Brycorp, Inc. v. McCallum McCallum, No. Cv 91-0443308s (Nov. 15, 1991)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE This action is a petition for a new trial filed by the plaintiff Brycorp, Inc. The current litigation has its roots in prior lawsuits brought by the plaintiff against the defendants Robert B. McCallum and Douglas W. McCallum. Those previous actions were tried to the court, Kremski, J., who found for the defendants. The plaintiff has filed this petition seeking a new trial in the actions decided in favor of the McCallums. The defendants have filed a counterclaim asserting that the prior lawsuits constituted vexatious litigation.

A vexatious suit is a type of malicious prosecution. Vandersluis v. Weil, 176 Conn. 353, 356 (1978). To establish such a cause of action it is necessary to prove want of probable cause, malice, and a termination of the prior suit in favor of the party now bringing the vexatious litigation action. Id.

Brycorp, Inc. has moved to strike the first count of the counterclaim on the ground that the prior lawsuits have not terminated. Brycorp argues that a claim of vexatious suit is premature because if the filing of a petition results in a new trial there will be no judgment in the prior lawsuits and CT Page 9609 those proceedings will not have terminated.

The plaintiff's argument overlooks two important points. The first is that recent judgment has already entered in favor of the defendants. The second is that a petition for a new trial "is instituted by a writ and complaint served on the adverse party . . . although such a suit is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding." State v. Asherman, 180 Conn. 141, 144 (1980). Since the court has already found for the defendants in the prior case and this petition for a new trial is a new and distinct action, the prior litigation has terminated.

Accordingly, the motion to strike is denied.

FRANCES ALLEN SENIOR JUDGE