Opinion
FSTCV106007166
07-19-2017
Brenda Greene v. Kevin Keating et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AFTER TRIAL
Hon. Charles T. Lee, J.
This vexatious litigation case, based on General Statute § 52-568 and the common law, was tried before the court on September 13, 14 and 15, 2016. After receipt of the transcripts, the parties submitted post-trial briefs and proposed findings of fact. As more fully set forth below, the court finds for the plaintiff on a limited basis and requests further submissions and a hearing on the issue of apportionment of damages.
BACKGROUND
The complaint in this case, filed on or about October 25, 2010, alleges that the defendants, Mr. and Mrs. Keating, while represented by the firm of Rucci, Burnham, Carta, Carello & Reilly, LLP (the defendant or Rucci Burnham), commenced a litigation on February 22, 2007, against the plaintiff, Ms. Greene, without probable cause, captioned Keating v. Greene, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST CV 07 4011089, (the underlying case). The underlying complaint contained seven counts seeking to establish (1) a prescriptive easement from the Keatings' property over Ms. Greene's property to a town road; (2) an implied easement; (3) a claim for an injunction barring interference with the right of way; (4) a claim for an injunction arising out of malicious erection of a structure; (5) damages for such malicious structure; (6) private nuisance; and (7) disturbance of right. The Keatings' claims were tried to the court over six days in September 2009. In its memorandum of decision, dated April 23, 2010 (the underlying decision), the court found for the defendant on all counts, and for the plaintiffs on defendant's counterclaim for trespass. Keating v. Greene, supra, (April 23, 2010, Karazin, JTR). The present litigation has been hard-fought over almost seven years, with 162 entries in the court docket, many discovery disputes, motion practice leading to seven memoranda of decision, and two appeals. The Keatings were granted summary judgment and dismissed from the case on the basis of their special defense of reliance on advice of counsel. As mentioned above, the case was tried before this court in September 2016.
CONTENTIONS OF THE PARTIES
In her post-trial brief, the plaintiff asserts that the defendant Rucci, Burnham lacked probable cause in seeking to establish a prescriptive easement of an expanded right of way over her property because (1) it had no basis to assert a fifteen-year period of uninterrupted use of the easement for travel or parking; (2) even if it initially had probable cause in bringing the lawsuit, such probable cause was lost upon learning, inter alia, that Ms. Greene's predecessor in title had consented to the expansion of the deeded right of way for travel and that it had not been used for parking after initial construction; and (3) the boundaries of the prescriptive area could not be established with reasonable certainty.
The defendant Rucci, Burnham denies these assertions and contends that it had adequate bases for its assertions regarding the prescriptive easement based on its research, interviews with witnesses, retention of a title searcher, information provided by Mr. Keating, and a Superior Court decision granting another neighbor a prescriptive easement over a substantial portion of the same right of way. Slack v. Greene, Superior Court, judicial district of Stamford/Norwalk, Docket No. FST CV 4006654, (December 19, 2006, Hudock, J.), affirmed, 294 Conn. 418, 984 A.2d 734 (2009). Defendants assert that the fact that they lost the underlying case does not mean that they lacked probable cause to bring it and pursue it.
DISCUSSION
I. Applicable Law Relating to Vexatious Litigation
A cause of action for vexatious litigation has been recognized in Connecticut for many years, both at common law and by statute, starting in 1672. Frisbie v. Morris, 75 Conn. 637, 639, 55 A. 9 (1903). Our current statute, General Statutes § 52-568, provides: " Any 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 leading modern case, Falls Church Group, LTD. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 93-95, 912 A.2d 1019 (2007), involved a vexatious litigation claim against a law firm that filed a suit against the plaintiff, despite the expiration of the statute of limitations, but relying on fraudulent concealment and other theories, which terminated in favor of the defendant in the underlying action, which became the plaintiff in the vexatious litigation action. The Supreme Court stated,
To address Falls Church's claim as to the appropriate standard of proof, we begin with our well established case law outlining the essential elements of a common-law claim for vexatious litigation. " A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff's favor. Calvo v. Bartolotta, 112 Conn. 396, 397, 152 A. 311 [1930]; Schaefer v. O.K. Tool Co., 110 Conn. 528, 148 A. 330 [1930]. Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action . . . [citations omitted]. The want of probable cause, however, cannot be inferred from the fact that malice was proven. McGann v. Allen, supra, at 187, 134 A. 810." Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). A statutory action for vexatious litigation under General Statutes § 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. 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." Brodrib v. Doberstein, 107 Conn. 294, 296, 140 A. 483 (1928). The test for deciding whether a litigant acted with probable cause also is well settled. " For purposes of a vexatious suit action, [t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991); accord Wall v. Toomey, 52 Conn. 35, 36 (1884). Accordingly, the probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one.
[W]e are mindful that " [p]robable 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." (Emphasis in original.) Roberts v. Sentry Life Ins. Co., 76 Cal.App.4th 375, 382, 90 Cal.Rptr.2d 408 (1999), review denied, (February 16, 2000). The lower threshold of probable cause " allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win . . ." (Internal quotation marks omitted.) Padres L.P. v. Henderson, 114 Cal.App.4th 495, 517, 8 Cal.Rptr.3d 584 (2003), review denied, (April 14, 2004). " Were we to conclude . . . that a claim is unreasonable wherever the law would clearly hold for the other side, we could stifle the willingness of a lawyer to challenge established precedent in an effort to change the law. The vitality of our common law system is dependent upon the freedom of attorneys to pursue novel, although potentially unsuccessful, legal theories." Wong v. Tabor, supra, 422 N.E.2d at 1288; see also Rules of Professional Conduct 3.1 (" [a] lawyer shall not bring or defend a proceeding . . . unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law"). Id., at 103-04.
Based on its review of the record below and the relevant evidence, the Supreme Court affirmed the trial court's decision that the plaintiff failed to demonstrate that the defendant law firm lacked probable cause in bringing the case, even though the underlying trial court had granted summary judgment against its client on the issue of tolling the statute of limitations. Id.
Recently, the Appellate Court stated, " In assessing probable cause in vexatious litigation actions against attorneys and law firms, the critical question [is] 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 is 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." (Citation omitted; internal quotation marks omitted.) Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 45-46, 127 A.3d 304, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015). " An attorney may perhaps not have predicted that the effort would be successful, but attorneys, as noted previously, are not required to pursue only actions that succeed." Id., at 49.
" Probable cause, of course, can be lost during the course of an action. See, e.g., DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991) (there may be liability for vexatious " initiation, continuation or procurement of civil proceedings" [emphasis added; internal quotation marks omitted]). Id., 45 n.6. Accord, Rieffel v. Johnston-Foote, 165 Conn.App. 391, 416-17, 139 A.3d 729 (2016).
" Resolving the question of probable cause, then, requires us to determine (1) the facts known to the law firm at the time that it filed suit pursuant to § 33-946, and (2) whether, with knowledge of those facts, a reasonable attorney familiar with Connecticut law would believe that he or she had probable cause to bring suit . . ." Charlotte Hungerford Hosp. v. Creed, 144 Conn.App. 100, 122 n.12, 72 A.3d 1175 (2013).
For example, in a relatively rare appellate decision upholding a finding of lack of probable cause, the Appellate Court in Embalmers' Supply Co. v. Giannitti, 103 Conn.App. 20, 35, 929 A.2d 729 (2007), found that a suit to be without probable cause which sought to enforce inspection of financial records to evaluate whether to participate in a stock sale after the time period for the sale had expired months earlier.
Finally, a suit can be brought for vexatious litigation even if some counts in the underlying complaint were supportable in terms of probable cause, as long as others were not. DeLaurentis v. City of New Haven, 220 Conn. 225, 253, 597 A.2d 807 (1991) (" If a civil plaintiff had probable cause to assert one cause of action but joined to that claim ten others that he knew to be groundless, the victim called upon to defend himself against the ten groundless claims would not suffer less because one good claim was included among them.") Damages may be recovered, however, only as caused by the improper claims and must be apportioned accordingly so as not to include the costs of defending claims which were supported by probable cause. Id., at 269 (" The plaintiff need not, however, 'divide his damages between the [accusations] with delicate nicety.' Boogher v. Bryant, [86 Mo. 42 (1885)]"). See also, Economy Petroleum Corp. v. Paulasukas, Superior Court, judicial district of Hartford, Docket No. CV 00 0822116S (Aug. 1, 2003, Sheldon, J.) [35 Conn.L.Rptr. 347, ] (" [T]his Court concludes that in Connecticut, the favorable termination of one or more groundless claims against a defendant in an underlying civil action will support a valid and sufficient claim for vexatious suit even though other, logically severable claims made against him in that action did not terminate favorably to him.").
II. Applicable Law Relating to a Prescriptive Easement
General Statutes § 47-37 governs easements by prescription, and provides, " No person may acquire a right of way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years."
The court notes that Section 47-37 does not define any substantive components relating to the acquisition of a prescriptive easement other than the fifteen year requirement. In Boccanfuso v. Green, 91 Conn.App. 296, 309, 880 A.2d 889 (2005), the Appellate Court set out the requisite elements of a prescriptive easement as follows: " [A] prescriptive easement is established by proving an open, visible, continuous and uninterrupted use for fifteen years made under a claim of right . . . The standard of proof that is required is a fair preponderance of the evidence. Gioielli v. Mallard Cove Condominium Ass'n., Inc., 37 Conn.App. 822, 829, 658 A.2d 134 (1995). 'To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised . . . The use must occur without license or permission and must be unaccompanied by any recognition of [the right of the owner of the servient tenement] to stop such use.' (Citation omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn.App. 146, 159, 783 A.2d 1226 (2001). Use by express or implied permission or license cannot ripen into an easement by prescription. (Internal quotation marks omitted.) Gallo-Mure v. Tomchik, supra, 78 Conn.App. at 705, 829 A.2d 8."
Further, the boundaries of the area of the claimed easement must be supported by sufficient or persuasive rationale to have adequate definition. McCullough v. Waterfront Park Ass'n, Inc., 32 Conn.App. 746, 758-59, 630 A.2d 1372 (1993) (use of the term " shore" adequate because accretion and avulsion make metes and bounds inaccurate); Schulz v. Syvertsen, 219 Conn. 81, 93, 591 A.2d 804 (1991) (designation of area of prescriptive easement on survey map adequate); Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985) (" It is well settled that " [a] prescriptive right cannot be acquired unless the use defines its bounds with reasonable certainty. Reynolds v. Soffer, supra, 190 Conn. at *190, 459 A.2d 1027, quoting Kaiko v. Dolinger, 184 Conn. 509, 511, 440 A.2d 198 (1981)").
The standard of proof is a fair preponderance of the evidence. McCullough v. Waterfront Park Ass'n, Inc., supra, 32 Conn.App. 753. See Narayanaswami v. Christian, Superior Court, Judicial District of Stamford/Norwalk, Docket No. FST CV 13 6019968, Id. (Feb. 6, 2017, Lee, J.) (claim for prescriptive easement denied because use was permissive, sporadic and the boundaries were without adequate definition).
As a result of the foregoing, the primary task for the court in deciding this case is to determine what was known by the Rucci, Burnham firm with respect to the prescriptive easement claim at the commencement of the lawsuit and during the litigation, and whether such facts and law were adequate to support a finding of probable cause in the mind of a reasonable lawyer familiar with the law of Connecticut.
FINDINGS OF FACT
Having reviewed the evidence submitted at trial, the court makes the following findings of fact relevant to its decision in the case:
A. The Parties and the Property
1. The plaintiff, Brenda Greene, is the record owner of her home at 10 Runkenhage Road, in Darien, Connecticut. Ms. Greene bought 10 Runkenhage Road in July 2000, where she resided with then husband, Alan Greene.
2. At the time this case was filed, the defendants, Kevin Keating (" Keating") and Nancy Keating (collectively, " the Keatings"), were the record owners of their residence at 12 Runkenhage Road, located to the west of the Greene house. The Keatings purchased 12 Runkenhage Road in December 1998.
Kevin Keating passed away on February 8, 2013.
3. The Keatings and the Greenes occupy two of four plots created by a 1928 subdivision of a parcel then owned by Olive Ward.
4. The chains of title for the Keatings' and Greenes' properties include an easement that gives the owners of 12 Runkenhage Road access from Runkenhage Road over property belonging to 10 Runkenhage Road.
5. The deeded right of way was 16 feet wide and ran from Runkenhage Road west along the northern border of the Greenes' property (" the east-west right of way"). At the western end of the Greenes' property, the right of way turns south. The deeded right of way running north to south is 10 feet wide (" the north-south right of way").
6. By complaint dated February 22, 2007, the defendant law firm, Rucci Burnham Carta Carello & Reilly, LLP (" Rucci Burnham"), filed a lawsuit against Ms. Greene on the Keatings' behalf, captioned Keating v. Greene, Docket No. FST-CV07-4011089-S, .
7. Rucci Burnham represented the Keatings throughout Keating v. Greene . It was retained by Mr. Keating in October 2006.
8. Previously, the Rucci, Burnham firm had represented a previous owner of the Keatings' property, Penny Glassmeyer, in connection with the zoning changes necessary to renovate the house at 12 Runkenhage, including paving the access way.
B. Other Persons Relevant to Keating v. Greene
Attorney Mark Carta (" Carta") was a name partner at Rucci Burnham and was the senior attorney for the Keatings during the litigation of Keating v. Greene .
10. Mapes and Charles Stamm (" Stamms") were the owners of 12 Runkenhage Road between 1992 and 1998. The Keatings purchased the property from the Stamms.
11. Penny Glassmeyer owned 12 Runkenhage Road through affiliated entities between 1989 and 1992. The Stamms purchased the property from PG Properties, Limited Partnership, an entity of Ms. Glassmeyer's. Ms. Glassmeyer and her entities will be referred to as " Glassmeyer" for ease of reference.
12. Marguerite Tjader Harris (" Tjader Harris") owned 12 Runkenhage Road before Ms. Glassmeyer. Title passed from Tjader Harris into her estate, and her estate sold the property to Ms. Glassmeyer in 1989. In 1988, 12 Runkenhage Road was owned by the estate of Marguerite Tjader Harris.
13. Michael Tjader (" Tjader") is the nephew of Marguerite Tjader Harris. Tjader testified on the Keatings' behalf in the trial of Keating v. Greene .
14. Veronica Murphy (" Murphy") and her husband, Brian Murphy, were the owners of 10 Runkenhage Road between 1980 and 2000 and were the Greenes' immediate predecessors in interest.
15. To summarize, the relevant chains of title are as follows:
10 Runkenhage Road 12 Runkenhage Road
Brian and Veronica Murphy: 1980-2000
Marguerite Tjader Harris & Estate: 1983-1989
Alan and Brenda Greene: 2000-2004
Penny Glassmeyer: 1989-1992
Brenda Greene: 2004-present
Charles and Mapes Stamm: 1992-1998
Kevin and Nancy Keating: 1998-2013
16. At all relevant times, Mona Slack (" Slack") was the owner of 6 Runkenhage Road, north of Ms. Greene's property.
C. Procedural History of Keating v. Greene
17. In Keating v. Greene, the Keatings asserted seven causes of action: prescriptive easement to travel and park on an expanded area including the right of way; implied easement; interference with a right of way; malicious erection of a structure (two counts); private nuisance; and disturbance of a right pursuant to General Statutes § 47-41. Of particular note, the prescriptive easement claim was based on the allegation that for more than fifteen years, the owners of 12 Runkenhage Road and others had traveled over the land of 10 Runkenhage Road in an area (" the traveled way") that exceeded the deeded right of way.
18. Keating v. Greene was tried as a bench trial before Hon. Edward R. Karazin over six days between September 9 and September 17, 2009.
19. After the close of the Keatings' case in chief, Ms. Greene moved to dismiss all counts in Keating v. Greene pursuant to Practice Book § 15-8 for failing to make out a prima facie case. Judge Karazin denied Ms. Greene's motion to dismiss and wrote a memorandum of decision in which he found that the Keatings had established a prima facie case as to all seven counts of the complaint.
20. Ultimately, in a memorandum of decision dated April 23, 2010, Judge Karazin found in Ms. Greene's favor on all counts of the Keatings' complaint. Judge Karazin also found in the Keatings' favor on Ms. Greene's counterclaim for trespass.
21. The trial court denied the claim for a prescriptive easement because it found that the Keatings had failed to show that the expanded area had actually been used for travel or parking for fifteen years, or that the pavement had been in the same location for fifteen years, and the court found that any such usage had been consensual with Ms. Greene's predecessors in title, the Murphys. In particular, the court found that Mr. Murphy requested Ms. Glassmeyer to pave an area three feet wider than the east-west right of way, which she did in the summer of 1990. At about the same time, Ms. Glassmeyer also expanded the entrance of her property and paved and expanded the north-south right of way, with Mr. Murphy's permission.
22. The court also found that Mr. Murphy had allowed Ms. Glassmeyer's contractors to park their trucks in the right of way during the reconstruction of her house, but found no evidence of any parking in the right of way thereafter. The court also rejected the Keatings' interpretation of their deed as allowing parking when it permitted use of the driveway " for all lawful purposes . . . upon the Greene's property" as contrary to Hall v. Altomari, 19 Conn.App. 387, 562 A.2d 574 (1989).
23. The Keatings claimed that they had an easement by implication and/or necessity widening the turn between the east-west and north-south rights of way because, among other things, fire trucks could not make the turn and access their property expeditiously. The court disagreed, and stated, " The Darien Fire Marshal and the Darien Fire Department, after conducting a test in February 2009, concluded that the Keatings' home is safe, and that fire trucks would be able to access it in an emergency."
24. The court similarly rejected the Keatings' other claims after a careful analysis of the facts in its twenty-one page decision.
D. Events Occurring Before the Commencement of the Underlying Litigation
25. The Greenes bought 10 Runkenhage Road in 2000, but did not move in until 2004. On or about June 9, 2003, Alan Greene sent a letter to the Keatings and another neighbor in which he asked them to review their title documents and a referenced map regarding the right of access. He acknowledged that the Keatings had a right to pass over his property, but not to park in the right of way.
27. In the Summer of 2005, Ms. Greene commenced a landscaping project, which included the following:
A three-foot wide section of pavement was removed from the southern portion of the east-west traveled way, and grass was installed in its place;
A 19-inch high wall was installed near the southern portion of the east-west right of way that bulged north until it touched the southern edge of the east-west right of way;
Three-foot tall concrete pillars and bushes were installed in the northern portion of the east-west right of way along with pachysandra ground cover, so the 16-foot wide right of way was comprised of 13 feet of paved right of way and 3 feet of pachysandra ground cover;
Belgian block was installed on the length of the east-west right of way that continued on the east side of the north-south right of way.
28. On or about September 20, 2005, Mr. Keating wrote a letter to Ms. Greene concerning her landscaping changes. Among other things, Keating raised concerns about whether the fire department could safely access his property in light of the fact that the driveway from Runkenhage Road to his house was narrowed.
a. Carta's Initial Meeting with Keating and Information Learned about the Property
29. After initially speaking with Keating over the phone, Carta first met Mr. Keating on or about October 10, 2006 at the Keatings' property.
30. Mr. Keating was a lawyer whom Carta considered " fastidious and meticulous and cautious." From their first meeting, Carta was impressed with Keating and considered him smart. Keating wanted to play an active role in the case, and Carta consulted with him extensively. In an October 12, 2006 memorandum to an associate, Carta opined that Keating was " remarkably well-informed" about the issues concerning a potential prescriptive easement.
31. Keating told Carta that he had reviewed the chain of title himself and advised Carta that he had confirmed with his predecessors that they had freely used a paved area that was larger than the deeded right of way.
32. The Keatings' deed included a right of way " for all lawful purposes . . . over, upon and across" a strip of land belonging to the owners of 10 Runkenhage Road. The right of way provides the only access from the Keatings' property to Runkenhage Road, a town street.
33. Carta retained an attorney/title searcher, Dennis Anderson, after meeting with Keating but before filing the complaint. Anderson performed a title search and copied survey maps before Keating v. Greene was filed to confirm the existence of the right of way at issue in that lawsuit.
34. The surveys obtained by Anderson included a 1980 survey, a 1982 survey, a 1990 survey, and a 2002 survey. These surveys depicted the difference between the deeded right of way and the traveled way that had been used by the Keatings and their predecessors.
35. All of the maps after 1980 showed an east-west traveled way that went beyond the borders of the deeded right of way. However, the southerly end of the north-south way veered to the east of the deeded right of way as shown on 1980 and 1982 survey maps, but not on a 1990 survey map.
36. Carta also hired a surveyor before filing suit to prepare a drawing showing where Ms. Greene's 2005 landscaping changes obstructed the deeded and traveled ways.
37. Ms. Greene's landscaping changes reduced the size of the north-south right of way to its deeded 10-foot width, which impacted the radius of the turn from the east west right of way to the north-south right of way and, Keating claimed, impeded the ability of fire trucks to access the property. Additionally, because the mouth of the Keatings' driveway was wider than the 10-foot width of the deeded right of way, the reduction in the width of the north-south right of way also prevented the Keatings from using the full width of their driveway, as they had done previously.
38. Because the Keatings had not owned their property for the full 15-year prescriptive period, Carta knew before suit was filed that the Keatings had to tack on use by the Keatings' predecessors in interest to prevail on the prescriptive easement claim. Carta considered several possibilities for the termination of the 15-year prescriptive period: the June 9, 2003 letter from the Greenes to the Keatings and Wilsons; the 2005 landscaping changes; and a 2006 notice Greene filed on the land records. Carta claimed that the 2006 notice on the land records terminated the period of prescriptive use, not the 2003 letter. However, he collected evidence of prescriptive use going back to 1988. Carta testified that he believed that he could prove a 15-year prescriptive period whether that period ran from 1988 to 2003 or from 1991 to 2006.
b. Rucci Burnham's Interviews with Witnesses
39. Before Carta filed the lawsuit against Ms. Greene, Associates Amy Zabetakis and/or Arkie Engle met with Ms. Glassmeyer to verify her use of the easement over the Murphy/Greene property. Carta also obtained information that Ms. Glassmeyer had parked trucks and bulldozers in the traveled way.
40. At the time the complaint was filed, Carta also had information from Michael Tjader that he had regularly used the traveled way to access 12 Runkenhage Road. Keating told Carta that Tjader would verify the use during the prescriptive period and that he had testified to that effect for the northerly neighbor, Mona Slack, in Slack v. Greene . Tr. 9/14/16 at 40, 44. The court (Hudock, J.) in Slack v. Greene found Slack's witnesses, including Tjader, to be " highly probative and credible" and gave " great weight to their testimony." From conversations in his office, Carta believed that Tjader's testimony " was not going to be a problem."
Slack v. Greene, Judicial District of Stamford-Norwalk at Stamford, Docket No. FST-CV05-4006654-S, .
41. Carta could not testify with certainty that he called Charles Stamm before filing the underlying case.
c. The Keatings' Concerns about Fire Department Access
42. At or around the time of Carta's first meeting with Keating, Keating provided Carta with a letter from the Darien Fire Department. The letter was dated August 9, 2005, and concluded that Ms. Greene's new landscaping would hinder fire department access to the Keatings' property. The letter states that the ladder and rescue truck would not be able to reach the Keatings' property due to the obstructions on Ms. Greene's property created by her 2005 landscaping changes and especially due to the narrow radius of the curve between the north-south access way and the east-west access way.
43. Before and throughout the litigation, Carta understood that the Keatings' biggest concern was ensuring that the fire department could access their property.
44. Richard Castiglioni was an attorney who represented the Greenes before Keating v. Greene was filed. Before filing the complaint, Carta obtained a September 2, 2005 letter sent to Castiglioni by another neighbor's attorney, Jonathan Koehm. In the letter, Koehm asserts a 17-year prescriptive period over the right of way for " all legal purposes" and asserts that the Greenes' attempt to limit the use was unlawful. The letter also references the 2005 letter from the fire department.
45. Before filing the complaint, Carta obtained an April 21, 2006 letter from Attorney Mary Keating, then representing the Keatings, to Attorney Castiglioni. The first concern listed in the letter was fire department access. The letter also claimed a right to park on the right of way supported by the language of the deed (may be used " for all lawful purposes"), by usage of properties using the easement, and by " custom and usage" in Darien and in the Tokeneke neighborhood. Carta claims he spoke with Mary Keating about the case before filing the complaint.
d. The Relevance of Slack v. Greene
46. Carta met with Keating at least twice before suit was filed. He learned about Keating's discussion with his various current and former neighbors, including Mona Slack, the Wilsons, and others who had lived in the area previously.
47. In Slack v. Greene, Mona Slack, the owner of 6 Runkenhage Road, claimed a prescriptive easement over a significant portion of the east-west way where the Keatings claimed prescriptive rights. Keating explained to Carta that Veronica Murphy had testified in the trial of Slack v. Greene that use of the Murphy/Greene property outside the deeded right of way was done with permission. Keating did not find her testimony credible. Carta was aware that Ms. Greene had asserted permissive use as a special defense to the prescriptive easement claims in Slack v. Greene . The first item on Carta's " to do" list after his first meeting with Keating was to determine the status of the Slack v. Greene lawsuit.
48. In an October 19, 2006, research memorandum from Engle to Carta, Engle noted his concern with proving a prescriptive easement claim due to Murphy's testimony in the Slack case that the use was permissive. Engle noted that the Slack decision " will clarify how a court might rule on whether there is a prescriptive easement."
49. Slack v. Greene was decided on December 19, 2006. The court gave little weight or credibility to Murphy's testimony concerning permissive use. The court (Hudock, J.) held that Ms. Murphy's testimony was " extremely vague" concerning conversations between 1980 and 2000 about permission to use the right of way. On the other hand, the court credited Tjader's testimony that the use was non-permissive. The court found against Ms. Greene and granted Slack a declaration affirming her right to a prescriptive easement and a permanent injunction against Ms. Greene barring any obstruction of Slack's use of that easement. (The trial court's decision was ultimately affirmed by the Supreme Court in 2009. Slack v. Greene, 294 Conn. 418, 984 A.2d 734.)
50. Carta thought the Keatings' claims had " a great deal . . . more viability" after the Slack v. Greene decision. In part, the decision impacted Carta's opinion about the viability of the Keatings' claims because of the court's discussion of Ms. Murphy's and Tjader's testimony.
51. The Slack decision also encouraged Carta because the court held that Slack had a prescriptive easement running from Runkenhage Road covering approximately two-thirds of the same east-west area the Keatings were claiming, despite Slack having no prior deeded right to use that area and despite Murphy's claim that such use was by consent.
e. Other Considerations
52. In his October 19, 2006 memorandum to Carta, Engle opined that the Keatings might have trouble proving that they had a right to park on the right of way. Carta, however, noted that the language in the Keatings' deed differed from the deed at issue in Hall v. Altomari, 19 Conn.App. 387, 562 A.2d 574 (1989), one of the key cases cited by Engle. Unlike the deed in Hall, the Keatings' deed granted them an easement " for all lawful purposes . . . upon " the right of way, which Carta believed sufficiently distinguished the case and provided a legitimate basis for the claim of a right to park in the right of way. (Emphasis added.)
53. Zabetakis went to the Darien town hall before suit was filed. (Subsequently, she reviewed the planning and zoning file, which contained some inconclusive correspondence relating to Ms. Glassmeyer's paving of the right of way from her house to Runkenhage Road.)
E. Commencement of the Underlying Litigation
54. As mentioned above, the Rucci Burnham firm commenced the underlying litigation on February 2, 2007 in the judicial district of Stamford/Norwalk. The complaint contained seven counts.
a. Prescriptive Easement
55. The first count contained the prescriptive easement claim, which defendant claimed was based on the theory that, because the Keatings and their predecessors had used an access way which was outside the deeded right of way for approximately twenty years, they had acquired a right to use more than the deeded right of way. The prescriptive easement claim also included a claim for a prescriptive right to park on the easement.
56. The prescriptive easement claim was based, according to defendant, on the narrowing of the traveled way caused by the removal of the three feet of pavement on the southern portion of the east-west right of way, the installation of the bulge wall, and the installation of the pillars and ground cover on the northern side of the east-west right of way and landscaping in the area of the north-south right of way.
b. Implied Easement
57. The second count contained an implied easement claim, which concerned the turn from the east-west right of way to the north-south right of way. The basis of the claim, according to defendant, was that the fire department needed more than the scope of the right of way as originally granted by deed to access the property safely and the original grantor conveying a landlocked parcel of property would have intended the conveyance to include the ability for safe fire department access. The implied easement claim concerned emergency access only, not parking.
c. Interference with Right of Way
58. The third count contained a claim for interference with the right of way, which, according to defendant, was based on Ms. Greene's 2005 landscaping changes outside the right of way as well as landscaping on the right of way that narrowed the drivable area such so that it was difficult for two cars traveling opposite directions to pass each other and inhibited full and free fire truck access to the property. This claim was also based on the Keatings' claimed deeded right to park in the right of way. The claim for a deeded right to park was based on the deeded grant of a right to use the right of way " for all lawful purposes . . . upon" the Greenes' property.
59. The other causes of action, including malicious erection of a structure and private nuisance are not at issue.
F. Events Subsequent to the Commencement of Keating v. Greene
a. Information Carta Learned Concerning the Scope and Use of the Easement
60. Carta hired a surveyor, who created a color-coded map (" the compilation map") that compiled in one place the information from a variety of surveys done of the Keatings' and Greenes' neighborhood. This map was first dated June 25, 2007. Despite some variation, all maps from 1980 forward showed a traveled way in use that went outside the boundary of the deeded right of way.
61. Carta first met with Ms. Glassmeyer in October 2008. He learned that Ms. Glassmeyer repaved the right of way in the fall of 1990. He learned that the east-west right of way was repaved in essentially the same location as had been paved previously, but three feet wider. The north-south right of way had been a dirt road, in part outside of the right of way, and Ms. Glassmeyer paved it in 1990. The deeded right of way is only 10 feet wide in the north-south right of way, but Ms. Glassmeyer paved 20 feet wide in that area.
62. Ms. Glassmeyer told Carta learned that, in 1990, Brian Murphy had requested her to pave the right of way, including the additional three feet in width on the east-west access way and the additional ten feet in width in the north-south access way.
63. Carta, however, rationalized the fact that Ms. Greene's predecessor in interest had given consent to the expanded right of way by deciding that she was not seeking his permission to pave but rather, was a successful real estate developer who was trying to placate the neighbors, and that Ms. Glassmeyer paved what she wanted to pave. Carta testified that, although she decided to pave more than the deeded right of way at Brian Murphy's request, she did so only as an accommodation to him. She supposedly did not obtain his permission to pave.
64. After meeting with Ms. Glassmeyer, Carta testified that he continued to believe the Keatings had a valid prescriptive easement claim. Carta called her as a witness for the Keatings at the trial of Keating v. Greene .
65. By the time of trial, Carta testified that he believed that Tjader and Ms. Glassmeyer had used the property when it was owned by the estate of Tjader Harris from 1986 to 1989. Tjader also testified that the executor of the estate of Tjader Harris used the traveled way.
66. By the time of trial, Carta testified that he believed that Ms. Glassmeyer and her realtor used the full paved traveled way when 12 Runkenhage Road was still owned by the estate of Marguerite Tjader Harris, before Ms. Glassmeyer purchased the property. Ms. Glassmeyer told Carta that snow plows plowed the entire paved way during that time.
67. Carta also spoke with the Keatings' predecessors, the Stamms, who told him that they drove outside the deeded right of way and believed that no one had the right to stop them from doing so. Carta deposed the Stamms on June 24, 2009. They testified that they had used the whole paved area continuously and could go where they wanted. Mapes Stamm testified that she thought the whole paved area was the right of way. Carta believed that this testimony supported his attempt to define the traveled way as the full paved right of way and also established the Stamms' open and visible use of the traveled way. However, the Stamms also testified that neither they nor their guests ever parked in the right of way.
b. The 2009 Darien Fire Department Test
68. On August 6, 2008, Carta attended a pretrial conference in Keating v. Greene . His notes from that pretrial identified fire department access as a major concern for the Keatings because, per Fire Department Chief Doug Lockhart, it took ten to fifteen minutes to reach the Keatings' property in ideal conditions, not at night or in the ice and snow.
69. The Darien Fire Department conducted another test on February 12, 2009 to see if fire trucks could access the property. Prior to that test, Carta met with the fire marshal at the fire marshal's office. The marshal conceded that the larger ladder truck could not reach the Keatings' residence and that the smaller truck, Engine 41, would have a hard time making the turn. In the 2009 fire department test, only one of the two fire trucks was able to navigate the turn from the east-west right of way to the north-south right of way. The fire department did not even attempt the turn with the second truck because the driver was concerned that the test would cause " major damage" to Ms. Greene's landscaping, and maybe a pillar, but that the ladder truck might be able to access the Keatings' property by crossing over the Slack property from the north, despite low hanging bushes.
70. Carta testified that he thought the fire department's report on the 2009 test was overly optimistic, because it relied in part on the fire department's ability to access the Keatings' residence by driving through Slack's driveway instead of using the right of way. This did not account for the potential that Slack might change the configuration of her driveway or that a fire truck would not be able to get through if there were a snow bank blocking the way. It also did not account for the possibility that neighboring fire departments provide aid to the Darien Fire Department, so there was no guarantee that the first truck to arrive would be small enough to actually reach the Keatings' residence.
c. Settlement Discussions
71. Counsel for the parties conducted settlement discussions before the underlying case was commenced and thereafter during 2007, 2008 and 2009. The parties agree that the sticking point concerned the turning radius of the corner between the east-west and north-south access ways.
72. A few months before the trial, the parties agreed on many points in contention. However, the Keatings determined that a safe configuration of the turn required a turning radius of thirty inches. While Green made some concessions, settlement discussions never included a turning radius of the size Mr. Keating calculated was necessary, and the parties were unable to settle the case.
d. The Trial of Keating v. Greene
73. At trial. Carta called, among others, Mr. Keating, Anderson, Ms. Glassmeyer, and Tjader to support his case in chief, and he agreed to submit the Stamms' deposition testimony as a joint submission.
74. After plaintiff rested, Judge Karazin found that the Keatings had presented evidence sufficient to support a prima facie case as to every count of the complaint.
75. On the merits, Judge Karazin did not credit the trial testimony concerning the scope and duration that the Keatings' predecessors used the Murphy/Greene property.
76. Judge Karazin found that the Keatings had failed to establish a prescriptive easement because (a) their use had been consensual with the permission of the Greenes' predecessors in interest, the Murphys; (b) they had failed to establish fifteen years of uninterrupted use; and (c) they had failed to establish the bounds of the prescriptive easement. The court also found the Keatings had failed to establish their right to park in the easement because Ms. Glassmeyer obtained permission from the Murphys to park construction vehicles in the right of way, and the Stamms never parked in the right of way. The court disagreed with Rucci Burnham's interpretation of the deed and found it did not support a right to park on the right of way. The court also found, among other things, that " emergency vehicle access is not impeded and that fire trucks can reach Plaintiffs' home." Additionally, the court found that Ms. Greene's landscaping did not impair the use of the easement, that the various structures of which the Keatings complained were not malicious, and that they had not proven sufficient anguish or any other harm sufficient to justify a finding of private nuisance.
77. Ms. Greene paid her counsel $322, 790.32 and was reimbursed $85, 794 by her title insurance company, for a net outlay of $236, 996.33 for attorneys fees defending Keating v. Greene .
78. At trial in the present case, Ms. Greene testified that Rucci Burnham did not have any improper motive in pursuing litigation against her. She said, " They took the case, they had to go with it."
ANALYSIS
Ms. Greene conceded at trial before this court that she had no basis to claim that Rucci, Burnham pursued the underlying case with malice. Because a common law claim for vexatious litigation and a statutory claim for treble damages both require proof of malice, the court will consider only the remaining claim for double damages under General Statutes 52-568(1), which does not require proof of malice.
At the threshold, the court notes a discussion in the post-trial briefs that probable cause might be established by the trial court's denial, dated November 16, 2009, of Ms. Greene's motion to dismiss pursuant to Practice Book Section 15-8 after the Keatings rested their case. The court finds that this ruling is of no relevance here because probable cause within the meaning of General Statutes Section 52-568(1) was not considered. As the trial court said, " The court in evaluating a motion to dismiss must take the evidence offered by the plaintiff to be true, and interpret it in the light most favorable to the plaintiff. Every reasonable inference is to be drawn in the plaintiff's favor." This is not a probable cause standard, as the court was merely permitting the case to proceed to the jury. It did not take into account any evidence which would be offered by the defendant. Outcomes in proceedings where no finding is made as to probable cause in the context of vexatious litigation are not persuasive. See Schaeppi v. Unifund CCR Partners, 161 Conn.App. 33, 45, n.7, 127 A.3d 304 (2015) (" We note, however, that the doctrines of res judicata and collateral estoppel are inapplicable. Judge Miller never made a ruling in the foreclosure action as to the merits of the issue of probable cause in the plaintiffs' vexatious litigation claim. Even if the trial court were to have done so, such a ruling would be dicta, because the issue of probable cause was not before the court. An ultimate adverse ruling is a separate question from whether it was reasonable, however forlornly, to pursue the ultimately losing cause.") As a result, a resolution of the merits of this matter requires consideration of the contentions of the parties de novo.
As set forth above, plaintiff contends that Rucci, Burnham lacked probable cause to pursue the claim for a prescriptive easement because (1) it had no basis to assert a fifteen year period of uninterrupted use of the easement for travel or parking; (2) even if it initially had probable cause in bringing the lawsuit, such probable cause was lost upon learning, inter alia, that Ms. Greene's predecessors in title, the Murphys, had consented to the expansion of the deeded right of way for travel and that it had not been used for parking after initial construction; and (3) the boundaries of the prescriptive area could not be established with reasonable certainty.
The court will consider these issues in order:
1. Probable Cause Regarding a Fifteen Year Period of Uninterrupted Use
After a review of the testimony and exhibits at trial and in light of the facts found, the court concludes that a reasonable Connecticut attorney would agree that Rucci, Burnham, although unsuccessful at trial, had knowledge of sufficient facts to justify its claim of a fifteen year period of uninterrupted use of the expanded right of way. The court finds that the prescriptive period for travel ended in the summer of 2005, when the Greenes caused the expanded paving to be removed and otherwise landscaped the access way. Accordingly, Rucci Burnham needed to show a continuous and adverse use dating from at least the summer of 1990, or just before Ms. Glassmeyer paved the access way. The various survey maps indicate the contours of use of the access ways over more than fifteen years and support the claim. It must be remembered that probable cause does not require the absence of contrary evidence. It does require the presence of sufficient evidence to objectively support the claim. Given the testimony of Ms. Glassmeyer and Tjader and the Stamms, Rucci, Burnham's claim was sufficiently supported by probable cause, initially.
2. Probable Cause as to Adverse Use of the Access Way
Although Rucci, Burnham was aware that Ms. Murphy had testified at the Slack trial that the Murphys had permitted the use of the right of way, the court in that case decided against that contention. The importance of the Slack decision handed down by the trial court shortly before commencement of the underlying suit cannot be overstated. It is hard to imagine any Connecticut practitioner not believing that this decision, finding a prescriptive easement in favor of another neighbor over two-thirds of the east-west way, would not support probable cause for the prescriptive easement claim.
However, Carta admitted on the stand in the trial in this matter that Ms. Glassmeyer told him in October 2008, twenty months after filing and eleven months before trial, that Mr. Murphy had requested her to pave the expanded right of way. Ms. Glassmeyer's statement was consistent with certain documents contained in the planning and zoning file for the property. This admission removed any color of the use as adverse, because it was plainly permissive. Although Carta tried to belittle the importance of what he learned, the court finds that continuation of the claim for the prescriptive easement was indefensible after learning of Mr. Murphy's permission. As noted above, probable cause, while it may have existed to justify the initial filing, can be lost as a result of events occurring during the litigation. That is what happened here. Ms. Glassmeyer's recitation in October 2008 of Mr. Murphy's permission, indeed instruction, to pave the expanded east-west access way and the north-south access way in its expanded dimensions, deprived Rucci Burnham of probable cause to continue prosecution of the prescriptive easement claim after October 2008.
With respect to a prescriptive right to park in the right of way, the court finds that the requisite fifteen-year period ended with Mr. Greene's letter of June 9, 2003, in which he denied that the Keatings had any right to park on the right of way. Because the Stamms testified at deposition during the underlying litigation that they never had parked in the right of way, it would seem that the claim of a continuous use of the right of way to park also would be indefensible. However, Rucci Burnham alternatively attempted at trial to justify parking by an interpretation of the language of the Keatings' deed. The trial court rejected that contention, but this court cannot find that Rucci Burnham lacked probable cause in advancing it.
3. Adequate Definition of the Easement's Boundaries
Case law discussed above requires that the boundaries of the claimed easement be supported by " adequate or persuasive rationale" to have sufficient definition. In this case, Rucci Burnham submitted land surveys showing the right of way from 1980 through 2002, and it hired a surveyor to further delineate the right of way before filing suit. Accordingly, the court finds that the right of way was adequately defined as by the surveys and by its use over a fifteen-year period ending not earlier than 2005.
4. Apportionment of Damages
The court's analysis does not end at this point, however. As held by our Supreme Court in DeLaurentis v. New Haven, supra, 220 Conn. 269, damages may be recovered only as caused by improper claims and not for the costs of defending claims which were supported by probable cause. Accordingly, a vexatious litigation plaintiff must apportion her damages between costs incurred in defending a claim lacking probable cause and a claim supported by probable cause.
Rucci Burnham brought a lawsuit with seven counts, but plaintiff has successfully challenged only one count. The court holds that the law firm had probable cause to pursue counts arising out of the Keatings' concern about access to their property by fire trucks. While the trial court found that the fire engines could adequately access the property, the point was fairly debatable in light of the various reports from the local firefighting authorities. This concern was contained in the second count for an implied easement and in the third count for interference with the right of way. Furthermore, the parties agree that the failure to modify the configuration of the turn between the rights of way is what prevented settlement of the case. As a result, the concern over emergency access, which was supported by probable cause, was central to the prolongation of the case.
As a result, the court declines at this time to award any damages to the plaintiff under General Statute Section 52-568(1) because plaintiff has not provided the required apportionment between (a) costs relating to defendant's continued prosecution of the first count for a prescriptive easement after October 2008, and (b) costs related to defending the second and third counts. Given the centrality of the concerns over access by the fire equipment, the application of the apportionment rule here is particularly appropriate.
In fairness to plaintiff, however, the question of apportionment was not raised by defendant at trial or in briefing. Accordingly, the court will hold an additional hearing on the issue. Plaintiff will submit an affidavit of claim with exhibits asserting how she believes her expenses should be apportioned between the costs of opposing the claim for the prescriptive easement after October 2008 and her other costs. These papers should be submitted on or before August 25, 2017. Defendant may file opposing papers on or before September 22, 2017. The court will schedule the apportionment hearing shortly thereafter.