Rousseau v. Weinstein ( 2021 )

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ROBERT ROUSSEAU ET AL. v. RICHARD P.
WEINSTEIN ET AL.
(AC 42902)
Alvord, Prescott and Moll, Js.
Syllabus
The plaintiffs, R and D Co., sought to recover damages from the defendants,
R’s former spouse, P, and P’s attorneys and their law firms, for, inter
alia, vexatious litigation. R and P were married in 2007, and, in 2010, R
commenced a dissolution action. P filed a cross complaint, alleging that
she suffered personal financial losses as a result of financial misconduct,
fraud, and duress committed by R, acting both individually and through
D Co., in connection with several financial investments that she made
during their marriage. In 2011, P retained the defendant attorneys to
assist with the dissolution action and to file a civil action against the
plaintiffs, alleging essentially the same claims of financial misconduct
that she had made in the dissolution action. Various other individuals
and entities who allegedly aided and abetted the plaintiffs were also
named as defendants in the civil action. Following a trial in the dissolu-
tion action, the court dissolved the marriage between R and P, found
that R had not, either individually or through D Co., engaged in the
financial misconduct claimed by P, and ordered P to release and hold
the plaintiffs indemnified and harmless from any and all claims pending
in the civil action. P appealed the dissolution decision and filed a motion
to stay the civil action pending a decision on the appeal, which the
court granted. The dissolution decision was affirmed and, a few weeks
later, the defendants withdrew the civil action. The plaintiffs then filed
this vexatious litigation action against P and her attorneys, alleging that
the claims made by the defendants in the civil action were identical to
those made in the dissolution action and, therefore, were precluded
by the prior pending action doctrine and lacked probable cause. The
defendants filed for summary judgment, which the court granted with
respect to the defendant attorneys, and the plaintiffs appealed to this
court. Held:
1. The prior pending action doctrine was not applicable and, therefore, did
not prevent the defendants from being entitled to summary judgment
as a matter of law: the fact that the civil action may have been subject
to dismissal under the prior pending action doctrine did not make it
inherently vexatious, even if it was exactly or virtually alike to the
dissolution action; moreover, the policies behind the prior pending
action doctrine, namely, to prevent unnecessary litigation that burdens
the courts and to avoid a multiplicity of actions and inconsistent judg-
ments, did not support expanding the doctrine to adopt a bright-line
rule that its applicability could be the foundation for finding a lack of
probable cause in a subsequent vexatious litigation action; furthermore,
a finding that the applicability of the prior pending action doctrine
created a prima facie case of vexatious litigation would conflict with
the discretionary nature of the doctrine.
2. There was no genuine issue of material fact as to whether the defendants
had probable cause to continue the civil action following the dissolution
decision: the standard to determine the existence of probable cause
was whether, on the basis of the facts known, a reasonable attorney
familiar with Connecticut law would believe that he had probable cause
to bring the action, and whether the trial court applied the correct
standard was irrelevant because this court conducted a de novo review
of the record; moreover, the court declined to review the claim that the
defendants lacked probable cause to commence the civil action because
that claim was raised for the first time at oral argument; furthermore,
the defendants had probable cause to continue the civil action following
the dissolution decision, as it was objectively reasonable for them to
move for a stay rather than to withdraw the action because, until the
court reviewed the propriety of the dissolution decision and the indemni-
fication order, they would not have been able to determine which claims,
if any, survived against R, D Co. and the other defendants.
Argued January 6—officially released May 25, 2021
Procedural History
Action to recover damages for vexatious litigation,
and for other relief, brought to the Superior Court in
the judicial district of New Haven and transferred to
the judicial district of Hartford, where the court, Mou-
kawsher, J., granted the motions for summary judgment
filed by the named defendant et al., and rendered judg-
ment thereon, from which the plaintiffs appealed to this
court. Affirmed.
Daniel J. Krisch, for the appellants (plaintiffs).
Cristin E. Sheehan, with whom, on the brief, were
James L. Brawley and Patrick J. Day, for the appellees
(named defendant et al.).
Raymond J. Plouffe, Jr., for the appellees (defendant
Mark H. Dean et al.).
Opinion
ALVORD, J. The plaintiffs, Robert Rousseau and Pre-
ferred Display, Inc.1 (Preferred Display), appeal from
the summary judgment rendered by the trial court in
favor of the defendants2 Mark H. Dean, Mark H. Dean,
P.C.,3 Richard P. Weinstein, and Weinstein & Wisser,
P.C.4 On appeal, the plaintiffs claim the court erred by
holding that (1) the marital dissolution action between
Rousseau and Madeleine Perricone was not a prior
pending action and (2) the defendants had probable
cause to continue a civil action based on similar claims
against Rousseau in the dissolution action. We conclude
that probable cause to continue the action existed and,
accordingly, affirm the judgment of the trial court.
The following facts, as alleged in the complaint, and
procedural history are relevant to our discussion of the
claims on appeal. Rousseau and Perricone were married
in 2007. On or about March 30, 2010, Rousseau com-
menced a dissolution action (dissolution action). Perri-
cone filed a cross complaint in the dissolution action,
alleging that she suffered personal financial losses as
a result of financial misconduct, fraud, and duress com-
mitted by Rousseau, acting both individually and
through Preferred Display, in connection with several
financial investments she made during the course of
their marriage.
On or about September 1, 2011, Perricone retained
Weinstein to commence a civil action (civil action)
against the plaintiffs. On or about September 22, 2011,
Dean was retained to assist with the prosecution of
Perricone’s claims in the dissolution action. Dean con-
sulted with Carlo Forzani, one of Perricone’s dissolu-
tion attorneys, and became familiar with the details of
the financial misconduct claims that were being made
against Rousseau in the dissolution action. Dean also
consulted with Weinstein and learned that the proposed
civil action would be making the same claims of finan-
cial misconduct that had been made by Perricone in
the dissolution action.
From about September 1 through November 30, 2011,
Weinstein consulted with Perricone, her dissolution
attorneys, and the forensic accountant involved in the
dissolution action to investigate the details of Perri-
cone’s claims of financial misconduct against Rousseau.
On November 30, 2011, Weinstein filed the civil action in
which Perricone asserted claims of breach of fiduciary
duty, securities fraud, misappropriation of funds, and
a violation of the Connecticut Unfair Trade Practices
Act (CUTPA), General Statutes § 42-110a et seq., against
Rousseau and Preferred Display. The civil action also
contained claims against various individuals and enti-
ties that allegedly aided and abetted Rousseau’s finan-
cial misconduct.5 Although the claims of financial mis-
conduct alleged in the civil action were more specific
and detailed, they were essentially the same allegations
raised and prosecuted by Perricone in her cross com-
plaint against Rousseau in the dissolution action.
On December 2, 2011, in the dissolution action, Perri-
cone moved to consolidate the civil action into the
dissolution action. During oral argument on the motion,
Perricone’s dissolution attorney, Jeffrey Ginzberg,
argued that consolidation was necessary because some
of the issues that would be litigated were ‘‘part and
parcel’’ of both actions. Ginzberg further argued: ‘‘I
don’t think it’s fair to have to have my client go through
an ordeal that’s [going to] take an entire month to pres-
ent to the court only to have to turn around and do it
all over again involving basically the same issues and
this time in the second case, having a set of defendants
from which to recover the money.’’ The court denied
Perricone’s motion to consolidate.
On or about December 20, 2011, Dean filed an appear-
ance on behalf of Perricone in the civil action, appearing
in addition to Weinstein.
Trial in the dissolution action occurred over twelve
days in January, February and March, 2012. On or about
January 23, 2012, Rousseau wrote to Perricone,
Weinstein, and Dean, stating that the claims being made
in the civil action as to Rousseau and Preferred Display
were the same as those that Perricone was alleging
and prosecuting in the dissolution action. As a result,
Rousseau demanded that Perricone, Weinstein, and
Dean withdraw the civil action. They refused to do so.
On August 6, 2012, the trial court issued its memoran-
dum of decision dissolving the marriage of Rousseau
and Perricone (dissolution decision). In the dissolution
decision, the court concluded that Rousseau did not,
either individually or through Preferred Display, engage
in the financial misconduct claimed by Perricone and
that Perricone’s claims were not credible. The court
further explained that it had examined the allegations
of the civil action and that the ‘‘allegations raised against
[Rousseau] and [Preferred Display] are more specific
and detailed but essentially the same allegations raised
by [Perricone] in the dissolution action.’’ As part of the
dissolution decision, the court ordered Perricone to
‘‘release and hold [Rousseau and Preferred Display]
indemnified and harmless from any and all claims of
action pending in Hartford Superior Court captioned
Perricone v. Rousseau, bearing docket number HHD-
CV-XX-XXXXXXX-S. In addition, [Perricone] shall be
responsible for 100 percent of [Rousseau’s] legal fees
in defending the civil action if [Rousseau] and/or [Pre-
ferred Display] remain parties to that action.’’
Perricone timely appealed the dissolution decision,
arguing, in part, that the trial court erred by ordering
her to release and hold Rousseau harmless in the civil
action. On March 25, 2014, this court affirmed the disso-
lution decision.6 See Rousseau v. Perricone, 148 Conn.
App. 837, 854, 88 A.3d 559 (2014). On April 17, 2014,
Weinstein withdrew the civil action.
In August, 2014, the plaintiffs commenced the present
action against Perricone and Weinstein. In October,
2015, the plaintiffs added Dean and his law firm as
additional defendants. In their three count third
amended complaint, the plaintiffs asserted common-
law and statutory claims of vexatious litigation against
the defendants. The plaintiffs alleged that the allega-
tions and claims made by the defendants in the civil
action were identical to those made in the dissolution
action and, therefore, were precluded by the prior pend-
ing action doctrine and lacked probable cause.
On January 7, 2019, Weinstein and Dean moved for
summary judgment. Weinstein moved for summary
judgment on the grounds that the plaintiffs waived their
right to assert the prior pending action doctrine as a
defense by failing to file timely a motion to dismiss and
that he had probable cause to believe that the civil
action was not identical to the dissolution action. Dean
moved for summary judgment on the ground that there
was no prior pending action when the civil action was
commenced because the constructive trust claim in
Perricone’s second amended cross complaint had been
withdrawn. The court, Moukawsher, J., granted the
motions of the defendants,7 and the plaintiffs appealed.
Additional facts will be set forth as necessary.
Before we address the plaintiffs’ claims on appeal,
we first set forth the applicable standard of review of a
trial court’s granting of a motion for summary judgment.
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any 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. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. . . . Once the
moving party has met its burden [of production] . . .
the opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . [I]t [is] incumbent [on] the party opposing sum-
mary judgment to establish a factual predicate from
which it can be determined, as a matter of law, that a
genuine issue of material fact exists. . . . The presence
. . . of an alleged adverse claim is not sufficient to
defeat a motion for summary judgment. . . . Our
review of the decision to grant a motion for summary
judgment is plenary. . . . We therefore must decide
whether the court’s conclusions were legally and logi-
cally correct and find support in the record.’’ (Internal
quotation marks omitted.) Amity Partners v. Wood-
bridge Associates, L.P., 199 Conn. App. 1, 6–7, 234 A.3d
1109 (2020).
I
The plaintiffs first claim that ‘‘the trial court improp-
erly held that the [dissolution action] was not a prior
pending action, and, thus, the civil [action] was not
vexatious, even though Perricone made the same claims
against the same parties in the two suits.’’8 We disagree
with the plaintiffs’ contention that an action subject to
dismissal under the prior pending action doctrine is
necessarily vexatious and that the defendants were not
entitled to summary judgment as a matter of law.
The following additional facts and procedural history
are relevant to our resolution of this claim. In count
two of her second amended cross complaint in the 2010
dissolution action, Perricone alleged a constructive
trust claim against Rousseau. Specifically, Perricone
alleged that Rousseau committed various acts of finan-
cial misconduct that caused her to lose millions of dol-
lars. Perricone alleged, inter alia, that Rousseau ‘‘exer-
cised undue influence over [her] with respect to her
finances,’’ manipulated her and became engaged in
numerous financial transactions to her detriment, and
‘‘exercised superiority or dominance over [her] with
respect to her finances.’’ On November 30, 2011,
Weinstein filed the civil action. The civil action con-
tained many of the same claims of financial misconduct
that Perricone raised against Rousseau in the dissolu-
tion action. On December 1, 2011, Perricone withdrew
count two of her second amended cross complaint in
the dissolution action.
On April 16, 2012, the plaintiffs filed a motion to
dismiss the civil action pursuant to the prior pending
action doctrine. Specifically, the plaintiffs argued that
the prior pending action doctrine was applicable to
the civil action because the claims made against the
plaintiffs in the civil action were essentially the same
as those being made against Rousseau in the dissolution
action. In response, Perricone argued that the court
lacked authority to grant the motion because the plain-
tiffs failed to file their motion within thirty days of the
filing of their appearances as required by Practice Book
§ 10-30. She also argued that the prior pending action
doctrine did not apply as a result of the significant
differences between a tort action and a dissolution
action.
While the motion to dismiss was pending, the court
issued its memorandum of decision in the dissolution
action. Perricone appealed the decision. On August 29,
2012, Weinstein filed a motion to stay the civil action
pending a decision in the dissolution appeal. At oral
argument on the motion to stay, the plaintiffs again
raised the prior pending action doctrine issue and
argued that the court still could decide their motion to
dismiss. The court, however, declined to rule on the
motion to dismiss and granted the motion to stay, stay-
ing all proceedings in the civil action until the resolution
of the dissolution appeal. Following the release of this
court’s decision affirming the dissolution decision,
Weinstein withdrew the civil action.
Thereafter, the plaintiffs commenced the present
action against the defendants for vexatious litigation.
On January 7, 2019, Weinstein, Dean, and Perricone
moved for summary judgment. On April 23, 2019, the
trial court, Moukawsher, J., issued its memorandum of
decision on the three motions for summary judgment.
The court denied Perricone’s motion, concluding that
the issue of whether she relied on the advice of her
attorneys in good faith when refusing to withdraw the
civil action following the dissolution decision was a
question for the fact finder. The court, however, granted
the Weinstein and Dean motions for summary judgment
on the grounds that the dissolution action was not a
prior pending action and that they had probable cause
to continue the civil action in which they moved for a
stay, pending the appeal of the dissolution decision. In
regard to its conclusion that the dissolution action was
not a prior pending action, the court held that the disso-
lution action and the civil action ‘‘[were not] sufficiently
alike to apply the rule.’’ The court further concluded
that ‘‘[b]ecause the prior pending action rule [did not]
apply to the civil [action] it [does not] make the civil
[action] automatically vexatious. . . . The only thing
decided so far is that [the] civil [action] was not auto-
matically vexatious for violating the prior pending
action rule.’’
On appeal, the plaintiffs argue that the close identity
between the two actions, potentially subjecting the civil
action to dismissal under the prior pending action doc-
trine, should have precluded the court from rendering
summary judgment in favor of the defendants.9 The
plaintiffs argue, expansively, that ‘‘the pendency of a
prior suit establishes want of probable cause for a sec-
ond suit between the same parties over the same
issues.’’ The plaintiffs cite authority from other jurisdic-
tions in support of their argument. At oral argument
before this court, however, the plaintiffs’ counsel con-
ceded that there are no Connecticut cases that apply
the prior pending action doctrine in this manner. The
plaintiffs, thus, are asking this court to adopt a bright-
line rule that the applicability of the prior pending action
doctrine of dismissal may be the foundation for finding
a lack of probable cause supporting a subsequent vexa-
tious litigation action. For the following reasons, we
decline the plaintiffs’ invitation.
‘‘It has long been the rule that when two separate
lawsuits are virtually alike the second action is amena-
ble to dismissal by the court. . . . [T]he prior pending
action doctrine permits the court to dismiss a second
case that raises issues currently pending before the
court. The pendency of a prior suit of the same charac-
ter, between the same parties, brought to obtain the
same end or object, is, at common law, good cause for
abatement. It is so, because there cannot be any reason
or necessity for bringing the second, and, therefore, it
must be oppressive and vexatious. This is a rule of
justice and equity, generally applicable, and always,
where the two suits are virtually alike, and in the same
jurisdiction. . . . The policy behind the doctrine is to
prevent unnecessary litigation that places a burden on
crowded court dockets.’’ (Citation omitted; internal
quotation marks omitted.) A1Z7, LLC v. Dombek, 188
Conn. App. 714, 721, 205 A.3d 740 (2019). ‘‘The rule,
however, is not one of unbending rigor, nor of universal
application, nor a principle of absolute law . . . .
Accordingly, the existence of claims that are virtually
alike does not, in every case, require dismissal of a
complaint.’’ (Citation omitted; internal quotation marks
omitted.) Bayer v. Showmotion, Inc., 292 Conn. 381,
396, 973 A.2d 1229 (2009).
‘‘[T]he trial court must determine in the first instance
whether the two actions are: (1) exactly alike, i.e., for
the same matter, cause and thing, or seeking the same
remedy, and in the same jurisdiction; (2) virtually alike,
i.e., brought to adjudicate the same underlying rights
of the parties, but perhaps seeking different remedies;
or (3) insufficiently similar to warrant the doctrine’s
application. In order to determine whether the actions
are virtually alike, we must examine the pleadings . . .
to ascertain whether the actions are brought to adjudi-
cate the same underlying rights of the parties. . . . The
trial court’s conclusion on the similarities between the
cases is subject to our plenary review.’’ (Internal quota-
tion marks omitted.) A1Z7, LLC v. Dombek, supra, 188
Conn. App. 721–22.
‘‘Following that initial determination, the court must
proceed to a second step. If the court has concluded
that the cases are exactly alike or insufficiently similar,
the court has no discretion; in the former situation, it
must dismiss the second action, and in the latter, it
must allow both cases to proceed. . . . Where actions
are virtually, but not exactly alike, however, the trial
court exercises discretion in determining whether the
circumstances justify dismissal of the second action.’’
(Citation omitted; internal quotation marks omitted.)
Kleinman v. Chapnick, 140 Conn. App. 500, 506, 59
A.3d 373 (2013).
We conclude that the applicability of the prior pend-
ing action doctrine cannot compel a determination that
the litigation is vexatious. Even if the civil action was
exactly or virtually alike to the dissolution action, the
fact that the civil action may have been subject to dis-
missal under the doctrine does not make it inherently
vexatious. The overarching policy concerns for the
prior pending action doctrine inform our conclusion.
‘‘The policy behind the doctrine is to prevent unneces-
sary litigation that places a burden on crowded court
dockets.’’ (Internal quotation marks omitted.) A1Z7,
LLC v. Dombek, supra, 188 Conn. App. 721. The prior
pending action doctrine also is designed to avoid a
multiplicity of actions and inconsistent judgments and
is ‘‘based on the principles of comity, convenience, and
the necessity for orderly procedure in the trial of con-
tested issues.’’ 1 C.J.S., Abatement and Revival § 20
(2021); see also Curcio v. Hartford Financial Services
Group, 472 F. Supp. 2d 239, 243 (D. Conn. 2007) (‘‘[t]he
prior pending action doctrine is one of federal judicial
efficiency to avoid placing an unnecessary burden on
the federal judiciary, and to avoid the embarrassment
of conflicting judgments’’ (internal quotation marks
omitted)). In addition to the fact that the court is permit-
ted, but not required, to dismiss an action that is virtu-
ally alike to one that is already pending; Kleinman v.
Chapnick, supra, 140 Conn. App. 506; in certain circum-
stances, the court may choose to abate or stay the first
action in favor of the second. 1 Am. Jur. 2d, Abatement,
Survival, and Revival § 8 (2021). ‘‘In some cases, the
public interest may be an important factor in determin-
ing whether an additional pending action should be
abated. Where the court of a slightly later filing provides
a more suitable forum for complete and expeditious
resolution of issues, that court may choose not to abate
the lawsuit.’’ (Footnote omitted.) Id. The focus of the
prior pending action doctrine, therefore, is on judicial
efficiency and on promoting orderly procedure in the
trial of contested issues. Simply put, none of the enu-
merated policy considerations for the doctrine indicates
that it was intended to apply in the manner that the
plaintiffs suggest: that it may be used proactively to
establish want of probable cause in a vexatious litiga-
tion action.
We are mindful that this court has noted that, when
a prior action is pending, there cannot be any reason
for bringing a second action and that the second action
therefore ‘‘must be oppressive and vexatious.’’ (Internal
quotation marks omitted.) A1Z7, LLC v. Dombek, supra,188 Conn. App. 721. This statement was made within
the context of a recitation of the common-law history
describing a good cause for the abatement of an action
by a court. We are unaware of any Connecticut authority
that has used this language to conclude that the applica-
bility of the prior pending action doctrine creates a
prima facie case of vexatious litigation, which is the
position that the plaintiffs advocate here.
The plaintiffs’ argument also fails to consider the
nuances and scope of the prior pending action doctrine.
The plaintiffs’ position that the applicability of the prior
pending action doctrine may be the foundation for find-
ing a lack of probable cause in a vexatious litigation
action conflicts with the discretionary nature of the
doctrine. Dismissal under the doctrine is not mandatory
if the second action is ‘‘virtually alike’’ to a pending
action. Kleinman v. Chapnick, supra, 140 Conn. App.
506. If the court has the discretion to decline to dismiss
a ‘‘virtually alike’’ action, that action indisputably can-
not be vexatious. Moreover, dismissal of a ‘‘virtually
alike’’ action pursuant to the prior pending action doc-
trine does not compel a conclusion that the action nec-
essarily was vexatious. The court may have dismissed
the action for policy reasons, including the avoidance
of inconsistent judgments, the convenience of the par-
ties, or to ensure orderly procedure in the trial of con-
tested issues. See 1 C.J.S., supra, § 20. The mere fact
that the prior pending action doctrine applies, thus, by
itself, cannot support a conclusion that the action is
vexatious. This proposition also prevails where an
action is ‘‘exactly alike’’ to a prior action. Although the
court is required to dismiss a second action that is
‘‘exactly alike’’ to a prior action; Kleinman v. Chapnick,
supra, 506; it does not necessarily follow that the com-
mencement of the second action can establish want of
probable cause for purposes of a vexatious litigation
action. As previously observed, none of the policy con-
siderations for the prior pending action doctrine indi-
cates that it was intended to be applied in such a man-
ner. Applying the prior pending action doctrine in this
way also would expand its scope. The prior pending
action doctrine is a doctrine of dismissal that gives
parties a tool to dismiss unnecessarily duplicative
actions. See A1Z7, LLC v. Dombek, supra, 188 Conn.
App. 721. If we were to adopt the plaintiffs’ position,
the prior pending action doctrine would cease to remain
a doctrine of dismissal. Instead, it could be used by
parties expansively to commence a vexatious litigation
action. In the absence of any compelling authority10 or
cogent policy considerations supporting such an expan-
sion, we decline the plaintiffs’ invitation to adopt a
bright-line rule that the applicability of the prior pending
action doctrine may be the foundation for finding a lack
of probable cause in a vexatious litigation action. We
therefore conclude that the applicability of the prior
pending action doctrine has no bearing on the present
case and, accordingly, does not prevent the defendants
from being entitled to summary judgment as a matter
of law.
II
The plaintiffs next claim that the trial court erred in
rendering summary judgment in favor of the defendants
because there was a genuine issue of material fact as to
whether the defendants had probable cause to continue
prosecuting the civil action following the dissolution
decision and the trial court applied the wrong test for
probable cause. Regardless of whether the trial court
applied the correct probable cause test, we conclude
that the defendants had probable cause to continue the
civil action.
The following additional facts and procedural history
are relevant to our consideration of this claim. In Sep-
tember, 2011, Perricone contacted Weinstein to inquire
whether the firm would represent her in a complicated,
commercial matter. Weinstein held an initial conference
with Perricone, and, after their conversation, Weinstein
began collecting evidence to corroborate Perricone’s
statements. On the basis of his investigation, Weinstein
believed he had substantial evidence in support of Perri-
cone’s claim that Rousseau had engaged in self-dealing
and, therefore, that he had probable cause to commence
a civil action alleging financial misconduct. Weinstein
then drafted the civil complaint and, after confirming
with Perricone’s dissolution attorneys that the facts, as
alleged, were accurate, filed the complaint.
Dean originally was retained by Forzani to provide
limited assistance in the dissolution action. Dean pre-
pared a comprehensive memorandum of law regarding
constructive trusts for Forzani’s consideration. On the
basis of the documentation he received and research
he conducted, Dean believed there was adequate legal
support for a constructive trust claim against Rousseau
in the dissolution action. Although he did not file an
appearance in the dissolution action, Dean appeared in
the civil action. While representing Perricone in the
civil action, Dean assisted Weinstein with discovery and
with other pleadings and motions as needed. As a result
of the facts relayed to him by Forzani, Weinstein, and
Perricone, along with the facts gleaned from the docu-
ments he reviewed, Dean believed there was probable
cause to commence the civil action.
On August 6, 2012, the dissolution decision was
issued. Weinstein believed that the dissolution decision
was decided incorrectly. Specifically, he disagreed with
the court’s statement that the civil action and the disso-
lution action contained essentially the same allegations.
He also believed that the court’s order that Perricone
release and hold the plaintiffs indemnified and harmless
in the civil action violated Perricone’s constitutional
rights. As a result, he advised Perricone to appeal the
dissolution decision.
Weinstein moved to stay the civil action while the
dissolution appeal was pending, on the ground that
Perricone was appealing the dissolution decision,
‘‘including but not limited to that portion of the order
of [the court] which affected the present litigation. To
that extent, [Perricone] has a Hobson’s choice of either
pursuing this litigation being obligated to pay for Rous-
seau’s cost expenses as well as indemnifying him, or
terminating the litigation. Whether [Perricone] ulti-
mately can or would bifurcate litigation or litigate dis-
creet issues in the instant matter remains to be seen,
but until the Appellate Court has had an opportunity
to review the propriety of [the court’s] decision and its
implications in regard to the instant case, [Perricone]
must regrettably request that the matter be stayed pend-
ing appellate review and determination of the judgment
rendered by [the court] in the dissolution [action].’’
On September 10, 2012, Weinstein repeated these
arguments at the hearing on the motion to stay. He
informed the court that Perricone was going ‘‘to chal-
lenge the ability of the domestic court to issue the order
that [it] did, that directly affects this case, namely the
indemnity and attorney’s fee provision.’’ He also argued
that, as a practical matter, ‘‘it is virtually impossible for
[Perricone] to be able to go forward in light of the
decision from [the court]. And we can’t even really
analyze, in a proper way, to what extent that decision
implicates the ability to go forward on the various
counts in this case.’’ The court granted the motion,
staying the civil action until the appeal of the dissolution
decision had concluded.
On appeal from the dissolution decision, Perricone
argued, in relevant part, that the court erred in ordering
her to release Rousseau and hold him harmless in the
civil action. Perricone argued that, although Rousseau
may have been entitled to seek dismissal or summary
judgment of her claims in the civil action on res judicata
or collateral estoppel grounds, ‘‘due process [entitled
her] to a full and fair opportunity in the civil action to
demonstrate that the elements of [these defenses] have
not been satisfied.’’ This court disagreed and upheld
the dissolution decision, concluding that ‘‘the order
regarding the civil case was well within the court’s
discretion . . . .’’ Rousseau v. Perricone, supra, 148
Conn. App. 850. We also noted that, should Perricone
continue to pursue the civil action, ‘‘she would be enti-
tled to keep for herself’’ any proceeds from the action
that were recovered from any defendant other than
Rousseau and Preferred Display. Id. Weinstein with-
drew the civil action following Perricone’s unsuccessful
appeal of the dissolution decision.
In their third amended complaint in the instant mat-
ter, the plaintiffs alleged that the defendants lacked
probable cause to commence and to continue the civil
action. Specifically, the plaintiffs alleged that, because
it was evident that Perricone was pursuing the same
claims in both the dissolution action and the civil action,
which the defendants knew or reasonably should have
known was improper, unnecessary, oppressive and vex-
atious, the defendants lacked probable cause in regard
to the civil action. Moreover, the plaintiffs alleged that
the defendants lacked probable cause to continue the
civil action following the dissolution decision, as the
findings of the dissolution court ‘‘constituted binding
factual and legal determinations of the lack of merit of
the civil [action] allegations in favor of the plaintiffs in
all material respects . . . .’’
The trial court addressed the issue of whether the
defendants had probable cause in its memorandum of
decision on the defendants’ motions for summary judg-
ment. The court focused its probable cause analysis
on the defendants’ conduct following the dissolution
decision because, in the court’s view, ‘‘Rousseau is only
suing about continuing rather than beginning the civil
[action and] that is all this decision must cover.’’ Citing
Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, 281 Conn. 84, 912 A.2d 1019 (2007), the court
stated that the standard for determining whether the
defendants had probable cause ‘‘amounts to determin-
ing whether a reasonable attorney would believe there
were facts sufficient to bring the lawsuit and whether
the particular attorney in the case believed in these
facts in good faith.’’ Under this standard, the court rea-
soned that, had Perricone’s appeal of the dissolution
succeeded and had the civil action been withdrawn
prior to the resolution of the dissolution appeal, her
claims in the civil action, particularly those against the
third parties, would have been lost, exposing the defen-
dants to malpractice actions. The court further stated
that ‘‘[s]taying the claim, on the other hand, would pro-
tect the client’s interest while minimizing further
expense and harm to the defendants in the civil action
by halting those proceedings pending the outcome of
the appeal. A reasonable attorney would not think this
obviously wrong. And there is no evidence that any of
the attorney defendants [did not] sincerely believe there
was a long shot chance on appeal. Both lawyers docu-
mented the consideration they gave the matter before
participating. There is no material dispute that they
believed enough of what Perricone claimed to assert
those claims on her behalf.’’ In light of these considera-
tions, ‘‘after considering the facts in the light most favor-
able to Rousseau, the court conclude[d] that there was
probable cause—it was not obviously wrong—for the
lawyers to seek a stay of the civil proceedings pending
the appeal of the divorce matter.’’ Accordingly, the court
granted the motions for summary judgment as to the
defendants.
On appeal, the plaintiffs claim that the trial court
applied the wrong test for probable cause. At oral argu-
ment before this court, the plaintiffs also stated that,
contrary to the trial court’s determination, they were
challenging the probable cause of the defendants to
commence the civil action, in addition to whether they
had probable cause to continue it after the dissolution
decision. In response, the defendants argue that proba-
ble cause existed to commence and to continue the
civil action.11 They further argue that, even if the trial
court applied an incorrect standard, this court can
affirm on the basis of our de novo review of the record.
We agree with the defendants.
We begin by setting forth the relevant legal principles
and standard of review. ‘‘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 [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.’’ (Internal quotation marks
omitted.) Rozbicki v. Sconyers, 198 Conn. App. 767,
773–74, 234 A.3d 1061 (2020).
‘‘[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 person
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 [or woman] in the
belief that he [or she] has lawful grounds for prosecut-
ing the defendant in the manner complained of. . . .
Thus, in the context of a vexatious suit action, the
defendant lacks probable cause if he [or she] lacks a
reasonable, good faith belief in the facts alleged and
the validity of the claim asserted. . . . [T]he existence
of probable cause is an absolute protection against an
action for [vexatious litigation], and what facts, and
whether particular facts, constitute probable cause is
always a question of law.’’ (Internal quotation marks
omitted.) Id., 774. Because the question of whether
there is probable cause in a vexatious litigation case is
a question of law, our scope of review is plenary.
Schaeppi v. Unifund CCR Partners, 161 Conn. App. 33,
46, 127 A.3d 304, cert. denied, 320 Conn. 909, 128 A.3d
953 (2015).
‘‘[In Falls Church Group, Ltd. v. Tyler, Cooper &
Alcorn, LLP, supra, 281 Conn. 84] [o]ur Supreme Court
. . . had the opportunity to consider whether a higher
legal standard of probable cause should be applied to
attorneys and law firms sued for vexatious litigation.
. . . After considering the statute and the competing
policy interests, the court concluded that a higher stan-
dard should not apply. . . . Instead, in assessing prob-
able cause, the court phrased the critical question as
whether on the basis of the facts known by the law
firm, a reasonable attorney familiar with Connecticut
law would believe he or she had probable cause to
bring the lawsuit. . . . As 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.’’ (Internal quotation marks omit-
ted.) Rozbicki v. Sconyers, supra, 198 Conn. App. 774–
75.
‘‘[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 argua-
bly 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.’’ (Internal quotation marks omitted.) Id., 775.
As a preliminary matter, we decline to review the
plaintiffs’ claim that Weinstein and Dean lacked proba-
ble cause to commence the civil action. ‘‘It is well settled
that claims on appeal must be adequately briefed, and
cannot be raised for the first time at oral argument
before the reviewing court. . . . Claims that are inade-
quately briefed generally are considered abandoned.’’
(Citations omitted.) Grimm v. Grimm, 276 Conn. 377,
393, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126
S. Ct. 2296, 164 L. Ed. 2d 815 (2006); see also Lafayette
v. General Dynamics Corp., 255 Conn. 762, 781, 770
A.2d 1 (2001) (declining to review issue raised for first
time at oral argument because it ‘‘was neither timely
raised nor properly briefed’’). In the present action, the
trial court focused its analysis on whether Weinstein
and Dean had probable cause to continue the civil
action following the dissolution decision because, in the
court’s view, ‘‘Rousseau is only suing about continuing
rather than beginning the civil [action and] that is all
this decision must cover.’’ The plaintiffs disputed this
determination of the trial court at oral argument before
this court and asserted that they also were challenging
whether the defendants had probable cause to com-
mence the civil action. In their principal appellate brief,
however, the plaintiffs argue only that the ‘‘trial court
improperly held that the defendants had probable cause
to continue the civil [action] after the unfavorable [dis-
solution decision] against Perricone . . . .’’ Their brief
contains no analysis on the issue of whether the defen-
dants had probable cause to commence the civil action.
Because the plaintiffs failed to brief this issue and raised
it for the first time during oral argument before this
court, we decline to review it. See Grimm v. Grimm,
supra, 393. As a result, we will presume that the defen-
dants had probable cause to commence the civil action.
We now turn to the remaining issue on appeal,
namely, whether the defendants had probable cause to
continue pursuing the civil action following the dissolu-
tion decision. In its memorandum of decision, the trial
court, citing Falls Church Group, Ltd., stated that the
probable cause ‘‘standard amounts to determining
whether a reasonable attorney would believe there were
facts sufficient to bring the lawsuit and whether the
particular attorney in the case believed in these facts
in good faith.’’ The court also made several observations
about what a ‘‘reasonable attorney’’ would do in a com-
parable situation. The court opined that the ‘‘[dissolu-
tion decision] certainly would have given reasonable
lawyers pause,’’ that ‘‘reasonable lawyers would have
had to consider their client,’’ and that a reasonable
attorney would not think that staying the claim while
the appeal was pending was obviously wrong. By citing
to the correct probable cause standard and referring
numerous times to what a ‘‘reasonable attorney’’ would
do, the court thus appears to have applied the correct,
objective legal test for probable cause. The plaintiffs,
nevertheless, argue that the court applied the wrong
standard. Specifically, the plaintiffs argue that by focus-
ing on whether an attorney’s actions are ‘‘not obviously
wrong,’’ the court improperly interjected a subjective
element into the established objective test for a proba-
ble cause determination. Although we acknowledge
that the language the trial court used in its probable
cause analysis is not a model of clarity, even if we were
to assume that the court applied an incorrect standard,
our de novo review leads us to conclude that the defen-
dants had probable cause to continue the civil action.12
A party does ‘‘not lose probable cause to pursue [an
action] because of adverse rulings along the way. The
standard for determining probable cause is not whether
there are adverse rulings by the court or whether the
claim is ultimately determined to be without merit. . . .
Rather, the standard is whether the defendant in a vexa-
tious litigation action had knowledge of facts, actual
or apparent, strong enough to justify a reasonable man
in the belief that he has lawful grounds for prosecuting
the [action] in the manner complained of.’’ (Citation
omitted; internal quotation marks omitted.) Schaeppi
v. Unifund CCR Partners, supra, 161 Conn. App. 53–54.
We conclude that Weinstein and Dean had probable
cause to continue the civil action following the dissolu-
tion decision. Although the dissolution decision was
unfavorable to the claims alleged in the civil action,
Weinstein and Dean did not lose probable cause simply
because of this adverse trial court decision. See id., 53.
The defendants had probable cause to commence the
civil action and, for the same reasons, had probable
cause to continue prosecuting the civil action. See id.,
53–54 (concluding that defendants had probable cause
to continue prosecuting foreclosure action even after
unfavorable rulings when they had probable cause to
initiate action). Moreover, Weinstein testified during his
deposition that he believed the dissolution decision’s
order that Perricone release and hold Rousseau harm-
less in the civil action ‘‘was Draconian at best’’ and that
it arguably was ‘‘unconstitutional because it creates a
muzzle on the ability of a citizen to be able to pursue her
rights to litigation.’’ As a result of Weinstein’s concerns,
Perricone did, in fact, challenge the trial court’s indem-
nification order. Had Perricone prevailed on appeal,
the order directing her to release and hold harmless
Rousseau and Preferred Display in the civil action
would have been reversed, and she would have been
permitted to continue prosecuting her claims against
the plaintiffs without the sanction of indemnification.
Weinstein’s concerns about the indemnification order
also led him to believe that moving to stay the civil
action during the pendency of the appeal was the pre-
ferred course of action. The indemnification order in the
dissolution decision stated that Perricone must release
only Rousseau and Preferred Display in the civil action.
The civil action, however, also contained claims against
numerous other parties. See footnote 5 of this opinion.
Consequently, Weinstein believed that a stay was neces-
sary because, until the Appellate Court reviewed the
propriety of the dissolution decision, Perricone would
be unable to determine fully the implications of the
indemnity order on her ability to bifurcate or litigate
discreet issues in the civil action. At oral argument
on the motion to stay, Weinstein repeated this theme,
stating that ‘‘it is virtually impossible for [Perricone] to
be able to go forward in light of the decision from [the
court]. And we can’t even really analyze, in a proper
way, to what extent that decision implicates the ability
to go forward on the various counts in this case.’’
Weinstein further justified his decision to move for
a stay instead of withdrawing the action during his
deposition, transcript excerpts of which were before
the court. Weinstein testified that he pursued a stay in
the civil action to ‘‘wait to see what the Appellate Court
decision would be’’ because, in his view, ‘‘the indemnity
provision, the way I read it, applied even if [Perricone]
won in the civil [action].’’ He further stated that, ‘‘even
though [he] believed there was probably cause to con-
tinue the civil [action, Perricone could not do that]
because of the indemnity [provision].’’
We conclude that Weinstein’s decision to move for
a stay of the civil action during the pendency of the
appeal was objectively reasonable. The civil action con-
tained claims against other parties that allegedly had
aided and abetted Rousseau’s financial misconduct.
These claims, thus, were intertwined with the claims
against Rousseau and Preferred Display. Until this court
reviewed the propriety of the dissolution decision and
the indemnification order, the defendants would have
been unable to determine which claims, if any, survived
against Rousseau, Preferred Display, and the other
defendants in the civil action. As a result of this uncer-
tainty, it was objectively reasonable for the defendants
to move for a stay rather than withdrawing the action.
See Rozbicki v. Sconyers, supra, 198 Conn. App. 774–75.
As the trial court stated in its memorandum of decision,
‘‘[s]taying the claim . . . would protect [Perricone’s]
interest while minimizing further expense and harm
to the defendants in the civil action by halting those
proceedings pending the outcome of the appeal.’’ The
defendants, therefore, had probable cause to continue
the civil action, move for a stay in that matter, and await
the outcome of Perricone’s appeal prior to determining
how to proceed.
In sum, there was no genuine issue of material fact
that the defendants had probable cause to continue the
civil action following the dissolution decision. Accord-
ingly, the trial court did not err in granting the defen-
dants’ motions for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rousseau is the president and majority shareholder of Preferred Display.
2
Madeleine Perricone, the former wife of Rousseau, and Ocean Pier Asso-
ciates, LLC, also were named as defendants in this action. Perricone’s motion
for summary judgment was denied and the plaintiffs withdrew their claim
against Ocean Pier Associates, LLC. Because Perricone and Ocean Pier
Associates, LLC, are not involved in this appeal, our references in this
opinion to the defendants are to Mark H. Dean, Mark H. Dean, P.C., Richard
P. Weinstein, and Weinstein & Wisser, P.C., only.
3
Mark H. Dean and Mark H. Dean, P.C., will be referred to collectively
in this opinion as Dean.
4
Richard P. Weinstein and Weinstein & Wisser, P.C., will be referred to
collectively in this opinion as Weinstein.
5
Perricone asserted claims against Valley Bank, now known as New
England Bank, Arnaldo Marinelli, Joseph Ramondetta, Hillcrest Investments,
LLC, Hillcrest Ventures, LLC, Harry Haralambus, Lambus Partners, Inc.,
Daniele & Associates, LLC, and James Mitchell III. In addition to alleging
that these defendants aided and abetted Rousseau’s financial misconduct,
Perricone also asserted claims of misappropriation of funds and violation
of CUTPA against them.
6
In affirming the trial court’s release and indemnification order in the
dissolution decision, this court held that ‘‘[a]nything [Perricone] could
recover from third parties was hers; nothing was to come from [Rousseau]
and he was to be made whole for any future litigation costs regarding the
civil action. In light of the court’s determination that there had been no
financial manipulation, which finding is not clearly erroneous, the order
regarding the civil [action] was well within the court’s discretion and served
to maintain the status quo of the overall property mosaic.’’ Rousseau v.
Perricone, 148 Conn. App. 837, 850–51, 88 A.3d 559 (2014).
7
See footnote 2 of this opinion.
8
We do not offer an opinion in this decision as to whether the trial court
erred in concluding that the dissolution action was not a prior pending
action. Even if we were to assume, without deciding, that the dissolution
action was a prior pending action, such an assumption would be immaterial
in light of our conclusion that the applicability of the prior pending action
doctrine would not compel a conclusion that the civil action necessarily
was vexatious. Accordingly, we do not address these arguments.
9
In its analysis of whether the prior pending action doctrine was applicable
to the civil action, the trial court also concluded that Rousseau’s status as
a necessary party precluded application of the doctrine. All of the parties
address this issue in their principal appellate briefs. In light of our conclusion
that, even if the prior pending action doctrine were applicable, it would not
compel a conclusion that the civil action necessarily was vexatious, we do
not address these arguments.
10
The plaintiffs rely on three cases from other jurisdictions for their
proposition that a lack of probable cause in a vexatious litigation case may
be predicated on the applicability of the prior pending action doctrine. See
SBK Catalogue Partnership v. Orion Pictures Corp., 723 F. Supp. 1053(D.N.J. 1989); Timeplan Loan & Investment Corp. v. Colbert, 108 Ga. App.
753, 134 S.E.2d 476 (1963); Neal v. Sparks, 773 S.W.2d 481 (Mo. App. 1989).
We do not find their reasoning persuasive and they are not binding on this
court. See State v. Hutton, 188 Conn. App. 481, 505, 205 A.3d 637 (2019)
(cases from other jurisdictions may be persuasive but are not binding).
11
In their principal appellate briefs, the parties also invoke the prior
pending action doctrine for their arguments concerning whether the defen-
dants had probable cause to commence and to continue the civil action. In
light of our conclusion in part I of this opinion that, even if the prior pending
action doctrine were applicable, it would not compel a conclusion that the
civil action was vexatious, we do not address these arguments on the merits.
12
As previously observed, because the question of whether there is proba-
ble cause in a vexatious litigation case is a question of law, our scope of
review is plenary. Schaeppi v. Unifund CCR Partners, supra, 161 Conn.
App. 46. Our review of a trial court’s decision to grant a motion for summary
judgment also is plenary. Amity Partners v. Woodbridge Associates, L.P.,
supra, 199 Conn. App. 7. The plaintiffs acknowledge this in their principal
appellate brief. The plaintiffs, however, still argue that this court should
reverse the trial court’s decision because ‘‘[a]pplication of an improper legal
standard is a ‘fatal flaw . . .’ that, unless harmless, requires a new trial.’’
We do not agree. The cases that the plaintiffs cite in support of their con-
tention that the application of an improper legal standard is reversible error
are distinguishable procedurally. See, e.g., McDermott v. State, 316 Conn.
601, 612, 113 A.3d 419 (2015) (reversing trial court when court applied
incorrect legal standard during trial to determine whether defendant had
assumed greater duty of care than that which was legally required); Deroy
v. Estate of Baron, 136 Conn. App. 123, 125, 43 A.3d 759 (2012) (reversing
trial court and remanding for new trial when trial court applied higher legal
standard than required by law to question of testamentary capacity during
trial); Stein v. Tong, 117 Conn. App. 19, 25, 979 A.2d 494 (2009) (improper
evidentiary finding during trial tainted ultimate determination). Moreover,
even if we were to assume that the court applied an incorrect standard,
any error that the trial court made is immaterial should this court conclude,
following our de novo review, that the defendants were entitled to summary
judgment. See Brown v. Otake, 164 Conn. App. 686, 700 n.9, 138 A.3d 951(2016). Accordingly, the plaintiffs’ argument is unpersuasive.