Rockwell v. Rockwell

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JAMES W. ROCKWELL, JR. v. DONATE S.
ROCKWELL ET AL.
(AC 38512)
Lavine, Elgo and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney, C, for
vexatious litigation in connection with a breach of contract action
against the plaintiff that had been commenced by C on behalf of the
plaintiff’s former wife, D. That action concerned an agreement between
the plaintiff and D pursuant to which D had agreed to invest in certain
unspecified securities, which were held in an investment account man-
aged exclusively by the plaintiff. In return, the plaintiff guaranteed repay-
ment of D’s total investment amount upon the liquidation of the account,
taking into consideration all prior transactions involving the account.
On multiple occasions prior to the liquidation of the investment account,
D received distributions to pay capital gains taxes on the account. When
the account was liquidated, D received some proceeds from the account,
and she contacted the plaintiff requesting further payment in accordance
with the agreement. The plaintiff thereafter tendered to D a payment
of $4000. C then filed an application for a prejudgment remedy on D’s
behalf. The trial court denied the application, but noted on the record that
the breach of contract issue was appropriate for litigation. Thereafter,
C commenced a breach of contract action on D’s behalf. The trial court
denied the plaintiff’s motion for summary judgment, in which he claimed
that D had received an amount in excess of that guaranteed under the
agreement through her withdrawals from the investment account related
to the payment of capital gains taxes. After a trial, the jury returned a
verdict in favor of the plaintiff, and the court rendered judgment in
accordance with the verdict. The plaintiff then brought this vexatious
litigation action claiming, inter alia, that C had commenced the breach
of contract action without probable cause and with malicious intent.
The plaintiff elected a jury trial, and, on the first day of the trial, C
moved to bifurcate the issue of probable cause for trial to the court,
which denied the motion. Thereafter, the trial was delayed a number
of times for various reasons caused by the plaintiff, and C requested
that the court reconsider his motion to bifurcate. When the trial resumed,
the court discharged the jury because three of the eight jurors indicated
that it would be a severe hardship for them to serve on the jury the
following week, and C did not assent to continuing the trial with only
five jurors. The trial court then, on reconsideration, granted C’s motion
to bifurcate. Following a hearing, the trial court found that C had proba-
ble cause to commence the breach of contact action and rendered
judgment in favor of C, from which the plaintiff appealed to this
court. Held:
1. The trial court did not abuse its discretion in bifurcating trial of the issue
of probable cause from the issues of malice and damages; the record
revealed that the court’s decision to bifurcate came after a period of
significant delay caused solely by the plaintiff, which resulted in the
discharge of the jury originally empaneled to hear the matter, and that
the court’s exercise of discretion in initially denying, and then later
granting, C’s motion to bifurcate the proceeding was prompted by inter-
ests of judicial economy, convenience, and negation of prejudice to the
parties, and the resolution of the probable cause issue in C’s favor
obviated the need to litigate the issues of malice and damages.
2. The plaintiff could not prevail on his claim that the trial court, in deciding
the issue of probable cause, violated his state constitutional right to a
jury trial: the plaintiff failed to provide this court with a complete analysis
of the factors set forth in State v. Geisler (222 Conn. 672), both this
court and our Supreme Court have, in such cases, declined to review
claims predicated on our state constitution, and the plaintiff’s claim to
an absolute right to have the issue of probable cause decided exclusively
by a jury could not be reconciled with the ample body of Connecticut
precedent, to which this court was bound to follow, holding that the
existence of probable cause is a question of law to be decided by a
court; moreover, although, in the vexatious litigation context, when the
facts are disputed the court may submit the issue of probable cause to
a jury as a mixed question of fact and law, whether the facts are sufficient
to establish the lack of probable cause is a question ultimately to be
determined by the court, and when the facts relevant to the inquiry into
the objective reasonableness of a litigant’s belief in the validity of the
claim asserted are not in dispute, the trial court properly may decide
the question of probable cause without the aid of the jury.
3. The trial court properly concluded that the plaintiff failed to meet his
burden of proving that C lacked probable cause to prosecute the breach
of contract action; the record contained undisputed facts known by C
when the action was instituted on which a reasonable attorney familiar
with Connecticut law would have believed that lawful grounds for prose-
cuting the breach of contract action existed, as those facts indicated
that a legitimate factual dispute warranting adjudication existed between
the plaintiff and D as to whether the distributions to D from the invest-
ment account that were used to pay capital gains taxes constituted prior
transactions that were to be included in the calculus of the guarantee
provisions of the agreement, and, thus, as to whether D had received
from the account an amount in excess of that which the plaintiff had
guaranteed under the agreement.
Argued September 12—officially released December 5, 2017
Procedural History
Action to recover damages for vexatious litigation,
and for other relief, brought to the Superior Court in
the judicial district of Ansonia-Milford, where the court,
Stevens, J., granted the named defendant’s motion to
dismiss the action as against her; thereafter, the court
granted the defendant Ian A. Cole’s motion to bifurcate;
subsequently, the matter was tried to the court; judg-
ment for the defendant Ian A. Cole, from which the
plaintiff appealed to this court. Affirmed.
James W. Rockwell, Jr., self-represented, the appel-
lant (plaintiff).
Raymond J. Plouffe, Jr., for the appellee (defendant
Ian A. Cole).
Opinion
ELGO, J. In this vexatious litigation action, the self-
represented plaintiff, James W. Rockwell, Jr., appeals
from the judgment of the trial court rendered in favor
of the defendant Attorney Ian A. Cole.1 On appeal, the
plaintiff claims that the court (1) improperly bifurcated
trial of the issue of probable cause from the issues of
malice and damages, (2) violated his right to a jury trial
and (3) improperly determined that the defendant had
probable cause to prosecute the underlying action. We
disagree and, accordingly, affirm the judgment of the
trial court.
The genesis of the present dispute is a breach of
contract action commenced in 2009 (2009 action) by the
plaintiff’s former spouse, Donate S. Rockwell (Donate).
The 2009 action concerned a written agreement
between the plaintiff and Donate (agreement), which
states that they ‘‘have entered into a joint venture for
the purchase of certain securities.’’ Pursuant thereto,
Donate agreed to invest $22,104.50 in unspecified secu-
rities, which were held in an investment account man-
aged exclusively by the plaintiff.2 The plaintiff, in turn,
agreed to ‘‘guarantee the total investment amount to
[Donate].’’3 That notarized agreement was drafted by
the plaintiff’s representative and was signed by the
plaintiff and Donate.
At all relevant times, the defendant appeared as legal
counsel for Donate in the 2009 action. Following an
initial consultation with her, the defendant sent a
demand letter to the plaintiff dated December 3, 2008,
in which he requested payment of approximately
$18,000 that allegedly was due and owing to Donate
pursuant to the agreement. The defendant never
received a response from the plaintiff.
Seven weeks later, the defendant filed an application
for a prejudgment remedy on Donate’s behalf. The
court, Tyma, J., held a hearing on that application,
which focused in large part on distributions from the
investment account made prior to its liquidation in 2007.
At that time, the plaintiff4 introduced into evidence cer-
tain financial records from Donate’s investment
account, which he had subpoenaed. In her testimony,
Donate acknowledged that, on multiple occasions prior
to liquidation, she received distributions to make capital
gains tax payments associated with the investment
account, including a payment of ‘‘$18,000 at one point.’’
Because the relevant provisions of the agreement
required the parties to take ‘‘into account all prior trans-
actions involving the Investment’’; see footnote 3 of this
opinion; the plaintiff testified that, in his view, the term
‘‘prior transaction’’ included any distribution from the
investment account. He thus argued that the financial
records before the court indicated that Donate had
received ‘‘more than her initial money back.’’ The defen-
dant disagreed, arguing that the distributions in ques-
tion were not proceeds applicable to the guarantee
provisions of the agreement but, rather, were distribu-
tions for capital gains taxes on the investment account.
The court ultimately denied the application for a pre-
judgment remedy. In so doing, the court remarked that
although the granting of prejudgment relief was not
warranted, the breach of contract issue was ‘‘appro-
priate for litigation.’’
The defendant thereafter commenced the 2009 action
against the plaintiff on behalf of Donate. Her one count
complaint alleged in relevant part: ‘‘On or about March
8, 1994, the [plaintiff], in order to induce [Donate] to
invest $22,104.50 in a joint investment with him, guaran-
teed repayment to [Donate] of her entire investment of
$22,104.50. . . . In reliance upon said guarantee,
[Donate] invested with the [plaintiff] the sum of
$22,104.50. . . . The guarantee provided, in pertinent
part, that upon complete sale or liquidation of the
investment, if the value realized was less than $22,104.50
then the [plaintiff] would pay to [Donate] ‘the entire
value of the investment, plus an additional amount suffi-
cient to provide her with the total amount of $22,104.00’
. . . . The investment was liquidated on or about July
17, 2007 . . . .’’ Upon liquidation, the complaint alleged
that Donate received $1190.60 in proceeds. The com-
plaint further alleged that, one day later, the plaintiff
made a ‘‘partial payment’’ of $4000 to Donate in
response to her request that he ‘‘honor the
[agreement],’’ but thereafter refused to pay the
$16,913.90 ‘‘balance due [to Donate] under the terms
of the [agreement].’’ Appended to the complaint was a
copy of the agreement.
Following a period of discovery, the plaintiff filed a
motion for summary judgment, claiming that ‘‘[t]he total
amount withdrawn by [Donate] from the Investment
was $45,495.90, an amount in excess of the amount
[the plaintiff] guaranteed she would receive from the
Investment.’’ The court, Hiller, J., denied that motion.
A jury trial was held in 2010, at which both the plaintiff
and Donate testified. In addition, the jury was presented
with documentary evidence from both parties. When
the trial concluded, the jury returned a verdict in favor
of the plaintiff.5 The court then rendered judgment in
favor of the plaintiff in accordance with that verdict.
In 2013, the plaintiff, now self-represented, com-
menced the present vexatious litigation action. His com-
plaint alleged in relevant part that the defendant, in his
capacity as legal counsel to Donate, ‘‘commenced and
prosecuted’’ the 2009 action ‘‘without probable cause
and with malicious intent to unjustly vex and trouble the
[plaintiff].’’ His prayer for relief sought compensatory
damages and treble damages pursuant to General Stat-
utes § 52-568. In his answer, the defendant denied the
substance of those allegations. The defendant also filed
a special defense, in which he averred in relevant part
that ‘‘[t]here was probable cause to commence the
underlying suit to determine the meaning and effect
of disputed contractual guarantee language . . . .’’ On
December 2, 2014, the plaintiff filed a certificate of
closed pleadings with the trial court, in which he
claimed a jury trial.
A jury was selected and a trial was scheduled for
May, 2015. On the first day of trial, the plaintiff filed a
request for a one week continuance, which the court
denied. At that time, the court, Stevens, J., explained
to the plaintiff that ‘‘[t]his trial date has been outstand-
ing for a significant period of time. You have proceeded
to pick a jury which is now ready to proceed, and if
this case is going to be continued . . . it probably will
have to be continued for a month or two in order to
accommodate the scheduling.’’
The court then turned its attention to the defendant’s
‘‘motion to bifurcate the issue of probable cause for
trial to the court,’’ in which the defendant argued that
the issue of whether probable cause exists is always a
question of law for the court to decide. In denying that
request, the court noted that ‘‘the most prudent and
effective use of judicial resources and economy is for
the case to be tried to the jury and then for the court
to address the issue as it may be presented by the
parties at the end of the evidence.’’
The court then asked the plaintiff which witness he
would be calling first. When the plaintiff stated that his
first witness would not be present that day, the court
responded: ‘‘Well, if they’re not going to be here today
then we can’t hear them today, so what witness are
you going to call next? They’ll have to appear tomorrow.
And if they are not going to be here this week then
they will not be heard because this case is not going
to be continued to accommodate an absent witness in
this case in light of the scheduling issues that I’ve
already articulated.’’ When the plaintiff indicated that
‘‘[t]he other witnesses that I subpoenaed are not here,’’
the court stated: ‘‘Well again, Mr. Rockwell, I appreciate
that you are representing yourself, but in order for this
case to proceed you’re going to put on some evidence.
Now either you’re going to have to testify, you’re going
to have somebody else to testify, we’re going to have
to hear some evidence. . . . This case has been sched-
uled for some time to start today. You were aware of
the fact that this case was scheduled to start today
some time ago, and as a result you are required to do
what you need to do in order to have witnesses here.’’
When the court then asked who the first witness would
be, the plaintiff asked for ‘‘a recess until 2 p.m.’’ because
he had ‘‘left [his] papers at home . . . .’’ The court then
inquired as to whether the plaintiff could at least make
an opening statement, to which the plaintiff indicated
that he had ‘‘left it at home.’’
At that time, the court advised the plaintiff as follows:
‘‘Listen to me very carefully. This case has been sched-
uled for trial today for some time now. As the plaintiff,
you are required to be prepared to present whatever
you want to present to the jurors today and tomorrow.
That requires you to be prepared to make whatever
presentations or arguments that you want to make to
the juror[s] as part of opening statements. You have to
be prepared today and tomorrow to offer whatever
documents you want the jurors to consider. You have
to be prepared to offer whatever witnesses you want
to call. You have to do that today and tomorrow. I
appreciate that you are representing yourself . . . but
it does not provide an excuse for not complying with
the law and the rules and procedures of this court. They
apply to you whether you are represented by an attorney
or not. We can try to accommodate you as the law
permits and as procedure allows, but you’re still going
to have to put on your case. . . . And you have today
and tomorrow to do it.’’ The court then recessed the
case until 2 p.m.
When court resumed that afternoon, the plaintiff
made an opening statement. He then called Donate as
a witness, repeatedly asking her whether she had made
certain withdrawals from the investment account cre-
ated pursuant to the agreement. In her testimony,
Donate insisted that she ‘‘didn’t withdraw anything out
of that account.’’ With respect to approximately $45,000
in distributions that she received from the investment
account prior to its liquidation, Donate testified that
she ‘‘didn’t withdraw anything. It was paid for taxes.’’
When the plaintiff then asked who paid those taxes,
Donate responded, ‘‘You did, and you also called my
tax person every time, every year, and day you handled
something.’’ Donate further testified that, on November
5, 2008, she told the defendant that the only proceeds
that she ever received from the investment account was
$1165.90. Later in her testimony, the plaintiff asked the
court for a recess, which the court granted. Following
that recess, the plaintiff requested additional time to
‘‘take care of a medical problem.’’ The court promptly
adjourned the proceeding for the day, advising the
jurors that the case would resume at 9:30 a.m. the
next day.
When the proceeding resumed the following day, the
plaintiff was not present. The court noted for the record
that the clerk’s office had received a telephone call
from the plaintiff’s wife, who indicated that the plaintiff
woke up not feeling well and, therefore, was taken to
a hospital. As a result, the court excused the jury for
the day. At that time, the court expressed its concern
as to the availability of jurors moving forward, stating:
‘‘[T]he jurors when they were impaneled last week were
advised that the case—that the schedule of the case in
terms of their commitment was going to involve their
time through Friday of this week. Well, it’s apparent
that this case is not going to be finished this week, so
one of the things we do need to do is address with the
jurors their schedule and confirm that they are available
next week. Looking at the witness list and the rate at
which we went yesterday, I am seriously concerned
about whether or not we can be done next week either,
but that would be the goal.’’ Given those circumstances,
the defendant asked the court to ‘‘please reconsider my
earlier motion to bifurcate,’’ opining that ‘‘to convert
this to an evidentiary hearing on probable cause . . .
would fairly balance the interests of the defendant . . .
who is the sole defendant in this case.’’ In response,
the court advised the defendant that it would not
address that request without the plaintiff present.
Rather, the court noted that the plaintiff ‘‘will be here
tomorrow, and with his presence we can revisit these
issues which you would like the court to address
. . . .’’
The following day was Thursday, May 14, 2015. The
plaintiff, who was present in court that morning, fur-
nished a doctor’s note asking the court to excuse him
from any proceedings over the next three days. In
response, the defendant renewed his request that the
court reconsider its ruling on the motion to bifurcate.
After taking that request under advisement, the court
noted certain ‘‘procedural issues’’ stemming from the
continuance proposed by the plaintiff’s doctor. The
court remarked, and the plaintiff confirmed, that when
the jury was empaneled, it was ‘‘told that [its] time
commitment would be this week.’’ The court then
brought in the jurors and inquired as to their availability
the following week and whether ‘‘having to be in court
for those days . . . would create a severe conflict,
problem, or hardship for any of [them] for any reason
. . . .’’ Three of the eight jurors so indicated. Although
the plaintiff subsequently assented to continuing with
only five jurors, the defendant declined to do so. As a
result, the court proceeded to discharge the jury.6
The court then returned its attention to the defen-
dant’s motion to bifurcate, explaining that ‘‘[o]ne of the
reasons I [originally] was disinclined to entertain the
motion to bifurcate was judicial economy. The jury had
been picked. Put the evidence on . . . before me and
the jury once and be done. That was one of the reasons
I denied it although it may not have been expressly
articulated that way. I just used the phrase judicial
economy and efficiency. But again, the situation now
is quite different because of the delays we’ve had this
week and the continued delay we’re going to have as
the result of the plaintiff’s present request [for a three
day continuance].’’ The court continued: ‘‘[W]hen the
motion for bifurcation was first presented to me, it was
after the jury had been empaneled. The parties were
already engaged in jury selection and the jurors were
here ready to hear evidence. At that time it seemed to
be most prudent and efficient for the evidence to pro-
ceed for the jurors. . . . As we sit here today the proce-
dural situation is qualitatively different. You folks do
not have a jury now because of the circumstances which
have been presented, and in order to acquire one you’re
going to have to go through jury selection again. That
being the case, I’m of the view that I have now heard
some of the evidence, it does make sense at this point
for me to now hear whatever other evidence that the
parties may need to present on the probable cause issue.
And if the case can be resolved on the basis of that,
then it will be resolved on the basis of that. And for
whatever reason either factual or legal the matter can-
not be resolved on the basis of that, then the parties
will then be in the position that they will need to take
the time and expense to go through jury selection again.
But since it is now possible that the jury selection pro-
cess may be obviated by the court hearing this prelimi-
nary issue of probable cause, the court is going to now
reverse its decision denying the motion to bifurcate
through the granting of the oral request for reconsidera-
tion, and the court is going to order that there be bifur-
cation.’’7
The court held a hearing on the issue of probable
cause over the course of three days, at which the parties
submitted testimonial and documentary evidence. The
parties thereafter submitted posthearing briefs to the
court. In a memorandum of decision dated October 14,
2015, the court found that probable cause existed to
commence the 2009 action and, therefore, rendered
judgment in favor of the defendant. From that judgment,
the plaintiff now appeals.
I
We first consider the propriety of the court’s decision
to bifurcate this civil proceeding. It is well established
that the trial court is vested with discretion to bifurcate
a civil trial. ‘‘Pursuant to General Statutes § 52-2058 and
Practice Book § 15-1,9 the trial court may order that
one or more issues that are joined be tried before the
others. The interests served by bifurcated trials are
convenience, negation of prejudice and judicial effi-
ciency. . . . Bifurcation may be appropriate in cases
in which litigation of one issue may obviate the need
to litigate another issue. . . . The bifurcation of trial
proceedings lies solely within the discretion of the trial
court.’’ (Citation omitted; footnotes in original; internal
quotation marks omitted.) Barry v. Quality Steel Prod-
ucts, Inc., 263 Conn. 424, 448–49, 820 A.2d 258 (2003).
When a trial court exercises its discretion to bifurcate
a civil trial, ‘‘appellate review is limited to a determina-
tion of whether this discretion has been abused. . . .
In reviewing claims that the trial court abused its discre-
tion [in bifurcating certain issues at trial] the unques-
tioned rule is that great weight is due to the action of
the trial court and every reasonable presumption should
be given in favor of its correctness; the ultimate issue
is whether the court could reasonably conclude as it
did . . . .’’ (Citation omitted; internal quotation marks
omitted.) Saczynski v. Saczynski, 109 Conn. App. 426,
428, 951 A.2d 670 (2008).
The record before us reveals no abuse of the court’s
discretion. Its decision to bifurcate came after a period
of significant delay caused solely by the plaintiff, which
resulted in the discharge of the jury originally empan-
eled to hear the matter. As the transcripts plainly reflect,
the court’s exercise of discretion in initially denying,
and then later granting, the defendant’s motion to bifur-
cate the proceeding was animated by interests of judi-
cial economy, convenience, and negation of prejudice to
the parties. See Reichhold Chemicals, Inc. v. Hartford
Accident & Indemnity Co., 243 Conn. 401, 423, 426,
703 A.2d 1132 (1997). Furthermore, resolution of the
probable cause issue in the defendant’s favor in a vexa-
tious litigation action obviates the need to litigate the
issues of malice and damages. See id. (‘‘[b]ifurcation
may be appropriate in cases in which litigation of one
issue may obviate the need to litigate another issue’’);
see also Verspyck v. Franco, 274 Conn. 105, 113 n.8,
874 A.2d 249 (2005) (existence of probable cause is
absolute protection from liability for vexatious litiga-
tion); Schaeppi v. Unifund CCR Partners, 161 Conn.
App. 33, 36 n.1, 127 A.3d 304 (‘‘[b]ecause we conclude
that want of probable cause, an essential element of
both statutory and common-law causes of action, is
lacking, thereby defeating any claim of vexatious litiga-
tion, we need not determine whether the trial court
properly found that the element of malice was not
proved’’), cert. denied, 320 Conn. 909, 128 A.3d 953
(2015). Under the circumstances of this case, we con-
clude that the court did not abuse its discretion in
bifurcating the vexatious litigation proceeding.
II
The plaintiff also claims that the court, in deciding the
issue of probable cause, violated his state constitutional
right to a jury trial.10 He contends that ‘‘a party in a
vexatious litigation case . . . has an absolute right to
a jury trial’’ on the probable cause issue pursuant to
article first, § 19, of the Connecticut constitution.11 For
two distinct reasons, we disagree.
First, the plaintiff has not provided this court with
an analysis of the factors set forth in State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992).12 Rather,
he addresses only its fifth factor.13 In such instances,
both our Supreme Court and this court have declined
to review claims predicated on our state constitution.
See, e.g., State v. Nash, 278 Conn. 620, 624 n.4, 899 A.2d
1 (2006) (declining review where ‘‘[t]he defendant has
not recognized, nor has he applied the six Geisler fac-
tors’’); Aselton v. East Hartford, 277 Conn. 120, 152–55,
890 A.2d 1250 (2006) (declining review because appel-
lant briefed only Connecticut and federal case law with-
out addressing other Geisler factors); State v. Colon,
272 Conn. 106, 154 n.26, 864 A.2d 666 (2004) (declining
review because appellant failed to analyze Geisler fac-
tors ‘‘separately and distinctly’’), cert. denied, 546 U.S.
848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v.
Fisher, 121 Conn. App. 335, 349 n.10, 995 A.2d 105
(2010) (‘‘the analysis required by [Geisler] . . . is a
prerequisite to asserting an independent claim under
the state constitution’’).
Second, on a more fundamental level, the plaintiff’s
claim to an absolute right to have the issue of probable
cause decided exclusively by a jury cannot be recon-
ciled with the ample body of Connecticut precedent
holding that the existence of probable cause is a ques-
tion of law to be decided by the court. See, e.g., Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
281 Conn. 84, 94, 912 A.2d 1019 (2007) (‘‘the existence
of probable cause is an absolute protection . . . and
what facts, and whether particular facts, constitute
probable cause is always a question of law’’ [internal
quotation marks omitted]); Brodrib v. Doberstein, 107
Conn. 294, 296, 140 A. 483 (1928) (existence of probable
cause ‘‘is always a question of law’’); Giannamore v.
Shevchuk, 108 Conn. App. 303, 312, 947 A.2d 1012 (2008)
(‘‘[t]he issue of probable cause . . . ultimately pre-
sents a question of law that must be determined by the
court’’). For that reason, the appellate courts of this
state have upheld judgments rendered in favor of defen-
dants in vexatious litigation actions in which the court
rendered summary judgment as a matter of law; see
Lichaj v. Sconyers, 163 Conn. App. 419, 428–29, 137 A.3d
26 (2016); Hebrew Home & Hospital, Inc. v. Brewer,
92 Conn. App. 762, 773, 886 A.2d 1248 (2005); as well
as cases in which the court bifurcated the issue of
probable cause, conducted an evidentiary hearing, and
then concluded that probable cause existed. See Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
supra, 90–92.
The constitutional guarantee enshrined in article
first, § 19, of the Connecticut constitution secures a
litigant’s right to have issues of fact decided by a jury.
See, e.g., Ackerman v. Sobol Family Partnership, LLP,
298 Conn. 495, 498, 4 A.3d 288 (2010) (‘‘[t]he plaintiffs
also claim that they were denied their right to a jury
trial on issues of fact under article first, § 19, of the
Connecticut constitution’’); Donner v. Kearse, 234
Conn. 660, 675, 662 A.2d 1269 (1995) (observing that
‘‘[a] statute that prohibited a jury from making factual
determinations . . . would run afoul of [the] constitu-
tional guarantee’’ contained in article first, § 19); Bower
v. D’Onfro, 38 Conn. App. 685, 695–96, 663 A.2d 1061
(discussing ‘‘right to have questions of fact resolved by
a jury’’ under state constitution and concluding that
‘‘there is no violation of the defendants’ article one,
§ 19 rights because there was no interference with the
jury’s fact-finding function’’), cert. denied, 235 Conn.
911, 665 A.2d 606 (1995); Rozbicki v. Huybrechts, 22
Conn. App. 131, 133–34, 576 A.2d 178 (1990) (‘‘[i]n Con-
necticut, the right to have issues of fact decided by a
jury is rooted in article first, § 19’’), aff’d, 218 Conn.
386, 589 A.2d 363 (1991). To be sure, our Supreme Court
has observed, in the vexatious litigation context, that
‘‘when the facts themselves are disputed, the court may
submit the issue of probable cause in the first instance
to a jury as a mixed question of fact and law.’’ (Emphasis
added.) DeLaurentis v. New Haven, 220 Conn. 225,
252–53, 597 A.2d 807 (1991). The court nevertheless
prefaced that observation by noting that ‘‘[w]hether the
facts are sufficient to establish the lack of probable
cause is a question ultimately to be determined by the
court . . . .’’ Id., 252. Bound by that precedent, which
this intermediate appellate court cannot reconsider,
reevaluate, or overrule; see Hartford Steam Boiler
Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos.
Collective, 121 Conn. App. 31, 48–49, 994 A.2d 262, cert.
denied, 297 Conn. 918, 996 A.2d 277 (2010); we must
reject the plaintiff’s claim. When the facts relevant to the
inquiry into the objective reasonableness of a litigant’s
belief in the validity of the claim asserted are not in
dispute, the trial court properly may decide the question
of probable cause without aid of the jury. See Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
supra, 281 Conn. 112; DeLaurentis v. New Haven, supra,
252–53; Cosgrove Development Co. v. Cafferty, 179
Conn. 670, 671, 427 A.2d 841 (1980).
III
The remaining question, then, is whether undisputed
facts exist in the record on which the court could con-
clude that the defendant possessed probable cause to
prosecute the 2009 action for breach of contract. At
the outset, we note that, in an action for vexatious
litigation, the burden rests with the plaintiff to prove
that the defendant lacked probable cause to prosecute
a prior action. Harris v. Bradley Memorial Hospital &
Health Center, Inc., 296 Conn. 315, 330, 994 A.2d 153
(2010); see also Zenik v. O’Brien, 137 Conn. 592, 597,
79 A.2d 769 (1951) (‘‘[a]lthough want of probable cause
is negative in character, the burden is upon the plaintiff
to prove affirmatively . . . that the defendant had no
reasonable ground’’ for commencing action).
‘‘[T]he probable cause standard applied to a vexatious
litigation action against a litigant is a purely objective
one.’’ Falls Church Group, Ltd. v. Tyler, Cooper & Alc-
orn, LLP, supra, 281 Conn. 95. That standard is defined
as ‘‘a bona fide belief in the existence of the facts essen-
tial under the law for the action and such as would
warrant a man of ordinary caution, prudence and judg-
ment, under the circumstances, in entertaining it. . . .
Probable cause is the knowledge of facts, actual or
apparent, strong enough to justify a reasonable man in
the belief that he has lawful grounds for prosecuting
the defendant in the manner complained of. . . . Thus,
in the context of a vexatious suit action, the defendant
lacks probable cause if he lacks a reasonable, good
faith belief in the facts alleged and the validity of the
claim asserted.’’ (Internal quotation marks omitted.) Id.,
94–95. Our Supreme Court has described that standard
as a ‘‘lower threshold of probable cause’’ that permits
‘‘attorneys and litigants to present issues that are argua-
bly correct, even if it is extremely unlikely that they
will win . . . .’’ (Internal quotation marks omitted.) Id.,
103–104. As the court emphasized, ‘‘[p]robable cause
may be present even where a suit lacks merit.’’ (Internal
quotation marks omitted.) Id., 103.
The probable cause inquiry in the present case entails
consideration of whether, on the basis of the facts
known by the defendant at the time the action was
filed, a reasonable attorney familiar with Connecticut
law would have believed that probable cause existed
to prosecute the 2009 action for breach of contract. See
id., 104–105. It is well established that ‘‘[a]n action in
contract is for the breach of a duty arising out of a
contract . . . .’’ Gazo v. Stamford, 255 Conn. 245, 263,
765 A.2d 505 (2001). ‘‘The elements of a breach of con-
tract claim are the formation of an agreement, perfor-
mance by one party, breach of the agreement by the
other party, and damages.’’ Meyers v. Livingston, Adler,
Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 291,
87 A.3d 534 (2014).
The first two elements of that cause of action require
little discussion. It is undisputed that the plaintiff and
Donate entered into the agreement in 1994. That written
agreement was signed by the parties and appended to
the complaint in the 2009 action. It also is undisputed
that Donate performed her obligation under the con-
tract by tendering payment of $22,104.50—the ‘‘total
investment amount’’ specified in that agreement. Her
March 9, 1994 check in that amount was admitted into
evidence. Furthermore, in his testimony at the prejudg-
ment remedy hearing held on March 16, 2009, and at
the probable cause hearing in the present case, the
plaintiff acknowledged both the ‘‘authenticity’’ of the
agreement and Donate’s payment of $22,104.50 into the
investment account.
The critical question, then, is whether the record
contains undisputed facts on which the defendant rea-
sonably could advance a claim that the plaintiff had
breached the agreement to Donate’s detriment. We
agree with the trial court that the record contains
such facts.
Donate testified at both the trial before the jury on
May 12, 2015, and the probable cause hearing on May
19, 2015. She explained that, at the time that she retained
his services, she provided the defendant with a copy
of the agreement and informed him that she received
$1190.60 in proceeds when the investment account was
liquidated. Donate testified that, following that liquida-
tion, she contacted the plaintiff requesting further pay-
ment pursuant to the agreement. It is undisputed that
the plaintiff thereafter tendered a payment of $4000 to
Donate. The record contains both an audio recording
and a transcript of a message left on Donate’s voice
mail, which features a brief conversation between the
plaintiff and his wife, Veronica Rockwell.14 In that mes-
sage, Veronica states that ‘‘[t]his should not be happen-
ing’’ and then asks the plaintiff why he had ‘‘transferred
$4000 to [Donate’s] account?’’ The plaintiff replied, ‘‘She
never lied to me before. You know maybe I did guaran-
tee it for her.’’ Donate testified that she provided a copy
of that recording to the defendant.
Also admitted into evidence was a letter dated July
27, 2007, that Donate sent to the plaintiff. That letter
states in relevant part: ‘‘Thank you for depositing $4000
to my . . . account. I really appreciate your effort to
come true to your word. . . . I remain [hopeful] that
you will overcome all obstacles and fulfill your obliga-
tion and promise to me.’’ Donate sent the plaintiff a
second letter dated August 23, 2007, which also was
admitted into evidence. In that letter, Donate sought
compensation for ‘‘the money you owe me’’ pursuant
to the agreement. She further indicated that, should the
plaintiff require any ‘‘more proof,’’ he should contact
their representative at Prudential Securities Incorpo-
rated (Prudential). At the probable cause hearing,
Donate confirmed that she provided copies of those
letters to the defendant.
In addition, Donate provided uncontroverted testi-
mony that she provided the defendant with proof of
significant capital gains tax payments made prior to the
liquidation of the investment account. Copies of two
checks that she gave to the defendant were admitted
into evidence. The first was payable to the United States
Treasury in the amount of $26,085; the second was
payable to the Commissioner of Revenue Services for
the state of Connecticut in the amount of $6762. In her
testimony, Donate also confirmed that the complaint
that the defendant subsequently drafted in the 2009
action accurately reflected the information that she had
provided to him. Donate provided a sworn affidavit to
that effect, which was admitted into evidence.
Upon commencement of the 2009 action, a hearing
on Donate’s application for a prejudgment remedy was
held. At that hearing, Donate testified that, on multiple
occasions prior to liquidation, she received distribu-
tions to pay capital gains taxes on the investment
account, including a payment of $18,000. The plaintiff
at that time presented certain financial records that he
had subpoenaed from Prudential regarding the invest-
ment account, which indicated a total of $45,495 in
distributions therefrom. Due to the parties’ dispute as to
whether such distributions should constitute payments
toward the guarantee provisions of the agreement, the
court denied the application for a prejudgment remedy.
At that time, the court noted on the record that the
breach of contract issue nevertheless was ‘‘appropriate
for litigation.’’ The plaintiff was served with process in
the 2009 action approximately one week later.
In his January 26, 2010 affidavit filed with the court,
the plaintiff swore that ‘‘[t]he total amount withdrawn
by [Donate] from the Investment was $45,495.90 . . . .’’
The plaintiff also filed a motion for summary judgment
at that time, claiming that ‘‘[t]he total amount with-
drawn by [Donate] from the Investment was $45,495.90,
an amount in excess of the amount [the plaintiff] guar-
anteed she would receive from the Investment.’’ The
court denied that motion. In so doing, the court deter-
mined that a genuine issue of material fact existed as
to whether Donate had received an amount in excess
of that guaranteed under the agreement. Cf. Lichaj v.
Sconyers, supra, 163 Conn. App. 423-–24 and 426 n.5
(acknowledging that denial of motion for summary
judgment is factor to consider in analysis of probable
cause but expressing ‘‘no opinion as to whether a denial
of a motion for summary judgment, without more, is
sufficient to negate the lack of probable cause for the
purpose of a subsequent action in vexatious litigation’’);
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1080
(8th Cir. 1999) (when trial court denies defendant’s
motion for summary judgment ‘‘it follows that there
was probable cause for bringing the [cause of action]’’).
Furthermore, the record indicates that, prior to trial,
the plaintiff filed a notice of compliance with the court’s
trial management order (notice). In that notice, the
plaintiff provided an overview of the case, stating that
‘‘[t]here were many transactions during the thirteen
years the investment account existed. [Donate] con-
tends there is an amount due her. The [plaintiff] claims
that [Donate] received $22,104 prior to the investment
being liquidated . . . .’’ In addition, the plaintiff
averred that the following issues were ‘‘not in dispute:
From 1998 to 2005, [Donate] withdrew $45,495 from
the account and paid capital gains taxes in the amount
of $42,528.’’ In addition, the plaintiff submitted pro-
posed jury interrogatories to the court, which limited
the alleged withdrawals made by Donate to a total of
$44,330. The plaintiff also disclosed Anthony Annunzi-
ata, a certified public accountant, as an expert witness
prior to trial. In his disclosure, the plaintiff stated that
Annunziata was ‘‘expected to testify as to the income
tax consequences of [Donate’s] capital gains and
losses.’’ A trial on the 2009 action followed, though the
defendant ultimately did not call Annunziata as a
witness.
At the conclusion of trial, the court, Radcliffe, J.,
held a charging conference with the parties. At that
time, the court indicated, that with respect to the breach
of contract cause of action, it would charge the jury that
‘‘[Donate] claims that the phrase, ‘taking into account
all prior transactions involving the investment’ refers
to withdrawal of monies included in her initial capital
investment of $22,104.50. She claims that no portion
of the capital investment was withdrawn prior to the
complete liquidation in July of 2007 when she received
$1190.60. . . . The [plaintiff] on the other hand, claims
that the phrase, ‘taking into account all prior transac-
tions involving the investment’ includes . . . any with-
drawals made by [Donate] over the years [including
withdrawals] for the purpose of paying capital gains
taxes, and withdrawals made for the personal use of
[Donate]. The [plaintiff] claims that [Donate’s] with-
drawals exceeded $22,104.50, and that no monies are
due under the contract . . . .’’ Both parties expressed
their agreement with that instruction. After being so
instructed by the court, the jury ultimately found in
favor of the plaintiff.
The defendant testified at the probable cause hearing
in the present case. He stated that he first learned of
approximately $45,000 in distributions from the invest-
ment account at the March 16, 2009 prejudgment rem-
edy hearing. As he testified, ‘‘that’s when I discovered
the subpoenaed records from [Prudential and] from
[the plaintiff’s] testimony that there was a claim that
there were $45,000 [in] withdrawals which exceeded
the $22,000.’’ At the probable cause hearing, the plaintiff
also questioned the defendant on the basis of his deter-
mination that there was probable cause to commence
the 2009 action. In response, the defendant testified as
follows: ‘‘[W]e had the subpoenaed account records
[provided at the prejudgment remedy hearing], and we
had that information which you claimed were with-
drawals. We had the fact that you paid $4000 on account
when she asked you to honor the agreement. . . . We
also had testimony that there were huge capital gains
taxes paid, so at that point the issue became what
counts as a prior withdrawal or prior transaction
because that’s what it refers to. It’s not defined in the
agreement. My argument then and my argument at trial
[in the 2009 action] was that all the withdrawals equal
the capital gains taxes paid or became close then she
didn’t get her initial investment back, and that issue
went to the jury, and that’s what the [notice] said and
that’s what [the plaintiff’s January 26, 2010] affidavit
said. The withdrawals were $45,000. You agreed—you
agreed that she had paid $43,000 in capital gains, so
there was a very good argument she . . . didn’t get her
capital investment back. Withdrawals were used to pay
taxes . . . .’’
Later in the probable cause hearing, the plaintiff
asked the defendant ‘‘what does the word ‘prior transac-
tions’ mean in your mind?’’ The defendant replied, ‘‘It
depends on what the parties consider—‘prior transac-
tions’ is a very ambiguous term. It certainly doesn’t
mean just withdrawals, and I think you’d have to take
into account deposits. There’s also a question of
whether or not that included withdrawals that were
to pay capital gains taxes which were caused by [the
plaintiff’s] trading in the account. And that’s what we
went to trial on. That’s what went to the jury whether
or not the capital gains taxes should be counted in this
process. That was the [principal] issue that went to the
jury.’’ When the defendant was questioned about the
notice that the plaintiff had filed with the court prior
to trial, the defendant similarly testified that the notice
indicated ‘‘these were the withdrawals, [$45,000]. These
were the capital gains taxes paid. Those were undis-
puted facts in [the notice]. . . . So, the issue before
the jury was whether or not payment of the capital gains
should be considered . . . a credit or debit’’ under the
agreement.
The defendant’s uncontroverted testimony at the
probable cause hearing is further evidence that a bona
fide dispute existed as to whether the disbursements
to Donate for payment of capital gains taxes should be
considered ‘‘prior transactions’’ under the agreement.
More importantly, the plaintiff produced no evidence
indicating that the defendant lacked an objectively rea-
sonable, good faith belief in the facts alleged and the
validity of the claim asserted in the 2009 action. See
Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, supra, 281 Conn. 95. We reiterate that, in the con-
text of vexatious litigation actions, the critical inquiry
is not whether a plaintiff possessed a meritorious claim
but, rather, a viable one. See id., 103–104 (noting that
‘‘[p]robable cause may be present even where a suit
lacks merit’’ and explaining that ‘‘[t]he lower threshold
of probable cause allows attorneys and litigants to pre-
sent issues that are arguably correct, even if it is
extremely unlikely that they will win’’ [citation omitted;
internal quotation marks omitted]).
In his testimony at the probable cause hearing, the
plaintiff acknowledged that he had represented to the
court, at the March 16, 2009 prejudgment remedy hear-
ing, in his January 26, 2010 affidavit, and in his January
26, 2010 motion for summary judgment, that the total
amount of distributions that Donate received from the
investment account was $45,495.90. When questioned
about his attorney’s representations to the court in mov-
ing for summary judgment, the plaintiff testified, ‘‘That’s
[what] he knew at the time . . . .’’ The plaintiff then
was asked whether he had any evidence that the defen-
dant ‘‘knew anything different than your attorney?’’ Sig-
nificantly, the plaintiff conceded that ‘‘I have no
evidence on that.’’15
In light of the foregoing, we concur with the trial court
that a legitimate factual dispute warranting adjudication
existed when the 2009 action was instituted—specifi-
cally, whether distributions from the investment
account that were used to pay capital gains taxes consti-
tuted ‘‘prior transactions’’ that were to be included in
the calculus of the guarantee provisions of the
agreement. As was the case in Lichaj v. Sconyers, supra,
163 Conn. App. 427, ‘‘[r]egardless of how the issue ulti-
mately would be resolved, the matter clearly and objec-
tively required resolution, one way or another.’’ We
therefore conclude that, on the basis of the undisputed
facts known by the defendant, a reasonable attorney
familiar with Connecticut law would believe that lawful
grounds for prosecuting the breach of contract action
existed. See Falls Church Group, Ltd. v. Tyler, Cooper &
Alcorn, LLP, supra, 281 Conn. 101–105. Accordingly,
the court properly concluded that the plaintiff had not
met his burden of proving that the defendant lacked
probable cause to prosecute the 2009 action.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Subsequent to the commencement of this action, the named defendant,
Donate S. Rockwell, filed a motion to dismiss the action against her for
lack of personal jurisdiction due to improper service of process, which the
court granted. The plaintiff does not challenge the propriety of that judgment
in this appeal. For purposes of clarity, we refer to Cole as the defendant in
this opinion.
2
Also admitted into evidence in the present case was a ‘‘Trading Authoriza-
tion’’ with Prudential Securities Incorporated that Donate signed on April
9, 2000. That authorization named the plaintiff as her ‘‘true and lawful agent’’
and authorized him to manage the investment account in all respects.
3
The agreement states in relevant part: ‘‘That upon the complete sale or
liquidation of the Investment, if the total value of the entire Investment,
taking into account all prior transactions involving the Investment, exceeds
$22,104.00, then [Donate] shall receive the entire value of the Investment.
‘‘That upon the complete sale or liquidation of the Investment, if the total
value of the entire Investment, taking into account all prior transactions
involving the Investment, is less than $22,104.00, then [the plaintiff] shall
pay to [Donate] the entire value of the Investment, plus an additional amount
sufficient to provide her [with] the total amount of $22,104.00.
‘‘That it is the express intention of the parties that [the plaintiff] guarantee
to [Donate] a full 100% return on her initial $22,104.00 contribution to the
Investment and further that she shall be entitled to receive any increase in
the Investment value.’’
4
The plaintiff was represented by counsel throughout the 2009 action.
5
The interrogatories completed by the jury indicate that it found that,
prior to the liquidation of ‘‘the Investment,’’ Donate received moneys from
‘‘ ‘prior transactions involving the Investment’ equal to or greater than
$20,913.90 . . . .’’
6
In his reply brief, the plaintiff asserts that the court improperly ‘‘failed
to declare a mistrial.’’ ‘‘It is well settled that this court does not address
claims raised for the first time in a reply brief.’’ BTS, USA, Inc. v. Executive
Perspectives, LLC, 166 Conn. App. 474, 498 n.7, 142 A.3d 342, cert. denied,
323 Conn. 919, 150 A.3d 1149 (2016). Furthermore, the plaintiff has neither
identified an applicable standard of review nor provided an analysis of
relevant legal authority. ‘‘We consistently have held that [a]nalysis, rather
than mere abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly.’’ (Internal quotation marks omit-
ted.) State v. Mendez, 154 Conn. App. 271, 275 n.2, 105 A.3d 917 (2014); see
also Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn.
14, 51 n.23, 861 A.2d 473 (2004) (‘‘[i]nasmuch as the plaintiffs’ briefing of the
. . . issue constitutes an abstract assertion completely devoid of citation
to legal authority or the appropriate standard of review, we exercise our
discretion to decline to review this claim as inadequately briefed’’). We
therefore decline to review the merits of the abstract assertion contained
in the plaintiff’s reply brief. We do note, however, that such a claim implicates
‘‘the sound policy that courts are afforded wide latitude to redress potentially
harmful improprieties in order to avoid the drastic remedy of a mistrial.’’
(Internal quotation marks omitted.) State v. Rivera, 152 Conn. App. 248,
259, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102 A.3d 85 (2014); accord
Hurley v. Heart Physicians, P.C., 298 Conn. 371, 393, 3 A.3d 892 (2010)
(‘‘[i]f curative action can obviate the prejudice, the drastic remedy of a
mistrial should be avoided’’ [internal quotation marks omitted]).
7
The plaintiff subsequently filed two motions to reargue the defendant’s
motion to bifurcate, which the court denied. In this appeal, the plaintiff
alleges that the court improperly denied his second motion to reargue ‘‘with-
out reading it’’ on May 19, 2012. The record plainly indicates otherwise. At
the outset of the probable cause hearing on May 19, 2012, the plaintiff raised
the issue of his second motion to reargue, and the court denied that motion.
The following day, the plaintiff asked for permission to read his second
motion to reargue into the record ‘‘[b]ecause I don’t think you ruled on it
. . . .’’ The court at that time explained to the plaintiff that ‘‘I did look at
it. . . . What I did is that in order to confirm that I ruled on what I thought
I saw, I asked the clerk to pull both of the motions that you filed, and I
looked at both of them.’’
8
General Statutes § 52-205 provides: ‘‘In all cases, whether entered upon
the docket as jury cases or court cases, the court may order that one or
more of the issues joined be tried before the others.’’
9
Practice Book § 15-1 provides: ‘‘In all cases, whether entered upon the
docket as jury cases or court cases, the judicial authority may order that
one or more of the issues joined be tried before the others. Where the
pleadings in an action present issues both of law and of fact, the issues of
law must be tried first, unless the judicial authority otherwise directs. If
some, but not all, of the issues in a cause are put to the jury, the remaining
issue or issues shall be tried first, unless the judicial authority otherwise
directs.’’
10
In his principal appellate brief, the plaintiff states that he ‘‘makes no
claims under the United States constitution . . . .’’
11
Article first, § 19, of the Connecticut constitution, as amended by article
four of the amendments, provides: ‘‘The right of trial by jury shall remain
inviolate, the number of such jurors, which shall not be less than six, to be
established by law; but no person shall, for a capital offense, be tried by a
jury of less than twelve jurors without his consent. In all civil and criminal
actions tried by a jury, the parties shall have the right to challenge jurors
peremptorily, the number of such challenges to be established by law. The
right to question each juror individually by counsel shall be inviolate.’’
12
The Geisler factors are: ‘‘(1) the ‘textual’ approach—consideration of the
specific words in the constitution; (2) holdings and dicta of [the Connecticut
Supreme Court] and the Appellate Court; (3) federal precedent; (4) the
‘sibling’ approach—examination of other states’ decisions; (5) the ‘historical’
approach—including consideration of the historical constitutional setting
and the debates of the framers; and (6) economic and sociological, or
public policy, considerations.’’ State v. Linares, 232 Conn. 345, 379, 655
A.2d 737 (1995).
13
The plaintiff asserts that ‘‘because the tort of vexatious litigation, that
existed, and was triable under the common law in 1818, at the time of the
adoption of the Connecticut constitution, and was triable by a jury in the
[c]ommon [l]aw of the colony of Connecticut and the [c]ommon [l]aw of
England prior to 1818 . . . that [the plaintiff] is entitled, as a constitutional
right, under article first, § 19, [of the] Connecticut constitution . . . to have
a jury try the probable [cause] issue.’’
14
Both the audio recording and the transcript of the voice mail message
were admitted into evidence.
15
Despite that admission, we note that the plaintiff at the probable cause
hearing submitted certain documents that suggested that Donate received
more than $45,495 in distributions from the investment account. In an affida-
vit dated April 15, 2014, the plaintiff averred in relevant part that ‘‘[t]he
total amount withdrawn by [Donate] from the [i]nvestment account was
$87,395.90, an amount in excess of the amount I guaranteed she would
receive from the [i]nvestment.’’ Also in evidence were numerous monthly
statements from the account that were subpoenaed by the plaintiff in 2015,
and an undated document titled ‘‘Money Earned by Donate Rockwell From
Her Investment’’ that lists a series of withdrawals that Donate allegedly
made from the investment account, which also totals $87,395.90. Although
such evidence may establish that Donate’s breach of contract claim lacked
merit, those documents shed no light on the relevant probable cause inquiry
with respect to the defendant’s conduct in commencing the 2009 action.
We reiterate that the proper inquiry in a vexatious litigation action focuses
on whether a reasonable attorney familiar with Connecticut law would
believe, on the basis of the facts known by the defendant at the time that
the action was commenced, that probable cause existed to prosecute the
underlying action. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, supra, 281 Conn. 104–105.
The plaintiff produced no evidence at the probable cause hearing that the
defendant, prior to the trial in the 2009 action, was aware of any distributions
beyond the $45,495 established at the prejudgment remedy hearing. The
financial records produced at that hearing indicated that Donate had
received $45,495 in distributions from the investment account prior to liqui-
dation. Moreover, at the March 16, 2009 prejudgment remedy hearing, in
his January 26, 2010 affidavit, and in his January 26, 2010 motion for summary
judgment, the plaintiff and his counsel consistently represented that the
total amount of distributions that Donate received from the investment
account was $45,495.90. The court and the defendant were entitled to rely
on those affirmations. See State v. Smith, 289 Conn. 598, 609, 960 A.2d 993
(2008) (‘‘[i]t long has been the practice that a trial court may rely upon
certain representations made to it by attorneys, who are officers of the
court and bound to make truthful statements of fact or law to the court’’);
Lettieri v. American Savings Bank, 182 Conn. 1, 11, 437 A.2d 822 (1980)
(party ‘‘was entitled to rely on the representation’’ of opposing counsel);
Lesser v. Altnacraig Convalescent Home, Inc., 144 Conn. 488, 491–92, 133
A.2d 908 (1957) (‘‘[i]t is imperative that the court and opposing counsel be
able to rely on the statement of issues as set forth in the pleadings’’).
In addition, the record contains evidence that the defendant reached out
to the plaintiff’s counsel prior to trial in the 2009 action to verify that the
defendant had copies of all relevant financial records from the investment
account. In his March 24, 2010 e-mail to the plaintiff’s counsel, which was
admitted into evidence in the present case, the defendant questioned whether
the plaintiff had furnished copies of certain documents at the prejudgment
remedy hearing, stating: ‘‘I am concerned that I do not have all the documents
that you subpoenaed from Prudential. Are there any that you subpoenaed
that you did not put into evidence at the [prejudgment remedy] hearing?
Please advise.’’ Days later, the plaintiff filed the notice with the court, in
which he represented in relevant part that there was no dispute between
the parties that Donate ‘‘withdrew $45,495 from the account and paid capital
gains taxes in the amount of $42,528.’’ The court understandably could rely
on that factual representation, particularly because it was made in response
to a trial management order. See In re Natalie S., 325 Conn. 849, 857, 163
A.3d 1189 (2017) (because ‘‘none of the parties disputed these jurisdictional
facts or otherwise attempted to challenge the representations made by
counsel . . . the trial court was entitled to rely on these factual representa-
tions’’); Harp v. King, 266 Conn. 747, 765 n.24, 835 A.2d 953 (2003) (‘‘the
record indicates that the facts . . . are undisputed and, further, that the
parties expected the trial court to rely on the representations of counsel in
regard to those relevant facts’’). Likewise, a reasonable attorney familiar
with Connecticut law would have relied on the plaintiff’s representations
to the court in prosecuting the 2009 action.