Topic:
GRIEVANCE PROCEDURES; LITIGATION; COURTS; ATTORNEYS;
Location:
ATTORNEYS; JUDICIAL PROCEDURE; LITIGATION;

OLR Research Report


January 30, 2008

 

2008-R-0101

VEXATIOUS LITIGATION AND SANCTIONS AGAINST ATTORNEY

By: Christopher Reinhart, Senior Attorney

You asked for information on vexatious litigation and whether the statute or other sanctions might apply to prejudgment remedies. You also asked for statistics on how often the vexatious litigation statute is used.

SUMMARY

Connecticut law authorizes judges to award double or triple damages to a party who is subjected to a vexatious suit or defense. While not binding on other courts, we found a Superior Court opinion that ruled that a prejudgment remedy application is not a civil action for purposes of the vexatious litigation statute.

We did not find a specific provision relating to prejudgment remedies. But Practice Book rules have penalties for frivolous conduct relating to pleadings, motions, and appeals. The statutes also subject attorneys to court rules and orders and a court can fine an attorney for violating its rules and orders up to $100 for an offense and can suspend or displace an attorney for just cause (CGS 51-84).

The courts can also sanction someone under their inherent authority. Absent a statute or rule, the courts have inherent authority to sanction an attorney or client for a course of dilatory, bad faith, and harassing litigation conduct where there is no specific rule or court order that is violated.

Courts can also sanction attorneys for violating the Rules of Professional Conduct and attorneys can be subject to grievances for their violations.

Other remedies for misconduct include a common law action for abuse of process, vexatious suits, or slander of title.

We could not find statistics on vexatious litigation in Connecticut. The Judicial Branch could not provide us with statistics on how often the vexatious litigation statute is used. Our search of cases under this statute did not provide us with useful information about how often the statute is used or how often cases are successful.

VEXATIOUS SUITS OR DEFENSES

Connecticut has a general statute on vexatious suits or defenses. A person who commences and prosecutes a civil action or asserts a defense without probable cause is liable for double or triple damages. If the action lacks probable cause, the other person will receive double damages, and if the action is also malicious and brought with the intent to vex and trouble, the other person will receive triple damages (CGS 52-568). A person lacks probable cause if he or she lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. Malice is acting with an improper purpose, which is a purpose other than to secure the proper adjudication of the claim (DeLaurentis v. City of New Haven, 220 Conn. 225 (1991)).

A Superior Court opinion held that a prejudgment remedy application is not a civil action for purposes of the vexatious litigation statute. The court stated that adjudicating the application is not part of the proceedings ultimately to decide the validity and merits of the cause of action. It is primarily designed to prevent dissipating assets. It decided that denying an application is not a final adjudication on the merits of the action and the application is not a civil action on which a cause of action for vexatious litigation can be based (Bernard-Thomas Building Systems, Inc. v. Dunican, CV 04-4004060 S, January 18, 2006, Judge Skolnick). This opinion is not necessarily binding on other courts however.

PRACTICE BOOK RULES

Allegations or denials made without reasonable cause and found to be untrue subject the pleading party to the payment of reasonable expenses necessarily incurred by the other party due to the untrue pleading. But no expenses for counsel fees can exceed $10 for any one offense (CGS 52-99). The Practice Book also uses this rule but provides that counsel fees will not exceed $500 (P.B. 10-5). The Practice Book is usually controlling in areas involving the court's inherent authority to supervise the conduct of attorneys appearing before it.

Other Practice Book rules with sanctions include those governing:

1. amending pleadings or other parts of the record or proceedings (P.B. 10-60);

2. amendments when there is a material variance between allegations and proof (P.B. 10-62);

3. interrogatories, disclosure, and discovery orders (P.B. 13-14);

4. failure to admit the genuineness of a document or the truth of a matter in one (P.B. 13-25); and

5. affidavits made in bad faith (P.B. 17-48).

The Rules of Appellate Procedure subject a party to sanctions for presenting unnecessary or unwarranted motions or opposition to motions, frivolous appeals or issues on appeal, and frivolous defenses or defenses on appeal. Either a party or the court can raise this issue. A hearing must be held and the court has discretion to impose discipline, including prohibiting the attorney's appearance in court or filing papers in court for a reasonable period of time; imposing a fine; and ordering payment of costs, expenses, and attorney's fees to the opposing party (Practice Book 85-2). Other rules can sanction conduct before the Appellate Court and Supreme Court.

COURT'S INHERENT AUTHORITY

Trial courts have the inherent authority to impose sanctions against an attorney and his or her client for a course of dilatory, bad faith, and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated (CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375 (1996), overturned in part on other grounds, State v. Salmon, 250 Conn. 177(19999)).

In Fattibene v. Kealey (18 Conn.App. 344 (1989)), the Appellate Court upheld a trial court's sanction for bad faith pleading even in the absence of a violation of a specific rule or court order. The Appellate Court stated that there is inherent authority to assess attorney's fees when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. The bad faith exception applies not only to the filing of an action but also in the conduct of the litigation. And it applies both to the party and counsel. There must be clear evidence that the actions are entirely without “color” and are taken to harass, delay, or for other improper purposes. Whether a claim is “colorable” depends on whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. The court must assess whether there has been substantive bad faith as exhibited by, for example, a party's use of oppressive tactics or its willful violation of court orders.

RULES OF PROFESSIONAL CONDUCT

Courts can also sanction attorneys for violating the Rules of Professional Conduct and attorneys can be subject to grievances for their violations.

Rule 3.1 prohibits lawyers from bringing a frivolous action or asserting a frivolous issue. A violation may result in a reprimand, suspension, or disbarment. Rule 3.1 provides in relevant part:

“A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.”

The official comment to the rule acknowledges that the law is not always clear and is never static. The law's ambiguities and potential for change must be taken into account. A claim is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. The comment also states that an action is not frivolous even though the lawyer believes the client's position ultimately will not prevail.

According to the comment, an action is frivolous if the client desires to pursue it primarily to harass or maliciously injure a person, or if the lawyer cannot make a good faith argument on the merits of the action or a good faith argument for an extension, modification, or reversal of existing law.

Other rules that may be relevant include:

1. Rule 3.2, which requires a lawyer to make reasonable efforts to expedite litigation consistent with the client's interests.

2. Rule 3.3, which requires candor towards the tribunal including prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal;

3. Rule 3.4, which requires fairness to the opposing party and counsel, including a prohibition against knowingly disobeying an obligation under the rules of a tribunal except for an open refusal based on asserting that no valid obligation exists; and

4. Rule 8.4, governing misconduct including violating or attempting to violate the Rules of Professional Conduct; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaging in conduct that is prejudicial to the administration of justice.

COMMON LAW

Common law actions still appear to exist along side the statutory action for vexatious suits in Connecticut (Wright, Fitzgerald, and Ankerman, Connecticut Law of Torts). Abuse of process is available when someone uses “the legal process against another in an improper manner or to accomplish a purpose for which it was not designed” (Mozzochi v. Beck, 204 Conn. 490 (1987)). A vexatious suit action may be brought by a party if a previous civil action was (1) without probable cause, (2) brought with a malicious purpose, and (3) terminated in favor of the party. Probable cause is knowledge of facts to justify to a reasonable person the belief that there are reasonable grounds for the action (DeLaurentis v. New Haven, 220 Conn. 225 (1991)).

Slander of title is also a possibility when the disparagement of title to land is involved. This requires a false, malicious written statement about the title to property and CGS 47-33j sets out recoverable damages. Under that statute, if someone records a claim to an interest in land with the purpose of slandering title, the court can award the plaintiff the costs of the action, including attorneys' fees, and damages the plaintiff may have sustained as a result of the notice of claim having been recorded.

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