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Disbarred West Hartford, Conn., attorney James S. Brewer, who last summer beat criminal assault charges arising out of his behavior at a heated deposition, has won another legal victory — this time in a vexatious litigation suit lodged against him by the Hebrew Home and Hospital Inc. The West Hartford hospital is seeking treble damages from Brewer in the amount of $489,000 — triple the legal fees it claimed it spent to successfully defend a discrimination suit Brewer brought on a former employee’s behalf. The state appellate court, however, has unanimously affirmed a trial court’s summary judgment in Brewer’s favor, finding Hebrew Home had no grounds to sue Brewer for vexatious litigation. As the attorney for Elliott Kelbick, Hebrew Home’s former assistant director of social work, Brewer had probable cause — however slight — to bring the 1998 suit, the appeals court held in a decision officially released Dec. 27. While the appellate court recognized that Kelbick’s discrimination case against the Hebrew Home was supported by only the slimmest of evidence, it was nevertheless strong enough to sustain a finding of probable cause to file suit, Judge F. Herbert Gruendel concluded in Hebrew Home and Hospital Inc. v. Brewer. A contrary decision could have been devastating to the plaintiffs’ bar in Connecticut, said Bethany, Conn., civil rights attorney Norman A. Pattis, who represented Brewer in the matter. The appellate court relied heavily on the recent Connecticut Supreme Court ruling in Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, for the standard of probable cause for an attorney to file a lawsuit on a client’s behalf. Both courts recognized that malicious prosecution and vexatious litigation suits are rarely successful against attorneys. “Although it was not necessarily persuasive, the evidence nevertheless was sufficient such that it cannot be said that no competent and reasonable attorney familiar with the law would have proceeded with the claim,” Gruendel wrote of Kelbick’s lawsuit. The suit alleged the former Hebrew Home employee experienced both sex and age discrimination at the workplace. The sex discrimination cause of action was based mostly on a comment made by his supervisor four years earlier that the only reason Kelbick wanted to use a sick day was “to go home to have sexual relations with his wife,” according to the appellate court. Kelbick alleged his ex-employer committed age discrimination when he was beat out for a promotion by a 43-year-old. Kelbick was 47 at the time. The age discrimination claim turned on a statement in a letter sent to Kelbick’s supervisor from the Hebrew Home’s president in January 1998. In the letter, the president said it was time to look to the “younger generation” to carry on Hebrew Home’s work. The hospital claimed Kelbick never applied for the promotion and lacked the requisite qualifications for the job. In his 2004 decision granting summary judgment to Brewer, Hartford Superior Court Judge Robert E. Beach Jr. found the suit was “extraordinarily weak and in hindsight ought not to have been brought.” Nevertheless, Beach concluded Brewer received “sufficient information” from Kelbick, including details of adverse treatment in scheduling and work hours, to satisfy “the minimal burden” of probable cause. Hinting, perhaps tongue-in-cheek, that the feud might not be over, Pattis wrote in an e-mail to The Law Tribune: “The Hebrew Home suit was, and remains, pure vindictive spite. Whether we now bring a claim for vexatious litigation of our own remains to be seen.” Hebrew Home’s appellate advocate, Michael Kurs of Pullman & Comley’s Hartford office, said a decision hasn’t been made on whether to seek a further appeal.

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