Greene v. KeatingGreene v. Keating
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The plaintiff sought to recover damages from the defendant law firm R Co. for statutory (
1. The plaintiff could not prevail on her claim that the trial court improperly concluded that she failed to present evidence that would allow it reasonably to calculate her damages and that the court erred when it failed to apply the common nucleus test for apportionment to her claim for attorney‘s fees: that court properly determined that the common nucleus test was inappropriate in this case because in a vexatious litigation case such as this case, in which the plaintiff has prevailed on only one of several claims and there is no additional costs borne in defending against a vexatious claim, as those costs were necessary to the defense of viable claims or to the prosecution of a counterclaim, the plaintiff has not suffered any damages; moreover, the trial court‘s finding that the plaintiff failed to prove the amount of her damages was not clearly erroneous, as the court properly found that, although the defense of the prescriptive easement claim was significant in the underlying trial, the plaintiff‘s trespass counterclaim was basically the reciprocal of the prescriptive easement claim and would have necessitated the resolution of most of the same elements of prescriptive easement even if the prescriptive easement claim had not been pursued, and, consequently, it determined that the plaintiff had not proven the amount of her attorney‘s fees solely attributable to her defense of the prescriptive easement claim.
2. R Co.‘s cross appeal challenging the trial court‘s conclusion that the plaintiff had established one of her causes of action was dismissed, R Co. having lacked standing because judgment had been rendered in its favor, and, therefore, it was not aggrieved by the judgment.
BRIGHT, J. The plaintiff, Brenda Greene, appeals from the judgment of the trial court rendered in favor of the defendant law firm, Rucci, Burnham, Carta, Carello & Reilly, LLP,1 in the plaintiff‘s vexatious litigation action. On appeal, Greene claims that the court improperly concluded that, although she had established one of her vexatious litigation claims against the defendant, the defendant was entitled to judgment in its favor because Greene failed to prove the amount of her damages. Specifically, Greene claims that the court improperly concluded that she failed to present evidence that would allow the court reasonably to calculate damages in the form of attorney‘s fees. We affirm the judgment of the trial court.2
The following facts, as found by the trial court or as uncontested in the record, and procedural history are relevant to this appeal. In the underlying case, the Keatings had brought a multicount complaint against Greene sounding in prescriptive easement, implied easement, interference with a right-of-way, malicious erection of a structure, private nuisance, and disturbance of right of use. Greene asserted a two count counterclaim alleging misuse of an easement and trespass. After a trial to the court, the court, in an April 23, 2010 memorandum of decision, found in favor of Greene on all counts of the complaint and in favor of the Keatings on the counterclaim.
On October 1, 2010, Greene commenced the present action against the defendant and the Keatings for vexatious litigation as to each count that had been alleged by the Keatings in the underlying case. The Keatings raised the special defense of advice of counsel, and they filed a motion for summary judgment. Following the court‘s rendering of summary judgment in favor of the Keatings on their special defense, the vexatious litigation case against the defendant proceeded to a trial before the court.
In a July 19, 2017 memorandum of decision, the court found in favor of the defendant on all pursued counts, with the exception of the count alleging vexatious ligation in the pursuit of the Keatings’ claim for a prescriptive easement. As to that count, the court found that, although the defendant initially had probable cause to allege a cause of action for prescriptive easement against Greene, it lost probable cause as to that count following sworn disclosures made to it by the Keatings’ predecessor in title, who told the defendant in October, 2008, that she had widened the right-of-way at issue in the underlying case specifically at the request of, and with the permission of, Greene‘s predecessor in title. The court concluded, therefore, that the defendant thereafter knew that the permissive nature of the expanded right-of-way made the claim for a prescriptive
Greene thereafter submitted an affidavit from her attorney, with accompanying exhibits. Greene asserted that she was billed $261,331.82 from October 1, 2008 through May 1, 2010, for attorney‘s fees, and, after some adjustments, that $230,439.04 was the actual amount of her damages, which, when doubled, amounted to $460,878.08. The defendant objected on several grounds, including that the amount of claimed attorney‘s fees clearly included matters well beyond the cost of defending against the prescriptive easement claim and that it included the cost of litigating the counts of Greene‘s counterclaim. The court concluded that Greene was relying on the wrong legal standard in arguing her damages and that she had the burden of proving, as closely as possible, the actual portion of attorney‘s fees that were attributable directly to the litigation of the prescriptive easement claim. After concluding that Greene again had failed to meet her burden, the court rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.
Greene claims that the court improperly concluded that she failed to present evidence that would allow the court reasonably to calculate her damages. She argues that she did provide sufficient evidence. Additionally, she argues that the court erred when it failed to apply the ‘‘common nucleus test for apportionment‘’ of attorney‘s fees to her vexatious litigation claim. She proposes that the attorney‘s fees awarded in a vexatious
‘‘It is axiomatic that the burden of proving damages is on the party claiming them. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . [T]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative . . . but which allows for some objective ascertainment of the amount. . . . This certainly does not mean that mathematical exactitude is a precondition to an award of damages, but we do require that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation [that] will enable the trier to make a fair and reasonable estimate.‘’ (Citations omitted; internal quotation marks omitted.) Weiss v. Smulders, 313 Conn. 227, 253–54, 96 A.3d 1175 (2014). Although the apportionment of damages in a vexatious litigation action may be difficult when a defendant had joined meritorious causes of action with vexatious causes of action in the underlying case, ‘‘the plaintiff in a vexatious [litigation] action, like any other plaintiff, has the burden of proving damages.‘’ DeLaurentis v. New Haven, 220 Conn. 225, 269, 597 A.2d 807 (1991). ‘‘The trial court‘s determination that damages have not been proved to a reasonable certainty is reviewed under a clearly erroneous standard.‘’ Weiss v. Smulders, supra, 254. ‘‘The trial court‘s determination of the proper legal standard in any given case [however] is a question of law subject to our plenary review.‘’ (Internal quotation marks omitted.) Total Recycling, supra, 308 Conn. 326.
In response to Greene‘s submission in support of her claim for $460,878.08 in damages, the defendant filed a memorandum of law in opposition, arguing that Greene had not met her burden and that the claimed amount of damages ‘‘borders on bad faith.‘’ Specifically, the defendant argued that Greene was not entitled to any fees that related to the cost of her pursuit of the counts of her counterclaim, and that she was entitled to claim only attorney‘s fees that she had incurred specifically in defending the prescriptive easement claim in the underlying case. The defendant further argued that the
During the hearing in damages, the court, citing to Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 944 A.2d 329 (2008), explained to the parties that the ‘‘purpose of [an action for vexatious litigation] is to compensate a wronged individual for damage to his reputation and to reimburse him for the expense of defending against the unwarranted action.‘’ The court then explained to Greene that the documents she submitted did not apportion the attorney‘s fees as the court had requested. Greene argued that the bulk of the attorney‘s fees were necessary to defend against the prescriptive easement claim because all of the claims were interrelated. The defendant, on the other hand, argued that the bulk of the claimed fees would have been necessary even if it had dropped the prescriptive easement claim in the underlying action, and, therefore, they were not attributable to the defense of the prescriptive easement claim. At the close of the hearing, the court stated that it would ‘‘do [its] best here.‘’
In its January 16, 2018 memorandum of decision, the court explained: ‘‘Where [a] plaintiff cannot show that the [vexatious] claim caused additional expense beyond the defense of the proper claims, she has failed to prove her damages and no recovery can be had.‘’ The court also explained that the severity of this rule is mitigated by the rule that damages need not be proven with exactitude but that they, nonetheless, must be established with a fair and reasonable estimate. Thereafter, the court concluded that Greene had not proven her entitlement to $460,878.08 in damages, in part, because Greene‘s counterclaim for trespass, was ‘‘basically the reciprocal of the claim for a prescriptive easement, and would have necessitated the resolution of most of the same elements of prescriptive easement, even if the [defendant] had dropped the [prescriptive easement] count of the complaint [in the underlying action].‘’ The court then held that ‘‘[b]ecause [Greene‘s] claim for fees relies on subjective opinion, lacks detail, and relies on an erroneous application of law, the court cannot award her any damages arising from the vexatious litigation of the prescriptive easement issue.‘’
On appeal, Greene claims that the court improperly concluded that she failed to present evidence that would allow the court reasonably to calculate damages and that the court erred when it failed to apply the ‘‘common nucleus test for apportionment‘’ of attorney‘s fees. We are not persuaded.
We begin with a discussion of Total Recycling on which Greene principally relies. In that case, the defendant contracted to purchase the plaintiffs’ oil recycling business. Total Recycling, supra, 308 Conn. 315. The
On remand, the trial court concluded that the defendant had failed to apportion the attorney‘s fees between the two contracts that allowed for recovery of those fees and the one that did not permit recovery of those fees and that, therefore, the defendant had failed to meet its burden of proof. Total Recycling, supra, 308 Conn. 317–19. The trial court‘s decision thereafter was upheld by this court but reversed by our Supreme Court, which held that ‘‘when certain claims provide for a party‘s recovery of contractual attorney‘s fees but others do not, a party is nevertheless entitled to a full recovery of reasonable attorney‘s fees if an apportionment is impracticable because the claims arise from a common factual nucleus and are intertwined.‘’ Id., 319, 333. This court has reached the same conclusion when a plaintiff pursues both statutory claims that allow for the award of attorney‘s fees and common-law claims that do not. See Heller v. D.W. Fish Realty Co., 93 Conn. App. 727, 735, 890 A.2d 113 (2006) (plaintiff not required to apportion fees between CUTPA claim that permitted recovery of attorney‘s fees and contract and negligence claims that did not because ‘‘they depended on the same facts‘‘).
The approach in Total Recycling and Heller makes sense because a party that prevails on a claim that entitles it to an award of attorney‘s fees should not lose that entitlement simply because it has pursued other claims for which there is no entitlement. A rule requiring apportionment in such a circumstance would discourage parties from pursuing potentially meritorious claims for fear that, by doing so, their right to an award of fees would be diminished. Furthermore, under the common nucleus of facts approach, the defendant has the same liability for attorney‘s fees regardless of whether there are claims for which attorney‘s fees may not be awarded. The existence of those claims does not prejudice the defendant in any way.
By contrast, in a vexatious litigation case such as this, in which the plaintiff has prevailed on only one of several claims, the common nucleus of facts rationale makes little sense. Where there is no additional cost borne in defending against a vexatious count because those costs were necessary to the defense of viable counts or to the prosecution of a counterclaim, the plaintiff has not suffered any damages.7 See DeLaurentis v. New Haven, supra, 220 Conn. 268 (plaintiff ‘‘must prove the damages attributable to the vexatious charges‘‘). Put another way, if there is an overlap of facts between the vexatious claim and the nonvexatious claims, the plaintiff would incur the same costs of defense had the vexatious claim not been brought. We, therefore, disagree, as did the trial court, with Greene‘s contention that the court should have applied the ‘‘common nucleus test for apportionment‘’ to her claim for attorney‘s fees.
In the present case, the court properly considered whether Greene proved that she incurred costs related to the defense of the prescriptive easement claim that she would not have incurred if that claim had not been brought. Although acknowledging that the defense of the prescriptive easement claim was significant in the underlying trial, the court also found that Greene‘s trespass counterclaim was ‘‘basically the reciprocal of the claim for a prescriptive easement, and would have necessitated the resolution of most of the same elements of prescriptive easement, even if the [defendant] had dropped [that count] of the complaint.‘’ Consequently, the court determined, in part, that Greene had
We, therefore, conclude that the court properly determined that the common nucleus test was inappropriate for the present case and that its finding that Greene failed to prove the amount of her damages was not clearly erroneous.
The judgment is affirmed with respect to the plaintiff‘s appeal; the defendant‘s cross appeal is dismissed.
In this opinion the other judges concurred.
Notes
‘‘The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. . . . In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action [require] proof that a civil action has been prosecuted. . . . Additionally, to establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a termination of suit in the plaintiff‘s favor. . . . The statutory cause of action for vexatious litigation exists under . . .