Rogan v. Rungee
2016 Conn. App. LEXIS 180
Conn. App. Ct.2016Background
- In Jan 2008 Rungee complained about blue lights from Rogan’s property; police issued Rogan an infraction for creating a public disturbance. Rogan sued Rungee for malicious prosecution and related torts; most counts were struck or resolved against him by summary judgment.
- Rungee filed a five‑count counterclaim alleging abuse of process, intentional infliction of emotional distress, conspiracy, and both common‑law and statutory vexatious litigation arising from Rogan’s malicious‑prosecution suit and related conduct.
- After a bench trial (liability decided July 23, 2014; damages decided Nov. 6, 2014), the trial court found for Rungee on abuse of process and both vexatious‑litigation claims, awarded $35,000 for emotional distress, trebled the award under Conn. Gen. Stat. § 52‑568(2), and added $1 compensatory plus $20,000 punitive for common‑law vexatious litigation — total $125,001.
- Rogan appealed three principal points: (1) emotional‑distress award for abuse of process lacked causation/support; (2) treble damages were erroneously applied to abuse of process rather than statutory vexatious litigation; (3) the court wrongly rejected his affirmative defense of reliance on advice of counsel for vexatious‑litigation claims.
- The trial court credited Rungee’s testimony that Rogan’s suit caused insomnia and distress, relied on an April 5, 2012 email from Rogan saying the suit “worked” to keep Rungee “at bay,” and drew an adverse inference under Conn. Gen. Stat. § 52‑216c because Rogan did not testify at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether emotional‑distress damages could be awarded for abuse of process (causation) | Rogan: no evidence that his suit caused Rungee’s distress (other health events explained distress) | Rungee: she and her husband testified the suit caused insomnia, distress; trial court credited that testimony | Court: upheld award — facts support causation and credited testimony; factual finding not clearly erroneous |
| Whether evidence supported abuse‑of‑process element that Rogan’s primary purpose was improper | Rogan: no proof he sued to harass/intimidate | Rungee: Rogan’s email showing the suit “kept [her] at bay” and his failure to testify permit adverse inference | Court: upheld liability — email reasonably shows improper primary purpose; adverse inference supports finding |
| Whether treble damages were improperly applied to abuse of process rather than statutory vexatious litigation | Rogan: trebling applies only under § 52‑568(2) and only if awarded under the statutory claim | Rungee: judgment read as whole shows trebling was awarded under statutory vexatious‑litigation count; any wording in concluding paragraph was clerical | Court: upheld trebling — reading judgment as whole shows treble awarded under statutory claim; any isolated wording was clerical error |
| Whether Rogan proved reliance on advice of counsel defense to (common‑law and statutory) vexatious litigation | Rogan: he relied on counsel’s advice (special defense) | Rungee: record shows Rogan failed to disclose material facts (strobe light history) to counsel; counsel relied only on Rogan; Rogan didn’t testify so adverse inference allowed | Court: upheld rejection of defense — evidence supports finding Rogan failed to give a full and fair statement of material facts to counsel; factual finding not clearly erroneous |
Key Cases Cited
- McGann v. Allen, 105 Conn. 177 (Conn. 1926) (emotional injury recoverable as compensatory damages for abuse of process)
- Mozzochi v. Beck, 204 Conn. 490 (Conn. 1987) (abuse of process requires primary improper purpose)
- Verspyck v. Franco, 274 Conn. 105 (Conn. 2005) (appellate review limits for factual findings; advice‑of‑counsel defense requires full and fair disclosure)
- Bhatia v. Debek, 287 Conn. 397 (Conn. 2008) (deference to trial court’s factual findings)
- DeMilo v. West Haven, 189 Conn. 671 (Conn. 1983) (treble damages allowable only when awarded under the statutory cause authorizing them)
- Rowe v. Goulet, 89 Conn. App. 836 (Conn. App. 2005) (rule against double recovery for same injury)
- Vandersluis v. Weil, 176 Conn. 353 (Conn. 1978) (elements of advice‑of‑counsel defense)
- Schaeppi v. Unifund CCR Partners, 161 Conn. App. 33 (Conn. App. 2015) (trial judge as sole arbiter of witness credibility)