204 Conn.App. 833
Conn. App. Ct.2021Background
- Robert Rousseau and Preferred Display, Inc. were sued by Rousseau’s then-wife, Madeleine Perricone, in a 2010 dissolution action that included allegations of financial misconduct (some claims alleged against Rousseau and Preferred Display).
- Perricone later filed a separate civil action (2011) asserting essentially the same financial-misconduct claims against Rousseau, Preferred Display, and various third parties; attorneys Weinstein and Dean represented Perricone in that civil action.
- The dissolution court (2012) found no financial misconduct by Rousseau or Preferred Display and ordered Perricone to release and indemnify them against the civil action; Perricone appealed and the Appellate Court affirmed (Rousseau v. Perricone).
- While the dissolution appeal was pending, Weinstein moved to stay the civil action rather than withdraw it; after the appellate affirmance Weinstein withdrew the civil action.
- Rousseau and Preferred Display then sued Perricone and her attorneys for vexatious litigation, alleging the civil action duplicated the dissolution claims and therefore lacked probable cause; the trial court granted summary judgment for Weinstein and Dean.
- On appeal, the Connecticut Appellate Court affirmed, holding (1) the prior pending action doctrine does not automatically establish lack of probable cause for vexatious litigation, and (2) the defendants had probable cause to continue the civil action (stay pending appeal was objectively reasonable).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applicability of the prior pending action doctrine establishes lack of probable cause for a vexatious-litigation claim | The pendency of the dissolution action made the civil action vexatious; a bright-line rule should treat prior pending actions as establishing want of probable cause | Prior pending action is a dismissal doctrine for judicial efficiency and cannot be used to automatically prove lack of probable cause | Court: Declined to expand doctrine; applicability of prior pending action does not by itself establish lack of probable cause |
| Whether defendants had probable cause to continue the civil action after the dissolution decision | The dissolution decision resolved the merits against Perricone and thus destroyed probable cause to continue | A reasonable attorney could objectively seek a stay and await appeal because the indemnity order’s effect on third‑party claims was uncertain | Court: Defendants had probable cause to continue (staying the case pending appeal was objectively reasonable) |
| Whether defendants had probable cause to commence the civil action originally | The civil action duplicated the dissolution claims and therefore lacked probable cause from the start | Weinstein and Dean investigated facts and reasonably believed claims were supported before filing | Court: Issue was not briefed on appeal; appellate court presumed probable cause to commence and declined to review it |
| Whether the trial court applied the correct probable-cause standard | Trial court injected subjective language ("not obviously wrong") and applied wrong test | Any imprecision was harmless because de novo review shows probable cause existed | Court: Even if standard language was imperfect, de novo review confirms probable cause; summary judgment affirmed |
Key Cases Cited
- A1Z7, LLC v. Dombek, 188 Conn. App. 714 (Conn. App. 2019) (explains prior pending action doctrine and its purposes)
- Bayer v. Showmotion, Inc., 292 Conn. 381 (Conn. 2009) (prior pending action doctrine is not of unbending rigor; court may exercise discretion)
- Kleinman v. Chapnick, 140 Conn. App. 500 (Conn. App. 2013) (framework for exactly alike / virtually alike analysis and trial court discretion)
- Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84 (Conn. 2007) (probable-cause standard for attorneys in vexatious‑litigation suits)
- Rozbicki v. Sconyers, 198 Conn. App. 767 (Conn. App. 2020) (discussion of probable cause standard and allowance for arguable claims)
- Schaeppi v. Unifund CCR Partners, 161 Conn. App. 33 (Conn. App. 2015) (probable cause is a question of law; adverse rulings do not necessarily defeat probable cause)
- Rousseau v. Perricone, 148 Conn. App. 837 (Conn. App. 2014) (Appellate Court affirmed dissolution court’s no‑misconduct finding and indemnification order)