Rozbicki v. Sconyers

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ZBIGNIEW S. ROZBICKI v. J. MICHAEL
SCONYERS ET AL.
(AC 41654)
Bright, Moll and Devlin, Js.

Syllabus

The plaintiff sought to recover damages, including treble damages pursuant
to statute (§ 52-568), for vexatious litigation, alleging that the defendants
had filed special defenses and brought a counterclaim against him with-
out probable cause and with malicious intent. In a prior civil action,
the defendants L and his building company, L Co., had retained the
plaintiff to defend them in that action. During the course of his represen-
tation by the plaintiff, L contacted his insurance company to inquire
about providing a defense for L and L Co. in the civil action pursuant
to their liability insurance policy. The insurance company then engaged
a law firm on L and L Co.’s behalf to defend them. The plaintiff later
commenced an action against L and L Co. seeking to collect outstanding
legal fees incurred for his services in the prior civil action. L and L Co.
retained the services of the defendants S, an attorney, and the law firm
in which he was a partner, A Co., to defend them in the collection action
and, on the advice of S and A Co., L and L Co. filed an answer, two special
defenses and a counterclaim sounding in legal malpractice against the
plaintiff, alleging, inter alia, that the plaintiff had neglected to inquire
of L’s insurance company whether defense coverage was available for
the prior civil action and failed to inform L of the insurance carrier’s
obligation to defend. The plaintiff and L and L Co. reached a settlement
in the collection action, and the counterclaim was withdrawn. The trial
court thereafter granted the separate motions for summary judgment
filed by S and A Co. and L and L Co. in the vexatious litigation action.
On appeal, the plaintiff alleged that the trial court improperly rendered
summary judgment on the grounds that the defendants had probable
cause to assert special defenses and file a counterclaim against the
plaintiff in the collection action and L and L Co. relied in good faith on
the advice of S and A Co. in asserting the special defenses and filing
the counterclaim. Held:
1. The trial court improperly granted the motion for summary judgment
filed by L and L Co.: a genuine issue of material fact existed as to
whether L and L Co. had probable cause to assert the special defenses
and to file the counterclaim in the collection action; although L and L
Co. submitted a number of exhibits indicating that L was not aware, at
the time he hired the plaintiff in the prior civil action, that insurance
coverage entitling him to a defense was available to him, the plaintiff
submitted several exhibits indicating that L was aware at the time he
hired the plaintiff that insurance coverage was available to him but that
he did not wish to submit a claim for such coverage because, inter alia,
he did not want his insurance premiums to increase; moreover, a genuine
issue of material fact existed as to whether L and L Co. relied in good
faith on the advice of S and A Co. in asserting the special defenses and
filing the counterclaim as a factual dispute existed as to whether L
conveyed to S all material facts within his knowledge, as the evidence
demonstrated that L conveyed to S that he did not know of the availability
of insurance defense coverage at the time he hired the plaintiff to defend
him in the prior civil action, but there existed a genuine issue of material
fact as to whether L knew of the availability of insurance coverage and,
thus, whether the advice of S and A Co. was given after a full and fair
statement of all facts within L’s knowledge.
2. The trial court did not err in granting the motion for summary judgment
filed by S and A Co.: the plaintiff’s claim that S failed to perform an
adequate investigation before asserting the special defenses and filing
the counterclaim was unavailing, as S relied on statements and docu-
ments provided to him by his clients, consultation with other attorneys,
his own experience as a practicing attorney in Connecticut for thirty-
six years and legal research, and this information provided S a reasonable
basis on which to assert the special defenses and to file the counterclaim;
moreover, the plaintiff’s claim that S lacked probable cause because he
was not an experienced legal malpractice litigator was unavailing, as S
acted as a reasonable attorney familiar with Connecticut law in believing
that he had probable cause.
Argued February 4—officially released July 7, 2020

Procedural History

Action to recover damages for vexatious litigation,
and for other relief, brought to the Superior Court in
the judicial district of Litchfield, where the court, Hon.
John W. Pickard, judge trial referee, granted the
motions for summary judgment filed by the named
defendant et al. and rendered judgment thereon, from
which the plaintiff appealed to this court. Reversed in
part; further proceedings.
Zbigniew S. Rozbicki, self-represented, the appel-
lant (plaintiff).
Cristin E. Sheehan, with whom, on the brief, was
Robert W. Cassot, for the appellees (named defendant
et al.).
Patrick J. Markey, for the appellees (defendant Fred-
erick J. Laser et al.).
Opinion

MOLL, J. The plaintiff, Zbigniew S. Rozbicki, appeals
from the summary judgment rendered by the trial court
in favor of the defendants, Frederick J. Laser (Laser),
Laser Building Company, J. Michael Sconyers, and Ack-
erly Brown, LLP, on his one count complaint sounding
in vexatious litigation. On appeal, the plaintiff claims
that the court improperly rendered summary judgment
in favor of the defendants on the grounds that (1) the
defendants had probable cause to assert special
defenses and to file a counterclaim in a prior action
commenced by the plaintiff against Laser and Laser
Building Company (Laser defendants),1 and (2) the
Laser defendants relied in good faith on the advice of
J. Michael Sconyers and Ackerly Brown, LLP (Sconyers
defendants),2 their counsel in the prior action, in
asserting the special defenses and filing the counter-
claim. We affirm in part and reverse in part the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In June, 2012,
Laser retained the plaintiff, who, at the time, was an
attorney with an active license to practice law in Con-
necticut,3 to defend the Laser defendants in a civil action
captioned Frey v. Noorani, Superior Court, judicial dis-
trict of Litchfield, Docket No. CV-XX-XXXXXXX-S (Frey
action).4 In March, 2013, while represented by the plain-
tiff, Laser contacted NGM Insurance Company (NGM)
to demand that it provide the Laser defendants with a
defense in the Frey action pursuant to their liability
insurance policy. Soon thereafter, NGM engaged the
law firm Hassett and Donnelly, P.C., to appear on behalf
of the Laser defendants in the Frey action. On March
15, 2013, Attorney Peter G. Barrett filed an appearance
on behalf of the Laser defendants, in lieu of the plaintiff,
in the Frey action.5 Following his appearance in the
Frey action, Attorney Barrett negotiated a settlement
that resolved the action as to the Laser defendants at
no additional cost to them.
In September, 2013, the plaintiff commenced an
action against the Laser defendants seeking to collect
$11,782.50 in outstanding legal fees incurred for his
services in the Frey action. See Rozbicki v. Laser, Supe-
rior Court, judicial district of Litchfield, Docket No.
CV-XX-XXXXXXX-S (collection action).6 Laser hired the
Sconyers defendants to defend the Laser defendants in
the collection action.
In the collection action, the Laser defendants, acting
through the Sconyers defendants as their counsel, filed
an answer, two special defenses, and a one count coun-
terclaim sounding in legal malpractice. The first special
defense alleged that ‘‘[t]he plaintiff’s fees are extreme,
excessive, and unreasonable.’’ The second special
defense alleged that ‘‘[t]he sums already paid to the
plaintiff by the [Laser defendants] far exceed the value
of the services performed by the plaintiff.’’
The counterclaim alleged in relevant part as follows:
‘‘[The plaintiff], in violation of his duty [as the Laser
defendants’ counsel in the Frey action], neglected to
inquire of Laser’s insurance company whether coverage
was available and whether it would defend the lawsuit
under a reservation of rights. . . . [The plaintiff] knew
or should have known that Laser’s insurance company
would defend the action under a reservation of rights
but failed to inform Laser of that fact and in fact coun-
seled Laser not to involve his insurance company in
the proceedings. . . . Laser was informed of the fact
that his insurance company had a duty to defend him
under a reservation of rights by opposing counsel at
his deposition [during the Frey action]. . . . Once
informed of this fact, Laser contacted his insurance
company, which then filed an appearance on his behalf
and was able to promptly settle the matter at no cost
to Laser. . . . The legal advice given by [the plaintiff]
and the course of action undertaken by [the plaintiff] in
representing [the Laser defendants] was inappropriate,
time consuming, costly, and unnecessary. . . . The
fees charged by [the plaintiff] were excessive and unrea-
sonable. . . . [The plaintiff’s] negligence and failure to
properly handle the matter for which his legal services
were retained constitute legal malpractice. . . . Due to
[the plaintiff’s] failure to inform Laser of his insurance
carrier’s obligation to defend, [the plaintiff’s] failure to
contact Laser’s insurance company to inquire about the
policy and the obligation to defend, and [the plaintiff’s]
own incompetence in litigating the case, Laser lost
$7500 which he paid to [the plaintiff] for unnecessary
and unreasonable legal fees.’’ Ultimately, the parties
reached a settlement in the collection action, and the
counterclaim was withdrawn on May 21, 2014.
On July 6, 2015, the plaintiff commenced the present
action against the defendants. In his one count com-
plaint sounding in vexatious litigation,7 the plaintiff
alleged in relevant part that the defendants asserted
the special defenses and filed the counterclaim in the
collection action without probable cause and with a
malicious intent to vex and trouble him. As relief, the
plaintiff sought compensatory damages, in addition to
double and treble damages pursuant to General Statutes
§ 52-568.8 The Laser defendants and the Sconyers defen-
dants, respectively, filed separate answers to the com-
plaint denying the material allegations set forth therein.
The Laser defendants also filed several special
defenses, in support of which they alleged that they
had asserted the special defenses and filed the counter-
claim in the collection action with probable cause, with-
out malice, and in reliance on the advice of counsel.
On July 3, 2017, the Sconyers defendants filed a
motion for summary judgment accompanied by a sup-
porting memorandum of law and exhibits. On July 5,
2017, the Laser defendants filed a separate motion for
summary judgment accompanied by a supporting mem-
orandum of law and exhibits. The plaintiff filed separate
memoranda of law, with exhibits appended thereto, in
opposition to the defendants’ respective motions for
summary judgment. On March 21, 2018, following argu-
ment held on November 27, 2017, the trial court, Hon.
John W. Pickard, judge trial referee, issued a memoran-
dum of decision granting the defendants’ respective
motions for summary judgment. On April 10, 2018, the
plaintiff filed a motion to reargue, which the court
denied on April 19, 2018. This appeal followed. Addi-
tional facts and procedural history will be set forth
as necessary.
Before addressing the plaintiff’s claims on appeal,
we set forth the relevant standard of review and legal
principles governing our analysis. ‘‘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 seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him [or her] to a judgment
as a matter of law . . . and the party opposing such
a motion must provide an evidentiary foundation to
demonstrate the existence of a genuine issue of material
fact. . . . A material fact . . . [is] a fact which will
make a difference in the result of the case. . . . Finally,
the scope of our review of the trial court’s decision to
grant [a] motion for summary judgment is plenary.’’
(Internal quotation marks omitted.) Rutter v. Janis, 334
Conn. 722, 729, 224 A.3d 525 (2020).
‘‘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.) Rockwell v. Rockwell, 196 Conn. App. 763,
769–70, A.3d (2020).
‘‘[T]he legal idea of probable cause is a bona fide
belief in the existence of the facts essential under the
law for the action and such as would warrant a person
of ordinary caution, prudence and judgment, under the
circumstances, in entertaining it. . . . Probable cause
is the knowledge of facts, actual or apparent, strong
enough to justify a reasonable man [or woman] in the
belief that he [or she] has lawful grounds for prosecut-
ing the defendant in the manner complained of. . . .
Thus, in the context of a vexatious suit action, the
defendant lacks probable cause if he [or she] lacks a
reasonable, good faith belief in the facts alleged and
the validity of the claim asserted. . . . [T]he existence
of probable cause is an absolute protection against an
action for [vexatious litigation], and what facts, and
whether particular facts, constitute probable cause is
always a question of law. . . .
‘‘[In Falls Church Group, Ltd. v. Tyler, Cooper &
Alcorn, LLP, 281 Conn. 84, 912 A.2d 1019 (2007)] [o]ur
Supreme Court . . . had the opportunity to consider
whether a higher legal standard of probable cause
should be applied to attorneys and law firms sued for
vexatious litigation. . . . After considering the statute
and the competing policy interests, the court concluded
that a higher standard should not apply. . . . Instead,
in assessing probable cause, the court phrased the criti-
cal question as 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 neces-
sarily dependent on what the attorney knew when he
or she initiated the lawsuit.’’ (Citations omitted; internal
quotation marks omitted.) Byrne v. Burke, 112 Conn.
App. 262, 274–75, 962 A.2d 825, cert. denied, 290 Conn.
923, 966 A.2d 235 (2009).
‘‘[P]robable cause may be present even where a suit
lacks merit. Favorable termination of the suit often
establishes lack of merit, yet the plaintiff in [vexatious
litigation] must separately show lack of probable cause.
. . . The lower threshold of probable cause allows
attorneys and litigants to present issues that are argua-
bly correct, even if it is extremely unlikely that they
will win . . . . Were we to conclude . . . that a claim
is unreasonable wherever the law would clearly hold
for the other side, we could stifle the willingness of a
lawyer to challenge established precedent in an effort
to change the law. The vitality of our [common-law]
system is dependent upon the freedom of attorneys to
pursue novel, although potentially unsuccessful, legal
theories.’’ (Citations omitted; emphasis omitted; inter-
nal quotation marks omitted.) Falls Church Group, Ltd.
v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn.
103–104.
As it relates to the present action, the counterclaim
filed by the defendants in the collection action sounded
in legal malpractice. ‘‘Malpractice is commonly defined
as the failure of one rendering professional services to
exercise that degree of skill and learning commonly
applied under all the circumstances in the community
by the average prudent reputable member of the profes-
sion with the result of injury, loss, or damage to the
recipient of those services . . . . Generally, a plaintiff
alleging legal malpractice must prove all of the follow-
ing elements: (1) the existence of an attorney-client
relationship; (2) the attorney’s wrongful act or omis-
sion; (3) causation; and (4) damages.’’ (Internal quota-
tion marks omitted.) Costello & McCormack, P.C. v.
Manero, 194 Conn. App. 417, 431, 221 A.3d 471 (2019).
I
We first turn to the plaintiff’s claim that the trial court
improperly granted the Laser defendants’ motion for
summary judgment. Specifically, the plaintiff contends
that there were genuine issues of material fact as to
whether the Laser defendants (1) had probable cause
to assert the special defenses and to file the counter-
claim in the collection action, and (2) relied in good
faith on the advice of the Sconyers defendants in
asserting the special defenses and filing the counter-
claim. We agree.9
The following additional facts and procedural history
are relevant to our resolution of this claim. In their
memorandum of law in support of their motion for
summary judgment, the Laser defendants claimed that
they asserted the special defenses and filed the counter-
claim with probable cause, without malice, and in reli-
ance on the advice of the Sconyers defendants. As to
probable cause, the Laser defendants contended that
Laser asked the plaintiff during the Frey action for
advice about duty to defend coverage in connection
with the Frey action, but the plaintiff failed to determine
whether the Laser defendants had such coverage and
dissuaded Laser from demanding a defense from NGM.
The Laser defendants further asserted that Sconyers
advised them that the plaintiff had breached an obliga-
tion that he owed to them to determine whether they
had duty to defend coverage available to them with
respect to the Frey action and, if so, to demand a
defense. As to their advice of counsel defense, the Laser
defendants claimed that Laser provided to Sconyers all
relevant documents and facts regarding the Frey action
and the collection action, and that, on the basis thereof,
Sconyers recommended that the Laser defendants
assert the special defenses and file the counterclaim.
The Laser defendants further contended that they relied
in good faith on Sconyers’ advice. The Laser defendants
submitted several exhibits in support of their motion
for summary judgment, including personal affidavits of
Laser and Sconyers.
In opposing the Laser defendants’ motion for sum-
mary judgment, the plaintiff argued, inter alia, that there
were genuine issues of material fact regarding whether
the Laser defendants (1) had probable cause to assert
the special defenses and to file the counterclaim and
(2) relied in good faith on the advice of the Sconyers
defendants. Specifically, the plaintiff argued that there
was evidence in the record demonstrating that, at the
time that Laser retained the plaintiff to represent the
Laser defendants in the Frey action, Laser knew that
there was duty to defend coverage available to the Laser
defendants in the Frey action, but, for financial reasons,
he chose to retain the plaintiff as counsel rather than
demand a defense from NGM. The plaintiff asserted
that Laser’s knowledge of the Laser defendants’ duty
to defend coverage deprived the Laser defendants of
probable cause to assert the special defenses and to
file the counterclaim, which were predicated on the
plaintiff’s failure to advise Laser about insurance cover-
age. Additionally, the plaintiff argued that there was
evidence in the record establishing that Laser provided
Sconyers with false or incomplete information, and,
therefore, the Laser defendants could not have relied
in good faith on the advice of the Sconyers defendants.
The plaintiff submitted several exhibits in support of
his memorandum of law in opposition to the Laser
defendants’ motion for summary judgment, including a
personal affidavit and copies of correspondence
exchanged between the plaintiff and Laser.
In granting the Laser defendants’ motion for summary
judgment, the trial court concluded that, although not
yet recognized in Connecticut, an attorney’s obligation
to his or her client ‘‘arguably’’ includes the duty to
advise the client ‘‘on the most affordable course of
action including an investigation of potential insurance
coverage,’’ such that the Laser defendants’ belief that
the plaintiff had a duty to advise Laser as to insurance
coverage during the Frey action was reasonable. The
court further concluded that, on the basis of evidence
submitted by the Laser defendants indicating that Laser
had told Sconyers that the plaintiff did not advise him to
seek a determination regarding duty to defend coverage
but rather dissuaded him from pursuing such a determi-
nation, there was no genuine issue of material fact that
the defendants had probable cause to file the counter-
claim sounding in legal malpractice in the collection
action. The court proceeded to reject several of the
plaintiff’s arguments directed to the Sconyers defen-
dants, and determined that the plaintiff’s personal affi-
davit raised no genuine issue of material fact as to
whether probable cause existed to file the coun-
terclaim.
Having concluded that the Laser defendants had
probable cause to file the counterclaim, the court con-
cluded that they likewise had probable cause to assert
the special defenses. Specifically, the court stated that if
the plaintiff had advised the Laser defendants regarding
insurance coverage during the Frey action, then NGM
would have assigned counsel to defend them at the
outset of the Frey action at no cost, and, thus, they
never would have incurred the plaintiff’s legal fees.
Additionally, the court granted the Laser defendants’
motion for summary judgment on the separate ground
that there was no genuine issue of material fact that
the Laser defendants relied in good faith on the advice
of the Sconyers defendants in asserting the special
defenses and filing the counterclaim—advice of counsel
being an absolute defense to the plaintiff’s vexatious
litigation claim.
On appeal, the plaintiff does not assert that a legal
malpractice claim predicated on an attorney’s failure
to advise his or her client regarding insurance coverage
is not viable, nor does he dispute that he did not advise
Laser about insurance coverage. Instead, the plaintiff
maintains that he had no reason to counsel Laser about
insurance matters because, as evidence in the record
indicated, Laser, when he retained the plaintiff in the
Frey action in June, 2012, knew that NGM would pro-
vide a defense to the Laser defendants in the Frey
action, but, for financial reasons, Laser chose to retain
the plaintiff rather than submit to NGM a demand for
a defense.10 In essence, the plaintiff contends that there
was a genuine issue of material fact regarding whether
the Laser defendants had probable cause to assert the
special defenses and to file the counterclaim, both being
predicated on the plaintiff’s failure to advise Laser about
insurance coverage. Additionally, the plaintiff argues
that there was a genuine issue of material fact as to
whether the Laser defendants relied in good faith on
the advice of the Sconyers defendants because there
was evidence in the record indicating that Laser did
not provide Sconyers with all material facts within his
knowledge. We address each claim in turn.
A
We first consider the plaintiff’s claim that there was
a factual dispute regarding Laser’s knowledge, at the
time that he retained the plaintiff in the Frey action in
June, 2012, of duty to defend coverage available to the
Laser defendants, and, therefore, a genuine issue of
material fact existed as to whether the Laser defendants
had probable cause to assert the special defenses and to
file the counterclaim in the collection action. We agree.
As a preliminary matter, we observe that the factual
issue of whether Laser, in June, 2012, knew that the
Laser defendants were entitled to a defense provided
by NGM was material to the legal question of whether
the Laser defendants had probable cause to assert the
special defenses and to file the counterclaim. See Rutter
v. Janis, supra, 334 Conn. 729 (‘‘[a] material fact . . .
[is] a fact which will make a difference in the result of
the case’’ (internal quotation marks omitted)). The legal
theory underlying the special defenses and the counter-
claim was that the plaintiff, when retained by Laser in
the Frey action, had a duty to determine whether the
Laser defendants had insurance coverage for the
defense of the Frey action and, if so, to advise Laser
to seek a formal determination regarding said coverage.
The Laser defendants contended that, as a result of the
plaintiff’s breach of that duty, Laser did not discover
the Laser defendants’ entitlement to a defense by NGM
until nearly one year following their involvement in the
Frey action, during which time they incurred legal fees
owed to the plaintiff that never would have accrued
had they been provided with a defense by NGM at the
outset of the Frey action. Implicit in the Laser defen-
dants’ claim was that Laser, when he hired the plaintiff
in the Frey action, was unaware that NGM would have
provided a defense to the Laser defendants in the Frey
action immediately upon the submission of a proper
demand. Consequently, if Laser knew at that time that
the Laser defendants were entitled to such a defense,
then the Laser defendants would not have had a reason-
able, good faith basis on which to assert the special
defenses and to file the counterclaim predicated on
the plaintiff’s failure to determine whether Laser had
insurance coverage and to advise Laser thereabout. To
summarize, if a genuine issue of material fact existed
as to Laser’s knowledge, at the time that he had hired
the plaintiff in the Frey action, regarding the Laser
defendants’ entitlement to a defense by NGM in connec-
tion with the Frey action, then the Laser defendants
were not entitled to summary judgment as to the issue
of probable cause.
The Laser defendants submitted a number of exhibits
indicating that Laser was not aware in June, 2012, when
he retained the plaintiff in the Frey action, that insur-
ance coverage entitling the Laser defendants to a
defense in the Frey action was available. In his personal
affidavit, Laser averred that he submitted a demand for
a defense to NGM in connection with the Frey action
only after learning from opposing counsel during his
deposition in the Frey action, conducted on March 5,
2013, that NGM was likely obligated to provide the Laser
defendants with a defense. In a letter addressed to the
plaintiff dated August 20, 2013, Laser similarly repre-
sented that he was prompted to submit a demand for
a defense to NGM once opposing counsel in the Frey
action had advised him that NGM was obligated to
provide the Laser defendants with a defense in the
Frey action. Additionally, in an e-mail from Laser to
the plaintiff dated October 15, 2013, Laser wrote that,
during his first meeting with the plaintiff in the course
of the Frey action, Laser told the plaintiff that Laser’s
wife had been informed by their insurance agency, Cur-
tis Insurance Agency, Inc. (Curtis), that the Laser defen-
dants were not entitled to insurance coverage with
respect to the Frey action. Collectively, this evidence
suggests that, at the time that Laser hired the plaintiff
in the Frey action, Laser was under the impression that
duty to defend coverage in connection with the Frey
action was not available to the Laser defendants and
that he first became aware of such coverage in
March, 2013.
In contrast, the plaintiff submitted several exhibits
indicating that Laser was aware in June, 2012, that the
Laser defendants had duty to defend coverage available
to them in connection with the Frey action. In his per-
sonal affidavit, the plaintiff averred that Laser, when
Laser retained him in the Frey action, told him that
Curtis informed Laser that insurance coverage would
be available to the Laser defendants with respect to the
Frey matter, but Laser did not wish to submit a claim
for such coverage because, inter alia, he did not want
his insurance premiums to increase. Additionally, Paul
Koneazny, an employee of Curtis, during his deposition
in the collection matter, testified in relevant part that
(1) sometime prior to the Laser defendants’ involvement
in the Frey action, Laser’s wife told Curtis that there
was a possibility that a legal claim would be made
against the Laser defendants, (2) Curtis instructed
Laser’s wife to notify it promptly if any such claim was
filed, (3) Curtis never advised Laser or his wife that they
were not entitled to insurance coverage with respect
to the Frey action, and (4) Curtis first learned of the
Frey action in March, 2013. Finally, in an e-mail from
Laser to another attorney involved in the Frey action,
on which the plaintiff and Attorney Barrett were copied,
dated April 1, 2013, Laser wrote in relevant part that
‘‘when [Laser] initially spoke with [the plaintiff] about
the [Frey action] [Laser] was under the impression that
due to the overreaching and frivolous nature of the
lawsuit it would be thrown out with minimum cost and
paperwork. [The Laser defendants] did not anticipate
the case would become as complicated and expensive
as it has become thus the recent involvement of the
insurance company.’’ (Emphasis added.) Collectively,
this evidence suggests that Laser knew, in June, 2012,
that the Laser defendants were entitled to a defense in
connection with the Frey action, but that he chose to
forgo submitting a demand for a defense to NGM until
the complexity and cost thereof became too great.
In light of the foregoing, we agree with the plaintiff
that there existed a genuine issue of material fact
regarding Laser’s knowledge, at the time that he
retained the plaintiff in the Frey action, of the Laser
defendants’ entitlement to insurance coverage for the
defense of the Frey action. Accordingly, the trial court
improperly granted the Laser defendants’ motion for
summary judgment on the ground that the Laser defen-
dants had probable cause to assert the special defenses
and to file the counterclaim in the collection action.
B
We next address the plaintiff’s claim that there was
a genuine issue of material fact as to whether the Laser
defendants relied in good faith on the advice of the
Sconyers defendants in asserting the special defenses
and filing the counterclaim in the collection action.
Specifically, the plaintiff asserts that there was a factual
dispute as to whether Laser conveyed to Sconyers all
material facts within his knowledge. We agree.
‘‘Advice of counsel is a complete defense to an action
of . . . [malicious prosecution or] vexatious suit when
it is shown that the [client] . . . instituted his [or her]
civil action relying in good faith on such advice, given
after a full and fair statement of all facts within his [or
her] knowledge, or which he [or she] was charged with
knowing. . . .
‘‘In determining whether a [client] gave a full and fair
statement of the facts within his or her knowledge to
counsel, reliance on whether the omitted information
would have had any impact on counsel’s decision to
bring the allegedly vexatious action . . . is irrelevant
. . . because, as a matter of law, showing an impact
on an attorney’s ultimate course of action is not an
element of the defense of reliance on counsel. . . . The
ultimate issue is whether the [client] failed to provide
his or her counsel with a fact within his or her knowl-
edge that was material to the action. . . . In other
words, a client should not be permitted to rely upon
the defense of advice of counsel if the client did not
disclose all of the material facts related to a potential
claim, because the lawyer cannot render full and accu-
rate legal advice regarding whether there is a good faith
basis to bring the claim in the absence of knowledge
of all material facts. In such instances, a client’s reliance
on the advice of counsel is unreasonable regardless of
whether the material facts would have altered counsel’s
assessment of the validity of the claim.’’ (Citations omit-
ted; internal quotation marks omitted.) Rogan v.
Rungee, 165 Conn. App. 209, 227–29, 140 A.3d 979
(2016).
Our resolution of this claim is guided by our conclu-
sion in part I A of this opinion that a genuine issue of
material fact existed as to whether Laser, at the time
that he hired the plaintiff in the Frey action, had knowl-
edge of the availability of duty to defend coverage to
the Laser defendants. The evidence submitted with
regard to the Laser defendants’ motion for summary
judgment, including the respective personal affidavits
of Laser and Sconyers, in addition to correspondence
exchanged between Laser and the plaintiff that Scon-
yers reviewed, demonstrates that Laser conveyed to
Sconyers that Laser, at the time that he retained the
plaintiff in the Frey action, was unaware that the Laser
defendants were entitled to a defense provided by NGM
in the Frey action. If the information provided from
Laser to Sconyers was inaccurate or incomplete, then
Laser could not have relied in good faith on Sconyers’
advice. Thus, because there existed a genuine issue of
material fact as to Laser’s knowledge regarding insur-
ance coverage in the defense of the Frey action, a genu-
ine issue of material fact also existed as to whether
Laser provided Sconyers with all of the material facts
that he knew. Accordingly, the trial court improperly
granted the Laser defendants’ motion for summary judg-
ment on the ground that the Laser defendants relied in
good faith on the advice of the Sconyers defendants,
given after a full and fair statement of all facts within
Laser’s knowledge, in asserting the special defenses
and filing the counterclaim.11
II
We next address the plaintiff’s claim that the trial
court improperly granted the Sconyers defendants’
motion for summary judgment. For the reasons that
follow, we disagree.
The following additional facts and procedural history
are relevant to our resolution of this claim. In their
memorandum of law in support of their motion for
summary judgment, the Sconyers defendants asserted
that a reasonable attorney familiar with Connecticut
law would have believed that probable cause existed
in the collection action to assert the special defenses
and to file the counterclaim. Underlying their claim was
Sconyers’ belief that, on being retained in the Frey
action, the plaintiff had a duty to advise Laser to make a
formal determination as to whether there was insurance
coverage available to provide the Laser defendants with
a defense in the Frey action.
With respect to the special defenses in particular, the
Sconyers defendants contended that Sconyers investi-
gated whether the legal fees that the plaintiff charged
the Laser defendants with regard to the Frey action
corresponded to the services that the plaintiff had pro-
vided to them, and, on the basis of his forty years of
experience as a practicing attorney, Sconyers deter-
mined that the plaintiff’s services did not correspond
to the fees and that the fees were unwarranted and
excessive. Additionally, Sconyers determined that, had
the plaintiff advised Laser to seek a formal determina-
tion regarding duty to defend coverage, NGM would
have defended the Laser defendants at the outset of
the Frey action, which would have eliminated the need
for the Laser defendants to hire the plaintiff and incur
his legal fees. As to the counterclaim specifically, the
Sconyers defendants asserted that, on the basis of the
information known to Sconyers, including that the
plaintiff never investigated whether Laser had liability
insurance coverage, Sconyers believed that the plaintiff
had committed legal malpractice. The Sconyers defen-
dants submitted several exhibits in support of their
motion for summary judgment, including a personal
affidavit of Sconyers, appended to which were copies
of correspondence exchanged between Laser and the
plaintiff, and a personal affidavit of Laser.
In opposing the Sconyers defendants’ motion for sum-
mary judgment, the plaintiff argued, inter alia, that the
Sconyers defendants lacked probable cause to assert
the special defenses and to file the counterclaim
because Sconyers (1) lacked any experience in legal
malpractice claims, (2) failed to perform an adequate
investigation before pursuing the special defenses and
counterclaim, and (3) lacked a good faith belief in the
facts alleged in support of the special defenses and the
counterclaim. In support of his memorandum of law
in opposition to the Sconyers defendants’ motion for
summary judgment, the plaintiff attached several exhib-
its, including a personal affidavit and copies of addi-
tional correspondence exchanged between the plaintiff
and Laser.
In granting the Sconyers defendants’ motion for sum-
mary judgment, the trial court concluded that Sconyers
was free to rely on the information provided to him
by Laser and that a reasonable attorney familiar with
Connecticut law could have believed that the plaintiff
had violated a duty to the Laser defendants by failing
to advise Laser as to insurance matters during the Frey
action. The court proceeded to reject the plaintiff’s
arguments, determining, inter alia, that (1) Sconyers’
inexperience in the area of legal malpractice was imma-
terial as to whether he had probable cause to pursue
the legal malpractice claim, (2) Sconyers was entitled
to rely on the information provided to him by Laser, and,
thus, the plaintiff’s argument as to Sconyers’ purported
lack of proper investigation was not viable, and (3) the
plaintiff’s affidavit failed to address the duty of care
issue raised by the Sconyers defendants, and, therefore,
it failed to raise a genuine issue of material fact as to
whether probable cause existed to file the coun-
terclaim.
Having concluded that the Sconyers defendants had
probable cause to file the counterclaim in the collection
action, the court concluded that they equally had proba-
ble cause to assert the special defenses. Specifically,
the court stated that if the plaintiff had advised the
Laser defendants regarding insurance coverage during
the Frey action, then NGM would have assigned counsel
immediately to them at no cost, and, thus, they never
would have incurred the legal fees that they owed to
the plaintiff.
On appeal, the plaintiff claims that the Sconyers
defendants lacked probable cause because Sconyers
failed to perform an adequate investigation prior to
asserting the special defenses and filing the counter-
claim. More specifically, the plaintiff contends that
Sconyers, inter alia, failed to consult an expert witness,
interview Laser’s insurance agent, or review certain doc-
umentation predating the collection action that purport-
edly was available to him. Had Sconyers performed a
proper investigation, the plaintiff posits, he would have
discovered that Laser did not provide him with accurate
information12 and that there was no reasonable, good
faith basis on which to pursue the special defenses and
the counterclaim. Additionally, the plaintiff contends
that Sconyers’ lack of experience in litigating legal mal-
practice cases further deprived him of probable cause.13
These claims are unavailing.14
Turning first to the plaintiff’s assertion that Sconyers
failed to perform an adequate investigation before
asserting the special defenses and filing the counter-
claim, we are not persuaded. In his personal affidavit,
Sconyers averred that he relied on the statements and
documents provided to him by Laser, his consultation
with another attorney, and his own experience as a
practicing attorney in Connecticut for thirty-six years.
In addition, during his depositions in the present case,
Sconyers testified that he also interviewed Laser’s wife,
consulted additional attorneys, and performed legal
research. The information received by Sconyers indi-
cated that (1) Laser did not know of the Laser defen-
dants’ entitlement to insurance coverage that provided
a defense in the Frey action when he hired the plaintiff
in the Frey action, and (2) Laser sought advice from
the plaintiff about insurance coverage but the plaintiff
dissuaded Laser from pursuing insurance coverage and
failed to further investigate the insurance coverage
issue, which provided Sconyers with a reasonable basis
on which to assert the special defenses and to file the
counterclaim. The uncontroverted evidence reflects that
Sconyers prepared sufficiently prior to asserting the spe-
cial defenses and filing the counterclaim, and he was
not obligated to take every imaginable step to confirm
the veracity of the information that he obtained.15 See
52 Am. Jur. 2d 250, Malicious Prosecution § 73 (2019)
(with respect to malicious prosecution action,16 ‘‘[a] per-
son is not required to verify the correctness of all the
information supporting his or her action to be protected
from a malicious prosecution action, but if a reasonable
person would investigate further before beginning the
prosecution, the defendant in a malicious prosecution
action will be liable for his or her failure to do so’’
(footnote omitted)). In addition, without any indication
that Sconyers had reason to believe that Laser had given
him inaccurate information; see footnote 14 of this opin-
ion; Sconyers was entitled to rely on the information
provided to him by Laser. See 4 Restatement (Third),
Torts, Liability for Economic Harm § 24, comment (f)
(2019) (‘‘an attorney is generally entitled to rely on the
factual claims made by a client so long as they are not
patently unreasonable or known to be false’’). Accord-
ingly, the plaintiff’s claim fails.
Additionally, the plaintiff’s contention that Sconyers
lacked probable cause because he was not an experi-
enced legal malpractice litigator is unavailing. Although
Sconyers admitted that he had never tried a legal mal-
practice case prior to being retained by the Laser defen-
dants in the collection action, the uncontroverted evi-
dence in the record demonstrates that Sconyers
practiced law for forty years, thirty-six years of which
were focused on his practice in Connecticut, and that
he consulted several attorneys and performed legal
research prior to asserting the special defenses and filing
the counterclaim sounding in legal malpractice. The
probable cause standard requires consideration of
whether ‘‘a reasonable attorney familiar with Connecti-
cut law would believe he or she had probable cause
. . . .’’ (Internal quotation marks omitted.) Byrne v.
Burke, supra, 112 Conn. App. 275. An attorney is not
required to have extensive experience in the area of law
at issue in order to meet this standard. Thus, we reject
the plaintiff’s claim.
In sum, with respect to the trial court’s granting of
the Laser defendants’ motion for summary judgment,
we agree with the plaintiff that there existed genuine
issues of material fact as to whether the Laser defen-
dants (1) had probable cause to assert the special
defenses and to file the counterclaim and (2) relied in
good faith on the advice of the Sconyers defendants,
and, therefore, we conclude that the court improperly
granted the Laser defendants’ motion for summary judg-
ment. With respect to the court’s granting of the Scon-
yers defendants’ motion for summary judgment, we
reject the plaintiff’s claims, and, therefore, we conclude
that the court did not err in granting the Sconyers defen-
dants’ motion for summary judgment.
The judgment is reversed in part and the case is
remanded with direction to deny the motion for sum-
mary judgment filed by Frederick J. Laser and Laser
Building Company on July 5, 2017, and for further pro-
ceedings in accordance with law; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The record reflects that Laser is the vice president of Laser Building
Company.
2
J. Michael Sconyers is a partner at Ackerly Brown, LLP.
3
The plaintiff’s license to practice law in Connecticut currently is sus-
pended.
4
Laser Building Company was named as a defendant in the Frey action,
but Laser, in his individual capacity, was not a party thereto. The record in
the present action is inconsistent on this point; that is, Laser, Laser Building
Company, and the Laser defendants collectively are each referred to as
defendants in the Frey action. In its memorandum of decision granting the
defendants’ respective motions for summary judgment, the trial court stated
that the plaintiff was retained to represent the Laser defendants collectively
in the Frey action. For the sake of avoiding confusion, and because none of
the parties raises the issue of the discrepancy, we refer to the Laser defendants
collectively as having been named defendants in the Frey action.
5
On June 6, 2013, Hassett and Donnelly, P.C., filed a firm appearance in
lieu of the individual appearance filed by Attorney Barrett.
6
The plaintiff named ‘‘Fred Laser D/B/A Laser Building Company’’ as the
sole defendant in the collection action. The plaintiff named both Laser and
Laser Building Company as defendants in the present action and alleged that
their conduct, as well as the conduct of the Sconyers defendants, in the
collection action constituted vexatious litigation. In its memorandum of deci-
sion granting the defendants’ respective motions for summary judgment, the
trial court also stated that the plaintiff filed the collection action against the
Laser defendants collectively. In an effort to avoid confusion, and because
none of the parties raises the issue of the discrepancy, we refer to the Laser
defendants collectively as having been named defendants in the collection
action. Notwithstanding the foregoing, it is unclear on what basis the plaintiff
could prevail on a vexatious litigation claim against Laser Building Company
when the only defendant named in the collection action was Laser indi-
vidually.
7
The plaintiff improperly combined in one single count of his complaint
claims for both common-law vexatious litigation and statutory vexatious
litigation under General Statutes § 52-568. See Practice Book § 10-26 (distinct
causes of action shall be numbered separately in complaint).
8
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.’’
9
The plaintiff also claims that the exhibits submitted by the Laser defen-
dants in support of their motion for summary judgment were inadmissible
because, inter alia, none of the exhibits complied with Practice Book § 17-
46. In his principal appellate brief, the plaintiff provides only a cursory
analysis of this claim, and, therefore, we decline to review it. See Starboard
Fairfield Development, LLC v. Gremp, 195 Conn. App. 21, 31, 223 A.3d 75
(2019) (‘‘We are not required to review issues that have been improperly
presented to this court through an inadequate brief. . . . Analysis, rather
than [mere] abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . We do not reverse the
judgment of a trial court on the basis of challenges to its rulings that have
not been adequately briefed.’’ (Internal quotation marks omitted.)).
10
The plaintiff also asserts that Laser did not retain him in the Frey action
to provide advice about insurance matters. Because we conclude that the
trial court improperly granted the Laser defendants’ motion for summary
judgment when there existed a genuine issue of material fact concerning
Laser’s knowledge regarding the Laser defendants’ entitlement to insurance
coverage, we need not consider this issue further.
11
In their appellate brief, the Laser defendants claim for the first time that
the granting of their motion for summary judgment may be affirmed on the
alternative ground that the plaintiff’s vexatious litigation claim is untenable
because the collection action ended by way of a settlement, which, according
to the Laser defendants, did not constitute termination of the action in the
plaintiff’s favor. The Laser defendants did not present this claim to the trial
court or, in accordance with Practice Book § 63-4 (a) (1) (A), raise this claim
as an alternative ground for affirmance in their preliminary statement of the
issues. As a result, we decline to consider it. See Red Buff Rita, Inc. v.
Moutinho, 151 Conn. App. 549, 557, 96 A.3d 581 (2014) (declining to consider
appellee’s alternative ground for affirmance raised for first time on appeal
and without compliance with § 63-4 (a) (1) (A), and observing that ‘‘[o]nly
in [the] most exceptional circumstances can and will this court consider a
claim, constitutional or otherwise, that has not been raised and decided in
the trial court. . . . This rule applies equally to alternat[ive] grounds for
affirmance.’’ (Internal quotation marks omitted.)).
12
As we explained in part I of this opinion, the plaintiff does not claim on
appeal that a legal malpractice claim grounded in an attorney’s failure to
advise his or her client regarding insurance issues is not viable, nor does he
dispute that he did not advise Laser regarding insurance coverage; rather,
his position is that Laser, when he retained the plaintiff in the Frey action
in June, 2012, knew that the Laser defendants were entitled to insurance
coverage for a defense in the Frey action and that any contrary representa-
tions made by Laser were false.
13
The plaintiff also claims that the exhibits submitted by the Sconyers
defendants in support of their motion for summary judgment were inadmissi-
ble because, inter alia, none of the exhibits complied with Practice Book
§ 17-46. Like his identical claim directed to the granting of the Laser defen-
dants’ motion for summary judgment, the plaintiff has failed to adequately
brief this claim, and, therefore, we decline to review it. See footnote 9 of
this opinion.
14
Throughout his principal appellate brief, the plaintiff thinly asserts that
Sconyers knew that the information provided to him by Laser was false. To
the extent that the plaintiff is claiming on appeal that the Sconyers defendants
lacked probable cause on the additional ground that Sconyers filed the coun-
terclaim and special defenses with knowledge that the facts underlying them
were false, the plaintiff has failed to provide a meaningful analysis of this
claim in his appellate briefs, including a recitation of the specific evidence
in the record supporting it, and, therefore, we decline to review it. See
Starboard Fairfield Development, LLC v. Gremp, 195 Conn. App. 21, 31, 223
A.3d 75 (2019) (‘‘We are not required to review issues that have been improp-
erly presented to this court through an inadequate brief. . . . Analysis, rather
than [mere] abstract assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . We do not reverse the
judgment of a trial court on the basis of challenges to its rulings that have
not been adequately briefed.’’ (Internal quotation marks omitted.)). Even
assuming that the plaintiff properly raised this claim on appeal, the evidentiary
record with respect to the Sconyers defendants’ motion for summary judg-
ment reflects no indication that Sconyers had reason to believe that the
information provided to him by Laser was false.
15
Indeed, ‘‘civil proceedings sometimes must be brought before significant
investigation of the facts is possible; the means of conducting such an investi-
gation may become available only with commencement of a lawsuit.’’ 4
Restatement (Third), Torts, Liability for Economic Harm § 25, comment
(a) (2019).
16
Our Supreme Court has explained that ‘‘the elements of malicious prose-
cution and common-law vexatious litigation essentially are identical. . . .
Although the required showing for both torts essentially is the same, there
is a slight difference in that a plaintiff in a malicious prosecution action must
show initiation of the proceedings by the defendant. In our cases discussing
vexatious litigation claims, we have overlooked this difference because, ordi-
narily, it is not significant for purposes of considering a claim for vexatious
litigation.’’ (Citations omitted.) Bhatia v. Debek, 287 Conn. 397, 405, 948 A.2d
1009 (2008); see also Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, supra, 281 Conn. 94 (‘‘[a] vexatious suit is a type of malicious prosecution
action, differing principally in that it is based upon a prior civil action,
whereas a malicious prosecution suit ordinarily implies a prior criminal
complaint’’ (internal quotation marks omitted)).