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3.13-5  Vexatious Suit - Claim under General Statutes § 52-5681

Revised to January 1, 2008

In this case, plaintiff <name of plaintiff> seeks to recover damages from defendant <name of defendant> for vexatious suit based upon <name of defendant>'s alleged commencement and prosecution against (him/her) of a prior civil (action/proceeding)2 entitled <title of underlying civil action or proceeding>, which I will refer to as "the underlying (action/proceeding)."  This claim is brought under General Statutes § 52-568, which provides in part3 as follows:

“Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others . . . (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.”

To prevail under either subsection of this statute, <name of plaintiff> must prove four essential elements by a fair preponderance of the evidence:

  1. that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her), [either in <name of defendant>'s own name or in the name of another person or entity];

  2. that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her) without probable cause;4

  3. that the underlying (action/proceeding) was finally terminated in a manner favorable to <name of plaintiff>;5 and

  4. that <name of defendant>'s commencement and prosecution of the underlying (action/proceeding) against (him/her) without probable cause legally caused (him/her) to suffer at least some of the injuries or losses complained of in (his/her) complaint.

I will discuss these essential elements with you in detail before discussing the issue of damages. 

Prosecution of underlying action or proceeding
<Name of plaintiff> claims that <name of defendant> commenced the underlying (action/proceeding) against (him/her) [in the name of <named plaintiff in underlying action or proceeding>] on or about <date of commencement of underlying action or proceeding against the plaintiff>, and thereafter prosecuted it [against (him/her)]6 until <date of final termination of underlying action or proceeding against the plaintiff>.

Without probable cause
A person has probable cause to commence or prosecute a civil (action/proceeding) on a claim of <claim made in underlying action or proceeding as to which defendant allegedly lacked probable cause> when (he/she) has knowledge of facts, actual or apparent, strong enough to justify a reasonable person in the belief that (he/she) has lawful grounds for prosecuting the defendant in the manner complained of.7  A person has lawful grounds for prosecuting a claim when (he/she) has a genuine belief in the existence of facts that support each essential element of that claim, when those facts would warrant a person of ordinary caution, prudence and judgment, under the circumstances, to entertain that belief.8

Under our law, one essential element of <name of defendant>'s claim of <claim made in underlying action or proceeding as to which defendant allegedly lacked probable cause>, as made against <name of plaintiff> in the underlying (action/proceeding), was that <name and describe essential element of claim presented in underlying action or proceeding as to which defendant allegedly lacked probable cause>.  <Name of plaintiff> here alleges and has sought to prove that when <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her), (he/she) lacked probable cause to do so because (he/she) lacked knowledge of facts sufficient to justify a reasonable person in believing <restate essential element of claim presented in underlying action or proceeding as to which the plaintiff claims that the defendant lacked probable cause>.

<Discuss facts in support of and in opposition to the plaintiff's claim of lack of probable cause as to the element in question.>

Terminated in favor or plaintiff9
A civil (action/proceeding) finally terminates in a manner favorable to the defendant in that (action/proceeding) when it is dismissed, goes to judgment for the defendant or is unilaterally withdrawn by the plaintiff in that (action/proceeding), with no consideration of any kind.

[<If favorable final termination element is uncontested:>  In this case, <name of defendant> has admitted in (his/her) answer that the underlying (action/proceeding) was finally terminated in a manner favorable to <name of plaintiff> on <date of final termination of underlying action or proceeding with respect to plaintiff> by <manner in which the underlying action or proceeding finally terminated favorably to the plaintiff>.  You must therefore find that the third essential element of vexatious suit has been established as a matter of law.]

[<If favorable final termination element is contested:>  In this case, <name of defendant> has denied that the underlying (action/proceeding) was terminated in a manner favorable to <name of plaintiff>.  On that score, <name of defendant> claims, more particularly, that even though (he/she) withdrew the underlying (action/proceeding) [against <name of plaintiff>], (he/she) did not do so unilaterally, as required by law to constitute a favorable final termination, but did so instead in exchange for valuable consideration, consisting of <nature of consideration allegedly exchanged for defendant's withdrawal of the underlying action or proceeding>.  A person acts unilaterally when (he/she) acts entirely on (his/her) own, without the agreement or participation of others.  Under this definition, a person does not act unilaterally in withdrawing an (action/proceeding) against another person when (his/her) motivation for so doing, in whole or in part, is the other person's agreement to give (him/her) valuable consideration – that is, anything of value, including consideration of the type here claimed by the defendant – in exchange for the withdrawal.  Here, then, to establish the third essential element of vexatious suit, <name of plaintiff> must persuade you by a fair preponderance of the evidence both that <name of defendant> withdrew the underlying (action/proceeding) against (him/her) and that (he/she) did not do so, as claimed by <name of defendant>, in exchange for <nature of consideration allegedly exchanged by plaintiff for defendant's withdrawal of the underlying action or proceeding against the plaintiff>.]

Injuries or losses
Finally, a successful claimant in an action for vexatious suit is entitled to recover money damages for all injuries or losses (he/she) was legally caused to suffer due to the commencement and prosecution against (him/her) of the vexatious suit.  Compensable injuries and losses may include any of the following, all of which are claimed by <name of plaintiff> against <name of defendant> in this case: <here list all economic and noneconomic injuries and losses which are claimed in the plaintiff's complaint and supported by at least some evidence at trial>.10  To establish the fourth essential element of vexatious suit, <name of plaintiff> must prove by a fair preponderance of the evidence that <name of defendant>, by commencing and prosecuting the underlying (action/proceeding) against (him/her) without probable cause, legally caused (him/her) to suffer at least some of the injuries or losses claimed by (him/her) in (his/her) complaint.

<Insert Legal Cause, Instruction 3.1-1.>

If, at the end of your deliberations, you find that <name of plaintiff> has failed to prove any essential element of (his/her) vexatious suit claim by a fair preponderance of the evidence, you must return a defendant's verdict on that claim.  If, on the other hand, you find that <name of plaintiff> has proved each essential element of (his/her) vexatious suit claim, you must go on to determine what damages to award (him/her) on that claim.

The first step in determining what damages to award a plaintiff on a statutory claim of vexatious suit is to determine what actual compensable damages (he/she) has suffered as a result of the defendant's allegedly wrongful conduct.  To that end, you must first determine which types of injuries and losses claimed by <name of plaintiff> were legally caused by <name of defendant>'s proven commencement and prosecution against (him/her), without probable cause, of the underlying (action/proceeding).  You must then determine what amount of damages is fair, just and reasonable to compensate <name of plaintiff> for those proven injuries and losses under my general instructions on compensatory damages.

<Insert general instructions on compensatory damages, Damages - General, Instruction 3.4-1.>

Economic damages may be awarded for any financial loss or expense which <name of plaintiff> proves (he/she) was legally caused to sustain or incur as a result of <name of defendant>'s commencement and prosecution against (him/her), without probable cause, of the underlying (action/proceeding).  Here, <name of plaintiff> seeks to recover economic damages for the following financial losses and expenses which (he/she) claims to have been legally caused by <name of defendant>'s commencement and prosecution of the underlying (action/proceeding) against (him/her): <here list all financial losses and expenses for which the plaintiff seeks economic damages, as claimed in the complaint and supported by the evidence at trial, including, where appropriate, any expenses, including reasonable attorney's fees, incurred to defend against the underlying action or proceeding, any lost wages for time required to attend court proceedings in the underlying action or proceeding, any loss to business or property resulting from the commencement and prosecution of the underlying action or proceeding, and any reasonable and necessary medical expenses incurred to treat physical or mental injury caused by the commencement and prosecution of the underlying action or proceeding>.  If you find <name of defendant> liable for vexatious suit, as here alleged, and that that vexatious suit legally caused <name of plaintiff> to sustain or incur any such financial loss or expense, then you must award (him/her) fair, just and reasonable economic damages for that proven loss or expense, also in accordance with my general instructions on compensatory damages. [<Add the following where appropriate:>  You cannot, however, award any attorney's fees or costs necessary to bring the present claim for vexatious suit, but only those you find to have been reasonably incurred to defend against the underlying action or proceeding.]11

Noneconomic damages may be awarded for any injury which <name of plaintiff> proves (he/she) was legally caused to suffer as a natural consequence of <name of defendant>'s commencement and prosecution against (him/her), without probable cause, of the underlying (action/proceeding).  Here, <name of plaintiff> seeks to recover noneconomic damages for the following injuries which (he/she) claims (he/she) was legally caused to suffer as a result of <name of defendant>'s commencement and prosecution of the underlying (action/proceeding) against (him/her): <here list all types of emotional or physical injuries for which the plaintiff seeks noneconomic damages, as claimed in the complaint and supported by the evidence at trial, including, where appropriate, mental anguish, humiliation, embarrassment, mortification, shame, fear and damage to reputation>.12  If you find that <name of defendant> commenced and prosecuted a vexatious suit against <name of plaintiff>, as here alleged, and that such vexatious suit legally caused <name of plaintiff> to suffer any such injury, then you must award (him/her) fair, just and reasonable noneconomic damages for that proven injury in accordance with my general instructions on compensatory damages.

After making your separate determinations as to economic and noneconomic damages, if you reach them in the course of your deliberations, you must record your findings on the appropriate lines of the Plaintiff's Verdict form, then add them together to calculate total actual compensatory damages on the line provided for that purpose.

Secondly, you will determine if <name of plaintiff> has proved, under subsection (2) of General Statutes Section 52-568, that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her) with the malicious intent unjustly to vex and trouble (him/her).13  An intent, of course, is a purpose for which a person engages in particular conduct.  A person acts intentionally with respect to a result when it is (his/her) conscious objective to bring about that result.  A malicious intent is an evil or improper intent to cause harm.  A person vexes another person when (he/she) annoys or irritates (him/her).  A malicious intent unjustly to vex and trouble another person is thus not merely an intent to cause (him/her) annoyance, irritation, and trouble, but an intent to do so in bad faith, with the knowledge or belief that there is no justification for so doing.  Therefore, if you find that <name of defendant> commenced and prosecuted (his/her) claim of <claim made in underlying action or proceeding as to which defendant allegedly lacked probable cause> in the underlying (action/proceeding) with the improper intent to bother, annoy and trouble <name of plaintiff> in bad faith, knowing or believing that there was no reasonable basis for so doing, then you will find that (he/she) then acted with a malicious intent unjustly to vex and trouble (him/her).  Lack of probable cause to commence the underlying (action/proceeding) may be considered as evidence of implied malice.

Third and finally, after you have decided whether or not <name of defendant> commenced and prosecuted the underlying (action/proceeding) against <name of plaintiff> with the malicious intent unjustly to vex and trouble (him/her), you will award <name of plaintiff> damages as follows.  If you have found that <name of defendant> did commence and prosecute the underlying (action/proceeding) against <name of plaintiff> with malicious intent unjustly to vex and trouble (him/her), you will award <name of plaintiff> treble, or triple, damages –  that is, three times the actual damages you have found that (he/she) is entitled to receive as fair, just and reasonable compensation for (his/her) proven injuries and losses.  If, however, <name of plaintiff> has not persuaded you that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her) with a malicious intent unjustly to vex and trouble (him/her), you will award (him/her) double damages – that is, twice the actual damages you have found that (he/she) is entitled to receive as fair, just and reasonable compensation for (his/her) proven injuries and losses.

After you make this final determination, you must multiply total actual compensatory damages by two (2) or three (3), in accordance with your finding, to calculate the amount of your verdict, then record the result on the line provided for that purpose on the Plaintiff's Verdict form.
_______________________________________________________

1 General Statutes § 52-568 provides in full as follows: "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."

2 A statutory claim of vexatious suit under General Statutes § 52-568 can also be based upon the assertion, without probable case, of a defense to any civil action or complaint commenced and prosecuted by another.  See note 3, infra.

3 Include in the instruction only so much of the text of the statute as is at issue in the case before the court.

4 "Whether particular facts constitute probable cause is always a question of law, and the conclusion of the trier is one of law that may be reviewed on appeal."  Paranto v. Ball, 132 Conn. 568, 571 (1946).

5 Although the statute does not list favorable termination as an essential element of the cause of action therein described, the statute has long been held to have the same essential elements as the common- law claim for vexatious suit.  Goodspeed v. East Haddam Bank, 22 Conn. 530, 535 (1853).  Hence, because termination of the prior suit in favor of the plaintiff is an essential element of the common-law claim for vexatious suit, it is an essential element of the statutory claim as well.  Frisbie v. Morris, 75 Conn. 637, 639 (1903).

6 Add the bracketed language only if the underlying action or proceeding was terminated earlier against the defendant rather than against one or more other parties.

7 Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 100-101 (2007), quoting DeLaurentis v. New Haven, 220 Conn. 225, 256 (1991).  It must be noted, however, that when the defendant is a lawyer who filed the underlying action on behalf of a client, the objective reasonableness of (his/her) belief in the existence of probable cause to commence and prosecute the action must be measured by the standard of the reasonable attorney familiar with the laws of this state, not that of the reasonable person.  Falls Church Group, Ltd.  v. Tyler, Cooper and Alcorn, LLP, supra, 281 Conn. 103.

8 McGann v. Allen, 105 Conn. 177, 186 (1926).

9 Typically, this element is uncontested.  The alternative paragraph for when it is contested describes a particular circumstance in which a defendant might legitimately argue that the termination of the prior action does not constitute a termination favorable to the plaintiff.  The withdrawal of an action for consideration does not constitute a favorable termination of the action because the act of tendering consideration for its termination suggests that it was prosecuted with probable cause.

10 See generally Wochek v. Foley, 193 Conn. 582, 588-89 (1984).

11 See generally Vandersluis v. Weil, 176 Conn. 353, 358-59 (1976) (clarifying that, in a common-law action for vexatious suit, "[a]ny cost of litigation in a former trial less taxable costs would be compensatory damages suffered by a plaintiff by reason of a former suit" whereas any cost of litigation in the vexatious suit action itself would not be recoverable in that action except, in an appropriate case, as the maximum amount of any award of punitive damages).

12 See generally Wochek v. Foley, supra, 193 Conn. 588.

13 This portion of the charge must obviously be eliminated if the plaintiff has not made a claim for treble damages under General Statutes § 52-568 (2).

Authority

General Statutes § 52-568; Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84 (2007); DeLaurentis v. New Haven, 220 Conn. 225 (1991); Vandersluis v. Weil, 176 Conn. 353, 356-57 (1978); Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn. App. 762, 766-67 (2005); see also QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361 (2001); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 538 (1983); Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 194 (1952); Wall v. Toomey, 52 Conn. 35, 36 (1884).

Notes

A common-law count for vexatious suit (see Vexatious Suit - Claim at Common Law, Instruction 3.13-6) cannot be joined in a single action with a statutory count for vexatious suit under General Statutes § 52-568.  See Whipple v. Fuller, 11 Conn. 582, 587 (1836).  But see Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84 (2007) (wherein the Supreme Court, without commenting on this issue, upheld the Appellate Court's affirmance of parallel trial court rulings granting summary judgment on alternatively pleaded common-law and statutory claims of vexatious suit).
 


 

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