintiff has
failed to prove the defendants claim [in the prior
action]— that the plaintiff failed to provide them with
accountings— lacked probable cause, or that it was
brought with malice. Because the court finds [that] probable
cause existed for this claim, it is not necessary to address
the other causes of action brought by the defendants in the
[prior] action. Similarly, because the [194 Conn.App. 19]
court finds the issues for the defendants, it is unnecessary
for the court to address the defendants remaining special
defense [that was based on fraud]." (Citations omitted;
internal quotation marks omitted.)
After
discussing legal principles related to probable cause and
observing that its existence in a particular case is a
question
Page 814
of law, the court stated: "The plaintiff claims that
count four of [Jay Tylers] operative complaint and count one
of [Bruce Tylers] cross complaint alleging that the
plaintiff improperly failed to provide them with accountings
under the trust, lacked probable cause. In support of this
claim, the plaintiff argues that this claim was disposed of
in the plaintiffs favor on summary judgment and that the
language of the trust is clear and did not require that
accountings be ...