Opinion
No. CV 02 815282
July 14, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action, sounding in malicious prosecution, seeks damages from defendant for making a complaint to the West Hartford police that plaintiff had harassed and stalked him, which resulted in her arrest and a court appearance and a subsequent nolle of the charges.
Defendant moves for summary judgment, filing transcripts which show that the condition of the nolle required no contact, directly or indirectly with plaintiff; that plaintiff was represented in court by an attorney on July 25, 2000; that the prosecutor proposed the nolle in terms of an agreement reached with the attorney for the case to enjoy a diversionary status with the special condition of no contact; and that the agreement was approved by the court and resulted in the subsequent nolle.
An action for malicious prosecution requires the plaintiff to prove that the criminal proceedings terminated in favor of the plaintiff. See v. Gosselin, 133 Conn. 158 (1946) ; McHale v. W.B.S. Corp., 187 Conn. 444 (1982); See Martin v. Cumberland Farms, Inc., Superior Court, Judicial District of Hartford, No. CV 95-0546209 (Wagner, J.), 16 Conn.L.Rptr. 369; see also Winglet and Fitzgerald, Connecticut Law of Torts, Second Edition, Section 162. "An essential element in an action for malicious prosecution is the discharge or acquittal of the plaintiff in the prior criminal action."
In McHale v. W.B.S. Corp., supra, our Supreme Court somewhat softened the element of discharge by characterizing the element simply as requiring that the plaintiff prove that: "The criminal proceedings have been terminated in favor of the plaintiff."
On its face the exhibit of the court proceedings introduced by plaintiff shows that a nolle was entered and this would ordinarily be viewed as a result favorable to the plaintiff. The issue is whether the CT Page 8413-fi nolle in this case, under all the circumstances, is the kind of discharge sufficient enough to sustain an action for malicious prosecution.
Defendant, in moving for summary judgment, relies not only on the condition of the nolle, which made it something less than a discharge, but also on the "agreement" between the prosecutor and plaintiff's attorney reached in court.
In See v. Gosselin, supra, the court in holding a nolle of the charges to be sufficient said, "It is sufficient if he was discharged without a trial under circumstances amounting to an abandonment of the prosecution, without request from or by arrangement with him." (Emphasis added.) It is clear that the nolle in the present case was not a unilateral action by the prosecutor amounting to an "abandonment" of the case but a nolle that was accepted by the plaintiff, with her attorney present with the conditions of noncontact to be satisfied, and with the implicit condition that the charge would be revived if the condition were violated.
Considering all the circumstances, it cannot be said that the conditional nolle in this case was either an acquittal, a discharge or a termination of the criminal proceeding in favor of the plaintiff. It seems clear that had the conditions of no contact not been accepted by the plaintiff, there would have been no nolle. This conclusion is buttressed by the fact that at the arraignment hearing on April 26, 2000, the same conditions were made a condition of the bond. Had plaintiff wanted to avoid the nolle agreement he could have refused it, or if entered, move, under Practice Book § 39-30 for dismissal or a trial.
In Blake v. Levy, 191 Conn. 257 (1983), our Supreme Court, in a suit for tortious interference based on an impropriety arising out of previous litigation, in order to determine what specific acts constituted that tort looked to the principles which evolved to define the torts of malicious prosecution and vexatious litigation, because all these torts had to address the competing policies of deterrence of groundless litigation and protection of good-faith access to the courts. The court reiterated that in cases involving previous litigation, the plaintiff was required to allege and prove that prior litigation terminated in his favor and held: "When a lawsuit ends in a negotiated settlement or compromise, it does not terminate in the plaintiff's favor and therefore will not support a subsequent suit for vexatious litigation." Id. at 264.
The principle stated in reference to the tort of vexatious litigation CT Page 8413-fj would seem to apply equally to the tort of malicious prosecution, since the torts are similar and the court cited malicious prosecution cases in other jurisdictions in support of its conclusion.
Quite aside from the above authorities, an objective view of the disposition of plaintiff's criminal case, with the plaintiff's formal acceptance of conditions specifically addressing the defendant's complaint to the police, hardly qualifies this action as being an appropriate malpractice cause.
Because the nolle entered in plaintiff's criminal case was a negotiated agreement, the conditions of which were accepted in open court through her attorney, the plaintiff is unable to sustain a required element of her malicious prosecution claim, that the previous criminal action termination in her discharge or in her favor.
Motion for summary judgment GRANTED.
Wagner, JTR CT Page 8413-fk