Rogan v. Rungee , 165 Conn. App. 209 ( 2016 )

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MICHAEL ROGAN v. SALLY RUNGEE
(AC 37398)
Beach, Sheldon and Prescott, Js.
Argued January 19—officially released May 3, 2016
(Appeal from Superior Court, judicial district of New
Britain, Hon. Joseph M. Shortall, judge trial referee.)
Rose Longo-McLean, for the appellant (plaintiff).
Jon L. Schoenhorn, for the appellee (defendant).
Opinion
PRESCOTT, J. The plaintiff, Michael Rogan, appeals
from the judgment of the trial court rendered, in part,
in favor of the defendant, Sally Rungee, on her counter-
claim for abuse of process, common-law vexatious liti-
gation, and statutory vexatious litigation. On appeal, the
plaintiff claims that the court improperly (1) awarded
damages to the defendant for emotional distress for
abuse of process, (2) awarded treble emotional distress
damages, and (3) held that the plaintiff failed to prove
his affirmative defense that he acted on the advice of
legal counsel. We disagree and affirm the judgment of
the trial court.
The following facts, as found by the trial court or
undisputed in the record, and procedural history are
relevant to our review. ‘‘It began . . . with an ill con-
ceived but straightforward complaint by [the plaintiff]
that [the defendant] had ‘falsely and maliciously
accused [him] of creating a public disturbance . . . [an
infraction] of which [she] knew he was innocent.’ That
accusation, the complaint went on to allege, caused
him to be arrested and charged with that offense and to
suffer damage to his reputation and extreme emotional
distress. The complaint correctly alleged further that
the charge was subsequently nolled. This alleged con-
duct by [the defendant] gave rise to four counts in the
complaint, namely, malicious prosecution (count one),
slander (count two), and intentional and negligent
infliction of emotional distress (counts three and four).’’
(Footnote omitted.)
This alleged malicious prosecution arose from events
occurring in the early morning of January 3, 2008. The
defendant had called the Berlin Police Department to
complain about lights shining into her bedroom window
from the rear of the plaintiff’s house. Sergeant Chris
Tralli and Officers Ryan Gould and Brian Falco of the
Belin Police Department responded to the call.
Although the plaintiff alleges that the lights in question
were Christmas lights, upon arrival at the plaintiff’s
house, Officer Falco noted that ‘‘[t]he light in question
was on the second story deck on the rear of [the plain-
tiff’s] house and looked to be a blue LED strobe light
similar to lights used in [vehicles] of volunteer firemen.
The light was angled directly at [the defendant’s] house
and appeared to be done so deliberately.’’ This was
not the first time that the police had responded to a
complaint about this light and had ordered the plaintiff
to turn it off. Consequently, the plaintiff was issued an
infraction ticket for creating a public disturbance. It
was on the basis of receiving this infraction ticket that
the plaintiff claimed that he was maliciously prosecuted
by the defendant, although he was never arrested, never
paid any fine, and never appeared in court concerning
the infraction ticket.
‘‘On January 5, 2009, the court, Trombley, J., struck
counts two, three, and four [of the plaintiff’s complaint]
for their failure sufficiently to allege the elements of
the respective causes of action. [Although] the court
denied the motion to strike count one [for malicious
prosecution], it had barely survived, but it took three
more years and a change in Connecticut law for count
one of [the plaintiff’s] complaint to be disposed of by
summary judgment in favor of [the defendant]. . . .
‘‘In the meantime, however, [the defendant] had
upped the ante by filing a counterclaim that accused
[the plaintiff] of abusing the court’s process by bringing
his malicious prosecution lawsuit ‘not in pursuit of jus-
tice’ but as ‘improper retaliation for the efforts of [the
defendant] to stop the harassing, bizarre, and criminal
misconduct of [the plaintiff] over several years.’ . . .
[The defendant’s] counterclaim sought damages also
for intentional infliction of emotional distress, based
on [the plaintiff’s] alleged seeking of a warrant for [the
defendant’s] arrest for harassment, after she had made
a telephone call to the fire department officials of the
town of Berlin claiming that [the plaintiff, who was
a volunteer firefighter] had engaged in inappropriate
behavior and was mentally ill. A third count alleged a
conspiracy between [the plaintiff] and Berlin fire and
police officials to cause [the defendant] severe emo-
tional distress.
‘‘After she obtained summary judgment on the mali-
cious prosecution count of [the plaintiff’s] complaint
in 2012, [the defendant] amended her counterclaim to
include counts for common-law (count four) and statu-
tory (count five) vexatious litigation. . . . Because all
of the counts of [the plaintiff’s] complaint had been
stricken or had been disposed of by summary judgment
in favor of [the defendant], by the time this case came
on for trial on February 26, 2014, the only issues before
the court were those raised by the [defendant’s] five
count counterclaim.’’ (Footnotes omitted; citation
omitted.)
A bench trial was held on February 26 and 27, and
March 5, 2014. On July 23, 2014, the court issued a
memorandum of decision with respect to liability only.
The court held that the defendant had proved by a
preponderance of the evidence all of the elements of
abuse of process and common-law and statutory vexa-
tious litigation. The court further held, however, that
the defendant had failed to prove by a preponderance
of the evidence all of the elements of intentional inflic-
tion of emotional distress and civil conspiracy. In the
July 23, 2014 memorandum, the court deferred making
a determination as to the appropriate amount of dam-
ages to award the defendant.
On November 6, 2014, the court issued a memoran-
dum of decision with respect to damages. The court
determined that the defendant had proven $35,000 in
emotional distress damages pursuant to her abuse of
process (count one) and statutory vexatious litigation
(count five) claims. The court trebled the emotional
distress damages pursuant to General Statutes § 52-568
(2),1 and awarded the defendant $105,000, as damages
for those counts. The court further awarded the defen-
dant the nominal sum of $1 in compensatory damages
and $20,000 in reasonable attorney’s fees as punitive
damages for common-law vexatious litigation. In total,
the defendant was awarded $125,001.2 This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The plaintiff first claims that the court improperly
awarded the defendant emotional distress damages for
abuse of process. In support of this claim, the plaintiff
sets forth two arguments.3 First, he contends that the
award of emotional distress damages was improper
because the court improperly found that the malicious
prosecution action initiated by the plaintiff was the
cause of the defendant’s emotional distress. Second, he
contends that the court improperly awarded emotional
distress damages because the evidence in the record
was insufficient to establish all the elements of abuse
of process, in particular, that his primary purpose in
bringing the malicious prosecution action was
improper. Although the plaintiff frames this claim as a
challenge to the award of emotional distress damages
for abuse of process, his arguments, in essence, chal-
lenge the merits of the court’s liability determination.
We are not persuaded by either argument.
A
The plaintiff first contends that the award of emo-
tional distress damages for abuse of process was
improper as a matter of law because the court improp-
erly found that the malicious prosecution action initi-
ated by the plaintiff was the cause of the defendant’s
emotional distress.4 Specifically, the plaintiff argues
that there is no evidence in the record to support the
court’s finding that the plaintiff’s action caused the
defendant’s emotional distress. Rather, he argues, any
emotional distress that the defendant experienced was
due to other traumatic events that occurred at the time
of the action, such as the defendant undergoing open
heart surgery. In response, the defendant cites to multi-
ple sections of her testimony at trial in which she
described the emotional distress that she experienced
as a direct result of the plaintiff’s action. We are not
persuaded by the plaintiff’s argument.
The following additional facts, which the trial court
reasonably could have found on the basis of the record,
are relevant to this argument. At trial, the defendant
was questioned about how she reacted to being served
with the plaintiff’s action, to which she responded: ‘‘I
was just beside myself. I said I can’t believe that he’s
suing me because he broke the law.’’ Then, in response
to a question concerning how the action had affected
her emotionally, the defendant stated that: ‘‘It changed
my life dramatically, drastically. . . . I don’t sleep well
at night, I lock all my doors.’’ Similarly, the defendant’s
husband testified at trial that the action had made her
‘‘very, very upset, distraught,’’ and ‘‘[i]nconsolable.’’ In
its memorandum of decision, the court credited the
defendant’s testimony that the action had caused her
emotional distress.
‘‘Damages suffered through an abuse of legal process
not malicious must be compensatory, that is compensa-
tion for the natural consequences resulting, which
would include injury to the feelings because of the
humiliation, disgrace or indignity suffered, together
with injury to the person and physical suffering . . . .’’
McGann v. Allen, 105 Conn. 177, 184, 134 A. 810 (1926).
Thus, for the court to properly award emotional distress
damages for abuse of process, the abuse of process
must have caused the defendant’s emotional distress.
Whether such causation exists is a question of fact. See
Burton v. Stamford, 115 Conn. App. 47, 87, 971 A.2d
739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).
Our review of the trial court’s factual findings is lim-
ited to deciding whether such findings were clearly
erroneous. ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . We do not examine the record to
determine whether the trier of fact could have reached
a conclusion other than the one reached.’’ (Citation
omitted; internal quotation marks omitted.) Verspyck
v. Franco, 274 Conn. 105, 113, 874 A.2d 249 (2005).
‘‘Because the trial court had an opportunity far superior
to ours to evaluate the evidence . . . every reasonable
presumption is made in favor of the correctness of
its ruling . . . .’’ (Internal quotation marks omitted.)
Sorrentino v. All Seasons Services, Inc., 245 Conn. 756,
772, 717 A.2d 150 (1998).
In the present case, the defendant testified about the
impact of the plaintiff’s action on her emotional state.
She and her husband testified that the action upset her
and caused insomnia. The court credited that testimony.
Accordingly, we conclude that the record supports the
court’s finding that the plaintiff’s action caused emo-
tional distress to the defendant, and, thus, the court
properly awarded emotional distress damages.
B
Second, the plaintiff contends that the court improp-
erly awarded emotional distress damages for abuse of
process because there was insufficient evidence in the
record to support the trial court’s conclusion that the
defendant had met her burden to establish all the ele-
ments of abuse of process, particularly, that his primary
purpose in bringing the malicious prosecution action
was improper. Specifically, the plaintiff contends that
the defendant produced no evidence that he had
brought the malicious prosecution action in order to
intimidate and harass her. We are not persuaded.
The following additional facts are necessary to
resolve this aspect of the plaintiff’s claim. On April 5,
2012, the plaintiff e-mailed his attorney, John Williams,
that ‘‘[t]he suit worked as far as I’m concerned by keep-
ing the [defendant] at bay the last four years.’’ Although
Williams testified that he did not recall the plaintiff
stating that the purpose of the malicious prosecution
action was to keep the defendant ‘‘at bay,’’ he did admit
that he thought that ‘‘[d]eterrence [was] a legitimate
basis for a legal action.’’
In the court’s July 23, 2014 memorandum of decision,
it found that the plaintiff’s action ‘‘was brought not
for the purpose of obtaining just damages from [the
defendant] but to continue the pattern of harassing
behavior in which [the plaintiff] had previously engaged
vis-a``-vis the [defendant’s] family and to intimidate [the
defendant] from making any further complaints about
him to the local authorities.’’ In making this finding,5
the court found persuasive that the plaintiff ‘‘confirmed
this [improper] intention on his part in an e-mail to his
attorney on April 5, 2012 . . . .’’ Furthermore, the court
drew an adverse inference against the plaintiff for not
testifying at trial, although he was present, pursuant to
General Statutes § 52-216c.6
We first set forth the applicable standard of review
for a challenge to the sufficiency of the evidence. ‘‘[W]e
must determine whether the facts set out in the memo-
randum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in
the whole record, those facts are clearly erroneous.
. . . We also must determine whether those facts cor-
rectly found are, as a matter of law, sufficient to support
the judgment. . . . [W]e give great deference to the
findings of the trial court because of its function to
weigh and interpret the evidence before it and to pass
upon the credibility of witnesses . . . .’’ (Internal quo-
tation marks omitted.) Bhatia v. Debek, 287 Conn. 397,
404, 948 A.2d 1009 (2008).
Keeping this standard of review in mind, we turn to
the elements of the tort of abuse of process. ‘‘An action
for abuse of process lies against any person using a
legal process against another in an improper manner
or to accomplish a purpose for which it was not
designed. . . . Because the tort arises out of the
accomplishment of a result that could not be achieved
by the proper and successful use of process, the
Restatement Second (1977) of Torts, § 682, emphasizes
that the gravamen of the action for abuse of process
is the use of a legal process . . . against another pri-
marily to accomplish a purpose for which it is not
designed . . . . Comment b to § 682 explains that the
addition of ‘primarily’ is meant to exclude liability when
the process is used for the purpose for which it is
intended, but there is an incidental motive of spite or an
ulterior purpose of benefit to the defendant.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529
A.2d 171 (1987).
The plaintiff argues that the April 5, 2012 e-mail does
not prove that he had an improper purpose for bringing
the malicious prosecution action. We do not agree. The
e-mail stated that the action ‘‘worked’’ by keeping the
defendant ‘‘at bay.’’ The court interpreted this phrase
to mean that the action was successful because it
achieved its intended purpose, to intimidate the defen-
dant from making further lawful complaints to the
police. The court’s interpretation of the e-mail is reason-
able, and, thus, we will defer to it. See Bhatia v. Debek,
supra, 287 Conn. 404 (‘‘[w]e give great deference to the
findings of the trial court because of its function to
weigh and interpret the evidence before it’’ [internal
quotation marks omitted]).
If the plaintiff’s statement in the e-mail about keeping
the defendant ‘‘at bay’’ was meant in some other way,
he had the opportunity to testify at trial as to what he
actually meant by this statement. The plaintiff also
could have offered testimony establishing that he had
brought the malicious prosecution action for a legiti-
mate purpose. The plaintiff chose not to avail himself of
this opportunity and the court exercised its discretion,
which is not challenged on appeal,7 by drawing an
adverse inference against the plaintiff. See General Stat-
utes § 52-216c. In light of this adverse inference, the
April 5, 2012 e-mail supports the court’s factual finding
that the plaintiff’s primary purpose in bringing the mali-
cious prosecution action was improper. Accordingly,
we conclude that there was sufficient evidence in the
record to support the court’s determination that all the
elements of abuse of process were met, and, thus, the
court properly awarded emotional distress damages.
II
The plaintiff next claims that the court improperly
awarded treble damages for abuse of process. Specifi-
cally, the plaintiff argues that the court lawfully could
treble damages only for statutory vexatious litigation
pursuant to § 52-568 (2), but that the court awarded
them for abuse of process. The defendant responds
that, viewing the judgment as a whole, it is clear that
the court properly awarded treble damages for statutory
vexatious litigation, and, that to the extent that the
court entered treble damages for abuse of process in
the concluding paragraph of the judgment, this was
merely a clerical error that can be corrected at any
time. We agree with the defendant that, in light of the
judgment as a whole, the award of treble damages
was proper.
The following additional procedural history is rele-
vant to this claim. The court issued a memorandum of
decision with respect to liability only on July 23, 2014.
The court, however, deferred making a determination
as to the appropriate amount of damages to award the
defendant. On November 6, 2014, the court issued a
memorandum of decision with respect to damages
(November 6, 2014 judgment). In the November 6, 2014
judgment, the court discussed the amount of damages
awarded under each count separately. The court deter-
mined that the defendant was entitled to $35,000 for
emotional distress for abuse of process. The court then
ordered that ‘‘[b]ased on [its] finding for [the defendant]
on count five of her counterclaim [for statutory vexa-
tious litigation], the damages awarded on count one for
emotional distress are trebled to $ 105,000 pursuant
to General Statutes § 52-568 (2).’’ In the concluding
paragraph, containing a tally of all the damages
awarded, however, the court indicated an award for
compensatory damages in the amount of $105,000 under
count one.8 There was no amount of damages entered
under count five in the concluding paragraph.9
‘‘The law of judgments . . . is well settled. The con-
struction of a judgment is a question of law with the
determinative factor being the intent of the court as
gathered from all parts of the judgment. . . . As a gen-
eral rule, the court should construe [a] judgment as it
would construe any document or written contract in
evidence before it. . . . Effect must be given to that
which is clearly implied as well as to that which is
expressed.’’ (Internal quotation marks omitted.) Moas-
ser v. Becker, 107 Conn. App. 130, 135, 946 A.2d 230
(2008). If ‘‘[f]aced with . . . an ambiguity, we construe
the court’s decision to support, rather than to under-
mine, its judgment.’’ Culver v. Culver, 127 Conn. App.
236, 250–51, 17 A.3d 1048, cert. denied, 301 Conn. 929,
23 A.3d 724 (2011). ‘‘The judgment should admit of a
consistent construction as a whole. . . . To determine
the meaning of a judgment, we must ascertain the intent
of the court from the language used and, if necessary,
the surrounding circumstances. . . . We review such
questions of law de novo.’’ (International quotation
marks omitted.) Racsko v. Racsko, 102 Conn. App. 90,
92, 924 A.2d 878 (2007). Additionally, ‘‘our appellate
courts do not presume error on the part of the trial
court. . . . Rather, we presume that the trial court, in
rendering its judgment . . . undertook the proper anal-
ysis of the law and the facts.’’ (Citations omitted; inter-
nal quotation marks omitted.) Brett Stone Painting &
Maintenance, LLC v. New England Bank, 143 Conn.
App. 671, 681, 72 A.3d 1121 (2013).
For a court to properly award treble damages under
a statute authorizing such damages, the fact finder must
‘‘[find] for the [party requesting the treble damages]
under the statutory cause of action authorizing these
extraordinary damages, and not for any other alleged
cause of action.’’ DeMilo v. West Haven, 189 Conn. 671,
676, 458 A.2d 362 (1983). Thus, in the present case, the
award of treble damages was proper only if it was
awarded under count five for statutory vexatious litiga-
tion pursuant to § 52-568 (2).
Our review of the November 6, 2014 judgment leads
us to conclude that the only reasonable interpretation
of that judgment is that the treble damages were
awarded for statutory vexatious litigation, not for abuse
of process. The court considered damages under each
count separately. After discussing the damages that the
defendant was entitled to for abuse of process, the
court, in a separate paragraph, awarded damages for
statutory vexatious litigation. The court specifically
stated that it was trebling the emotional distress dam-
ages ‘‘[b]ased on [its] finding for [the defendant] on
count five of her counterclaim . . . pursuant to Gen-
eral Statutes § 52-568 (2).’’ Although the concluding
paragraph of the judgment, if viewed in isolation, would
suggest that the treble damages were awarded for abuse
of process; see footnote 8 of this opinion; the court’s
statement that it was awarding emotional distress dam-
ages pursuant to the statutory vexatious litigation claim
leads us to conclude that the judgment as a whole
should be interpreted as an award of treble damages
for statutory vexatious litigation, rather than for abuse
of process.10 Accordingly, we conclude that the award
of treble damages was proper.
III
Finally, the plaintiff claims that the court improperly
held that, with regard to statutory and common-law
vexatious litigation, the plaintiff failed to prove his affir-
mative defense that he relied on the advice of counsel.
Specifically, he argues that the court improperly found
that he did not give a full and fair statement of all the
facts within his knowledge to his attorney, a necessary
element of the defense. The defendant responds that the
record supports the court’s factual finding, especially in
light of the adverse inference that the court reasonably
drew against the plaintiff, pursuant to § 52-216c,
because he did not testify at trial. We agree with the
defendant.
The following additional facts are necessary for our
analysis of this claim. In the plaintiff’s second revised
complaint, the plaintiff alleged that ‘‘the defendant
falsely and maliciously accused the plaintiff of creating
a public disturbance in the vicinity of his . . . dwelling
by having Christmas lights on his property.’’ On the
basis of this allegedly false accusation, the plaintiff
claimed that the defendant’s conduct constituted mali-
cious prosecution, slander, intentional infliction of emo-
tional distress, and negligent infliction of emotional
distress. After the plaintiff’s claims were disposed of
and only the defendant’s counterclaim remained to be
tried, in his answer to the amended counterclaim, the
plaintiff asserted the special defense that he relied on
the advice of counsel.
The plaintiff, although present throughout the trial,
did not testify at trial. In lieu of testifying, a portion of
the plaintiff’s deposition transcript was admitted with-
out objection as a full exhibit. In the portions of the
deposition transcript admitted into evidence, the plain-
tiff did not discuss what he told his counsel, Williams,
prior to Williams filing the complaint against the defen-
dant for malicious prosecution, nor did he discuss what
advice Williams gave and whether he relied on that
advice. On the basis of the plaintiff’s failure to testify
at trial, the court drew an adverse inference against the
plaintiff pursuant to § 52-216c.
The plaintiff, however, did offer at trial the testimony
of Williams. Williams testified that, when he wrote the
complaint, he was under the impression that the blue
lights, which were the basis for the infraction ticket for
creating a public disturbance, were Christmas lights:
‘‘If I thought they were strobe lights, I wouldn’t have
characterized them as Christmas lights.’’ Williams’
belief that the lights in question were Christmas lights
was based solely on what the plaintiff had told him.
Williams could not recall whether he had viewed the
police report from January 3, 2008, which was admitted
into evidence at trial and stated that the lights in ques-
tion ‘‘looked to be a blue LED strobe light similar to
lights used in [vehicles] of volunteer firemen.’’ Williams
also could not recall whether, prior to filing the com-
plaint, he had been aware of the fact that on December
30, 2007, four days prior to the night in question, there
had been a complaint about the lights and a police
officer had warned the plaintiff to turn the lights off at
night, describing them as ‘‘a blue strobe light . . . fac-
ing and flashing towards the . . . [defendant’s]
bedroom.’’
Williams also testified that he did not speak to anyone
besides the plaintiff in preparing the complaint. He
never spoke with the defendant or any of the police
officers who were present when the plaintiff was issued
the infraction ticket. He relied primarily on the plain-
tiff’s version of events, although he did review some
documents, including the infraction ticket.
In its July 23, 2014 memorandum of decision, the
court held that the plaintiff ‘‘failed to prove by a prepon-
derance of the evidence the elements of his defense
that he acted on the advice of counsel. In particular,
he has failed to prove that the advice given him by
counsel was given ‘after a full and fair statement of all
the facts within [the plaintiff’s] knowledge, or which
[the plaintiff] was charged with knowing.’ ’’11 The court
did not expand upon what evidence it relied upon in
determining that the plaintiff did not give a full and fair
statement of the facts to Williams, and the plaintiff did
not seek an articulation on this finding.
‘‘Advice of counsel is a complete defense to an action
of . . . [malicious prosecution or] vexatious suit when
it is shown that the defendant . . . instituted his civil
action relying in good faith on such advice, given after
a full and fair statement of all facts within his knowl-
edge, or which he was charged with knowing. . . . The
defendant has the burden of proof with respect to this
special defense. . . . Whether there was a full and fair
disclosure of material facts as required by the advice
of counsel defense is a question of fact . . . and
[a]ppellate review of findings of fact is limited to decid-
ing whether such findings were clearly erroneous.’’
(Citations omitted; internal quotation marks omitted.)
Verspyck v. Franco, supra, 274 Conn. 112–13. Thus, we
look to see whether there is any evidence in the record
to support the court’s factual finding. Id., 113.
‘‘In a case tried before a court, the trial judge is the
sole arbiter of the credibility of the witnesses and the
weight to be given specific testimony. . . . It is within
the province of the trial court, as the fact finder, to
weigh the evidence presented and determine the credi-
bility and effect to be given the evidence.’’ (Internal
quotation marks omitted.) Schaeppi v. Unifund CCR
Partners, 161 Conn. App. 33, 43, 127 A.3d 304, cert.
denied, 320 Conn. 909, 128 A.3d 953 (2015).
Although a plaintiff is not required to testify in order
to prove the defense of reliance on advice of counsel;
see id., 44 (‘‘[no] specific evidence from designated
witnesses must be introduced in order to satisfy the
element of good faith reliance’’); a plaintiff must prove
both good faith reliance on counsel’s advice and that
he or she gave counsel a full and fair statement of the
facts. Id., 42. Furthermore, an adverse inference can be
drawn against a plaintiff if he or she is present at trial
but does not testify. See General Statutes § 52-216c.
In determining whether a plaintiff gave a full and fair
statement of the facts within his or her knowledge to
counsel, ‘‘reliance on whether the omitted information
would have had any impact on counsel’s decision to
bring the allegedly vexatious action . . . is irrelevant
. . . because, as a matter of law, showing an impact
on an attorney’s ultimate course of action is not an
element of the defense of reliance on counsel.’’ (Cita-
tions omitted.) Verspyck v. Franco, supra, 274 Conn.
118. The ultimate issue is whether the plaintiff failed
to provide his or her counsel with a fact within his or
her knowledge that was material to the action. See id.,
117–18 n.13. In other words, a client should not be
permitted to rely upon the defense of advice of counsel
if the client did not disclose all of the material facts
related to a potential claim, because the lawyer cannot
render full and accurate legal advice regarding whether
there is a good faith basis to bring the claim in the
absence of knowledge of all material facts. In such
instances, a client’s reliance on the advice of counsel
is unreasonable regardless of whether the material facts
would have altered counsel’s assessment of the validity
of the claim. Accordingly, in the present case, the issue
is whether the record supports the court’s factual find-
ing that the plaintiff failed to provide Williams with
some fact within his knowledge that was material to
the malicious prosecution action.
The court did not specify the subordinate facts under-
lying its factual finding that the plaintiff failed to make
a full and fair disclosure of material facts to his counsel.
The burden, however, is on the appellant to seek an
articulation, which the plaintiff failed to do. See Com-
mission on Human Rights & Opportunities ex rel.
Arnold v. Forvil, 302 Conn. 263, 284, 286, 25 A.3d 632
(2011) (‘‘[W]e repeatedly have stated that it is the appel-
lant’s responsibility to provide an adequate record for
review . . . . Noting . . . that the defendants failed
to supplement this limited record by filing a motion for
articulation, we defer to the trial court’s judgment.’’
[Internal quotation marks omitted.]).
The record, nonetheless, supports the court’s factual
finding. On the basis of the evidence in the record and
the reasonable inferences drawn therefrom, the court
reasonably could have found that the lights in question
were LED strobe lights and that the plaintiff had not
informed Williams of this fact. This omitted fact con-
cerned the subject matter at the very heart of the plain-
tiff’s malicious prosecution action, namely, whether the
defendant falsely accused the plaintiff of creating a
public disturbance. Whether the lights in question were
Christmas lights or LED strobe lights would have
affected significantly a court’s determination of
whether the defendant falsely accused the plaintiff of
making a public disturbance. Thus, the court reasonably
could have concluded that this omitted fact was mate-
rial to the malicious prosecution action.
The evidence in the record supports the court’s fac-
tual finding that the plaintiff did not make a full and
fair statement of all facts within his knowledge or which
he was charged with knowing when he related to Wil-
liams that the defendant falsely and maliciously accused
him of creating a public disturbance. Accordingly, we
conclude that the court properly held that the plaintiff
failed to prove his special defense of reliance on the
advice of counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-568 provides in relevant part: ‘‘Any person who
commences and prosecutes any civil action or complaint against another
. . . (2) without probable cause, and with a malicious intent unjustly to
vex and trouble such other person, shall pay him treble damages.’’
2
We note that the court’s finding that the defendant suffered emotional
distress entitled her to damages for abuse of process and statutory and
common-law vexatious litigation, but because the defendant could be com-
pensated only once for the same injury, she was awarded emotional distress
damages only once. See Rowe v. Goulet, 89 Conn. App. 836, 849, 875 A.2d
564 (2005) (‘‘The rule precluding double recovery is a simple and time-
honored maxim that [a] plaintiff may be compensated only once for his just
damages for the same injury . . . . Duplicated recoveries, furthermore,
must not be awarded for the same underlying loss under different legal
theories. . . . Although a plaintiff is entitled to allege respective theories
of liability in separate claims, he or she is not entitled to recover twice for
harm growing out of the same transaction, occurrence or event.’’ [Citations
omitted; internal quotation marks omitted.]). Thus, the defendant could not
be awarded $35,000 in emotional distress damages for abuse of process and
also $105,000 in treble damages for statutory vexatious litigation, totaling
$140,000, because this would amount to double recovery. By awarding the
defendant only $105,001 in compensatory damages, the court properly lim-
ited the defendant to one instance of recovery for her emotional distress.
3
In addition to these arguments, the plaintiff contends that court improp-
erly awarded emotional distress damages for abuse of process because the
defendant did not plead emotional distress damages in her counterclaim
under count one for abuse of process. In count one of the amended counter-
claim, the defendant alleged that she ‘‘suffered damages.’’ Then, under her
claim for relief, she requested ‘‘[c]ompensatory damages,’’ which include
emotional distress damages. See Commission on Human Rights & Opportu-
nities ex rel. Arnold v. Forvil, 302 Conn. 263, 286, 25 A.3d 632 (2011)
(compensatory damages may include award for emotional distress).
Although the counterclaim could have alleged the nature of the relief sought
more precisely, a party may plead adequately emotional distress damages
as long as the pleading ‘‘fairly [apprises] the adverse party of the state of
facts which it is intended to prove.’’ Practice Book § 10-2; see Buckman v.
People Express, Inc., 205 Conn. 166, 173–74, 530 A.2d 596 (1987). Addition-
ally, at trial, the plaintiff did not object to the introduction of evidence
concerning the defendant’s mental and emotional distress caused by the
plaintiff’s filing of the malicious prosecution action. Moreover, the evidence
presented at trial was sufficient to establish this claim. See Buckman v.
People Express, Inc., supra, 173–74. Under these circumstances and at this
late date, the plaintiff is not entitled to attack the sufficiency of the counter-
claim in this regard.
The plaintiff also argues that, as a matter of law, the trebling of the
emotional distress damages was improper because claims for statutory
vexatious litigation may not be asserted in the same action as claims for
common-law vexatious litigation. See Whipple v. Fuller, 11 Conn. 582, 586
(1836) (‘‘these counts [for common-law and statutory vexatious litigation]
could not, by law, be joined in one declaration’’). Although the applicability
of Whipple is questionable, because that case involved a general verdict
and was decided prior to the adoption of statutes governing the joinder of
different causes of action, we need not reach this issue because the plaintiff
waived his right to raise it. The plaintiff’s argument challenges the legal
sufficiency of the complaint, which is properly raised in a motion to strike.
See Practice Book § 10-39 (a) (2). The plaintiff, however, did not file a
motion to strike; rather, he filed an answer with a special defense to the
amended counterclaim. Accordingly, he waived his right to raise this issue.
See Practice Book §§ 10-6 and 10-7.
4
We note that in his discussion on causation, the plaintiff sets forth one
conclusory sentence that states: ‘‘[i]n the underlying proceeding, neither the
testimony [of the defendant] nor any other evidentiary showing was made
to establish the basis for [$35,000] for emotional distress.’’ To the extent
that the plaintiff’s argument includes a challenge to the amount of the
emotional distress damages as excessive or unsupported by the evidence,
we determine that such a claim is inadequately briefed, and, thus, we decline
to reach it. See Clelford v. Bristol, 150 Conn. App. 229, 233, 90 A.3d 998
(2014). Even if we were to reach this claim, we determine that there is
sufficient evidence in the record from which the court could have found
that $35,000 in noneconomic damages was fair, just, and reasonable for the
defendant’s insomnia and emotional upset.
5
We note that although the court did not use the phrase ‘‘primary purpose,’’
it did find that the plaintiff’s purpose in bringing the action was to harass
and intimidate. Further, the court found that the plaintiff did not bring the
action to obtain damages. By finding that the plaintiff did not bring the
action for a proper purpose—to obtain damages—the court, in essence,
found that his primary purpose for bringing the action was improper. Thus,
we infer from the court’s findings that it found that the plaintiff’s ‘‘primary
purpose’’ in bringing the action was to harass and intimidate.
6
General Statutes § 52-216c provides in relevant part: ‘‘[C]ounsel for any
party to the action shall be entitled to argue to the trier of fact during closing
arguments . . . that [it] should draw an adverse inference from another
party’s failure to call a witness who has been proven to be available to
testify.’’
7
Not only does the plaintiff not challenge on appeal the adverse inference
drawn against him by the trial court, but he also admitted at oral argument
to this court that it was within the trial court’s discretion to draw such an
inference and that he was not challenging the trial court’s exercise of discre-
tion to do so.
Furthermore, because the plaintiff does not challenge the adverse infer-
ence drawn against him, we do not address whether the trial court properly
applied § 52-216c in this case in which, although the plaintiff did not testify
at trial, a portion of his deposition transcript was admitted into evidence
as a full exhibit in lieu of his testimony.
8
The concluding paragraph in the November 6, 2014 judgment states:
‘‘Judgment enters for [the defendant] on her counterclaim as follows:
‘‘Count one: Compensatory damages $ 105,000
‘‘Count four: Compensatory damages $1
‘‘Punitive damages $ 20,000
‘‘Total damages $ 125,001’’
9
We recognize that the defendant filed a motion for clarification and
asked the court to clarify the form of the judgment to reflect that the trebling
of the emotional distress damages was pursuant to § 52-568 (2) for statutory
vexatious litigation. The court denied the motion without comment.
10
To the extent that the concluding paragraph of the judgment, if viewed
in isolation, contains an error, we hold that it is merely a clerical error,
which the trial court may correct at any time. ‘‘Our Supreme Court has
explained that [t]here is a distinction between corrections [of judgments]
that change the substance of a court’s disposition and corrections that
merely remedy clerical errors. . . . [T]he distinction [is] that mere clerical
errors may be corrected at any time even after the end of the term. . . .
A clerical error does not challenge the court’s ability to reach the conclusion
that it did reach, but involves the failure to preserve or correctly represent
in the record the actual decision of the court. . . . In other words, it is
clerical error if the judgment as recorded fails to agree with the judgment
in fact rendered . . . .’’ (Internal quotation marks omitted.) Milazzo v.
Schwartz, 88 Conn. App. 592, 596, 871 A.2d 1040 (2005). In the present
case, any error in the conclusion of the judgment is merely an imprecise
representation of the court’s actual decision. Such an error is a matter of
form, not substance, and, thus, is a clerical error. See Maguire v. Maguire,
222 Conn. 32, 39–40, 608 A.2d 79 (1992).
11
The plaintiff challenges only the court’s finding that he did not provide
Williams with a full and fair statement of the facts. The court’s wording,
however, could be interpreted to mean that it found that the plaintiff did
not meet any of the elements of his special defense, which include good
faith reliance on counsel’s advice and a full and fair statement of the facts
to counsel. See Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978).
Neither party has briefed whether the plaintiff actually relied on counsel’s
advice. Because we conclude that the court’s finding that the plaintiff did
not give counsel a fair and full statement of the facts within his knowledge
was not clearly erroneous, we need not reach this issue.