Tatoian v. Tyler ( 2019 )

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RICHARD TATOIAN, TRUSTEE v. BRUCE D.
TYLER ET AL.
(AC 40736)
Sheldon, Keller and Moll, Js.*
Syllabus
The plaintiff trustee of a trust brought this action to recover damages from
the defendant beneficiaries of the trust, B and J, for common-law and
statutory (§ 52-568) vexatious litigation in connection with a prior action
that J and other beneficiaries had commenced against the trustee and
in which B had filed a cross complaint against the trustee. In that prior
action, B and J had claimed that the trustee improperly failed to provide
them with certain accountings of the trust before the death of the settlor,
R. Judgment was rendered in favor of the trustee on the operative
complaint of J and cross complaint of B after the partial granting of a
motion for summary judgment and a jury verdict. Thereafter, the trustee
brought this action, claiming that all of the counts against him in the
prior action were terminated by way of summary judgment or resolved
by the jury in his favor. The trial court found that the trustee had
conceded that his action would fail if he did not to prove one of his
vexatious litigation claims as to one of the claims by B and J in the
prior action. The court rendered judgment in favor of B and J after it
determined that the trustee had failed to prove that they lacked probable
cause, as required under the common law and under § 52-568 (1), to
sue him for failure to provide them with accountings, and had failed to
prove that B and J had acted with malice, as required under § 52-568
(2). The trustee thereafter filed a motion for reargument and reconsidera-
tion in which he claimed, inter alia, that the trial court had stated
mistakenly in its memorandum of decision that he had conceded that
his action would fail if he could not prove that B and J lacked probable
cause to bring all of the counts in the prior action. The trial court granted
the motion for reargument and reconsideration and rendered judgment
for the trustee on his claim under § 52-568 (1), and rendered judgment
for B and J as to the trustee’s claims under the common law and § 52-
568 (2). B and J then appealed and the trustee cross appealed to this
court. B and J claimed, inter alia, that the trial court lacked subject
matter jurisdiction over the trustee’s causes of action and improperly
failed to consider whether R had been subjected to undue influence in
connection with the creation of the trust. The trustee, on cross appeal,
claimed, inter alia, that the trial court should have concluded that all
of the claims at issue were vexatious in nature and, thus, rendered
judgment in his favor with respect to those claims. Held:
1. The trial court properly denied B’s motion to dismiss the trustee’s action,
in which B claimed that the court lacked subject matter jurisdiction
due to the trustee’s lack of standing at the time he commenced the
action: although the trust document did not specifically authorize the
trustee to commence a vexatious litigation action, the trustee had a
specific interest in the claims he brought against B and J in his capacity
as trustee, and a common-law duty to take reasonable steps to recoup
assets of the trust, including attorney’s fees and costs incurred as a
result of the prior action, within a reasonable time frame during the
winding up of the trust after R’s death, as the trustee’ actions were a
reasonably necessary part of the winding up process, and no provision
of the trust specifically abrogated the trustee’s fundamental duty to
pursue claims and recoup assets on behalf of the trust, including claims
against beneficiaries; moreover, B and J provided no support for their
claim that the trustee lacked authority to pursue his claims because the
trust’s beneficiaries had standing to pursue a claim against their fellow
beneficiaries for damages related to the prior action, as the trustee had
a fiduciary duty to act on behalf of the trust and not to defer to decisions
made by beneficiaries, and B and J provided no authority to support
the proposition that the trustee lacked the authority to carry out his
duties as trustee during the winding up period without first seeking the
approval of one or more beneficiaries of the trust.
2. B and J could not prevail on their claim that the trial court improperly
failed to consider whether R was subjected to undue influence in connec-
tion with the creation of the trust; there was no indication that the court
ignored or failed to consider evidence of undue influence, although the
court did not expressly address the issue of undue influence in its factual
findings, it plainly found that R was advised of and satisfied with the
contents of the trust, and the court was not obligated to resolve the
issue of undue influence because the question before it was whether J
had probable cause in the prior action to claim that the trust should be
modified on the ground of undue influence, and whether B and J, in
relying on their claim of undue influence, had probable cause to bring
their claims against the trustee.
3. This court found unavailing the claim by B and J that the trial court
misinterpreted relevant law in its analysis of whether they had probable
cause in the prior action to claim that the trustee had failed to diversify
the trust’s assets in violation of statute (§ 45a-541c); the claim by B and
J rested on the faulty premise, which this court rejected, that the trial
court failed to consider whether R was subjected to undue influence
in connection with the creation of the trust, as the trial court plainly
found that R had been advised of the contents of the trust and was
satisfied with them.
4. B and J could not prevail on their claim that the trial court misinterpreted
relevant law in its analysis of whether the trustee could prevail merely
by demonstrating that B and J lacked probable cause to bring one of the
several claims against him in the prior action; contrary to the assertion
by B and J that the trustee’s claims merely presented different theories
of recovery that arose from his conduct in the prior action in failing
to diversify the trust’s assets, the court properly applied the law and
concluded that the claim of failure to diversify trust assets was logically
severable from the remaining claims for which probable cause existed,
as the failure to diversify claim was not based on the identical factual
allegations as the remaining claims, the allegations in each claim related
to facts that differed in terms of times, occurrences and actions, and
each of the claims at issue amounted to separate and distinct charges
to which the trustee was required to respond.
5. The trial court did not properly analyze whether B and J had probable
cause to bring certain of their claims against the trustee in the prior
action, as the court essentially disallowed any reliance by the trustee
on the trust’s exculpatory clause to demonstrate that B and J lacked
probable cause: although the exculpatory clause did not cloak the trustee
with immunity from suit, the clause was highly relevant to an analysis
of whether probable cause existed to bring the claims at issue against
the trustee in that it represented a significant hurdle for B and J to
overcome in order to demonstrate that the trustee was liable for the
damages that they sought in the prior action, and, therefore, the trial
could should have considered whether B and J reasonably believed
that they could overcome the exculpatory clause and whether they
reasonably believed that they were able to prove that R had been sub-
jected to undue influence; moreover, because B was an attorney at the
time he filed his cross complaint, the court had to resolve the issue of
whether a reasonable attorney would have believed that B had probable
cause to bring the claims in the cross complaint, and with respect to
J, the court had to determine whether the facts known to J at the
time he brought the claims against the trustee in the prior action were
sufficient to give rise to a bona fide belief that he should entertain the
action against the trustee; accordingly, the judgment could not stand
with respect to the trustee’s claims under § 52-568 (1) that alleged that
B and J lacked probable cause in the prior action to bring certain claims
in various counts of the complaint and cross complaint.
Argued December 3, 2018—officially released October 29, 2019
Procedural History
Action to recover damages for, inter alia, vexatious
litigation, and for relief, brought to the Superior Court
in the judicial district of Tolland, where the defendants
filed a counterclaim; thereafter, the court, Graham, J.,
granted the plaintiff’s motion to dismiss the counter-
claim; subsequently, the court, Sferrazza, J., granted
in part the plaintiff’s motion for summary judgment and
denied the defendants’ motion for summary judgment;
thereafter, the court, Cobb, J., denied the motion to
dismiss filed by the named defendant; subsequently,
the matter was tried to the court, Cobb., J.; judgment
for the defendants; thereafter, the court granted the
plaintiff’s motion for reargument and reconsideration,
and rendered judgment in part for the plaintiff, from
which the defendants appealed and the plaintiff cross
appealed to this court. Reversed in part; further pro-
ceedings.
Bruce D. Tyler, self-represented, and Jay M. Tyler,
self-represented, the appellants-cross appellees
(defendants).
Bruce S. Beck, for the appellee-cross-appellant
(plaintiff).
Opinion
KELLER, J. The plaintiff, Richard Tatoian, in his
capacity as trustee of the Ruth B. Tyler Irrevocable
Trust, brought the underlying vexatious litigation action
against the defendants, Bruce D. Tyler (Bruce Tyler)
and Jay M. Tyler (Jay Tyler). The defendants are among
the beneficiaries of the trust. In 2010, Jay Tyler com-
menced an action (prior action) against, among others,
the plaintiff and Bruce Tyler. Jay Tyler named the plain-
tiff as a defendant in all seven counts of his complaint,
but counts three through seven of the complaint were
brought against the plaintiff exclusively. Essentially,
with respect to the plaintiff, Jay Tyler alleged in his
complaint that, in a variety of ways, the plaintiff had
performed deficiently as trustee and sought money
damages and equitable relief. In 2011, Bruce Tyler
brought a cross complaint in the prior action. All four
counts of the cross complaint, which was brought
against the plaintiff exclusively, are nearly identical to
the claims raised in counts four through seven of the
complaint. Bruce Tyler sought, inter alia, money dam-
ages. After the plaintiff prevailed in the prior action, he
commenced the present action, sounding in common-
law and statutory vexatious litigation, for, inter alia,
attorney’s fees and costs he incurred, on behalf of the
trust, in defending himself in the prior action. Following
a court trial in the present action, the trial court found
that the defendants lacked probable cause to bring one
of the claims against the plaintiff in the prior action.
Accordingly, the court rendered judgment in part in
the plaintiff’s favor and awarded him a portion of the
attorney’s fees and costs he incurred in defending the
prior action.
The defendants appeal from the judgment of the trial
court and raise the following claims: (1) the court
lacked subject matter jurisdiction over the plaintiff’s
causes of action because he lacked standing at the time
of the commencement of the present action; (2) the
court improperly failed to consider whether the settlor
of the trust, Ruth B. Tyler (Ruth Tyler), was subjected
to undue influence in connection with the creation of
the trust; (3) the court misinterpreted relevant law in
its analysis of whether, in the prior action, the defen-
dants had probable cause to claim that the plaintiff
had violated General Statutes § 45a-541c by failing to
diversify trust assets; and (4) the court misinterpreted
relevant law in its analysis of whether the plaintiff could
prevail in the present action merely by demonstrating
that the defendants lacked probable cause to bring one
of the claims that they brought against him in the
prior action.
The plaintiff cross appeals from the judgment of the
trial court. He claims that, although the court properly
concluded that one of the claims raised against him by
the defendants in the prior action was not supported
by probable cause, the court erroneously failed to con-
clude that the defendants lacked probable cause to
bring the remaining claims and had acted with malice
in bringing the claims.1
We disagree with the claims raised in the defendants’
appeal but agree, in part, with the claim raised in the
plaintiff’s cross appeal. Accordingly, we affirm in part
and reverse in part the judgment of the trial court.
I
FACTS AND PROCEDURAL HISTORY
In its initial memorandum of decision, the court found
the following facts, many of which are not in dispute:
‘‘The defendants, [Jay Tyler] and [Bruce Tyler], are the
sons of the late [Ruth Tyler]. The defendants . . . have
three brothers; Thomas J. Tyler [(Thomas Tyler)], Rus-
sell J. Tyler [(Russell Tyler)], and John E. Tyler, Jr.
[(John Tyler, Jr.)].
‘‘Bruce Tyler and Thomas Tyler are attorneys licensed
to practice in this state.
‘‘In 1984, [Bruce Tyler] represented his mother, Ruth
Tyler, in executing a will that stated that the Tyler child
with the lowest net worth would receive enough money
from her estate to equalize that child’s net worth with
that of the sibling with the second lowest net worth.
[Bruce Tyler] gave Ruth Tyler the original of the 1984
will and he kept a copy for his records. [Bruce Tyler]
did not tell his siblings about the 1984 will or provide
them with a copy because he understood that as her
attorney he had an obligation not to disclose such infor-
mation without her consent.
‘‘Under the 1984 will, [Jay Tyler], the youngest of
Ruth Tyler’s five sons, would have received the entirety
of Ruth Tyler’s estate. [Jay Tyler] first learned about
the 1984 will from [Bruce Tyler] after Ruth Tyler died
in 2010.
‘‘In 1988, Ruth Tyler and her husband, John Tyler,
the defendants’ father, executed new wills in which
they divided their assets equally among their five sons.
This 1988 will was also prepared by [Bruce Tyler], who
was present when the will was executed and took the
oaths. [Bruce Tyler] did not tell Jay Tyler that their
parents had changed the will to leave their estate to
their five children equally. At trial, [Bruce Tyler] claimed
that he did not recall preparing the 1988 will for his
parents.
‘‘In 1990, Ruth and John Tyler took out a loan on the
family home in order to loan Jay Tyler $50,000. [Bruce
Tyler] assisted his parents in obtaining the bank loan.
Under his agreement with his parents, [Jay Tyler] was
required to pay back the loan in full with interest and
to make monthly payments to his parents.
‘‘In 1991, [Bruce Tyler] borrowed $25,000 from his
parents to use for college tuition. He, too, was required
to pay back this loan with interest. [Bruce Tyler] repaid
his parents at least $10,000 on this loan.
‘‘John Tyler, Ruth Tyler’s husband, died in 1997.
‘‘In 1999, Ruth Tyler executed a new will with the
assistance of her son, Thomas Tyler. Under this will,
Ruth’s five sons would share equally in her estate; how-
ever, any outstanding loan amounts owed to her would
be deducted from that child’s share of the estate and
redistributed to the others. At that time, she [granted]
her son [John Tyler, Jr.] her power of attorney.
‘‘[Bruce Tyler] could not recall if his mother told him
about the 1999 will. [Jay Tyler] was not aware of the
1999 will until after his mother died.
‘‘On August 3, 2004, the plaintiff received a call from
Thomas Tyler notifying him that his mother, Ruth Tyler,
would be calling him to discuss estate planning. The
next day, Ruth Tyler called the plaintiff, and they met
on August 10, 2004. The plaintiff is an attorney who has
practiced in Enfield for forty years in the area of trusts,
wills, and estates. He had known Ruth Tyler for fifty
years, as their families were neighbors.
‘‘At their meeting on August 10, 2004, Ruth Tyler
explained that she had prepared a will in 1999, which
she wished to maintain. She also told the plaintiff that
she wanted to create a trust to preserve her assets in
the event she went into a nursing home. They also
discussed the execution of a living will and revised
power of attorney, again designating her son, [John
Tyler, Jr.]. The plaintiff met with [John Tyler, Jr.], who
held Ruth Tyler’s power of attorney, and he gave the
plaintiff a copy of the 1999 will.
‘‘The plaintiff prepared the trust based on Ruth Tyler’s
instructions and explained its contents to her in detail.
In order to accomplish Ruth Tyler’s purpose to preserve
her assets and avoid probate, the trust was irrevocable.
The plaintiff was made the trustee of the trust. Ruth
Tyler agreed to the trust provisions.
‘‘The trust adopted the provisions of the 1999 will,
and provided that Ruth Tyler’s five sons would share
equally in her estate, ‘subject to the direction that any
sums due and owing to the [g]rantor [Ruth Tyler] by
her sons [Bruce Tyler and Jay Tyler], shall be deducted
from any share which they are to receive’ under the
trust.
‘‘According to the trust, the trustee had ‘full power
and authority to manage and control the trust estate,’
which included the right to invest and reinvest the trust
assets. ‘The trustees may make and change such invest-
ments from time to time according to their discretion;
and they may continue to hold any stocks, securities
or other property received by them hereunder, without
any duty of diversification.’ During his time as trustee,
the plaintiff had discussions with an investment advisor
but decided not to make any trades or any changes to
the investments of the trust assets.
‘‘Under the section [of the trust entitled ‘(t)rustee
(a)ccountings’], the trust provides: ‘The [t]rustee shall
render an account at least once each twelve months to
each adult beneficiary . . . . The account shall show
the receipts, disbursements and distributions of princi-
pal and income since the last accounting, and the assets
on hand. If no objection shall be made to any account
so rendered within ninety (90) days after a copy thereof
has been deposited in the mail addressed to any person
entitled thereto, as hereinabove provided, such benefi-
ciary shall be conclusively presumed to have approved
or assented to all actions reflected in the account so
rendered.’ Prior to Ruth Tyler’s death, the plaintiff only
sent accountings to Ruth Tyler and [John Tyler, Jr.].
‘‘The trust identifies Ruth Tyler as grantor and refers
to her as grantor throughout the trust. Although the
trust includes some limited definitions, it does not
define the term ‘beneficiary.’
‘‘The trust contains an incontestability of trust clause,
which provides that ‘if any beneficiary’ under the trust
shall contest the validity of the trust, they shall not be
entitled to any benefit under the trust.
‘‘The trust also provides a provision entitled ‘Exculpa-
tion of Individual Trustees’ that provides: ‘No individual
trustee shall be liable [for] any mistake or error of
judgment, or for any action taken or omitted, either by
the trustee or by any agent or attorney employed by
the trustee, or for any loss or depreciation in value of
the trust, except in the case of willful misconduct.’
‘‘After the trust was executed, Ruth Tyler’s assets
were transferred to the trust. The assets included Bank
of America stock held by Smith Barney as the invest-
ment advisor. The Bank of America stock had been
owned by Ruth and John Tyler for many years. At year
end in 2006, the trust estate had a value of just under
$500,000, with $362,504 attributed to stocks. At some
point, Ruth Tyler sold her home and those cash pro-
ceeds were added to the trust, making the value of the
trust approximately $500,000.
‘‘Neither defendant Bruce Tyler [nor] Jay Tyler [was]
aware that their mother created the trust until after her
death in 2010; however, both were aware that she had
wanted to do so.
‘‘Ruth Tyler died on April 1, 2010.
‘‘The plaintiff liquidated the assets of the trust and
converted them to cash for distributions to the benefici-
aries. He also prepared accountings, which he filed with
the Probate Court, and provided to the defendants. At
that time, the value of the trust assets had decreased
substantially to approximately $270,000, with the stock
value having decreased to approximately $146,000 from
its high several years before of $362,504.
‘‘After Ruth Tyler’s death, Bruce Tyler told Jay Tyler
. . . about the trust, and Bruce Tyler told Jay Tyler
about the 1984 will. When [Jay Tyler], who is not a
lawyer, learned about the trust, he had concerns that
the plaintiff had kept the trust a secret and should have
been providing him accountings during his mother’s
lifetime. Although [Jay Tyler] disputed that he owed
his mother any money, he was also concerned that his
mother’s trust essentially disinherited him, which he
did not believe she would do, leading him to believe
that she had been influenced by Thomas Tyler. Jay Tyler
believed that the plaintiff had conspired with Thomas
Tyler and that they had unduly influenced Ruth Tyler
to ‘cheat’ him out of his inheritance. Jay Tyler claimed
that Thomas Tyler was not a nice person and enjoyed
‘putting Jay down,’ and [that] the fact that Thomas Tyler
was aware of the trust and will, was a ‘red flag.’ Also,
when Jay Tyler learned from Bruce Tyler that the trust
had decreased substantially in value, he was concerned
that the plaintiff had not complied with prudent investor
rules, which he learned about from Bruce Tyler.
‘‘[Jay Tyler] decided that he wanted to bring a lawsuit
for the purpose of seeking to have the 1984 will deemed
operative, and pursuant to which he would benefit sub-
stantially. He asked his brother Bruce Tyler for assis-
tance. At first, Bruce Tyler declined and told Jay Tyler
to contact an attorney. When he spoke to Bruce Tyler
a second time and again sought his assistance, Bruce
Tyler agreed to help Jay Tyler with the paperwork.
Bruce Tyler told Jay Tyler that he was not his attorney
and that he was acting on his own.
‘‘With Bruce Tyler’s assistance, Jay Tyler prepared a
complaint against all of his brothers, including Bruce
Tyler, who were the other beneficiaries of the trust and
heirs under the 1999 will, and the plaintiff as trustee.
The suit was served on or about December 23, 2010,
and was filed in [the judicial district of Fairfield at
Bridgeport] on January 28, 2011. . . .
‘‘[Jay Tyler’s] initial complaint alleged that the plain-
tiff had conspired [with Thomas Tyler] to keep the trust
and the 1999 will a secret from him, that as a result of
this conspiracy, Jay Tyler was wrongfully deprived of
his share of Ruth Tyler’s estate, and that the plaintiff
had a duty to communicate with Jay Tyler and to furnish
him annual accounts of the trust during Ruth Tyler’s
lifetime and failed to do so. He also made claims of
undue influence against Thomas Tyler.
‘‘[Bruce Tyler] admitted all of the allegations of Jay
Tyler’s complaint and filed a cross complaint against
the plaintiff, dated March 21, 2011. In that complaint,
Bruce Tyler asserted that the plaintiff had a duty to
provide him with accountings for the trust during Ruth
Tyler’s lifetime, and that the plaintiff had violated Gen-
eral Statutes § 45a-541, because he failed to act as a
‘prudent investor’ in investing and managing the assets
of the trust. Bruce Tyler also alleged that the plaintiff
failed to diversify the investments of the trust in viola-
tion of the same statute, and that his failure to provide
accountings to Bruce Tyler during Ruth Tyler’s lifetime
deprived him of his right to seek an order from the
Probate Court to compel the plaintiff not to maintain
the securities he had received in the trust, which right
was claimed to be afforded by General Statutes
§ 45a-204.
‘‘On October 11, 2011, Bruce Tyler amended his cross
complaint, with the court’s permission, to proceed
against the plaintiff’s investment adviser and his
employer, alleging that they were liable because the
plaintiff had relied on their advice and management of
the securities in the trust account. On February 7, 2012,
Bruce Tyler’s cross complaint against the investment
adviser and his employer was dismissed for lack of
standing.
‘‘On April 10, 2012, [Bruce Tyler] amended his cross
complaint against the plaintiff to add an additional claim
alleging that the plaintiff should have sued an invest-
ment advisor who had provided advice seeking to
recover the lost value of stocks owned by the trust and
that the plaintiff was therefore liable to Bruce Tyler.
‘‘On June 21, 2012, [Jay Tyler] amended his complaint
adding all of the additional claims against the plaintiff
that had been previously made by Bruce Tyler in his
cross complaint against the plaintiff.2
‘‘Judgment entered in favor of the plaintiff on Jay
Tyler and Bruce Tyler’s operative complaints after the
partial granting of summary judgment and a jury
verdict.3
‘‘To defend the claims against him in the [prior]
action, the plaintiff, on behalf of the trust, hired counsel
and has incurred attorney’s fees in the amount of
$114,889 and costs in the amount of $2111.82.’’ (Foot-
notes added and footnotes omitted.)
In support of his vexatious litigation claims in the
present action, the plaintiff, in his capacity as trustee,
relied on the claims brought against him in the prior
action in both the operative complaint brought by Jay
Tyler and the operative cross complaint brought by
Bruce Tyler. The plaintiff also alleged that all of the
counts brought against him either were terminated by
way of summary judgment or resolved by a jury in his
favor. The plaintiff alleged that ‘‘[a]lthough . . . [Bruce
Tyler] was named as a defendant in the complaint and
in the amended complaint [brought by Jay Tyler], in
reality . . . [Bruce Tyler] and . . . Jay Tyler were not
adversaries but were, in fact, acting in concert. More-
over, in addition to filing his cross complaint and the
amendments thereto . . . [Bruce Tyler] directed and
controlled the initiation of the action, including prepar-
ing and arranging for service of the complaint and all
other relevant pleadings filed by . . . [Jay Tyler] as
were necessary for the commencement and prosecution
of the action.’’
In count one, the plaintiff asserted a cause of action
sounding in common-law vexatious litigation, seeking
compensatory and punitive damages. The plaintiff
alleged in relevant part: ‘‘The action, including the com-
plaint and cross complaint, was brought and prosecuted
by the defendants without probable cause in that the
defendants lacked knowledge of the facts, actual or
apparent, strong enough to justify a reasonable belief
that they had lawful grounds to bring and prosecute
the causes of action alleged against the plaintiff.’’ The
plaintiff alleged that ‘‘[i]n bringing and prosecuting the
[prior] action, [the] defendants acted with malice based
on one or more of the following: [a] [the] defendants
lacked probable cause to bring and prosecute the
action; [b] the action was brought and prosecuted pri-
marily for an improper purpose; [c] the defendants
knew or reasonably should have known that they had
no valid claim against the plaintiff based on the facts
asserted in the complaint, amended complaint, cross
complaint and amended cross complaint and/or that
any claims made by the defendants against the plaintiff
would have been barred by the provisions of the trust
or the laws of the state of Connecticut.’’ The plaintiff
alleged that ‘‘[t]he aforesaid actions on the part of the
defendants were taken with a malicious intent unjustly
to vex, annoy and harass the plaintiff’’ and ‘‘constitute
vexatious litigation under Connecticut common law.’’
The plaintiff alleged that he had incurred attorney’s fees
and costs in defending the prior action and bringing
the present action.
In count two, the plaintiff, relying on the allegations
set forth in count one, asserted a claim of statutory
vexatious litigation, seeking double damages pursuant
to General Statutes § 52-568 (1).4
In count three, the plaintiff, also relying on allegations
set forth in count one, asserted a claim for statutory
vexatious litigation, seeking treble damages pursuant
to § 52-568 (2).5
The defendants separately filed answers and special
defenses in which they denied the allegations that the
complaint and the cross complaint had been brought
without probable cause, that they had acted with malice
in bringing and prosecuting the prior action, and that
their actions had constituted vexatious litigation under
the common law or § 52-568.6 The respective pleadings
filed by the defendants mirrored one another. First, the
defendants claimed that, in bringing the prior action
against the plaintiff, they lacked the requisite intent
to have engaged in vexatious litigation. Second, the
defendants claimed that the plaintiff commenced the
present action prior to the termination of the prior
action, thus depriving the court of subject matter juris-
diction over the plaintiff’s action. Third, the defendants
claimed that the plaintiff lacked the authority under the
trust to bring the present action. Fourth, the defendants
claimed the present action reflected the plaintiff’s
improper motivation in that, rather than acting in the
best interest of the trust, he is motivated by his own
malice and vindictiveness toward the defendants and
not by any acts of the defendants. Fifth, the defendants
claimed that in the present action the plaintiff had vio-
lated General Statutes § 52-226a by failing to obtain a
certificate from the court in the prior action confirming
that the action was vexatious in nature.7 Sixth, the
defendants claimed that the plaintiff had engaged in
fraud. In his replies to the special defenses filed by the
defendants, the plaintiff denied each and every allega-
tion raised therein. Later, the court granted the plain-
tiff’s motion for summary judgment with respect to the
second, third, and fifth special defenses raised by the
defendants. At trial, the defendants expressly aban-
doned the first and fourth special defenses.
After the court, Cobb, J., denied a motion filed by
Bruce Tyler to dismiss the plaintiff’s vexatious litigation
action,8 a trial took place over the course of three days
in May, 2016. Thereafter, the parties submitted posttrial
briefs. On December 7, 2016, the court set forth its
ruling in a thorough memorandum of decision.
Having set forth its findings of fact, which we pre-
viously have recited in this opinion, the court addressed
the merits of the plaintiff’s claims in relevant part as
follows: ‘‘The cause of action for vexatious litigation
permits a party who has been wrongly sued to recover
damages. . . . 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 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. . . .
‘‘The court concludes that the . . . commencement
of the [prior] action against the plaintiff [by Jay Tyler],
and [the] . . . cross complaint against the plaintiff [by
Bruce Tyler], satisfies the first element that they prose-
cuted actions against the plaintiff. The court also finds
that the [prior] action terminated in the plaintiff’s favor,
either by summary judgment or a jury verdict in the
plaintiff’s favor. Thus, the court must determine the
remaining elements; whether the [prior] action was
prosecuted without probable cause and with malice.
‘‘The plaintiff conceded at argument that if he fails
to prove his vexatious litigation claim as to one of the
defendants’ claims in the [prior] action, this action fails.
As explained below, the court finds that the plaintiff
has failed to prove the defendants’ claim [in the prior
action]—that the plaintiff failed to provide them with
accountings—lacked probable cause, or that it was
brought with malice. Because the court finds [that]
probable cause existed for this claim, it is not necessary
to address the other causes of action brought by the
defendants in the [prior] action. Similarly, because the
court finds the issues for the defendants, it is unneces-
sary for the court to address the defendants’ remaining
special defense [that was based on fraud].’’ (Citations
omitted; internal quotation marks omitted.)
After discussing legal principles related to probable
cause and observing that its existence in a particular
case is a question of law, the court stated: ‘‘The plaintiff
claims that count four of [Jay Tyler’s] operative com-
plaint and count one of [Bruce Tyler’s] cross complaint
alleging that the plaintiff improperly failed to provide
them with accountings under the trust, lacked probable
cause. In support of this claim, the plaintiff argues that
this claim was disposed of in the plaintiff’s favor on
summary judgment and that the language of the trust
is clear and did not require that accountings be provided
to the defendants. The court disagrees and finds that the
defendants had probable cause to bring these claims.
‘‘First, adverse rulings in the underlying case on sum-
mary judgment or otherwise do not equate to a lack of
probable cause. . . .
‘‘Additionally, the court has reviewed the trust and
concludes that it is not ‘so clear,’ as the plaintiff con-
tends, such that any layperson would understand it to
allow for only one interpretation. There is only one
‘Trustee Accounting’ provision in the trust, § 8 (h),
which provides in part that: ‘The [t]rustee shall render
an account at least once each twelve months to each
adult beneficiary and to the natural or legal guardians,
if any, of each minor or otherwise legally disabled
beneficiary then receiving or entitled to receive income
hereunder. The account shall show the receipts, dis-
bursements and distributions of principal and income
since the last accounting, and the assets on hand. If no
objection shall be made to any account so rendered
within ninety (90) days after a copy thereof has been
deposited in the mail addressed to any person entitled
thereto, as hereinabove provided, such beneficiary shall
be conclusively presumed to have approved or assented
to all actions reflected in the account so rendered.’ ’’
(Emphasis added.)
‘‘The plaintiff provided accountings under this clause
to Ruth Tyler during her lifetime and [John Tyler, Jr.],
her power of attorney. The plaintiff did not provide
accountings of the trust holdings to the defendants or
other heirs. The plaintiff claims that the language of this
accountings provision ‘clearly’ required him to provide
accountings only to ‘income’ beneficiaries and that Ruth
Tyler was the only income beneficiary. Although the
court agrees that this is a valid interpretation of the
clause, it disagrees that it is the only possible interpre-
tation.
‘‘The plaintiff’s argument is dependent upon the court
finding that there is only one interpretation of the first
sentence of the accountings provision finding that the
last phrase of the first sentence, ‘entitled to receive
income hereunder,’ modifies ‘adult beneficiary,’ at the
beginning of the sentence. The court finds, however,
that there is another possible reading of this sentence,
and that is that the phrase ‘entitled to receive income
hereunder’ modifies the category of recipients identi-
fied immediately before it, that is, ‘natural or legal
guardians, if any, of each minor or otherwise legally
disabled beneficiary.’ Thus, the court finds that the pro-
vision is ambiguous, allowing for more than one inter-
pretation.
‘‘If the phrase ‘entitled to receive income hereunder’
does not modify ‘adult beneficiary,’ then there is an
argument that adult beneficiaries were entitled to
accountings under the trust. The term beneficiary is
not defined in the trust. The common definition of bene-
ficiary is ‘the person designated to receive the income
of a trust estate.’ . . . Thus, under the common under-
standing of the word beneficiary, the defendants as
recipients of property under the trust are beneficiaries,
and there can be no claim that they are not adults.
‘‘Moreover the trust identifies Ruth Tyler only as ‘the
[g]rantor,’ and not as a beneficiary, although she was
entitled to receive payments under the trust. When the
term ‘beneficiary’ is used throughout the trust, it
appears to mean Ruth Tyler’s heirs, and the defendants
are identified as heirs. For example, § 5 (f) of the trust
allows certain payments to minors or incapacitated
‘[b]eneficiaries,’ and § 5 (m) provides that the ‘[t]rustees
shall not be liable to the [g]rantor, any beneficiary, or
. . .’ suggesting that the words have different meanings
in the trust. The accounting provision requires [account-
ings] to ‘adult beneficiar[ies]’ but does not require
accountings to the ‘[g]rantor,’ although the grantor
received accountings. The trust could have been drafted
to include [a] definition section that would have made
its provisions clearer.
‘‘Thus, the court disagrees that the accountings
clause of the trust is ‘so clear’ as to have only one
meaning. The court finds that it is susceptible to more
than one interpretation, one of which supports the
defendants’ claim in the [prior] action that, as adult
beneficiaries under the trust, they were entitled to
accountings. Thus, the court finds that there was a
reasonable basis for the defendants’ belief that they
were beneficiaries under the trust and, as such, were
entitled to receive accountings from the plaintiff. The
plaintiff did not provide the defendants with account-
ings during Ruth Tyler’s lifetime. Had the plaintiff done
so, the defendants would have known that the trust
was declining significantly in value. Thus, the court
finds [that] there was probable cause for the defendants
to bring their claim against the plaintiff for failing to
provide accountings to them under the trust.
‘‘In addition, the plaintiff has not established that the
so-called ‘[e]xculpation [c]lause’ in the trust, drafted
by the plaintiff to protect the plaintiff, is sufficient to
establish that the defendants lacked probable cause to
bring this claim in the [prior] action. Under the trust,
the trustee shall not be subject to any liability, ‘except
in the case of willful misconduct.’ The plaintiff argues
that: ‘The meaning of this language is clear to a layper-
son, and certainly is clear to an attorney—that in order
to have a claim against the plaintiff, the defendants
must allege, and moreover establish, that the plaintiff
engaged in wilful misconduct.’ The plaintiff claims that
the defendants failed to plead ‘wilful [misconduct]’ or
prove it at trial. The plaintiff misconstrues the probable
cause standard, which does not require talismanic
phrases in pleadings or that a defendant prevail at trial.
. . . This ‘exculpation’ language in the trust does not
prohibit the bringing of an action against the trustee,
but only that he ‘shall not be liable,’ except for ‘willful
[misconduct].’ Indeed, the clause was asserted by the
plaintiff in the [prior] action as a special defense.
‘‘Thus, the court finds that the plaintiff has failed to
prove that the defendants lacked probable cause to sue
the plaintiff for failure to provide them with account-
ings. . . .
‘‘As for the element of malice, the court finds that
the plaintiff has not proved this element, either. In a
vexatious suit action, the 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 secur-
ing the proper adjudication of the claim on which [the
proceedings] are based . . . . [W]hile malice may be
inferred from the lack of probable cause, the lack of
probable cause may not be inferred from malice. . . .
‘‘The plaintiff’s primary argument is that he has
proved malice by proving lack of probable cause.
Because the court has found probable cause, the plain-
tiff cannot prevail on this argument.
‘‘The plaintiff also refers to circumstantial evidence
of the defendants’ animosity toward the other siblings
as proof of malice against the plaintiff, but the plaintiff
has produced no evidence that the defendants held
animosity toward him. The court is not aware of any
cases, and the plaintiff has provided none, that allow
the court to transfer the animosity of the defendants
from one party to another. Thus, [t]he evidence relied
on by the plaintiff fails to establish that the defendant[s]
acted primarily for any purpose other than securing an
adjudication of its claim.’’ (Citations omitted; footnotes
omitted.) The court rendered judgment in the defen-
dants’ favor.
On December 23, 2016, the plaintiff filed a motion
seeking articulation and clarification of the court’s
December 7, 2016 decision. Specifically, the plaintiff
asked the court to provide additional explanation for
its conclusion that the defendants had probable cause
to bring an action for monetary damages against the
plaintiff. On December 23, 2016, the plaintiff also filed
a motion seeking reargument and/or reconsideration of
the court’s December 7, 2016 decision, with a support-
ing memorandum of law. In relevant part, the plaintiff
argued that the court had stated mistakenly in its deci-
sion that he had conceded that his action would fail if
he could not prove that the defendants lacked probable
cause to bring all of the counts in the prior action, that
relevant precedent did not require him to prove that
there was a lack of probable cause with respect to all
of the counts in the prior action, that the court erred
in finding that the defendants had probable cause to
bring the accounting claims, and that, with respect to
the remaining claims in the prior action, he had proven
that the defendants acted with a lack of probable cause
and malice. Bruce Tyler replied to the motion seeking
reargument and/or reconsideration, arguing that the
relief sought therein was unwarranted. On February 15,
2017, the court held a hearing on the motion. Following
the hearing, the parties submitted supplemental briefs.
On July 19, 2017, the court issued a memorandum of
decision in which it granted the plaintiff’s motion for
reconsideration and/or reargument. The court left the
findings of fact set forth in its original decision undis-
turbed but set forth a different analysis with respect to
the claims raised. In relevant part the court stated: ‘‘The
plaintiff asserts that the court improperly concluded
that the defendants had probable cause to bring their
accounting claims in the underlying action. The plaintiff
does not challenge the court’s conclusion that the
accountings provision in the trust is ambiguous, but
instead contends that the defendants lacked probable
cause to bring their accounting claim because the claim
was barred by the trust’s exculpatory clause. This
clause, contained within § 5 (l) of the trust, provides:
‘No individual [t]rustee shall be liable for any mistake
or error of judgment, or for any action taken or omitted,
either by the [t]rustee or by any agent or attorney
employed by the [t]rustee, or for any loss or deprecia-
tion in the value of the trust, except in the case of
willful misconduct.’ In its original decision, the court
determined that the exculpatory clause did not defeat
the defendants’ probable cause to bring the accounting
claim because it did not prohibit the bringing of an
action against the trustee, but that he shall not be liable,
except for wilful misconduct. Consequently, the plain-
tiff has not contended that the court overlooked control-
ling authority or misapplied the facts. Instead, the plain-
tiff simply reiterates the argument made in his posttrial
brief that has been adequately addressed by the court’s
memorandum.’’
As we discussed in footnote 2 of this opinion, Jay
Tyler generally alleged in counts one and two of his
amended complaint, which was directed at the plaintiff
as well as Thomas Tyler, Russell Tyler, John Tyler, Jr.,
and Bruce Tyler, that the plaintiff had been a participant
in a conspiracy to wrongfully deprive him of his rightful
share of Ruth Tyler’s estate. The court in the present
action concluded that, to the extent that it was neces-
sary to consider whether Jay Tyler had probable cause
to bring these claims, it could consider them to be part
of the claims raised by Jay Tyler that were based on
the plaintiff’s failure to provide the defendants with
trust accountings. Apparently referring to counts one
and two of the complaint, in which Jay Tyler claimed
that a conspiracy existed, the court explained: ‘‘[T]he
court does not consider these contentions because
there are not sufficient factual allegations directed at
the plaintiff therein to constitute a separate claim
against him and to the extent that this claim contains
allegations against him, they go to his failure to provide
an accounting.’’ Accordingly, the court’s analysis of
‘‘accounting claims’’ encompassed the claims brought
against the plaintiff in counts one, two, three, and six
of Jay Tyler’s amended complaint.9 In this appeal, the
defendants do not raise a claim of error with respect
to the court’s decision to interpret counts one, two,
three, and six of the complaint in the manner that it did.
The court went on to state: ‘‘In addition to the discus-
sion in its original memorandum, the court notes that
the exculpatory clause does not act as a complete bar
or immunity to civil suit, as the plaintiff’s argument
seems to suggest. . . . The language of the clause lim-
its the trustee’s liability [to harm] resulting from the
trustee’s wilful misconduct. This action is a vexatious
litigation suit initiated by the trustee against the defen-
dants, who are beneficiaries of the trust, a situation not
covered by the exculpatory clause. In this case, the
plaintiff has the burden to prove a lack of probable
cause, among other things. The probable cause standard
applied in vexatious litigation actions imposes a signifi-
cant burden on the plaintiff. That the exculpatory clause
may act as a shield to protect a trustee from personal
liability where his conduct did not constitute wilful
misconduct does [not] mean that the exculpatory clause
may be used as a sword by the trustee to establish
probable cause in a vexatious suit. There is no language
. . . in the exculpatory clause to require such an inter-
pretation, and the plaintiff has presented no case, and
this court is not aware of any, that necessitates such a
finding. Indeed, the remedy imposed by the trust when
beneficiaries contest the trust is that they may not bene-
fit from the trust assets.’’ (Citation omitted.)
Next, the court considered the plaintiff’s contention
that in its original decision it mistakenly relied on what
it believed to have been a concession by the plaintiff
that, if probable cause existed with respect to one of
the claims in the prior action, he would be unable to
prevail in the present action. The court stated in rele-
vant part: ‘‘The court agrees that the plaintiff did not
concede this issue, and that a plaintiff in a vexatious
litigation action need not show a lack of probable cause
on all of the claims asserted in the underlying action
in order to prevail on a vexatious litigation claim, espe-
cially where the claims are logically severable. . . .
The court agrees with the plaintiff and therefore now
considers, on the merits, whether the defendants’ other
. . . claims against the plaintiff in the [prior] action
were vexatious.’’ (Citation omitted.)
After discussing relevant legal principles concerning
probable cause and malice, the court addressed the
other claims that the defendants brought against the
plaintiff in the prior action. The court stated in relevant
part: ‘‘In the [prior] action, the defendants brought a
claim alleging that the plaintiff failed to comply with
the requirements of diversification as set forth in § 45a-
541c, which provides: ‘A trustee shall diversify the
investments of the trust unless the trustee reasonably
determines that, because of special circumstances, the
purposes of the trust are better served without diversify-
ing.’ The plaintiff argues that the trust clearly states
that he had no duty to diversify. The defendants argue
that they had probable cause to bring this claim because
§ 45a-541c imposes a duty to diversify. The court agrees
with the plaintiff that under the statutory scheme and
the trust, he had no duty to diversify.
‘‘The duty imposed by § 45a-541c is part of a larger
statutory scheme entitled, the ‘Connecticut Uniform
Prudent Investor Act,’ which is a set of individual duties
imposed by General Statutes §§ 45a-541 to 45a-541l. The
applicability of the duties imposed by the Connecticut
Uniform Prudent Investor Act, including the duty to
diversify in § 45a-541c, is determined pursuant to Gen-
eral Statutes § 45a-541a, which provides: ‘(a) Except as
provided in subsection (b) of this section, a trustee who
invests and manages trust assets owes a duty to the
beneficiaries of the trust to comply with the prudent
investor rule, as set forth in sections 45a-541 to 45a-
541l, inclusive. (b) The prudent investor rule is a default
rule that may be expanded, restricted, eliminated or
otherwise altered by provisions of the trust. A trustee
is not liable to a beneficiary to the extent that the trustee
acted in reasonable reliance on provisions of the trust.’
The language of these statutory provisions is clear
and unambiguous.
‘‘Under § 5 (a) of the trust, the plaintiff had no duty
to diversify based on the following provision stating
that the trustee ‘may continue to hold any stocks, securi-
ties or other property received by them . . . without
any duty of diversification.’ (Emphasis added.) In light
of the clear and unambiguous language of the trust and
§ 45a-541c, the plaintiff did not have a duty to diversify
the trust’s holdings, and the defendants lacked probable
cause to bring this claim. . . . As for the malice
requirement, the court affirms and adopts its finding
in its original memorandum that the plaintiff has not
established malice. . . .
‘‘Consequently, the court concludes that the plaintiff
has proven that the defendants lacked probable cause
to bring their [claim in the prior action] alleging that
the plaintiff failed to diversify the assets of the trust and
that the plaintiff has failed to prove that the defendants
brought this claim with malice.’’ (Citations omitted.)
The court proceeded to address another claim that
the defendants brought against the plaintiff in the prior
action: ‘‘The defendants also alleged in the [prior] action
that the plaintiff failed to act as a prudent investor and,
as a result, the assets of the trust severely depreciated
by more than $250,000. Specifically, the defendants
alleged in the [prior] action that the depreciation of the
trust securities was a result of the plaintiff’s violation
of General Statutes § 45a-541b (a), which provides: ‘A
trustee shall invest and manage trust assets as a prudent
investor would, by considering the purposes, terms,
distribution requirements and other circumstances of
the trust. In satisfying this standard, the trustee shall
exercise reasonable care, skill and caution.’ The defen-
dants further alleged that the plaintiff failed to act as
a prudent investor in managing the assets of the trust
as prescribed by § 45a-541b (b) and (c).10
‘‘As to this claim, the plaintiff relies primarily on
the exculpatory clause in the trust, which the court
has rejected.
‘‘The plaintiff also asserts that General Statutes § 45a-
204 provides him immunity from any claim relating
to the depreciation of the securities. Section 45a-204
provides in relevant part: ‘Trust funds received by . . .
trustees . . . may be kept invested in the securities
received by them, unless it is otherwise ordered by the
Court of Probate or unless the instrument under which
such trust was created directs that a change of invest-
ments shall be made, and the fiduciaries thereof shall
not be liable for any loss that may occur by deprecia-
tion of such securities.’ . . .
‘‘The evidence reveals that neither the probate court
nor the trust instructed the plaintiff to change the initial
investments. Accordingly, the plaintiff, as trustee, was
subject to two somewhat conflicting statutory man-
dates. On one hand, pursuant to § 45a-541b, the plaintiff
had a duty to the beneficiaries to maintain and invest
the securities as a prudent investor would utilizing rea-
sonable care. On the other hand, pursuant to § 45a-204,
the plaintiff was able to maintain the securities as he
received them without subjecting himself to any poten-
tial liability.
‘‘The plaintiff argues that § 45a-204 provides him
immunity from all liability notwithstanding the duty
imposed by § 45a-541b. Even though the language of
§ 45a-204 appears to be applicable in the present case,
our Supreme Court, applying substantially identical
statutes, has held that the immunity provided by § 45a-
204 is not absolute, but applies ‘so long as in the exercise
of reasonable prudence [the trustee] deem[s] it unneces-
sary to make any change.’ . . . Peck v. Searle, 117
Conn. 573, 582, 169 A. 602 (1933); see Beardsley v.
Bridgeport Protestant Orphan Asylum, 76 Conn. 560,
564, 57 A. 165 (1904) (same); Bassett v. City Bank &
Trust Co., 115 Conn. 1, 26, 160 A. 60 (1932) (holding
that right to maintain securities as they were received
‘must be exercised with prudence and the trustee will
not be allowed to escape the responsibilities attaching
to trustees generally for the safety of trust funds in
his control’).
‘‘Although this reasonableness standard is not evident
from the language of the current and previous versions
of the statutes, it has been imposed by these Supreme
Court decisions. The reasonableness standard utilized
by these cases plainly mirrors the duty imposed by
§ 45a-541b, in that ‘the trustee shall exercise reasonable
care, skill and caution’ in managing the trust assets.
Accordingly, the defendants’ claim that the plaintiff is
not absolutely precluded by the immunity of § 45a-204,
is not baseless because it is supported by Supreme
Court precedent. Even if the defendants lost on that
claim in the underlying action and even if it may be
considered novel, [t]he standard for determining proba-
ble cause is not whether there are adverse rulings by
the court or whether the claim is ultimately determined
to be without merit. . . . Therefore, the defendants
would have had probable cause to bring this claim if
they were aware of facts to support their contention
that it was unreasonable for the plaintiff to retain the
investments as he received them.
‘‘In the present case, the court found in its original
memorandum of decision that the accountings prepared
by the plaintiff revealed that the trust securities had
substantially depreciated by more than $250,000. The
accountings also revealed that the plaintiff had not
taken any action to slow or stop the loss of value in the
securities. Based on these facts and the duty imposed
on the plaintiff by § 45a-541b, the court concludes that
the plaintiff failed to prove that the defendants lacked
probable cause to pursue this claim. In view of the
court’s finding on probable cause as to this claim, the
court need not decide [the issue of] malice.’’ (Citation
omitted; emphasis in original; footnote in original and
footnote omitted.)
Last, the court turned to the defendants’ claim in
the prior action that the plaintiff failed to hold the
investment advisor liable. The court stated in relevant
part: ‘‘In the underlying action, the defendants asserted
that the plaintiff failed to pursue an action against the
investment advisor who provided him advice and coun-
seled him not to diversify the assets of the trust, which
was contrary to the best interests of the beneficiaries
of the trust and resulted in substantial depreciation of
the trust assets. The defendants relied upon § 45a-541i,
which provides generally that a trustee may delegate
investment and management functions to an agent, who
can be held liable for a breach of duty imposed by such
delegation. The plaintiff argues that immunity bars this
claim and that there was no evidentiary basis for this
claim because the trust provided him authority to
decide whether or not to pursue claims against the
investment advisor. The plaintiff also asserts that he
testified that he did not delegate the authority to manage
any securities and [that] the defendants failed to proffer
expert testimony in support of their claim.
‘‘In determining whether the defendants had probable
cause for their claims, the issue is whether the defen-
dants had the bona fide belief in the existence of the
essential facts underlying the claim. . . . The court
finds that under the circumstances presented here, the
defendants did have a bona fide belief in the existence
of the essential facts.
‘‘The plaintiff’s claim that the investment advisor is
entitled to immunity pursuant to § 45a-204 and the
trust’s exculpatory clause [is] undermined by General
Statutes § 45a-541i (b), which provides that ‘[a]n
attempted exoneration of the [financial advisor to
whom investment and management functions have
been delegated] from liability for failure to meet such
a duty is contrary to public policy and void.’
‘‘The plaintiff, as trustee, had the ability to bring a
cause of action against the investment advisor pursuant
to § 45a-541i. As the court found in its original memoran-
dum of decision, the defendants brought this claim
based upon the fact that the investment advisor coun-
seled the plaintiff not to diversify the securities. The
court further found that during his time as trustee, the
plaintiff had discussions with an investment advisor but
decided not to make any trades or any changes to trust
assets. The trust accountings reflected that no change
had been made to the investments. Based upon the
foregoing, the plaintiff has failed to prove that the defen-
dants lacked probable cause to bring this claim and,
therefore, no finding [with respect to the issue] of mal-
ice is necessary.’’ (Citation omitted; footnote omitted.)
Thus, in its decision granting the plaintiff’s motion
for reargument and reconsideration, the court con-
cluded that the plaintiff had sustained his burden of
proving that the defendants lacked probable cause to
bring the failure to diversify claim, but that he had failed
to prove that the defendants had acted with malice with
respect to that claim. With respect to the claim based
on the plaintiff’s failure to provide the defendants with
trust accountings, the court concluded that the plaintiff
did not prove that the defendants had brought the claim
without probable cause. Relying on its finding concern-
ing malice in its original memorandum of decision, the
court affirmatively found that the plaintiff failed to
prove that the defendants had brought the claim with
malice. With respect to the remaining claims, the court
concluded that the plaintiff failed to prove that the
defendants brought the claims without probable cause,
and the court stated that, in light of this determination,
it was unnecessary to reach the issue of malice.
In its decision granting the plaintiff’s motion for rear-
gument and/or reconsideration, the court rendered
judgment in the plaintiff’s favor under count two, sound-
ing in statutory vexatious litigation under § 52-568 (1),
with respect to the failure to diversify claim. The court,
relying on its finding that malice had not been proven,
rendered judgment in the defendants’ favor with respect
to count one, sounding in common-law vexatious litiga-
tion, and count three, sounding in statutory vexatious
litigation under § 52-568 (2). The court awarded the
plaintiff $33,774 in attorney’s fees and $527.96 in costs
arising from the plaintiff’s defense in the prior action
and a prior appeal involving the parties. See Tyler v.
Tyler, 151 Conn. App. 98, 93 A.3d 1179 (2014).11
After the court granted the plaintiff’s motion for rear-
gument and/or reconsideration and granted the plaintiff
the relief described previously, the defendants filed a
motion for reargument and/or reconsideration of that
decision, as well as a memorandum of law. On August
2, 2017, the court denied the motion. The present appeal
and cross appeal followed. Additional facts will be set
forth as necessary.
II
DEFENDANTS’ APPEAL
The defendants appeal from the judgment of the trial
court and raise the following claims: (1) the court
lacked subject matter jurisdiction over the plaintiff’s
causes of action because he lacked standing at the time
of the commencement of the lawsuit; (2) the court
improperly failed to consider whether the settlor of the
trust, Ruth Tyler, was subjected to undue influence in
connection with the creation of the trust; (3) the court
misinterpreted relevant law in its analysis of whether,
in the prior action, they had probable cause to claim
that he had violated § 45a-541c by failing to diversify
trust assets; and (4) the court misinterpreted relevant
law in its analysis of whether the plaintiff could prevail
in the present action merely by demonstrating that the
defendants lacked probable cause to bring one of the
several claims that they brought against him in the prior
action. We address these claims in turn.
A
First, the defendants claim that the court lacked sub-
ject matter jurisdiction over the plaintiff’s causes of
action because he lacked standing at the time of the
commencement of the lawsuit. We disagree.
The following additional facts and procedural history
are relevant to this claim. In September, 2015, Bruce
Tyler filed a motion to dismiss the plaintiff’s complaint
and an accompanying memorandum of law on the
ground that the plaintiff lacked standing and, therefore,
the court lacked subject matter jurisdiction. In support
of the motion to dismiss, Bruce Tyler referred to the
undisputed facts that Ruth Tyler died on April 1, 2010,
and the plaintiff, as trustee, commenced the present
action more than three years later, in December, 2013.
Bruce Tyler argued that, following Ruth Tyler’s death,
the plaintiff had standing only to wind up the trust,
which did not encompass his commencement of the
present action. The plaintiff objected to the motion. On
November 17, 2015, the court denied the motion to
dismiss. The court stated: ‘‘The plaintiff . . . has stand-
ing to bring this lawsuit, as he is a proper person to
adjudicate the claims of vexatious suit in this case.
May v. Coffey, 291 Conn. 106, 967 A.2d 495 (2009). The
plaintiff has a specific personal interest in this case
by virtue of his status as trustee, and as [trustee] his
responsibility to wind up the affairs of the trust. Ramon-
detta v. Amenta, 97 Conn. App. 151, 903 A.2d 232
(2006).’’
The defendants argue before this court that the trial
court erroneously concluded that, following the termi-
nation of the trust, the plaintiff had the authority under
the trust to bring the present action against them
because it was done as part of the winding up of the
trust. The defendants argue that although the court
properly looked to Ramondetta for guidance with
respect to the issue of whether the plaintiff had the
authority to commence the present action, the court
misapplied that precedent. Specifically, the defendants
argue that bringing the present action was not part of
the winding up process because the present action was
not an ‘‘asset’’ of the trust, it had no ‘‘intrinsic value,’’
and there was no provision in the trust that required
the plaintiff to bring the present action against them.12
The defendants argue that, far from being an act that
the plaintiff was required to perform by the trust, or
an act that was necessary to wind up the trust, bringing
the present action was a voluntary ‘‘gamble’’ of trust
assets that was undertaken by the plaintiff alone, and
that one or more beneficiaries could have commenced
the action if they believed it was worthwhile to do so.
As he did before the trial court, the plaintiff argues
that his powers as trustee did not end immediately when
the trust terminated upon Ruth Tyler’s death, but that
they continued for a reasonable time so that he could
wind up the affairs of the trust. He argues that he timely
commenced the present action in December, 2013,
shortly after the trial in the prior action concluded in
October, 2013, and the appeal period from the judgment
rendered in his favor in that action had expired. When
he brought the present action against the defendants,
the plaintiff argues, he was working diligently and
within a reasonable time to collect an asset of the trust.
The plaintiff argues that the fact that the claims he
brought against the defendants were valid and had value
to the trust is evidenced by his obtaining a judgment
in his favor on behalf of the trust. He argues: ‘‘It was
well within the trustee’s discretion (if not mandated by
law as part of [the] plaintiff’s duties) to pursue this
claim as an asset of the trust.’’
‘‘The issue of standing implicates subject matter juris-
diction and is therefore a basis for granting a motion
to dismiss. . . . Because a determination regarding the
trial court’s subject matter jurisdiction raises a question
of law, [the standard of] review is plenary. . . . Stand-
ing is established by showing that the party claiming it
is authorized by statute to bring suit or is classically
aggrieved. . . . The fundamental test for determining
[classical] aggrievement encompasses a well-settled
twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the subject matter of
the challenged action], as distinguished from a general
interest, such as is the concern of all members of the
community as a whole. Second, the party claiming
aggrievement must successfully establish that this spe-
cific personal and legal interest has been specially and
injuriously affected by the [challenged action]. . . .
Aggrievement is established if there is a possibility, as
distinguished from a certainty, that some legally pro-
tected interest . . . has been adversely affected.’’
(Citations omitted; internal quotation marks omitted.)
Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213–15, 982
A.2d 1053 (2009). ‘‘[I]t is the burden of the party who
seeks the exercise of jurisdiction in his favor . . .
clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute.’’
(Internal quotation marks omitted.) McWeeny v. Hart-
ford, 287 Conn. 56, 63–64, 946 A.2d 862 (2008).
Before the trial court and before this court, the parties
have framed the issue of standing as being dependent
on whether the plaintiff had the authority, in his repre-
sentative capacity as trustee, to commence the vexa-
tious litigation action following the termination of the
trust upon Ruth Tyler’s death. As the parties observe,
§ 4 of the trust provides in relevant part: ‘‘After provi-
sion has been made for the payments and reservations
specified in Section 3 . . . [for debts and funeral
expenses, estate administration expenses, and taxes],
upon the [g]rantor’s death, the [t]rust shall terminate
and the principal thereof (including any accumulated
income) shall be distributed, in substantially equal
shares, to the [g]rantor’s children . . . .’’ (Emphasis
added.) Section 3 of the trust provides in relevant part
that ‘‘[f]ollowing the death of [the] [g]rantor, the [t]rust-
ees shall reserve and pay out of the assets otherwise
passing under [s]ection 4 . . . .’’
‘‘One of the fundamental common-law duties of a
trustee is to preserve and maintain trust assets. A
trustee has the right and duty to safeguard, preserve, or
protect the trust assets and the safety of the principal.’’
(Footnotes omitted.) 76 Am. Jur. 2d, Trusts § 402 (2016).
‘‘A trustee must enforce and collect choses in action,
claims, debts, and demands belonging to the estate.
The trustee may also be charged with the value of assets
which never came into its possession if it failed its duty
to acquire them.’’ (Emphasis added; footnote omitted.)
Id., § 401. ‘‘The safety of the trust fund is the first care
of the law, and on this depends every rule which has
been made for the conduct of trustees. So a trustee
must take reasonable steps to enforce claims of the
trust and to defend claims against the trust.’’ (Emphasis
added; footnote omitted.) 90A C.J.S., Trusts § 327
(2010); see also 1 Restatement (Second), Trusts § 177,
p. 383 (1959) (‘‘[t]he trustee is under a duty to the
beneficiary to take reasonable steps to realize on claims
which he holds in trust’’). ‘‘It is not the duty of the
trustee to bring an action to enforce a claim which is
a part of the trust property if it is reasonable not to
bring such an action, owing to the probable expense
involved in the action or to the probability that the
action would be unsuccessful or that if successful the
claim would be uncollectible owing to the insolvency of
the defendant or otherwise.’’ 1 Restatement (Second),
supra, § 177, comment (c), p. 384. ‘‘The trustee is the
proper party to bring an action against anyone who
wrongfully interferes with the interests of the trust.’’
Naier v. Beckenstein, 131 Conn. App. 638, 646, 27 A.3d
104, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011).
In Ramondetta, this court carefully set forth princi-
ples related to a trustee’s authority to wind up a trust
following its termination: ‘‘The authorities are in agree-
ment . . . that the fiduciary duty of a trustee does not
immediately terminate when the trust property ceases
to exist. Rather, the trustee’s fiduciary duty survives
even the termination of the trust. See 4 A. Scott, Trusts
(4th Ed. Fratcher 1989) § 344, p. 542 (‘[w]hen the time
for the termination of the trust has arrived, the duties
and powers of the trustee do not immediately cease;
until the trust is actually wound up, he has such duties
and powers as are appropriate for the winding up of
the trust’); 1A A. Scott, Trusts (4th Ed. Fratcher 1989)
§ 74.2, p. 435 (trustee still under duty to account to
beneficiary and still owes fiduciary duties as ‘fiduciary
relation continues, although it ceases to be a relation
with respect to any specific property’); 2 Restatement
(Second), Trusts § 344, p. 190 (1959) (‘[w]hen the time
for the termination of the trust has arrived, the trustee
has such powers and duties as are appropriate for the
winding up of the trust’).
‘‘A trustee is permitted a reasonable time to wind up
trust affairs. ‘At such time when the trust is terminated
in any way . . . the trust nevertheless continues for a
reasonable time during which the trustee has power to
perform such acts as are necessary to the winding up
of the trust and the distribution of the trust property
. . . . Determination of what constitutes a reasonable
period within which to wind up the trust and distribute
the trust assets will depend upon a number of facts
with respect to the particular trust.’ G. Bogert & G.
Bogert, Trusts and Trustees (2d Ed. Rev.1983) § 1010,
pp. 448–51; see also Trust Created Under Will of
Damon, 76 Haw. 120, 126, 869 P.2d 1339 (1994) (‘trust
will undoubtedly continue for a substantial time after
termination during the winding up period’); Uniform
Trust Code § 816 (26) (trustee may ‘on termination of
the trust, exercise the powers appropriate to wind up
the administration of the trust and distribute the trust
property to the persons entitled to it’). What is reason-
able in a particular case is a fact specific question. As
one authority states: ‘What constitutes a reasonable
time depends on the circumstances. Under some cir-
cumstances there may be a considerable period elaps-
ing before it is possible to complete the process of
winding up the trust and to make a final distribution
of the trust property.’ 4 A. Scott, Trusts (4th Ed. Fratcher
1989) § 344, p. 545; accord 2 Restatement (Second),
supra, § 344, comment (a), p. 191 (‘period [for winding
up the trust] may properly be longer or shorter,
depending upon the circumstances’).’’ (Footnotes omit-
ted.) Ramondetta v. Amenta, supra, 97 Conn. App.
157–59.
The plaintiff, as trustee, had a specific interest in the
claims brought against the defendants in the vexatious
litigation action. The vexatious litigation action, which
was commenced by the plaintiff in his capacity as
trustee, was an attempt by him to recoup assets of the
trust, specifically, attorney’s fees and costs incurred by
the trust as a result of the prior action. As the authorities
set forth previously in this opinion reflect, a trustee has
a common-law duty to take reasonable steps to recoup
trust assets, including bringing claims belonging to the
trust within a reasonable time frame during the winding
up period of a trust.13 This fundamental duty to recoup
assets made the plaintiff’s actions a reasonably neces-
sary part of the winding up of the trust. Indeed, in the
present case, the plaintiff did, in fact, recoup assets on
the trust’s behalf in the form of attorney’s fees and costs.
The defendants rely on the fact that the trust did
not specifically authorize the plaintiff to commence a
vexatious litigation action against one or more benefici-
aries. Section 5 of the trust, which sets forth administra-
tive and investment powers granted to the trustee,
explicitly provides: ‘‘With respect to each trust estate
herein created, the [t]rustees thereof shall have the
following powers in addition to the powers otherwise
granted by applicable state common law or statute.’’
Certainly, no provision of the trust specifically abro-
gated the plaintiff’s common-law duty to pursue claims
and recoup assets on behalf of the trust, including
claims against beneficiaries.14
Also, the defendants argue that the plaintiff lacked
the authority to commence the present action during
the winding up period of the trust because one or more
trust beneficiaries could have commenced the present
action and the plaintiff commenced the action without
consulting with one or more trust beneficiaries. The
defendants have not provided this court with any
authority to support the conclusion that, during the
winding up period, the plaintiff lacked the authority to
pursue a claim to recoup trust assets simply because
one or more trust beneficiaries had standing to pursue
a claim against one or more of their fellow beneficiaries
for damages related to the prior action. The plaintiff
had a fiduciary duty to act on behalf of the trust, not
to defer to decisions made by beneficiaries. Moreover,
the defendants have not provided this court with any
authority, nor cited any provision of the trust, to support
the proposition that the plaintiff lacked the authority
to carry out his duties as trustee during the winding up
period without first seeking the approval of one or more
beneficiaries of the trust.
For the foregoing reasons, we conclude that there
was no reason for the trial court to have concluded
that the plaintiff was acting without authority to com-
mence the present action during the winding up period
of the trust. The plaintiff’s commencement of the action
during the winding up period was reasonably necessary
to fulfilling his duty of recouping trust assets within a
reasonable time. Accordingly, we conclude that the
court properly denied the defendants’ motion to
dismiss.
B
Next, we address the defendants’ claim that the court
improperly failed to consider whether the settlor of the
trust, Ruth Tyler, was subjected to undue influence in
connection with the creation of the trust. In summary
fashion, the defendants argue: ‘‘The mental state of the
trust settlor at the time the trust was created is relevant
to the issue of probable cause. Yet, the court totally
ignored the evidence of undue influence in connection
with the creation of the trust.’’ The defendants also
argue: ‘‘It is reversible error for the [trial] court to ignore
[their] claims of undue influence and their effect on
the validity of the exculpatory provisions in the trust.’’
We disagree.
Previously in this opinion, we discussed the claims
raised by the defendants in the prior action. ‘‘In the
first count of the complaint [in the prior action], Jay
Tyler sought to modify the trust, claiming that Thomas
Tyler had exerted undue influence upon Ruth Tyler in
relation to the trust and had conspired together with
John Tyler, Russell Tyler and [the plaintiff] to keep
Ruth Tyler’s trust and will a secret from him.’’ Tyler v.
Tyler, 163 Conn. App. 594, 599, 133 A.3d 934 (2016).
Count one, which was brought by Jay Tyler, is the only
count that was based on a claim of undue influence,
and it was directed against Thomas Tyler, Russell Tyler,
John Tyler, Jr., Bruce Tyler, and the plaintiff. In connec-
tion with that count, Jay Tyler alleged that the plaintiff
was part of a conspiracy to keep his mother’s will a
secret from him, not that the plaintiff had unduly influ-
enced her in connection with the creation of the trust.
Neither the claim raised by Jay Tyler in count one
of his complaint nor the issue of undue influence were
fully litigated in the prior action. As we stated in foot-
note 3 of this opinion, in August, 2013, the trial court,
Sommer, J., rendered summary judgment in favor of
Thomas Tyler, Russell Tyler, John Tyler, Jr., and the
plaintiff with respect to this claim but, in June, 2014, this
court reversed the trial court’s judgment with respect
to count one of the complaint after concluding that a
genuine issue of material fact existed with respect to
the claim. Tyler v. Tyler, supra, 151 Conn. App. 104–109.
In Tyler v. Tyler, supra, 163 Conn. App. 615–16, this
court, however, determined, on the basis of its review
of what had transpired during the jury trial in the prior
action,15 that, following the partial dismissal of the
defendants’ initial appeal in June, 2014, none of the
defendants’ claims against the plaintiff was still pending
in the trial court. This court reasoned that ‘‘all of [the
defendants’] claims against [the plaintiff] were either
raised, instructed on and tried to verdict before the jury
or abandoned, either by failing to raise and request
instructions on them at trial or by not appealing from
the trial court’s failure or refusal to instruct upon them
despite their request. In each such scenario, the [defen-
dants’] failure to appeal from the judgment rendered
upon the jury’s verdict established that all of their
claims on which summary judgment was not rendered
were finally resolved at or shortly after trial, either
by the jury’s general verdict or by the [defendants’]
abandonment of them.’’ Id. In January, 2015, Jay Tyler
withdrew his complaint against Thomas Tyler, Russell
Tyler, John Tyler, and Bruce Tyler.
With respect to the issue of undue influence, during
the trial in the present action, Jay Tyler testified that,
between 1999 and 2004, he visited his mother occasion-
ally and did not notice anything about her behavior that
led him to believe that she had been subjected to any
type of undue influence. He testified that, following his
mother’s death, he learned of the 1999 will, as well as
the 2004 trust, which incorporated the terms of the 1999
will. At this time, he began to question why his mother
would have changed the estate plan that was reflected
in her 1984 will, to his detriment. He stated that ‘‘[s]he
would never have disinherited me knowingly, and that’s
what made me go down the road of looking into the
prospects of undue influence and what might have hap-
pened here.’’ He stated his belief that, when she exe-
cuted the 1999 will and the 2004 trust, she would have
wanted to maintain the estate plan that was reflected
in the 1984 will, which was very favorable to him.
Jay Tyler testified that, following his mother’s death
but prior to bringing the claims in the prior action, he
hired an attorney to help him gather information about
what was going on with his mother’s estate and that
these efforts were not fruitful. He testified that he real-
ized that he needed to bring a lawsuit to challenge the
trust and, because he lacked the financial means to
challenge the trust, he turned to his brother, Bruce
Tyler, for help. Although Bruce Tyler did not agree to
represent him in the matter as his attorney, he agreed
to guide him during the prior action.
Jay Tyler testified that when he brought the claims
in the prior action, he believed that because the trust
mirrored the provisions in the 1999 will, the plaintiff,
who had prepared the trust and was the trustee, had
aligned himself with Thomas Tyler, that the plaintiff
and Thomas Tyler had conspired to keep facts concern-
ing his mother’s estate plan from him, and that the trust
itself was ‘‘more evidence of undue influence that was
taking place.’’ Jay Tyler testified that it was not until
2014 or 2015, during the pendency of the prior action,
that he first learned of the existence of the 1988 will,
which had been drafted by Bruce Tyler, and learned
that the 1988 will had significantly altered his mother’s
1984 estate plan, by dividing her estate equally among
her five sons, to his detriment. On the basis of his review
of the 1988 will, Jay Tyler acknowledged that his mother
had changed her mind about her estate plan prior to
executing the 1988 will. He also testified that, prior to
the time at which he commenced the prior action, Bruce
Tyler had not told him about the 1988 will.
During the trial in the present action, Bruce Tyler
testified that he learned about the 1999 will after his
mother had died, and that he believed immediately that
the 1999 will, on its face, reflected that his mother was
‘‘not . . . in her right mind’’ when she executed the
will because ‘‘[s]he just wouldn’t do that.’’ He explained
that the 1999 will was complicated and that its provi-
sions were ‘‘vindictive,’’ and that, on the basis of his
‘‘lifetime experience’’ with his mother, he knew her to
be a person who ‘‘wanted to keep things simple . . . .’’
He testified that when he compared the 1984 and 1999
wills, ‘‘it became quite clear . . . that there was some-
thing wrong here; that comparing the two [wills], there’s
obviously undue influence exercised.’’ Also, Bruce Tyler
testified that his review of the 1999 will reflected that
Thomas Tyler had played a role in its execution and
that this was ‘‘also a big red flag that there was
undue influence.’’
Bruce Tyler testified that, following his mother’s
death, he discussed the 1999 will with his brother, Jay
Tyler, and that he told Jay Tyler about the existence
of the 1984 will, which he had drafted for his mother.
Bruce Tyler testified that he researched legal principles
concerning undue influence and, for a variety of rea-
sons, he concluded that he and Jay Tyler had a viable
claim that Thomas Tyler had exerted undue influence
over their mother with respect to the 1999 will. Specifi-
cally, he testified that, following his father’s death in
1997, his mother lived alone and was distraught and,
thus, was susceptible to undue influence. He testified
that his brother, Thomas Tyler, was inclined to exert
undue influence because ‘‘he thrives on power and influ-
ence and takes particular pleasure out of making people
miserable. And he does that, and he enjoys it . . . that’s
his reputation as being some sort of monster.’’ He testi-
fied that Thomas Tyler had an opportunity to exert
undue influence over his mother because, following his
father’s death, Thomas Tyler was ‘‘omnipresent’’ in his
mother’s life and had taken control of her finances.
He testified that the 1999 will represented a dramatic
change in his mother’s estate plan.
Additionally, Bruce Tyler testified that, following his
mother’s death, he worked closely with Jay Tyler in an
attempt to modify the trust so that it did not implement
the estate plan reflected in the 1999 will. To this end,
he helped Jay Tyler prepare and file the complaint in
the prior action. Bruce Tyler testified that, because he
was an attorney and Jay Tyler was not an attorney and
did not have any training in the law, he also formulated
the legal arguments advanced by Jay Tyler in the
prior action.
Bruce Tyler testified that it was not until October,
2014, during the pendency of the prior action, that he
became aware of his mother’s 1988 will.16 Bruce Tyler
acknowledged, however, that he had prepared the 1988
will for his mother, he was present when she executed
the will, and that his signature appeared on the 1988 will.
He testified that he had forgotten about the existence
of the 1988 will until one of his brothers ‘‘got a hold of
it’’ and the will ‘‘surfaced with the amended answer to
interrogatories’’ that were submitted by one or more
of his brothers during the prior action. Bruce Tyler
acknowledged that the 1988 will reflected substantial
changes, as compared to the 1984 will, and that the
changes made reflected in the 1999 will, as compared
to the 1988 will, were not as substantial in nature. Spe-
cifically, the 1999 will retained the provision, set forth
in the 1988 will, that estate assets would be distributed
equally among his mother’s five children, but the 1999
will added an explicit requirement that Jay Tyler and
Bruce Tyler repay the estate moneys that Ruth Tyler
had loaned to them during her lifetime. Nonetheless,
Bruce Tyler maintained that this explicit loan repay-
ment requirement was not something that his mother
would have wanted to include in her will, and its exis-
tence reflected that undue influence had been exerted
on her.
The plaintiff testified about the circumstances under
which he assisted Ruth Tyler in regard to the trust. He
testified that in August, 2004, Thomas Tyler contacted
him to let him know that his mother would be in touch
with him to set up an appointment to discuss the matter
of estate planning. The plaintiff testified that, the next
day, Ruth Tyler called him to make an appointment,
and he met privately with her later that day at her
residence. She told him that she desired to create a
trust as a way of preserving her assets, as well as a
new power of attorney and a living will. The plaintiff
testified that Ruth Tyler told him ‘‘that she had a will
that she had done; and that the provisions of the will
divided her estate equally among her five sons; and that
there was a provision in the will that if any of her sons
owed her money—and she mentioned Bruce [Tyler]
and Jay [Tyler], that they did owe her money—and that
money was unpaid at the time of her death, that those
sums owed would be deducted from their share.’’
The plaintiff testified that, later that month, he met
with John Tyler, Jr., who had a power of attorney for
Ruth Tyler, and that John Tyler, Jr., provided him with
a copy of his mother’s 1999 will and showed him records
concerning loans that his mother had made to Jay Tyler
and Bruce Tyler. Subsequently, in September, 2004, the
plaintiff drafted the trust and met privately with Ruth
Tyler to review its provisions at the assisted living facil-
ity where she had resided.17
The plaintiff testified that among the provisions that
he discussed with Ruth Tyler were those that gave the
trustee full authority to manage and control trust assets
in whatever form he deemed appropriate without the
requirement that the assets be diversified. The plaintiff
also testified that he told Ruth Tyler ‘‘that I as the trustee
can’t be held liable for any losses of the stock that was
going to be in the trust or any other asset except in the
case of wilful misconduct on my part, so that, in
essence, I could keep the assets in the trust; and if the
assets in the trust lost value, that I’m not going to be
responsible if I maintain what was given to me.’’ He
stated that he explained ‘‘that the trustee is not liable
for any mistake or error or judgment or for any action
taken or not taken, either by me or any agent or attorney
employed by me, or for any loss of value in the assets,
again, except in the case of wilful misconduct.’’ The
plaintiff testified that Ruth Tyler did not object to
these provisions.
The plaintiff also testified that he explained to Ruth
Tyler that trust accountings would be provided to her,
as the only income beneficiary of the trust, and to no
one else and that she both understood and was content
with that provision of the trust.
The plaintiff testified that he provided the unexecuted
trust documents that he had prepared to John Tyler,
Jr., and that Ruth Tyler executed the trust at her resi-
dence in Suffield. The execution of the trust was
acknowledged by a third party identified as Jean Sulli-
van, who was an employee of Thomas Tyler. The plain-
tiff testified that he was not present when Ruth Tyler
executed the trust, but that he executed the trust at a
different location.
In his posttrial brief in the present action, the plaintiff
argued in relevant part that the exculpation clause of
the trust absolved him of any liability with respect to
all of the counts of the complaint and cross complaint
brought against him in the prior action. The plaintiff
argued that because neither defendant had alleged nor
proven in the prior action that he had engaged in wilful
misconduct, the court, relying on the exculpation
clause, should conclude that they brought their claims
without probable cause. To the extent that the defen-
dants alleged that he was part of a conspiracy with one
or more of their brothers, the plaintiff argued, there
were no facts to support such a claim.
In their joint posttrial brief in the present action,
the defendants acknowledged that the plaintiff, in his
answer to the complaint and cross complaint in the
prior action, raised a special defense in which he relied
on the exculpatory clause of the trust. The defendants
argued, however, that Ruth Tyler had been subjected
to undue influence in connection with the trust and, in
the prior action, Jay Tyler sought to modify the trust on
that ground. Thus, the defendants argued, the plaintiff’s
reliance on the exculpation clause of the trust, which
had been ‘‘included in the trust agreement for [the plain-
tiff’s] own protection,’’ was misplaced. The defendants
argued that, despite the existence of the exculpation
clause, they brought the complaint and cross complaint
with probable cause. Stated otherwise, the defendants
argued that they had demonstrated in the prior action
that undue influence had been exerted over the settlor
of the trust and, therefore, any provisions of the trust
that purported to absolve the trustee of liability were
unenforceable.
In the present action, although the defendants
attempted to prove that the settlor of the trust was in
fact unduly influenced and, thus, that the plaintiff was
unable to rely on the protections offered him by the
trust, the court was not obligated to resolve that precise
issue because the question before the court was
whether, in the prior action, Jay Tyler had probable
cause to claim that the trust should be modified on the
ground of undue influence and whether the defendants,
relying on this claim of undue influence, had probable
cause to bring the claims against the plaintiff.
In its factual findings, the trial court in the present
action expressly found that the plaintiff had explained
the contents of the trust to Ruth Tyler and that she had
agreed to its terms. Moreover, the court discussed Jay
Tyler’s belief that his mother had been subjected to
undue influence. In relevant part, the court stated:
‘‘Although defendant Jay Tyler disputed that he owed
his mother any money, he was also concerned that his
mother’s trust essentially disinherited him, which he
did not believe she would do, leading him to believe
that she had been influenced by Thomas Tyler. Jay Tyler
believed that the plaintiff had conspired with Thomas
Tyler and that they had unduly influenced Ruth Tyler
to ‘cheat’ him out of his inheritance. Jay Tyler claimed
that Thomas Tyler was not a nice person and enjoyed
‘putting Jay down,’ and [that] the fact that Thomas Tyler
was aware of the trust and will was a ‘red flag.’ ’’18 In
its decision granting reargument and/or reconsidera-
tion, the court addressed Jay Tyler’s allegation of a
conspiracy as follows: ‘‘Jay Tyler alleged that the plain-
tiff engaged in a conspiracy with his brothers, [John
Tyler, Jr.], and Russell Tyler, which wrongfully deprived
him of his share of the estate. Despite the plaintiff’s
assertion to the contrary, the court does not consider
these contentions because there are not sufficient fac-
tual allegations directed at the plaintiff therein to consti-
tute a separate legal claim against him and, to the extent
this claim contains allegations against him, they go to
his failure to provide an accounting.’’
Thus, contrary to the defendants’ arguments, there
is absolutely no indication that the court ‘‘ignored’’ the
evidence of undue influence in connection with the
creation of the trust that was presented during the trial
or that, in the context of the claims properly before the
court, it ‘‘failed to consider’’ the issue of whether the
settlor had been subjected to undue influence.19 Despite
the fact that its factual findings do not address the issue
of undue influence expressly, the court plainly found
that the settlor was advised of the contents of the trust
and was satisfied with them. As we have explained
previously in this opinion, the defendants argued that
the issue of undue influence was critical to undermining
the plaintiff’s right to rely on the exculpation provision
of the trust to prove that the defendants did not have
probable cause to bring the claims against him in the
prior action. As the court clearly explained, however,
it rejected the plaintiff’s argument in this regard. In light
of the foregoing, we reject the defendants’ claim relating
to undue influence.
C
Next, the defendants claim that the court misinter-
preted relevant law in its analysis of whether, in the
prior action, they had probable cause to claim that the
plaintiff had violated § 45a-541c by failing to diversify
trust assets. We disagree.
As we previously explained in our discussion of the
relevant facts and procedural history, the defendants,
in their respective complaint and cross complaint,
alleged in the prior action that the plaintiff had failed
to diversify trust assets in violation of § 45a-541c. By
way of special defense, the plaintiff alleged that the
statutory obligations on which the defendants relied
had been waived by the settlor of the trust and that the
exculpatory provision in the trust shielded him from lia-
bility.
As we explained previously in this opinion, in the
present action, the court determined that, in the prior
action, the defendants lacked probable cause to bring
this claim against the plaintiff. The court relied on what
it called the ‘‘clear and unambiguous’’ language in § 5
of the trust that relieved the trustee of his duty to
diversify trust assets. The court reasoned that, in light
of this provision, the defendants lacked probable cause
to bring the claim related to the plaintiff’s failure to
diversify.
The defendants now argue that the court afforded the
language in § 5 of the trust an irrefutable presumption
of validity and failed to give due regard to their argu-
ment that this presumption was refutable by evidence
that the settlor of the trust had been subjected to undue
influence at the time of the creation of the trust.
According to the defendants, ‘‘[t]he . . . court’s pre-
sumption of validity of the exculpatory provision of
the trust wrongfully deprived [them] of their ability to
negate the plaintiff’s special defense to the defendants’
claim of lack of diversification . . . .’’
Our resolution of the present claim is controlled by
our resolution of the claim discussed in part II B of
this opinion. The defendants’ claim rests on the faulty
premise, which we rejected in part II B, that the court
failed to consider whether the settlor of the trust was
subjected to undue influence in connection with its
creation. In light of our conclusion that the court plainly
found that the settlor was advised of the contents of
the trust and was satisfied with them, the defendants
are unable to prevail in connection with this claim.
D
Finally, the defendants claim that the court misinter-
preted relevant law in its analysis of whether the plain-
tiff could prevail in the present action merely by demon-
strating that the defendants lacked probable cause to
bring one of the several claims that they brought against
him in the prior action. We disagree.
Previously in this opinion, we set forth the trial
court’s analysis of whether the defendants had probable
cause to bring the claims against the plaintiff in the
prior action. In its initial decision, the court reasoned
that because the plaintiff had failed to prove that the
defendants had acted without probable cause (or with
malice) in bringing the claim that the plaintiff had
improperly failed to furnish them with trust accountings
during the settlor’s lifetime, he was unable to prevail
with respect to any aspect of his vexatious litigation
cause of action. In granting the plaintiff’s motion for
reargument and/or reconsideration, however, the court
first concluded that the plaintiff could prevail in the
present action by proving that the defendants lacked
probable cause to bring any of the claims against him
in the prior action and, second, that the plaintiff was
entitled to damages because the defendants lacked
probable cause to bring the claim that he improperly
failed to diversify trust assets. In ultimately concluding
that the plaintiff could prevail in the present action by
proving that the defendants lacked probable cause to
bring any, but not necessarily all, of the claims against
him in the prior action, the court relied on DeLaurentis
v. New Haven, 220 Conn. 225, 597 A.2d 807 (1991), and
noted that its rationale applied ‘‘especially where the
claims [that were raised in the underlying action] are
logically severable.’’
The defendants now argue that the court’s reliance
on DeLaurentis is misplaced because, unlike the claims
at issue in that case, the claims that they raised against
the plaintiff in the prior action are not logically sever-
able in that they involve the same factual allegations.
The defendants argue that the claims merely presented
different theories on which to recover damages arising
from the same conduct, namely, the plaintiff’s failure
to diversify trust assets. The plaintiff argues, in reply,
that the court properly determined that the claims were
logically severable and, thus, the rationale of
DeLaurentis applied and supported the court’s determi-
nation that he should prevail, despite the fact that he
was unable to demonstrate that the defendants lacked
probable cause to bring all of the claims they brought
against him in the prior action.
Because the present claim requires us to review the
trial court’s interpretation and application of the law,
we engage in plenary review. See, e.g., Doe v. Dept. of
Mental Health & Addiction Services, 188 Conn. App.
275, 280, 204 A.3d 1230, cert. denied, 332 Conn. 901,
208 A.3d 659 (2019).
DeLaurentis governs our resolution of the present
claim. In DeLaurentis, our Supreme Court observed
the well settled rule that, in a vexatious litigation action,
a plaintiff must demonstrate that the claims raised in
a prior action by the defendant lacked probable cause.
DeLaurentis v. New Haven, supra, 220 Conn. 252. The
court addressed the issue of whether a plaintiff must
prove that probable cause was lacking for every claim
raised in the prior action. Id., 253. The court concluded
that a plaintiff could prevail in a vexatious suit action
by proving that one or more logically severable claims
were brought without probable cause. Id., 256. Thus,
the fact that a defendant had brought one or more
claims with probable cause does not preclude him from
being liable for having brought other claims for which
probable cause was lacking. The court reasoned: ‘‘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.’’ Id., 253.
In considering the specific claims at issue in
DeLaurentis, the court determined that probable cause
was lacking with respect to certain claims that were
logically severable from other claims for which proba-
ble cause existed because they contained ‘‘factual alle-
gations with respect to different times, occurrences and
actions.’’ Id., 255. The court did not define a ‘‘cause of
action’’ for purposes of this inquiry as consisting of a
single group of facts that gave rise to one or more
rights to relief, but stated that each group of logically
severable allegations at issue in DeLaurentis
‘‘amount[ed] to a separate ‘charge’ to which [the plain-
tiff] was required to respond.’’ Id., 255 and n.15.
In the present action, the claims alleged to be vexa-
tious in the prior action were as follows: ‘‘In the fourth
count of the complaint and the first count of the cross
complaint, [Jay Tyler and Bruce Tyler] alleged that [the
plaintiff] had failed to act as a prudent investor of the
trust’s assets, in violation of General Statutes § 45a-
541b. In the fifth count of the complaint and second
count of the cross complaint, both [defendants] alleged
that [the plaintiff] had failed to diversify the trust’s
assets, in violation of General Statutes § 45a-541c. In
the sixth count of the complaint and the third count of
the cross complaint, [Jay Tyler and Bruce Tyler] alleged
that [the plaintiff’s] failure to furnish them with trust
accountings during their mother’s lifetime had pre-
vented them from exercising their right to seek an order
from the Probate Court under § 45a-204 compelling [the
plaintiff], as trustee, not to keep the trust’s assets
invested in the same securities received by him. Finally,
in the seventh count of the complaint and the fourth
count of the cross complaint, [Jay Tyler and Bruce
Tyler] alleged that [the plaintiff] had breached his duty
to the trust, and to them as trust beneficiaries, by failing
to hold the investment advisor liable for losses allegedly
resulting from the advisor’s advice not to diversify the
trust’s assets.’’ (Footnotes omitted.) Tyler v. Tyler,
supra, 163 Conn. App. 599–601.
Contrary to the defendants’ broad description of
these counts as merely representing different theories
of recovery on the basis of the same factual allegations,
it is readily apparent from a review of the claims that
the failure to diversify trust assets claim in the prior
action, which the court in the present action found
lacked probable cause, was not based on the identical
factual allegations as the remaining claims. Specifically,
the allegations in each claim related to facts that dif-
fered in terms of times, occurrences, and actions. More-
over, each of the claims at issue amounted to separate
and distinct ‘‘charges’’ to which the plaintiff was
required to respond.
In light of the foregoing, we conclude that the court
properly applied the law and properly concluded that
the failure to diversify trust assets claim was logically
severable from the remaining claims for which probable
cause existed.
III
PLAINTIFF’S CROSS APPEAL
In his cross appeal, the plaintiff claims that, although
the court properly concluded that one of the claims
raised against him by Bruce Tyler and Jay Tyler in
the prior action and alleged to be vexatious was not
supported by probable cause, the court erroneously
failed to conclude that Bruce Tyler and Jay Tyler lacked
probable cause to bring the remaining claims and that
they acted with malice in bringing all of the claims at
issue. Accordingly, the plaintiff argues that the court
should have concluded that all of the claims at issue
were vexatious in nature and, thus, rendered judgment
in his favor with respect to these claims. As we have
explained previously in this opinion, the court awarded
the plaintiff damages after concluding that the defen-
dants lacked probable cause to claim, in the prior
action, that the plaintiff had improperly failed to diver-
sify trust assets. The court, however, concluded that
the plaintiff was not entitled to recover with respect
to the claims, raised in the prior action, wherein the
defendants alleged that he failed to act as a prudent
investor, that he failed to provide them with trust
accountings prior to the settlor’s death, and that he
failed to hold the investment advisor liable.
‘‘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 estab-
lish either cause of action, it is necessary to prove want
of probable cause, malice and a termination of suit in
the plaintiff’s favor. . . . Probable cause is the knowl-
edge of facts sufficient to justify a reasonable person
in the belief that there are reasonable grounds for prose-
cuting an action. . . . Malice may be inferred from lack
of probable cause. . . . The want of probable cause,
however, cannot be inferred from the fact that malice
was proven. . . . A statutory action for vexatious liti-
gation 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 abso-
lute protection against an action for malicious prosecu-
tion, and what facts, and whether particular facts, con-
stitute probable cause is always a question of law. . . .
Accordingly, our review is plenary.’’ (Citations omitted;
internal quotation marks omitted.) Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94,
912 A.2d 1019 (2007); see also Lichaj v. Sconyers, 163
Conn. App. 419, 425, 137 A.3d 26 (2016) (plenary review
of issue of whether probable cause exists in vexatious
litigation action); Schaeppi v. Unifund CCR Partners,
161 Conn. App. 33, 46, 127 A.3d 304 (same), cert. denied,
320 Conn. 909, 128 A.3d 953 (2015).
Our Supreme Court has explained that ‘‘civil probable
cause constitutes 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. . . . Moreover, under our case law, it is well settled
that the same standard applies under the common law
and [for causes of action brought under the vexatious
litigation statute, § 52-568]. [Vexatious suit] is the appel-
lation given in this [s]tate to the cause of action created
by statute (General Statutes § 6148 [now § 52-568]) for
the malicious prosecution of a civil suit . . . which we
have said was governed by the same general principles
as the common-law action of malicious prosecution.’’
(Citation omitted; internal quotation marks omitted.)
Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, supra, 281 Conn. App. 102–103.
We 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 plain-
tiff in [vexatious litigation] must separately show lack
of probable cause. . . . The lower threshold of proba-
ble 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 free-
dom of attorneys to pursue novel, although potentially
unsuccessful, legal theories.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Id., 103–104.
Because our analysis of whether probable cause
existed must be tailored to Bruce Tyler and Jay Tyler,
we will address the claim as it relates to each defen-
dant separately.
A
We first address the claim raised by the plaintiff that
the court erroneously failed to conclude that, with
respect to all of the claims that had been brought against
him by Bruce Tyler in the prior action, Bruce Tyler had
acted without probable cause and with malice, and had
relied on allegations that he knew to be false. Stated
otherwise, the plaintiff argues that the court erred by
failing to conclude that the cross complaint brought by
Bruce Tyler was vexatious in its entirety. We agree, in
part, with the plaintiff’s claim. We conclude that the
court did not properly analyze whether Bruce Tyler had
probable cause to bring counts one, three, and four of
his cross complaint in the prior action.20 Accordingly,
with respect to the claim of statutory vexatious litiga-
tion under § 52-568 (1), we reverse the judgment of the
trial court and remand the case to the trial court for
further proceedings consistent with this opinion.
In this claim, the plaintiff argues that it was against
the weight of the evidence for the court to have failed
to find that Bruce Tyler lacked probable cause to bring
any of the claims that he raised in his cross complaint
in the prior action. Specifically, the plaintiff relies on
the following facts: (1) Bruce Tyler, who is an attorney,
prepared Ruth Tyler’s 1984 and 1988 wills; (2) the 1988
will, rather than the 1999 will or the 2004 trust, greatly
changed the estate plan reflected in Ruth Tyler’s 1984
will by effectively disinheriting Jay Tyler; (3) Bruce
Tyler, having drafted the 1984 and 1988 wills, was aware
of the fact that Ruth Tyler had not deviated from the
estate plan reflected in her 1984 will because she had
been subjected to undue influence in connection with
the drafting of the 1999 will or the 2004 trust; (4) prior
to the commencement of the prior action, Bruce Tyler
was familiar with the provisions of the 2004 trust,
including but not limited to the provisions that shielded
the plaintiff from liability except in the case of his wilful
misconduct; (5) Bruce Tyler counselled Jay Tyler with
respect to bringing the claims against the plaintiff in
the prior action, he drafted Jay Tyler’s complaint, he
paid certain litigation costs for Jay Tyler, and he there-
after brought the same claims against the plaintiff in
his cross complaint; and (6) neither defendant alleged
or proved in the prior action that the plaintiff had com-
mitted wilful misconduct as trustee of Ruth Tyler’s
trust.
In arguing that the court improperly failed to con-
clude that Bruce Tyler’s cross complaint was vexatious
in its entirety, the plaintiff focuses on the exculpatory
clause of the trust. As we explained previously in this
opinion, the court essentially determined that, although
the exculpatory clause limited the plaintiff’s liability,
the plaintiff could not rely on the clause in attempting
to prove that the defendants lacked probable cause to
bring counts four through seven of the complaint and
counts one through four of the cross complaint in the
prior action.
The plaintiff argues: ‘‘As an attorney, Bruce [Tyler]
should have known that, to succeed against the plaintiff,
the defendants needed some proof that [the] plaintiff’s
conduct fell outside of the exculpation clause. . . .
Here, the settlor made clear her intent to relieve the
trustee of the risk of being sued except in cases of
wilful misconduct. . . . [T]he issue for the court was
whether the defendants (and Bruce [Tyler] in particular,
as an attorney) had probable cause to believe [that the]
plaintiff could be liable . . . knowing of his reliance
on the investment advisor and absent any claim, let
alone proof, that the plaintiff was guilty of wilful mis-
conduct.’’ (Citations omitted; internal quotation marks
omitted.) The plaintiff argues that ‘‘[t]he trial court
should have found a lack of probable cause as to all
aspects of [the] plaintiff’s management of the trust
based solely on the fact that . . . there was no allega-
tion or proof of wilful misconduct.’’ Further, the plaintiff
argues that the court, in analyzing whether the claims
brought against him were vexatious in nature, errone-
ously concluded that the exculpatory clause was of no
significance in its analysis, but merely governed the
trustee’s ultimate liability. The plaintiff argues that
‘‘[t]his interpretation [of the exculpatory clause] would,
of course, eviscerate the purpose of the exculpatory
clause, which is to protect the trustee, and the trust’s
assets, from expenses incurred in defending claims
where, as here, the trustee acted in good faith.’’
In its initial decision, the court rejected the plaintiff’s
reliance on the exculpatory clause in demonstrating a
lack of probable cause. The court reasoned that the
clause did not prohibit the defendants from bringing
an action against the plaintiff, but that the clause merely
shielded the plaintiff from liability. In its subsequent
decision, the court reiterated its belief that the plaintiff
was unable to rely on the exculpatory clause in demon-
strating that the defendants brought the prior action
without probable cause. The court, relying on, Jackson
v. Conland, 178 Conn. 52, 420 A.2d 898 (1979), correctly
stated that ‘‘the exculpatory clause does not act as a
complete bar or immunity to civil suit . . . .’’ The trial
court also stated that, although the exculpatory clause
could ‘‘protect a trustee from personal liability,’’ it none-
theless may not be used ‘‘as a sword by the trustee to
establish probable cause in a vexatious suit.’’ The trial
court essentially disallowed any reliance by the plaintiff
on the exculpatory clause in demonstrating a lack of
probable cause.
The exculpatory clause provided: ‘‘No individual
[t]rustee shall be liable for any mistake or error of
judgment, or for any action taken or omitted, either by
the [t]rustee of by any agent or attorney employed by
the [t]rustee, or for any loss or depreciation in the value
of the trust, except in the case of willful misconduct.’’
Although we agree that the exculpatory clause did not
cloak the plaintiff with immunity from suit, we, unlike
the trial court, believe that the clause is highly relevant
in an analysis of whether probable cause existed to
bring the claims at issue against the plaintiff. This is
because it represented a significant hurdle for the defen-
dants to overcome in order to demonstrate that the
plaintiff was liable for the damages that they sought in
the prior action. An analysis of probable cause focuses
on whether a party has knowledge of facts sufficient
to justify a reasonable person in the belief that there
are reasonable grounds for entertaining an action. In
his cross complaint, Bruce Tyler sought money dam-
ages, interest, and such other relief as may be just and
proper from the plaintiff. If the exculpatory clause of the
trust was enforceable, then it would shield the plaintiff
from liability and, therefore, preclude Bruce Tyler from
obtaining any of the damages he sought.
Accordingly, we conclude that, in analyzing the issue
of probable cause, the court should have considered
whether the defendants reasonably believed that they
could overcome the exculpatory clause. Stated other-
wise, the exculpatory clause of the trust was a highly
relevant factor in determining whether ‘‘a man of ordi-
nary caution, prudence and judgment’’ would have
entertained the claims at issue against the plaintiff in
the prior action. Falls Church Group, Ltd. v. Tyler,
Cooper & Alcorn, LLP, supra, 281 Conn. 102. Although,
in Falls Church Group, Ltd., our Supreme Court
rejected the claim that a claim for vexatious litigation
against an attorney should be judged by a higher stan-
dard than the general objective standard, it nonetheless
observed that ‘‘the reasonable attorney is substituted
for the reasonable person in [vexatious litigation]
actions against attorneys . . . .’’ (Emphasis added.)
Id., 103. The court explained that, with respect to vexa-
tious litigation actions brought against attorneys, the
proper probable cause inquiry is whether ‘‘a reasonable
attorney familiar with Connecticut law would believe’’
that he or she had probable cause to bring the lawsuit.
Id., 105. As this court explained in Embalmers’ Supply
Co. v. Giannitti, 103 Conn. App. 20, 35, 929 A.2d 729,
cert. denied, 284 Conn. 931, 934 A.2d 246 (2007), the
standard that applies to attorneys ‘‘is an objective one
that is necessarily dependent on what an attorney knew
when he or she initiated the lawsuit,’’ and that probable
cause may exist even if a suit lacks merit. It is undis-
puted that, when he filed his cross complaint in the
prior action, Bruce Tyler was an attorney and, thus, the
court must resolve the issue of whether a reasonable
attorney would have believed that he had probable
cause to bring the claims in the cross complaint.
As we have discussed previously, in an attempt to
overcome the exculpatory clause of the trust, the defen-
dants did not attempt to demonstrate that the plaintiff
had engaged in wilful misconduct, but that the settlor
had been subjected to undue influence. Bruce Tyler
argues before this court that he demonstrated that he
had probable cause to bring the claims in that he testi-
fied that (1) he knew from reviewing his mother’s 1999
will that his mother had been subjected to undue influ-
ence, (2) prior to bringing the claims against the plain-
tiff, he researched the law with respect to undue influ-
ence, (3) his mother was susceptible to undue influence
‘‘when the 1999 will was prepared,’’ and (4) his brother,
Thomas Tyler, who drafted the 1999 will, ‘‘had an incli-
nation to exercise undue influence.’’ He articulates the
theory that Thomas Tyler exerted undue influence and
that the plaintiff ‘‘took advantage of the situation by
acting when the settlor was being subjected to the
undue influence of Thomas [Tyler] by including the self-
serving exculpatory language in the trust.’’
Bruce Tyler’s argument rests on the premise that the
1999 will, which was drafted by Thomas Tyler, supports
a finding of undue influence in that, when compared
with the 1984 will, it significantly reduced what Jay
Tyler would inherit from his mother’s estate—a result,
both defendants strongly maintain, their mother would
not have desired. As we have discussed previously in
this opinion, however, this premise is faulty because it
was the 1988 will, which was drafted by Bruce Tyler,
that effectively disinherited Jay Tyler.
Bruce Tyler testified at trial that, although he pre-
pared the 1988 will for his mother, he did not recall the
1988 will until the fall of 2014, after the commencement
of the prior action. This was a contested issue of fact.
Before this court, he argues that, despite the fact that
he drafted the 1988 will and assisted his mother in its
execution, he did not conceal the will from his brothers.
Rather, Bruce Tyler argues that the 1988 will had been
concealed by Thomas Tyler and Russell Tyler, and they
presented the will during the protracted litigation
between the parties only to gain an advantage
against him.
The plaintiff argues that Bruce Tyler, due to his ‘‘sta-
tus as an attorney, his personal knowledge of the rele-
vant facts, his personal and professional relationship
with [the settlor of the trust] and his role in bringing
this case’’ knew that his theory of undue influence was
unsupported by fact. The plaintiff correctly observes
that Bruce Tyler’s knowledge of the content of the 1988
will, which he drafted for his mother, significantly
undermines his claim of undue influence because the
1988 will, like the 1999 will, also significantly altered
the estate plan that is reflected in the 1984 will by
significantly reducing Jay Tyler’s inheritance.
The plaintiff argues that Bruce Tyler should be
charged with the knowledge of the 1988 will ‘‘as a matter
of law.’’ The plaintiff argues that ‘‘[i]t is uncontroverted
that Bruce [Tyler], as [his mother’s] attorney, at the
very least, had the means of knowing, ought to know,
or has the duty of knowing the truth about the 1988
will.’’ (Internal quotation marks omitted.) The plaintiff
argues that this court should conclude that Bruce Tyler
knew about the 1988 will or, at the very least, was
wilfully blind and failed to investigate the matter prior to
bringing the cross complaint. Thus, the plaintiff argues,
Bruce Tyler presumptively knew, despite his allega-
tions, that Ruth Tyler had not been subjected to undue
influence in connection with the 1999 will or the trust
to effect a change in her 1984 will, because he assisted
her in significantly altering her 1984 estate plan in 1988.
As the parties’ arguments reflect, the issue of whether
Bruce Tyler knew about the 1988 will at the time he
brought the cross complaint against the plaintiff in the
prior action is an essential inquiry in an analysis of
whether he brought the cross complaint with probable
cause. The plaintiff correctly observes that the court
did not set forth any finding of fact with respect to
whether Bruce Tyler testified truthfully that he did not
recall the 1988 will after it had been disclosed to him
during the course of the litigation in the prior action.
Instead, in its initial decision, the court observed that
the plaintiff had characterized Bruce Tyler’s testimony
in this regard as untruthful. The court stated: ‘‘Although
the court found Bruce Tyler’s testimony on the issue
of the 1988 will troubling, this issue is not relevant to
the court’s ultimate issue in this case, as to whether
there was probable cause for the defendants to bring the
accounting claim, and whether they had an improper
purpose in doing so.’’ (Emphasis added.) Because this
factual issue is material to an analysis of probable cause,
it must be resolved by the court during the proceedings
on remand.
Having concluded that the court improperly failed
to give appropriate consideration to the exculpatory
clause in its analysis of whether Bruce Tyler had proba-
ble cause to bring counts one, three, and four of the
cross complaint in the prior action, the appropriate
remedy is to reverse the judgment rendered with
respect to the statutory vexatious litigation claim under
§ 52-568 (1) as to those counts of the prior action and
to remand the case to the trial court for further proceed-
ings consistent with this opinion.21
B
Last, we consider the plaintiff’s claim that the court
improperly concluded that the claims brought against
him by Jay Tyler in counts one, two, three, four, six,
and seven of the complaint in the prior action were not
vexatious. We agree that the court did not properly
analyze whether Jay Tyler had probable cause to bring
these claims.22
In part III A of this opinion, we discussed the plain-
tiff’s claim that, when the court considered the issue
of probable cause, it failed to give due consideration
to the exculpatory clause of the trust. This claim applies
to the common-law and statutory vexatious litigation
claims brought by the defendant that were related to
counts one, two, three, four, six, and seven of Jay Tyler’s
complaint against the plaintiff in the prior action. Our
conclusion in part III A of this opinion that the court did
not properly analyze whether, in light of the exculpatory
clause, Bruce Tyler had probable cause to bring counts
one, three, and four of the cross complaint, applies to
the court’s analysis of whether Jay Tyler had probable
cause to bring counts one, two, three, four, six, and
seven of the complaint. As we have explained pre-
viously in this opinion, to overcome the exculpatory
clause of the trust, both defendants relied on a theory
of undue influence. In analyzing whether the defendants
had probable cause to bring the claims at issue against
the plaintiff, it was necessary for the court to have
considered whether the defendants reasonably believed
that they were able to prove that the settlor had been
subjected to undue influence.
In part II B of this opinion, we discussed Jay Tyler’s
testimony concerning the factors that caused him to
bring the claims against the plaintiff. It suffices to high-
light some key evidence admitted in the present action
and observe that, with respect to the complaint brought
in the prior action by Jay Tyler against the plaintiff,
the evidence reflects that Jay Tyler, who was a self-
represented litigant, heavily relied on the expertise of
his brother, Bruce Tyler. Bruce Tyler assisted Jay Tyler
in preparing the complaint, paid the filing fee, and paid
the marshal to serve the complaint. Jay Tyler testified
that, although Bruce Tyler did not represent him, he
needed legal assistance in pursuing his claims and that
either Bruce Tyler or someone employed at his law
office helped him prepare legal arguments.23 According
to Jay Tyler, he had been told by Bruce Tyler to be at
his ‘‘beck and call’’ during the proceedings and that
Bruce Tyler had prepared his legal paperwork.
Jay Tyler testified that Bruce Tyler told him about
the 1984 will and the trust. Jay Tyler testified, as well,
that Bruce Tyler told him that the 1984 will should have
been in effect at the time of his mother’s death. He
explained that he named Bruce Tyler as a defendant
because he believed that he had to do so because Bruce
Tyler was a beneficiary under the trust and that it would
not have made any sense for Bruce Tyler to be a plaintiff
in an action to enforce the 1984 will, pursuant to which
Bruce Tyler would not have received anything from his
mother’s estate.
Jay Tyler testified that, prior to his mother’s death,
he did not have any reason to suspect that she had
been subjected to undue influence but that, after her
death and after learning details of her estate from Bruce
Tyler, he came to believe that the plaintiff had conspired
with Thomas Tyler to keep the trust and the 1999 will
a secret. Essentially, he did not believe that his mother
would have effectively disinherited him willingly and
believed that Thomas Tyler had the inclination and the
means to exert undue influence over his mother. Jay
Tyler testified that, although he brought the claims in
the prior action in 2010 in an attempt to have the 1984
will reinstated, he did not learn of the existence of the
1988 will until 2014.
Jay Tyler testified: ‘‘I felt that I had good reason to
bring the actions against [the plaintiff] because by the
time I brought the action, I felt that I had proof that
he had conspired with my brother Thomas [Tyler] in
creating the trust document.’’ He testified that this proof
was related to the fact that, following his mother’s
death, his brothers did not share any information with
him about her estate. Then, he learned that Thomas
Tyler was untruthful about having filed the 1999 will
in Probate Court. Then, he learned from John Tyler,
Jr., that a trust had been created and that the plaintiff
was the trustee. His suspicions grew, Jay Tyler testified,
when he observed that the trust had been acknowledged
by a third party whom he knew to be ‘‘one of [Thomas]
Tyler’s employees and political allies.’’
Jay Tyler testified that his suspicions about undue
influence stemmed mostly from the fact that the 1999
will, which was reflected in the trust, was a departure
from the 1984 will and, effectively, had disinherited him.
He testified, as well, that he believed that his brother,
Thomas Tyler, was ‘‘not a nice person’’ and that he
would have been inclined to influence his mother to
disinherit him.
As we have explained in part III A of this opinion,
the issue of whether the defendants acted with probable
cause in bringing the claims against the plaintiff in the
prior action required the court to determine whether
the defendants brought the claims with a bona fide
belief that they could overcome the exculpatory clause
of the trust by proving that the settlor had been sub-
jected to undue influence in connection with the trust.
Thus, the issue of whether Jay Tyler acted with probable
cause in bringing his claims against the plaintiff in the
prior action is intertwined with an analysis of whether
he had knowledge of facts that would justify a reason-
able person in the belief that his mother had been sub-
jected to undue influence. It is not in dispute that Bruce
Tyler prepared and helped his mother execute the 1988
will that effectively disinherited Jay Tyler. The evidence
suggests that Jay Tyler was unaware of the 1988 will
until years after he commenced the prior action against
the plaintiff. The evidence also suggests that Jay Tyler
believed that his mother had been led by Thomas Tyler
to effectively disinherit him by means of the 1999 will,
which was reflected in the terms of the 2004 trust.
As we have discussed previously in this opinion, to
overcome the exculpatory clause of the trust, it was
necessary for the defendants, who did not rely on an
allegation of wilful misconduct, to demonstrate that
the settlor of the trust had been unduly influenced in
connection with the trust. As we observed in part III A
of this opinion, it is an unresolved issue of fact whether
Bruce Tyler knew about the 1988 will when he brought
the cross complaint against the plaintiff in the prior
action. As a consequence of the court’s failure to give
proper consideration to the exculpatory clause of the
trust in its analysis of the issue of probable cause, it
also failed to find whether Jay Tyler reasonably believed
that the settlor had been subjected to undue influence
and, thus, had probable cause to pursue the claims at
issue. We are persuaded that, with respect to the claims
related to the plaintiff’s failure to act as a prudent inves-
tor, failure to provide trust accountings, and failure
to hold the investment advisor liable, the court must
determine whether the facts known to Jay Tyler at the
time he brought the claims against the plaintiff in the
prior action were sufficient as to give rise to a bona
fide belief that he should entertain the action against
the plaintiff. The fact that the court found, as a matter
of fact, that the defendants had not proven that the
settlor had been unduly influenced in connection with
the trust does not affect our analysis of whether Jay
Tyler had a bona fide belief in such facts at the time
he commenced the prior action against the plaintiff.
Accordingly, we reverse the judgment rendered in
favor of the defendants with respect to the plaintiff’s
statutory vexatious litigation claim that was brought
under § 52-568 (1), in which he alleged, in relevant part,
that Bruce Tyler lacked probable cause to bring counts
one, three, and four of Bruce Tyler’s cross complaint
in the prior action, and in which the plaintiff alleged,
in relevant part, that Jay Tyler lacked probable cause
to bring counts one, two, three, four, six, and seven of
the complaint in the prior action. With respect to these
aspects of the claim raised under § 52-568 (1), the court
is ordered to conduct further proceedings consistent
with this opinion.
The judgment in favor of the defendants is reversed
in part and the case is remanded for further proceedings
in accordance with the preceding paragraph; the judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The plaintiff sets forth four distinct claims in his cross appeal but,
because they each raise the same legal issue, we will address these
claims together.
2
In a prior appeal, this court more fully described the claims brought
against the plaintiff in Jay Tyler’s complaint and Bruce Tyler’s cross com-
plaint as follows: ‘‘In the first count of the complaint, Jay Tyler sought to
modify the trust, claiming that Thomas Tyler had exerted undue influence
upon Ruth Tyler in relation to the trust and had conspired together with
[John Tyler, Jr.], Russell Tyler and [the plaintiff] to keep Ruth Tyler’s trust
and will a secret from him. In the second count of the complaint, Jay Tyler
also sought to modify the trust based upon allegations that the . . . actions
[of Thomas Tyler, Russell Tyler, [John Tyler, Jr., and the plaintiff] against
him had wrongfully deprived him of his share of the trust estate. In the third
count of the complaint, Jay Tyler alleged negligence against [the plaintiff]
for failing to furnish him with accountings of the trust while his mother
was still alive, and thereby preventing him from discovering the undue
influence that had been exerted upon his mother in relation to the trust. In
the fourth count of the complaint and the first count of the cross complaint,
[Jay Tyler and Bruce Tyler] alleged that [the plaintiff] had [failed to render
trust accountings and had] failed to act as a prudent investor of the trust’s
assets, in violation of General Statutes § 45a-541b. In the fifth count of the
complaint and second count of the cross complaint, both [Jay Tyler and
Bruce Tyler] alleged that [the plaintiff] had failed to diversify the trust’s
assets, in violation of General Statutes § 45a-541c. In the sixth count of the
complaint and the third count of the cross complaint, [Jay Tyler and Bruce
Tyler] alleged that [the plaintiff’s] failure to furnish them with trust account-
ings during their mother’s lifetime had prevented them from exercising their
right to seek an order from the Probate Court under § 45a-204 compelling
[the plaintiff], as trustee, not to keep the trust’s assets invested in the same
securities received by him. Finally, in the seventh count of the complaint
and the fourth count of the cross complaint, [Jay Tyler and Bruce Tyler]
alleged that [the plaintiff] had breached his duty to the trust, and to them
as trust beneficiaries, by failing to hold the investment advisor liable for
losses allegedly resulting from the advisor’s advice not to diversify the trust’s
assets.’’ (Footnotes omitted.) Tyler v. Tyler, 163 Conn. App. 594, 599–601,
133 A.3d 934 (2016).
3
On August 22, 2013, the trial court in the prior action, Sommer, J., granted
the plaintiff’s motion for summary judgment as to all counts of the third
amended complaint and the fourth amended cross complaint except for the
seventh count of the third amended complaint and the fourth count of the
fourth amended cross complaint. Thus, in its initial decision on the motion
for summary judgment, the court denied the plaintiff’s motion for summary
judgment only with respect to the claim that the plaintiff had breached his
duty to the trust and the trust beneficiaries by failing to hold the investment
adviser liable for losses allegedly resulting from the adviser’s advice not to
diversify the trust assets. On September 19, 2013, in response to the parties’
motions to reargue, the court reversed its prior decision only to the extent
that it had granted the plaintiff’s motion for summary judgment with respect
to the issue of whether the plaintiff owed Jay Tyler and Bruce Tyler a duty
to provide them with accountings of the trust prior to their mother’s death.
Thereafter, Jay Tyler and Bruce Tyler appealed from the court’s judgment.
On June 17, 2014, this court dismissed the appeal brought by Jay Tyler and
Bruce Tyler with respect to their claim that the trial court improperly had
rendered summary judgment on several counts that were asserted against
the plaintiff. This court dismissed that portion of the appeal on jurisdictional
grounds in light of the fact that, with respect to the claims raised against
the plaintiff, the trial court had rendered a partial judgment from which a
right to appeal did not exist. Tyler v. Tyler, 151 Conn. App. 98, 103–104, 93
A.3d 1179 (2014).
The claims brought against the plaintiff on which summary judgment had
not been rendered were tried before a jury. On October 24, 2013, a jury
returned a general verdict in the plaintiff’s favor. Neither Jay Tyler nor Bruce
Tyler appealed from the judgment subsequently rendered by the trial court
in the plaintiff’s favor.
Following this court’s partial dismissal of the prior appeal brought by Jay
Tyler and Bruce Tyler from the rendering of summary judgment with respect
to some but not all of the claims brought against the plaintiff, and following
the jury verdict on October 24, 2013, which resulted in a judgment in the
plaintiff’s favor with respect to the claims that had not been disposed of
by the rendering of summary judgment, Jay Tyler and Bruce Tyler argued
during a status conference before the trial court that certain of the claims
they had brought against the plaintiff were still pending. On October 1, 2014,
the trial court, Radcliffe, J., ruled that all of the claims brought against the
plaintiff by Jay Tyler and Bruce Tyler had been adjudicated. After Jay Tyler
and Bruce Tyler appealed from the trial court’s judgment in this regard, this
court affirmed the judgment of the trial court. Tyler v. Tyler, 163 Conn.
App. 594, 133 A.3d 934 (2016).
4
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.’’
5
See footnote 4 of this opinion.
6
The defendants also brought a counterclaim against the plaintiff in his
individual capacity. On October 15, 2014, the court, Graham, J., granted
the plaintiff’s motion to dismiss the counterclaim. That ruling is not a subject
of this appeal.
7
General Statutes § 52-226a provides: ‘‘In any civil action tried to a jury,
after the return of a verdict and before judgment has been rendered thereon,
or in any civil action tried to the court, not more than fourteen days after
judgment has been rendered, the prevailing party may file a written motion
requesting the court to make a special finding to be incorporated in the
judgment or made a part of the record, as the case may be, that the action
or a defense to the action was without merit and not brought or asserted
in good faith. Any such finding by the court shall be admissible in any
subsequent action brought pursuant to section 52-568.’’
8
The motion to dismiss and the court’s ruling thereon are discussed in
detail in part II A of this opinion.
9
The court’s analysis of ‘‘accounting claims’’ also encompasses the claim
raised by Bruce Tyler in count three of his cross complaint.
10
The court observed: ‘‘Unlike [the duty imposed by] § 45a-541c, the duty
imposed by § 45a-541b is applicable because the trust does not expand,
restrict, eliminate, or otherwise alter it.’’
11
See footnote 3 of this opinion.
12
The defendants observe that § 4 of the trust contained a ‘‘penalty’’
provision that applied to beneficiaries who challenged the trust itself, but
that it did not by its terms explicitly authorize the commencement of a
vexatious litigation action against one or more beneficiaries.
13
In their reply brief, the defendants clarify that, in connection with their
claim that the plaintiff lacked standing, they do not argue that the plaintiff
lacked the authority to commence the present action because he failed to
commence the present action within a reasonable time.
14
The defendants argue that ‘‘[t]he [vexatious litigation] cause of action
was unnecessary because the trust itself prescribed its own penalty in the
event of a vexatious litigation action by one or more beneficiaries.’’ The
defendants draw our attention to § 4 of the trust, which provides: ‘‘After
provision has been made for the payments and reservations specified in
[s]ection 3 above, upon the [g]rantor’s death, the [t]rust shall terminate and
the principal thereof (including any accumulated income) shall be distrib-
uted, in substantially equal shares, to the [g]rantor’s children, JOHN E.
TYLER, JR., BRUCE D. TYLER, THOMAS J. TYLER, RUSSELL J. TYLER
and JAY M. TYLER, share and share alike, per stirpes and not per capita,
subject to the direction that any sums due and owing to the [g]rantor by
her sons, BRUCE D. TYLER and JAY M. TYLER, shall be deducted from
any share which they are to receive under the terms of this [p]aragraph 4.
In the event that either BRUCE D. TYLER and JAY M. TYLER dispute, in
any way, the terms and provisions of this [p]aragraph 4, the [g]rantor
directs the [t]rustees to deduct from the share that either is to receive under
the terms of this [p]aragraph 4, any and all expenses incurred by the [t]rustees
in defending or resolving said dispute, including [a]ttorneys’ fees, any and
all costs, travel, board and lodging expenses incurred by the [t]rustees, said
determination as to expenses shall be made by the [t]rustees in their sole
and unlimited discretion. The [t]rustees shall also determine, in their sole
and unlimited discretion, the proportionate share of these expenses to be
deducted from the share that either BRUCE D. TYLER and/or JAY M. TYLER
is to receive from the terms and provisions of this [p]aragraph 4.’’ (Empha-
sis added.)
As the emphasized language in § 4 reflects, the penalty provision on which
the defendants rely pertains to disputes related to the terms and provisions
of § 4 of the trust. This provision does not pertain to claims brought by one
or more beneficiaries against the plaintiff, as trustee, for damages related
to the manner in which he has fulfilled his duties as trustee. Because the
claims brought against the plaintiff in the prior action were the subject of
the vexatious litigation action, and those claims related to his conduct as
trustee, we are not persuaded that § 4 of the trust in any way deprived the
plaintiff of his authority to recoup trust assets by commencing the present
action against the defendants.
15
On October 24, 2013, a jury found in favor of the plaintiff with respect
to the defendants’ claim, advanced in Jay Tyler’s complaint and Bruce Tyler’s
cross complaint, that they were entitled to damages as a result of the
plaintiff’s failure to hold the investment advisor liable for losses that resulted
from following the advisor’s advice not to diversify the assets of the trust.
16
As we stated previously in this opinion, the 1988 will significantly altered
the estate plan that was reflected in the 1984 will by requiring an equal
distribution of estate assets among Ruth Tyler’s five sons.
17
The plaintiff testified that he did not know why Ruth Tyler was residing
in an assisted living facility.
18
As we have explained previously in this opinion, the court did not agree
with the plaintiff’s broad reliance on the exculpatory provision in the trust,
observing in its original decision that ‘‘[t]his ‘exculpation’ language in the
trust does not prohibit the bringing of an action against the trustee, but
only that he ‘shall not be liable,’ except for ‘willful conduct.’ Indeed, the
clause was asserted by the plaintiff in the [prior] action as a special defense.’’
In its decision granting reargument and/or reconsideration, the court stated
that ‘‘the exculpatory clause may [not] be used as a sword by the trustee
to establish probable cause in a vexatious suit.’’
19
The record reflects that, after the court rendered its decision on the
motion for reargument and/or reconsideration, the defendants filed a motion
for articulation in which they asked the court to articulate ‘‘[w]hether the
court considered the probability of undue influence affecting the settlor’s
willingness to agree to the exculpatory provisions in the trust.’’ The motion
stated: ‘‘If [the court did consider the probability of undue influence], explain
its rationale for its decision. If it did not consider the probability of undue
influence, please state the reason for the said determination of irrelevancy.’’
The court denied this request. The defendants did not seek further review
of the trial court’s ruling.
20
Our conclusion does not affect the trial court’s determination that Bruce
Tyler lacked probable cause to bring the failure to diversify trust assets
claim in count two of his cross complaint in the prior action.
21
In its original memorandum of decision of December 7, 2016, the court
found that the plaintiff failed to demonstrate that the defendants had acted
with malice in bringing the counts of the complaint and the cross complaint
that he alleged to be vexatious. Although, in its original decision in the
present action, the court ended its analysis after it concluded that the
defendants had probable cause to bring the counts of the complaint and
cross complaint based on the plaintiff’s failure to provide them with account-
ings, the court’s discussion of whether malice had been proven does not
appear to be limited to these specific counts of the complaint and cross
complaint. Nor, in our view, is there any logical basis to construe the court’s
finding with respect to malice as pertaining merely to specific counts of
the complaint and cross complaint. The court reasoned that, although there
was evidence of animosity between the defendants and their other siblings,
the plaintiff failed to prove that the defendants held animosity toward him.
The court stated that it did not have any authority pursuant to which it
could ‘‘transfer the animosity of the defendants from one party to another.’’
When the court in its memorandum of decision of July 19, 2017 granting
reargument and/or reconsideration addressed the counts of the complaint
and the cross complaint that were based on the plaintiff’s failure to diversify
the trust’s assets, it expressly ‘‘adopted’’ the finding concerning malice that
it made in its original decision. Thus, in its original memorandum of decision,
the court made a finding that the plaintiff had not proven malice and, in its
memorandum of decision granting reargument and/or reconsideration, the
court reaffirmed this broad finding.
In its memorandum of decision granting reargument and/or reconsidera-
tion, however, the court addressed the fifth count of the complaint and the
second count of the cross complaint, which were based on the plaintiff’s
failure to diversify trust assets. It then addressed the remaining claims at
issue in the complaint and the cross complaint, which were based on the
plaintiff’s failure to act as a prudent investor and failure to hold the invest-
ment advisor liable, and stated that, in light of its finding that the plaintiff
had failed to prove that the defendants had brought these claims in the
prior action without probable cause, it was unnecessary for the court to
reach the issue of whether the defendants had acted with malice.
Our review of the findings set forth in both decisions leads us to conclude
that the court considered the issue of malice and concluded that the plaintiff
had failed to prove that the defendants had brought any of their claims at
issue in the prior action with malice. The court’s finding that malice had
not been proven as set forth in the court’s original decision and reaffirmed
in its memorandum of decision granting reargument and/or reconsideration
logically applies to all of the claims at issue that were raised by the defendants
in the prior action. Although, in this appeal, the plaintiff argues that the
court erred in failing to conclude that the defendants brought their claims
in the prior action without probable cause and with malice, he has failed
to demonstrate error in the court’s finding that malice was not proven.
We clarify that our reversal of the judgment rendered in favor of the
defendants pertains solely to the plaintiff’s statutory vexatious litigation
claim under § 52-568 (1), pursuant to which the plaintiff sought double
damages as a result of counts one, two, three, four, six, and seven of the
complaint and counts one, three, and four of the cross complaint in the
prior action. In part II C of this opinion, we rejected the defendants’ challenge
to the court’s judgment in favor of the plaintiff with respect to count five
of the complaint and count two of the cross complaint. We do not reverse
the court’s judgment in favor of the defendants with respect to count one
of the plaintiff’s complaint in the present action, in which he brought a
claim of common-law vexatious litigation, and count three of the plaintiff’s
complaint in the present action, in which he stated a claim under § 52-
568 (2), pursuant to which the plaintiff would have been entitled to treble
damages. To prevail in these causes of action, a plaintiff must prove that a
defendant acted with a malicious intent. See Falls Church Group, Ltd. v.
Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. 94 (describing essential
elements of common-law claim for vexatious litigation), and footnote 4 of
this opinion.
22
Our conclusion does not affect the trial court’s determination that Jay
Tyler lacked probable cause to bring the failure to diversify trust assets
claim in count five of his complaint in the prior action.
23
At trial in the present action, Bruce Tyler questioned Jay Tyler. During
this examination, Jay Tyler used a written document that showed questions
and answers. He testified that Bruce Tyler told him what questions he would
ask and that he and Bruce Tyler scripted ‘‘appropriate’’ answers to these
questions. Absent objection, the script that Jay Tyler reviewed during his
examination was made a full exhibit.