NUZZO & ROBERTS PROFESSIONAL LIABILITY NEWSLETTER

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1 NUZZO & ROBERTS PROFESSONAL LABLTY NEWSLETTER Volume 4 No. 2 April 2007 VEXATOUS LTGATON Filing an Application for Prejudgment Remedy is not a Civil Action for Purposes of a Vexatious Litigation Claim n a case handled by this office, Bernhard-Thomas Building Systems, LLC v. Chet Dunican, et al, 100 Conn.App. 63 (2007), the Connecticut Appellate Court affirmed the trial court s decision that: (1) an application for a prejudgment remedy (PJR) is not a civil action for purposes of a statutory cause of action for vexatious litigation; and (2) the plaintiff did not state a claim for abuse of process. n that case, the defendant, Mr. Dunican, through the co-defendant attorney, filed an application for a PJR against the plaintiff, his former employer, in the amount of $3.5 million. The court concluded that Dunican failed to sustain his burden with respect to any of his claims and denied the application. Thereafter, the plaintiff filed a complaint against Dunican and his attorney alleging claims of vexatious litigation and abuse of process. The plaintiff claimed, among other things, that the defendant s filing of the PJR application, as well as his sending a copy of the application to the plaintiff s largest customer, was done in order to vex and trouble the plaintiff and to attempt to pressure the plaintiff to pay money to Dunican. The defendant attorney moved to strike the claims. With respect to the claims of vexatious litigation, the trial court found that an application for a PJR did not constitute a civil action that terminated in favor of the plaintiff, a necessary element to the tort of vexatious litigation. With respect to the claim of abuse of process, the trial court held that the allegations contained in the complaint failed to establish that the defendant s actions were in furtherance of a primary purpose other than to secure a PJR. On appeal, the trial court s decision was affirmed. The Appellate Court found that the necessary steps to commence a civil action were absent in a PJR application. Notably, the Court determined that there was no service of a signed writ of summons and complaint and, therefore, a civil action was not commenced. With respect to the abuse of process count, the Court agreed that the allegation that the defendant sent notice of the PJR application to a customer and threatened to disclose embarrassing information did not establish that the defendant s actions

2 were in furtherance of any primary purpose other than to secure a prejudgment remedy. LEGAL MALPRACTCE AND RPENESS Malpractice Claim is Ripe Even Though Underlying Action Still on Appeal EDTOR S NOTE: The issue of whether a PJR is a civil action for purposes of a vexatious litigation claim was one of first impression for the Connecticut Appellate Court. The Court analyzed the text of the prejudgment remedy statute, as well as the case law interpreting the statute to conclude that the PJR application does not qualify as a prior civil action that can give rise to a vexatious litigation claim. n Weiner v. Clinton, 100 Conn.App. 753 (2007), the Connecticut Appellate Court determined that the malpractice action was ripe despite the fact the appeal in the underlying action had not yet concluded. n Weiner, the plaintiffs alleged, among other things, that the defendants caused a default judgment to enter in the underlying action. When the trial court refused to set aside the default, the plaintiffs appealed. While the appeal was pending, the plaintiffs commenced this malpractice action, which the defendants moved to dismiss on the basis that the underlying action was still pending and, therefore, the claim was not ripe. The lower court agreed and dismissed the action holding that it was impossible to determine damages while the appeal was still pending. The plaintiffs appealed. The Appellate Court determined that a legal malpractice claim is not necessarily unripe and not justiciable merely because there has not been a final resolution of the underlying action. The Court recognized that when assessing the existence of justiciability, courts examine whether the case presents a hypothetical injury or a claim contingent upon some event that has not and may never transpire. However, the Court further found that a claim s justiciability is wholly separate from its merits, and as such, an inability to establish the exact amount of damages does not defeat the court s subject matter jurisdiction. The Court, reversing the lower court, found that the injury to the plaintiffs occurred when the court rendered the judgment of default, allegedly as a result of the defendants negligent failure to respond to discovery requests. The Court further held that there is no requirement that a legal malpractice case be dismissed where the damages may be contingent upon other matters. The court reasoned that such a requirement would, in effect, nullify the general rule that in most cases there is no need to wait until the conclusion of the underlying litigation to initiate a legal malpractice action. 2

3 NOTES Apportionment Against Lawyer Permitted Where Loss of Use of Property Alleged n Baldino & zzi Custom Homes v. Berkshire & Surveying, LLC, 2007 WL (Feb. 16, 2007, Gallagher, J.), the court denied the motion to dismiss the apportionment complaint against the attorney who represented the plaintiff in the purchase of property. The court determined that the plaintiff s allegation that it was unable to construct a house of the dimension that it had anticipated was a claim for loss of use of property. Therefore, the court found that apportionment complaint fell within the parameters of the apportionment statute. Allegation That Attorney Attempted to Avoid Business Expense by Concealing Malpractice Did Not Give Rise to CUTPA Claim n Nevile v. Solomon, 2007 WL (March 20, 2007, Cosgrove, J.), the plaintiff attempted to invoke the entrepreneurial exception to the general rule that allegations of legal malpractice cannot support a CUPTA claim. Specifically, the plaintiff alleged the defendant attorneys made an entrepreneurial business decision in concealing their legal malpractice in order to avoid the business expense of compensating the plaintiff for the legal malpractice and thereby increasing their business income. The court, in granting the motion to strike the CUTPA claim, rejected the plaintiff s argument finding that although the allegations have been stated in the business context, they still arise from the defendant s professional representation of the client. Dentist Practice Could be Held Vicariously Liable for Negligence of Dentist Employee n Green v. Narain, 2007 WL (March 7, 2007, Jones, J.), the plaintiff brought a malpractice action against her dentists and their employer, the Center for Esthetic Dentistry. The defendant employer moved to strike the claim of malpractice against it, arguing that because it was a corporate entity it could not commit malpractice, and therefore, could not be held independently liable for the plaintiff s claim. The court, in denying the motion to strike, found that the plaintiff was not alleging that employer was primarily liable for the medical malpractice. Rather, the plaintiff alleged that the employer s liability was predicated on an agency relationship between the alleged negligent doctors and the provider as their employer. Accordingly, under the doctrine of respondeat superior, the court found the employer could be held liable and denied the motion to strike. 3

4 Claim Against Hospital Arising From Fall During X-ray Alleges Medical Malpractice n Brawley v. Norwalk Hospital Assoc., 2007 WL (March 22, 2007, Tobin, J.) the plaintiff commenced an action against the defendant hospital arising from injuries sustained by the plaintiff s decedent after falling from an x-ray table. The court granted the defendant hospital s motion to dismiss on the ground that the plaintiff failed to submit a certificate of good faith from counsel and an opinion from a health care provider, which is required in a medical malpractice action. The court determined that the plaintiff s allegations, including that the hospital was negligent in failing to secure the plaintiff s decedent on the x-ray table and failing to exercise due care to prevent the fall, sounded in malpractice and not simple negligence. Therefore, a certificate of good faith from counsel and an opinion from a health care provider were required. The court appears to have distinguished this case from other fall cases that were determined to be simple negligence on the basis that the fall in this case was related to the performance of an x-ray and, therefore, occurred during the course of medical treatment. WE ARE READY TO HELP N uzzo & Roberts has highly skilled and trained lawyers eager to serve you in the following areas. Please call us or send us an . Uninsured Motorist: Tony Nuzzo at anuzzo@nuzzo-roberts.com Professional Liability: contact Tony Nuzzo at anuzzo@nuzzo-roberts.com; Rick Roberts at rroberts@nuzzoroberts.com; Nadine Pare at npare@nuzzo-roberts.com or Jennifer Cavalier at jcavalier@nuzzo-roberts.com Bad Faith and Coverage ssues: contact Tony Nuzzo at anuzzo@nuzzoroberts.com; Michele C. Camerota at mcamerota@nuzzo-roberts.com or Amber J. Branciforte at abranciforte@nuzzoroberts.com Product Liability: contact Rick Roberts at rroberts@nuzzo-roberts.com Premises Liability: contact Rick Roberts at rroberts@nuzzo-roberts.com or Robert J. Chomiak, Jr. at rchomiak@nuzzo-roberts.com Third-Party Claims and ndemnity: State and Federal Appellate Work: Workers' Compensation: contact David Weil at dweil@nuzzo-roberts.com Employment Law: contact Rick Roberts at rroberts@nuzzo-roberts.com or Nicole 4

5 Chomiak at Fraud and Strategic nvestigation: Trials: Rick Roberts at Tony Nuzzo at Robert Chomiak, Jr. at or Nicole Chomiak at Complex Litigation: Tony Nuzzo at or Rick Roberts at WHEN N DOUBT, CALL US We are only a phone call away. f you have any questions, call us!! NUZZO & ROBERTS, L.L.C. P.O. Box 747 One Town Center Cheshire, CT Phone: (203) Fax: (203) or 5