Key Points

  • The Connecticut Appellate Court reversed summary judgment for attorney Peter Lathouris on J & G Realty's statutory vexatious litigation claim.
  • The court held that the trial judge applied the wrong standard by inserting a subjective element into the objective probable cause test.
  • Applying the objective test itself, the court held that a reasonable attorney familiar with Connecticut law would not have believed probable cause existed in May 2016 to pursue the theory that Marie Bongiorno held an economic interest in J & G Realty, after the Supreme Court denied certification on the dismissal of her claims.
  • The court reversed summary judgment for Bridjay Capone because a genuine factual issue existed as to whether she consulted attorney Richard S. Order before filing the 2012 action, a fact material to probable cause and to her advice-of-counsel defense.
  • The case was remanded with direction to deny the summary judgment motions on the affected counts, and the judgments were otherwise affirmed.

A Connecticut appeals court on Tuesday revived a vexatious litigation claim against an attorney, holding that a reasonable lawyer could not have believed there was probable cause to keep pressing a client's claim to an interest in a family real estate company after the courts had rejected the transfer behind it and the state Supreme Court had declined review. Under Connecticut's vexatious litigation statute, a party sued without probable cause may recover double damages, or treble damages if the suit was malicious.

Judge Moll wrote for a unanimous Appellate Court panel that also included Judges Alvord and Seeley. The panel reversed summary judgments that a trial judge had entered for attorney Peter Lathouris and for his former client, Bridjay Capone. The plaintiffs are three limited liability companies tied to the Bongiorno family's businesses in Stamford: J & G Realty, LLC, 305 West Avenue, LLC, and 24 Ardmore Street, LLC.

The ruling sends J & G Realty's claim against Lathouris back to the trial court with directions to deny his motion. The panel also found a factual dispute over whether Capone consulted a lawyer before she sued, reviving the companies' claims against her.

The dispute traces to 1957, when brothers George and John Bongiorno opened Bongiorno Supermarket in Stamford and later bought commercial properties and opened businesses nearby. By early 2012, each of George's four children held a 25 percent interest in each of the plaintiff companies.

In June 2012, Capone and her mother, Marie Bongiorno, George's wife, sued to dissolve and wind up the businesses. In May 2014, Judge Truglia dismissed Marie's claims for lack of standing. He found that assignments George had signed in her favor in October 2010, after she had filed for divorce, were never delivered to the four Bongiorno businesses at issue, including J & G Realty. Under J & G Realty's operating agreement, he found, the assignment to Marie was "null and void and of no effect whatever" because the company's members received no notice of it.

The Appellate Court affirmed that dismissal in January 2016, and the Connecticut Supreme Court denied Marie's petition for certification on March 2, 2016. Lathouris had appeared for Marie and Capone in July 2014. On May 5, 2016, he filed a 109-count complaint alleging that Marie had an "interest as a transferee and/or distributee" of the same four businesses by virtue of the same October 2010 assignments.

After an 18-day trial in 2018, Judge Tierney ruled against Marie and Capone on every count in March 2019. He found Marie's claim barred by res judicata, noting that it was "based on the same documents, the same testimony, the same evidence, and the same facts" that Judge Truglia had considered. The companies filed the vexatious litigation suit in July 2022.

In April 2025, Edward T. Krumeich II, a judge trial referee, granted summary judgment to Lathouris. He wrote that "[t]he evidence demonstrated [that] Lathouris subjectively believed in good faith that the economic interest claim he asserted on Marie's behalf had not been precluded" by the 2014 dismissal.

Judge Moll wrote that the trial court had correctly described the probable cause test as objective but had then "inserted a subjective element into the probable cause standard." Because the existence of probable cause is a question of law, the panel decided it independently.

Lathouris had argued that Judge Truglia decided only that the transfer "was not perfected" and left open a "different legal theory" that Marie held an economic interest. He also cited a 2022 Appellate Court statement that her economic-interest standing "was not clearly analyzed or decided by the trial court." Judge Moll wrote that the statement "plainly referred to the March 12, 2019 decision."

Lathouris testified that he read the 2014 ruling as leaving the economic-interest claim open. Judge Moll wrote that "his subjective reading of the May 30, 2014 decision is of no moment; rather, the proper inquiry is whether a reasonable attorney familiar with Connecticut law would have believed" that probable cause existed when he filed the 2016 complaint.

The panel resolved that question against Lathouris. Judge Moll wrote that Judge Truglia had found "in no uncertain terms" that George transferred no interest in J & G Realty to Marie in 2010, and that Lathouris relied on no new facts. The court concluded that "a reasonable attorney familiar with Connecticut law would not have believed that, on May 5, 2016, following our Supreme Court's denial of the petition, probable cause existed to pursue the legal theory that Marie held an economic interest in J & G Realty."

The panel also rejected Lathouris's argument that J & G Realty suffered no damages, holding that "at a minimum, nominal damages may be awarded."

The claims against Capone turned on her advice-of-counsel defense. Under that defense, a client who sued in good-faith reliance on a lawyer's advice, given after full disclosure of the facts, is not liable. Capone stated in an affidavit that she, her mother and Mary Badoyannis, Marie's divorce lawyer, met with attorney Richard S. Order before he filed the 2012 suit.

Capone's own exhibits cast doubt on that account, Judge Moll wrote. Capone and Marie testified at an earlier hearing that they did not remember when they first met Order, and Badoyannis testified that she did not recall attending a meeting with him before the suit was filed. The panel held that whether Capone met with Order beforehand was a genuine factual issue, material both to her defense and to probable cause, because she had no independent knowledge of the wrongdoing she alleged.

The court remanded the case with direction to deny summary judgment on J & G Realty's count against Lathouris and on the three companies' counts against Capone. It affirmed the judgments in all other respects. Deadlines for postopinion motions and petitions for Supreme Court review run from the Oct. 13 official release date, according to a notice accompanying the opinion.

Peter J. Zarella appeared for the companies on appeal. Daniel T. Angelone appeared for Capone.