CHAPTER 10 - 10-2 VEXATIOUS LITIGATION

• Jurisdiction: United States

10-2 Vexatious Litigation

The Supreme Court has held "that a claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff's favor."¹ In order to recover against a defendant for a claim for vexatious litigation, a plaintiff must plead and prove that: "(1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff; (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff's favor."²

In Connecticut, a vexatious litigation case can be based either on common law or statute. Connecticut General Statute § 52-568 provides, "[a]ny person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages." "The elements of a common-law or statutory cause of action for vexatious litigation are nearly identical."³ The statutory cause of action for vexatious litigation under Section 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."⁴

10-2:1 Initiating the Action, and What Constitutes an Action or Complaint

Regarding the initiation of a civil action, the Supreme Court has held:

Because the prosecution of a civil action is a prerequisite to the filing of a viable vexatious litigation claim, we next consider what is required for the initiation of a civil action in this state. General Statutes § 52-45a provides the following procedure for initiating a civil action: 'Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator.'⁵

In Bernhard-Thomas Building Systems, LLC v. Dunican, the Supreme Court upheld the Appellate Court's ruling that a prejudgment remedy application is not a civil action for purposes of a subsequent claim for the tort of vexatious litigation.⁶ The Supreme Court affirmed the Appellate Court's decision on the ground that ". . . an application for a prejudgment remedy does not commence a civil action for purposes of a subsequent claim for vexatious litigation."⁷ The Court noted that, for a prejudgment remedy, there is no service of the requisite signed writ of summons integral to the initiation of a civil action.⁸

The Superior Court held that in order for a plaintiff to sustain a claim for vexatious litigation against a defendant, the plaintiff must show that the defendant, and not the plaintiff, initiated the underlying action.⁹ Courts have held, however, that merely maintaining or continuing a claim is sufficient to "prosecute" the claim.¹⁰ Therefore, successor counsel to the counsel who initiated the action could have exposure to a vexatious litigation claim because he or she maintains or continues the action.

What is meant by "civil action or complaint?" It means more than a civil action commenced in Superior Court. In DeLaurentis v. New Haven,¹¹ the Connecticut Supreme Court apparently adopted § 680 Restatement (second) of Torts which extended the concept of a civil action to include the "imitation, continuation or procurement against another before an administrative board that has the power to take action adversely affecting the legally protected interest of another."¹² That case involved a removal proceeding before the mayor which might have deprived the plaintiff from his unpaid position as parking authority commissioner. The court stated that such a position was a "legally protected interest" in the sense that, "the city charter restricts the mayor's right to deprive him of it."

10-2:2 Prior Litigation Terminating in Party's Favor

The policy reasons articulated in support of the termination requirement balance the law's interest in encouraging novel but uncertain causes of action, discouraging unfounded and malicious litigation, compromising litigation through negotiated settlements, avoiding inconsistent judgments and reinforcing the finality of judgments.¹³ Consequently, "a counterclaim alleging vexatious litigation may not be brought in the same action as that which the defendant claims is vexatious."¹⁴ Permitting a concurrent claim of vexatious litigation in the same action "can lead to inconsistent judgments or could improperly influence the jury's determination as a vexatious litigation claim primarily is concerned with the plaintiff's motive in prosecuting a lawsuit."¹⁵

Courts will likely not deem claims that are on appeal to be terminated. The Supreme Court in Keller v. Beckenstein¹⁶ held that it was permissible to bring a claim for vexatious litigation even though the underlying claim was on appeal, because the underlying claim was based on a statute that provided the trial court with a limited grant of jurisdiction over the complaint. The Keller court had to confront the legislature's power to confer jurisdiction over the court's power to determine whether a claim is justiciable. The underlying claim in Keller was brought pursuant to Conn. Gen. Stat. § 45a-353(d) which governs claims brought against an estate. The definition of Conn. Gen. Stat. § 45a-353(d) is quite broad, and includes claims that are not ripe or mature. The court reasoned:

Ripeness, however, is not a statutory restriction of Court's jurisdiction. Rather it is a judicially created doctrine of justiciability that implicates a court's subject matter jurisdiction . . . In the present case, our common law ripeness doctrine must yield to the legislature's decision to grant jurisdiction over the type of claims identified in § 45a-353(d) and § 45a-363.¹⁷

An action that is reduced to judgment on one count but still pending on another count will not have terminated.¹⁸

A termination favorable to the plaintiff is not limited to a judgment in his favor on the merits.¹⁹ The Supreme Court has explained that "we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration. Instead, we have always viewed the issue of whether the prior outcome was 'favorable' to the plaintiff as relevant to the issue of probable cause."²⁰ "In actions for malicious prosecution, and in actions under our statute for vexatious suit, two of the essential allegations are (1) that no probable cause existed for instituting the prosecution or suit complained of, and (2) that such prosecution or suit terminated in some way favorably to the defendant therein."²¹

A dismissal of an action may or may not be a termination that is favorable to the defendant. In Hebrew Home v. Brewer,²² the Superior Court held that the dismissal of an action on the basis of the statute of limitations was not a termination in favor of the plaintiff. One Superior Court decision, however, determined that a dismissal in a small claims court action because the plaintiff did not show up was a termination in favor of the defendant.²³ In a number of Superior Court cases, a withdrawal of a civil action has been determined to be a termination favorable to the plaintiff.²⁴ "[T]he unilateral abandonment or withdrawal of a claim or action can fairly be considered a termination favorable to the defendant, because it suggests that the plaintiff lacked probable cause to pursue the claim or action further . . ."²⁵ But it must be a complete withdrawal of the entire action. A withdrawal of only some, but not all of, the claims is not a termination in favor of the defendant.²⁶

If an underlying case goes to judgment on many counts only some of which are favorable to the defendant, the defendant can proceed under certain circumstances with a vexatious litigation case. In DeLaurentis v. New Haven,²⁷ the Supreme Court addressed the issue whether the existence of probable cause for some of several counts in a single underlying action, resulting in jury verdict in favor of the defendant, would prevent the defendant from pursuing a vexatious claim for counts where there was no probable cause. The court in DeLaurentis stated rhetorically: "[i]f a civil plaintiff had probable cause to assert one cause of action but joined to that claim ten others that he knew...