Bernhard-Thomas Bldg. Systems v. Dunican

944 A.2d 329

286 Conn. 548

BERNHARD-THOMAS BUILDING SYSTEMS, LLC v. Chet DUNICAN et al.

No. 17899.

Supreme Court of Connecticut.

Argued November 27, 2007.

Decided April 22, 2008.

Alan R. Spirer, Westport, for the appellant (plaintiff).

Richard A. Roberts, with whom, on the brief, was Jane S. Bietz, Cheshire, for the appellee (defendant Jacques J. Parenteau).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

The dispositive issue in this certified appeal is whether the Appellate Court properly concluded that a prejudgment remedy application is not a civil action for purposes of a subsequent claim for the tort of vexatious litigation. We agree that such an application is not a civil action for purposes of a subsequent claim for vexatious litigation, and accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and the relevant procedural history. "The plaintiff [Bernhard-Thomas Building Systems, LLC] employed [the named defendant] Chet Dunican¹ from April, 2002, until February, 2004, as an at-will employee. On December 19, 2003, the defendant [Jacques J. Parenteau, an attorney representing Dunican] filed an application for a prejudgment remedy on behalf of Dunican against the plaintiff in the amount of $3.5 million [in anticipation of a wrongful discharge litigation against the plaintiff]. The court, Leuba, J., held a hearing over the course of several days and on March 10, 2004, denied the application. Specifically, the court stated that it had applied the probable cause standard and concluded that Dunican had failed to sustain his burden with respect to any of his claims. . . .

"The plaintiff commenced the present action and alleged that it had expended substantial attorney's fees in response to Dunican's application. The plaintiff filed a nine count complaint against both Dunican and the defendant.² Counts five and six of the complaint alleged that the defendant had violated General Statutes § 52-568(1) and (2).³ Count seven set forth a cause of action for common-law vexatious litigation [against the defendant]. Count eight alleged an abuse of process by the defendant. These counts were based on the defendant's filing of the application for a prejudgment remedy and sending a copy of the application to the Weitz Company, the plaintiff's largest client, in order `to vex and trouble the [p]laintiff' and `to attempt to pressure the [p]laintiff to pay money' to Dunican. The plaintiff further alleged that the defendant and Dunican indicated that if [the plaintiff] refused to pay Dunican money, Dunican would reveal embarrassing information regarding `members' of the plaintiff and their families.

"The defendant moved to strike the counts against him by a motion filed August 24, 2005. On January 18, 2006, the court, Hon. David W. Skolnick, judge trial referee, granted the motion and struck the counts against the defendant. With respect to the claims of statutory and common-law vexatious litigation, the court concluded that an application for a prejudgment remedy did not constitute a civil action that terminated in favor of the plaintiff, a necessary element of the tort of vexatious litigation. With respect to the cause of action for abuse of process, the court stated that the allegations contained in the complaint failed to establish that the defendant's actions `were in furtherance of a primary purpose other than to secure a prejudgment remedy. Rather, these allegations merely show that an ulterior motive existed.'

"Pursuant to Practice Book § 10-44,⁴ the defendant, on February 7, 2006, moved for judgment on the stricken counts against him. The court granted this motion, without objection, on February 27, 2006." Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn.App. 63, 65-67, 918 A.2d 889 (2007). The plaintiff's appeal to the Appellate Court followed.

In that appeal, the plaintiff claimed that the trial court improperly had granted the defendant's motion to strike four counts of its operative complaint. Specifically, the plaintiff asserted that the trial court had struck counts five through seven of the plaintiff's complaint after "improperly conclud[ing] that the application filed by the defendant on behalf of Dunican for a prejudgment remedy did not constitute a `prior civil action,' which is an element of vexatious litigation." Id., at 68, 918 A.2d 889. Additionally, the plaintiff claimed that the trial court improperly had struck the eighth count of its amended complaint because "the court improperly concluded that the claims for abuse of process were not predicated on `specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.' " Id., at 76-77, 918 A.2d 889.

The Appellate Court affirmed the decision of the trial court in all respects. Id., at 65, 918 A.2d 889. Specifically, it concluded that the trial court properly had struck counts five through seven of the plaintiff's complaint because the plaintiff had failed to allege an element of the tort of vexatious litigation because the defendant's application for a prejudgment remedy did not commence a civil action. Id., at 76, 918 A.2d 889. The court further concluded that the trial court properly had struck the plaintiff's claim for abuse of process because the operative complaint had "failed to allege that the defendant used legal process, the application for a prejudgment remedy, primarily to accomplish a purpose for which it is not designed." Id., at 78, 918 A.2d 889. This certified appeal followed.⁵

As a preliminary matter, we set forth the applicable standard of review. "The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).

The plaintiff contends that the Appellate Court improperly concluded that an application for a prejudgment remedy is not a civil action for the purpose of a subsequent claim for the tort of vexatious litigation. Specifically, the plaintiff asserts that a writ of summons and complaint, which are used to commence a civil action, and an application for a prejudgment remedy "are more alike than they are distinct," and that the substantive import of a civil action and an application for a prejudgment remedy are equivalent. The defendant responds that the relevant statutory scheme, in addition to a number of Connecticut cases, makes it clear that an application for a prejudgment remedy is in fact not a civil action for purposes of a subsequent claim for the tort of vexatious litigation. We agree with the defendant.

We begin with a brief review of the law of vexatious litigation in this state. The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. Verspyck v. Franco, 81 Conn.App. 646, 647, 841 A.2d 267 (2004), rev'd on other grounds, 274 Conn. 105, 874 A.2d 249 (2005); see 8 S. Speiser, C. Krause & A. Gans, American Law of Torts (1991) § 28:20, p. 113 ("The action for malicious prosecution⁶ is a recognition of the right of an individual to be free from unjustifiable litigation . . . [and] has been extended into the field of wrongful initiation of civil suits. . . . The purpose of the action is to compensate a wronged individual for damage to his reputation and to reimburse him for the expense of defending against the unwarranted action." [Citation omitted.]). In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action "[require] proof that a civil action has been prosecuted . . . ." (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361, 773 A.2d 906 (2001). 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 plaintiff's favor." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). The statutory cause of action for vexatious litigation exists under § 52-568,⁷ 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." Id. In the context of a claim for vexatious litigation, "the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991).

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. The writ shall be accompanied by the plaintiff's complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable."⁸ See Practice Book § 8-1(a) ("Mesne process in civil actions shall be a writ of summons or attachment, describing the...