Rieffel v. Johnston-Foote ( 2016 )

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BICH-HA HENRIETTE RIEFFEL ET AL. v.
PENELOPE D. JOHNSTON-FOOTE ET AL.
(AC 37762)
Keller, Mullins and Pellegrino, Js.
Argued February 29—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Taggart D. Adams, judge
trial referee.)
Peter M. Ryan, for the appellants (plaintiffs).
Brian J. Farrell, Jr., for the appellees (named defen-
dant et al.).
Kelley Franco Throop, for the appellees (defendant
Diane Jones et al.).
Douglas R. Steinmetz, for the appellees (defendant
Dan Tredwell et al.).
Peter E. DeMartini, with whom, on the brief, was
Charles A. Deluca, for the appellees (defendant Daniel
W. Moger, Jr., et al.).
Opinion
PER CURIAM. The plaintiffs, Bich-Ha Henriette Rief-
fel and Marc A. Rieffel, appeal from the summary judg-
ment rendered on their complaint in favor of the
defendants, Penelope D. Johnston-Foote, Rayh Foote,
also known as Ray Foote, Diane Jones, Michael B.
Jones, Dan Tredwell, Lucinda Tredwell, Sue Baker,
Attorney Daniel W. Moger, Jr., Daniel W. Moger, LLC,
the Penelope Johnston-Foote Family Qualified Personal
Residence Trust (trust), and LWT Associates, LLC
(LLC).1 In their complaint, the plaintiffs sought damages
for vexatious litigation and abuse of process against
several of their neighbors individually (Johnston-Foote,
Foote, the Tredwells, the Joneses, and Baker), the own-
ers of property on which certain neighbors resided (the
trust and the LLC), the neighbors’ attorney (Moger) and
his law firm (Daniel W. Moger, LLC), for having filed a
forcible entry and detainer action against the plaintiffs,
which subsequently was withdrawn.2 On appeal, the
plaintiffs claim that in rendering summary judgment in
the defendants’ favor the court improperly concluded
that (1) the attorney defendants had probable cause to
pursue the underlying forcible entry and detainer
action; (2) the affidavits of several of the neighbor
defendants were competent evidence of their special
defense to the vexatious litigation counts of reliance
on the advice of counsel; (3) the trust and the LLC were
not properly named as defendants because they were
not parties to the underlying forcible entry and detainer
action; and (4) the defendants’ pursuit of the underlying
action was not an abuse of process because the exclu-
sive remedy available to the neighbor defendants was
an action to quiet title. We affirm the judgment of the
trial court.
Evidence of the following facts appears in the record.
The plaintiffs and the individual neighbor defendants
all live in a secluded neighborhood on a private road,
known as Thrushwood Road, off of Indian Head Road
in the Riverside section of Greenwich. An unnamed
right-of-way and a portion of Thrushwood Road are
located on the land of the plaintiffs. For purposes of
the summary judgment action and this appeal, rights
of ingress and egress to the respective residences of
the individual neighbor defendants over the unnamed
right-of-way and Thrushwood Road are conceded by
the plaintiffs. Near the head of Thrushwood Road, a
small open shed or wooden stanchion, located on the
plaintiffs’ property, contained the mailbox of the plain-
tiffs and four mailboxes of the individual neighbor
defendants. The individual neighbor defendants’ mail-
boxes had existed at this particular location for periods
of time ranging from ten years to more than forty years.
In an undated letter addressed to ‘‘Dear Neighbors,’’
Bich-Ha Henriette Rieffel demanded that the individual
neighbor defendants remove the stanchion and their
mailboxes on or before November 27, 2012. On or about
December 10, 2012, the plaintiffs served several of the
neighbor defendants with a ‘‘Notice of Termination of
License,’’ informing them that their ‘‘license and privi-
lege to maintain a mailbox . . . on the property owned
by [the plaintiffs] . . . is hereby terminated . . . .’’
The notice advised the neighbor defendants that their
license terminated as of December 17, 2012, and that
the mailboxes and the stanchion should be removed by
the close of the business day on that date.
The individual neighbor defendants objected to the
plaintiffs’ demands and retained Moger in December,
2012, to protect their interests. Between December 17,
2012, and January 8, 2013, counsel for the plaintiffs
and Moger exchanged correspondence regarding the
dispute. On or about January 25, 2013, the plaintiffs
removed the four mailboxes and the stanchion; the mail-
boxes of the individual neighbor defendants were left
in the driveways of their respective properties. After
Moger recommended to his clients the institution of a
forcible entry and detainer action pursuant to General
Statutes § 47a-43, the individual neighbor defendants
authorized the action against the plaintiffs. An unsigned
summons and complaint was presented to a judge, who
signed the summons on January 29, 2013. Service subse-
quently was made on the plaintiffs. A court date of
February 7, 2013, was set at the housing session of the
Superior Court in Norwalk. On that date, the housing
court judge apparently expressed some doubts about
the strength of the case, and the plaintiffs filed a motion
for summary judgment. Another court date was set,
but, after consulting with his clients, Moger withdrew
the entry and detainer action on February 19, 2013.3
On August 6, 2013, the plaintiffs commenced this
action against the attorney defendants and the individ-
ual neighbor defendants who had been plaintiffs in the
forcible entry and detainer action. In addition, the trust
and the LLC were named as defendants although they
were not parties to the forcible entry and detainer
action. The complaint contained twenty-four counts.
Each of the individual neighbor defendants, the trust,
and the LLC were sued for common-law vexatious litiga-
tion, statutory vexatious litigation pursuant to both
General Statutes § 52-568 (1) and (2),4 common-law
abuse of process, and common-law abuse of process
with malice.5 The attorney defendants were sued for
common-law vexatious litigation, statutory vexatious
litigation pursuant to § 52-568 (1) and (2), and common-
law abuse of process.
All of the defendants filed answers denying the essen-
tial allegations of the plaintiffs’ complaint. The neighbor
defendants all pleaded the special defense of reliance
upon the advice of counsel. Subsequently, all of the
defendants filed motions for summary judgment accom-
panied by supporting memoranda of law and affidavits.
The attorney defendants also annexed exhibits to their
motion, on which, in addition to Moger’s affidavit, the
neighbor defendants additionally relied. The plaintiffs
responded, objecting to the granting of summary judg-
ment, with memoranda and counteraffirmations.6
The court, by memorandum of decision,7 granted the
motion for summary judgment filed by the attorney
defendants after determining that the evidence pre-
sented by the parties, when viewed in the light most
favorable to the plaintiffs, failed to establish a genuine
issue as to any material fact and that, as a result, the
attorney defendants were entitled to judgment in their
favor as a matter of law. The court first determined
that the evidence did not reveal the existence of a genu-
ine issue of material fact with respect to whether the
attorney defendants had probable cause to recommend
to clients and to commence the forcible entry and
detainer action against the plaintiffs. On the basis of
the evidence before it, the court determined that such
probable cause existed. The court stated that ‘‘[t]he
existence of probable cause eliminates the major neces-
sary predicate for the various vexatious suit claims
asserted by the plaintiffs . . . .’’8 Next, the court deter-
mined that the evidence demonstrated that the attorney
defendants did not abuse process because the forcible
entry and detainer action was not instituted for a pur-
pose for which such an action was not designed, thereby
rejecting the plaintiffs’ claim that the attorney defen-
dants actually intended to bring a quiet title action. The
court determined that what was sought only was the
retention of the neighbor defendants’ claimed possess-
ory rights to their mailboxes.9 Further, the court deter-
mined that the plaintiffs, in their abuse of process claims
against the attorney defendants, had failed to allege or
prove that the attorney defendants engaged in specific
misconduct intended to cause specific injury outside
the normal contemplation of private litigation.10
With respect to the motions for summary judgment
filed by the neighbor defendants, the court, in a separate
memorandum of decision, determined that the evidence
presented by the parties, when viewed in the light most
favorable to the plaintiffs, failed to establish a genuine
issue as to any material fact and that, as a matter of
law, the neighbor defendants were entitled to judgment
in their favor. The court determined that the evidence
demonstrated that the neighbor defendants had pro-
vided Moger with any and all facts concerning the mail-
boxes, including their removal and placement on their
properties, and that there was no evidentiary support
for the plaintiffs’ claim that the neighbor defendants’
disclosure of facts to Moger was less than candid or
incomplete.11 The court further concluded that Bich-
Ha Henriette Rieffel’s affirmation, which she filed in
response to the neighbor defendants’ motions for sum-
mary judgment, did not give rise to an issue of material
fact with respect to her assertion of bad faith or malice
against the neighbor defendants attributable to the
removal of the mailboxes.
On the basis of its assessment of the submissions
before the court, the court then determined that the
neighbor defendants had established the essential ele-
ments of their special defense of advice of counsel to
the vexatious litigation claims of the plaintiffs. Finally,
the court determined that the individual neighbor defen-
dants did not abuse process because they did not bring
their action to settle or quiet title, as the plaintiffs
asserted, and therefore did not use legal process against
the plaintiffs primarily to accomplish a purpose for
which it was not designed. The court rejected the plain-
tiffs’ assertion that the only appropriate legal action
was a quiet title action pursuant to § 47-31 and that, as it
had discussed in its decision on the attorney defendants’
motion for summary judgment, the forcible entry and
detainer action was not clearly a frivolous claim. In
rendering summary judgment in favor of the trust and
the LLC, the court observed that there was no support
for the plaintiffs’ claims that, along with the individual
neighbor defendants, the trust and the LLC had initiated
the underlying forcible entry and detainer action against
the plaintiffs.12
As previously stated, the plaintiffs claim on appeal
that in rendering summary judgment in the defendants’
favor, the court improperly concluded that (1) the attor-
ney defendants had probable cause to pursue the under-
lying forcible entry and detainer action; (2) the
affidavits of the individual neighbor defendants were
competent evidence of their special defense to the vexa-
tious litigation counts of advice of counsel; (3) the trust
and the LLC were not properly named as defendants
because they were not parties to the underlying forcible
entry and detainer action; and (4) the defendants’ pur-
suit of the underlying action was not an abuse of process
because the exclusive remedy available to the neighbor
defendants was an action to quiet title.
Our standard of review of a trial court’s ruling on
a motion for summary judgment is well established.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . As the burden of proof is on the movant, the evi-
dence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Citation omitted; internal quota-
tions marks omitted.) Bonington v. Westport, 297 Conn.
297, 305, 999 A.2d 700 (2010).
After a careful examination of the record, including
a consideration of the comprehensive briefs and argu-
ments of the parties, we conclude in accordance with
the standard of review set forth previously in this opin-
ion that the court did not err in granting the defendants’
motions for summary judgment.13 Because the court’s
memoranda of decision fully address the arguments
raised in the present appeal, we adopt its thorough and
well reasoned decisions as a proper statement of the
facts and the applicable law on these issues. See Rieffel
v. Johnston-Foote, 165 Conn. App. 401, 412, A.3d
(2015) (appendices). It would serve no useful pur-
pose for this court to repeat the analysis contained in
the trial court’s decisions. Riley v. Pierson, 126 Conn.
App. 486, 492, 12 A.3d 581 (2011).
The judgment is affirmed.
1
For purposes of this appeal, we refer to Johnston-Foote, Foote, the
Tredwells, the Joneses, Baker, the trust, and the LLC as the neighbor defen-
dants. We refer to Moger and his law firm as the attorney defendants. The
owner of the property on which Johnston-Foote and Foote resided was the
trust. The owner of the property on which the Tredwells resided was the LLC.
2
General Statutes § 47a-43 provides in relevant part: ‘‘(a) When any person
(1) makes forcible entry into any land, tenement or dwelling unit and with
a strong hand detains the same, or (2) having made a peaceable entry,
without the consent of the actual possessor, holds and detains the same
with force and strong hand, or (3) enters into any land, tenement or dwelling
unit and causes damage to the premises or damage to or removal of or
detention of the personal property of the possessor, or (4) when the party
put out of possession would be required to cause damage to the premises
or commit a breach of the peace in order to regain possession, the party
thus ejected, held out of possession, or suffering damage may exhibit his
complaint to any judge of the Superior Court.
‘‘(b) Such judge shall forthwith issue a summons to the party complained
of . . . to answer to the matters contained in the complaint. . . .’’
3
At oral argument before this court, Attorney Brian J. Farrell, Jr., repre-
senting Johnston-Foote, Foote and the trust, indicated that all of the
offending mailboxes have been relocated and are no longer on the plaintiffs’
property and that, other than this appeal, no cause of action concerning
this dispute is pending.
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
‘‘An action for abuse of process lies against any person using a legal
process against another in an improper manner or [primarily] 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 primarily to accomplish a
purpose for which it is not designed . . . . Comment b to § 682 explains
that the addition of primarily [to this definition] 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.’’ (Citation omitted; emphasis in original; internal quotation marks
omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). Where
an abuse of process claim is brought against an attorney, the standard
is heightened in order to balance ‘‘the attorney’s primary duty of robust
representation of the interests of his or her client.’’ Id., 497. Specifically, in
order to prevail on an abuse of process claim against an attorney, the plaintiff
must allege ‘‘specific misconduct intended to cause specific injury outside
of the normal contemplation of private litigation.’’ Id. We find no authority
distinguishing an abuse of process claim from an abuse of process claim
with malice, and the nature of the damages sought by the plaintiffs under
all of their abuse of process counts, with and without malice, is substantively
the same.
6
In rendering its decision, the court noted: ‘‘In all, the proliferation of
memoranda, affidavits and exhibits, and changes and substitutions thereto,
has made it extraordinarily difficult for the court, relying on only the elec-
tronic file used in the Superior Court, to separate the wheat from the chaff.’’
7
The court issued two memoranda of decision on February 19, 2015. One
addressed the four motions for summary judgment filed on behalf of the
neighbor defendants. The other addressed the motion for summary judgment
filed on behalf of the attorney defendants.
8
The court found that Moger had relied heavily on Evans v. Weissberg,
87 Conn. App. 180, 866 A.2d 667 (2005), and Bowman v. Williams, 5 Conn.
App. 235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d
1351 (1986). The court concluded that Bowman provided a reasonable basis
for Moger to consider bringing the entry and detainer action against the
plaintiffs. Despite the plaintiffs’ focus on the impropriety of the defendants’
use of an action for forcible entry and detainer under these circumstances,
the court was not required to decide the merits of the underlying forcible
entry and detainer action in considering these motions for summary judg-
ment. If, on the basis of the facts known to the attorney defendants, the
filing of the prior action was objectively reasonable, the court necessarily
determined that the litigation the plaintiffs were subject to was not unjusti-
fied. The following rationale is persuasive: ‘‘When the court has made such
a determination, there is no persuasive reason to allow the plaintiff to go
forward with its tort action even if it can show that its adversary’s attorney
did not perform as thorough an investigation or as complete a legal research
job as a reasonable attorney may have conducted. Permitting recovery on
such a basis would provide the plaintiff with a windfall; since the prior
action was objectively tenable, the plaintiff could properly have been put
to the very same burden of defense if its adversary had simply hired more
thorough counsel.’’ Rockwell v. Rockwell, Superior Court, judicial district of
Ansonia-Milford, Docket No. CV-13-5010935-S (October 14, 2015) (Stevens,
J.) (61 Conn. L. Rptr. 98, 101), quoting Sheldon Appel Co. v. Albert & Oliker,
47 Cal. 3d 863, 883, 765 P.2d 498, 254 Cal. Rptr. 336 (1989).
9
In Moger’s affidavit, he averred that after the plaintiffs took the action
of removing the stanchion and the mailboxes, his sole, immediate concern
was restoring the ability of his clients to collect their mail in their usual
manner and that he had not intended to file an action to quiet title.
10
The amended complaint in no way distinguishes between the costs and
benefits ordinarily associated with the pursuit of litigation and the burdens
that the defendants in this case allegedly improperly inflicted upon the
plaintiffs. See Mozzochi v. Beck, 204 Conn. 490, 497–98, 529 A.2d 171 (1987).
11
The affidavits of the individual neighbor defendants that were submitted
to the court by the neighbor defendants, Moger’s affidavit, and the correspon-
dence between the plaintiffs’ counsel and Moger prior to the initiation of
the underlying forcible entry and detainer action all support the court’s
finding that all material facts concerning the mailbox dispute had been
disclosed to and discussed with Moger. The plaintiffs have made the conclu-
sory assertion that the neighbor defendants did not convey to Moger all of
the material facts, but the plaintiffs failed to point to any material omission
or misstatement of fact made by any of the neighbor defendants in their
discussions with Moger.
12
Although the court, in a few instances, referred to its ‘‘dismissal’’ of the
plaintiffs’ claims, its judgment clearly grants the defendants’ motions for
summary judgment on all of the plaintiffs’ claims. The plaintiffs have
appealed from the granting of those motions.
13
A joint brief was filed on behalf of the attorney defendants and another
joint brief was filed on behalf of the neighbor defendants.