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CHESTER LICHAJ ET AL v. J. MICHAEL

SCONYERS ET AL

(AC 37214)

Beach, Keller and West, Js.

Argued October 26, 2015—officially released March 1, 2016

(Appeal from Superior Court, judicial district of

Litchfield, Pickard, J.)

John R. Williams, for the appellants (plaintiffs).

Robert W. Cassot, with whom, on the brief, was Cristin E. Sheehan, for the appellees (named defendant

et al.).
Opinion

BEACH, J. The plaintiffs, Chester Lichaj and Nicole

Lichaj, appeal from the summary judgment rendered

by the trial court in favor of the defendants J. Michael

Sconyers and Ackerly Brown, LLP.1 We affirm the judgment of the trial court granting the motion for summary judgment.

The present action sounds in vexatious litigation.

Chester Lichaj and Nicole Lichaj alleged, in their complaint,that David Welles, Lori Welles, and their attorney,

Sconyers, previously brought a vexatious, meritless

action against them. The trial court granted motions

for summary judgment in favor of all the defendants;

the plaintiffs appeal only as to Sconyers. The prior

underlying action was tried to the court, which ruled

in favor of the Welleses; this court reversed the trial

court’s judgment and remanded the case with direction

to vacate the injunction and for further proceedings.

Because the trial court in the present action considered

the facts and procedural history of the prior action, we

begin with a discussion of that action, as recounted in

this court’s appellate opinion.

‘‘[David Welles and Lori Welles] own and reside at

37 Ballyhack Road in West Cornwall. [Chester Lichaj

and Nicole Lichaj] own and reside at 39 Ballyhack Road.

Pursuant to a deed, [the Lichajes] have a right-of-way

over the [Welles’] land for the purpose of gaining access

to their property from Ballyhack Road. The fifty foot

wide right-of-way extends from Ballyhack Road, over

a portion of the [Welles’] land, to the [Lichajes’] residence, a distance of approximately 1400 feet. The rightof-way provides the only means of access forthe parties

from Ballyhack Road, a public highway, to their residences.

‘‘In 2004, Chester Lichaj began using his tractor to

remove snow from the right-of-way. The [Welleses]

made multiple requests to both [of the Lichajes] that

he stop plowing the right-of-way because Lori Welles’

father historically had plowed it for them and if an

emergency arose, they preferred to call a professional

to attend to the snowplowing. Nevertheless, Chester

Lichaj periodically plowed the right-of-way with his own

tractor even though Lori Welles’ father also continued

to plow the right-of-way until his truck failed during

the 2005-2006 winter. Thereafter, the [Welleses] hired

David Hurlburt to plow the driveway. Chester Lichaj,

however, continued to plow the driveway as well during

the same winter. This pattern continued, with the

[Welleses] hiring Hurlburt but Chester Lichaj still plowing the driveway with his tractor, despite requests from

the [Welleses] that he not do so.

‘‘Thereafter, in March, 2009, [David Welles and Lori

Welles] initiated this action seeking a permanent injunction prohibiting Chester Lichaj from plowing the right-
of-way. The [Lichajes] filed a counterclaim sounding in

tort alleging that [David Welles and Lori Welles] intentionally and maliciously interfered with their use of the

right-of-way and the quiet enjoyment of their land. The

[Lichajes] also claimed intentional and negligent infliction of emotional distress. More specifically, they

alleged that on multiple occasions while Chester Lichaj

plowed snow off the right-of-way he was accosted verbally by David Welles in an aggressive and abusive

manner.’’ (Footnotes omitted.) Welles v. Lichaj, 136

Conn. App. 347, 349–50, 46 A.3d 246, cert. denied, 306

Conn. 904, 52 A.3d 730 (2012).

The Lichajes moved for summary judgment, and the

motion was denied by the court, Danaher, J. The matter

then was tried to Judge Danaher, who granted an injunction in favor of David Welles and Lori Welles that

enjoined Chester Lichaj from performing maintenance

on the right-of-way over the property of the Welleses.

The court found in favor of Nicole Lichaj as to the

claim for an injunction. The court found that ‘‘no further

action [was] necessary with regard to the [Lichajes’]

counterclaim.’’ The Lichajes appealed from the judgment of the trial court. On appeal, this court reversed

the judgment of the trial court and remanded the case;

id., 359;2

this court determined that the trial court had

abused its discretion in granting the injunction as to the

right-of-way and misinterpreted the deed. Id., 356, 359.

The Lichajes then brought the present action claiming

statutory and common-law vexatious litigation against

the Welleses, Sconyers and Ackerly Brown, LLP. The

Lichajes alleged, inter alia, that the underlying injunctive action was brought and maintained without probable cause. Sconyers and Ackerly Brown, LLP, moved

for summary judgment on the ground that there was

no genuine issue of fact or law as to the existence

of probable cause to initiate the underlying injunctive

action. In the motion for summary judgment, Sconyers

and Ackerly Brown, LLP, maintained that there was

probable cause because the Welleses had prevailed at

trial in the underlying action as against Chester Lichaj,

their claim against Nicole Lichaj survived summary

judgment, and the facts known to Sconyers were sufficient for him to believe that there was probable cause

to commence the injunctive action against both Chester

Lichaj and Nicole Lichaj. In a September, 2014 memorandum of decision, the court, Pickard, J., granted Sconyers’ motion for summary judgment. The court

reasoned that, as a matter of law, the finding of the

trial court in the underlying action in favor of the

Welleses, who were represented by Sconyers, as to their

claim against Chester Lichaj was conclusive evidence

of probable cause as to him, and the reversal of that

claim on appeal was not inconsistent with the existence

of probable cause.3 See Byrne v. Burke, 112 Conn. App.

262, 275–76, 962 A.2d 825, cert. denied, 290 Conn. 923,

966 A.2d 235 (2009).
The court rendered summary judgment against

Nicole Lichaj as well. Although judgment had not been

rendered against her in the prior case, the motion for

summary judgment had been denied with respect to

her. The court in the present case held that the denial

of the motion for summary judgment in the prior case

precluded a finding that there had not been probable

cause to pursue that action. The court cited Havilah

Real Property v. Early, 216 Md. App. 613, 626–28 and

n.13, 88 A.3d 875 (2014), which explains that decisions

discussing the issue fall generally into two categories:

some jurisdictions, such as California, Georgia, Pennsylvania and the United States Court of Appeals for the

Eighth Circuit, conclude that a denial of a motion for

summary judgment creates a presumption of probable

cause sufficient by itself to defeat a subsequent claim

for vexatious litigation; others, such as Kentucky, Arizona and Vermont, conclude that a denial of a motion

for summary judgment is but one factor to consider in

the analysis of probable cause. The court in the present

case noted that there was no controlling Connecticut

precedent on the issue and decided to follow the line

of cases that hold that a previous denial of a motion

for summary judgment is conclusive evidence of the

existence of probable cause to bring the prior action.

Because Nicole Lichaj’s motion for summary judgment

had been denied, the court concluded that there had

been probable cause to bring the underlying action

against her and granted the motion for summary judgment. This appeal followed.

‘‘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 plaintiff’s favor. . . . The statutory cause of

action for vexatious litigation exists under [General

Statutes] § 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.

. . .

‘‘In assessing probable cause in vexatious litigation

actions against attorneys and law firms, the critical

question [is] whether on the basis of the facts known

by the law firm, a reasonable attorney familiar with

Connecticut law would believe he or she had probable

cause to bring the lawsuit. . . . As is implied by its

phrasing, the standard is an objective one that is necessarily dependent on what the attorney knew when he

or she initiated the lawsuit.’’ (Citation omitted; internal

quotation marks omitted.) Schaeppi v. Unifund CCR
Partners, 161 Conn. App. 33, 45–46, 127 A.3d 304, cert.

denied, 320 Conn. 909, A.3d (2015).

‘‘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.

In deciding a motion for summary judgment, the trial

court must view the evidence in the light most favorable

to the nonmoving party. . . . The party moving for

summary judgment has the burden of showing the

absence of any genuine issue of material fact and that

the party is, therefore, entitled to judgment as a matter

of law. . . . Our review of the trial court’s decision

to grant the defendant’s motion for summary judgment

is plenary.’’ (Internal quotation marks omitted.) Rocco

v. Garrison, 268 Conn. 541, 548–49, 848 A.2d 352 (2004).

Likewise, ‘‘[w]hether there is probable cause in a [vexatious litigation] case is a question of law, upon which

our scope of review is plenary.’’ (Internal quotation

marks omitted.) Schaeppi v. Unifund CCR Partners,

supra, 161 Conn. App. 46.

The Lichajes claim that the court erred when it

granted the motion for summary judgment against

Nicole Lichaj. They contend that this court should hold

that a prior denial of a motion for summary judgment

is but one factor to consider in the analysis of probable

cause. Sconyers disagrees and also, in the alternative,

argues that this court should affirm the decision on the

ground that, as a matter of law, there was probable

cause to include Nicole Lichaj as a defendant in the

prior action, regardless of the effect of the prior denial

of the motion for summary judgment. We agree with

Sconyers as to the alternative ground, which was raised

on appeal and in his motion for summary judgment in

the vexatious litigation action,4

that probable cause for

pursuing the underlying action existed in any event.5

The documents submitted in connection with the

motion for summary judgment show that there was an

ongoing dispute between the Lichajes and the Welleses

regarding, among other things, the snowplowing of the

easement that the Lichajes enjoyed over the Welleses’

property. At the center of the underlying action was a

dispute as to the interpretation of the right-of-way as

set forth by the Lichajes’ deed. Schedule A of the deed,

which concerned maintenance of the right-of-way, specified: ‘‘All parties agree that the right of way and its

continuation are to be maintained in their present condition, which may require periodic grading, re-graveling,

cleaning or repairs of culverts, and snow plowing . . . .

Responsibility for payment for said maintenance shall

be shared equally by the owners of Lot 1 and Lot 2

. . . . If the right of way is damaged by either party

. . . then the party or parties responsible for the damage shall bear the cost of restoring the right of way to
its present condition.’’ The court, in its memorandum

of decision in the underlying action, interpreted this

language to mean that the parties to the deed intended

that the maintenance activities were to be performed by

third parties only, and, thus, the court enjoined Chester

Lichaj from performing maintenance activities; it

ordered, instead, that those maintenance activities were

to be performed by third parties. On appeal, this court

reversed the decision of the trial court and concluded

that it had not properly interpreted the plain language

of the deed, but rather had ‘‘improperly incorporated

a restrictive covenant into the deed unsupported by its

plain language.’’ Welles v. Lichaj, supra, 136 Conn. App.

358. There clearly was a dispute regarding the interpretation of the deed; the dispute was resolved differently

by the trial court and the Appellate Court.6

Sconyers had probable cause to bring the underlying

action against Nicole Lichaj. The underlying action

sought a resolution of the dispute about the interpretation of the language in the deed regarding the means

of maintaining the right-of-way, and an acrimonious

relationship needed to be addressed. Regardless of how

the issue ultimately would be resolved, the matter

clearly and objectively required resolution, one way or

another. The rights of Nicole Lichaj, a co-owner of the

property, were affected by the outcome of the case and,

accordingly, it would be reasonable to believe that an

injunction would clarify and affect her rights. See

Demarest v. Fire Dept., 76 Conn. App. 24, 28, 817 A.2d

1285 (2003) (‘‘Parties are considered indispensable

when they not only have an interest in the controversy,

but an interest of such a nature that a final decree

cannot be made without either affecting that interest,

or leaving the controversy in such condition that its

final [disposition] may be . . . inconsistent with equity

and good conscience. . . . Indispensable parties must

be joined because due process principles make it essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party

to the [action]. . . . Necessary parties, in contrast, are

those [p]ersons having an interest in the controversy,

and who ought to be made parties, in order that the

court may act on that rule which requires it to decide

on, and finally determine the entire controversy, and

do complete justice, by adjusting all the rights involved

in it. . . . [B]ut if their interests are separable from

those of the parties before the court, so that the court

can proceed to a decree, and do complete and final

justice, without affecting other persons not before the

court, the latter are not indispensable parties.’’ [Internal

quotation marks omitted.]). An attorney familiar with

Connecticut law could reasonably believe that there

was probable cause to bring the prior action against

Nicole Lichaj, even though she was not the party

engaged in the maintenance activities at issue, because

she was a co-owner of the premises. Her rights and
responsibilities in the right-of-way over the Welleses’

abutting land were at issue.

As a matter of law, Sconyers had probable cause to

bring the underlying action. Although the appropriate

resolution was hotly disputed, there was no dispute of

material fact as to the circumstances which gave rise

to the existence of probable cause. Accordingly, we

conclude that the court properly granted the Sconyers’

motion for summary judgment in the vexatious litigation action.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Also named as defendants in this action were David Welles and Lori

Welles, who were represented in the underlying action by Sconyers, an

attorney employed by the law firm Ackerly Brown, LLP. The court granted

the motions for summary judgment as to all defendants. The plaintiffs challenge on appeal only the court’s granting of summary judgment as to Sconyers and Ackerly Brown, LLP.

Because reference to the underlying action is necessary, and the plaintiffs

in that action are defendants in the present action, and vice versa, we refer

to the parties by their names rather than as ‘‘plaintiffs’’ or ‘‘defendants.’’

Also, although both Sconyers and his law firm, Ackerly Brown, LLP, are

parties, their interests are identical and therefore we generally shall refer

only to Sconyers.

2 On remand, the Lichajes withdrew their counterclaim.

3 This conclusion is not challenged on appeal.

4

In his motion for summary judgment, Sconyers argued that, even if the

denial of the motion for summary judgment in the underlying case was

not dispositive, summary judgment in the vexatious litigation case was

appropriate nonetheless because the Lichajes could not, as a matter of law,

prove that he lacked probable cause to bring the underlying action. Sconyers

reasoned, in that motion, that the underlying action sought a resolution of

the ongoing controversy surrounding the interpretation of a deed and that

a reasonable attorney familiar with Connecticut law could conclude that it

was reasonable to bring an action against Nicole Lichaj because she was

an owner of the property.

5 We express no opinion as to whether a denial of a motion for summary

judgment, without more, is sufficient to negate the lack of probable cause

for the purpose of a subsequent action in vexatious litigation.

6 We recognize of course that an attorney contemplating bringing the prior

action could not have known of the subsequent rulings by various courts.

That jurists concluded differently, however, is consistent with the proposition that there was some possibility of a favorable outcome.