Greene v. Keating

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BRENDA GREENE v. KEVIN KEATING ET AL.
(AC 41333)
Prescott, Bright, and Harper, Js.

Syllabus

The plaintiff sought to recover damages from the defendant law firm R
Co. for statutory (§ 52-568) vexatious litigation in connection with its
representation of K and N in a prior action they had brought against
her. In the prior action, K and N had filed a multicount complaint alleging
various claims, including prescriptive easement, and the plaintiff filed
a counterclaim alleging misuse of an easement and trespass. Following
a trial in the prior action, the court found in favor of the plaintiff on all
counts of the complaint and in favor of K and N on the counterclaim.
Thereafter, the plaintiff commenced the present action for vexatious
litigation as to each count alleged in the complaint in the prior action.
The court found in favor of R Co. on all of the counts except the count
alleging vexatious litigation in the pursuit of K and N’s prescriptive
easement claim. The court found that R Co. had lost probable cause
to pursue that claim in October, 2008, following its receipt of certain
disclosures that made the claim untenable and that continuing to pursue
it violated § 52-568. The court determined that the plaintiff was entitled
to an award of double damages under § 52-568 for litigation of that claim
after October, 2008; however, because the only damages that the plaintiff
sought were the attorney’s fees incurred in defending the underlying
action, the court declined to award damages because the plaintiff had
not provided the required apportionment between the attorney’s fees
related to the defense of the prescriptive easement claim after October,
2008, and those related to the defense of the other claims. Thereafter,
the plaintiff, at the court’s direction, submitted an affidavit from her
attorney, with accompanying exhibits, and claimed damages in the
amount of $460,878.08 for attorney’s fees. Following a hearing, the trial
court rendered judgment in favor of R Co., concluding that the plaintiff
had relied on the wrong legal standard and that she again had failed to
meet her burden of proving, as close as possible, the actual portion of
attorney’s fees that were attributable directly to the litigation of the
prescriptive easement claim. Thereafter, the plaintiff appealed and R
Co. cross appealed to this court. Held:
1. The plaintiff could not prevail on her claim that the trial court improperly
concluded that she failed to present evidence that would allow it reason-
ably to calculate her damages and that the court erred when it failed
to apply the common nucleus test for apportionment to her claim for
attorney’s fees: that court properly determined that the common nucleus
test was inappropriate in this case because in a vexatious litigation case
such as this case, in which the plaintiff has prevailed on only one of
several claims and there is no additional costs borne in defending against
a vexatious claim, as those costs were necessary to the defense of viable
claims or to the prosecution of a counterclaim, the plaintiff has not
suffered any damages; moreover, the trial court’s finding that the plaintiff
failed to prove the amount of her damages was not clearly erroneous,
as the court properly found that, although the defense of the prescriptive
easement claim was significant in the underlying trial, the plaintiff’s
trespass counterclaim was basically the reciprocal of the prescriptive
easement claim and would have necessitated the resolution of most of
the same elements of prescriptive easement even if the prescriptive
easement claim had not been pursued, and, consequently, it determined
that the plaintiff had not proven the amount of her attorney’s fees solely
attributable to her defense of the prescriptive easement claim.
2. R Co.’s cross appeal challenging the trial court’s conclusion that the
plaintiff had established one of her causes of action was dismissed, R
Co. having lacked standing because judgment had been rendered in its
favor, and, therefore, it was not aggrieved by the judgment.
Argued January 14—officially released May 26, 2020

Procedural History
Action to recover damages for vexatious litigation,
and for other relief, brought to the Superior Court in
the judicial district of Stamford-Norwalk, where the
court, Hon. A. William Mottolese, judge trial referee,
granted the plaintiff’s motion to substitute Nancy Keat-
ing, administratrix of the estate of Kevin Keating, as a
defendant; thereafter, the court, Heller, J., denied the
plaintiff’s motion for summary judgment and granted
the motion for summary judgment filed by the defen-
dant Nancy Keating et al. and rendered judgment
thereon; subsequently, the case was tried to the court,
Lee, J.; judgment for the defendant Rucci, Burnham,
Carta, Carello & Reilly, LLP, from which the plaintiff
appealed and the defendant Rucci, Burnham, Carta,
Carello & Reilly, LLP, cross appealed to this court.
Affirmed; cross appeal dismissed.
Colin B. Conner, with whom, on the brief, was Robert
D. Russo III, for the appellant-cross appellee (plaintiff).
Robert C. E. Laney, with whom, on the brief, was
Liam M. West, for the appellee-cross appellant (defen-
dant Rucci, Burnham, Carta, Carello & Reilly, LLP).
Opinion

BRIGHT, J. The plaintiff, Brenda Greene, appeals
from the judgment of the trial court rendered in favor
of the defendant law firm, Rucci, Burnham, Carta, Care-
llo & Reilly, LLP,1 in the plaintiff’s vexatious litigation
action. On appeal, Greene claims that the court improp-
erly concluded that, although she had established one
of her vexatious litigation claims against the defendant,
the defendant was entitled to judgment in its favor
because Greene failed to prove the amount of her dam-
ages. Specifically, Greene claims that the court improp-
erly concluded that she failed to present evidence that
would allow the court reasonably to calculate damages
in the form of attorney’s fees. We affirm the judgment
of the trial court.2
The following facts, as found by the trial court or as
uncontested in the record, and procedural history are
relevant to this appeal. In the underlying case, the Keat-
ings had brought a multicount complaint against Greene
sounding in prescriptive easement, implied easement,
interference with a right-of-way, malicious erection of
a structure, private nuisance, and disturbance of right of
use. Greene asserted a two count counterclaim alleging
misuse of an easement and trespass. After a trial to the
court, the court, in an April 23, 2010 memorandum of
decision, found in favor of Greene on all counts of the
complaint and in favor of the Keatings on the coun-
terclaim.
On October 1, 2010, Greene commenced the present
action against the defendant and the Keatings for vexa-
tious litigation as to each count that had been alleged
by the Keatings in the underlying case. The Keatings
raised the special defense of advice of counsel, and
they filed a motion for summary judgment. Following
the court’s rendering of summary judgment in favor of
the Keatings on their special defense, the vexatious
litigation case against the defendant proceeded to a
trial before the court.
In a July 19, 2017 memorandum of decision, the court
found in favor of the defendant on all pursued counts,
with the exception of the count alleging vexatious liga-
tion in the pursuit of the Keatings’ claim for a prescrip-
tive easement. As to that count, the court found that,
although the defendant initially had probable cause to
allege a cause of action for prescriptive easement
against Greene, it lost probable cause as to that count
following sworn disclosures made to it by the Keatings’
predecessor in title, who told the defendant in October,
2008, that she had widened the right-of-way at issue in
the underlying case specifically at the request of, and
with the permission of, Greene’s predecessor in title.
The court concluded, therefore, that the defendant
thereafter knew that the permissive nature of the
expanded right-of-way made the claim for a prescriptive
easement untenable and that continuing to assert the
claim violated General Statutes § 52-568 (1),3 the vexa-
tious litigation statute. The court further concluded that
there was no basis for a finding of malice against the
defendant and that Greene, therefore, was not entitled
to an award of treble damages but that, instead, she
was entitled to an award of double damages as permit-
ted under § 52-568 for litigation of the prescriptive ease-
ment claim after October, 2008. Because the only dam-
ages sought by Greene were the attorney’s fees she
incurred in defending against the Keatings’ claims in
the underlying action, to award damages the court had
to determine how much of those fees related to the
defense of the prescriptive easement claim after Octo-
ber, 2008. The court found, however, that the plaintiff
had ‘‘not provided the required apportionment between
(a) costs relating to the defendant’s continued prosecu-
tion of the first count for a prescriptive easement after
October, 2008, and (b) costs related to defending the
[other counts].’’ In ‘‘fairness’’ to Greene, the court spe-
cifically permitted and requested ‘‘further submissions
and a hearing on the issue of apportionment of dam-
ages,’’ and it directed Greene to ‘‘submit an affidavit
of claim with exhibits asserting how she believes her
expenses should be apportioned between the cost of
opposing the claim for the prescriptive easement after
October, 2008, and her other costs.’’
Greene thereafter submitted an affidavit from her
attorney, with accompanying exhibits. Greene asserted
that she was billed $261,331.82 from October 1, 2008
through May 1, 2010, for attorney’s fees, and, after some
adjustments, that $230,439.04 was the actual amount
of her damages, which, when doubled, amounted to
$460,878.08. The defendant objected on several
grounds, including that the amount of claimed attor-
ney’s fees clearly included matters well beyond the cost
of defending against the prescriptive easement claim
and that it included the cost of litigating the counts
of Greene’s counterclaim. The court concluded that
Greene was relying on the wrong legal standard in
arguing her damages and that she had the burden of
proving, as closely as possible, the actual portion of
attorney’s fees that were attributable directly to the
litigation of the prescriptive easement claim. After con-
cluding that Greene again had failed to meet her burden,
the court rendered judgment in favor of the defendant.
This appeal followed. Additional facts will be set forth
as necessary.
Greene claims that the court improperly concluded
that she failed to present evidence that would allow
the court reasonably to calculate her damages. She
argues that she did provide sufficient evidence. Addi-
tionally, she argues that the court erred when it failed
to apply the ‘‘common nucleus test for apportionment’’
of attorney’s fees to her vexatious litigation claim. She
proposes that the attorney’s fees awarded in a vexatious
litigation action are punitive in nature and that the
appropriate test to be used in calculating damages is
the one articulated in Total Recycling Services of Con-
necticut, Inc. v. Connecticut Oil Recycling Services,
LLC, 308 Conn. 312, 333, 63 A.3d 896 (2013) (Total
Recycling) (‘‘when certain claims provide for a party’s
recovery of contractual attorney’s fees but others do
not, a party is nevertheless entitled to a full recovery
of reasonable attorney’s fees if an apportionment is
impracticable because the claims arise from a common
factual nucleus and are intertwined’’). We conclude that
the court used the proper test and that its finding that
the plaintiff failed to meet her burden of proving the
actual amount of her damages was not clearly
erroneous.4
‘‘It is axiomatic that the burden of proving damages
is on the party claiming them. . . . Damages are recov-
erable only to the extent that the evidence affords a
sufficient basis for estimating their amount in money
with reasonable certainty. . . . [T]he court must have
evidence by which it can calculate the damages, which
is not merely subjective or speculative . . . but which
allows for some objective ascertainment of the amount.
. . . This certainly does not mean that mathematical
exactitude is a precondition to an award of damages,
but we do require that the evidence, with such certainty
as the nature of the particular case may permit, lay a
foundation [that] will enable the trier to make a fair
and reasonable estimate.’’ (Citations omitted; internal
quotation marks omitted.) Weiss v. Smulders, 313 Conn.
227, 253–54, 96 A.3d 1175 (2014). Although the appor-
tionment of damages in a vexatious litigation action may
be difficult when a defendant had joined meritorious
causes of action with vexatious causes of action in the
underlying case, ‘‘the plaintiff in a vexatious [litigation]
action, like any other plaintiff, has the burden of proving
damages.’’ DeLaurentis v. New Haven, 220 Conn. 225,
269, 597 A.2d 807 (1991). ‘‘The trial court’s determina-
tion that damages have not been proved to a reasonable
certainty is reviewed under a clearly erroneous stan-
dard.’’ Weiss v. Smulders, supra, 254. ‘‘The trial court’s
determination of the proper legal standard in any given
case [however] is a question of law subject to our ple-
nary review.’’ (Internal quotation marks omitted.) Total
Recycling, supra, 308 Conn. 326.
In response to Greene’s submission in support of her
claim for $460,878.08 in damages, the defendant filed a
memorandum of law in opposition, arguing that Greene
had not met her burden and that the claimed amount
of damages ‘‘borders on bad faith.’’ Specifically, the
defendant argued that Greene was not entitled to any
fees that related to the cost of her pursuit of the counts
of her counterclaim, and that she was entitled to claim
only attorney’s fees that she had incurred specifically
in defending the prescriptive easement claim in the
underlying case. The defendant further argued that the
affidavit from Greene’s attorney and the accompanying
summary of the bills from the underlying case5 did not
apportion fees as instructed by the trial court and were
insufficient to establish her claim for damages.6
During the hearing in damages, the court, citing to
Bernhard-Thomas Building Systems, LLC v. Dunican,
286 Conn. 548, 944 A.2d 329 (2008), explained to the
parties that the ‘‘purpose of [an action for vexatious
litigation] is to compensate a wronged individual for
damage to his reputation and to reimburse him for the
expense of defending against the unwarranted action.’’
The court then explained to Greene that the documents
she submitted did not apportion the attorney’s fees as
the court had requested. Greene argued that the bulk
of the attorney’s fees were necessary to defend against
the prescriptive easement claim because all of the
claims were interrelated. The defendant, on the other
hand, argued that the bulk of the claimed fees would
have been necessary even if it had dropped the prescrip-
tive easement claim in the underlying action, and, there-
fore, they were not attributable to the defense of the
prescriptive easement claim. At the close of the hearing,
the court stated that it would ‘‘do [its] best here.’’
In its January 16, 2018 memorandum of decision, the
court explained: ‘‘Where [a] plaintiff cannot show that
the [vexatious] claim caused additional expense beyond
the defense of the proper claims, she has failed to prove
her damages and no recovery can be had.’’ The court
also explained that the severity of this rule is mitigated
by the rule that damages need not be proven with exacti-
tude but that they, nonetheless, must be established
with a fair and reasonable estimate. Thereafter, the
court concluded that Greene had not proven her entitle-
ment to $460,878.08 in damages, in part, because
Greene’s counterclaim for trespass, was ‘‘basically the
reciprocal of the claim for a prescriptive easement, and
would have necessitated the resolution of most of the
same elements of prescriptive easement, even if the
[defendant] had dropped the [prescriptive easement]
count of the complaint [in the underlying action].’’ The
court then held that ‘‘[b]ecause [Greene’s] claim for
fees relies on subjective opinion, lacks detail, and relies
on an erroneous application of law, the court cannot
award her any damages arising from the vexatious litiga-
tion of the prescriptive easement issue.’’
On appeal, Greene claims that the court improperly
concluded that she failed to present evidence that
would allow the court reasonably to calculate damages
and that the court erred when it failed to apply the
‘‘common nucleus test for apportionment’’ of attorney’s
fees. We are not persuaded.
We begin with a discussion of Total Recycling on
which Greene principally relies. In that case, the defen-
dant contracted to purchase the plaintiffs’ oil recycling
business. Total Recycling, supra, 308 Conn. 315. The
contract involved three separate contracts, one by
which the defendant purchased the plaintiffs’ equip-
ment, one by which it purchased the plaintiffs’ goodwill,
and one by which one of the plaintiffs agreed not to
compete with the defendant after the business was sold
to the defendant. Id. Two of the parties’ three contracts
entitled the defendant to attorney’s fees in the event
that the plaintiffs breached the contracts. Id. Following
an alleged breach of the contracts by the defendant,
the plaintiff commenced litigation for breach of the
three contracts and for unjust enrichment, seeking dam-
ages, including attorney’s fees. Id., 316. The defendant
pleaded a five count counterclaim, alleging, inter alia,
breach of the contracts, and it also sought attorney’s
fees. Id. The jury found in favor of the plaintiffs on their
unjust enrichment claims but rejected each of their
breach of contract claims. Id. On the defendant’s coun-
terclaim, the jury found that the plaintiffs had breached
each of the three contracts, but it awarded damages
only with respect to one of the breached contracts.
Id. The trial court, thereafter, denied the defendant’s
motion for attorney’s fees because the defendant had
been awarded damages on only the contract that did
not contain a provision for the recovery of attorney’s
fees. Id. The Appellate Court, holding that the defendant
was entitled to attorney’s fees even if it was not awarded
damages on the two contracts that provided for an
award of fees, reversed the judgment of the trial court
with respect to the attorney’s fees issue and remanded
the case for a new hearing. Total Recycling Services of
Connecticut, Inc. v. Connecticut Oil Recycling Ser-
vices, LLC, 114 Conn. App. 671, 680–81, 970 A.2d 807
(2009).
On remand, the trial court concluded that the defen-
dant had failed to apportion the attorney’s fees between
the two contracts that allowed for recovery of those
fees and the one that did not permit recovery of those
fees and that, therefore, the defendant had failed to
meet its burden of proof. Total Recycling, supra, 308
Conn. 317–19. The trial court’s decision thereafter was
upheld by this court but reversed by our Supreme Court,
which held that ‘‘when certain claims provide for a
party’s recovery of contractual attorney’s fees but oth-
ers do not, a party is nevertheless entitled to a full
recovery of reasonable attorney’s fees if an apportion-
ment is impracticable because the claims arise from a
common factual nucleus and are intertwined.’’ Id., 319,
333. This court has reached the same conclusion when
a plaintiff pursues both statutory claims that allow for
the award of attorney’s fees and common-law claims
that do not. See Heller v. D.W. Fish Realty Co., 93 Conn.
App. 727, 735, 890 A.2d 113 (2006) (plaintiff not required
to apportion fees between CUTPA claim that permitted
recovery of attorney’s fees and contract and negligence
claims that did not because ‘‘they depended on the
same facts’’).
Greene argues that the rationale of these cases
applies to her damages claim in this case because her
damages are comprised of the attorney’s fees she
incurred in defending against the prescriptive easement
claim in the underlying case, and her defense of that
claim was based on the same facts as her defense of
the Keatings’ other claims. Accordingly, she argues, it
does not matter that she also needed these facts in her
attempt to establish her counterclaim and to defend
against the Keatings’ nonvexatious claims. We disagree.
The approach in Total Recycling and Heller makes
sense because a party that prevails on a claim that
entitles it to an award of attorney’s fees should not lose
that entitlement simply because it has pursued other
claims for which there is no entitlement. A rule requiring
apportionment in such a circumstance would discour-
age parties from pursuing potentially meritorious
claims for fear that, by doing so, their right to an award
of fees would be diminished. Furthermore, under the
common nucleus of facts approach, the defendant has
the same liability for attorney’s fees regardless of
whether there are claims for which attorney’s fees may
not be awarded. The existence of those claims does
not prejudice the defendant in any way.
By contrast, in a vexatious litigation case such as
this, in which the plaintiff has prevailed on only one of
several claims, the common nucleus of facts rationale
makes little sense. Where there is no additional cost
borne in defending against a vexatious count because
those costs were necessary to the defense of viable
counts or to the prosecution of a counterclaim, the
plaintiff has not suffered any damages.7 See
DeLaurentis v. New Haven, supra, 220 Conn. 268 (plain-
tiff ‘‘must prove the damages attributable to the vexa-
tious charges’’). Put another way, if there is an overlap
of facts between the vexatious claim and the nonvexa-
tious claims, the plaintiff would incur the same costs
of defense had the vexatious claim not been brought.
We, therefore, disagree, as did the trial court, with
Greene’s contention that the court should have applied
the ‘‘common nucleus test for apportionment’’ to her
claim for attorney’s fees.
In the present case, the court properly considered
whether Greene proved that she incurred costs related
to the defense of the prescriptive easement claim that
she would not have incurred if that claim had not been
brought. Although acknowledging that the defense of
the prescriptive easement claim was significant in the
underlying trial, the court also found that Greene’s tres-
pass counterclaim was ‘‘basically the reciprocal of the
claim for a prescriptive easement, and would have
necessitated the resolution of most of the same ele-
ments of prescriptive easement, even if the [defendant]
had dropped [that count] of the complaint.’’ Conse-
quently, the court determined, in part, that Greene had
not proven the amount of her attorney’s fees solely
attributable to her defense of the prescriptive easement
claim. Significantly, despite the opportunities given to
her by the court, Greene made no attempt to prove
damages related solely to defense of the prescriptive
easement claim. This left the court with no basis to
award her damages.
We, therefore, conclude that the court properly deter-
mined that the common nucleus test was inappropriate
for the present case and that its finding that Greene
failed to prove the amount of her damages was not
clearly erroneous.
The judgment is affirmed with respect to the plain-
tiff’s appeal; the defendant’s cross appeal is dismissed.
In this opinion the other judges concurred.
1
Kevin Keating and Nancy Keating also were named as defendants. Kevin
Keating died in February, 2013, and Nancy Keating, administratrix of the
estate of Kevin Keating, was substituted as a defendant. For convenience,
we refer in this opinion to those three defendants collectively as the Keatings.
The trial court previously rendered summary judgment in favor of the Keat-
ings, and Greene has not appealed from that judgment. Accordingly, refer-
ences to the defendant in this opinion are to the law firm.
2
The defendant filed a cross appeal claiming that the court had erred
when it concluded that Greene had established one of her causes of action
against it. Because judgment was rendered in favor of the defendant, it does
not have standing to assert such a cross appeal. See Practice Book § 61-8
(appellee aggrieved by judgment from which appellant appealed may file
cross appeal). Although we have the discretion to consider as an alternative
ground for affirmance the issue raised by the defendant; see Sekor v. Board
of Education, 240 Conn. 119, 121 n.2, 689 A.2d 1112 (1997); because we
affirm the judgment of the trial court, we need not exercise that discretion.
3
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.’’
‘‘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 . . . § 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.’’
(Internal quotation marks omitted.) Scalise v. East Greyrock, LLC, 148 Conn.
App. 176, 181, 85 A.3d 7, cert. denied, 311 Conn. 946, 90 A.3d 976 (2014).
4
Greene also claims that the court committed error in its determination
of the date, specifically, October, 2008, on which the defendant lost probable
cause to pursue the prescriptive easement count of the Keatings’ complaint.
She argues that the date should have been in 2006, when the defendant had
its first interview with the Keatings’ predecessor in title. We conclude that
this claim is without merit. During oral argument before this court, Greene
conceded that there was no evidence that the predecessor in title had told
the defendant about the permissive nature of the widening of the right-of-
way during its first interview with her, and that the trial court was not
required to draw an inference that the defendant must have known this fact
in 2006.
5
Greene had provided copies of all bills during trial.
6
For example, the defendant argued in its memorandum of law: ‘‘The
inherent flaw in . . . Greene’s analysis is also readily apparent from its
ludicrous results. For example, of the 185.1 hours of time spent on trial
preparation as reflected on [her counsel’s] August 13, 2009 invoice . . .
only 8.8 hours is attributed to preparing to defend six counts of the complaint
and to pursue her counterclaim. This represents an allocation of only 4.7
[percent] of the total trial preparation—or, in other words, a claim by . . .
Greene that 95.3 [percent] of [her counsel’s] time spent in trial preparation
was related to the one claim that this court has determined lacked probable
cause. . . . The absurdity of . . . Greene’s argument is obvious.’’ (Empha-
sis omitted.)
7
The plaintiff certainly might be entitled to a judgment in her favor and
an award of nominal damages in such a case. In the present case, however,
the plaintiff neither argues that the form of the court’s judgment was
improper nor does she claim an entitlement to nominal damages. Any possi-
ble error in the form of the trial court’s judgment or in its lack of an award
of nominal damages, therefore, we will not address.