Opinion
No. CV01-0164079S
November 15, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This is an action for abuse of process, malicious prosecution, and negligent infliction of emotional distress. The defendant moves for summary judgment on all counts of the complaint.
The plaintiff initially brought this action in five counts. The third count (CUTPA) and the fourth count (Intentional Infliction of Emotional Distress) were ordered stricken by the court (Alvord, J; memorandum of decision dated Feb. 9, 2004).
Facts
The plaintiff initiated this action by complaint dated February 26, 2001. In his revised complaint, he alleges the following: On August 22, 1995, he and the defendant entered into a written commercial contract for painting the defendant's residential property. They amended the contract on September 20, 1995. Thereafter, a disagreement arose between the plaintiff and the defendant concerning whether the plaintiff had breached the contract. The defendant, an attorney employed as a public defender, consulted with the Connecticut State Police concerning his dispute with the plaintiff and was advised that the dispute was civil in nature. Thereafter, the defendant, from December 1995 through February 1996, utilized his personal friendship with an Assistant State's Attorney and with a judge sitting in that courthouse to obtain a warrant for the plaintiff's arrest on the false charge of larceny in the third degree. The plaintiff was arrested in March 1996 and prosecuted continuously for a period of more than two years. He was required to hire attorneys for his defense, to appear many times in court to defend himself, and was caused to suffer severe emotional distress. The defendant denies the material allegations of the complaint and asserts, inter alia, the special defense that all counts are barred by the statute of limitations.
The defendant also asserts the special defenses of laches, setoff, fraudulent inducement, and contributory negligence, but they are not pertinent to his motion for summary judgment.
In support of his motion for summary judgment, the defendant submits contracts between the parties for exterior painting and interior painting dated August 22, 1995, the amendment to the contract dated September 20, 1995, the written statement to the police, the letter from the defendant to the plaintiff which is undated, an application for an arrest warrant submitted with an affidavit from a Connecticut State Police Trooper, an article in a newspaper containing a notice of his arrest, and an affidavit of the defendant stating, inter alia, that he completed the Connecticut State Police Witness Statement and then had no further role in the prosecution brought against the plaintiff for larceny. In opposing the motion, the plaintiff submits portions of his deposition, a copy of a letter dated April 26, 1996 from Attorney John Williams to the Chief State's Attorney in which Attorney questioned the propriety of the prosecutor in making the decision to prosecute and of the judge in signing the warrant, a copy of another letter with the same date from Attorney Williams to the Chief Public defender in which he questioned whether the defendant in this case was violating the rules of professional conduct in connection with the plaintiff's arrest, and copies of court records from the Superior Court in Hartford indicating that the larceny charge against the plaintiff was dismissed on September 1, 1998.
Discussion Standard for Summary Judgment
"Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). "The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
Abuse of Process CT Page 14304
The plaintiff alleges, relative to his abuse of process claim, that the defendant caused the prosecution against him to be maintained and pressed against the plaintiff, with ongoing injury to him and for the improper purpose of using the criminal justice system to extort from the plaintiff a settlement of the said dispute more favorable to himself than he otherwise could obtain. The defendant argues that there is no evidence to support the plaintiff's claim regarding abuse of process.
"The tort of abuse of process, as distinguished from an action for malicious prosecution, involves the misuse or perversion of regularly issued civil or criminal process for some purpose not warranted or commanded by the writ, and outside of that for which the process was intended . . . In accordance with this general rule, it is generally recognized that the use of criminal process for the purpose of compelling the person arrested under the process to pay a debt does constitute an abuse of process." 27 ALR3rd 1202, § 2. In Connecticut, "[a]n action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. Varga v. Pareles, [ 137 Conn. 663, 667, 81 A.2d 112 (1951)]; Schaefer v. O.K. Tool Co., 110 Conn. 528, 532-33, 148 A. 330 (1930). Larobina v. McDonald, 274 Conn. 394, 403-04, 876 A.2d 522 (2005). "The distinction between malicious prosecution . . . and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse." Schafer v. O.K. Tool Co., Inc., 110 Conn. 528, 532, 148 A. 330 (1930).
According to the defendant's sworn statement, after he completed a Connecticut Police State Witness Statement in December 27, 1995, he had no further role in the prosecution brought by the State of Connecticut against the plaintiff for larceny. The plaintiff has offered no evidence to counter that assertion, and the court has no evidence before it from which it could do more than speculate that the defendant had any role in the process other than making the complaint. The first issue the court must address is whether the making of a complaint to the state police is part of the process for purposes of the plaintiff's abuse of process claim. Although no appellate court in this state has ruled on the issue of whether a complaint or witness statement made for the purpose of bringing about the prosecution of another meets the definition, the Connecticut Supreme Court has noted that process means "any means used by the court to acquire or to exercise its jurisdiction over a person or over specify property. Larobina v. McDonald, 274 Conn. 394, 406, 876 A.2d 522 (2005). A statement made by a complaining witness would arguably fall under this definition.
The second issue for the court is whether the plaintiff's claim is time-barred. As noted above, the plaintiff has presented no evidence to counter the defendant's sworn statement that he had no role in the prosecution of the plaintiff after he made the witness statement. That occurred in 1995. The plaintiff was arrested in March 1996. Abuse of process is a tort. Section 52-577 of the Connecticut General Statutes provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
"Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990).
As previously indicated, the plaintiff has offered no evidence to counter the defendant's claim that he took no role in the prosecution of the plaintiff after signing the witness statement. The plaintiff argues, however, that the defendant's motion should be denied based on evidence that the defendant pursued a course leading to the plaintiff's arrest in spite of the state trooper's advice to him that this was a civil matter, and after the prosecutor advised the defendant to write a "demand" letter to the plaintiff. In addition, the plaintiff points out that, once begun, the prosecution continued until the matter was transferred to another court where it was dismissed after a nolle entered.
The plaintiff's argument is unpersuasive. He stated at his deposition that he did not have any facts or evidence to suggest that the defendant utilized his personal friendship with an assistant state's attorney or with the judge in the Bristol courthouse in order to obtain an arrest warrant. He said that he had no conversations with the defendant beyond early October 1995. The plaintiff makes allegations leading to speculation as to why the case was carried on for two years and then dismissed when it was transferred to Hartford. He has, however, offered nothing by way of evidence to counter the defendant's sworn statement that he had no role in the prosecution of the plaintiff after signing the witness statement. The plaintiff argues that the defendant had a duty to "undo the harm" caused him. The plaintiff has not, however, indicated that any of the allegations made by the defendant in the witness statement are false. The defendant had no duty to recant statements that are not false.
While "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . [t]he summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . Our Supreme Court has held that even with respect to motive, intent or good faith, the party opposing summary judgment must present [some] factual predicate for his argument in order to raise a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 731-32, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).
The plaintiff has failed to demonstrate the existence of a question of material fact regarding his claim of abuse of process beyond December 27, 1995. There is absolutely no evidence of the defendant's involvement in the process after that date. Because the statute of limitations ran from the date of the last act of the defendant, the action is time-barred. The motion for summary judgment is granted as to the first count.
Malicious Prosecution
"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. Corporation, 187 Conn. 444, 447 (1982). The three essential elements of an action for malicious prosecution are the discharge of the plaintiff, want of probable cause and malice. McCann v. Allen, 105 Conn. 177, 185, 134 A. 810.
"A private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer's decision to commence the prosecution. But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution." (Citations omitted.) McHale v. W.B.S. Corporation, supra, 187 Conn. 448. See also Zenick v. O'Brien, 137 Conn. 592, 596 (1951) (recognizing the principle which affords immunity to an individual who gives information which he reasonably believes to be true to a law enforcement officer and upon which the officer, in the exercise of an uncontrolled discretion, initiates criminal proceedings.)
"In deciding whether it is appropriate to render summary judgment, a court is not necessarily entitled to assume the truth of a defendant's declarations concerning intent or a fact known only to a defendant simply because of the absence of an affidavit contradicting the declarations . . . Summary judgment is inappropriate where the inferences that the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. The failure to file an opposing affidavit or documentary evidence where motive, intent or subjective feelings and reactions are involved does not entitle the moving party to a favorable inference as to the truth of his affidavit or documentary evidence." (Internal citations omitted.) Tryon v. North Branford, 58 Conn.App. 702, 707, 755 A.2d 317 (2000).
This count involves different issues from those raised in the claim for abuse of process. In an action for malicious prosecution, the focus is on the period of time before and up until the complaint was made to the Connecticut State Police. There are issues of fact with respect to the defendant's motive that cannot be resolved by the evidence presented with the motion for summary judgment. Therefore, the motion is denied as to this count.
Negligent Infliction of Emotional Distress
The defendant moves for summary judgment on the plaintiff's claim of negligent infliction of emotional distress claiming that the plaintiff cannot prove that the defendant breached a duty to him and that the plaintiff's own testimony establishes that he did not suffer any emotional distress over this incident. The plaintiff counters that he need prove only that the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.
The portions of the deposition cited by the defendant and indicating that the plaintiff suffered no emotional distress as a result of any alleged action by the plaintiff are compelling but not determinative.
The defendant raises the issue of the statute of limitations in his supplemental brief in support of his motion for summary judgment dated May 25, 2005. Because the date of the plaintiff's arrest was March 6, 1996, the defendant claims that the action for is time barred. The plaintiff did not respond to this argument.
The time for bringing an action for negligent infliction of emotional distress is governed by section Connecticut General Statutes § 52-584 which provides, in relevant part:
No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . .
The date of the injury for the running of the statute is March 6, 1996, the date of the arrest. That is the date that the plaintiff "discovered or in the exercise of reasonable care should have discovered" the injury to him. Since the plaintiff did not bring this action until 2001, it is barred by the statute of limitations. The motion is granted as to this count.
Conclusion
For the reasons state above, the defendant's motion for summary judgment is granted as to the first and fifth counts of the complaint and denied as to the second count.