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******************************************************BICH-HA HENRIETTE RIEFFEL ET AL. v.

PENELOPE D. JOHNSTON-FOOTE ET AL.

(AC 37762)
Keller, Mullins and Pellegrino, Js. Argued February 29—officially released May 10, 2016 (Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. Taggart D. Adams, judge

trial referee.)
Peter M. Ryan, for the appellants (plaintiffs).
BrianJ. Farrell, Jr., forthe appellees (named defendant et al.). Kelley Franco Throop, for the appellees (defendant Diane Jones et al.). Douglas R. Steinmetz, for the appellees (defendant Dan Tredwell et al.).
Peter E. DeMartini, with whom, on the brief, was Charles A. Deluca, for the appellees (defendant Daniel W. Moger, Jr., et al.).Opinion PER CURIAM. The plaintiffs, Bich-Ha Henriette Rieffel and Marc A. Rieffel, appeal from the summaryjudgment rendered on their complaint in favor of the defendants, Penelope D. Johnston-Foote, Rayh Foote, also known as Ray Foote, Diane Jones, Michael B. Jones, Dan Tredwell, Lucinda Tredwell, Sue Baker, Attorney Daniel W. Moger, Jr., Daniel W. Moger, LLC, thePenelopeJohnston-FooteFamilyQualifiedPersonal Residence Trust (trust), and LWT Associates, LLC (LLC).1 Intheircomplaint, theplaintiffssoughtdamages for vexatious litigation and abuse of process against several oftheirneighbors individually (Johnston-Foote, Foote, the Tredwells, theJoneses, and Baker), the owners ofproperty on which certain neighbors resided (the trust andthe LLC), the neighbors’ attorney (Moger) and his law firm (Daniel W. Moger, LLC), for having filed a forcible entry and detainer action against the plaintiffs, which subsequently was withdrawn.2 On appeal, the plaintiffs claim that in rendering summaryjudgment in the defendants’ favor the court improperly concluded that (1) the attorney defendants had probable cause to pursue the underlying forcible entry and detainer action; (2) the affidavits of several of the neighbor defendants were competent evidence of their special defense to the vexatious litigation counts of reliance
on the advice ofcounsel; (3) the trust and the LLC were not properly named as defendants because they were notparties to the underlyingforcible entryand detainer action; and (4) the defendants’ pursuit ofthe underlying action was not an abuse ofprocess because the exclusive remedy available to the neighbor defendants was
an action to quiet title. We affirm the judgment of the trial court.
Evidence ofthe followingfacts appears inthe record. The plaintiffs and the individual neighbor defendants all live in a secluded neighborhood on a private road, known as Thrushwood Road, off of Indian Head Road in the Riverside section of Greenwich. An unnamed right-of-way and a portion of Thrushwood Road are located on the land of the plaintiffs. For purposes of the summary judgment action and this appeal, rights of ingress and egress to the respective residences of the individual neighbor defendants over the unnamed right-of-way and Thrushwood Road are conceded by the plaintiffs. Near the head of Thrushwood Road, a small open shed or wooden stanchion, located on the plaintiffs’ property, contained the mailbox ofthe plaintiffs and four mailboxes of the individual neighbor defendants. The individual neighbor defendants’ mailboxes had existed atthis particularlocation forperiods oftime ranging from ten years to more than fortyyears. In an undated letter addressed to ‘‘Dear Neighbors,’’ Bich-Ha Henriette Rieffel demanded that the individual neighbor defendants remove the stanchion and theirmailboxes on orbefore November27, 2012. On orabout December 10, 2012, the plaintiffs served several of the neighbor defendants with a ‘‘Notice of Termination of License,’’ informing them that their ‘‘license and privilege to maintain a mailbox

. . . on the property owned by [the plaintiffs]

. . . is hereby terminated

. . . .’’ The notice advised the neighbor defendants that their license terminated as of December 17, 2012, and that the mailboxes and the stanchion should be removed by the close of the business day on that date.
The individual neighbor defendants objected to the plaintiffs’ demands and retained Moger in December, 2012, to protect their interests. Between December 17, 2012, and January 8, 2013, counsel for the plaintiffs and Moger exchanged correspondence regarding the dispute. On or about January 25, 2013, the plaintiffs removedthefourmailboxesandthestanchion; themailboxes of the individual neighbor defendants were left in the driveways of their respective properties. After Moger recommended to his clients the institution of a forcible entry and detainer action pursuant to General Statutes § 47a-43, the individual neighbor defendants authorizedthe actionagainsttheplaintiffs. Anunsigned
summons and complaintwas presented to ajudge, who signedthe summons onJanuary29, 2013. Service subsequently was made on the plaintiffs. A court date of February 7, 2013, was set at the housing session ofthe Superior Court in Norwalk. On that date, the housing court judge apparently expressed some doubts about the strength ofthe case, andtheplaintiffs filed amotion for summary judgment. Another court date was set, but, after consulting with his clients, Moger withdrew the entry and detainer action on February 19, 2013.3
On August 6, 2013, the plaintiffs commenced this action against the attorney defendants and the individual neighbor defendants who had been plaintiffs in the forcible entry and detainer action. In addition, the trust and the LLC were named as defendants although they
were not parties to the forcible entry and detainer action. The complaint contained twenty-four counts. Each of the individual neighbor defendants, the trust, andtheLLCweresuedforcommon-lawvexatiouslitigation, statutory vexatious litigation pursuant to both General Statutes § 52-568 (1) and (2),4 common-law abuse of process, and common-law abuse of process with malice.5 The attorney defendants were sued for common-law vexatious litigation, statutory vexatious litigationpursuantto § 52-568 (1) and (2), and commonlaw abuse of process. All ofthe defendantsfiledanswers denyingthe essentialallegations oftheplaintiffs’ complaint. Theneighbor defendants all pleaded the special defense of reliance upon the advice of counsel. Subsequently, all of the defendantsfiledmotionsforsummaryjudgmentaccompanied by supporting memoranda oflaw and affidavits.The attorney defendants also annexed exhibits to their motion, on which, in addition to Moger’s affidavit, the neighbor defendants additionally relied. The plaintiffs responded, objecting to the granting of summaryjudgment, with memoranda and counteraffirmations.6
The court, by memorandum ofdecision,7 granted the motion for summary judgment filed by the attorney defendants after determining that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a result, the attorney defendants were entitled to judgment in their favor as a matter of law. The court first determined thatthe evidence did not revealthe existence ofagenuine issue of material fact with respect to whether the attorney defendants hadprobable cause to recommend to clients and to commence the forcible entry and detainer action against the plaintiffs. On the basis of the evidence before it, the court determined that such probable cause existed. The court stated that ‘‘[t]he existence ofprobable cause eliminatesthemajornecessary predicate for the various vexatious suit claims asserted by the plaintiffs

. . . .’’8 Next, the court determinedthatthe evidence demonstratedthatthe attorney defendants did not abuse process because the forcible entry and detainer action was not instituted for a purposeforwhichsuchanactionwasnotdesigned,thereby rejecting the plaintiffs’ claim that the attorney defendants actually intended to bring a quiet title action. The court determined that what was sought only was the retention ofthe neighbor defendants’ claimed possessory rights to their mailboxes.9 Further, the court determinedthattheplaintiffs, intheirabuseofprocessclaims against the attorney defendants, had failed to allege or prove that the attorney defendants engaged in specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.10
With respect to the motions for summary judgment filedbytheneighbordefendants, the court, inaseparate memorandumofdecision, determinedthatthe evidence presented bythe parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a matter of law, the neighbor defendants were entitledtojudgment in their favor. The court determined that the evidence demonstrated that the neighbor defendants had provided Mogerwith any and all facts concerning the mailboxes, including their removal and placement on their properties, and that there was no evidentiary support for the plaintiffs’ claim that the neighbor defendants’ disclosure of facts to Moger was less than candid or incomplete.11 The court further concluded that BichHa Henriette Rieffel’s affirmation, which she filed in response to the neighbor defendants’ motions for summaryjudgment, did not give rise to an issue ofmaterial fact with respect to her assertion ofbad faith or maliceagainst the neighbor defendants attributable to the removal of the mailboxes.
On the basis of its assessment of the submissions before the court, the court then determined that the neighbor defendants had established the essential elements of their special defense of advice of counsel to the vexatious litigation claims ofthe plaintiffs. Finally, the courtdeterminedthattheindividualneighbordefendants did not abuse process because they did not bring their action to settle or quiet title, as the plaintiffs asserted, andtherefore didnotuse legalprocess against the plaintiffs primarily to accomplish a purpose for which itwas not designed. The court rejected the plaintiffs’ assertion that the only appropriate legal action
was aquiettitle actionpursuantto § 47-31 andthat, as it haddiscussedinitsdecisionontheattorneydefendants’ motion for summary judgment, the forcible entry and detainer action was not clearly a frivolous claim. In rendering summaryjudgment in favor of the trust and the LLC, the court observed that there was no support for the plaintiffs’ claims that, along with the individual neighbordefendants, thetrustandthe LLC hadinitiated theunderlyingforcible entryanddetaineractionagainst the plaintiffs.12
As previously stated, the plaintiffs claim on appeal that in rendering summaryjudgment in the defendants’ favor, the courtimproperlyconcludedthat (1) the attorneydefendantshadprobable causetopursuetheunderlying forcible entry and detainer action; (2) the affidavits of the individual neighbor defendants were competentevidence oftheirspecialdefensetothevexatious litigation counts ofadvice ofcounsel; (3) the trust and the LLC were not properly named as defendants becausetheywere notpartiestothe underlyingforcible entry and detainer action; and (4) the defendants’ pursuitoftheunderlyingactionwasnotanabuse ofprocess because the exclusive remedy available to the neighbor defendants was an action to quiet title.
Our standard of review of a trial court’s ruling on
a motion for summary judgment is well established. ‘‘Practice Book [§ 17-49] provides that summary judgmentshallberenderedforthwithifthepleadings, affidavits and any other proof submitted show that there is
no genuine issue as to any material fact and that the moving party is entitled tojudgment as a matter oflaw.

. . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.

. . . When documents submitted in support ofamotion for summaryjudgment fail to establish that there is no genuine issue ofmaterial fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.

. . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.. . . It is not enough, however, for the opposing party merely to assert the existence ofsuch a disputed issue. Mere assertions of fact

. . . are insufficient to establish the existence ofa material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].

. . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.’’ (Citation omitted; internal quotations marks omitted.)Boningtonv. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
After a careful examination of the record, including
a consideration of the comprehensive briefs and arguments of the parties, we conclude in accordance with the standard ofreview set forth previously in this opinionthatthe court did not errin grantingthe defendants’ motions for summary judgment.13 Because the court’s memoranda of decision fully address the arguments raised in the present appeal, we adopt its thorough and well reasoned decisions as a proper statement of the facts and the applicable law on these issues. SeeRieffel

v. Johnston-Foote, 165 Conn. App. 401, 412, A.3d (2015) (appendices). It would serve no useful purpose for this court to repeat the analysis contained in the trial court’s decisions. Riley v

. Pierson, 126 Conn. App. 486, 492, 12 A.3d 581 (2011).
The judgment is affirmed.

1 For purposes of this appeal, we refer to Johnston-Foote, Foote, the Tredwells, the Joneses, Baker, the trust, and the LLC as the neighbor defendants. We refer to Moger and his law firm as the attorney defendants. The

owner ofthe property on which Johnston-Foote and Foote resided was the trust. The ownerofthepropertyonwhichtheTredwellsresidedwastheLLC.

2 General Statutes § 47a-43provides inrelevantpart: ‘‘(a) Whenanyperson (1) makes forcible entry into any land, tenement or dwelling unit and with

a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same withforce and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises

or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court. ‘‘(b) Suchjudge shall forthwith issue a summons to the party complained of

. . . to answer to the matters contained in the complaint.

. . .’’

3 At oral argument before this court, Attorney Brian J. Farrell, Jr., representing Johnston-Foote, Foote and the trust, indicated that all of the offending mailboxes have been relocated and are no longer on the plaintiffs’ property and that, other than this appeal, no cause of action concerning this dispute is pending.

4 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.’’

5 ‘‘An action for abuse of process lies against any person using a legal process against another in an improper manner or [primarily] to accomplish

a purpose for which it was not designed.

. . . Because the tort arises out ofthe accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process

. . . against another primarily to accomplish apurpose for which it is not designed

. . . . Comment b to § 682 explains that the addition ofprimarily [to this definition] is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.’’ (Citationomitted; emphasis in original; internalquotationmarks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). Where

an abuse of process claim is brought against an attorney, the standard is heightened in order to balance ‘‘the attorney’s primary duty of robust representation of the interests of his or her client.’’ Id., 497. Specifically, in ordertoprevailonanabuse ofprocess claimagainstanattorney, theplaintiff must allege ‘‘specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation.’’ Id. We find no authority distinguishing an abuse of process claim from an abuse of process claim with malice, and the nature of the damages sought by the plaintiffs under all oftheirabuse ofprocess counts, withandwithoutmalice, is substantively the same.
6 In rendering its decision, the court noted: ‘‘In all, the proliferation of memoranda, affidavits and exhibits, and changes and substitutions thereto, has made it extraordinarily difficult for the court, relying on only the electronic file used in the Superior Court, to separate the wheat from the chaff.’’

7 The court issued two memoranda ofdecision on February 19, 2015. One addressed the four motions for summary judgment filed on behalf of the neighbordefendants. The otheraddressedthemotionforsummaryjudgment filed on behalf of the attorney defendants.

8 The court found that Moger had relied heavily on Evans v. Weissberg, 87 Conn. App. 180, 866 A.2d 667 (2005), and Bowman v. Williams, 5 Conn. App. 235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986). The court concludedthatBowman provided areasonable basis for Moger to consider bringing the entry and detainer action against the plaintiffs. Despite the plaintiffs’ focus on the impropriety ofthe defendants’

use of an action for forcible entry and detainer under these circumstances, the court was not required to decide the merits of the underlying forcible entry and detainer action in considering these motions for summary judgment. If, on the basis of the facts known to the attorney defendants, the filing of the prior action was objectively reasonable, the court necessarily determined that the litigation the plaintiffs were subject to was not unjustified. The following rationale is persuasive: ‘‘When the court has made such

a determination, there is no persuasive reason to allow the plaintiff to go forward with its tort action even if it can show that its adversary’s attorney did notperform as thorough an investigation or as complete alegal research job as a reasonable attorney may have conducted. Permitting recovery on such a basis would provide the plaintiff with a windfall; since the prior action was objectively tenable, the plaintiff could properly have been put to the very same burden of defense if its adversary had simply hired more thorough counsel.’’ Rockwell v. Rockwell, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-5010935-S (October 14, 2015) ( Stevens, J .) (61 Conn. L. Rptr. 98, 101), quoting SheldonAppel Co

. v. Albert & Oliker, 47 Cal. 3d 863, 883, 765 P.2d 498, 254 Cal. Rptr. 336 (1989).

9 In Moger’s affidavit, he averred that after the plaintiffs took the action of removing the stanchion and the mailboxes, his sole, immediate concern
was restoring the ability of his clients to collect their mail in their usual

manner and that he had not intended to file an action to quiet title.

10 The amended complaint in no way distinguishes between the costs and benefits ordinarily associated with the pursuit oflitigation and the burdens that the defendants in this case allegedly improperly inflicted upon the plaintiffs. SeeMozzochi v. Beck, 204 Conn. 490, 497–98, 529 A.2d 171 (1987).

11 The affidavits ofthe individual neighbordefendants thatwere submitted tothe courtbytheneighbordefendants, Moger’saffidavit, andthe correspondence between the plaintiffs’ counsel and Moger prior to the initiation of the underlying forcible entry and detainer action all support the court’s finding that all material facts concerning the mailbox dispute had been disclosedto and discussed with Moger. The plaintiffs have made the conclusory assertion that the neighbor defendants did not convey to Moger all of the material facts, but the plaintiffs failed to point to any material omission

or misstatement of fact made by any of the neighbor defendants in their discussions with Moger.

12 Although the court, in a few instances, referred to its ‘‘dismissal’’ ofthe plaintiffs’ claims, its judgment clearly grants the defendants’ motions for summary judgment on all of the plaintiffs’ claims. The plaintiffs have appealed from the granting of those motions.13 Ajoint briefwas filed on behalf ofthe attorney defendants and another joint brief was filed on behalf of the neighbor defendants.