Rieffel v. Johnston-Foote , 165 Conn. App. 391 ( 2016 )

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APPENDIX
BICH-HA HENRIETTE RIEFFEL
ET AL. v. PENELOPE D.
JOHNSTON-FOOTE
ET AL.*
Superior Court, Judicial District of Stamford-Norwalk
File No. CV-13-6019381 S
Memorandum filed February 19, 2015
Proceedings
Memorandum of decision on motion for summary
judgment filed by defendant Daniel W. Moger, Jr., et al.
Motion granted.
Peter M. Ryan, for the plaintiffs.
Peter E. DeMartini, for the defendant Daniel W.
Moger, Jr., et al.
Brian J. Farrell, Jr., for the named defendant et al.
Douglas R. Steinmetz, for the defendant Dan
Tredwell et al.
Kelley Franco Throop, for the defendant Diane Jones
et al.
Opinion
HON. TAGGART D. ADAMS, JUDGE TRIAL
REFEREE.
I
BACKGROUND
Attorney Daniel W. Moger, Jr., and his business entity,
Daniel W. Moger, Jr., LLC (collectively, Moger), have
moved for summary judgment dismissing claims of
common-law and statutory vexatious litigation, pursu-
ant to General Statutes § 52-568, and abuse of process,
contained in the second amended complaint of the
plaintiffs. The background of this litigation involves the
announcement by the plaintiff Mrs. Bich-Ha Henriette
Rieffel of plans to remove a shed or stanchion located
on the plaintiffs’ property containing the plaintiffs’ mail-
box and those of five neighboring residences, leaving
the appropriate mailbox on each neighbor’s driveway,
and then carrying out that plan in spite of the unanimous
objections of the neighbors. The plaintiffs and the neigh-
bors all own residences on a private road known as
Thrushwood Road, off of Indian Head Road, in the
Riverside section of Greenwich, Connecticut. The
neighbors, all of whom are also defendants in this case,
retained Moger to protect their interests. After certain
communications between Moger and the plaintiffs’
attorney, and the filing by the plaintiffs of a notice of
termination of any rights the neighbors had in the for-
mer location of their mailboxes (Moger Affidavit,
exhibit A-5, found as exhibit A to Docket Entry 157.00),
Moger recommended to his clients the institution of a
legal action against the plaintiffs pursuant to General
Statutes § 47a-43.1 The neighbors authorized the suit
against the plaintiff Mr. Marc A. Rieffel, and Mrs. Rieffel;
the unsigned summons and complaint was presented
to Judge William J. Wenzel, who signed the summons on
January 29, 2013, and that summons and the complaint,
signed by Moger, were served on the Rieffels thereafter,
and a court date of February 7, 2013, was set at the
housing session in Norwalk. On that date, Hon. Jack
L. Grogins, judge trial referee, apparently expressed
some doubts about the strength of the case, and a
motion to dismiss was filed on behalf of the Rieffels.
Another court date was set, and in the meantime Moger
consulted with his clients, and a withdrawal of the entry
and detainer case occurred on February 19, 2013.
The Rieffels commenced this action against Moger
and the neighbors who were plaintiffs in the entry and
detainer case (neighbor defendants). In addition, a fam-
ily trust and an LLC were named as defendants,
although they were not parties to the entry and detainer
case. The neighbor defendants have also moved for
summary judgment dismissing the claims against them,
and those motions are the subject of a separate memo-
randum of decision.
II
SCOPE OF REVIEW
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.
‘‘In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party.’’ (Internal quotation marks
omitted.) Appleton v. Board of Education, 254 Conn.
205, 209, 757 A.2d 1059 (2000). Summary judgment ‘‘is
appropriate only if a fair and reasonable person could
conclude only one way.’’ Miller v. United Technologies
Corp., 233 Conn. 732, 751, 660 A.2d 810 (1985). ‘‘The
party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to judgment as a matter of law . . . .’’
(Internal quotation marks omitted.) Appleton v. Board
of Education, supra, 209. ‘‘A material fact has been
defined adequately and simply as a fact which will make
a difference in the result of the case.’’ (Internal quota-
tion marks omitted.) United Oil Co. v. Urban Develop-
ment Commission, 158 Conn. 364, 379, 260 A.2d 596
(1969). The trial court, in the context of a summary
judgment motion, may not decide issues of material
fact, but only determine whether such genuine issues
exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d
1031 (1988).
‘‘Although the party seeking summary judgment has
the burden of showing the nonexistence of any material
fact [question] . . . a party opposing summary judg-
ment must substantiate its adverse claim by showing
that there is a genuine issue of material fact together
with the evidence disclosing the existence of such an
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue.’’ (Internal quotation marks omitted.) Maffucci v.
Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707
A.2d 15 (1998). ‘‘[T]he party opposing such a motion
must provide an evidentiary foundation to demonstrate
the existence of a genuine issue of material fact.’’ (Inter-
nal quotation marks omitted.) Appleton v. Board of
Education, supra, 254 Conn. 209; see generally Sic v.
Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012); Mott v.
Wal-Mart Stores East, LP, 139 Conn. App. 618, 624–25,
57 A.3d 391 (2012).
III
DISCUSSION
A
Vexatious Litigation
A vexatious litigation claim may be brought under
the common law and pursuant to statute. Section 52-
568 provides that a person who ‘‘commences and prose-
cutes’’ a civil action ‘‘without probable cause’’ shall be
liable for double damages, and one who does so without
probable cause and ‘‘with a malicious intent’’ shall be
liable for treble damages. Under the common law, the
claim requires lack of probable cause and malice. The
main requirement for a vexatious suit claim, whether
statutory or otherwise, is lack of probable cause.
Whether the facts establish the existence of probable
cause or otherwise, is a question of law. DeLaurentis
v. New Haven, 220 Conn. 225, 252, 597 A.2d 807 (1991).
When the facts themselves are disputed, a court may
submit the question of probable cause to the jury as a
mixed question of fact and law. Id., 252–53.
Probable cause requires ‘‘a bona fide belief in the
existence of the facts essential under the law for the
action and such as would warrant a man of ordinary
caution, prudence and judgment, under the circum-
stances, in entertaining it.’’ (Internal quotation marks
omitted.) Falls Church Group, Ltd. v. Tyler, Cooper &
Alcorn, LLP, 281 Conn. 84, 102, 912 A.2d 1019 (2007),
quoting Wall v. Toomey, 52 Conn. 35, 36 (1884). Proba-
ble cause may be present even where a suit lacks merit;
even when a suit fails, the plaintiff in a vexatious litiga-
tion case must separately show lack of probable cause.
Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, supra, 103, citing and quoting from Roberts v.
Sentry Life Ins. Co., 76 Cal. App. 4th 375, 382, 90 Cal.
Rptr. 2d 408 (1999), review denied, 2000 Cal. LEXIS
1059 (February 16, 2000). The rationale for the relatively
low standard is to not discourage the willingness of
lawyers to challenge precedent and pursue novel theo-
ries. Falls Church Group, Ltd. v. Tyler, Cooper & Alc-
orn, LLP, supra, 104.
It is not disputed that Moger relied most heavily on
two Appellate Court cases in concluding there were
grounds for the entry and detainer claim against the
Rieffels. In Evans v. Weissberg, 87 Conn. App. 180, 866
A.2d 667 (2005), the Appellate Court affirmed a Superior
Court judgment in favor of a plaintiff who had brought
an entry and detainer action against her neighbors, who
had erected a fence on a six foot strip of land, the
ownership of which was disputed. The neighbors’ fence
barred the plaintiff’s access to an area definitely on her
property containing a propane tank, an outdoor shower
with a privacy fence and some plants. The trial court
found that the plaintiff had previously exercised domin-
ion and control over the six foot strip, and the neigh-
bors’ fence interfered with the plaintiff’s access to the
area that she indisputably owned containing the pro-
pane tank and shower. Moger asserts that Evans sup-
ported an entry and detainer claim even when the
ownership of the land is disputed. Moger Affidavit, ¶ 13,
and exhibit A-II, found at Docket Entry 157.00, exhibit A.
In an earlier case, Bowman v. Williams, 5 Conn. App.
235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn.
366, 516 A.2d 1351 (1986), the Appellate Court affirmed
a trial court decision in favor of the plaintiff’s entry and
detainer claim with respect to the defendants’ removal
of the plaintiff’s belongings from office space he had
leased from the defendants, but reversed the judgment
in favor of the plaintiff in connection with the defen-
dants’ blocking of a boat slip also leased from the defen-
dants. The Appellate Court held there was error when
the trial court found the boat slip was ‘‘an appurte-
nance’’ of the office space. The Appellate Court said the
plaintiff had rented the boat slip for a boat chartering
service while subsequently leasing the office space for
a marine brokerage business and held: ‘‘Since the boat
slip did not pass as an incident to the office space, nor
does it appear that it was essential to or reasonably
necessary to the full beneficial use of the office and
storage space, it cannot be deemed an appurtenance
of the office.’’ Id., 239–40. Moger concluded that Bow-
man’s discussion of appurtenances supported his cli-
ents’ claim with respect to their mailboxes. Moger
Affidavit, ¶ 14.
In opposing summary judgment, the plaintiffs con-
tend that a mailbox is not an appurtenance because it
is not necessary to the full beneficial use of a dwelling,
pointing out that there is no law requiring a single-
family residence to have a mailbox. See Plaintiffs’ Mem-
orandum, p. 18 (found at Docket Entries 217.00, 218.00
and 219.00). They also argue that the neighbor defen-
dants’ mailboxes might be located on their own proper-
ties rather than the Rieffels’ property. Plaintiffs’
Memorandum, pp. 18–19.
In assessing whether probable cause existed for the
institution of the subject entry and detainer suit, this
court does not have to decide the merits of a claim
of appurtenance. Rather, it is obligated to determine
whether there were facts essential under the law for
an attorney ‘‘to entertain’’ the claim. This court finds
there existed probable cause for the entry and detainer
suit Mailboxes are not a luxury. They are related and
incident to the use and enjoyment of a personal resi-
dence, and the connection between a mailbox and the
residence is ‘‘direct and apparent.’’ Graham v. Walker,
78 Conn. 130, 136, 61 A. 98 (1905). Indeed, it is not
often, if ever, that one sees a mailbox that is not related
to a residence, business or other specific address. As
the Bowman court recognized, it is not necessary, in the
context of property law, that something be ‘‘annexed,
joined, or attached to be appurtenant.’’ (Internal quota-
tion marks omitted.) Bowman v. Williams, supra, 5
Conn. App. 239, citing Waterbury Lumber & Coal Co.
v. Asterchinsky, 87 Conn. 316, 320, 87 A. 739 (1913). This
court’s reading of Bowman persuades it to consider that
the very facts and rationale that led the Appellate Court
to reverse the judgment for the plaintiff with respect
to the boat slip, provide a reasonable basis for Moger
to consider the entry and detainer suit against the plain-
tiffs. In an entry and detainer action the plaintiff must
show, not necessarily ownership or legal right to prop-
erty, but actual physical control or possession. Fleming
v. Bridgeport, 284 Conn. 502, 514, 935 A.2d 126 (2007).
An entry and detainer action is commenced by a pos-
sessor who has been dispossessed by an owner without
benefit of proper legal proceedings. Zapata v. Mora,
121 Conn. App. 790, 793, 996 A.2d 1203, cert. denied,
298 Conn. 905, 3 A.3d 74 (2010). It seeks to discourage
an owner from resorting to self-help tactics so peace
and good order may be maintained. Id. There is no
material fact at issue that Moger’s clients possessed
and controlled their individual mailboxes at the covered
shed or stanchion on a continuous basis for an extended
period of time, until the Rieffels removed the shed and
moved the mailboxes to the neighbor defendants’ indi-
vidual driveways.
Therefore, the court finds that Moger had probable
cause to recommend to his clients and to commence
the entry and detainer suit against the plaintiffs in this
case. The existence of probable cause eliminates the
major necessary predicate for the various vexatious
suit claims asserted by the plaintiffs in the twenty-first
through twenty-third counts of the plaintiffs’ com-
plaint.2
B
Abuse of Process
The plaintiffs’ twenty-fourth count alleges that Mog-
er’s conduct constituted abuse of process in that the
entry and detainer lawsuit was instituted for a purpose
for which such a suit was not designed. Specifically, it
is alleged that Moger attempted to settle or quiet title,
which is not the purpose of § 47a-43. To settle or quiet
title, it is alleged, may only be accomplished through
an action pursuant to General Statutes § 47-31. It is
further alleged that what Moger sought to do could only
‘‘be accomplished’’ by a declaratory judgment action
pursuant to General Statutes § 52-29 and Practice Book
§ 17-54.
‘‘[T]he 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 . . . .’’ (Emphasis in original; internal quota-
tion marks omitted.) Larobina v. McDonald, 274 Conn.
394, 403, 876 A.2d 522 (2005), citing 3 Restatement (Sec-
ond), Torts § 682 (1977). The court is not persuaded
that Moger or the neighbor defendants ever had the
intent of quieting title. There is no such evidence in the
record that they sought any legal ownership rights to
any part of the Rieffels’ property. What was sought was
retention of their possessory rights to the mailboxes
on the Rieffels’ property. Therefore, the assertion that
§ 47-31 is the proper action because the Rieffels say it
is a statute ‘‘allowing a landowner who is put out of
possession to maintain an action asserting his title’’
(Plaintiffs’ Memorandum, p. 46) is simply incorrect.
In Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171
(1987), the Connecticut Supreme Court held that an
attorney’s duty not to pursue ‘‘utterly groundless’’ litiga-
tion does not give rise to a viable claim for abuse of
process unless there was specific misconduct intended
to cause ‘‘specific injury outside of the normal contem-
plation of private litigation.’’ Id., 497. No such specific
injury has even been alleged, and there is no evidentiary
basis for its existence.
The court finds that a suit under the entry and
detainer statute against the plaintiffs was an appro-
priate use of the statute’s remedies in the circumstances
facing Moger and his clients. This is not to say the suit
would have been successful. However, it is to say the
suit was not an abuse of process.
IV
CONCLUSION
Moger’s motion for summary judgment is granted,
and the plaintiffs’ claims in their twenty-first through
twenty-fourth counts are dismissed.
* Affirmed. Rieffel v. Johnston-Foote, 165 Conn. App. 391, A.3d
(2016).
1
General Statutes § 47a-43 reads in full: ‘‘(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 out of posses-
sion 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, directed to some proper officer, to notify him to appear at a specified
time and place, within eight days from the exhibition of such complaint, in
the superior court for the judicial district wherein the injury complained of
was done, to answer to the matters contained in the complaint.
‘‘(c) Such summons shall be served upon the party complained of six
days inclusive before the day appointed for trial.
‘‘(d) If, after service of such summons, the party complained of does not
appear and defend, the judge shall proceed in the same manner as if he
were present.’’
2
The above finding makes it unnecessary for the court to rule on Moger’s
other arguments in favor of dismissal. These are: (1) he did not ‘‘commence’’
the suit because Judge Wenzel issued the summons pursuant to § 47a-43
(b) and (2) he did not ‘‘prosecute’’ the suit, but withdrew it shortly after
commencement. The first argument seems strained not only because the
statute requires the judge to issue the summons ‘‘forthwith,’’ intimating a
certain lack of discretion, but also because Moger signed the complaint and
arranged for service on the Rieffels. Moger Affidavit, ¶ 20. The second
argument might have some merit, as the law requires both initiation and
prosecution. Nevertheless, almost three weeks passed from initiation and
withdrawal, so, at best for Moger, it is a close question.