200 Conn.App. 63
Conn. App. Ct.2020Background
- Paul Ferri was sole beneficiary of a 1983 trust; during his pending divorce trustees decanted the 1983 trust into a 2011 trust that severely limited his withdrawal rights.
- Trustees sued for a declaratory judgment that the decanting was valid; Nancy Powell‑Ferri (the ex‑spouse) filed a cross complaint (via the Parrino law firm) alleging Ferri breached a duty to preserve marital assets by not preventing or undoing the decanting.
- The trial court granted summary judgment for Ferri on that cross complaint; the Connecticut Supreme Court affirmed, declining to recognize a new cause of action requiring affirmative recovery efforts by a spouse.
- Ferri then sued Powell‑Ferri and the Parrino defendants for vexatious litigation/statutory malicious prosecution under Conn. Gen. Stat. § 52‑568, claiming lack of probable cause, violation of Rule 3.1, and malice.
- The trial court granted summary judgment to the Parrino defendants, finding (as a matter of law) they had probable cause to file and pursue the cross complaint and appeal; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for attorney probable cause | Court should ask whether the attorney in fact had probable cause (subjective/actual), not whether a reasonable attorney could believe so | Objective standard: whether a reasonable attorney familiar with CT law could believe probable cause existed | Court applied and affirmed the objective reasonable‑attorney standard as correct |
| Whether Parrino had probable cause to bring/prosecute cross complaint | Lacked probable cause: no research/memos, ignored Gershman, theory was meritless/frivolous | Had an objectively reasonable basis: factual record supported pursuing remedies (contempt, request to consider assets, novel theory to extend law) | Probable cause existed as a matter of law; summary judgment for defendants affirmed |
| Whether Parrino violated Rule 3.1 (frivolous litigation) | Rule 3.1 was breached by filing a baseless cross complaint | Filings were good‑faith arguments for extension/modification of law; Rule 3.1 does not create private cause | No separate relief required; court’s probable cause ruling makes this claim unnecessary to decide |
| Malice / higher damages element | Parrino acted with malice in prosecuting claim | No malice; actions pursued in client’s interest with legal basis | Court did not need to resolve malice because probable cause was dispositive; judgment for defendants stands |
Key Cases Cited
- Ferri v. Powell‑Ferri, 317 Conn. 223 (Conn. 2015) (Supreme Court declined to recognize a new duty requiring spouses to take affirmative steps to recover marital assets)
- Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84 (Conn. 2007) (sets objective reasonable‑attorney standard for vexatious litigation claims against attorneys)
- Bernhard‑Thomas Bldg. Sys., LLC v. Dunican, 286 Conn. 548 (Conn. 2008) (probable cause defined as knowledge of facts sufficient to justify reasonable belief in grounds for suit)
- Tatoian v. Tyler, 194 Conn. App. 1 (Conn. App. 2019) (applies Falls Church standard and observes meritless suits can still have probable cause)
- ATC Partnership v. Coats N. Am. Consol., Inc., 284 Conn. 537 (Conn. 2007) (factors when considering recognition of new causes of action)
- Gershman v. Gershman, 286 Conn. 341 (Conn. 2008) (discussion of dissipation doctrine in marital dissolution context)