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      CHESTER LICHAJ ET AL v. J. MICHAEL
              SCONYERS ET AL
                 (AC 37214)
                   Beach, Keller and West, Js.
     Argued October 26, 2015—officially released March 1, 2016

   (Appeal from Superior Court, judicial district of
               Litchfield, Pickard, J.)
  John R. Williams, for the appellants (plaintiffs).
  Robert W. Cassot, with whom, on the brief, was Cris-
tin E. Sheehan, for the appellees (named defendant
et al.).
                          Opinion

  BEACH, J. The plaintiffs, Chester Lichaj and Nicole
Lichaj, appeal from the summary judgment rendered
by the trial court in favor of the defendants J. Michael
Sconyers and Ackerly Brown, LLP.1 We affirm the judg-
ment of the trial court granting the motion for sum-
mary judgment.
  The present action sounds in vexatious litigation.
Chester Lichaj and Nicole Lichaj alleged, in their com-
plaint, that David Welles, Lori Welles, and their attorney,
Sconyers, previously brought a vexatious, meritless
action against them. The trial court granted motions
for summary judgment in favor of all the defendants;
the plaintiffs appeal only as to Sconyers. The prior
underlying action was tried to the court, which ruled
in favor of the Welleses; this court reversed the trial
court’s judgment and remanded the case with direction
to vacate the injunction and for further proceedings.
Because the trial court in the present action considered
the facts and procedural history of the prior action, we
begin with a discussion of that action, as recounted in
this court’s appellate opinion.
   ‘‘[David Welles and Lori Welles] own and reside at
37 Ballyhack Road in West Cornwall. [Chester Lichaj
and Nicole Lichaj] own and reside at 39 Ballyhack Road.
Pursuant to a deed, [the Lichajes] have a right-of-way
over the [Welles’] land for the purpose of gaining access
to their property from Ballyhack Road. The fifty foot
wide right-of-way extends from Ballyhack Road, over
a portion of the [Welles’] land, to the [Lichajes’] resi-
dence, a distance of approximately 1400 feet. The right-
of-way provides the only means of access for the parties
from Ballyhack Road, a public highway, to their resi-
dences.
   ‘‘In 2004, Chester Lichaj began using his tractor to
remove snow from the right-of-way. The [Welleses]
made multiple requests to both [of the Lichajes] that
he stop plowing the right-of-way because Lori Welles’
father historically had plowed it for them and if an
emergency arose, they preferred to call a professional
to attend to the snowplowing. Nevertheless, Chester
Lichaj periodically plowed the right-of-way with his own
tractor even though Lori Welles’ father also continued
to plow the right-of-way until his truck failed during
the 2005-2006 winter. Thereafter, the [Welleses] hired
David Hurlburt to plow the driveway. Chester Lichaj,
however, continued to plow the driveway as well during
the same winter. This pattern continued, with the
[Welleses] hiring Hurlburt but Chester Lichaj still plow-
ing the driveway with his tractor, despite requests from
the [Welleses] that he not do so.
   ‘‘Thereafter, in March, 2009, [David Welles and Lori
Welles] initiated this action seeking a permanent injunc-
tion prohibiting Chester Lichaj from plowing the right-
of-way. The [Lichajes] filed a counterclaim sounding in
tort alleging that [David Welles and Lori Welles] inten-
tionally and maliciously interfered with their use of the
right-of-way and the quiet enjoyment of their land. The
[Lichajes] also claimed intentional and negligent inflic-
tion of emotional distress. More specifically, they
alleged that on multiple occasions while Chester Lichaj
plowed snow off the right-of-way he was accosted ver-
bally by David Welles in an aggressive and abusive
manner.’’ (Footnotes omitted.) Welles v. Lichaj, 136
Conn. App. 347, 349–50, 46 A.3d 246, cert. denied, 306
Conn. 904, 52 A.3d 730 (2012).
   The Lichajes moved for summary judgment, and the
motion was denied by the court, Danaher, J. The matter
then was tried to Judge Danaher, who granted an injunc-
tion in favor of David Welles and Lori Welles that
enjoined Chester Lichaj from performing maintenance
on the right-of-way over the property of the Welleses.
The court found in favor of Nicole Lichaj as to the
claim for an injunction. The court found that ‘‘no further
action [was] necessary with regard to the [Lichajes’]
counterclaim.’’ The Lichajes appealed from the judg-
ment of the trial court. On appeal, this court reversed
the judgment of the trial court and remanded the case;
id., 359;2 this court determined that the trial court had
abused its discretion in granting the injunction as to the
right-of-way and misinterpreted the deed. Id., 356, 359.
   The Lichajes then brought the present action claiming
statutory and common-law vexatious litigation against
the Welleses, Sconyers and Ackerly Brown, LLP. The
Lichajes alleged, inter alia, that the underlying injunc-
tive action was brought and maintained without proba-
ble cause. Sconyers and Ackerly Brown, LLP, moved
for summary judgment on the ground that there was
no genuine issue of fact or law as to the existence
of probable cause to initiate the underlying injunctive
action. In the motion for summary judgment, Sconyers
and Ackerly Brown, LLP, maintained that there was
probable cause because the Welleses had prevailed at
trial in the underlying action as against Chester Lichaj,
their claim against Nicole Lichaj survived summary
judgment, and the facts known to Sconyers were suffi-
cient for him to believe that there was probable cause
to commence the injunctive action against both Chester
Lichaj and Nicole Lichaj. In a September, 2014 memo-
randum of decision, the court, Pickard, J., granted Sco-
nyers’ motion for summary judgment. The court
reasoned that, as a matter of law, the finding of the
trial court in the underlying action in favor of the
Welleses, who were represented by Sconyers, as to their
claim against Chester Lichaj was conclusive evidence
of probable cause as to him, and the reversal of that
claim on appeal was not inconsistent with the existence
of probable cause.3 See Byrne v. Burke, 112 Conn. App.
262, 275–76, 962 A.2d 825, cert. denied, 290 Conn. 923,
966 A.2d 235 (2009).
  The court rendered summary judgment against
Nicole Lichaj as well. Although judgment had not been
rendered against her in the prior case, the motion for
summary judgment had been denied with respect to
her. The court in the present case held that the denial
of the motion for summary judgment in the prior case
precluded a finding that there had not been probable
cause to pursue that action. The court cited Havilah
Real Property v. Early, 216 Md. App. 613, 626–28 and
n.13, 88 A.3d 875 (2014), which explains that decisions
discussing the issue fall generally into two categories:
some jurisdictions, such as California, Georgia, Penn-
sylvania and the United States Court of Appeals for the
Eighth Circuit, conclude that a denial of a motion for
summary judgment creates a presumption of probable
cause sufficient by itself to defeat a subsequent claim
for vexatious litigation; others, such as Kentucky, Ari-
zona and Vermont, conclude that a denial of a motion
for summary judgment is but one factor to consider in
the analysis of probable cause. The court in the present
case noted that there was no controlling Connecticut
precedent on the issue and decided to follow the line
of cases that hold that a previous denial of a motion
for summary judgment is conclusive evidence of the
existence of probable cause to bring the prior action.
Because Nicole Lichaj’s motion for summary judgment
had been denied, the court concluded that there had
been probable cause to bring the underlying action
against her and granted the motion for summary judg-
ment. This appeal followed.
   ‘‘The cause of action for vexatious litigation permits
a party who has been wrongfully sued to recover dam-
ages. . . . In Connecticut, the cause of action for vexa-
tious litigation exists both at common law and pursuant
to statute. Both the common law and statutory causes
of action [require] proof that a civil action has been
prosecuted . . . . Additionally, to establish a claim for
vexatious litigation at common law, one must prove
want of probable cause, malice and a termination of
suit in the plaintiff’s favor. . . . The statutory cause of
action for vexatious litigation exists under [General
Statutes] § 52-568, and differs from a common-law
action only in that a finding of malice is not an essential
element, but will serve as a basis for higher damages.
. . .
  ‘‘In assessing probable cause in vexatious litigation
actions against attorneys and law firms, the critical
question [is] whether on the basis of the facts known
by the law firm, a reasonable attorney familiar with
Connecticut law would believe he or she had probable
cause to bring the lawsuit. . . . As is implied by its
phrasing, the standard is an objective one that is neces-
sarily dependent on what the attorney knew when he
or she initiated the lawsuit.’’ (Citation omitted; internal
quotation marks omitted.) Schaeppi v. Unifund CCR
Partners, 161 Conn. App. 33, 45–46, 127 A.3d 304, cert.
denied, 320 Conn. 909,     A.3d      (2015).
   ‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law. . . . Our review of the trial court’s decision
to grant the defendant’s motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.) Rocco
v. Garrison, 268 Conn. 541, 548–49, 848 A.2d 352 (2004).
Likewise, ‘‘[w]hether there is probable cause in a [vexa-
tious litigation] case is a question of law, upon which
our scope of review is plenary.’’ (Internal quotation
marks omitted.) Schaeppi v. Unifund CCR Partners,
supra, 161 Conn. App. 46.
   The Lichajes claim that the court erred when it
granted the motion for summary judgment against
Nicole Lichaj. They contend that this court should hold
that a prior denial of a motion for summary judgment
is but one factor to consider in the analysis of probable
cause. Sconyers disagrees and also, in the alternative,
argues that this court should affirm the decision on the
ground that, as a matter of law, there was probable
cause to include Nicole Lichaj as a defendant in the
prior action, regardless of the effect of the prior denial
of the motion for summary judgment. We agree with
Sconyers as to the alternative ground, which was raised
on appeal and in his motion for summary judgment in
the vexatious litigation action,4 that probable cause for
pursuing the underlying action existed in any event.5
   The documents submitted in connection with the
motion for summary judgment show that there was an
ongoing dispute between the Lichajes and the Welleses
regarding, among other things, the snowplowing of the
easement that the Lichajes enjoyed over the Welleses’
property. At the center of the underlying action was a
dispute as to the interpretation of the right-of-way as
set forth by the Lichajes’ deed. Schedule A of the deed,
which concerned maintenance of the right-of-way, spec-
ified: ‘‘All parties agree that the right of way and its
continuation are to be maintained in their present condi-
tion, which may require periodic grading, re-graveling,
cleaning or repairs of culverts, and snow plowing . . . .
Responsibility for payment for said maintenance shall
be shared equally by the owners of Lot 1 and Lot 2
. . . . If the right of way is damaged by either party
. . . then the party or parties responsible for the dam-
age shall bear the cost of restoring the right of way to
its present condition.’’ The court, in its memorandum
of decision in the underlying action, interpreted this
language to mean that the parties to the deed intended
that the maintenance activities were to be performed by
third parties only, and, thus, the court enjoined Chester
Lichaj from performing maintenance activities; it
ordered, instead, that those maintenance activities were
to be performed by third parties. On appeal, this court
reversed the decision of the trial court and concluded
that it had not properly interpreted the plain language
of the deed, but rather had ‘‘improperly incorporated
a restrictive covenant into the deed unsupported by its
plain language.’’ Welles v. Lichaj, supra, 136 Conn. App.
358. There clearly was a dispute regarding the interpre-
tation of the deed; the dispute was resolved differently
by the trial court and the Appellate Court.6
   Sconyers had probable cause to bring the underlying
action against Nicole Lichaj. The underlying action
sought a resolution of the dispute about the interpreta-
tion of the language in the deed regarding the means
of maintaining the right-of-way, and an acrimonious
relationship needed to be addressed. Regardless of how
the issue ultimately would be resolved, the matter
clearly and objectively required resolution, one way or
another. The rights of Nicole Lichaj, a co-owner of the
property, were affected by the outcome of the case and,
accordingly, it would be reasonable to believe that an
injunction would clarify and affect her rights. See
Demarest v. Fire Dept., 76 Conn. App. 24, 28, 817 A.2d
1285 (2003) (‘‘Parties are considered indispensable
when they not only have an interest in the controversy,
but an interest of such a nature that a final decree
cannot be made without either affecting that interest,
or leaving the controversy in such condition that its
final [disposition] may be . . . inconsistent with equity
and good conscience. . . . Indispensable parties must
be joined because due process principles make it essen-
tial that [such parties] be given notice and an opportu-
nity to protect [their] interests by making [them] a party
to the [action]. . . . Necessary parties, in contrast, are
those [p]ersons having an interest in the controversy,
and who ought to be made parties, in order that the
court may act on that rule which requires it to decide
on, and finally determine the entire controversy, and
do complete justice, by adjusting all the rights involved
in it. . . . [B]ut if their interests are separable from
those of the parties before the court, so that the court
can proceed to a decree, and do complete and final
justice, without affecting other persons not before the
court, the latter are not indispensable parties.’’ [Internal
quotation marks omitted.]). An attorney familiar with
Connecticut law could reasonably believe that there
was probable cause to bring the prior action against
Nicole Lichaj, even though she was not the party
engaged in the maintenance activities at issue, because
she was a co-owner of the premises. Her rights and
responsibilities in the right-of-way over the Welleses’
abutting land were at issue.
   As a matter of law, Sconyers had probable cause to
bring the underlying action. Although the appropriate
resolution was hotly disputed, there was no dispute of
material fact as to the circumstances which gave rise
to the existence of probable cause. Accordingly, we
conclude that the court properly granted the Sconyers’
motion for summary judgment in the vexatious litiga-
tion action.
      The judgment is affirmed.
      In this opinion the other judges concurred.
  1
     Also named as defendants in this action were David Welles and Lori
Welles, who were represented in the underlying action by Sconyers, an
attorney employed by the law firm Ackerly Brown, LLP. The court granted
the motions for summary judgment as to all defendants. The plaintiffs chal-
lenge on appeal only the court’s granting of summary judgment as to Scony-
ers and Ackerly Brown, LLP.
   Because reference to the underlying action is necessary, and the plaintiffs
in that action are defendants in the present action, and vice versa, we refer
to the parties by their names rather than as ‘‘plaintiffs’’ or ‘‘defendants.’’
Also, although both Sconyers and his law firm, Ackerly Brown, LLP, are
parties, their interests are identical and therefore we generally shall refer
only to Sconyers.
   2
     On remand, the Lichajes withdrew their counterclaim.
   3
     This conclusion is not challenged on appeal.
   4
     In his motion for summary judgment, Sconyers argued that, even if the
denial of the motion for summary judgment in the underlying case was
not dispositive, summary judgment in the vexatious litigation case was
appropriate nonetheless because the Lichajes could not, as a matter of law,
prove that he lacked probable cause to bring the underlying action. Sconyers
reasoned, in that motion, that the underlying action sought a resolution of
the ongoing controversy surrounding the interpretation of a deed and that
a reasonable attorney familiar with Connecticut law could conclude that it
was reasonable to bring an action against Nicole Lichaj because she was
an owner of the property.
   5
     We express no opinion as to whether a denial of a motion for summary
judgment, without more, is sufficient to negate the lack of probable cause
for the purpose of a subsequent action in vexatious litigation.
   6
     We recognize of course that an attorney contemplating bringing the prior
action could not have known of the subsequent rulings by various courts.
That jurists concluded differently, however, is consistent with the proposi-
tion that there was some possibility of a favorable outcome.
