Cislo v. City of Shelton

• Decision Date: 26 March 1996
• Docket Number: No. 13249,13249
• Citation: 673 A.2d 134,40 Conn.App. 705
• Court: Connecticut Court of Appeals
• Parties: Alexander CISLO v. CITY OF SHELTON.

Page 134

673 A.2d 134

40 Conn.App. 705

Alexander CISLO v. CITY OF SHELTON.

No. 13249.

Appellate Court of Connecticut.

Argued Sept. 28, 1995.

Decided March 26, 1996.

David Monastersky, with whom, on the brief, were Mary Beattie Schairer, Hugh F. Keefe, Donn A. Swift, and Susan McAlpine, New Haven, for appellant (plaintiff).

Thomas J. Welch, with whom was John H. Welch, Jr., Shelton, for appellee (defendant).

Before LAVERY, HEIMAN and SCHALLER, JJ.

HEIMAN, Judge.

The plaintiff appeals from the judgment of the trial court, rendered in favor of the defendant, after the granting of the defendant's motion for summary judgment. On his appeal as amended, the plaintiff claims that the trial court improperly (1) granted the defendant's motion for summary judgment and (2) denied the plaintiff's motion to open the judgment and to set aside the summary judgment. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On October 12, 1989, the plaintiff, a Shelton police officer, was arrested and charged with the sexual assault of a police informant. Subsequent to the arrest of the plaintiff, the informant disappeared. On January 24, 1991, the assistant state's attorney entered a nolle prosequi in open court in the criminal case against the plaintiff. ¹ The assistant state's attorney entered the nolle because of the disappearance of the informant. The plaintiff's counsel in the criminal case objected to the entry of the nolle and moved to dismiss the case. The trial court declined to dismiss the case and accepted the entry of the nolle pursuant to Practice Book § 726. ²

On March 4, 1992, the plaintiff brought an action against the defendant pursuant to General Statutes § 53-39a, ³ seeking indemnification for the economic losses he incurred in the defense of the criminal charges brought against him. Subsequent to the filing of the complaint, the plaintiff and the defendant filed cross motions for summary judgment. On January 11, 1994, the trial court denied the plaintiff's motion for summary judgment and granted the defendant's cross motion. In its memorandum of decision regarding the cross motions for summary judgment, the trial court determined that the plaintiff was not entitled to relief under § 53-39a. The trial court found as a matter of law that the plaintiff was not entitled to relief because § 53-39a provides for indemnification only where the criminal charges against a police officer are dismissed or where the officer is found not guilty, and that here, the underlying criminal case against the plaintiff was terminated by the entry of a nolle prosequi. On January 27, 1994, judgment was rendered in favor of the defendant and this appeal followed. In his initial appeal, the plaintiff claims that the trial court improperly granted the defendant's motion for summary judgment.

On April 16, 1994, during the pendency of his appeal, the plaintiff filed a motion in the trial court seeking to dismiss the criminal charges against him that had previously been nolled. On April 27, 1994, the trial court on the criminal side granted the motion to dismiss. On May 3, 1994, the plaintiff filed a motion in the trial court to open the judgment and to set aside the summary judgment in the present action, claiming that the recent dismissal of the nolled criminal charges made him eligible for indemnification under § 53-39a. On August 19, 1994, the trial court on the civil side denied the plaintiff's motion to open and found that because the criminal charges against the plaintiff had been nolled, they were no longer pending and could not have been properly dismissed for the purpose of seeking indemnification under § 53-39a. On September 7, 1994, the plaintiff filed an amendment to his appeal, adding the claim that the trial court improperly denied the plaintiff's motion to open the judgment and to set aside the summary judgment.

I

The plaintiff first claims that the trial court improperly granted the defendant's motion for summary judgment. The plaintiff posits that the trial court, in granting the defendant's motion for summary judgment, improperly determined that § 53-39a does not provide for indemnification where criminal charges against a police officer have been nolled. We are unpersuaded.

We first set forth our standard of review. "The standard of review of a trial court's decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, 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.' " Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780, 595 A.2d 334 (1991). Here, the facts are not in dispute. The plaintiff's claim is that the trial court improperly construed § 53-39a in granting the defendant's motion for summary judgment. "The dispute between the parties here does not arise out of contested versions of the facts, but out of the legal significance of the facts as they relate to relevant statutory definitions." Pinheiro v. Board of Education, 30 Conn.App. 263, 268, 620 A.2d 159 (1993). Thus, the question before us is whether the defendant was " 'entitled to judgment as a matter of law.' " Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987).

In deciding whether the defendant was entitled to judgment as a matter of law, we must determine whether the trial court was correct when it found that § 53-39a does not provide for indemnification where criminal charges against a police officer have been nolled. In making this determination, we must engage in statutory construction.

We begin with the text of § 53-39a. ⁴ "That statute affords a police officer a right of indemnity for economic loss incurred for a prosecution 'for a crime allegedly committed by such officer in the course of his duty as such' if 'the charge is dismissed or the officer found not guilty.' " Rawling v. New Haven, 206 Conn. 100, 104, 537 A.2d 439 (1988). Thus, "any person who invokes § 53-39a must sustain a twofold burden of proof. In order to receive indemnity, a police officer must prove not only that the charges against him were dismissed, or that he was acquitted, but also that the charges arose in the course of his duty as a policeman." (Internal quotation marks omitted.) Id., at 106, 537 A.2d 439. Whether the plaintiff was acting in the course of his duty is not in issue here. The plaintiff claims that the entry of a nolle prosequi is included "under the umbrella" of the term "dismissal" for the purposes of § 53-39a, thereby making him eligible for indemnification. The plaintiff posits that because § 53-39a should be construed in that way, the trial court's rendering of summary judgment in favor of the defendant was improper.

"In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). It is a well established rule of statutory construction that when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).... Courts should not read into clearly expressed legislation provisions which do not find expression in its words. Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988)." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 830-31, 614 A.2d 414 (1992).

In construing § 53-39a in particular, our Supreme Court has followed the well settled rule that "[s]tatutes that abrogate or modify governmental immunity are to be strictly construed. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987); Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983). This rule of construction stems from 'the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.' Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975); see also Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951)." Rawling v. New Haven, supra, 206 Conn. at 105, 537 A.2d 439.

In light of the above principles, we decline to extend the language of § 53-39a to provide for indemnification where a nolle prosequi has been entered by the prosecuting authority. The language of § 53-39a is plain and unambiguous. The statute clearly provides that in order to qualify for indemnification, the plaintiff must prove either that the charges against him were dismissed or that he was found not guilty. Rawling v. New Haven, supra, 206 Conn. at 106, 537 A.2d 439. The entry of a nolle prosequi is neither a dismissal nor a verdict of not guilty. "The state's right to terminate a prosecution by the entry of a nolle prosequi has its origins in practices recognized at common law. The effect of a nolle prosequi is to end pending proceedings without an acquittal and without placing the defendant in jeopardy. Bucolo v. Adkins, 424 U.S. 641, 642, 96 S.Ct. 1086, 1087, 47 L.Ed.2d 301 (1976); see United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971); 4 Wharton, Criminal Procedure (12th Ed.1976) § 518." State v. Lloyd, 185 Conn. 199, 201, 440 A.2d 867 (1981); see also Practice Book § 727. After the entry of a nolle, "the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated." Practice Book § 727. Furthermore, thirteen months after the entry of the nolle, all records of the...