DocketNumber: No. CV 93 053 08 31
Citation Numbers: 1994 Conn. Super. Ct. 7115
Judges: WAGNER, J.
Filed Date: 7/12/1994
Status: Non-Precedential
Modified Date: 7/5/2016
That lawsuit was started by defendant law firm to collect a fee allegedly owned by the Plaintiff law firm in this action. Summary judgment was rendered in favor of the Plaintiff on September 13, 1993.
This action dated October 13, 1993, commenced by service on the defendant on October 19, 1993. On November 4, defendant filed an appeal from the summary judgment in the collection action.
Although defendants' motion dated March 28, 1994, was not filed "within thirty days of the filing of an appearance" as required by Practice Book § 142, plaintiff has not asserted this claim as a basis for denying the motion.
Defendant claims, essentially, that this vexatious action is premature because the prior action is on appeal and not terminated.
We find no authority to require the appeal period to be ended in the underlying action before a vexatious litigation action may be instituted. A motion to dismiss attacks the subject matter jurisdiction of the court and the "prior pending action" rule does not seem to implicate such jurisdiction. Halprin v. Board of Education,
Our Supreme Court has held that "a claim for vexatious litigation requires a plaintiff to allege that the previous lawsuit was initiated maliciously, without probable cause, and terminated in the plaintiff's favor." Blake v. Levy,
A plaintiff in a vexatious litigation suit has not been required to "prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long a the proceeding has terminated without consideration."
Knickerbocker v. Village Apartments Prop. ,
It is clear that plaintiff filed this vexatious litigation action before the appeal period for the court's decision in the collection case expired. It is also clear that defendant did not file an appeal until after plaintiff instituted this vexatious litigation claim during the appeal period.
It is not necessary for this court to determine whether the collection case "terminated in the plaintiff's favor" within the meaning of Blake v. Levy, supra, because we conclude that under the circumstances of this case, this court has subject matter jurisdiction.
Motion to dismiss denied.