197 Conn.App. 447
Conn. App. Ct.2020Background
- The Keatings sued Brenda Greene on multiple counts including prescriptive easement; Greene counterclaimed for misuse of an easement and trespass. After trial, Greene prevailed on the Keatings’ claims; the Keatings prevailed on Greene’s trespass counterclaim.
- Greene sued the defendant law firm (Rucci, Burnham, Carta, Carello & Reilly, LLP) and the Keatings under Connecticut’s vexatious litigation statute, § 52-568, asserting each count in the underlying complaint was prosecuted without probable cause.
- The trial court found the law firm initially had probable cause for the prescriptive easement claim but lost probable cause in October 2008 after disclosures showing the widening of the right-of-way was permissive. The court concluded continued prosecution after that date violated § 52-568.
- The court found no malice (so only double damages, not treble) but required Greene to prove the portion of her attorney’s fees attributable solely to defending the prescriptive easement claim after October 2008. Greene sought only attorney’s fees as damages.
- Greene submitted counsel’s affidavit and billing exhibits claiming $460,878.08 (double of $230,439.04). The trial court concluded she failed to apportion fees to the vexatious claim and entered judgment for the law firm. Greene appealed; the law firm’s cross-appeal was dismissed for lack of standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Greene proved damages (attorney’s fees) attributable to the vexatious prescriptive-easement claim after Oct. 2008 | Greene argued her submitted billing and affidavit showed fees were intertwined and she should recover under a common-nucleus approach | Defendant said Greene failed to isolate fees attributable solely to the vexatious claim and her billing included work unrelated or reciprocal to her counterclaim | Court held Greene failed to prove, to reasonable certainty, the portion of fees caused solely by the vexatious claim and judgment for defendant affirmed |
| Whether the “common nucleus” apportionment test (Total Recycling) applies in vexatious litigation fee awards | Greene urged application of the common-nucleus test because claims arose from the same facts | Defendant argued the common-nucleus rule is inappropriate where plaintiff prevailed on only nonvexatious claims and incurred no additional cost from the vexatious count | Court held common-nucleus test inapplicable here; in vexatious cases plaintiff must show additional expense caused by the vexatious claim |
| Date defendant lost probable cause (Oct. 2008 v. 2006) | Greene argued probable cause was lost earlier (2006 interview) | Defendant relied on the October 2008 disclosure as the triggering loss of probable cause | Court affirmed October 2008 as the date probable cause was lost; no evidence defendant knew the permissive nature in 2006 |
| Law firm’s cross-appeal contesting trial finding that Greene established one vexatious count | N/A (cross-appellant law firm contended error in trial finding) | Greene had judgment entered against law firm on damages issue so law firm lacked standing to appeal | Cross-appeal dismissed for lack of standing |
Key Cases Cited
- Total Recycling Servs. of Conn., Inc. v. Conn. Oil Recycling Servs., LLC, 308 Conn. 312 (Conn. 2013) (common-nucleus rule permits full fee recovery when apportionment is impracticable because claims arise from same factual nucleus)
- DeLaurentis v. New Haven, 220 Conn. 225 (Conn. 1991) (plaintiff in vexatious litigation must prove damages attributable to the vexatious charges)
- Weiss v. Smulders, 313 Conn. 227 (Conn. 2014) (damages must be proven with reasonable certainty; mathematical exactitude not required)
- Bernhard-Thomas Bldg. Sys., LLC v. Dunican, 286 Conn. 548 (Conn. 2008) (purpose of vexatious litigation action: compensation for damage and reimbursement of defense costs)
- Heller v. D.W. Fish Realty Co., 93 Conn. App. 727 (Conn. App. 2006) (apportionment not required when claims depend on same facts and fee recovery is contractually authorized)