214 Conn.App. 86
Conn. App. Ct.2022Background
- Allen (owner of 43 Maple) acquired property in 1996; plaintiffs (Kazemi & Mirzai) bought adjoining 33 Maple in 2014. Defendants (Allen and Green Tree) claimed a strip along the shared boundary by adverse possession.
- Defendants asserted they had maintained hedges, a retaining wall and pillar, a mailbox shed, and a driveway for 15+ years; plaintiffs recorded a §52-575 notice (Oct. 2015) and sued to quiet title.
- In the quiet-title trial Judge Tobin rejected the adverse-possession counterclaim, crediting surveys and other evidence over Allen’s testimony and finding insufficient proof of the claimed encroachments.
- Plaintiffs then sued for vexatious litigation (statutory and common law) and trespass, asserting defendants’ counterclaim in the prior action lacked probable cause and was pursued maliciously.
- Trial court found defendants lacked probable cause, that Allen withheld/misrepresented material facts and impeded counsel’s investigation (so advice-of-counsel defense failed), inferred malice, and awarded compensatory and treble damages; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of judgment (trespass count) | Trial court implicitly disposed of trespass (awarded demolition/survey costs), so judgment is final. | Trial court did not expressly rule on trespass, so no final judgment for appeal. | Court: implicit disposition shown by awards; judgment final; appeal proper. |
| Probable cause for adverse possession/trespass | Defendants lacked reasonable good-faith belief—surveys, photos, and witness evidence contradicted Allen. | Defendants had a viable adverse-possession claim (15+ years maintenance of hedges, wall, mailbox, driveway). | Court: no probable cause—surveys and inconsistencies undermined claims; trespass claim also lacked probable cause. |
| Directed verdict denial | (Plaintiffs) evidence supports trial court findings. | Even discrediting Allen, remaining evidence required directed verdict for defendants. | Appellate court declined to review—issue inadequately briefed by defendants. |
| Advice-of-counsel defense | Counsel were misled: Allen withheld surveys, identities of witnesses, and fabricated attestation letters; reliance not in good faith. | Allen fully disclosed material facts and reasonably relied on counsel’s advice. | Court: defense fails—no full and fair disclosure; reliance not in good faith. |
| Malice inference | Malice may be inferred from lack of probable cause and Allen’s deceptive conduct. | Lack of probable cause alone insufficient; court improperly relied on disbelief of Allen. | Court: malice can be inferred from lack of probable cause and was supported by deceptive conduct; affirmed. |
Key Cases Cited
- Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548 (Conn. 2008) (elements of common-law vexatious litigation: want of probable cause, malice, and favorable termination)
- DeLaurentis v. New Haven, 220 Conn. 225 (Conn. 1991) (definition of probable cause for vexatious litigation: bona fide belief in existence of essential facts)
- Meribear Productions, Inc. v. Frank, 328 Conn. 709 (Conn. 2018) (trial court may implicitly dispose of counts such that judgment is final)
- Verspyck v. Franco, 274 Conn. 105 (Conn. 2005) (advice-of-counsel defense elements; full and fair disclosure is a question of fact)
- Tatoian v. Tyler, 194 Conn. App. 1 (Conn. App. 2019) (probable cause may exist even where underlying claim lacks merit; protects novel legal challenges)