Belcher v. Paine, 91-220

• Decision Date: 27 August 1992
• Docket Number: No. 91-220,91-220
• Citation: 612 A.2d 1318,136 N.H. 137
• Parties: Kathy and Craig BELCHER v. William D. PAINE, II.
• Court: New Hampshire Supreme Court

Page 1318

612 A.2d 1318

136 N.H. 137

Kathy and Craig BELCHER v. William D. PAINE, II.

No. 91-220.

Supreme Court of New Hampshire.

Aug. 27, 1992.

Sheehan, Phinney, Bass & Green P.A and Roussos, Hage & Hodes, Manchester (Sandra Schneider, on the brief, and Paul W. Hodes and Sara B. Crosby, orally), for plaintiffs.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Robert L. Chiesa, on the brief, and Robert E. Murphy, Jr., orally), for defendant.

HORTON, Justice.

The plaintiffs, Craig and Kathy Belcher, were indicted for aggravated felonious sexual assault and conspiracy to commit aggravated felonious sexual assault. The indictments were ultimately nol prossed by the defendant, William Paine, II, the Carroll County Attorney. The plaintiffs subsequently brought suit against the defendant alleging reckless and/or negligent investigation, malicious prosecution, and conspiracy to commit malicious prosecution. The defendant moved for summary judgment, asserting that he was absolutely immune from suit in connection with his activities as the prosecutor in the underlying matter. The Superior Court (Mohl, J.) agreed and granted his motion. We affirm.

Kathy Belcher operated a State-licensed day care center in her home in Center Conway, which she owned with her husband. Mrs. Belcher had sole responsibility for running the day care center; Mr. Belcher did not participate in the daily operation of the business. A and B began attending the day care center in May 1985, at which time A was three and one-half years old and B was thirteen months old. In June 1985, Mrs. Belcher closed the day care center and A and B entered another local day care program. The children had no further contact with the plaintiffs. Allegations of sexual abuse were raised in April 1986 by A's parents after a discussion with Dr. William T. Nagahiro, a psychologist who had been treating A for approximately six months. In May 1986, he contacted the department of health and human services and reported that A and B had been sexually abused by the plaintiffs; the department, in turn, notified the defendant at the county attorney's office. Dr. Nagahiro also filed an official report with the Conway Police Department. After about one year, the police terminated the investigation, terming it "unfounded," meaning that the police concluded that probable cause did not exist to charge the plaintiffs.

The defendant then began to investigate the allegations of abuse. He retained a Maryland psychologist, Dr. Dennis M. Harrison, to interview and evaluate both A and B. Dr. Harrison reported to the defendant in June 1987 that in his opinion A and B had been sexually abused. He recommended that they undergo a physical examination by Dr. Lawrence Shubin with whom he frequently worked. Dr. Shubin also concluded that both A and B had been sexually abused.

The plaintiffs were each indicted in October 1987 for aggravated felonious sexual assault and conspiracy (with one "Big Josh") to commit aggravated felonious sexual assault. Discovery proceeded for the next eighteen months. The defendant ultimately entered a nolle prosequi on all charges.

The plaintiffs filed suit against the defendant on October 4, 1990. Count one of their writ alleges that the defendant was reckless and/or grossly negligent in his investigation of the allegations of sexual abuse. Specifically, they contend that he: (1) did not obtain or review records of a Conway psychologist that would likely document that the statements made by A and B were not reliable; (2) did not obtain the medical records of A and B which would show that they were not sexually abused; (3) did not obtain the children's mother's diary which would demonstrate that the allegations of sexual abuse were manufactured by the parents and their psychologists; and (4) failed to investigate the credentials of the Maryland psychologist and physician who rendered opinions of sexual abuse when the defendant knew that they were not qualified to render such an opinion, that they acted in bad faith, that they had no reasonable basis to support their opinion, and that their qualifications were suspect. The second count alleges that the institution of criminal proceedings by the defendant constituted malicious prosecution. The final count of the writ alleges that the defendant conspired with others to bring criminal proceedings against the plaintiffs.

The trial court found that the defendant's actions were protected by the cloak of prosecutorial immunity. As to count one it found that the acts or omissions at issue arose due to "the County Attorney's decision to go forward with a grand jury proceeding based on the investigative record...." The court concluded that "[w]hat the prosecutor did or did not do in the investigation of the plaintiffs, is not, by itself, the cause of any injury or damage to the plaintiffs and cannot be the basis of personal liability of the prosecutor." With regard to the second count, the court held that a prosecutor is absolutely immune from suit for malicious prosecution, and alternatively, "the [fact] that the grand jury did indict the plaintiffs establishes that there was probable cause for the indictment." The court stated that the plaintiffs could not relitigate the grand jury's finding of probable cause in a later civil action in an attempt "to establish the lack of probable cause and, on account thereof, the liability of the prosecutor for bringing the case to the grand jury." The court also granted summary judgment as to the third count of the plaintiffs' writ, as it found that the defendant could not be liable for conspiring with third parties in the bringing of criminal charges in light of its previous two findings; namely, "[b]ecause the County Attorney is immune from personal liability for the decision to seek an indictment (see Count I, supra), and because no claim for malicious prosecution can lie against the County Attorney on the facts alleged in the writ, (see Count II, supra)...." The plaintiffs filed a motion for reconsideration of the court's order granting summary judgment and, in the alternative, a motion to amend their writ. This motion was denied.

On appeal, the plaintiffs make six arguments in challenging the court's order granting summary judgment and its refusal to permit them to amend their writ: (1) that the defendant is not entitled to absolute immunity because the defendant's actions that caused injury resulted from his role as an investigator; (2) that summary judgment was erroneously granted on the negligence count because the defendant did not establish the absence of a genuine issue of material fact; (3) that a grand jury indictment does not establish the existence of probable cause; (4) that the defendant is not entitled to absolute immunity for malicious prosecution or conspiracy to commit malicious prosecution; (5) that summary judgment should not have been granted as to the malicious prosecution counts because the defendant did not demonstrate the absence of a genuine issue of material fact and (6) that it was an abuse of discretion for the court not to permit them to amend their writ.

Before addressing the plaintiffs' primary arguments concerning prosecutorial immunity and its application to the present case, we first consider their contention that it was error for the trial court to grant summary judgment on the negligence count and, in turn, on the malicious prosecution counts. They assert that the defendant failed to demonstrate the absence of a genuine issue of material fact. They assert that the defendant did not submit an affidavit, as required by RSA 491:8-a, showing the lack of a genuine issue of fact on the issue of absolute immunity, and that the court's acceptance of the facts set forth in the writ as true relieved the defendant of his burden of proof.

It is firmly established that a trial court, pursuant to RSA 491:8-a, is required to grant summary judgment when, after reviewing the evidence presented in the light most favorable to the opposing party, there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Manchenton v. Auto Leasing Corp., 135 N.H. 298, 300-01, 605 A.2d 208, 210 (1992). In this case, however, the trial court stated that

"the Motion for Summary Judgment which raises the defense of absolute immunity is more analogous to a Motion to Dismiss, particularly since, for purposes of the motion and the assertion of absolute immunity, the County Attorney does not seem to contest any of the factual allegations of the plaintiffs. Accordingly, the Court will, in considering the absolute immunity issue, take the well-pleaded facts of the Writ as established. In other words, for [purposes of RSA] 491:8-a and the defendant's motion for summary judgment, there are no genuine issues of fact in dispute. Thus, on the facts as alleged, the Motion for Summary Judgment can be granted only if the County Attorney is entitled to immunity as a matter of law."

Where the trial court grants a summary judgment motion on the basis that the plaintiffs' pleadings fail to state a claim upon which relief can be granted, we review "the court's order as the functional equivalent of an order granting a motion to dismiss." Towle v. Kiman, 134 N.H. 263, 264, 591 A.2d 911, 911 (1991). We therefore review the allegations in the plaintiffs' writ to determine if they set forth a cause of action. Provencal v. Vermont Mut. Ins. Co., 132 N.H. 742, 745, 571 A.2d 276, 278 (1990). In so doing, we assume the facts alleged to be true, and construe all reasonable inferences therefrom in the light most favorable to the plaintiffs. Collectramatic v. Kentucky Fried Chicken Corp., 127 N.H. 318, 320, 499 A.2d 999, 1000 (1985).

The plaintiffs first argue that the defendant is not entitled to absolute immunity from their tort claims because the injuries of which they complain arose from his investigation of allegations of sexual abuse...