Opinion
HHDCV136040280S
03-08-2016
Adam Demeusy v. Town of Canton et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#169)
Sheila A. Huddleston, Judge.
The plaintiff, Adam Demeusy, asserted a malicious prosecution claim against Miner's, Inc. and Lorraine K. Miner (collectively, Miner's defendants), who complained to police that the plaintiff had issued a bad check, and against Kevin Wilkinson, a Canton police detective, who applied for the arrest warrant on which the plaintiff was arrested. The plaintiff claimed that the check at issue was postdated and that both the plaintiff and his attorney had told the Miner's defendants and Wilkinson that a post-dated check would not support a prosecution for a bad check charge, but the Miner's defendants nevertheless complained to the police and Wilkinson nevertheless submitted an arrest warrant application seeking the plaintiff's arrest for issuing a bad check in violation of General Statutes § 53a-128 and for larceny in the first degree in violation of General Statutes § 53a-122.
The operative complaint is the second amended revised complaint filed on November 3, 2014. (#130.) All allegations at issue in this motion are found in the first count of that complaint. The court assumes the reader's familiarity with the court's decisions on the prior motions for summary judgment. See Docket Entries #162 and #163.
On May 5, 2015, the Miner's defendants moved for summary judgment, asserting that: (1) they did not " initiate" the prosecution, as that term has been construed by the Supreme Court; (2) they relied on the advice of their counsel; and (3) the prosecutor made an independent determination that prosecution was warranted. (#144.) On May 6, 2015, Wilkinson separately moved for summary judgment, asserting, among other arguments, that probable cause existed for the plaintiff's arrest on the larceny charge, if not the bad check charge, and that the existence of probable cause defeated a claim of malicious prosecution. (#147.) The plaintiff objected and filed a memorandum in opposition to both motions. (##154, 155, 156, 157.) The Miner's defendants filed a reply (#159), as did Wilkinson (#160). On January 5, 2016, the court denied the Miner's defendants' motion for summary judgment, concluding that there were disputed issues of fact with respect to the defenses they had asserted. (#162.) On the same date, the court granted Wilkinson's motion for summary judgment, holding that, among other things, there was probable cause for the plaintiff's arrest on the charge of larceny in the first degree. (#163.) The plaintiff did not appeal the decision granting summary judgment to Wilkinson.
The Miner's defendants had not raised the probable cause argument in their motion for summary judgment. On January 27, 2016, after the appeal period lapsed with respect to the judgment for Wilkinson, the Miner's defendants moved for permission to file a second motion for summary judgment to assert the issue of probable cause. (#168.) The court granted that motion. (#168.86.) In the Miner's defendants' second motion for summary judgment (#169), they assert that there is no genuine issue of material fact with respect to the existence of probable cause to support the larceny charge. Relying on Brooks v. Sweeney, 299 Conn. 196, 211, 9 A.3d 347 (2010), they further assert that probable cause is complete defense to the malicious prosecution claim against them.
The plaintiff does not contest the issue of probable cause as to the larceny charge. In his opposition to the Miner's second motion for summary judgment, the plaintiff argues that the Miner's defendants " filed a similar motion" for summary judgment, which was denied, and the denial is now " res judicata." He further argues that the defendants cannot rely on collateral estoppel for their new claim. He contests their reliance on Brooks v. Sweeney, contending that the decision in that malicious prosecution case was based on qualified immunity. Although he incorporates the arguments he made in addressing the Miner's defendants' first motion for summary judgment, those arguments did not address the issue of probable cause for the larceny charge, but only for the bad check charge.
In response, the Miner's defendants argue that: (1) a second motion for summary judgment is not prohibited when a party obtains permission to file it; (2) the doctrine of res judicata does not bar their second motion; (3) the Brooks decision is relevant to the issue of probable cause as a complete defense; (4) the law of the case and/or collateral estoppel bars any attempt by the plaintiff to relitigate the issue of probable cause with respect to the larceny charge. (#174.)
Oral argument was scheduled on the short calendar for March 7, 2016. Counsel for the Miner's defendants appeared and represented that the plaintiff's counsel had notified him that he was out of town and did not object to the court considering the motion on the papers. With the consent of the parties, accordingly, the court considers the motion and objection as submitted on the papers.
As to the substance of the motion, the court agrees with the Miner's defendants and further concludes, as it did with respect to Wilkinson's motion, that the existence of probable cause as to the larceny charge defeats the malicious prosecution claim in its entirety. The Miner's defendants' second motion for summary judgment is therefore granted.
APPLICABLE LAW
The present motion asserts the defense of probable cause to an action for malicious prosecution. " A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 810, 768 A.2d 950 (2001). " An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982). " The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 211.
ANALYSIS
The court will first address the plaintiff's opposition to the court's consideration of a second motion for summary judgment. Contrary to the plaintiff's argument, the Appellate Court has expressly held that a second motion for summary judgment, made on a different ground from an earlier motion, may be considered and granted. Fiaschetti v. Nash Engineering Co., 47 Conn.App. 443, 446, 706 A.2d 476, cert. denied, 244 Conn. 906, 714 A.2d 1 (1998). Although " our Supreme Court has cautioned against future unnecessary piecemeal litigation brought on by the repeated filing of successive motions for summary judgment . . . [i]t has also recognized, however, that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried." (Citation omitted; internal quotation marks omitted.) Id. See also Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 262, 532 A.2d 1302 (1987) (" [I]t is within the trial court's discretion to consider a renewed motion for summary judgment that has previously been denied where, as here, additional or new evidence has been submitted which was not before the court in ruling upon the earlier motion for summary judgment"). Here, the Miner's defendants properly sought leave to file a second motion for summary judgment based on the court's decision that probable cause had existed to support the plaintiff's arrest for larceny, and the court granted that permission in the interests of judicial efficiency. The second motion for summary judgment is permissible under our rules of practice as interpreted by our Supreme and Appellate Courts.
The plaintiff next argues that principles of res judicata bar the second motion for summary judgment because the Miner's defendants' first motion was denied. The court disagrees. " The doctrine of res judicata provides that [a] valid, final judgment rendered on the merits by a court of competent jurisdiction is an absolute bar to a subsequent action between the same parties . . . upon the same claim or demand." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 459, 998 A.2d 766, 775 (2010). The denial of a motion for summary judgment ordinarily is not a final judgment. Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 653, 954 A.2d 816 (2008). The Miner's defendants here are not reasserting any claim or demand against the plaintiff, but rather are seeking summary judgment on a legal ground not raised in their first motion for summary judgment. The doctrine of res judicata does not apply to bar the court's consideration of this motion.
The plaintiff also incorporates arguments he made in opposition to the Miner's defendants' first motion for summary judgment and argues that the court should deny this motion for summary judgment based on those arguments. The court disagrees. The Miner's defendants' first motion for summary judgment raised factual assertions with regard to their lack of " initiation" of the criminal prosecution, their good faith reliance on advice of counsel, and the independent determination of the prosecuting authority. With respect to those assertions, the plaintiff provided a counteraffidavit that was sufficient to raise genuine issues of disputed fact. In this motion, however, the Miner's defendants raise an issue of law that was decided, as to defendant Wilkinson, on the basis of undisputed facts. The issue presented in this motion similarly depends on undisputed facts.
The plaintiff finally argues that the Miner's defendants improperly rely on Brooks v. Sweeney, supra, 299 Conn. 196, contending that the decision in that case was based on qualified immunity. The court disagrees. In Brooks, the plaintiff brought a number of claims against certain municipal defendants, including common-law claims of malicious prosecution and constitutional claims under 42 U.S.C. § 1983. The trial court granted summary judgment on the § 1983 claims on the basis of qualified immunity and granted summary judgment on the common-law malicious prosecution claim based on its conclusion that there was probable cause for the plaintiff's arrest. Brooks v. Sweeney, supra, 299 Conn. 198-200. The Miner's defendants properly rely on that portion of the Brooks decision that affirmed the trial court's holding with respect to the defense of probable cause.
The court now turns to the Miner's defendants' argument that the " law of the case" doctrine and/or principles of collateral estoppel bar the plaintiff from relitigating the issue of probable cause because that issue was fully litigated and finally decided in the court's decision with respect to Wilkinson's motion for summary judgment. The plaintiff did not appeal from that decision.
" Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). " Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Linden Condominium Ass'n, Inc. v. McKenna, 247 Conn. 575, 596, 726 A.2d 502 (1999).
The court agrees that the law of the case applies in this instance. In opposing this motion, the plaintiff has not attempted to persuade the court that its decision regarding probable cause, in the adjudication of Wilkinson's motion for summary judgment, was incorrect. Nor has he sought to distinguish that decision in any manner. Accordingly, the court sees no reason to depart from its earlier conclusion that the plaintiff's arrest on a charge of larceny in the first degree was supported by probable cause, on the basis of undisputed facts reported in the arrest warrant application, and as determined by the prosecutor who signed the arrest warrant application and the Superior Court judge who approved it. As stated above, the existence of probable cause for an arrest is a complete defense to a malicious prosecution action. Accordingly, the Miner's defendants' second motion for summary judgment is granted.