Coleman v. Jennings

Eric COLEMAN v. Cynthia JENNINGS et al.

No. HHDCV166070983S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

July 12, 2018

UNPUBLISHED OPINION

OPINION

PECK JTR

In a two-count amended complaint, the plaintiff, Eric D. Coleman (Coleman), alleges two counts of vexatious suit against the defendants, Cynthia Jennings (Jennings) (count one), and John Q. Gale (Gale) (count two). Before the court are defendants’ motions for summary judgment. For purposes of the pending motions for summary judgment only, the following facts are not in dispute. Coleman, an attorney and former state senator for the second senatorial district in the Connecticut General Assembly, sent a mailer to his constituents, in connection with [the August 12, 2014 state primary election.^[1] Jennings and Gale, both attorneys and council members in the City of Hartford, either reviewed^[2] and/or received on July 15, 2014, a mailer sent by Coleman wherein he expressed his position which disagreed with the use of city money to build a proposed sports stadium in Hartford. On July 17, 2014, the defendants executed an affidavit of complaint, and attached a copy of that mailer, both of which were filed in the State Elections Enforcement Commission (SEEC) (SEEC complaint). In their SEEC complaint, the defendants alleged that Senator Coleman used public funds for that campaign mailer to bring about his re-election in the August 12, 2014 primary in violation of Connecticut election laws.^[3]

Following a full investigation, the SEEC dismissed the defendants’ complaint on November 18, 2014, finding that "the mailers at issue here did not offend the normal scope of constituent mailers so as to merit additional scrutiny," and the commission found "that the mailers were sent no later than July 14, 2014, before the expiration of the permissible statutory period for [those] mailings in both [General Statutes] § § 2-15a and 9-610(d)(1)." On August 10, 2016, the plaintiff commenced the present action against the defendants.

On May 17, 2017, in response to a ruling by the court (Scholl, J.), on a motion to strike, the plaintiff filed the operative amended complaint, alleging the defendants engaged in vexatious litigation without probable cause when they commenced and prosecuted their SEEC complaint against him. The plaintiff further allege that the defendants may have filed that complaint "with a malicious intent unjustly to vex and trouble Senator Coleman." The SEEC terminated that action in the plaintiff’s favor on November 18, 2014 when it dismissed the SEEC complaint. The plaintiff claims emotional and reputational damages as well as damages for pain and suffering. He seeks economic and non-economic damages, double and treble damages, punitive damages, and attorneys fees.

On July 19, 2017 and July 31, 2017, the defendants filed their answers and special defenses to the amended complaint, where in relevant part, they admit that they signed the SEEC complaint, but deny the complaint was false, without probable cause, and filed with a "malicious intent unjustly to vex and trouble Senator Coleman." The defendants deny the plaintiff’s claims for damages.

The defendants each allege two special defenses against the plaintiff. The first special defense alleges that they are entitled to absolute immunity from suit as members of the public filing a complaint with the SEEC. The second special defense is that their speech, the SEEC complaint, was protected speech under the Noerr-Pennington doctrine. On July 25, 2017 and August 7, 2017, the plaintiff denied those special defenses. Jennings also brought two counterclaims against the plaintiff, and the plaintiff filed four special defenses in response, which Jennings denied. The counterclaims and special defenses are not presently before the court.

On December 22, 2017, Gale moved for summary judgment on count two of the amended complaint. On January 3, 2018, Jennings moved for summary judgment against the plaintiff presumably on count one, which is directed against her. On January 17, 2018 and February 16, 2018, the plaintiff filed memoranda of law in opposition to the motions. The court heard the Motions at short calendar on March 19, 2018.

I COLLATERAL ESTOPPEL

As a threshold matter, the court addresses whether, as the plaintiff contends, the doctrine of collateral estoppel bars this court from considering the defendants’ arguments in support of their motion for summary judgment. The plaintiff argues that the court cannot re-litigate whether his mailer violated General Statutes § 2-15a and § 9-610(d)(1) because the SEEC dismissed the SEEC complaint against him on November 18, 2014. As a result, the SEEC concluded that his mailer did not violate § 2-15a and § 9-610(d)(1), so any attempt by the defendants to reexamine issues of whether that mailer violated those Connecticut election laws is barred and improper under the doctrine of collateral estoppel. The plaintiff further argues that it was the SEEC dismissal of the complaint, following a board investigation, that has a collateral estoppel effect on this court’s determination of whether the defendants had probable cause to file their SEEC complaint. The defendants do not directly address that argument, but focus their attention on whether they had probable cause to believe that the aforementioned statutes were violated at the time they filed their SEEC complaint.

"Collateral estoppel, or issue preclusion ... prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim ... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citation omitted; internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 343-44, 15 A.3d 601 (2011). "An issue is actually litigated if it is properly raised in the pleadings or otherwise submitted for determination, and in fact determined ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered ... If an issue has been determined, but the judgment is not dependent [on] the determination of the issue, the parties may relitigate the issue in a subsequent action." (Citation omitted; internal quotation marks omitted.) Id., 344.

Our Supreme Court in Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 103, 912 A.2d 1019 (2007) acknowledged that "probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in [vexatious litigation] must separately show lack of probable cause." (Citation omitted; emphasis in original; internal quotation marks omitted.) In the context of an attorney filing a lawsuit, our Appellate Court in Embalmers’ Supply Co. v. Giannitti, 103 Conn.App. 20, 34-5, 929 A.2d 729 (2007) observed that "[i]n assessing probable cause, [our Supreme Court] phrased the critical question as whether on the basis of the facts known by the law firm, a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit ... As implied by its phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he or she initiated the lawsuit." (Citations omitted; internal quotation marks omitted.)

Based on the foregoing, the court agrees with the defendants that the proper inquiry is whether the defendants had probable cause to initiate their SEEC complaint at the time they filed it. Because the plaintiff focuses his collateral estoppel argument on a different time for an assessment of probable cause, namely, the time when the board dismissed the defendants’ complaint following a board investigation, the court declines to conclude as a matter of law that the dismissal of the complaint by the board necessarily means that the court is estopped from examining whether the defendants had probable cause at the time they filed their SEEC complaint. For this reason, the court declines the plaintiff’s request to reject the defendants’ motion for summary judgment on the ground of collateral estoppel.

II LAW OF THE CASE DOCTRINE & ABSOLUTE IMMUNITY

The court also reviews, as a preliminary matter, whether the law of the case doctrine applies to the defendants’ claims of absolute immunity. The plaintiff contends that the court has already decided that immunity did not bar the plaintiff’s vexatious litigation action against the defendants when the court denied the defendants’ motion to strike the complaint on the ground of absolute immunity. The plaintiff asks this court to apply the law of the case doctrine to that previously decided issue. The defendants respond that Judge Scholl’s decision is not binding on the court under that doctrine.

"The law of the case [doctrine] ... expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power ... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance ... A judge should hesitate to change his [or her] rulings in a case and should be even more reluctant to overrule those of another...