PAUL JOHN FERRI v. NANCY POWELL-FERRI ET AL.
AC 44798
Appellate Court of Connecticut
July 19, 2022
Cradle, Suarez and Clark, Js.
Argued April 5
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Syllabus
The plaintiff sought damages for vexatious litigation from the defendant P, his former wife. P previously sought the dissolution of her marriage to the plaintiff and, in that action, a disputed asset was a trust. While the dissolution action was pending, the trustees of the trust brought a declaratory judgment action against P and the plaintiff, seeking approval of their actions in forming another trust, into which they had decanted all of the assets of the initial trust. As part of the declaratory judgment action, the defendants T and N Co., who represented P in both actions, filed a cross complaint on her behаlf, alleging that the plaintiff violated his duty to preserve the marital assets by allowing the trustees to remove assets from the marital estate. The trial court rendered summary judgment in favor of the plaintiff on the cross complaint. In this vexatious litigation action, the plaintiff alleged that the defendants lacked probable cause to institute and pursue the cross complaint. The trial court granted the motion for summary judgment filed by T and N Co. Following a bench trial on the plaintiff‘s claims against P, the trial court rendered judgment in favor of P, from which the plaintiff appealed to this court. Held that the trial court correctly concluded that P had prоbable cause to pursue her cross complaint in the declaratory judgment action, the plaintiff having failed to satisfy his burden to prove that P did not have a reasonable, good faith basis for her cross complaint against him; as aptly noted by the trial court, not only did P have a good faith belief in the facts allеged in her cross complaint, but the relevant facts related to the existence of probable cause were undisputed, as P alleged that the plaintiff failed to seek the return of the assets of the initial trust, which were transferred to another trust, and, in light of the automatic orders that issue in dissolution cases, including an order that neither party transfer or dissipate marital assets, it could not reasonably be argued that P did not maintain a good faith belief that the plaintiff violated the automatic orders when the trustees decanted funds that arguably were marital assets to a different trust.
Argued April 5—officially released July 19, 2022
Procedural History
Action seeking damages for, inter alia, vexatious litigation, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the case was transferred to the Complex Litigation Docket; thereafter, the court, Moll, J., denied the plaintiff‘s motion for summary judgment and granted the motion for summary judgment filed by the defendants Thomas Parrino et al. and rendered judgment thereоn, from which the plaintiff appealed to this court, Prescott, Devlin and D‘Addabbo, Js., which affirmed the trial court‘s judgment; subsequently, the case was tried to the court, Schuman, J.; judgment for the named defendant, from which the plaintiff appealed to this court. Affirmed.
Cristin E. Sheehan, with whom, on the brief, was Robert W. Cassot, for the appellee (named defendant).
Opinion
CRADLE, J. In this action alleging vexatious litigation, the plaintiff, Paul John Ferri, appeals from the judgment of the trial court, rendered following a court trial, in favor of the defendant Nancy Powell-Ferri.1 On appeal, Ferri claims that the trial court incorrectly concluded that Powell-Ferri had probable cause to initiate and pursue her cross complaint filed against Ferri in a prior lawsuit. We affirm the judgment of the trial court.
“While the dissolution action was pending, the trustees of the 1983 trust brought a declaratory judgment action against Powell-Ferri and Ferri, seeking approval of the trustees’ actions in forming another trust in 2011, into which they had decanted all of the assets of the 1983 trust. The Parrino defendants also represented Powell-Ferri in the declaratory judgment action. As part of the trustees’ action, the Parrino defendants filed a cross complaint against Ferri, on behalf of Powell-Ferri, alleging that Ferri had violated his duty to preserve the marital assets by allowing the trustees to remove assets from the marital estate. The trial court, Munro, J., rendered summary judgment in favor of Ferri on the cross complaint, concluding that Powell-Ferri failed to state a cause of action. Our Supreme Court affirmed this decision оn appeal and declined to recognize the new cause of action. See Ferri v. Powell-Ferri, 317 Conn. 223, 235, 116 A.3d 297 (2015).
“The cross complaint against Ferri in the declaratory judgment action, brought by the Parrino defendants on behalf of Powell-Ferri, forms the basis for the present vexatious litigation action brought by Ferri against Powell-Ferri and the Parrinо defendants. In this action, Ferri alleged that [Powell-Ferri and] the Parrino defendants lacked probable cause to institute and pursue the cross complaint. The trial court, Moll, J., rendered summary judgment in favor of the Parrino defendants.” Ferri v. Powell-Ferri, 200 Conn. App. 63, 65-66, 239 A.3d 1216, cert. denied, 335 Conn. 970, 240 A.3d 285 (2020). This court affirmed the summary judgment rendered by the trial court as to thе Parrino defendants, concluding that the trial court correctly determined that the Parrino defendants had probable cause to institute and pursue the cross complaint they had filed on behalf of Powell-Ferri. Id., 81.
Thereafter, Ferri‘s vexation litigation claims2 against Powell-Ferri were tried to the court, Schuman, J. By way of a memorandum of decision filed on June 10, 2021, the court rendered judgment in favor of Powell-Ferri, conсluding that she had probable cause to pursue her cross complaint against Ferri in the declaratory judgment action. The court reasoned, inter alia: “Upon review of the entire cross complaint, the court concludes that Powell-Ferri‘s cause of action against Ferri depended only on two critical facts. These facts are: (1) Ferri learned of the decantation after it happened but before the filing of the cross complaint, and (2) Ferri took no steps to return the assets to the original trust. These facts are alleged in paragraph 21 of the cross complaint, which was filed on or about Oсtober 31, 2012. Paragraph 21 alleges: [Ferri] was aware of the actions of the . . . trustees in establishing a new trust with the intent to deprive . . . [Powell-Ferri] of her equitable claims to trust assets but has taken no action to pursue his right and obligation to seek the
“There is virtually no dispute that the facts alleged in paragraph 21 are cоrrect. First, Ferri himself testified that he learned about the new trust from his brother . . . in 2011 shortly after the trust‘s creation but well before the filing of the cross complaint. Ferri also admitted that he made no attempts to return the assets of the trust. . . .
“Given the conclusion that the facts in paragraph 21 are correct, it necessarily follоws that the plaintiff has failed to prove by a preponderance of the evidence that Powell-Ferri conveyed inaccurate or misleading information to her attorney on the key points of the case. . . . Instead, the undisputed nature of the key facts underlying the cross complaint made the validity of the cross complaint almost wholly dependent on a question of law. That question was whether a party to a dissolution proceeding [must] take action to prevent the removal of assets that would benefit him. Ferri v. Powell-Ferri, supra, 200 Conn. App. 80-81. The Appellate Court has now ruled that Powell-Ferri‘s attorneys had probable cause to bring this claim even though it does not state a valid cause of action under Connecticut law. It almost necessarily follows that Powell-Ferri had probable cause to ask her attorneys to bring this action. After all, the court cannot expect lay litigants to know more about the law than lawyers. Further, the Appellate Court оpinion recognizes that there is something intrinsically wrong, albeit not sufficiently wrong to become a recognized tort, when a spouse fails to [take] action to recapture sizable trust assets that had arguably fallen within the marital estate, and that filing a lawsuit over that matter is not a completely frivolous move. Stаted differently, a reasonable layperson in this situation could have believed that litigation was justified. Thus, Powell-Ferri had both a reasonable, good faith belief in the facts alleged and the validity of the claim asserted . . . . For these reasons, Powell-Ferri had probable cause.” (Citation omitted; footnote omittеd; internal quotation marks omitted.) This appeal followed.
“In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. . . . [T]o establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a terminatiоn of suit in the plaintiff‘s favor. . . . The statutory cause of action for vexatious litigation exists under
“[I]n an action for vexatious litigation, the burden rests with the plaintiff to prove that the defendant lacked рrobable cause to prosecute a prior action. Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 330, 994 A.2d 153 (2010); see also Zenik v. O‘Brien, 137 Conn. 592, 597, 79 A.2d 769 (1951) (‘[a]lthough want of probable cause is negative in character, the burden is upon the plaintiff to prove affirmatively . . . that the defendant had no reasonable ground’ for commencing action).” Rockwell v. Rockwell, 178 Conn. App. 373, 390, 175 A.3d 1249 (2017), cert. denied, 328 Conn. 902, 117 A.3d 563 (2018). “The existence
On appeal, Ferri challenges the court‘s determination that Powell-Ferri had probable cause to pursue her cross complaint against him in the declaratory judgment action. Although he sets forth several arguments in support of his claim that the court erred in so holding, the gravamen of his challenge to the court‘s conclusion is that there was “no evidence that . . . Powell-Ferri had a reasonable, good faith belief in the facts alleged and the validity of the claim asserted” in her crоss complaint. (Internal quotation marks omitted.) He argues that his efforts to learn of the factual basis of Powell-Ferri‘s cross complaint were repeatedly thwarted by Powell-Ferri‘s evasive responses to discovery and during her testimony at her deposition and at trial. He asserts that Powell-Ferri “failed to identify any informa-tion [that] she shared with her attorneys” or “any factual basis for commencing the cross complaint . . . .” He contends that “there was no evidence that [Powell-Ferri] conducted an independent investigation as to the facts that might support a conclusion that she had a good faith belief sufficient to justify a reasonable person to institute the cross complaint against [Ferri].”
In so arguing, Ferri disregards the well settled principle, as stated herein, that it was his burden to prove that Powell-Ferri lacked probable cause to commence and pursue her cross complaint. Contrary to Ferri‘s position, Powell-Ferri was not required to present any evidence of her good faith belief in the facts alleged in her cross complaint or the validity of her action. Rather, to sustain an action for vexatious litigation against Powell-Ferri, Ferri had the burden of proving that Powell-Ferri did not have such a reasonable, good faith basis for her cross complaint against him.3
Moreover, as aptly noted by the trial court, not only did Powell-Ferri have a good faith belief in the facts alleged in her cross complaint, but the relevant facts related to the existence of probable cause were undisputed. Powell-Ferri alleged that Ferri failed to seek the return of the assets of the 1983 trust, which were transferred to another trust after she commenced the dissolution action. In light of the automatic orders that issue in all dissolution cases, which include an order that neither party transfer or dissipate marital assets, it cannot reasonably be argued that Powell-Ferri did not maintain a good faith belief that Ferri violated the automatic orders when the trustees decanted funds
The judgment is affirmed.
In this opinion the other judges concurred.