Civil Jury Instructions Home

3.13-6  Vexatious Suit - Claim at Common Law

Revised to January 1, 2008 (modified April 5, 2012)    

In this case, plaintiff <name of plaintiff> seeks to recover damages from defendant <name of defendant> for vexatious suit based upon <name of defendant>'s alleged commencement and prosecution against (him/her) of a prior civil (action/proceeding)¹ entitled <title of underlying civil action or proceeding>, which I will refer to as "the underlying (action/proceeding)."  To prevail in an action for vexatious suit, a plaintiff must prove five essential elements by a fair preponderance of the evidence:

1. that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her), [either in <name of defendant>'s own name or in the name of another person or entity];

2. that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her) without probable cause;²

3. that <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her) with malice;

4. that the underlying (action/proceeding) against <name of plaintiff> was finally terminated in a manner favorable to <name of plaintiff>; and

5. that <name of defendant>'s commencement and prosecution of the underlying (action/proceeding) against (him/her), without probable cause and with malice, legally caused (him/her) to suffer at least some of the injuries or losses complained of in (his/her) complaint.

I will discuss these essential elements with you in detail before discussing the issue of damages.

Prosecution of underlying action or proceeding
<Name of plaintiff> claims that <name of defendant> commenced the underlying (action/proceeding) against (him/her) [in the name of <named plaintiff in the underlying action or proceeding>] on or about <date of commencement of underlying action or proceeding>, and thereafter prosecuted it [against (him/her)]³ until <date of final termination of underlying action or proceeding against the plaintiff>.

Without probable cause
A person has probable cause to commence or prosecute a civil (action/proceeding) on a claim of <claim made in underlying action or proceeding as to which defendant allegedly lacked probable cause> when (he/she) has knowledge of facts, actual or apparent, strong enough to justify a reasonable person in the belief that (he/she) has lawful grounds for prosecuting the defendant in the manner complained of.⁴  A person has lawful grounds for prosecuting a claim when (he/she) has a genuine belief in the existence of facts that support each essential element of that claim, when those facts would warrant a person of ordinary caution, prudence and judgment, under the circumstances, to entertain that belief.⁵

Under our law, one essential element of <name of defendant>'s challenged claim of <claim made in underlying action or proceeding as to which defendant allegedly lacked probable cause>, as made against <name of plaintiff> in the underlying (action/proceeding), is that <name and describe essential element of claim presented in underlying action or proceeding as to which defendant allegedly lacked probable cause>.  <Name of plaintiff> here alleges and has sought to prove that when <name of defendant> commenced and prosecuted the underlying (action/proceeding) against (him/her), (he/she) lacked probable cause to do so because (he/she) lacked knowledge of facts sufficient to justify a reasonable person in believing <restate essential element of claim presented in underlying action or proceeding as to which the plaintiff claims that the defendant lacked probable cause>. 

<Discuss facts in support of and in opposition to the plaintiff 's claim of lack of probable cause as to the element in question.>

Acted with malice
A person acts with malice when (he/she) acts primarily for an improper purpose – that is, for a purpose other than that of securing the proper adjudication of the claim on which the (action/proceeding) is based.  A person thus acts with malice towards another person when (he/she) acts primarily out of hatred for or ill will towards that person, or with the intent to vex, harass or annoy (him/her).  Malice may be inferred from lack of probable cause.⁶

Terminated in favor of plaintiff⁷
A civil (action/proceeding) finally terminates in a manner favorable to the defendant in that (action/proceeding) when it is dismissed, goes to judgment for the defendant or is unilaterally withdrawn by the plaintiff with no consideration of any kind. 

[<If favorable final termination element is uncontested:>  In this case, <name of defendant> has admitted in (his/her) answer that the underlying (action/proceeding) was finally terminated in a manner favorable to <name of plaintiff> on <date of final termination of underlying action or proceeding with respect to the plaintiff> by <manner in which the underlying action or proceeding finally terminated favorably to the plaintiff>.  You must therefore find that the third essential element of vexatious suit has been established as a matter of law.] 

[<If favorable final termination element is contested:>  In this case, <name of defendant> has denied that the underlying (action/proceeding) was finally terminated in a manner favorable to <name of plaintiff>.  On that score, (he/she) claims, more particularly, that even though (he/she) withdrew the underlying (action/proceeding) [against <name of plaintiff>],⁸ (he/she) did not do so unilaterally, as required by law to constitute final termination of the (action/proceeding) in a manner favorable to <name of plaintiff>, but did so instead in exchange for valuable consideration, consisting of <consideration allegedly exchanged for withdrawal of prior claims>.  A person acts unilaterally when (he/she) acts entirely on (his/her) own, without the agreement or participation of others.  Under this definition, a person does not act unilaterally in withdrawing an (action/proceeding) against another person when (his/her) motivation for so doing, in whole or in part, is the other person's agreement to give (him/her) valuable consideration of any kind – that is, anything of value, including consideration of the type here claimed by the defendant – in exchange for the withdrawal.  Here, then, to establish the third essential element of vexatious suit, <name of plaintiff> must persuade you by a fair preponderance of the evidence both that <name of defendant> withdrew the underlying (action/proceeding) against (him/her) and that (he/she) did not do so, as claimed by <name of defendant>, in exchange for <nature of consideration allegedly exchanged by the plaintiff for the defendant's withdrawal of the underlying action or proceeding against the plaintiff>.]

Injuries or Losses
Finally, a successful claimant in an action for vexatious suit is entitled to recover money damages for all injuries or losses (he/she) was legally caused to suffer due to the commencement and prosecution against (him/her) of the vexatious suit.  Compensable injuries and losses may include any of the following, all of which are claimed by <name of plaintiff> against <name of defendant> in (his/her) complaint: <here list all economic and noneconomic injuries and losses which are claimed in the plaintiff's complaint and supported by at least some evidence at trial>⁹  To establish the fifth essential element of vexatious suit, <name of plaintiff> must prove by a fair preponderance of the evidence that <name of defendant>, by commencing and prosecuting the underlying (action/proceeding) against (him/her) without probable cause and with malice, legally caused (him/her) to suffer at least some of the injuries or losses claimed by (him/her) in this case.

<Insert Legal Cause, Instruction 3.1-1.>

If, at the end of your deliberations, you find that <name of plaintiff> has failed to prove any essential element of (his/her) vexatious suit claim by a fair preponderance of the evidence, you must return a Defendant's Verdict on that claim.  If, on the other hand, you find that <name of plaintiff> has proved each essential element of (his/her) vexatious suit claim by that standard, then you must go on to determine what damages to award (him/her) on that claim.

In this case, the plaintiff seeks to recover [both]¹⁰ compensatory [and punitive] damages on (his/her) claim of vexatious suit.  To determine what compensatory damages, if any, to award the plaintiff on that claim, you must first decide what injuries and losses claimed by (him/her) were legally caused by the defendant's proven commencement and prosecution against (him/her), without probable cause and with malice, of the underlying (action/proceeding).  You must then determine what amount of damages is fair, just and reasonable to compensate the plaintiff for those proven injuries and losses under my general instructions on compensatory damages.

<Insert general instructions on compensatory damages, Damages - General, Instruction 3.4-1.>

Economic damages may be awarded for any financial loss or expense which <name of plaintiff> proves (he/she) was legally caused to sustain or incur as a result of <name of defendant>'s commencement and prosecution against (him/her), without probable cause and with malice, of the underlying (action/proceeding).  Here, <name of plaintiff> seeks to recover economic damages for the following financial losses and expenses which (he/she) claims to have been legally caused by <name of defendant>'s commencement and prosecution of the underlying (action/proceeding) against (him/her): <here list all financial losses and expenses for which the plaintiff seeks economic damages, as claimed in the complaint and supported by the evidence at trial, including, where appropriate, any expenses, including reasonable attorney's fees, incurred to defend against the underlying action or proceeding, any lost wages for time required to attend court proceedings in the underlying action or proceeding, any loss to business or property resulting from the commencement and prosecution of the underlying action or proceeding, and any reasonable and necessary medical expenses incurred to treat physical or mental injury caused by the commencement and prosecution of the underlying action or proceeding¹¹>.  If you find <name of defendant> liable for vexatious suit, as here alleged, and that that vexatious suit legally caused <name of plaintiff> to sustain or incur any such financial loss or expense, then you must award (him/her) fair, just and reasonable economic damages for that proven loss or expense, also in accordance with my general instructions on compensatory damages.  [<Add the following where appropriate:>  You cannot, however, award any attorney's fees or costs necessary to bring the present claim for vexatious suit, but only those you find to have been reasonably incurred to defend against the underlying (action/proceeding).]¹²

Noneconomic damages may be awarded for any injury which <name of plaintiff> proves (he/she) was legally caused to suffer as a natural consequence of <name of defendant>'s commencement and prosecution against (him/her), without probable cause and with malice, of the underlying (action/proceeding).  Here, <name of plaintiff> seeks to recover noneconomic damages for the following injuries which (he/she) claims to have been legally caused by <name of defendant>'s commencement and prosecution of the underlying (action/proceeding) against (him/her): (<here list all types of emotional or physical injuries for which the plaintiff seeks noneconomic damages, as claimed in the complaint and supported by the evidence at trial, including, where appropriate, mental anguish, humiliation, embarrassment, mortification, shame, fear and damage to reputation>.¹³  If you find that <name of defendant> commenced and prosecuted a vexatious suit against <name of plaintiff>, as here alleged, and that such vexatious suit legally caused <name of plaintiff> to suffer any such injury, then you must award (him/her) fair, just and reasonable noneconomic damages for that proven injury in accordance with my general instructions on compensatory damages.

After making your separate determinations as to economic and noneconomic damages, if you reach them in the course of your deliberations, you must record your findings on the appropriate lines of the Plaintiff's Verdict form, then add them together to calculate total compensatory damages on the line provided for that purpose.

[To determine what punitive damages, if any, to award the plaintiff on (his/her) claim of vexatious suit, you must be guided by my general instructions on punitive damages, which are as follows.  <Insert general instructions on punitive damages, Damages - Punitive, Instruction  3.4-4.>].
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¹ The commencement and prosecution of a criminal complaint, with malice and without probable cause, constitutes the distinct and different, but closely analogous, tort of malicious prosecution.

² DeLaurentis v. New Haven, 220 Conn. 225, 252-53 (1991) ("[w]hether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law").

³ Add the bracketed language only if the underlying (action/proceeding) was finally terminated earlier against the defendant rather than against one or more other parties.

⁴ Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 100-101 (2007) (quoting DeLaurentis v. New Haven, supra, 220 Conn. 256.)  It must be noted, however, that when the defendant is a lawyer who filed the underlying action on behalf of a client, the objective reasonableness of (his/her) belief in the existence of probable cause to commence and prosecute the action must be measured by the standard of the reasonable attorney familiar with the laws of this state, not that of the reasonable person.  Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, supra, 281 Conn. 103.

⁵ McGann v. Allen, 105 Conn. 177, 186 (1926).

⁶ Zenik v. O'Brien, 137 Conn. 592, 596-97 (1951).

⁷ Typically, this element is uncontested.  The alternative paragraph for when it is contested describes a particular circumstance in which a defendant might legitimately argue that the termination of the prior action does not constitute a termination favorable to the plaintiff.  The withdrawal of an action for consideration does not constitute a favorable termination of the action because the act of tendering consideration for its termination suggests that it was prosecuted with probable cause.

⁸ See note 3, supra.

⁹ See generally Wochek v. Foley, 193 Conn. 582, 588-89 (1984).

¹⁰ Only use the bracketed language in the damages portion of this instruction when the plaintiff has demanded and attempted to prove (his/her) entitlement to recover punitive damages.

¹¹  Wochek v. Foley, supra,193 Conn. 588-89.

¹² See generally Vandersluis v. Weil, 176 Conn. 353, 358-59 (1976) (clarifying that, in a common-law action for vexatious suit, "[a]ny cost of litigation in a former trial less taxable costs would be compensatory damages suffered by a plaintiff by reason of a former suit" whereas any cost of litigation in the vexatious suit action itself would not be recoverable in that action except, in an appropriate case, as the maximum amount of any award of punitive damages).

¹³ See generally Wochek v. Foley, supra, 193 Conn. 588.

Authority

Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84 (2007); QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 361 (2001); Vandersluis v. Weil, 176 Conn. 353, 356-57 (1978); Wall v. Toomey, 52 Conn. 35, 36 (1884); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 538 (1983).

Notes

A statutory count for vexatious suit (see Vexatious Suit - Claim under General Statutes § 52-568, Instruction 3.13-5) cannot be joined in a single action with a common-law count for vexatious suit.  See Whipple v. Fuller, 11 Conn. 582, 587 (1836).  But see Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84 (2007) (wherein the Supreme Court, without commenting on this issue, upheld the Appellate Court's affirmance of parallel trial court rulings granting summary judgment on alternatively pleaded common-law and statutory claims of vexatious suit).