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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).

Brian J. Farrell, Jr., for the 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 summary judgment 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,

the Penelope Johnston-Foote Family Qualified Personal

Residence Trust (trust), and LWT Associates, LLC

(LLC).1

In their complaint, the plaintiffs sought damages

for vexatious litigation and abuse of process against

several of their neighbors individually (Johnston-Foote,

Foote, the Tredwells, the Joneses, and Baker), the owners of property on which certain neighbors resided (the

trust and the 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which subsequently was withdrawn.2 On appeal, the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 summary judgment 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 of counsel; (3) the trust and the LLC were

not properly named as defendants because they were

not parties to the underlying forcible entry and detainer

action; and (4) the defendants’ pursuit of the underlying

action was not an abuse of process because the exclusive remedy available to the neighbor defendants was

an action to quiet title. We affirm the judgment of the

trial court.

Evidence of the following facts appears in the 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 of the plaintiffs and four mailboxes of the individual neighbor

defendants. The individual neighbor defendants’ mailboxes had existed at this particular location for periods

of time ranging from ten years to more than forty years.

In an undated letter addressed to ‘‘Dear Neighbors,’’

Bich-Ha Henriette Rieffel demanded that the individual

neighbor defendants remove the stanchion and their
mailboxes on or before November 27, 2012. On or about

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

removed the four mailboxes and the stanchion; the mailboxes 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

authorized the action against the plaintiffs. An unsigned

summons and complaint was presented to a judge, who

signed the summons on January 29, 2013. Service subsequently was made on the plaintiffs. A court date of

February 7, 2013, was set at the housing session of the

Superior Court in Norwalk. On that date, the housing

court judge apparently expressed some doubts about

the strength of the case, and the plaintiffs filed a motion

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,

and the LLC were sued for common-law vexatious litigation, 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

litigation pursuant to § 52-568 (1) and (2), and commonlaw abuse of process.

All of the defendants filed answers denying the essential allegations of the plaintiffs’ complaint. The neighbor

defendants all pleaded the special defense of reliance

upon the advice of counsel. Subsequently, all of the

defendants filed motions for summary judgment accompanied by supporting memoranda of law 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 summary judgment, with memoranda and counteraffirmations.6

The court, by memorandum of decision,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

that the evidence did not reveal the existence of a genuine issue of material fact with respect to whether the

attorney defendants had probable 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 of probable cause eliminates the major necessary predicate for the various vexatious suit claims

asserted by the plaintiffs . . . .’’8 Next, the court determined that the evidence demonstrated that the attorney

defendants did not abuse process because the forcible

entry and detainer action was not instituted for a purpose for which such an action was not designed,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 of the neighbor defendants’ claimed possessory rights to their mailboxes.9 Further, the court determined thatthe plaintiffs, in their abuse of process claims

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

filed by the neighbor defendants, the court, in a separate

memorandum of decision, determined 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 matter of

law, the neighbor defendants were entitled to judgment

in their favor. The court determined that the evidence

demonstrated that the neighbor defendants had provided Moger with 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 summary judgment, did not give rise to an issue of material

fact with respect to her assertion of bad faith or malice
against 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 of the plaintiffs. Finally,

the court determined that the individual neighbor defendants did not abuse process because they did not bring

their action to settle or quiet title, as the plaintiffs

asserted, and therefore did not use legal process against

the plaintiffs primarily to accomplish a purpose for

which it was not designed. The court rejected the plaintiffs’ assertion that the only appropriate legal action

was a quiet title action pursuant to § 47-31 and that, as it

had discussed in its decision on the attorney defendants’

motion for summary judgment, the forcible entry and

detainer action was not clearly a frivolous claim. In

rendering summary judgment 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

neighbor defendants, the trust and the LLC had initiated

the underlying forcible entry and detainer action against

the plaintiffs.12

As previously stated, the plaintiffs claim on appeal

that in rendering summary judgment 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 the individual neighbor defendants were

competent evidence of their special defense to the vexatious litigation counts of advice of counsel; (3) the trust

and the LLC were not properly named as defendants

because they were not parties to the underlying forcible

entry and detainer action; and (4) the defendants’ pursuit of the underlying action was not an abuse of process

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 judgment shall be rendered forthwith if the pleadings, 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 to judgment as a matter of law.

. . . 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 of a motion for summary judgment fail to establish

that there is no genuine issue of material 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 of such a disputed issue.

Mere assertions of fact . . . are insufficient to establish the existence of a 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.) Bonington v. 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 of review set forth previously in this opinion that the court did not err in granting the 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. See Rieffel

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 of the property on which Johnston-Foote and Foote resided was the

trust. The owner of the property on which the Tredwells resided was the LLC.

2 General Statutes § 47a-43 provides in relevant part: ‘‘(a) When any person

(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

with force 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) Such judge 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

of the 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 a
purpose for which it is not designed . . . . Comment b to § 682 explains

that the addition of primarily [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.’’ (Citation omitted; emphasis in original; internal quotation marks

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

orderto prevail on an abuse of process claim against an attorney, the plaintiff

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 of their abuse of process counts, with and without malice, 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 of decision on February 19, 2015. One

addressed the four motions for summary judgment filed on behalf of the

neighbor defendants. The other addressed the motion for summary judgment

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 concluded that Bowman provided a reasonable basis

for Moger to consider bringing the entry and detainer action against the

plaintiffs. Despite the plaintiffs’ focus on the impropriety of the 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 not perform as thorough an investigation or as complete a legal 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 Sheldon Appel 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 of litigation and the burdens

that the defendants in this case allegedly improperly inflicted upon the

plaintiffs. See Mozzochi v. Beck, 204 Conn. 490, 497–98, 529 A.2d 171 (1987).

11 The affidavits of the individual neighbor defendants that were submitted

to the court by the neighbor defendants, Moger’s affidavit, and the 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

disclosed to 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’’ of the

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 A joint brief was filed on behalf of the attorney defendants and another

joint brief was filed on behalf of the neighbor defendants.