Opinion
The self-represented plaintiff, Georgina Spilke, appeals from the judgment of the trial court awarding her $30,003 against the defendant, her former husband, Kenneth Spilke, and $1 in nominal damages
The following facts and procedural history are relevant to the resolution of the plaintiffs and the defendants’ claims on appeal. The plaintiff and Spilke were divorced in 2003. In 2004, Spilke filed a postjudgment motion for contempt against the plaintiff. In its memorandum of decision, the court, Frazzini, J., detailed the background of the motion for contempt: “[Kenneth Spilke’s] motion for contempt claims that his ex-wife
The plaintiff filed a complaint in January, 2007, alleging vexatious litigation based oh Spilke’s motion for contempt.
On March 9, 2007, the plaintiff filed a motion for default for failure to plead against the defendants. The court granted the motion as to Spilke on March 15,
I
PLAINTIFFS APPEAL
We begin with the plaintiff’s claims. She argues that the trial court erred in (1) determining that Ballard did
A
The plaintiffs first claim on appeal is that the court erred in determining that Ballard did not materially participate in the motion for contempt filed by Spilke. In her complaint, the plaintiff detailed what she deemed to be an intricate conspiracy between Spilke and Ballard, stemming from 1997, to hide Spilke’s assets and income. The plaintiff argues that the complaint detailed the “plan” to transfer assets to Ballard, and to defraud the plaintiff, creditors and the Internal Revenue Service. She argues that the “collusive transfer of assets in 1999, just prior to [the] divorce proceedings,” ultimately led to Spilke’s motion for contempt. We disagree.
The court determined that the complaint did not demonstrate a link between Ballard and the motion for contempt filed by Spilke. The court found: “The original complaint contains a litany of how the defendants . . . conspired to conceal marital assets, and Mr. Spilke falsely testified as to his business activities. It then claims [that the defendants] hired an attorney and his firm, who were originally defendants but who were removed from the case pursuant to a motion to strike. In any evenj; the attorney is said to have filed the motion for contempt at issue here ‘on behalf of his client Kenneth Spilke.’ In the fifty-five paragraphs of the entire complaint there is no actual link between any efforts made to hide Mr. Spilke’s assets by Ballard to the actual
“A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant. ... If the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. . . . Therefore, the only issue before the court following a default is the determination of damages. ... A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action. . . .
“In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive. . . .
“Thus, we must examine whether the allegations set forth in each count of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested. . . . Our review of the legal sufficiency of pleadings is plenary. ... To the extent that our analysis goes beyond the facial validity of the complaint and into the court’s findings of fact at the hearing in
“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 plaintiffs favor. . . . The statutory cause of action for vexatious litigation exists under § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages.” (Citations omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553-54, 944 A.2d 329 (2008).
We conclude that the court did not err in determining that Ballard did not participate in the motion for contempt that is the basis of the plaintiffs vexatious litigation claim. Although the plaintiff argues that Ballard was involved in a purported conspiracy to hide Spilke’s assets from the plaintiff, the vexatious litigation claim stems solely from the motion for contempt filed by Spilke, and not the divorce proceedings that took place between Spilke and the plaintiff. Taking the allegations set forth in the complaint as true, Ballard may have assisted Spilke in concealing assets from the plaintiff. The plaintiff, however, did not allege in the complaint, nor demonstrate at the hearing in damages, that Ballard played any part in the actual filing of the motion for contempt. As the trial court correctly noted, the complaint specifically asserts that Spilke filed the motion
B
The plaintiffs second claim on appeal is that the court erred in limiting the proximate cause for the vexatious litigation claim to Spilke’s motion for contempt. She argues that the defendants’ conspiracy stemming from the time of the divorce proceedings is the cause of all subsequent tortious litigation, including Spilke’s motion for contempt. She contends that all of the proceedings surrounding the divorce were “vexatious litigation superimposed on a simple divorce . . . .” We disagree.
In its memorandum of decision, the court stated: “The court in no way disputes [the plaintiffs] assertions about her past treatment, but given the specific nature of the action brought and the requirements of proximate cause it concludes the claims made are far beyond what is just and reasonable. The issue before the court, however, must be the damages caused the plaintiff by the vexatious suit at hand — i.e., the bringing of the contempt motion. It cannot be the function of this court to make amends through this judgment for every past misdeed and unfair and irresponsible act now alleged against the defendant Spilke. . . . There was much testimony and argument presented about [Spilke’s] abandonment of the children, his fraudulent concealment of assets to avoid marital obligations and tax responsibilities, and all of the pain and suffering caused the plaintiff long before the contempt action was brought, let alone contemplated. . . . The plaintiffs basic theory seems to be that the motion [for] contempt was another fraudulent attempt to keep hidden assets concealed, since, if a deficiency judgment were allowed those assets would be discovered. Default has entered,
“Proximate cause is ordinarily a question of fact. . . . To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Citation omitted; internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn. App. 162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006).
We conclude that the court did not err in limiting the vexatious litigation claim and the resulting damages the plaintiff suffered from the time of the filing of the motion for contempt onward. A vexatious litigation claim arises when a plaintiff has wrongfully been sued by another individual. Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 553. An individual is entitled to recover damages that resulted from the unlawful lawsuit. Id., 554. In the present case, the wrongful lawsuit at issue was the filing of the motion for contempt. Although the divorce between the plaintiff and Spilke may have been acrimonious, the plaintiffs vexatious litigation claim stems from the filing of the motion of contempt, and not from the divorce proceedings. The alleged concealment of assets and fraudulent financial affidavits happened prior to the filing of the motion for contempt and are not relevant to the plaintiffs damages for her vexatious litigation claim. Although the plaintiff asserts that all of the proceedings between the parties, including the divorce itself, were vexatious, the complaint asserts a claim for
C
The plaintiffs last claim is that the court erred in not assessing damages against Ballard, and also in not awarding the plaintiff “for all [of] the maltreatment” she suffered over the extensive period of litigation. On his cross appeal, Spilke contends that the court erred in finding that the plaintiff had proven emotional distress and in awarding $10,001 in damages. Because both the plaintiff and Spilke contend that the court’s award for damages was improper, we analyze these claims together.
A trial court is vested with “broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed . . . absent a clear abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999).
Because we already have determined that the court did not err in concluding that Ballard did not participate in the filing of the motion for contempt, we conclude that the court did not abuse its discretion in awarding only nominal damages as to Ballard. The plaintiff, however, also claims that the court erred in not assessing a greater damages award for all of the “maltreatment” that she suffered. As indicated in part IB of this opinion, the court correctly limited its focus as to what occurred after the filing of the motion for contempt. The plaintiffs vexatious litigation claim stemmed from the motion for contempt, and, therefore, the court properly
The court found that the plaintiff was entitled to $10,001 in noneconomic damages for emotional distress and was entitled to treble damages.
Giving every reasonable presumption in favor of the correctness of the court’s ruling, we conclude that the trial court did not abuse its discretion when it awarded the plaintiff $1 in nominal damages and $10,001 in non-economic damages for her emotional distress. The plaintiff testified that she was prevented from going to Uve with her mother in Chicago due to the filing of the motion for contempt. The plaintiff testified that she was planning to move to Chicago to be with her ailing mother and to move closer to her friends and family. She testified that during the planning of this move, however, Spilke filed the motion for contempt, which forced her to stay in Connecticut. Although she may have been able to move and still defend herself in the motion for contempt, she thought that the better decision for the purpose of defending herself as to the motion for contempt was to remain in Connecticut, which prevented her from taking care of her mother and from reuniting with her children and friends in Chicago. The court properly could infer that this decision Ukely caused the plaintiff some distress.
Spilke argues that the plaintiff provided no evidence to the court regarding her emotional distress and that her testimony referenced events that occurred prior to the filing of the motion for contempt. While it is true that the plaintiff often testified in generalities, referencing what in her opinion were all of the atrocities that Spilke had committed against her without specific regard to the motion for contempt, we find that the court could have inferred that the plaintiff suffered emotional distress from the filing of the motion for contempt.
II
DEFENDANTS’ CROSS APPEALS
We next address the remainder of the defendants’ claims raised in their cross appeals. The defendants claim that the court erred in denying their motion to strike the case from the hearing in damages list when the plaintiff had repleaded her complaint. They argue that the plaintiff filed an amended complaint on July
The complaint originally was brought against the two defendants as well as Spilke’s attorney, Joseph M. Wicklow III, and the law firm of Lasala, Walsh, Wicklow & Velardi, LLC (law firm). Wicklow and the law firm filed a motion to strike count one and count two of the plaintiffs complaint, which was granted by the court on July 11,2008. The plaintiff filed an amended complaint on July 25, 2008, including counts against Wicklow and the law firm. Wicklow and the law firm filed a motion to strike the counts of the complaint directed against them, which was granted by the court on October 2, 2008.
On April 12, 2010, the plaintiff filed a certificate of closed pleadings and requested a hearing in damages. The defendants filed a motion to strike the matter from the hearing in damages docket on September 16, 2010, arguing that the plaintiff had amended her complaint numerous times since the entry of default against the defendants, which, in turn, extinguished the default. They also filed an answer to the plaintiffs complaint, pending the court’s decision on the motion. The court denied the motion on September 16, 2010.
The court’s order denying the defendants’ motion to strike stated: “The defendants . . . move to strike this case from the hearing in damages list, to which it was assigned following the entry of a default for failure to plead. They rely on the fact that following the granting of a motion to strike the complaint as to the other defendants in this case, the plaintiff filed a substitute
The defendants then filed a motion to open the default for failure to plead on October 18, 2010. In the motion, the defendants argued that the default was due to mis-communication between the defendants and their attorney as well as their attorney’s chronic illness. Attached to the motion was an affidavit from the defendants’ attorney, Henry N. Silverman. The defendants also argued that there was no prejudice to the plaintiff because the default was pending for three years before the plaintiff claimed the matter to the hearing in damages docket.
The motion was denied by the court on December 23, 2010. In denying the defendants’ motion, the court noted that “[t]he gravamen of the defendants’ argument in support of the instant motion is that they were prevented by a combination [of] their misunderstanding of the status of the case and prior defense counsel’s health problems from responding to the plaintiffs complaint.”. The court stated that, although the defendants had apprised it that their attorney had health issues in late 2009, that “does not answer, or even address, the
As for the defendants’ first claim, even though the defendants’ motion was labeled a motion to strike, “a motion is to be decided on the basis of the substance of the relief sought rather than on the form or the label affixed to the motion. ... It is the substance of a motion, therefore, that governs its outcome, rather than how it is characterized in the title given to it by the movant.” (Citations omitted.) State v. Taylor, 91 Conn. App. 788, 791-92, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). The defendants labeled the motion as one to strike the matter from the hearing in damages docket. The stated reason for the motion was that, because the plaintiff had filed amended complaints, the defendants’ default had been extinguished. Essentially, the defendants sought to set aside the default because the plaintiff had filed an amended complaint. We therefore apply the same standard of review to the defendants’ claim as we would to a motion to set aside a default, namely, we must determine if the trial court abused its discretion. See Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998).
Although not completely analogous, we find this court’s recent decision in Willamette Management Associates, Inc. v. Palczynski, 134 Conn. App. 58, 38
On appeal, the defendant argued that “because the court granted the plaintiff leave to amend the writ of summons and complaint to correct the return date, [the defendant] should have been allowed to plead to the amended complaint.” Id., 65. The defendant argued that, due to the filing of the amended complaint, “the default was in effect opened and she should have been allowed to plead to the newly filed amended complaint.” Id., 66-67. This court determined that the trial court did not abuse its discretion in prohibiting the defendant from filing a pleading as to the amended complaint. Id., 69. In reaching that conclusion, this court noted that the “only change between the original complaint and the amended complaint was the return date and the date of the complaint. All substantive allegations in the complaint remained precisely the same. . . . The defendant’s substantive rights were not affected by the amendment, and she has not demonstrated prejudice.
Although the question in Willamette Management Associates, Inc., was whether the court abused its discretion by prohibiting the defendant from filing pleadings, and in this case it is whether the court abused its discretion in denying the motion to strike the matter from the hearing in damages list, in both cases the question primarily was whether the filing of an amended complaint after a finding of default extinguished the default and allowed the defendant to plead in response. In the present case, the plaintiff filed four amended complaints after the defendants were defaulted. Three of those amended complaints were filed after Wicklow and the law firm filed requests to revise. Although the complaints differed in some respects from the original complaint, the substantive allegations remained the same. As in Willamette Management Associates, Inc., we conclude that the amendments worked no substantial change in the cause of action and that the defendants have not demonstrated any prejudice suffered. Further, we note that the defendants did not file their motion to strike until September 16, 2010, more than three years after the defendants had been defaulted. We therefore conclude that the court did not abuse its discretion in denying the motion to strike the matter from the hearing in damages list.
The defendants argue that the motion to set aside the default should have been granted because the default was entered due to “prior counsel’s inadvertence and subsequent health issues.” The affidavit from the defendants’ prior counsel, which was attached to the motion, stated that the defendants “had a misunderstanding as to the nature of this lawsuit, they had it confused with other legal proceedings” and that the
Given the assertions in the affidavit, we cannot conclude that the court abused its discretion in denying the motion to set aside the default judgment. Counsel’s health problems did not begin until nearly two years after the default was entered against the defendants. We also note that the default had been entered more than three years prior to the motion to set aside the default. On the basis of the foregoing, we conclude that the court did not abuse its discretion in denying the motion to set aside the default judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
Ballard is presently married to Kenneth Spilke. Kenneth Spilke will be referred to as Spilke or jointly with Ballard as the defendants, and Georgina Spilke will be referred to as the plaintiff. The plaintiff originally brought suit against Spilke and Ballard as well as Spilke’s attorney, Joseph M. Wicklow m, and the law firm of Lasala, Walsh, Wicklow & Velardi, LLC. The court granted a motion to strike count one and count two of the complaint as to Wicklow and Lasala, Walsh, Wicklow & Velardi, LLC.
The plaintiff filed revised complaints on May 4 and August, 20, 2007, and on April 14, 2008, after the defendant Joseph M. Wicklow HI and the defendant law firm of Lasala, Walsh, Wicklow & Velardi, IXC, filed requests to revise. The court subsequently granted a motion to strike as to those defendants. See footnote 1 of this opinion. The plaintiff also filed an amended complaint on July 28, 2008.
There is a handwritten note on the order page, dated January 30, 2008, which states that “[u]pon review [t]he court recognizes an appearance for
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.” We note that Spilke only claims on appeal that the plaintiff did not prove her damages for emotional distress and therefore that the court erred in awarding $10,001. Spilke does not argue that the court erred in awarding treble damages under § 52-568; therefore, we limit our analysis as to whether the court abused its discretion in awarding $10,001 in damages for emotional distress.
We also note that the plaintiff represented herself during the hearing in damages as well as in the present appeal. “Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties.” Argentinis v. Fortuna, 134 Conn. App. 538, 539, 39 A.3d 1207 (2012).
The defendants also claim that the court abused its discretion because its decision was based on a misapprehension that the defendants wanted the case handled “on the cheap,” when they never instructed counsel not to defend the lawsuit or to compromise their defense in order to save money. In the court’s decision on the motion, the court stated that “[t]he only explanation given, essentially that [the defendants] had instructed [their counsel] to try to handle their case ‘on the cheap’ ... is hardly ‘good cause’ for allowing three years ... or even the first two of those years, before [the defendants’ attorney’s] health problems created additional problems ... to pass without taking any action with respect to the defaults.” We do not believe that the court misapprehended the affidavit attached to the motion, which explicitly stated that counsel was instructed by the defendants that “they would appreciate it if I would keep the expense of this lawsuit to a minimal amount in order to mitigate the amount of legal fees as it was their hope that the Plaintiff . . . would abandon what they considered to be a malicious lawsuit . . . .”