***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
PAUL JOHN FERRI v. NANCY POWELL-FERRI ET AL.
(AC 42068)
Prescott, Devlin and D’Addabbo, Js.
Syllabus
The plaintiff, F, whose marriage to the defendant, P, previously had been
dissolved, appealed to this court from the summary judgment rendered
in favor of the defendants, an attorney and a law firm, who represented
P in several interrelated dissolution proceedings. F sought to recover
damages from the defendants as a result of alleged vexatious litigation,
which arose out of a declaratory judgment action involving a trust. F
was the beneficiary of the trust and, during the pending dissolution
matter, the trustees, without F’s knowledge or consent, formed a new
trust and decanted the assets of the original trust into the new one. The
trustees then brought a declaratory judgment action, seeking approval
of their actions in forming the new trust. The defendants brought a
cross complaint against F in the declaratory judgment action, alleging
that F violated his duty to preserve marital assets by allowing the trustees
to remove assets from the marital estate. The trial court rendered sum-
mary judgment in favor of F on the cross complaint, concluding that P
failed to state a cause of action. On appeal, F claimed, inter alia, that
the trial court erred in determining that the defendants had probable
cause to bring the cross complaint. Held that the trial court properly
granted the defendants’ motion for summary judgment as that court
properly determined that the defendants had probable cause to bring
and to prosecute the cross complaint; contrary to F’s argument, the
trial court applied the correct standard for determining whether the
defendants had probable cause to prosecute the cross complaint, and
properly determined that a meritless action did not necessitate the
conclusion that it lacked probable cause or was frivolous, the viability
of the cross complaint did not depend on any false allegation that F
knew of the trustees’ intention to decant the original trust prior to the
actual decanting and did not allege that F failed to act prior to the
decanting, rather, the cross complaint alleged that F failed to act after
becoming aware of the trustees’ decanting of the original trust, and,
accordingly, the court properly rejected F’s contention that the defen-
dants lacked probable cause because they knew that F only learned
about the decanting after the fact, the trial court correctly determined
that the lack of precedent in other jurisdictions did not render the
defendants’ cross complaint as being without probable cause, as the
extensive record in the interrelated cases and the briefs submitted dem-
onstrated that the defendants zealously sought a remedy for their client,
and, when presented with the trustees’ action, the defendants attempted
to defend and vindicate their client’s interests.
Argued January 13—officially released September 15, 2020
Procedural History
Action to recover damages for vexatious litigation,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Moll,
J., denied the plaintiff’s motion for summary judgment
and granted the motion for summary judgment filed
by the defendant Thomas Parrino et al. and rendered
judgment thereon, from which the plaintiff appealed to
this court. Affirmed.
Jeffrey J. Mirman, for the appellant (plaintiff).
Robert W. Cassot, for the appellees (defendant Thomas
Parrino et al.).
Opinion
D’ADDABBO, J. In this vexatious litigation action,
the plaintiff, Paul John Ferri, appeals following the ren-
dering of summary judgment in favor of the defendants
Thomas Parrino and the law firm of Nusbaum & Parrino,
P.C. (Parrino defendants).1 On appeal, the primary issue
is whether the trial court properly concluded that the
Parrino defendants had probable cause to initiate and
pursue their cross complaint filed against Ferri in a
prior lawsuit. We affirm the judgment of the trial court.
The present action is the third in a series of interre-
lated matters involving a dispute over the assets of a
trust account. In the first action, the defendant Nancy
Powell-Ferri sought the dissolution of her marriage to
Ferri. In that action, a major marital asset in dispute
was a trust created in 1983 and valued at between $60
million and $70 million. Powell-Ferri was represented
in this action by the Parrino defendants.
While the dissolution action was pending, the trustees
of the 1983 trust brought a declaratory judgment action
against Powell-Ferri and Ferri, seeking approval of the
trustees’ actions in forming another trust in 2011, into
which they decanted all of the assets of the 1983 trust.
The Parrino defendants also represented Powell-Ferri
in the declaratory judgment action. As part of the trust-
ees’ action, the Parrino defendants filed a cross com-
plaint against Ferri, on behalf of Powell-Ferri, alleging
that Ferri had violated his duty to preserve the marital
assets by allowing the trustees to remove assets from
the marital estate. The trial court, Munro, J., rendered
summary judgment in favor of Ferri on the cross com-
plaint, concluding that Powell-Ferri failed to state a
cause of action. Our Supreme Court affirmed this deci-
sion on appeal and declined to recognize the new cause
of action. See Ferri v. Powell-Ferri, 317 Conn. 223, 235,
116 A.3d 297 (2015).
The cross complaint against Ferri in the declaratory
judgment action, brought by the Parrino defendants on
behalf of Powell-Ferri, forms the basis for the present
vexatious litigation action brought by Ferri against Pow-
ell-Ferri and the Parrino defendants. In this action, Ferri
alleged that the Parrino defendants lacked probable
cause to institute and pursue the cross complaint. The
trial court, Moll, J., rendered summary judgment in
favor of the Parrino defendants. Ferri then filed the
present appeal, claiming that the trial court erred by (1)
determining that the Parrino defendants had probable
cause to bring a cross complaint, (2) concluding that the
Parrino defendants had complied with their obligations
under rule 3.1 of the Rules of Professional Conduct, (3)
denying Ferri’s motion for summary judgment as to
the Parrino defendants,2 and (4) determining that the
Parrino defendants had not acted with malice in pursu-
ing their cross complaint. Additional facts will be set
forth as necessary.
We begin by setting forth the applicable standard of
review. ‘‘The standard of review of a trial court’s deci-
sion granting summary judgment is well established.
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.’’ King
v. Volvo Excavators AB, 333 Conn. 283, 290–91, 215
A.3d 149 (2019). ‘‘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 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.’’ (Internal quotation
marks omitted.) NetScout Systems, Inc. v. Gartner,
Inc., 334 Conn. 396, 408–409, 223 A.3d 37 (2020). ‘‘Our
review of the trial court’s decision to grant the defen-
dant’s motion for summary judgment is plenary. . . .
On appeal, we must determine whether the legal conclu-
sions reached by the trial court are legally and logically
correct and whether they find support in the facts set
out in the memorandum of decision of the trial court.’’
(Internal quotation marks omitted.) King v. Volvo Exca-
vators AB, supra, 291.
‘‘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. To estab-
lish either cause of action, it is necessary to prove want
of probable cause, malice and a termination of suit in
the plaintiff’s favor. . . . Probable cause is the knowl-
edge of facts sufficient to justify a reasonable person
in the belief that there are reasonable grounds for prose-
cuting an action. . . . Malice may be inferred from lack
of probable cause. . . . The want of probable cause,
however, cannot be inferred from the fact that malice
was proven. . . . A statutory action for vexatious liti-
gation under General Statutes § 52-5683 . . . 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 either type of action,
however, [t]he existence of probable cause is an abso-
lute protection against an action for malicious prosecu-
tion, and what facts, and whether particular facts, con-
stitute probable cause is always a question of law. . . .
Accordingly, our review is plenary.’’ (Footnote added;
internal quotation marks omitted.) Tatoian v. Tyler,
194 Conn. App. 1, 57–58, 220 A.3d 802 (2019), cert.
denied, 334 Conn. 919, 222 A.3d 513 (2020).
With this procedural background and these legal prin-
ciples in mind, we now set forth the following detailed
facts, as stated in Ferri v. Powell-Ferri, supra, 317 Conn.
223, the trustees’ declaratory judgment action, that are
relevant to our resolution of this appeal. ‘‘Powell-Ferri
filed an action for dissolution of her marriage to Ferri
on October 26, 2010. . . . Ferri is the sole beneficiary
of a trust created by his father, Paul John Ferri, Sr., in
1983 (1983 trust). . . .4
‘‘The 1983 trust provides that, after Ferri attained the
age of thirty-five, he would have the right to withdraw
principal from the trust in increasing percentages
depending on his age. In March, 2011, while the . . .
dissolution action was pending, the [trustees] created
a second trust whose sole beneficiary was Ferri (2011
trust). The [trustees] then distributed a substantial por-
tion of the assets in the 1983 trust to the 2011 trust.5
‘‘Unlike the terms of the 1983 trust, the terms of the
2011 trust do not allow Ferri to withdraw principal.
Instead, under the terms of the 2011 trust, the [trustees]
have all of the control and decision-making power as
to whether Ferri will receive any of the trust income
or assets.
‘‘The trial court [in the trustees’ declaratory judgment
action] found that Ferri did not have a role in creating
the 2011 trust or decanting any of the assets from the
1983 trust. The trial court further found that it was
undisputed that Ferri took no action to recover the
trust assets when Michael Ferri informed him of the
creation of the 2011 trust and the decanting of the
assets. The trial court characterized the reasoning
behind this inaction as follows: ‘[Ferri] does not want
to sue his family . . . and he believes the [trustees]
are acting in his best interest.’
‘‘After the [trustees] created the 2011 trust and trans-
ferred the assets from the 1983 trust to it, they instituted
[a] declaratory judgment action seeking a ruling from
the court that they had validly exercised their authority
in transferring the assets and that Powell-Ferri had no
interest in the 2011 trust assets. Powell-Ferri filed a
counterclaim asserting claims of common-law and stat-
utory fraud, civil conspiracy, and seeking a declaratory
judgment. After the trial court struck counts alleging
fraud and conspiracy, Powell-Ferri filed a second
amended counterclaim, later revised, asserting claims
of breach of fiduciary duty, breach of loyalty, tortious
interference with an expectancy, and seeking a declara-
tory judgment, as well as [a] cross complaint . . . .
‘‘Ferri filed a motion for summary judgment, claiming
that the cross complaint failed to state a cause of action,
and that even if it did set out a cause of action, there
was no genuine issue of material fact to support Powell-
Ferri’s claims. Powell-Ferri opposed the motion on pro-
cedural grounds, namely that summary judgment is not
the proper means to test the legal sufficiency of a com-
plaint, and on the merits.
‘‘The trial court granted the motion for summary judg-
ment, concluding that Powell-Ferri failed to state a
cause of action. The trial court reasoned that, while
marital partners have a fiduciary responsibility of full
and open disclosure to each other, that responsibility
does not extend to require spouses to recover assets
belonging to the marital estate. The trial court observed
that while spouses may not dissipate assets, ‘at a mini-
mum dissipation in the marital dissolution context
requires financial misconduct involving marital assets,
such as intentional waste or a selfish financial impropri-
ety, coupled with a purpose unrelated to the marriage.’
Gershman v. Gershman, 286 Conn. 341, 350–51, 943
A.2d 1091 (2008). The trial court concluded that there
was no allegation that Ferri ‘engaged in intentional
waste or selfish impropriety.’ The court further rea-
soned that if such allegations were present, ‘[t]here
is no societal expectation embodied in the law which
impels or compels a divorcing spouse to take affirma-
tive steps to recover an asset removed from the marital
estate by the action of a third party alone.’ Accordingly,
the court determined that the cause of action Powell-
Ferri urged should not be recognized in Connecticut.’’
(Footnotes added; footnote omitted.) Ferri v. Powell-
Ferri, supra, 317 Conn. 225–27.6
Thereafter, Powell-Ferri appealed the trial court’s
judgment granting Ferri’s motion for summary judg-
ment. Our Supreme Court concluded that the cross
complaint filed by Powell-Ferri failed to state a legally
sufficient cause of action. Id., 238. The court affirmed
the trial court’s ruling, determining that ‘‘this state does
not require a party to a dissolution action to take affir-
mative steps to recover marital assets taken by a third
party . . . .’’ Id., 225.
In February, 2016, Ferri commenced this vexatious
litigation action against Powell-Ferri and the Parrino
defendants.7 The parties cross moved for summary judg-
ment. After oral argument on all of the summary judg-
ment motions, the trial court granted the Parrino defen-
dants’ motion for summary judgment. The trial court
denied Ferri’s motions for summary judgment directed
to the Parrino defendants and Powell-Ferri, respec-
tively, as well as Powell-Ferri’s motion for summary
judgment. Ferri now appeals from the granting of the
Parrino defendants’ motion for summary judgment.
We must first address Ferri’s claim that the court
used the incorrect standard in determining whether the
Parrino defendants had probable cause to prosecute
the cross complaint. In its decision, the trial court stated
that the probable cause standard in the context of a
vexatious litigation claim against an attorney and/or a
law firm 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 or pursue the litigation.’’ (Emphasis in
original; internal quotation marks omitted.) The trial
court further stated that ‘‘[t]he standard is an objective
one that is necessarily dependent on what the attorney
knew when he or she initiated and/or continued the
litigation.’’ Ferri argues, however, that the court was
required to determine whether the attorney had proba-
ble cause to commence and to pursue the litigation,
not to determine whether the attorney reasonably
believed he or she had probable cause.8
‘‘[W]hether the court applied the correct legal stan-
dard is a question of law subject to plenary review.
. . . When an incorrect legal standard is applied, the
appropriate remedy is to reverse the judgment of the
trial court and to remand the matter for further proceed-
ings.’’ (Citations omitted; internal quotation marks omit-
ted.) Deroy v. Estate of Baron, 136 Conn. App. 123, 127,
43 A.3d 759 (2012).
‘‘In the context of a claim for vexatious litigation, 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.’’ (Internal quotation
marks omitted.) Bernhard-Thomas Building Systems,
LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329
(2008). ‘‘[I]n Falls Church Group, Ltd. [v. Tyler, Coo-
per & Alcorn, LLP, 281 Conn. 84, 103, 912 A.2d 1019
(2007)], our Supreme Court rejected the claim that a
claim for vexatious litigation against an attorney should
be judged by a higher standard than the general objec-
tive standard, it nonetheless observed that the reason-
able attorney is substituted for the reasonable person
in [vexatious litigation] actions against attorneys . . . .
The court explained that, with respect to vexatious
litigation actions brought against attorneys, the proper
probable cause inquiry is whether a reasonable attorney
familiar with Connecticut law would believe that he or
she had probable cause to bring the lawsuit. . . . [T]he
standard that applies to attorneys is an objective one
that is necessarily dependent on what an attorney knew
when he or she initiated the lawsuit, and that probable
cause may exist even if a suit lacks merit.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Tatoian v. Tyler, supra, 194 Conn. App. 63.
Applying the standard to the present case, the trial
court stated: ‘‘Relatedly, taking into account the facts
known by Parrino and the theory pressed in the cross
complaint at the trial and appellate levels, the court
concludes that an attorney familiar with Connecticut
law could reasonably believe that probable cause
existed to initiate and prosecute the cross complaint
and to pursue an appeal from the granting of Ferri’s
motion for summary judgment thereon. Thus, as a mat-
ter of law, the Parrino defendants had probable cause
to initiate and prosecute the cross complaint at the trial
and appellate levels. There is no dispute of material fact
as to the circumstances that gave rise to the existence
of such probable cause.’’ Accordingly, we conclude that
the court applied the correct standard for determining
whether the Parrino defendants had probable cause to
prosecute the cross complaint.
Ferri also claims that, even if the court applied the
correct standard, the court incorrectly determined that,
as a matter of law, the Parrino defendants had probable
cause to bring and prosecute the cross complaint. Ferri
argues that this determination was improper because
‘‘[t]he trial court failed to consider the Parrino defen-
dants’ inability to recall any case law research per-
formed, the failure to have any memoranda supporting
the decision to file the cross complaint, the Parrino
defendants’ failure to consider the effect of Gershman
[v. Gershman, supra, 286 Conn. 341], or the fact that
the Parrino defendants’ consideration of whether
[Ferri] had an affirmative obligation to seek a return
of trust assets from a third party was based solely on
what they thought was common sense.’’
The following additional facts are relevant to our
resolution of this claim. As previously stated, Powell-
Ferri filed an action for a dissolution of her marriage
in October, 2010. Upon service of process, Ferri was
subject to the automatic orders contained in Practice
Book § 25-5.9 The Parrino defendants appeared on
behalf of Powell-Ferri in both the dissolution action
and the trustees’ action and attempted to pursue various
avenues to address the decanting of the 1983 trust. In
the dissolution proceeding, the Parrino defendants filed
a motion for contempt against Ferri alleging that he
violated the court’s automatic orders by not taking
action after becoming aware of the decanting. The court
denied the motion for contempt concluding that
‘‘[n]owhere in the automatic orders is there a duty to
act. The duties throughout the automatic orders are
injunctive in nature, prohibiting conduct that would
disturb the status quo, essentially.’’10 Powell-Ferri v.
Ferri, Superior Court, judicial district of Middlesex,
Docket No. FA-XX-XXXXXXX-S (July 10, 2013) (56 Conn.
L. Rptr. 473, 476).
In the trustees’ action, the Parrino defendants filed
an answer containing special defenses, counterclaims
and the cross complaint underlying the vexatious litiga-
tion action, on January 4, 2012. The Parrino defendants
filed an amended answer, special defenses, and a cross
complaint on January 18, 2012.11 In the cross complaint,
the Parrino defendants alleged, on behalf of Powell-
Ferri, that ‘‘by virtue of the dissolution action filed
against him, Ferri had a duty to preserve marital assets,
including those held in the 1983 trust; (2) Ferri was
aware of the trustees’ creation of a new trust with the
intent to deprive Powell-Ferri of her equitable interest
in trust assets and has taken no action to pursue his
right and obligation to seek the return of the trust assets
to the 1983 Trust; and (3) Powell-Ferri has been harmed
as a result thereof.’’ (Internal quotation marks omitted.)
The parties filed cross motions for summary judgment
on the Parrino defendants’ counterclaim. The trial court
noted that, in opposing Ferri’s motion, the Parrino
defendants ‘‘advocated for the recognition of a new
cause of action sounding in tort, as an extension of
duties already existent between spouses, whereby a
divorcing spouse would have a duty to prevent the
dissipation of marital assets by a third party or undo
the dissipation after the fact.’’
The trial court granted Ferri’s motion and denied
Powell-Ferri’s motion. On appeal, our Supreme Court
affirmed the trial court’s judgment, declining to recog-
nize a new cause of action. Ferri v. Powell-Ferri, supra,
317 Conn. 235. The court explained that ‘‘whether a
party to a dissolution has a duty to act to preserve
martial assets’’ is a question of ‘‘first impression.’’ Id.,
229. The court acknowledged that there is no ‘‘ ‘hard and
fast test’ ’’ for the court to use in deciding to recognize
a new cause of action but recognized its power to do
so.12 Id. The court explained the factors it examines in
making this determination, namely, whether judicial
sanctions are available and whether there are sufficient
remedies to compensate the afflicted party, and
whether other jurisdictions have recognized such a
cause of action. Id. The court determined that Connecti-
cut provides ‘‘significant remedies for when a party to
a dissolution action has been found to dissipate assets.’’
Id., 231. The court rejected Powell-Ferri’s argument that
our public policy in this state requires affirmative
action, determining that our public policy only requires
parties to attempt to maintain the status quo regarding
marital assets. Id., 231–32. The court explained that
dissipation requires a party to the dissolution proceed-
ing to have committed some sort of financial miscon-
duct and, if that determination is not made, Connecticut
courts can consider the dissipation when fashioning
asset distribution orders and alimony determinations
in dissolution cases. Id., 232–33. The court determined
that Powell-Ferri had not established dissipation
because it was undisputed that Ferri did not have a
role in creating the 2011 trust or decanting the assets
of the 1983 trust; he only chose not to take action after
the fact. Id., 233–34. The court explained that, even if
a party believes his or her spouse had improperly
removed assets from the marital estate, there were judi-
cial remedies available to address this, including asking
the court to exercise its discretion in considering those
assets in fashioning orders and filing a motion for con-
tempt if the party had fraudulently removed those
assets. Id., 234. The court stated that a motion for con-
tempt or a finding of dissipation were not suitable ave-
nues, and, therefore, if the trustees were allowed to
decant the assets in the trust, Powell-Ferri would have
to ask the trial court to consider the removed assets
in creating the financial orders. Id., 235.
In the vexatious litigation action, the trial court deter-
mined that, on the basis of the facts known to the
Parrino defendants, they pursued the motion for con-
tempt and the cross complaint ‘‘in order to advance
their client’s interest in the assets of the 1983 trust, as
a marital asset, that existed at the time of the com-
mencement of the dissolution action.’’ The court also
determined that ‘‘an attorney familiar with Connecticut
law could reasonably believe that probable cause
existed to initiate and prosecute the cross complaint
and to pursue an appeal from the granting of Ferri’s
motion for summary judgment thereon.’’ The trial court
further rejected Ferri’s claims that (1) the cross com-
plaint raised frivolous arguments because the action
was later found to lack merit, (2) the Parrino defendants
falsely alleged that Ferri knew of the trustees’ intent
to decant the 1983 trust prior to the decanting, and
(3) the action lacked probable cause because no other
jurisdiction has recognized such a cause of action.
The court correctly explained that an action that
lacks merit does not necessitate the conclusion that it
lacks probable cause or is frivolous.13 See Tatoian v.
Tyler, supra, 194 Conn. App. 59 (‘‘We are mindful that
[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 . . . .’’ (Internal quotation marks omitted.)).
Regarding the claim of false allegations, the court
determined that ‘‘the viability of the cross complaint
did not depend on any false allegation that Ferri knew
of the trustees’ intention to decant the 1983 trust prior
to the actual decanting.’’ The cross complaint did not
allege that Ferri failed to act prior to the decanting.
The cross complaint alleged that Ferri failed to act after
becoming aware of the trustees’ decanting of the 1983
trust.14 The court, therefore, properly rejected Ferri’s
contention that the Parrino defendants lacked probable
cause because they knew that Ferri only learned about
the decanting after the fact.
Finally, the trial court correctly determined that the
lack of precedent in other jurisdictions did not render
the Parrino defendants’ cross complaint as being with-
out probable cause. See Tatoian v. Tyler, supra, 194
Conn. App. 59 (‘‘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.’’ (Internal quotation marks omitted.)).
Our review of the extensive record in the interrelated
cases and the briefs submitted on appeal demonstrate
that the Parrino defendants zealously sought a remedy
for their client. As our Supreme Court in the trustees’
action explained, the available remedies in such a situa-
tion were a motion for contempt, arguing that Ferri had
dissipated marital assets, and a request to the court to
use its discretion to consider the removed assets when
fashioning asset distribution orders. Ferri v. Powell-
Ferri, supra, 317 Conn. 234. The Parrino defendants
pursued all of those avenues to no avail.
The Parrino defendants also pursued another path in
order to advance the law of our state to address situa-
tions in which a party to a dissolution proceeding takes
no action to prevent others from removing assets from
the marital estate to his benefit. When the trustees pre-
emptively filed the declaratory judgment action seeking
a court determination that Powell-Ferri had no right to
the funds in the 2011 trust, the Parrino defendants filed
the cross complaint at issue, asking the court to recog-
nize a new cause of action that would have required a
party to a dissolution proceeding to take action to pre-
vent the removal of assets that would benefit him. When
presented with the trustees’ action, the Parrino defen-
dants, accordingly, attempted to defend and vindicate
their client’s interests.
On the basis of the foregoing, we conclude that the
trial court properly determined that the Parrino defen-
dants had probable cause to bring and prosecute the
cross complaint. The trial court, therefore, properly
granted the Parrino defendants’ motion for summary
judgment.15
The judgment is affirmed.
In this opinion the other judges concurred.
1
Ferri filed a six count complaint against the defendant Nancy Powell-
Ferri and the Parrino defendants. The counts of the complaint that pertain
to Powell-Ferri are still pending in the trial court. This court’s jurisdiction
is limited to appeals taken from final judgments, unless otherwise provided
by law. See Practice Book § 61-1. ‘‘Our rules of practice, however, set forth
certain circumstances under which a party may appeal from a judgment
disposing of less than all of the counts of a complaint. Thus, a party may
appeal if the partial judgment disposes of all causes of action against a
particular party or parties; see Practice Book § 61-3.’’ Krausman v. Liberty
Mutual Ins. Co., 195 Conn. App. 682, 687–88, 227 A.3d 91 (2020). Because
judgment has entered as to all counts of the complaint pertaining to the
Parrino defendants, we have jurisdiction to hear Ferri’s appeal from the
judgment entered on those counts.
2
‘‘Although the denial of a motion for summary judgment is not a final
judgment and thus is not ordinarily appealable; see Practice Book § 4000
[now Practice Book § 61-1]; Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590
A.2d 914 (1991); Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d
1043 (1988); the rationale for this rule is not applicable where both sides
have filed motions for summary judgment and the court has granted one
of them. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n.12,
596 A.2d 414 (1991). Thus, [an appellate court] may consider both of the
summary judgment rulings contested by [an appellant] on appeal.’’ (Internal
quotation marks omitted.) Misiti, LLC v. Travelers Property Casualty Co.
of America, 132 Conn. App. 629, 630 n.2, 33 A.3d 783 (2011), aff’d, 308 Conn.
146, 61 A.3d 485 (2013).
3
General Statutes § 52-568 provides: ‘‘Any person who commences and
prosecutes any civil action or complaint against another, in his own name
or the name of others, or asserts a defense to any civil action or complaint
commenced and prosecuted by another (1) without probable cause, shall
pay such other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other person, shall
pay him treble damages.’’
4
The plaintiffs in the declaratory judgment action were the trustees of
the 1983 trust. Michael Ferri, who is Ferri’s brother and business partner,
was one of the trustees involved in the action.
5
Article II of the 1983 trust provides in relevant part: ‘‘My Trustee shall
pay to Paul after he has attained the age of thirty-five (35) years such
amounts of the principal as he may from time to time in writing request;
provided however, that the aggregate amount of such payments of principal
made before he attains the age of thirty-nine (39) years shall not exceed
one-fourth (1/4) of the value of the principal of such property as determined
on his thirty-fifth (35th) birthday; provided further that after Paul has attained
the age of thirty-nine (39) years, the aggregate amount of such payments
of principal made before he attains the age of forty-three (43) years shall
not exceed one-half (1/2) of such value; and provided further that after Paul
has attained the age of forty-three (43) years, the aggregate amount of such
payments of principal made before he attains the age of forty-seven (47)
years shall not exceed three-fourths (3/4) of such value. Such values shall
be determined by my Trustee, whose determinations in this regard shall be
final and binding on all concerned.’’
6
In a subsequent appeal, our Supreme Court, relying on answers to certi-
fied questions that it had submitted to the Massachusetts Supreme Judicial
Court, concluded that the trustees had the authority to create the second
trust by decanting the assets from the first trust. See Ferri v. Powell-Ferri,
326 Conn. 438, 441–42, 165 A.3d 1137 (2017).
7
As stated by the trial court, Ferri’s action claimed ‘‘that the initiation
and prosecution of the cross complaint in the trustees’ action were vexatious.
The operative complaint is Ferri’s revised complaint dated March 10, 2017
. . . which sets forth the following counts: (1) count one—common-law
vexatious litigation, as to Powell-Ferri; (2) count two—statutory vexatious
litigation under . . . § 52-568, as to Powell-Ferri; (3) count three—common-
law vexatious litigation, as to Parrino; (4) count four—statutory vexatious
litigation under § 52-568, as to Parrino; (5) count five—common-law vexa-
tious litigation, as to Nusbaum & Parrino [P.C.]; and (6) count six—statutory
vexatious litigation under § 52-568, as to Nusbaum & Parrino [P.C.].’’
8
Ferri also claims that the court was required to analyze the question of
probable cause in conjunction with the factors described in ATC Partnership
v. Coats North America Consolidated, Inc., 284 Conn. 537, 552–53, 935 A.2d
115 (2007), for recognizing a new cause of action: ‘‘When we acknowledge
new causes of action, we also look to see if the judicial sanctions available
are so ineffective as to warrant the recognition of a new cause of action.
. . . To determine whether existing remedies are sufficient to compensate
those who seek the recognition of a new cause of action, we first analyze
the scope and applicability of the current remedies under the facts alleged
by the plaintiff. . . . Finally, we are mindful of growing judicial receptivity
to the new cause of action, but we remain acutely aware of relevant statutes
and do not ignore the statement of public policy that such statutes represent.’’
(Citations omitted.)
Ferri argues that because it is clear that the factors necessary to recognize
a new cause of action were not met, it should have been clear to the Parrino
defendants that they did not have probable cause to bring and prosecute
the cross complaint. We note, however, that the court in ATC Partnership
also recognized that there is ‘‘no hard and fast test that courts apply when
determining whether to recognize new causes of action.’’ Id., 552.
9
Practice Book § 25-5 (b) provides in relevant part: ‘‘(b) In all cases
involving a marriage or civil union, whether or not there are children: (1)
Neither party shall sell, transfer, exchange, assign, remove, or in any way
dispose of, without the consent of the other party in writing, or an order
of a judicial authority, any property, except in the usual course of business
or for customary and usual household expenses or for reasonable attorney’s
fees in connection with this action. . . .’’
10
The court explained further: ‘‘The question of whether [the automatic]
orders, under the facts of this case, require [Ferri] to take an affirmative
action to protect his interest in the 1983 [t]rust is a difficult one.’’ Powell-
Ferri v. Ferri, Superior Court, judicial district of Middlesex, Docket No.
FA-XX-XXXXXXX-S (July 10, 2013) (56 Conn. L. Rptr. 473, 475). Further, the
court noted that ‘‘[w]hether any relief is available to [Powell-Ferri] under
the facts of this case is not immediately clear. [Ferri] has taken no affirmative
action to prevent the loss of this asset to the marital estate; and it is precisely
the lack of affirmative action of which [Powell-Ferri] complains. Whether
that meets the present definition of asset dissipation in the marital context
is unclear. . . . ‘[C]ourts have traditionally recognized dissipation in the
following paradigmatic contexts: gambling, support of a paramour, or the
transfer of an asset to a third party for little or no consideration. Well defined
contours of the doctrine are somewhat elusive, however, particularly in
more factually ambiguous situations.’ Gershman v. Gershman, [supra, 286
Conn 346–47]. . . . Whether inaction is tantamount to a ‘factually ambigu-
ous situation’ alluded to in Gershman is not before the court presently.
That shall wait until either the final hearing or a motion addressing the
same.’’ Powell-Ferri v. Ferri, supra, 56 Conn. L. Rptr. 473, 476.
11
The Parrino defendants alleged five special defenses: (1) conspiracy;
(2) removal of marital assets; (3) irrevocable trust; (4) unclean hands; and
(5) violation of public policy. The Parrino defendants raised four counter-
claims: (1) common-law fraud; (2) statutory fraudulent transfer; (3) civil
conspiracy; and (4) declaratory judgment.
12
Our Supreme Court has explained: ‘‘We do have the inherent authority,
pursuant to the state constitution, to create new causes of action. Binette
v. Sabo, 244 Conn. 23, 34, 710 A.2d 688 (1998). Moreover, it is beyond dispute
that we have the power to recognize new tort causes of action, whether
derived from a statutory provision or rooted in the common law. Rizzuto
v. Davidson Ladders, Inc., 280 Conn. 225, 235, 905 A.2d 1165 (2006); see,
e.g., Mead v. Burns, 199 Conn. 651, 663, 509 A.2d 11 (1986) (recognizing
action for damages under Connecticut Unfair Trade Practices Act for viola-
tions of Connecticut Unfair Insurance Practices Act); Sheets v. Teddy’s
Frosted Foods, Inc., 179 Conn. 471, 480, 427 A.2d 385 (1980) (recognizing
tort of wrongful discharge); Urban v. Hartford Gas Co., 139 Conn. 301, 307,
93 A.2d 292 (1952) (recognizing torts of intentional and negligent infliction
of emotional distress).’’ ATC Partnership v. Coats North America Consoli-
dated, Inc., 284 Conn. 537, 552–53, 935 A.2d 115 (2007).
13
Furthermore, rule 3.1 of the Rules of Professional Conduct provides in
relevant part: ‘‘A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith argument for
an extension, modification or reversal of existing law. . . .’’ (Emphasis
added.) The commentary to this rule clarifies as follows: ‘‘The advocate has
a duty to use legal procedure for the fullest benefit of the client’s cause,
but also a duty not to abuse legal procedure. The law, both procedural and
substantive, establishes the limits within which an advocate may proceed.
However, the law is not always clear and never is static. Accordingly, in
determining the proper scope of advocacy, account must be taken of the
law’s ambiguities and potential for change.
‘‘The filing of an action or defense or similar action taken for a client is
not frivolous merely because the facts have not first been fully substantiated
or because the lawyer expects to develop vital evidence only by discovery.
What is required of lawyers, however, is that they inform themselves about
the facts of their clients’ cases and the applicable law and determine that
they can make good faith arguments in support of their clients’ positions.
Such action is not frivolous even though the lawyer believes that the client’s
position ultimately will not prevail. The action is frivolous, however, if the
lawyer is unable either to make a good faith argument on the merits of the
action taken or to support the action taken by a good faith argument for
an extension, modification or reversal of existing law.’’ Rules of Professional
Conduct 3.1, commentary.
14
To be clear, the Parrino defendants alleged, as special defenses, that
Ferri was aware of the trustees’ intent to decant the 1983 trust before the
2011 trust was created and that the actions were a part of a conspiracy to
keep those assets away from Powell-Ferri in the dissolution proceeding.
Those allegations were stricken by the trial court, Munro, J., in the trustees’
action. The trial court in the vexatious litigation action addressed this claim,
stating that ‘‘Ferri’s counsel acknowledged during oral argument before this
court that such special defense against the trustees does not serve as a
basis for Ferri’s vexatious litigation claims against the defendants in the
present case.’’ We agree with the trial court that claims alleged in special
defenses are not relevant to this vexatious litigation suit brought on the
basis of the Parrino defendants’ filing and prosecution of the cross complaint.
15
As a result of this determination, we need not address Ferri’s remaining
claims for the following reasons. Ferri claims that the trial court erred in
finding that the Parrino defendants did not act with malice. Although malice
is an element of a common-law vexatious litigation cause of action, it is
not an element of the statutory vexatious litigation cause of action; it is
only a multiplier of damages. Probable cause is an element of both. Because
we determine that there was no want of probable cause, we do not need
to consider whether the trial court properly determined a want of malice.
See Schaeppi v. Unifund CCR Partners, 161 Conn. App. 35, 36 n.1, 127 A.3d
304, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015).
Ferri also claims that the trial court erred in determining that the Parrino
defendants did not violate rule 3.1 of the Rules of Professional Conduct. A
violation of the Rules of Professional Conduct does not, in itself, create
a private cause of action. See Rules of Professional Conduct, preamble
(‘‘[v]iolation of a [r]ule should not itself give rise to a cause of action against
a lawyer nor should it create any presumption that a legal duty has been
breached’’); Perugini v. Giuliano, 148 Conn. App. 861, 879, 89 A.3d 358
(2014) (‘‘the Rules of Professional Conduct do not give rise to a private
cause of action’’). Our review of the trial court record in the vexatious
litigation action demonstrates that Ferri raised this argument, not as a
separate cause of action, but as support for his claim that the Parrino
defendants lacked probable cause to maintain the cross complaint. As we
have already concluded that the trial court did not err in determining that
the Parrino defendants had probable cause, we need not consider this claim
in depth.
Finally, in light of our determination that the trial court properly granted
the Parrino defendants’ motion for summary judgment, it is not necessary
to address Ferri’s claim that the court should have granted his motion and
rendered judgment in his favor.