Rieffel v. Johnston-Foote, 139 A.3d 729, 165 Conn. App. 391 (2016)

May 10, 2016 · Connecticut Appellate Court · No. 37762.

139 A.3d 729, 165 Conn. App. 391

Bich-Ha Henriette RIEFFEL et al.
v.
Penelope D. JOHNSTON-FOOTE et al. (AC 37762)

No. 37762.

Appellate Court of Connecticut.

Argued Feb. 29, 2016.
Decided May 10, 2016.

Peter M. Ryan, Darien, for the appellants (plaintiffs).

Brian J. Farrell, Jr., for the appellees (named defendant et al.).

Kelley Franco Throop, New Canaan, for the appellees (defendant Diane Jones et al.).

Douglas R. Steinmetz, Westport, for the appellees (defendant Dan Tredwell et al.).

Peter E. DeMartini, with whom, on the brief, was Charles A. Deluca, Stamford, for the appellees (defendant Daniel W. Moger, Jr., et al.).

KELLER, MULLINS and PELLEGRINO, Js.

PER CURIAM.

The plaintiffs, Bich-Ha Henriette Rieffel and Marc A. Rieffel, appeal from the summary judgment rendered on their complaint in favor of the defendants, Penelope D. Johnston-Foote, Rayh Foote, also known as Ray Foote, Diane Jones, Michael B. Jones, Dan Tredwell, Lucinda Tredwell, Sue Baker, Attorney Daniel W. Moger, Jr., Daniel W. Moger, LLC, the Penelope Johnston-Foote Family Qualified Personal Residence Trust (trust), and LWT Associates, LLC (LLC).¹ In their complaint, the plaintiffs sought damages for vexatious litigation and abuse of process against several of their neighbors individually (Johnston-Foote, Foote, the Tredwells, the Joneses, and Baker), the owners of property on which certain neighbors resided (the trust and the LLC), the neighbors' attorney (Moger) and his law firm (Daniel W. Moger, LLC), for having filed a forcible entry and detainer action against the plaintiffs, which subsequently was withdrawn.² On appeal, the plaintiffs claim that in rendering summary judgment in the defendants' favor the court improperly concluded that (1) the attorney defendants had probable cause to pursue the underlying forcible entry and detainer action; (2) the affidavits of several of the neighbor defendants were competent evidence of their special defense to the vexatious litigation counts of reliance on the advice of counsel; (3) the trust and the LLC were not properly named as defendants because they were not parties to the underlying forcible entry and detainer action; and (4) the defendants' pursuit of the underlying action was not an abuse of process because the exclusive remedy available to the neighbor defendants was an action to quiet title. We affirm the judgment of the trial court.

Evidence of the following facts appears in the record. The plaintiffs and the individual neighbor defendants all live in a secluded neighborhood on a private road, known as Thrushwood Road, off of Indian Head Road in the Riverside section of Greenwich. An unnamed right-of-way and a portion of Thrushwood Road are located on the land of the plaintiffs. For purposes of the summary judgment action and this appeal, rights of ingress and egress to the respective residences of the individual neighbor defendants over the unnamed right-of-way and Thrushwood Road are conceded by the plaintiffs. Near the head of Thrushwood Road, a small open shed or wooden stanchion, located on the plaintiffs' property, contained the mailbox of the plaintiffs and four mailboxes of the individual neighbor defendants. The individual neighbor defendants' mailboxes had existed at this particular location for periods of time ranging from ten years to more than forty years.

In an undated letter addressed to "Dear Neighbors," Bich-Ha Henriette Rieffel demanded that the individual neighbor defendants remove the stanchion and their mailboxes on or before November 27, 2012. On or about December 10, 2012, the plaintiffs served several of the neighbor defendants with a "Notice of Termination of License," informing them that their "license and privilege to maintain a mailbox ... on the property owned by [the plaintiffs] ... is hereby terminated...." The notice advised the neighbor defendants that their license terminated as of December 17, 2012, and that the mailboxes and the stanchion should be removed by the close of the business day on that date.

The individual neighbor defendants objected to the plaintiffs' demands and retained Moger in December, 2012, to protect their interests. Between December 17, 2012, and January 8, 2013, counsel for the plaintiffs and Moger exchanged correspondence regarding the dispute. On or about January 25, 2013, the plaintiffs removed the four mailboxes and the stanchion; the mailboxes of the individual neighbor defendants were left in the driveways of their respective properties. After Moger recommended to his clients the institution of a forcible entry and detainer action pursuant to General Statutes § 47a-43, the individual neighbor defendants authorized the action against the plaintiffs. An unsigned summons and complaint was presented to a judge, who signed the summons on January 29, 2013. Service subsequently was made on the plaintiffs. A court date of February 7, 2013, was set at the housing session of the Superior Court in Norwalk. On that date, the housing court judge apparently expressed some doubts about the strength of the case, and the plaintiffs filed a motion for summary judgment. Another court date was set, but, after consulting with his clients, Moger withdrew the entry and detainer action on February 19, 2013.³

On August 6, 2013, the plaintiffs commenced this action against the attorney defendants and the individual neighbor defendants who had been plaintiffs in the forcible entry and detainer action. In addition, the trust and the LLC were named as defendants although they were not parties to the forcible entry and detainer action. The complaint contained twenty-four counts. Each of the individual neighbor defendants, the trust, and the LLC were sued for common-law vexatious litigation, statutory vexatious litigation pursuant to both General Statutes § 52-568(1) and (2),⁴ common-law abuse of process, and common-law abuse of process with malice.⁵ The attorney defendants were sued for common-law vexatious litigation, statutory vexatious litigation pursuant to § 52-568(1) and (2), and common-law abuse of process.

All of the defendants filed answers denying the essential allegations of the plaintiffs' complaint. The neighbor defendants all pleaded the special defense of reliance upon the advice of counsel. Subsequently, all of the defendants filed motions for summary judgment accompanied by supporting memoranda of law and affidavits. The attorney defendants also annexed exhibits to their motion, on which, in addition to Moger's affidavit, the neighbor defendants additionally relied. The plaintiffs responded, objecting to the granting of summary judgment, with memoranda and counteraffirmations.⁶

The court, by memorandum of decision,⁷ granted the motion for summary judgment filed by the attorney defendants after determining that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a result, the attorney defendants were entitled to judgment in their favor as a matter of law. The court first determined that the evidence did not reveal the existence of a genuine issue of material fact with respect to whether the attorney defendants had probable cause to recommend to clients and to commence the forcible entry and detainer action against the plaintiffs. On the basis of the evidence before it, the court determined that such probable cause existed. The court stated that "[t]he existence of probable cause eliminates the major necessary predicate for the various vexatious suit claims asserted by the plaintiffs...."⁸ Next, the court determined that the evidence demonstrated that the attorney defendants did not abuse process because the forcible entry and detainer action was not instituted for a purpose for which such an action was not designed, thereby rejecting the plaintiffs' claim that the attorney defendants actually intended to bring a quiet title action. The court determined that what was sought only was the retention of the neighbor defendants' claimed possessory rights to their mailboxes.⁹ Further, the court determined that the plaintiffs, in their abuse of process claims against the attorney defendants, had failed to allege or prove that the attorney defendants engaged in specific misconduct intended to cause specific injury outside the normal contemplation of private litigation.¹⁰

With respect to the motions for summary judgment filed by the neighbor defendants, the court, in a separate memorandum of decision, determined that the evidence presented by the parties, when viewed in the light most favorable to the plaintiffs, failed to establish a genuine issue as to any material fact and that, as a matter of law, the neighbor defendants were entitled to judgment in their favor. The court determined that the evidence demonstrated that the neighbor defendants had provided Moger with any and all facts concerning the mailboxes, including their removal and placement on their properties, and that there was no evidentiary support for the plaintiffs' claim that the neighbor defendants' disclosure of facts to Moger was less than candid or incomplete.¹¹ The court further concluded that Bich-Ha Henriette Rieffel's affirmation, which she filed in response to the neighbor defendants' motions for summary judgment, did not give rise to an issue of material fact with respect to her assertion of bad faith or malice against the neighbor defendants attributable to the removal of the mailboxes.

On the basis of its assessment of the submissions before the court, the court then determined that the neighbor defendants had established the essential elements of their special defense of advice of counsel to the vexatious litigation claims of the plaintiffs. Finally, the court determined that the individual neighbor defendants did not abuse process because they did not bring their action to settle or quiet title, as the plaintiffs asserted, and therefore did not use legal process against the plaintiffs primarily to accomplish a purpose for which it was not designed. The court rejected the plaintiffs' assertion that the only appropriate legal action was a quiet title action pursuant to § 47-31 and that, as it had discussed in its decision on the attorney defendants' motion for summary judgment, the forcible entry and detainer action was not clearly a frivolous claim. In rendering summary judgment in favor of the trust and the LLC, the court observed that there was no support for the plaintiffs' claims that, along with the individual neighbor defendants, the trust and the LLC had initiated the underlying forcible entry and detainer action against the plaintiffs.¹²

As previously stated, the plaintiffs claim on appeal that in rendering summary judgment in the defendants' favor, the court improperly concluded that (1) the attorney defendants had probable cause to pursue the underlying forcible entry and detainer action; (2) the affidavits of the individual neighbor defendants were competent evidence of their special defense to the vexatious litigation counts of advice of counsel; (3) the trust and the LLC were not properly named as defendants because they were not parties to the underlying forcible entry and detainer action; and (4) the defendants' pursuit of the underlying action was not an abuse of process because the exclusive remedy available to the neighbor defendants was an action to quiet title.

Our standard of review of a trial court's ruling on a motion for 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.... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].... Our review of the trial court's decision to grant [a] motion for summary judgment is plenary."

(Citation omitted; internal quotations marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

After a careful examination of the record, including a consideration of the comprehensive briefs and arguments of the parties, we conclude in accordance with the standard of review set forth previously in this opinion that the court did not err in granting the defendants' motions for summary judgment.¹³ Because the court's memoranda of decision fully address the arguments raised in the present appeal, we adopt its thorough and well reasoned decisions as a proper statement of the facts and the applicable law on these issues. See Rieffel v. Johnston-Foote, 165 Conn.App. at 401, 412, 139 A.3d 729 (2015) (appendices). It would serve no useful purpose for this court to repeat the analysis contained in the trial court's decisions. Riley v. Pierson, 126 Conn.App. 486, 492, 12 A.3d 581 (2011).

The judgment is affirmed.

APPENDIX

BICH-HA HENRIETTE RIEFFEL ET AL.

v.

PENELOPE D. JOHNSTON-FOOTE ET AL.^*

Superior Court, Judicial District of Stamford-Norwalk

File No. CV-13-6019381 S

Memorandum filed February 19, 2015

Proceedings

Memorandum of decision on motions for summary judgment filed by named defendant et al. Motions granted .

Peter M. Ryan , for the plaintiffs.

Brian J. Farrell, Jr. , for the named defendant et al.

Douglas R. Steinmetz , for the defendant Dan Tredwell et al.

Kelley Franco Throop , for the defendant Diane Jones et al.

Peter E. DeMartini , for the defendant Daniel W. Moger, Jr., et al.

Opinion

HON. TAGGART D. ADAMS, JUDGE TRIAL REFEREE.

I

BACKGROUND

This case between neighbors living on a private road, known as Thrushwood Road, off of Indian Head Road in the Riverside section of Greenwich, Connecticut, should be no more than a tempest in a teapot, but instead it has developed into a major conflagration, which, as of October, 2014, reached 130 filings reflected in the court's electronic file in barely over a year.

The origin of the dispute was a decision by the plaintiffs to remove what they call a wood stanchion, and the defendants describe as a small open shed, on their property, located at 95 Indian Head Road near the head of Thrushwood Road, which contained the plaintiffs' mailbox and the mailboxes serving five other residences on Thrushwood. The defendants, who are the owners or inhabitants of those five residences, protested the rather curt announcement by the plaintiffs, but the shed was removed, and the neighbors' mailboxes were left on their respective properties.

Subsequently, the neighbors (now defendants, and referred to herein as the neighbor defendants) consulted with Attorney Daniel W. Moger, Jr., who advised them to pursue a forcible entry and detainer suit, pursuant to General Statutes § 47a-43, in the housing session of the Superior Court in Norwalk. With the neighbor defendants' consent, such a lawsuit was prepared and filed by Moger on January 29, 2013, on behalf of the defendants, and subsequently served on the plaintiffs herein. Shortly thereafter, on February 7, 2013, a hearing occurred in the matter before Hon. Jack L. Grogins, judge trial referee, at which time the plaintiffs presented a motion for summary judgment dismissing the action. The hearing was adjourned without judicial action, although apparently Judge Grogins evidenced some skepticism of the entry and detainer claim. On February 19, 2013, Moger, acting for his clients, withdrew the lawsuit.

The plaintiffs' twenty-four page second amended complaint (Docket Entry 111.00), which is the operative complaint in this case, asserts claims of (1) common-law vexatious litigation; (2) statutory vexatious litigation pursuant to General Statutes § 52-568(1) (double damages); (3) statutory vexatious litigation pursuant to § 52-568(2) (triple damages based on malice); (4) common-law abuse of process; and (5) common-law abuse of process with malice against Sue Baker, the owner and resident of 81 Indian Head Road, against the Penelope Johnston-Foote Family Qualified Personal Residence Trust, Penelope D. Johnston-Foote and Ray Foote, the owners and residents of property known as 87 Indian Head Road against LWT Associates LLC Lucinda W. Tredwell and Dan Tredwell, owners and residents of property known as 89 Indian Head Road, against Michael B. Jones and Diane Jones, owners and residents of 93 Indian Head Road, and against Attorney Moger and his business entity. All of the defendants have moved for summary judgment dismissing the claims against them. This memorandum will discuss and decide the motions made by the neighbor defendants, namely, the Johnston-Foote family trust, Johnston-Foote and Foote (168.00), LWT Associates, LLC, and the Tredwells (177.00), Baker (179.00) and Michael Jones and Diane Jones (172.00). The plaintiffs have filed memoranda and two affirmations opposing the four motions (219.00, 221.00, 226.00, 228.00, 229.00 and 230.00). Moger and his law firm also seek summary judgment, and the plaintiffs oppose that motion, which will be dealt with in a separate decision. All motions were heard and argued on October 27, 2014.

II

SCOPE OF REVIEW

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. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "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 judgment as a matter of law...." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, at 209, 757 A.2d 1059. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). "[T]he 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.) Appleton v. Board of Education, supra, 254 Conn. at 209, 757 A.2d 1059 ; see generally Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012) ; Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 624-25, 57 A.3d 391 (2012).

III

DISCUSSION

A

Vexatious Litigation Claims

Each of the motions filed by the neighbor defendants contains one or more affidavits attesting to the individual's consultation with Attorney Moger about possible remedies concerning their mailbox situation, that the individuals disclosed all the relevant facts to Moger and relied on his advice. See exhibits B and C to Johnston-Foote motion; exhibits B and C to Jones motion; exhibits B and C to Tredwell motion; and exhibit B to Baker motion. Additionally, the neighbors' summary judgment motions rely on an affidavit with exhibits submitted by Attorney Moger in support of his own summary judgment motion. The Moger affidavit, dated February 14, 2014 (exhibit A to Docket Entry 157.00), includes information that he learned from consulting with his clients, such as the length of time certain of their mailboxes had been located at the covered stand (i.e., for up to forty years). Moger Affidavit, ¶ 6.

In opposition to the defendants' summary judgment motions, the plaintiff Bich-Ha Henriette Rieffel submitted an affirmation with exhibits along with an affirmation and exhibits by her attorney, Peter M. Ryan (Docket Entry 228.00). The plaintiffs have also submitted nearly identical memoranda opposing the nearly identical memoranda supporting the neighbor defendants' summary judgment motions. In all, the proliferation of memoranda, affidavits and exhibits, and changes and substitutions thereto, has made it extraordinarily difficult for the court, relying on only the electronic file used in the Superior Court, to separate the wheat from the chaff.

The overriding issue with respect to the neighbor defendants' motions, and the opposition thereto, is the availability and effect of the advice of counsel defense pleaded as a special defense by the neighbor defendants. "Advice of counsel is a complete defense to an action of ... vexatious suit when it is shown that the defendant ... instituted his civil action relying in good faith on such advice, given after a full and fair statement of all facts within his knowledge or which he was charged with knowing. The fact that an attorney's advice was unsound or erroneous will not affect the result." Vandersluis v. Weil, 176 Conn. 353, 361, 407 A.2d 982 (1978) ; see also Shea v. Chase Manhattan Bank, N.A., 64 Conn.App. 624, 630, 781 A.2d 352 (2001). Several Superior Court cases have laid out five elements necessary to establish a valid advice of attorney defense. In Evans v. Testa Development Associates, Superior Court, judicial district of Hartford, Docket No. CV-01-806425, 2002 WL 725483 (March 26, 2002) (Hon. Robert J. Hale, judge trial referee) (31 Conn. L. Rptr. 535, 536 ), the court quoted with approval:

" '[T]he defense [of advice of counsel] has five essential elements. First, the defendant must actually have consulted with legal counsel about his decision to institute a civil action ... Second, the consultation with legal counsel must be based on a full and fair disclosure by the defendant of all facts he knew or was charged with knowing concerning the basis for his contemplated ... action ... Third, the lawyer to whom the defendant turns for advice must be one from whom the defendant can reasonably expect to receive an accurate, impartial opinion as to the viability of his claim ... The fourth element ... is, of course, that the defendant, having sought such advice, actually did rely upon it ... Fifth and finally, if all other elements of the defense are satisfactorily established, the defendant must show that his reliance on counsel's advice was made in good faith.' Internal quotation marks omitted. Infante v. Zurich American Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 327422 (June 5, 2001) (Skolnick, J. )."

This formulation is relied on by all the parties to this case.

The plaintiffs and their counsel offer several arguments opposing the neighbor defendants' motions. It is argued by the plaintiffs that the neighbor defendants did not make full disclosure to their counsel and did not act in good faith. In their affidavits, the neighbor defendants state they gave Moger "any and all facts surrounding the circumstances of my mailbox," including its removal and placement on their properties. Given the fact that their attorney was aware of how long each mailbox had been in the wooden shed or on the stanchion, it appears to the court that full and fair disclosure was made.

In Verspyck v. Franco, 274 Conn. 105, 874 A.2d 249 (2005), the Connecticut Supreme Court said: "Whether there was a full and fair disclosure of material facts as required by the advice of counsel defense is a question of fact"; Id., at 112, 874 A.2d 249, and quoting Mulligan v. Rioux, 229 Conn. 716, 748, 643 A.2d 1226 (1994), that a "jury was free to conclude that the defendants had not made a full and fair disclosure of the material facts within their knowledge to the prosecuting attorneys." In Mulligan, the plaintiffs presented evidence that affidavits prepared by the defendants in order to procure warrants were "replete with false statements and omissions of fact." Mulligan v. Rioux, supra, at 748, 643 A.2d 1226. Therefore, it was clearly a question to be presented to a jury for resolution. Here, however, that is not the case because the court finds no evidentiary support provided by the plaintiffs that the neighbor defendants' disclosure of facts to Attorney Moger was less than candid or incomplete.

The issue of malice or bad faith is adverted to mainly in Mrs. Rieffel's affirmation.

In that document (found at Docket Entry 228.00), particularly in paragraph 19, Mrs. Rieffel specifies numerous incidents and occurrences during her residence on Thrushwood Road that in her words "allow an inference of malice on the part of the [neighbor] defendants [and if reported to Attorney Moger] allow an inference of malice attributable to Attorney Moger...." Rieffel Affirmation, ¶¶ 19 and 20. The court concludes that Mrs. Rieffel's affirmation does not provide an evidentiary basis for an assertion of bad faith or malice against the neighbor defendants. For the most part, the complaints described by Mrs. Rieffel evidence a prickly relationship with the neighbor defendants after the Rieffels moved to the Thrushwood Lane area in June, 2012. How much of this state of affairs resulted from Mrs. Rieffel's undated and somewhat peremptory letter stating that the neighbor defendants' mailboxes would be removed from her property by November 27, 2012, is unknown. Docket Entry 213.00, exhibit 24. At least one such complaint by Mrs. Rieffel seems highly overstated in describing a note left on her driveway as "threatening" when the note asked her to "please fill in the hole in our driveway. Your neighbor." Id., exhibit 37.

The court turns to the five "essential" elements of the advice of counsel defense. There is no material fact in question that the neighbor defendants did consult with Attorney Moger about instituting the entry and detainer action. This is confirmed in the affidavits of Attorney Moger and various neighbor defendants, and there is no evidence to the contrary. Second, these affidavits evidence full disclosure by the clients, and there is no evidentiary basis for Mrs. Rieffel's hints to the contrary. The plaintiffs' counsel's suggestion that because the neighbor defendants' affidavits employ the same language there must have been collusion is not evidence that the affidavits are untrue.

The court is not aware of any evidence that Attorney Moger was not an attorney from whom the neighbor defendants could receive an accurate, impartial opinion on the merits of their claim, and the plaintiffs do not contend otherwise. E.g., Opposition to Johnston-Foote motion (Docket Entry 230.00), p. 19. The fourth element requires the neighbor defendants to have actually relied on Attorney Moger's advice. There has been no evidentiary basis offered by the plaintiffs to create a material fact issue about this element, and obviously the neighbor defendants did rely on Moger's advice by consenting to the commencement of the forcible entry and detainer action.

The fifth element is whether reliance by the neighbor defendants on Moger's advice was in good faith. The plaintiffs' opposition to the neighbor defendants' motions is focused on the arguments made at pp. 41-45 of the plaintiffs' brief opposing Attorney Moger's summary judgment motion. See Docket Entry 230.00, p. 13. These pages are found at Docket Entry 218.00 (for some reason, parts of the lengthy memoranda are located at Docket Entries 216.00, 217.00 and 218.00). But the arguments made therein are directed primarily at the lack of probable cause for the entry and detainer claim, and some statements made by Attorney Moger. Bad faith by the neighbor defendants cannot be established by asserting that their attorney did not have probable cause for the action or by other statements by the attorney. Vandersluis v. Weil, supra, 176 Conn. at 361, 407 A.2d 982.

In sum, despite the lengthy and occasionally convoluted arguments and assertions of the plaintiffs, the neighbor defendants have established that, on the basis of the undisputed facts and applicable law, they are entitled to the absolute defense of reliance on advice of counsel as to the claims of vexatious litigation.

B

Abuse of Process Claims

The plaintiffs have asserted claims of abuse of process and abuse of process with malice against each of the neighbor defendants. The gravamen of an abuse of process claim "is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed...." (Emphasis in original; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 403, 876 A.2d 522 (2005), citing 3 Restatement (Second), Torts § 682 (1977). In QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 773 A.2d 906 (2001), the Connecticut Supreme Court pointed out that the distinction between a vexatious suit claim and one for abuse of process was that the former focused on the purported wrongful issuance of process while the latter concerned the subsequent proceedings. Id., at 360-61 n. 16, 773 A.2d 906.

The plaintiffs assert that the neighbor defendants' suit was brought to settle or quiet title and was more akin to a suit for a declaratory judgment. See, e.g., Docket Entry 113.00, fourth count, ¶¶ 4(a) and (b). The neighbor defendants never sought legal title to the plaintiffs' real property, and to assert, as the plaintiffs do, that a quiet title action pursuant to General Statutes § 47-31 is the only appropriate legal action is incorrect. Indeed, as pointed out in the discussion of probable cause in connection with Attorney Moger's motion for summary judgment, the entry and detainer suit was not clearly a frivolous claim. Furthermore, the neighbor defendants hardly "abused" process, since their action was withdrawn with their consent a mere three weeks after its commencement.

The court finds that on the undisputed material facts and the applicable law, the plaintiffs' claims of abuse of process should be dismissed.

IV

CONCLUSION

The motions for summary judgment dismissing the plaintiffs' second amended complaint made by the neighbor defendants (Docket Entries 168.00, 177.00, 179.00 and 172.00) are granted.¹

APPENDIX

BICH-HA HENRIETTE RIEFFEL ET AL.

v.

PENELOPE D. JOHNSTON-FOOTE ET AL.^*

Superior Court, Judicial District of Stamford-Norwalk

File No. CV-13-6019381 S

Memorandum filed February 19, 2015

Proceedings

Memorandum of decision on motion for summary judgment filed by defendant Daniel W. Moger, Jr., et al. Motion granted .

Peter M. Ryan , for the plaintiffs.

Peter E. DeMartini , for the defendant Daniel W. Moger, Jr., et al.

Brian J. Farrell, Jr. , for the named defendant et al.

Douglas R. Steinmetz , for the defendant Dan Tredwell et al.

Kelley Franco Throop , for the defendant Diane Jones et al.

Opinion

HON. TAGGART D. ADAMS, JUDGE TRIAL REFEREE.

I

BACKGROUND

Attorney Daniel W. Moger, Jr., and his business entity, Daniel W. Moger, Jr., LLC (collectively, Moger), have moved for summary judgment dismissing claims of common-law and statutory vexatious litigation, pursuant to General Statutes § 52-568, and abuse of process, contained in the second amended complaint of the plaintiffs. The background of this litigation involves the announcement by the plaintiff Mrs. Bich-Ha Henriette Rieffel of plans to remove a shed or stanchion located on the plaintiffs' property containing the plaintiffs' mailbox and those of five neighboring residences, leaving the appropriate mailbox on each neighbor's driveway, and then carrying out that plan in spite of the unanimous objections of the neighbors. The plaintiffs and the neighbors all own residences on a private road known as Thrushwood Road, off of Indian Head Road, in the Riverside section of Greenwich, Connecticut. The neighbors, all of whom are also defendants in this case, retained Moger to protect their interests. After certain communications between Moger and the plaintiffs' attorney, and the filing by the plaintiffs of a notice of termination of any rights the neighbors had in the former location of their mailboxes (Moger Affidavit, exhibit A-5, found as exhibit A to Docket Entry 157.00), Moger recommended to his clients the institution of a legal action against the plaintiffs pursuant to General Statutes § 47a-43.¹ The neighbors authorized the suit against the plaintiff Mr. Marc A. Rieffel, and Mrs. Rieffel; the unsigned summons and complaint was presented to Judge William J. Wenzel, who signed the summons on January 29, 2013, and that summons and the complaint, signed by Moger, were served on the Rieffels thereafter, and a court date of February 7, 2013, was set at the housing session in Norwalk. On that date, Hon. Jack L. Grogins, judge trial referee, apparently expressed some doubts about the strength of the case, and a motion to dismiss was filed on behalf of the Rieffels. Another court date was set, and in the meantime Moger consulted with his clients, and a withdrawal of the entry and detainer case occurred on February 19, 2013.

The Rieffels commenced this action against Moger and the neighbors who were plaintiffs in the entry and detainer case (neighbor defendants). In addition, a family trust and an LLC were named as defendants, although they were not parties to the entry and detainer case. The neighbor defendants have also moved for summary judgment dismissing the claims against them, and those motions are the subject of a separate memorandum of decision.

II

SCOPE OF REVIEW

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. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.)

Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). "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 judgment as a matter of law...." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, at 209, 757 A.2d 1059. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). The trial court, in the context of a summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554, 707 A.2d 15 (1998). "[T]he 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.) Appleton v. Board of Education, supra, 254 Conn. at 209, 757 A.2d 1059 ; see generally Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012) ; Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 624-25, 57 A.3d 391 (2012).

III

DISCUSSION

A

Vexatious Litigation

A vexatious litigation claim may be brought under the common law and pursuant to statute. Section 52568 provides that a person who "commences and prosecutes" a civil action "without probable cause" shall be liable for double damages, and one who does so without probable cause and "with a malicious intent" shall be liable for treble damages. Under the common law, the claim requires lack of probable cause and malice. The main requirement for a vexatious suit claim, whether statutory or otherwise, is lack of probable cause. Whether the facts establish the existence of probable cause or otherwise, is a question of law. DeLaurentis v. New Haven, 220 Conn. 225, 252, 597 A.2d 807 (1991). When the facts themselves are disputed, a court may submit the question of probable cause to the jury as a mixed question of fact and law. Id., at 252-53, 597 A.2d 807.

Probable cause requires "a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 102, 912 A.2d 1019 (2007), quoting Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause may be present even where a suit lacks merit; even when a suit fails, the plaintiff in a vexatious litigation case must separately show lack of probable cause. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, at 103, 912 A.2d 1019, citing and quoting from Roberts v. Sentry Life Ins. Co., 76 Cal.App.4th 375, 382, 90 Cal.Rptr.2d 408 (1999), review denied, 2000 Cal. LEXIS 1059 (February 16, 2000). The rationale for the relatively low standard is to not discourage the willingness of lawyers to challenge precedent and pursue novel theories. Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, at 104, 912 A.2d 1019.

It is not disputed that Moger relied most heavily on two Appellate Court cases in concluding there were grounds for the entry and detainer claim against the Rieffels. In Evans v. Weissberg, 87 Conn.App. 180, 866 A.2d 667 (2005), the Appellate Court affirmed a Superior Court judgment in favor of a plaintiff who had brought an entry and detainer action against her neighbors, who had erected a fence on a six foot strip of land, the ownership of which was disputed. The neighbors' fence barred the plaintiff's access to an area definitely on her property containing a propane tank, an outdoor shower with a privacy fence and some plants. The trial court found that the plaintiff had previously exercised dominion and control over the six foot strip, and the neighbors' fence interfered with the plaintiff's access to the area that she indisputably owned containing the propane tank and shower. Moger asserts that Evans supported an entry and detainer claim even when the ownership of the land is disputed. Moger Affidavit, ¶ 13, and exhibit A-II, found at Docket Entry 157.00, exhibit A.

In an earlier case, Bowman v. Williams, 5 Conn.App. 235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986), the Appellate Court affirmed a trial court decision in favor of the plaintiff's entry and detainer claim with respect to the defendants' removal of the plaintiff's belongings from office space he had leased from the defendants, but reversed the judgment in favor of the plaintiff in connection with the defendants' blocking of a boat slip also leased from the defendants. The Appellate Court held there was error when the trial court found the boat slip was "an appurtenance" of the office space. The Appellate Court said the plaintiff had rented the boat slip for a boat chartering service while subsequently leasing the office space for a marine brokerage business and held: "Since the boat slip did not pass as an incident to the office space, nor does it appear that it was essential to or reasonably necessary to the full beneficial use of the office and storage space, it cannot be deemed an appurtenance of the office." Id., at 239-40, 497 A.2d 1015. Moger concluded that Bowman 's discussion of appurtenances supported his clients' claim with respect to their mailboxes. Moger Affidavit, ¶ 14.

In opposing summary judgment, the plaintiffs contend that a mailbox is not an appurtenance because it is not necessary to the full beneficial use of a dwelling, pointing out that there is no law requiring a single-family residence to have a mailbox. See Plaintiffs' Memorandum, p. 18 (found at Docket Entries 217.00, 218.00 and 219.00). They also argue that the neighbor defendants' mailboxes might be located on their own properties rather than the Rieffels' property. Plaintiffs' Memorandum, pp. 18-19.

In assessing whether probable cause existed for the institution of the subject entry and detainer suit, this court does not have to decide the merits of a claim of appurtenance. Rather, it is obligated to determine whether there were facts essential under the law for an attorney "to entertain" the claim. This court finds there existed probable cause for the entry and detainer suit Mailboxes are not a luxury. They are related and incident to the use and enjoyment of a personal residence, and the connection between a mailbox and the residence is "direct and apparent." Graham v. Walker, 78 Conn. 130, 136, 61 A. 98 (1905). Indeed, it is not often, if ever, that one sees a mailbox that is not related to a residence, business or other specific address. As the Bowman court recognized, it is not necessary, in the context of property law, that something be "annexed, joined, or attached to be appurtenant." (Internal quotation marks omitted.) Bowman v. Williams, supra, 5 Conn.App. at 239, 497 A.2d 1015, citing Waterbury Lumber & Coal Co. v. Asterchinsky, 87 Conn. 316, 320, 87 A. 739 (1913). This court's reading of Bowman persuades it to consider that the very facts and rationale that led the Appellate Court to reverse the judgment for the plaintiff with respect to the boat slip, provide a reasonable basis for Moger to consider the entry and detainer suit against the plaintiffs. In an entry and detainer action the plaintiff must show, not necessarily ownership or legal right to property, but actual physical control or possession. Fleming v. Bridgeport, 284 Conn. 502, 514, 935 A.2d 126 (2007). An entry and detainer action is commenced by a possessor who has been dispossessed by an owner without benefit of proper legal proceedings. Zapata v. Mora, 121 Conn.App. 790, 793, 996 A.2d 1203, cert. denied, 298 Conn. 905, 3 A.3d 74 (2010). It seeks to discourage an owner from resorting to self-help tactics so peace and good order may be maintained. Id. There is no material fact at issue that Moger's clients possessed and controlled their individual mailboxes at the covered shed or stanchion on a continuous basis for an extended period of time, until the Rieffels removed the shed and moved the mailboxes to the neighbor defendants' individual driveways. Therefore, the court finds that Moger had probable cause to recommend to his clients and to commence the entry and detainer suit against the plaintiffs in this case. The existence of probable cause eliminates the major necessary predicate for the various vexatious suit claims asserted by the plaintiffs in the twenty-first through twenty-third counts of the plaintiffs' complaint.² B

Abuse of Process

The plaintiffs' twenty-fourth count alleges that Moger's conduct constituted abuse of process in that the entry and detainer lawsuit was instituted for a purpose for which such a suit was not designed. Specifically, it is alleged that Moger attempted to settle or quiet title, which is not the purpose of § 47a-43. To settle or quiet title, it is alleged, may only be accomplished through an action pursuant to General Statutes § 47-31. It is further alleged that what Moger sought to do could only "be accomplished" by a declaratory judgment action pursuant to General Statutes § 52-29 and Practice Book § 17-54.

"[T]he gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed...." (Emphasis in original; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 403, 876 A.2d 522 (2005), citing 3 Restatement (Second), Torts § 682 (1977). The court is not persuaded that Moger or the neighbor defendants ever had the intent of quieting title. There is no such evidence in the record that they sought any legal ownership rights to any part of the Rieffels' property. What was sought was retention of their possessory rights to the mailboxes on the Rieffels' property. Therefore, the assertion that § 47-31 is the proper action because the Rieffels say it is a statute "allowing a landowner who is put out of possession to maintain an action asserting his title" (Plaintiffs' Memorandum, p. 46) is simply incorrect.

In Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171 (1987), the Connecticut Supreme Court held that an attorney's duty not to pursue "utterly groundless" litigation does not give rise to a viable claim for abuse of process unless there was specific misconduct intended to cause "specific injury outside of the normal contemplation of private litigation." Id., at 497, 529 A.2d 171. No such specific injury has even been alleged, and there is no evidentiary basis for its existence.

The court finds that a suit under the entry and detainer statute against the plaintiffs was an appropriate use of the statute's remedies in the circumstances facing Moger and his clients. This is not to say the suit would have been successful. However, it is to say the suit was not an abuse of process.

IV

CONCLUSION

Moger's motion for summary judgment is granted, and the plaintiffs' claims in their twenty-first through twenty-fourth counts are dismissed.

1 For purposes of this appeal, we refer to Johnston-Foote, Foote, the Tredwells, the Joneses, Baker, the trust, and the LLC as the neighbor defendants. We refer to Moger and his law firm as the attorney defendants. The owner of the property on which Johnston-Foote and Foote resided was the trust. The owner of the property on which the Tredwells resided was the LLC.

2 General Statutes § 47a-43 provides in relevant part: "(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.

"(b) Such judge shall forthwith issue a summons to the party complained of ... to answer to the matters contained in the complaint...."

3 At oral argument before this court, Attorney Brian J. Farrell, Jr., representing Johnston-Foote, Foote and the trust, indicated that all of the offending mailboxes have been relocated and are no longer on the plaintiffs' property and that, other than this appeal, no cause of action concerning this dispute is pending.

4 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."

5 "An action for abuse of process lies against any person using a legal process against another in an improper manner or [primarily] to accomplish a purpose for which it was not designed.... Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of a legal process ... against another primarily to accomplish a purpose for which it is not designed.... Comment b to § 682 explains that the addition of primarily [to this definition] is meant to exclude liability when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant." (Citation omitted; emphasis in original; internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). Where an abuse of process claim is brought against an attorney, the standard is heightened in order to balance "the attorney's primary duty of robust representation of the interests of his or her client." Id., at 497, 529 A.2d 171. Specifically, in order to prevail on an abuse of process claim against an attorney, the plaintiff must allege "specific misconduct intended to cause specific injury outside of the normal contemplation of private litigation." Id. We find no authority distinguishing an abuse of process claim from an abuse of process claim with malice, and the nature of the damages sought by the plaintiffs under all of their abuse of process counts, with and without malice, is substantively the same.

6 In rendering its decision, the court noted: "In all, the proliferation of memoranda, affidavits and exhibits, and changes and substitutions thereto, has made it extraordinarily difficult for the court, relying on only the electronic file used in the Superior Court, to separate the wheat from the chaff."

7 The court issued two memoranda of decision on February 19, 2015. One addressed the four motions for summary judgment filed on behalf of the neighbor defendants. The other addressed the motion for summary judgment filed on behalf of the attorney defendants.

8 The court found that Moger had relied heavily on Evans v. Weissberg, 87 Conn.App. 180, 866 A.2d 667 (2005), and Bowman v. Williams, 5 Conn.App. 235, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986). The court concluded that Bowman provided a reasonable basis for Moger to consider bringing the entry and detainer action against the plaintiffs. Despite the plaintiffs' focus on the impropriety of the defendants' use of an action for forcible entry and detainer under these circumstances, the court was not required to decide the merits of the underlying forcible entry and detainer action in considering these motions for summary judgment. If, on the basis of the facts known to the attorney defendants, the filing of the prior action was objectively reasonable, the court necessarily determined that the litigation the plaintiffs were subject to was not unjustified. The following rationale is persuasive: "When the court has made such a determination, there is no persuasive reason to allow the plaintiff to go forward with its tort action even if it can show that its adversary's attorney did not perform as thorough an investigation or as complete a legal research job as a reasonable attorney may have conducted. Permitting recovery on such a basis would provide the plaintiff with a windfall; since the prior action was objectively tenable, the plaintiff could properly have been put to the very same burden of defense if its adversary had simply hired more thorough counsel." Rockwell v. Rockwell, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-13-5010935-S, 2015 WL 6684785 (October 14, 2015) (Stevens, J. ) (61 Conn. L. Rptr. 98, 101 ), quoting Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 883, 765 P.2d 498, 254 Cal.Rptr. 336 (1989).

9 In Moger's affidavit, he averred that after the plaintiffs took the action of removing the stanchion and the mailboxes, his sole, immediate concern was restoring the ability of his clients to collect their mail in their usual manner and that he had not intended to file an action to quiet title.

10 The amended complaint in no way distinguishes between the costs and benefits ordinarily associated with the pursuit of litigation and the burdens that the defendants in this case allegedly improperly inflicted upon the plaintiffs. See Mozzochi v. Beck, 204 Conn. 490, 497-98, 529 A.2d 171 (1987).

11 The affidavits of the individual neighbor defendants that were submitted to the court by the neighbor defendants, Moger's affidavit, and the correspondence between the plaintiffs' counsel and Moger prior to the initiation of the underlying forcible entry and detainer action all support the court's finding that all material facts concerning the mailbox dispute had been disclosed to and discussed with Moger. The plaintiffs have made the conclusory assertion that the neighbor defendants did not convey to Moger all of the material facts, but the plaintiffs failed to point to any material omission or misstatement of fact made by any of the neighbor defendants in their discussions with Moger.

12 Although the court, in a few instances, referred to its "dismissal" of the plaintiffs' claims, its judgment clearly grants the defendants' motions for summary judgment on all of the plaintiffs' claims. The plaintiffs have appealed from the granting of those motions.

13 A joint brief was filed on behalf of the attorney defendants and another joint brief was filed on behalf of the neighbor defendants.

* Affirmed. Rieffel v. Johnston-Foote, 165 Conn.App. 391, 139 A.3d 729 (2016).

1 Since the initial entry and detainer claim was not instituted by either the Johnston-Foote family trust or LWT Associates, LLC, neither of which was a party to that proceeding, the plaintiffs' claims against those entities in this action are dismissed for that reason alone, despite the plaintiffs' objection. See, e.g., Docket Entry 230.00, p. 26.

* Affirmed. Rieffel v. Johnston-Foote, 165 Conn.App. 391, 139 A.3d 729 (2016).

1 General Statutes § 47a-43 reads in full: "(a) When any person (1) makes forcible entry into any land, tenement or dwelling unit and with a strong hand detains the same, or (2) having made a peaceable entry, without the consent of the actual possessor, holds and detains the same with force and strong hand, or (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor, or (4) when the party out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.

"(b) Such judge shall forthwith issue a summons to the party complained of, directed to some proper officer, to notify him to appear at a specified time and place, within eight days from the exhibition of such complaint, in the superior court for the judicial district wherein the injury complained of was done, to answer to the matters contained in the complaint.

"(c) Such summons shall be served upon the party complained of six days inclusive before the day appointed for trial.

"(d) If, after service of such summons, the party complained of does not appear and defend, the judge shall proceed in the same manner as if he were present."

2 The above finding makes it unnecessary for the court to rule on Moger's other arguments in favor of dismissal. These are: (1) he did not "commence" the suit because Judge Wenzel issued the summons pursuant to § 47a-43 (b) and (2) he did not "prosecute" the suit, but withdrew it shortly after commencement. The first argument seems strained not only because the statute requires the judge to issue the summons "forthwith," intimating a certain lack of discretion, but also because Moger signed the complaint and arranged for service on the Rieffels. Moger Affidavit, ¶ 20. The second argument might have some merit, as the law requires both initiation and prosecution. Nevertheless, almost three weeks passed from initiation and withdrawal, so, at best for Moger, it is a close question.