Opinion
This appeal involves an action for vexatious litigation brought pursuant to General Statutes § 52-568
The hospital appeals from the judgment of the court, Roche, J., denying its motion for summary judgment as to liability only and granting the cross motion for summary judgment in favor of Creed. The hospital claims that the court improperly denied its motion for summary judgment on liability and granted Creed’s cross motion for summary judgment in that (1) the court applied an improper test to determine probable cause, (2) Creed was collaterally estopped from denying the lack of probable cause, (3) an attorney who files an action without probable cause to believe that he has complied with the opinion letter provision of § 52-190a (a) or with the statute of limitations is liable for vexatious litigation, and (4) even if collateral estoppel is inapplicable, the facts known to Creed demonstrate that he lacked probable cause to bring an action against the hospital. We affirm the judgment as to the first action and reverse as to the second action.
The hospital brought this action for vexatious litigation in 2009. Ultimately, the parties filed cross motions for summary judgment, thе hospital for liability only and Creed for complete summary judgment. The court denied the hospital’s motion and granted Creed’s motion. The hospital’s appeal followed.
The procedural history is quite complex. Much, but not all, of that history is explained by our Supreme Court in the appeal of the underlying medical malpractice action. See Plante v. Charlotte Hungerford Hospital,
Creed initiated a second malpractice action against the hospital defendants on December 29, 2006, more than two years and six months after the decedent’s death. Creed claimed that the statute of limitations was extended by the one year provision in General Statutes § 52-592,
On April 16, 2009, Judge Pickard issued a memorandum of decision in which he held that the first malpractice action had not been dismissed due to a “matter of form” within the meaning of § 52-592 and rendered judgment in favor of the hospital defendants. See Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-07-5001512-S (April 16, 2009) (
The Plantes in their various capacities filed consolidated appeals with the Supreme Court frоm the ensuing dismissals by the trial court of their medical malpractice claims against the various defendants, resulting in the Supreme Court’s opinion in Plante v. Charlotte Hungerford Hospital, supra,
Thereafter, the hospital brought this action for vexatious litigation pursuant to § 52-568.
In their cross motions for summary judgment, the parties presented opposing claims. The hospital claimed that: (1) Creed is collaterally estopped from denying that he lacked probable cause to bring the two medical malpractice actions because Judge Pickard found that his conduct in failing to attach an opinion letter from a similar health care provider was blatant and egregious; (2) even if collateral estoppel does not apply, the undisputed facts demonstrate that Creed lacked probable cause to commence and prosecute the malpractice actions; and (3) the law firm defendant is vicariously liable for Creed’s tortious conduct.
The court first rejected the hospital’s collateral estop-pel claim. The court concluded that the issue of probable cause was not fully and fairly litigated in either the first or second malpractice actions, and, therefore, Creed was not collaterally estopped from asserting that he had probable cause to bring both actions.
With respect to the issue of probable cause, the court initially addressed the first action that was dismissed on the ground that the plaintiffs had failed to attach to the complaint the opinion letter of a similar health care professional as required by § 52-190a (a). The court rejected the hospital’s argument that “the faсts known to Creed demonstrate that an objectively reasonable attorney would not have believed that Williamson was a similar health provider” within the meaning of § 52-190a (a), and that “[i]n asserting that the court can find a lack of probable cause based solely on the insufficiency of the written opinion letter, [the hospital] defines the scope of the court’s inquiry too narrowly.” Instead, relying on Creed’s undisputed affidavit, the court noted the following facts disclosed by Creed’s investigation prior to filing the action.
At least two years prior to this incident, the decedent had been in treatment at the behavioral health center of the hospital. Sixteen months prior to this incident, she had received prescriptions for numerous medications, among them sedatives, sleeping pills, antianxiety drugs and psychotropic drugs, including Trazodone. The decedent’s medical records indicated that she had trouble complying with her prescription regime. At the time of her eventual release during the April, 2004 incident, her prescriptions, including Trazodone, were increased. The warning signs associated with taking Trazodone include suicide with feelings of hopelessness, loss of appetite, withdrawing from family and friends and a change in sleeping habits.
The hospital records revealed that at the time of the decedent’s visit to the hospital on April 30, 2004, Stutz diagnosed her as psychotic, depressive with high anxiety and paranoid with psychosis developed to a point where the decedent was losing contact with reality. Prior to her release, the decedent asked to be admitted but was denied admission. She refused to sign the discharge form, which reveals an entry stating, “patient refuses to sign.” Later, someone crossed out this entry, and her name was written next to it. Upon her release from the hospital, her treatment providers told her to call for an appointment with the bеhavioral health center in two days and to see Stutz on May 4, 2004. On May 3,2004, the decedent committed suicide by ingesting the drugs prescribed to her by the hospital. She was found at home with empty bottles of the prescribed medications and a suicide note. The note stated: “I love my Children more than anything in the world. I don’t want to go on without them. I told the worker at the hospital this but they said there wasn’t any bed and discharged me. That’s why I did not want to sign the discharge papers.”
The court in the present action, drawing on this court’s decisions in Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
With respect to the second action, which had been brought pursuant to § 52-592 (a), the accidental failure of suit statute,
The court in the present case applied this standard, and concluded that it could not say that no reasonable attorney would have brought the second action pursuant to the аccidental failure of suit statute. This conclusion was based on the following factors. The first action was dismissed without a written decision and it was not until after the bifurcated trial in the second action that the court determined that Creed’s conduct was blatant and egregious. At the time he instituted the second action, no court had expounded on the nature of the first dismissal beyond the ground asserted in the hospital’s motion to dismiss, namely, the failure to attach a written opinion letter. Further, the trial court noted that our Supreme Court in Plante v. Charlotte Hungerford Hospital, supra,
Thus, the court, having concluded that Creed had probable cause to institute both actions, further concluded that the hospital could not establish the essential element of its vexatious litigation action against Creed, namely, the lack of probable cause. Accordingly, it denied the hospital’s motion for summary judgment as to liability and granted Creed’s motion for summary judgment in full.
“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Koutsoukos v. Toyota Motor Sales, U.S.A., Inc.,
I
THE STANDARD FOR PROBABLE CAUSE
The hospital first claims that the denial of its motion for summary judgment was improper because the court applied an improper standard in evaluating whether Creed had probable cause to bring the actions against it. We agree, although we also conclude, for the reasons stated herein, that this conclusion is not determinative of this appeal.
In Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra,
Our Supreme Court, however, had granted certification to appeal in Falls Church I, and in its ensuing opinion rejected the restrictive standard articulated by this court. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
Our reading of the trial court’s memorandum of decision convinces us that, in deciding whether there was probable cause for Creed to institute the two malpractice actions, the trial court applied the more restrictive standard articulated by this court in Falls Church I, instead of the traditional standard reaffirmed by our Supreme Court in Falls Church II. With respect to the first action, the court quoted extensively from Falls Church I, and then, in reaching its conclusion, stated: “This court cannot say that the facts and evidence available to the defendants at the time the first action was instituted were
It is true, as the hospital argues, that at some places in its memorandum of decision the court stated the traditional standard in its general discussions of probable cause, and that we should read an ambiguous memorandum of decision to support the court’s decision rather than to undermine it. See Zabaneh v. Dan Beard Associates, LLC,
This conclusion, however, does not end our inquiry. Whether there is probable cause in a given case is a question of law, upon which our scope of review is plenary. See Byrne v. Burke,
n
COLLATERAL ESTOPPEL
The hospital claims that Judge Pickard’s finding in the underlying litigation that the “plaintiffs’ lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the matter of form’ provision of § 52-592,” with which the Supreme Court agreed; see Plante v. Charlotte Hungerford Hospital, supra,
A
Privity
It is black letter law that, in order for a prior determination to be barred by the doctrine of collateral estop-pel, or issue preclusion, the party seeking to invoke the doctrine must establish that the issue or fact sought to be foreclosed was “actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim.” (Emphasis added; internal quotation marks omitted.) Coyle Crete, LLC v. Nevins,
“Our Supreme Court has explained that [p]rivity is a difficult concept to define precisely. . . . There is no prevailing definition of privity to be followed automatically
This court recently considered two cases involving whether an attorney was in privity with her client for the purposes of collateral estoppel. In Coyle Crete, LLC, this court declined to apply the doctrine of privity to an attorney because she had not established the requisite commonality of interest between her conduct and that of her client in the prior action in question. Id., 561-62. By contrast, in Somers v. Chan, supra,
“The commentary further explains that control, as that term is used in § 39, refers to the ability to exercise effective choice as to the legal theories and proofs to be advanced, as well as control over the opportunity to obtain review.” (Citation omitted; internal quotation marks omitted.) Somers v. Chan, supra, 110 Conn. App. 538-39. This court then cited and discussed with approval three cases in which courts, applying these principles, recognized that attorneys can be held in privity with their clients for purposes of collateral estop-pel. See Phelps v. Hamilton,
On the basis of these principles, we conclude that Creed was in privity with his clients with respect to the relevant aspects of both malpractice cases. First, it is obvious that he shared a commonality of interest with the clients. It was in both their interests—clients and attorney—to present legally sufficient and correct pleadings and documents to the court to properly institute both such actions. Second, it is equally obvious that Creed, as the attorney, was in control of the precise pleadings and documents to present to the court to
B
First Action
We turn next, therefore, to the question of whether that finding collaterally estops Creed with respect to the first action. We conclude that it does not.
The hospital contends that Judge Pickard’s finding precludes Creed from relitigating, in the present action, the question of whether he had probable cause to bring the first action. In other words, the hospital contends that Creed’s blatant and egregious lack of diligence in selecting an appropriate person to review the case for malpractice, as § 52-190a (a) requires; see footnote 3 of this opinion; necessarily means that he lacked probable cause to bring the first action. Thus, the hospital argues that an opinion letter that meets the requirements of § 52-190a (a) is an essential element or part of the medical malpractice action provided by that section. We disagree.
“ [C] ollateral estoppel precludes a party from relitigat-ing issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. ... To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case. . . . Those requirements serve to ensure fairness, which is a crowning consideration in collateral estoppel cases. (Citation omitted; internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, supra,
Contrary to the hospital’s contention, the determination that the certificate of good faith required by § 52-190a (a), and supplied by Creed, was insufficient—even blatantly and egregiously so—does not equate to a determination that Creed lacked probable cause to bring the first action. The language and structure of the statute itself makes clear that the certificate does not occupy the field, so to speak, of the reasonable inquiry mandated by the statute. See General Stаtutes § 52-190a (a). To put it another way, as Creed does, under the language and structure of the statute, the certificate is not the end-all and be-all of the issue of probable cause to bring the first action.
The statute puts an obligation of precomplaint reasonable inquiry upon the attorney. It provides that no medical malpractice action shall be filed “unless the attorney . . . filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there
Consequently, this statutory language and structure make clear that the substantive obligation on the attorney to make а reasonable precomplaint inquiry and the subsequent obligation on him or her to file the written opinion of a similar health care provider are two distinct obligations that serve separate, although related, functions. The first is the substantive obligation to make a reasonable inquiry to determine that there are grounds for a good faith belief in the existence of a medical malpractice action. The second is the procedural obligation that the attorney secure and file a written opinion letter, which serves merely as evidence of “the existence of such good faith . . . .” General Statutes § 52-190a (a). But the statute also makes clear that the procedural obligation does not, in and of itself, determine the question of good faith or probable cause, because it specifically provides that the court may consider other factors in addition to the written opinion.
Furthermore, our Supreme Court recently clarified the procedural function and scope of the obligatiоn to file the written opinion of a similar health care provider. It is true, as Creed argues, that § 52-190a (c) provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.” In Morgan v. Hartford Hospital,
We conclude, therefore, that Judge Pickard’s finding of blatant and egregious conduct did not bar Creed from litigating in the present action the question of whether he had probable cause to bring the first malpractice action against the hospital.
C
Second Action
The second malpractice action was brought pursuant to § 52-592 (a), the accidental failure of suit statute.
Because we already have concluded that Creed was in privity with the Plantes in the second action, we also conclude that the doctrine of collateral estoppel bars him from relitigating whether he had probable cause to bring the second action. If he was legally barred from bringing the second action because of his blatant and egregious conduct in the first action, it is, therefore, obvious that he could not have had probable cause to bring the second action.
Putting this issue in terms of probable cause, moreover, leads to the same conclusion. As our Supreme Court has stated: “[T]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Internal quotation marks omitted.) Falls Church II, supra,
Creed argues that in order for collateral estoppel to apply, there must have been an explicit finding by the previous court that he lacked probable cause and without such a finding, the issue cannot be considered to have been fully and fairly litigated. We disagree. We reiterate that for the purposes of collateral estoppel, “[a]n issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.” (Internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, supra,
Creed characterizes the probable cause inquiry before the court as whether “on the basis of the facts known by the [attorney], a reаsonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti,
Thus, we disagree with the court in the present action and Creed that he had probable cause to bring the second action because it was not until the conclusion of the bifurcated trial before Judge Pickard
The judgment is reversed only as to the granting of the defendant’s motion for summary judgment as to the issue of probable cause in the second action and the case is remanded with direction to grant the plaintiffs motion for summary judgment as to the second action and for further proceedings according to law. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”
The underlying litigation, upon which the present action for vexatious litigation is based, involvеd two medical malpractice claims against the hospital commenced by Attorney Kevin E. Creed on behalf of William Plante, Sr. Creed’s law firm is being sued in the present action under a theory of vicarious liability for Creed’s conduct. Prior to the judgment at issue in this appeal, the trial court granted the hospital’s motion to enter a default against Plante, who also is a defendant in this action, for failure to plead. Because the trial court treated the case as one principally between the hospital and Creed, with the law firm defendant merely vicariously liable for Creed’s conduct, and because the parties have briefed and argued the case on the same basis, we do so as well. Therefore, we refer to Plante by name and simply refer to Creed by name as the defendant, although all that we say as to Creed applies to the law firm defendant as well.
General Statutes § 52-190a (a) provides in relevant part: “No civil action or apportionment complaint shall be filed to recover dаmages resulting from personal injury or wrongful death ... in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .”
Ordinarily, a plaintiff may not appeal frоm the denial of a motion for summary judgment, for lack of a final judgment; see, e.g., Hopkins v. O’Connor,
The Plantes filed, with leave of the court pursuant to Practice Book § 10-60, an amended complaint in the initial action against the individual defendants, Bull and Malone, that included a good faith certificate and an opinion letter purportedly from a similar health care provider dated April 10,2006, with the provider’s name and qualifications redacted. The individual defendants moved to dismiss the initial malpractice action on the ground that the Plantes had failеd to attach an opinion letter from a similar health care provider. The trial court, Brunetti, J., denied that motion to dismiss on January 8, 2007. See Plante v. Charlotte Hungerford Hospital, supra,
General Statutes § 62-692 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”
See footnote 1 of this opinion.
There is no dispute in the present case that the prior action terminated in the hospital’s favor.
The law firm defendant does not contest that Creed was acting within the sсope of his authority on behalf of the law firm.
Indeed, we note that the statute does not use the phrase “probable cause” to bring the action; instead, it uses the different phrase “good faith belief that grounds exist for the action.” Nonetheless, we assume without deciding, as the parties appear to do as well, that the two phrases have essentially the same meaning. See Byrne v. Burke, supra,
Practice Book § 10-32 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.”
Practice Book § 10-30 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .”
The hospital also claims that, even if collateral estoppel does not apply, the “facts known to Creed demonstrate that he lacked probable cause.” Specifically, the hospital argues that, as to the first malpractice action, the facts known to Creed “establish that an objectively reasonable attorney would not have believed that Williamson was a ‘similar health care provider’ ” under § 52-190a (a). Thus, this argument is premised solely on the notion that the presence or absence of probable cause under § 52-190a (a) is governed by the sufficiency of the opinion letter, a notion that we already have rejected. We therefore reject this claim as well.
See footnote 6 of this opinion.
Our Supreme Court recently reaffirmed this standard in Santorso v. Bristol Hospital,
The hospital also argues that, as to the second action, even if collateral estoppel does not apply, the facts known to Creed demonstrate that an objectively reasonable attorney would not have believed that the termination of the first action was merely a “matter of form” within the meaning of the accidental failure of suit statute. Because we have already decided, in the hospital’s favor, that Creed is barred by the doctrine of collateral estoppel from relitigating the issue of probable cause regarding the second action, we need not consider this claim.