St. Paul v. Griffin

Full title: WILLIAM ST. PAUL v. RHONDA GRIFFIN ET AL

Court: Connecticut Superior Court Judicial District of New Haven at New Haven

Date published: Sep 12, 2006

2006 Ct. Sup. 16791 (Conn. Super. Ct. 2006)

Opinion

No. 4001817

September 12, 2006

MEMORANDUM OF DECISION

BRUCE L. LEVIN, JUDGE.

To prevail in an action for malicious prosecution, a plaintiff must prove that the underlying criminal proceeding that was maliciously initiated or procured terminated in the plaintiff's favor. The issue raised by the defendants' motion for summary judgment in this action for malicious prosecution is whether a criminal prosecution that was terminated by a conditional nolle, the condition being that the plaintiff in this action have no contact with the named defendant for thirteen months, terminated in the plaintiff's favor. The court holds that it did not. For this reason, the defendants' motion for summary judgment is granted.

This action for malicious prosecution was brought on August 26, 2004, by the plaintiff, William St. Paul against the defendants, Rhonda Griffin and Easter Seals Goodwill Industries Rehabilitation Center, Inc. The plaintiff alleges that Griffin "falsely and maliciously stated to Officer W. Plowman of the New Haven Police Department that the plaintiff had been stalking and harassing her, and falsely and maliciously accused the plaintiff of criminal conduct all for the purpose of obtaining the plaintiff's arrest and prosecution for a crime or crimes she knew he had not committed." On July 9, 2003, before Judge Stuart Bear, with the plaintiff and his attorney present, the prosecutor noll prossed¹ a pending criminal prosecution for harassment against the plaintiff, the condition being that the plaintiff would make no further attempts to contact Griffin for thirteen months. The plaintiff did not object to that condition. See State v. St. Paul, Superior Court, judicial district of New Haven, Docket No. CR 02 0005963 (July 9, 2003, Bear, J.).

1 A nolle prosequi is a formal entry upon the record by the prosecuting attorney in a criminal action by which he declares that he will no longer prosecute the case. State v. Anonymous (1975-2), 32 Conn.Sup. 501, 502, 337 A.2d 336 (App. Sess. 1975); Black's Law Dictionary (6th Ed.). Practice Book § 39-29 provides: "A prosecuting authority shall have the power to enter a nolle prosequi in a case. It shall be entered upon the record after a brief statement by the prosecuting authority in open court of the reasons therefor."

The defendants have filed a motion for summary judgment accompanied by a memorandum of law and various exhibits, claiming that the criminal prosecution against the plaintiff did not terminate in his favor, within the context of malicious prosecution law. The plaintiff has filed a memorandum in opposition to the defendants' motion.

"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "[I]t is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59, 864 A.2d 1 (2005).

The defendants move for summary judgment on the ground that the prior criminal prosecution of the plaintiff, which was settled under a conditional agreement, does not constitute a favorable termination of that action sufficient to support a malicious prosecution suit. In support of their motion, the defendants submit: (1) a certified copy of the deposition of Officer Wendy Plowman; (2) a certified copy of the deposition of the plaintiff; (3) a copy of the plaintiff's appearance bond; (4) a certified copy of the plaintiff's responses to the defendant's interrogatories; and (5) a certified copy of the transcript in the underlying criminal case, State v. St. Paul, supra. In his memorandum in opposition to the motion for summary judgment, the plaintiff argues that the conclusion of the criminal case satisfies the favorable termination requirement required to bring the present suit.

To prevail on a claim of malicious prosecution, a plaintiff must 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).

"Courts have taken three approaches to the `termination' requirement. The first and most rigid, requires that the action have gone to judgment resulting in a verdict of acquittal, in the criminal context, or no liability, in the civil context. The second permits a vexatious suit action even if the underlying action was merely withdrawn so long as the plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the plaintiff was innocent, in the criminal context, or not liable, in the civil context. The third approach, while nominally adhering to the `favorable termination' requirement, in the sense that any outcome other than a finding of guilt or liability is favorable to the accused party, permits a malicious prosecution or vexatious suit action whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favoring the party originating the action.

"Notwithstanding our recitation of the term ` favorable termination' . . . we have never required a plaintiff in a vexatious suit action to prove a favorable termination either by pointing to an adjudication on the merits in his favor or by showing affirmatively that the circumstances of the termination indicated his innocence or nonliability, so long as the proceeding has terminated without consideration . . . Instead, we have always viewed the issue of whether the prior outcome was `favorable' to the plaintiff as relevant to the issue of probable cause." (Citations omitted; emphasis in original.) DeLaurentis v. New Haven, 220 Conn. 225, 250-51, 597 A.2d 807 (1991).

In See v. Gosselin, 133 Conn. 158, 159, 48 A.2d 560 (1946), the court addressed the question of whether the "plaintiff's complaint contain[ed] a sufficient allegation of the termination of the criminal proceedings in his favor" in an action for malicious prosecution brought by the plaintiff. Therein, the court noted that the prosecutor entered a nolle prosequi at the conclusion of the criminal proceeding. In its discussion as to what constitutes a "favorable termination," the court stated: "The accused was not acquitted, nor was he discharged by the court. However, the effect of the nolle was to release the accused from custody; he could no longer be held under arrest. `Discharge' means no more than release from custody . . . When we made `discharge' a condition of bringing an action of malicious prosecution, it signified the termination of the particular prosecution. It is not necessary that the accused should have been acquitted. 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 . . . Such a termination of the prosecution is sufficient ground for the institution of the action, but it does not, of itself, establish want of probable cause or malice, which are to be determined at the trial upon all the facts . . . `It has frequently been held that there is a sufficient termination to meet the requirements in this respect in an action for malicious prosecution where the prosecution is abandoned either by the prosecuting attorney or the complaining witness.'" (Citations omitted; emphasis added.) Id., 160. Indeed, Practice Book § 39-31 now provides: "The entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated."

"In determining whether the element of `favorable termination' of a malicious prosecution action has been satisfied, dispositions of criminal cases other than through an acquittal have received considerable attention from the Connecticut Superior Court and the federal courts. See, e.g., Roesch v. Otarola, 980 F.2d 850, 853-54 (2d Cir. 1992) (discussing whether a criminal case was favorably terminated when the defendant received accelerated rehabilitation under Connecticut law). The effect of a nolle by a prosecutor has received the most attention, and some decisions state that the entry of a nolle cannot be the basis for a plaintiff to satisfy the `favorable termination' element of a malicious prosecution claim. See Simpson v. Denardo, [United States District Court, Docket No. CV 1471] (D.Conn., July 29, 2004) ('A nolle prosequi does not qualify as a favorable termination for purposes of a malicious prosecution claim'); Walsh v. Souza, [United States District Court, Docket No. CV 1872] (D). Conn. May 25, 2004) (' A nolle prosequi is not a favorable termination of the type required to support a malicious prosecution claim'). The majority of decisions applying Connecticut law, however, hold that a nolle of the criminal charge may still permit the plaintiff to satisfy that element if the circumstances of the nolle satisfy the See v. Gosselin test of `an abandonment of the prosecution without request from or by an arrangement with [the defendant].' More specifically, the decisions hold that a nolle will preclude a subsequent case for malicious prosecution when it was made as part of a plea bargain or under other circumstances that indicate that the defendant received the nolle in exchange for providing something of benefit to the state or victim. For example, if some charges were nolled in exchange for a guilty plea to another offense, those nolle charges could not be the basis for a subsequent malicious prosecution claim. If, however, a charge was nolled by the prosecutor without the request of the defendant, that could satisfy the element if the circumstances of the nolle indicated an `abandonment of the prosecution.' The factual circumstances surrounding the nolle are material and when disputed, must be resolved by the trier of fact. See, e.g., Jackson v. Smith, [Superior Court, judicial district of Hartford, Docket No. CV 02 815282 (July 14, 2003, Wagner, J.T.R.) ( 35 Conn. L. Rptr. 72)] (nolle, which was conditioned on future noncontact between the defendant and the victim, was not sufficient to constitute a `favorable' termination under See v. Gosselin); Cislo v. Pitman, [Superior Court, judicial district of Ansonia-Milford, Docket No. CV 91 10036193 (May 15, 1997. Corradino, J.] (denying motion to set aside a malicious prosecution verdict in favor of the plaintiff on the ground that the underlying criminal case was not resolved in the plaintiff's favor: `Here the charges were nolled. They were not [n]olled at the instigation of the plaintiff, they were apparently nolle because the complainant did not appear in court. The latter fact alone suggests that the failure to proceed implies a lack of reasonable grounds for the prosecution' [quotations omitted]); Sabir v. Jowett, 214 F.Sup.2d 226, 240-41 (D.Conn. 2002) (nolles in separate criminal case could satisfy the `favorable termination' element if unconnected to case in which plea bargain occurred); Russo v. Hartford, 184 F.Sup.2d, 169, 186 (D. Conn. 2002) (motion to dismiss malicious prosecution claim denied when underlying criminal case `terminated based on a suppression issue with no indication of [the plaintiff's] guilt'); see also Haynes v. New London, [United States District Court, Docket No. CV 2551 (D. Conn., May 17, 2002)] (summary judgment as to false arrest claim denied where facts disputed as to the circumstances surrounding the nolles)." Holman v. Cascio, United States District Court, Docket No. CV 1523 (D. Conn., August 29, 2005).

Furthermore, Restatement (Second), Torts § 660 states that "[a] termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if (a) the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused." In discussing that rule, comment "c" states that "[a]lthough the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor."

In the underlying criminal prosecution that gives rise to this case, State v. William St. Paul, supra, Superior Court, Docket No. CR 02 0005963, the following colloquy took place:

"[Assistant State's Attorney]: The State, your Honor, would today enter a conditional nolle. That condition being no further attempts to contact the complainant victim in this matter.

"The Court: Okay. Then the conditional nolle is noted, sir, and the condition of the nolle, Mr. St. Paul, is that you make no attempts whatsoever through any medium or other means of communication. Any means of communication whatsover directly or indirectly to contact Rhonda Griffin, and as long as you do that during the period of the conditional nolle, which is thirteen months, you won't have to be back here again."

The plaintiff was in court and represented by counsel at the time of the conditional nolle. Speaking directly to the plaintiff, the trial judge reiterated the no-contact condition of the nolle. Moreover, in his deposition in this matter, the plaintiff acknowledged that he was given the nolle in exchange for the condition.

"Had the plaintiff wanted to avoid the [condition of the nolle] he could have refused it, or if entered, move, under Practice Book § 39-30 for dismissal or a trial."² Jackson v. Smith, supra, Superior Court, judicial district of Hartford, No. 815282 July 14, 2003) ( 35 Conn. L. Rptr. 72). He did not. Rather, he received from the prosecutor the nolle in exchange for providing something of benefit to the state and the alleged victim, specifically he agreed to no contact with Griffin for thirteen months. This was a restriction on his liberty. See Edwards v. State, 74 Wis.2d 79, 84-85, 246 N.W.2d 109 (1976). Given the underlying charges against him, stalking and harassment, the plaintiff's acceptance of the no-contact condition of his nolle also evidences that those criminal charges were not brought without probable cause. DeLaurentis v. New Haven, supra, 220 Conn. 251 ("we have always viewed the issue of whether the prior outcome was `favorable' to the plaintiff as relevant to the issue of probable cause.").

2 Practice Book § 39-30, entitled "Objection by Defendant to Nolle Prosequi," provides: "Where a prosecution is initiated by complaint or information, the defendant may object to the entering of a nolle prosequi at the time it is offered by the prosecuting authority and may demand either a trial or a dismissal, except when a nolle prosequi is entered upon a representation to the judicial authority by the prosecuting authority that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary."

Applying the law as set forth in See v. Gosselin and DeLaurentis v. New Haven, and following Judge Wagner's opinion in Jackson v. Smith, supra, this court holds that the underlying criminal proceedings did not terminate in favor of the plaintiff because they were nolled "by arrangement with" the plaintiff. See v. Gosselin, supra, 133 Conn. 160. The facts are not in dispute, the defendants are entitled to judgment as a matter of law, and the defendants' motion for summary judgment is granted.

Dated at Waterbury, Connecticut this 8th day of September 2006.