64 Conn. App. 624 | Conn. App. Ct. | 2001
In this action for vexatious litigation, the plaintiff Stephanie W. Shea
The record reveals the following facts. In 1988, the plaintiff was the director and president of Deltrade International, Ltd. (Deltrade), a sulfur trading company. The plaintiff owned no stock in Deltrade or in any related corporation. A total of 94.5 percent of Deltrade stock was owned by Antonino Castellett, and 5.5 percent was owned by Castellett’s wife, through their own
In reality, there was a second corporation known as Deltrade International, Ltd. (Deltrade Bermuda). The second entity was a Bermuda corporation and was the actual trading arm of the business. Deltrade, a Delaware corporation formed in 1988, was a shell corporation that had no assets, was never involved in trading sulfur and had no income. That information was never made known to Chase. The plaintiff signed the certified resolution for United States corporations, which was issued in connection with the continuing acceptance agreement, as secretary of “Deltrade International, Ltd., a U.S. corporation,” a company that had neither assets nor income.
The plaintiff represented to Chase that there was a pending merger between Deltrade Bermuda and Del-trade and that, thereafter, Deltrade would be the trading entity. The plaintiff never informed Chase that the merger did not take place, and Chase, in turn, relied on the plaintiffs representations. There never was a
Between October 26, 1988, and March 9, 1989, Chase made a series of loans to Deltrade under the secured line of credit. Only one of those loans was ever repaid. The remaining seven unpaid loans, totaling more than $8 million, were never repaid. All Deltacorp and Del-trade entities went into bankruptcy.
Chase’s in-house counsel, Lynne Barry, analyzed all the documents pertaining to the credit and loan transactions between Chase and Deltrade that involved the plaintiff. Chase hired the law firm Robinson & Cole LLP as outside counsel, and its attorneys also reviewed all the pertinent documents. In 1989, Chase commenced an action against the plaintiff, alleging fraud after both in-house and outside counsel had sufficient information to believe that the plaintiff had committed fraud by signing the various documents associated with the seven unpaid loan transactions when she knew (1) Del-trade had no inventory, (2) that for the seven financed transactions, the proceeds were paid by the purchaser to Deltrade prior to Chase’s payment and (3) no security existed for any of the seven transactions. Both counsel were aware that the plaintiff had signed documents on behalf of a Delaware corporation, Deltrade, that had no assets and on behalf of a Bermuda coiporation when the documents themselves indicated it was a United States based corporation. Chase alleged in the 1989 action that the plaintiff should be held personally responsible for activities she performed as an officer of Deltrade. Chase filed for and was granted an ex parte prejudgment attachment of the plaintiffs Connecticut home in the amount of $9 million. Chase alleged that it had been defrauded by the plaintiff in that (1) she misrepresented that a merger between Deltrade and Deltrade Bermuda had taken place, (2) in several transactions, there was no collateral for the loan from Chase
The plaintiff thereafter filed a motion, pursuant to General Statutes § 52-278e (c),
In December, 1995, the plaintiff brought an action against Chase, alleging violations of § 52-568,
Although the plaintiff asserts numerous claims on appeal, we find dispositive of this matter our resolution of her claim that the court improperly decided that Chase had a viable “advice of counsel” defense. We do not agree with that claim.
The following additional facts, found by the court, are necessary to our resolution of the plaintiff s claim. Barry analyzed each of the documents in Chase’s possession regarding the Deltrade transactions. Attorneys from Robinson & Cole LLP also analyzed each of the documents. Both counsel believed that the plaintiff had committed fraud by signing the various documents when she knew that no inventory existed as collateral and that the proceeds already had been paid by the purchaser. There was, therefore, no security for any of those transactions. Counsel also knew that the plaintiff had signed documents on behalf of a Delaware corporation that had no assets. They further knew that she had signed documents on behalf of a Bermuda corporation when the documents indicated that it was a United States based coiporation.
Steven R. Humphrey of Robinson & Cole LLP advised Chase that it had a strong foundation for a civil fraud claim and that such a claim should be made. Barry extensively interviewed Chase’s representatives in the Deltrade transactions and read Chase’s entire file. Barry further researched Connecticut and New York law on the relevant legal issues. Humphrey also reached the conclusion that Chase had a viable civil fraud claim against the plaintiff and recommended that one be filed. Humphrey’s associate, Katherine B. Larson, reached the same legal conclusion and gave the same advice. In
“Advice of counsel is a complete defense to an action of . . . vexatious suit when it is shown that the defendant . . . instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge, or which he was charged with knowing. The fact that the attorney’s advice was unsound or erroneous will not affect the result.” Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978).
The court in its memorandum of decision found in favor of Chase on its special defense that it relied on the advice of counsel, stating that “[t]he defendant has sustained its burden of proof in proving advice of counsel for both in-house and outside counsel. Both counsel had full knowledge of all the facts of this case. All counsel specifically advised Chase that it file a civil fraud action against Shea. The attorneys had the full cooperation [of] all the knowledgeable employees of Chase. They had all of Chase’s documentation. Counsel was able to obtain information unknown to Chase from other suppliers and other lending institutions. It was reasonable for Chase to rely on advice from both in-house and outside counsel in this matter.” We conclude that the court’s holding was proper in light of the previously discussed facts.
We further conclude that the court properly found that Chase did, in fact, rely in good faith on the advice of its attorneys and that this advice was given after the attorneys’ close review of all of the facts within Chase’s knowledge or those with which it was charged with knowing. Because advice of counsel is a complete
The judgment is affirmed.
In this opinion the other judges concurred.
Michael P. Shea, the husband of the plaintiff Stephanie W. Shea, also was a plaintiff in this action. Because only Stephanie W. Shea has appealed, we refer to her in this opinion as the plaintiff.
General Statutes § 52-278e (c) provides in relevant part: “The notice and claim form required by subsection (b) of this section shall contain (1) the name and address of any third person holding property . . . and (2) a statement of the procedure set out in subsection (d) of this section for requesting ahearing to move to dissolve or modify the prejudgment remedy.”
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.”