Opinion
CV166056762S
04-09-2018
SAMPSON ASSOCIATES, LLC v. QUEENS GRANT LIMITED PARTNERSHIP (QGLP) et al.
UNPUBLISHED OPINION
BELLIS, J.
FACTS
The present action stems from a prior action brought by the defendants Queens Grant Limited Partnership (QGLP) and John Harrington, QGLP’s attorney, against the plaintiff, Sampson Associates, LLC (Sampson). The following relevant facts and procedural history are set forth in the memorandum of decision of the trial court in the underlying action, Ray Weiner, LLC v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV-11-6019100-S (December 4, 2012, Gilardi, J.T.R.), as well as in the decision of the Appellate Court in that case, Ray Weiner, LLC v. Bridgeport, 150 Conn.App. 279, 92 A.3d (2014), affirming the trial court’s decision: The city of Bridgeport (the city) adopted a plan pursuant to General Statutes § 8-191 in the late 1990s to redevelop the East End. The city implemented the plan, which was known as the " Seaview Avenue Industrial Park project." Ray Weiner, LLC v. Bridgeport, supra, Superior Court, Docket No. CV-11-6019100-S. Through this project, the city acquired abandoned and blighted properties and reassembled them for industrial use. The city first proposed the project to QGLP and a company named Magnetek, Inc. (Magnetek). " At the time of the plan’s adoption, a city block bounded by Crescent Avenue, Bunnell Street, Williston Street and Seaview Avenue was occupied by three separate industrial plants. [Magnetek] occupied the westerly portion of the block adjoining Seaview Avenue. Another company, Syntex Rubber Corp., was located between the Magnetek parcel and [QGLP’s] parcel. [QGLP’s] land occupied the easternmost parcel on the block, which was occupied by Rotair Industries, Inc., a manufacturer of helicopter parts, in a plant bordering Bunnell Street on the east." Ray Weiner, LLC v. Bridgeport, supra, 150 Conn.App. 281.
The court takes judicial notice of the court file in the underlying action, Ray Weiner, LLC v. Bridgeport, supra, Superior Court, Docket No. CV-11-6019100-S. See Drabik v. East Lyme, 234 Conn. 390, 398, 662 A.2d 118 (1995) (" the trial court may take judicial notice of the file in another case, whether or not the other case is between the same parties" [internal quotation marks omitted] ).
" In March of 2009, [QGLP] signed a contract to purchase land directly across from the land it already owned on Bunnell Street." Id., 281-82. The closing date to transfer title was listed in the agreement as March 13, 2009. Id., 282. As of the date of trial in the underlying action in 2012, title had not yet passed to the plaintiff, but the parties had not rescinded the contract. Id. On the south side of Williston Street, across from Magnetek’s parcel, was land referred to as the " Williston Street parcel." The Williston Street parcel was previously zoned for residential use, but the city had demolished the housing located thereon to provide employee parking for the Magnetek parcel. Id. After Magnetek went out of business, the city reacquired the Williston Street parcel by foreclosing on its tax liens. A zone change was subsequently approved changing the Williston Street parcel from residential to industrial use, but the developers seeking to use the land for that purpose never entered into a land disposition agreement with the city. Id.
In February of 2009, Sampson entered into a land disposition agreement to purchase the Williston Street parcel in order to construct and operate a waste reduction facility. Id., 282-83. Sampson " then applied to the Bridgeport Zoning Board of Appeals (board) for a variance to permit an increase in truck traffic from the permitted five trucks per day to twenty-five trucks per day." Id., 283. The board granted the variance and QGLP appealed from the board’s decision to the Superior Court. Id. Thereafter, QGLP also brought the underlying action in the Superior Court against Sampson and other parties, seeking declaratory and injunctive relief. Id. With respect to Sampson, QGLP sought a declaratory judgment on the ground that Sampson’s " contemplated use of the Williston Street parcel [was] a modification and substantial change of the plan" ; id. ; which required QGLP’s consent because it was statutorily aggrieved, pursuant to General Statutes § 8-200(a), as a contract purchaser of real property in the project area after the plan was adopted. QGLP also requested " injunctive relief enjoining [the city] from conveying the Williston Street parcel to Sampson." Id. The trial court found in favor of Sampson. Ray Weiner, LLC v. Bridgeport, supra, Superior Court, Docket No. CV-11-6019100-S. QGLP subsequently appealed, and the Appellate Court affirmed the trial court’s decision. Ray Weiner, LLC v. Bridgeport, supra, 150 Conn.App. 281. Although Harrington represented QGLP throughout the entire litigation, defendants Attorney Jennifer Yoxall and Carmody Torrance Sandak & Hennessey, LLP (collectively the Carmody defendants) appeared on QGLP’s behalf in the appeal.
Following the underlying litigation, on May 6, 2016, Sampson commenced the present vexatious litigation action against the defendants pursuant to General Statutes § 52-568(1) and (2). Counts one through four are brought against QGLP and Harrington, and counts five through eight were brought against the Carmody defendants. The plaintiff withdrew the action as to the Carmody defendants on April 2, 2018. In the remaining counts of the complaint, Sampson alleges that QGLP and Harrington commenced the underlying action without probable cause (counts one and three) and both without probable cause and with malicious intent to unjustly vex and trouble Sampson (counts two and four). As a result, Sampson claims, it suffered damages in the form of attorneys fees and costs in connection with the permit process, litigation defense, and lost profits because it was unable to construct and operate the waste reduction facility.
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."
On October 16, 2017, QGLP and Harrington filed a motion for summary judgment on Sampson’s claims against them, adopting portions of the memorandum of law in support filed by the Carmody defendants, who had previously filed their own motion for summary judgment. On December 8, 2017, Sampson filed a memorandum in opposition. The Carmody defendants subsequently filed a reply memorandum on December 14, 2017, which QGLP also adopted. On December 18, 2017, Harrington filed a separate reply memorandum in response to Sampson’s objection. The motion was heard at short calendar on December 18, 2018.
DISCUSSION
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... The courts hold the movant to a strict standard ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45]." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
In support of their motion, QGLP and Harrington assert that they did not commence an underlying " action" for purposes of this vexatious litigation action, and that they had standing to apply for declaratory and injunctive relief. Alternatively, they assert that even if they had initiated a civil action, they had probable cause to bring the underlying action because § 8-200(a) conferred onto QGLP a right to seek declaratory and injunctive relief. In his reply brief, Harrington separately argues that he did not commence an action because the underlying proceeding was not an action; rather, it was merely an application for injunctive and declaratory relief.
In opposition, Sampson argues that summary judgment would be inappropriate for several reasons. In response to QGLP and Harrington’s argument that it did not commence an " action" for purposes of this vexatious litigation action, it maintains that the term " action" is construed broadly to include various types of proceedings including the underlying proceedings. It further argues that genuine issues of material fact exist with regard to whether QGLP and Harrington lacked probable cause to pursue the underlying litigation, specifically because they knew that QGLP did not own or lease any property within the development project area and that, therefore, it lacked standing to pursue its claims under General Statutes § 8-200(a). Sampson maintains that probable cause was lacking because the statutory language at issue is clear and that, under that clear language, QGLP could not have had standing as a mere contract purchaser because it was not an owner or lessee of property in the relevant area. Sampson further argues that genuine issues of material fact exist as to whether QGLP and Harrington lacked probable cause because they knew that they lacked evidence to support QGLP’s claim of irreparable harm.
General Statutes § 8-200(a) provides: " A development plan may be modified at any time by the development agency, provided, if modified after the lease or sale of real property in the development project area, the modification must be consented to by the lessees or purchasers of such real property or their successor or successors in interest affected by the proposed modification. Where the proposed modification will substantially change the development plan as previously approved, the modification must be approved in the same manner as the development plan." (Emphasis added.)
" 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 ... 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 ... The statutory cause of action for vexatious litigation exists under § 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008).
A vexatious litigation action " permits a party who has been wrongfully sued to recover damages." Diamond 67, LLC v. Oatis, 167 Conn.App. 659, 676, 144 A.3d 1055, cert. denied, 323 Conn. 926-27, 150 A.3d 228-30 (2016). Section 52-568 provides in relevant part: " Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others ... (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 defendants maintain that they are entitled to summary judgment because the underlying litigation was not a " civil action" as that term is used in § 52-568. Specifically, Harrington argues that the underlying proceeding was not a civil action because the complaint was not signed and because applications for temporary injunctions are analogous to prejudgment remedies, which require the filing of an unsigned summons and complaint.
Although not directly applicable to the present case, the Appellate Court has addressed the issue of whether an application for a prejudgment remedy is a civil action for purposes of a vexatious litigation claim in Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554-61. In reaching its conclusion that such an application is not a civil action, the court explained: " First, there is no service of the requisite signed writ of summons. Additionally, the language of the prejudgment remedy statutes, § 52-278a et seq., in several instances ... makes it clear that proceedings for prejudgment remedy applications and civil actions are separate and distinct, with a prejudgment remedy application generally preceding the filing of the civil action. Finally, in addition to the differences regarding the process for initiating these two legal proceedings, the purpose of filing a civil action is fundamentally different from the purpose of obtaining a prejudgment remedy. A prejudgment remedy application is brought as a prelude to the filing of a civil action, and is meant to determine whether security should be provided for any judgment ultimately recovered by the plaintiff if he or she is successful on the merits of the civil action. A civil action, in contrast, resolves the merits of the parties’ claims, and can be filed irrespective of whether the plaintiff was successful in his or her prior pursuit of a prejudgment remedy." (Emphasis in original.) Id., 560-61.
Applying the Supreme Court’s reasoning in Bernhard-Thomas Building Systems, LLC to the issue of whether the injunction proceedings underlying the present case constitute a " civil action" for purposes of allowing Sampson to bring an action for vexatious litigation supports the conclusion that they are such an action. Title 52 of the General Statutes sets forth the procedures governing the commencement of civil actions. General Statutes § 52-45a provides in relevant part: " 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 ... shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable." (Emphasis added.) " The plain language of [§ 52-45a] provides only that a signed writ be accompanied by a copy of the complaint. That section contains no language directing counsel to sign the complaint as well." Shokite v. Perez, 19 Conn.App. 203, 205, 561 A.2d 461 (1989). By contrast, " a proceeding is not a civil action when it is neither commenced by service of process nor controlled by rules of pleading ... [A] statutory proceeding that is not initiated by the filing of a complaint [such as a proceeding to confirm, modify, or vacate an arbitration award] is not a civil [action] within the meaning of title 52 of the General Statutes." (Citations omitted; footnote omitted; internal quotation marks omitted.) Board of Education v. Tavares Pediatric Center, 276 Conn. 544, 557-58, 888 A.2d 65 (2006).
In the underlying proceedings, the plaintiffs therein commenced that action by serving, inter alia, a signed writ of summons along with a copy of the complaint and motion for temporary injunction. The fact that the complaint was unsigned does not transform the proceedings into something other than a civil action. Further, unlike applications for prejudgment remedies, which General Statutes § 52-278a et seq. make clear are separate and distinct from civil actions; see Bernhard-Thomas Building Systems; LLC v. Dunican, supra, 286 Conn. 560-61; motions for temporary injunctions are not separate and distinct, as they are brought within civil actions. See General Statutes § 52-471(a) (" [a]ny judge of any court of equitable jurisdiction may, on motion, grant and enforce a writ of injunction, according to the course of proceedings in equity, in any action for equitable relief" [emphasis added] ). Motions for temporary injunctions, therefor; are brought not as a prelude to a civil action, but as part thereof.
Moreover, it is not necessary for the underlying proceedings to have been a civil action in the strictest sense in order to form the basis of a vexatious litigation action. In DeLaurentis v. New Haven, 220 Conn. 225, 597 A.2d 807 (1991), the court considered whether administrative removal proceedings constitute a civil action for purposes of bringing a vexatious litigation claim. The court held that the plaintiff " was not barred from bringing a vexatious suit action against the mayor simply because it is based upon a proceeding that did not take place in a courtroom. The removal proceedings prescribed by the New Haven city charter might have resulted in depriving [the plaintiff] of his position as a parking authority commissioner." Id., 249. The court reasoned that the administrative proceeding constituted an " action" because it had the potential to deprive the plaintiff of a legally protected interest. Similarly, as the underlying action could have deprived Sampson of its legally protected interest in obtaining title to the Williston Street parcel pursuant to its agreement with the city, that action could form the basis of a vexatious litigation claim.
The remaining issue that must be considered is whether the defendants have met their burden of establishing the absence of a genuine issue of material fact that they had probable cause to pursue their claims in the underlying action. The parties dispute whether a genuine issue of material fact exists as to probable cause.
The determination of probable cause is " purely objective" ; Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 95, 103, 912 A.2d 1019 (2007); and its existence " is an absolute protection against" an action for vexatious litigation. Id., 94. Probable cause has been defined as " a bona fide belief in the existence of 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 the 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." (Internal quotation marks omitted.) Id., 94-95. " [P]robable cause may be present even where a suit lacks merit." (Internal quotation marks omitted.) Id., 103. In the context of a vexatious litigation action against an attorney, the probable cause inquiry turns on whether, " on the basis of the facts known by the defendant at the time the action was filed, a reasonable attorney familiar with Connecticut law would have believed that probable cause existed to prosecute" the underlying action. Rockwell v. Rockwell, 178 Conn.App. 373, 391, 175 A.3d 1249 (2017), cert. denied, 328 Conn. 902, 177 A.3d 563 (2018).
" Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." DeLaurentis v. New Haven, supra, 220 Conn. 252-53. " [W]hile malice may be inferred from the lack of probable cause, lack of probable may not be inferred from malice." Id., 256 n.16. A " defendant is said to have acted with malice if he acted primarily for an improper purpose; that is, for a purpose other than that of securing the proper adjudication of the claim on which [the proceedings] are based ... such as the desire to occasion expense to the other party." (Citation omitted; internal quotation marks omitted.) Id.
The Supreme Court has held 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 ... 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 ... 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." (Citations omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 103-04.
In the present case, QGLP and Harrington have established the absence of a genuine issue of material fact that they had probable cause to prosecute the underlying action. First, they have shown that they had knowledge of facts strong enough to justify a reasonable person in the belief that the he or she has lawful grounds to demonstrate standing under § 8-200(a) based on their interpretation of that statute, which had not previously been subject to judicial interpretation, and the fact that QGLP was a contract purchaser of land in the development area. Although the trial court and the Appellate Court in the underlying action subsequently interpreted the statute in a way that conflicted with QGLP and Harrington’s interpretation, such that a mere contract purchaser lacks standing under that statute, that outcome has little bearing on the issue of whether they had probable cause to present that claim in the first instance; they did not have the benefit of binding appellate authority interpreting that statute at the time they pursued their argument that they were statutorily aggrieved, and the resolution of that issue was an open question. As noted previously, " [t]he 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 ..." A reasonable attorney familiar with Connecticut law would have believed that a viable argument could have been presented that the legislature’s choice of the term " purchaser" instead of " owner" in drafting § 8-200(a) indicated an intent to provide standing to contract purchasers. In other contexts, courts have consistently equated owners’ interests in property with those of contract purchasers. See, e.g., Shapero v. Zoning Board, 192 Conn. 367, 376, 472 A.2d 345 (1984) (contract purchaser is vested with equitable title and is equitable owner of the property); Forest Walk, LLC v. Conservation Commission, Superior Court, judicial district of Waterbury, Docket No. CV-02-0169965-S (March 11, 2004, Moraghan, J.T.R.) (" [i]n the context of an administrative appeal from the denial of [an inland wetlands] application, the interest of property owners and of a party holding an option to purchase that property are, for all practical purposes, the same interest" ). Accordingly, the defendants have established the absence of a genuine issue of material fact that they had probable cause to assert their claim of standing under that statute.
The court must next consider whether the defendants have met their burden of establishing the absence of a genuine issue of material fact that they had probable cause to pursue their substantive claims in the underlying action. In making that determination, the court notes the general standard for granting a temporary injunction: " In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law." (Internal quotation marks omitted.) Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010). With regard to QGLP’s claim of irreparable harm, the trial court found in its memorandum of decision in the underlying action that " [t]here was no factual evidence submitted, no surveys, studies, expert opinion or additional witnesses concerning an adverse effect of this operation. After four days of testimony of several witnesses, except for the owner of [QGLP], not one witness testified in opposition to the project as to any adverse effect it may have on the area." Ray Weiner, LLC v. Bridgeport, supra, Superior Court, Docket No. CV-11-6019100-S. In upholding the trial court’s decision, the Appellate Court determined that the trial court did not abuse its " wide discretion in concluding that [QGLP] has failed to establish that it would suffer irreparable harm." Ray Weiner, LLC v. Bridgeport, supra, 150 Conn.App. 289. The Appellate Court did not reach the issue of whether the trial court erred in concluding that QGLP had an adequate remedy at law in the form of its administrative appeal from the board’s decision to grant a variance for the subject parcel. Sampson argues that these findings and appellate determinations demonstrate that QGLP and Barrington lacked probable cause to pursue their claims.
It is not necessary for the court to reach the issue of whether the defendants had probable cause to assert their claims of irreparable harm and lack of an adequate remedy at law, because QGLP asserted an independent basis for their injunction claim in the underlying action. Specifically, they claimed that the city lacked authority to transfer the parcel at issue to Sampson for the purpose of developing a waste reduction facility without first obtaining the consent of QGLP. " When a municipality has acted in excess of its delegated powers, the plaintiff [seeking temporary and permanent injunctions] is not required to show that he has been irreparably harmed by the ultra vires act or that damages are not available in order to obtain relief." Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 824, 992 A.2d 1120 (2010). Thus, even if QGLP and Harrington had scant evidence of irreparable harm and of a lack of an adequate remedy at law, the absence of such evidence does not, in itself, demonstrate a lack of probable cause to pursue the claims at issue in the underlying action.
QGLP and Harrington have established the absence of a genuine issue of material fact with regard to whether they had probable cause to support the claim that the city had acted outside of its authority-in entering into an agreement with Sampson to transfer the Williston Street parcel to Sampson. A reasonable attorney familiar with Connecticut law would have believed that probable cause existed to argue that Sampson’s contemplated use of the land as a waste reduction facility would have constituted a modification of the development plan that would require the consent of QGLP as a contract purchaser of property in the development area. As discussed previously in this decision, QGLP has established the absence of a genuine issue of material fact that it had probable cause to claim that QGLP was a " purchaser" of " property in the development area" as those terms are used in § 8-200(a) for purposes of establishing that it had standing to bring the underlying action. For those same reasons, QGLP has established the absence of a genuine issue of material fact that they had probable cause to assert that QGLP’s consent would have been required in order for city to modify the development plan. In light of the undisputed evidence presented by QGLP that the parcel at issue originally was designated in the development plan to be used as a parking lot and that Sampson’s proposed use was for a waste reduction facility, QGLP has established the absence of a genuine issue of material fact that it had probable cause to assert that this change constituted a modification to the development plan that would require its consent pursuant to § 8-200(a).
The Appellate Court did not reach the issue of whether the city had exceeded its authority in agreeing to transfer the parcel at issue to Sampson, stating: " Given our conclusion that the plaintiff was not statutorily aggrieved because § 8-200(a) does not confer aggrievement on it, such that it could not seek a declaratory judgment against Sampson, we need not decide whether the court erred in finding that Bridgeport was authorized to execute a land disposition agreement with Sampson." Ray Weiner, LLC v. Bridgeport, supra, 150 Conn.App. 281 n.3.
Accordingly, QGLP and Harrington have met their burden of establishing the absence of genuine issues of material fact with regard to the probable cause element of Sampson’s vexatious litigation claims against them. Sampson cannot prevail against QGLP or Harrington in the absence of that essential element. Accordingly, QGLP and Harrington are entitled to judgment as a matter of law.
CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted.