Ferri v. Powell-Ferri

213 Conn.App. 841

278 A.3d 624

Paul John FERRI

v.Nancy POWELL-FERRI et al.

AC 44798

Appellate Court of Connecticut.

Argued April 5, 2022

Officially released July 19, 2022

Jeffrey J. Mirman, Hartford, with whom, on the brief, was Alexa T. Millinger, Hartford, for the appellant (plaintiff).

Cristin E. Sheehan, Hartford, with whom, on the brief, was Robert W. Cassot, Hartford, for the appellee (named defendant).

Cradle, Suarez and Clark, Js.

CRADLE, J.

In this action alleging vexatious litigation, the plaintiff, Paul John Ferri, appeals from the judgment of the trial court, rendered following a court trial, in favor of the defendant Nancy Powell-Ferri.¹ On appeal, Ferri claims that the trial court incorrectly concluded that Powell-Ferri had probable cause to initiate and pursue her cross complaint filed against Ferri in a prior lawsuit. We affirm the judgment of the trial court.

The following factual and procedural history, as previously set forth by this court, is relevant to our consideration of this appeal. "The present action is the third in a series of interrelated matters involving a dispute over the assets of a trust account. In the first action ... Powell-Ferri sought the dissolution of her marriage to Ferri. In that action, a major marital asset in dispute was a trust created in 1983 and valued at between $60 million and $70 million. Powell-Ferri was represented in this action by the Parrino defendants.

"While the dissolution action was pending, the trustees of the 1983 trust brought a declaratory judgment action against Powell-Ferri and Ferri, seeking approval of the trustees’ actions in forming another trust in 2011, into which they decanted all of the assets of the 1983 trust. The Parrino defendants also represented Powell-Ferri in the declaratory judgment action. As part of the trustees’ action, the Parrino defendants filed a cross complaint against Ferri, on behalf of Powell-Ferri, alleging that Ferri had violated his duty to preserve the marital assets by allowing the trustees to remove assets from the marital estate. The trial court, Munro , J. , rendered summary judgment in favor of Ferri on the cross complaint, concluding that Powell-Ferri failed to state a cause of action. Our Supreme Court affirmed this decision on appeal and declined to recognize the new cause of action. See Ferri v. Powell-Ferri , 317 Conn. 223, 235, 116 A.3d 297 (2015).

"The cross complaint against Ferri in the declaratory judgment action, brought by the Parrino defendants on behalf of Powell-Ferri, forms the basis for the present vexatious litigation action brought by Ferri against Powell-Ferri and the Parrino defendants. In this action, Ferri alleged that [Powell-Ferri and] the Parrino defendants lacked probable cause to institute and pursue the cross complaint. The trial court, Moll , J. , rendered summary judgment in favor of the Parrino defendants."

Ferri v. Powell-Ferri , 200 Conn. App. 63, 65–66, 239 A.3d 1216, cert. denied, 335 Conn. 970, 240 A.3d 285 (2020). This court affirmed the summary judgment rendered by the trial court as to the Parrino defendants, concluding that the trial court correctly determined that the Parrino defendants had probable cause to institute and pursue the cross complaint they had filed on behalf of Powell-Ferri. Id., at 81, 239 A.3d 1216.

Thereafter, Ferri's vexation litigation claims² against Powell-Ferri were tried to the court, Schuman , J. By way of a memorandum of decision filed on June 10, 2021, the court rendered judgment in favor of Powell-Ferri, concluding that she had probable cause to pursue her cross complaint against Ferri in the declaratory judgment action. The court reasoned, inter alia: "Upon review of the entire cross complaint, the court concludes that Powell-Ferri's cause of action against Ferri depended only on two critical facts. These facts are: (1) Ferri learned of the decantation after it happened but before the filing of the cross complaint, and (2) Ferri took no steps to return the assets to the original trust. These facts are alleged in paragraph 21 of the cross complaint, which was filed on or about October 31, 2012. Paragraph 21 alleges: [Ferri] was aware of the actions of the ... trustees in establishing a new trust with the intent to deprive ... [Powell-Ferri] of her equitable claims to trust assets but has taken no action to pursue his right and obligation to seek the return of the trust assets to the 1983 Trust....

"There is virtually no dispute that the facts alleged in paragraph 21 are correct. First, Ferri himself testified that he learned about the new trust from his brother ... in 2011 shortly after the trust's creation but well before the filing of the cross complaint. Ferri also admitted that he made no attempts to return the assets of the trust....

"Given the conclusion that the facts in paragraph 21 are correct, it necessarily follows that the plaintiff has failed to prove by a preponderance of the evidence that Powell-Ferri conveyed inaccurate or misleading information to her attorney on the key points of the case.... Instead, the undisputed nature of the key facts underlying the cross complaint made the validity of the cross complaint almost wholly dependent on a question of law. That question was whether a party to a dissolution proceeding [must] take action to prevent the removal of assets that would benefit him. Ferri v. Powell-Ferri , supra, 200 Conn. App. at 80–81, 239 A.3d 1216. The Appellate Court has now ruled that Powell-Ferri's attorneys had probable cause to bring this claim even though it does not state a valid cause of action under Connecticut law. It almost necessarily follows that Powell-Ferri had probable cause to ask her attorneys to bring this action. After all, the court cannot expect lay litigants to know more about the law than lawyers. Further, the Appellate Court opinion recognizes that there is something intrinsically wrong, albeit not sufficiently wrong to become a recognized tort, when a spouse fails to [take] action to recapture sizable trust assets that had arguably fallen within the marital estate, and that filing a lawsuit over that matter is not a completely frivolous move. Stated differently, a reasonable layperson in this situation could have believed that litigation was justified. Thus, Powell-Ferri had both a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.... For these reasons, Powell-Ferri had probable cause." (Citation omitted; footnote omitted; internal quotation marks omitted.) This appeal followed.

"In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute.... [T]o 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.... The statutory cause of action for vexatious litigation exists under [General Statutes] § 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 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." (Emphasis omitted; internal quotation marks omitted.) Carolina Casualty Ins. Co. v. Connecticut Solid Surface, LLC , 207 Conn. App. 525, 533–34, 262 A.3d 885 (...