Condosta v. Grussing, 83-212

• Decision Date: 08 June 1984
• Docket Number: No. 83-212,83-212
• Citation: 479 A.2d 149,144 Vt. 454
• Court: Vermont Supreme Court
• Parties: Guido CONDOSTA v. Robert GRUSSING, William M. McCarty & Rosalie Condosta.

Page 149

479 A.2d 149

144 Vt. 454

Guido CONDOSTA v. Robert GRUSSING, William M. McCarty & Rosalie Condosta.

No. 83-212.

Supreme Court of Vermont.

June 8, 1984.

Guido Condosta, pro se.

Richard A. Hull and Frank H. Zetelski of Dick, Hackel & Hull, Rutland, for defendant-appellee Grussing.

Anthony B. Lamb and Jane H. Marter of Paul, Frank & Collins, Inc., Burlington, for defendant-appellee McCarty.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

Plaintiff Condosta appeals from an order of the Windham Superior Court granting defendants' motions to dismiss his complaint on the ground that the complaint failed to state a cause of action upon which relief could be granted. V.R.C.P. 12(b)(6). This is the eighth time the plaintiff has appeared before this Court pursuing appeals on matters stemming from an original divorce action between him and defendant Rosalie Condosta. Condosta v. Condosta, 142 Vt. 117, 453 A.2d 1128 (1982); Condosta v. Condosta, 139 Vt. 545, 431 A.2d 494 (1981); Condosta v. Condosta, 138 Vt. 193, 413 A.2d 805 (1980); Condosta v. Condosta, 137 Vt. 35, 401 A.2d 897 (1979); Condosta v. Condosta, 136 Vt. 630, 388 A.2d 33 (1978) (mem.); Condosta v. Condosta, 136 Vt. 360, 395 A.2d 345 (1978); Condosta v. Condosta, 134 Vt. 381, 359 A.2d 658 (1976); see Condosta v. Condosta, 440 U.S. 902, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979) (mem.).

The plaintiff and defendant Condosta were divorced in 1978. Following this Court's affirmance of the divorce judgment, Condosta v. Condosta, supra, 136 Vt. 360, 395 A.2d 345, defendant Grussing, through his attorney, defendant McCarty, petitioned for a contempt petition against the plaintiff to enforce the payment of attorney's fees pursuant to the terms of the divorce decree. 15 V.S.A. § 761. The petition was dismissed by the trial court without prejudice pending the disposition of the plaintiff's appeal of the divorce judgment to the United States Supreme Court. The Supreme Court denied certiorari. 440 U.S. at 902.

In 1981 the plaintiff brought the complaint involved here, claiming damages against the defendants for the alleged violation of his rights under both the Vermont Constitution ch. I, art. 4, and 42 U.S.C. § 1983 (1976). The court dismissed the complaint, on motions filed by defendant McCarty, on the ground that the plaintiff had failed to allege sufficient facts to demonstrate a § 1983 injury. The plaintiff then sought and was granted leave to file an amended complaint; the amended complaint deleted all allegations of a § 1983 injury, retained his claim under the Vermont Constitution, and added a claim of malicious prosecution. The plaintiff also sought to reinstate defendant McCarty. The court dismissed the plaintiff's amended complaint, on motion of defendant Grussing, for failure to state a cause of action. The plaintiff then filed a motion for default on the ground that none of the defendants had answered his amended complaint. In response, defendant Condosta filed a motion to dismiss.

In its conclusions of law, the court ruled that none of the defendants were required to answer to the plaintiff's amended complaint since it alleged the same facts as were alleged in the plaintiff's original complaint. The court also ruled that there were "simply no grounds anywhere for this case against the defendants." The court then granted all motions to dismiss filed by the defendants, and denied the plaintiff's motion for default.

The plaintiff now appeals claiming: (1) that his original complaint stated a cause of action under 42 U.S.C. § 1983; (2) that his amended complaint stated a cause of action for malicious prosecution; and (3) that it was error for the trial court to make findings of fact in its ruling on defendant Condosta's motion to dismiss.

In order to maintain a cause of action under 42 U.S.C. § 1983, the plaintiff must show a "deprivation of a federal right" by "a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). The conduct alleged to be responsible for the deprivation of the federal right "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Id. at 937, 102 S.Ct. at 2754. In the case at bar, the conduct complained of satisfied the requirement that the deprivation be caused by the exercise of a right or privilege created by the state; the statutes of Vermont granted the defendants the right to institute contempt proceedings in divorce cases when a party has failed to comply with a final order granting attorney's fees. 15 V.S.A. § 761 (repealed 1981, No. 247 (Adj.Sess.), § 18). The plaintiff did not allege, however, nor could he, that the defendants were state actors. To be a state actor, the party against whom a § 1983 action is brought must be a state official, a person who has acted together with or has been significantly aided by a state official, or a person whose conduct "is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., supra, 457 U.S. at 937, 102 S.Ct. at 2754. Here, the defendants, as private parties, petitioned the court for a contempt citation against the plaintiff; a private party does not evolve into a state actor merely by resorting to the courts to pursue a cause of action. Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). Nor do the defendants, Grussing and McCarty, as attorneys, and therefore officers of the Court, become state actors under color of state law within the meaning of § 1983. Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 449, 70 L.Ed.2d 509 (1981). The court correctly dismissed the plaintiff's original complaint because he failed to allege or show that the defendants were state actors.

The plaintiff next claims that his amended complaint stated a cause of action for malicious prosecution. To state a claim for malicious prosecution the plaintiff must allege facts demonstrating that the prosecution was with malice, without probable cause, and caused damage to the plaintiff. Levinsky v. Diamond, 140 Vt. 595, 599-600, 442 A.2d 1277, 1280 (1982). Although the element of malice can be inferred from a showing of lack of probable cause, both malice and the want of probable cause are independent facts necessary to the cause of action. Ryan v. Orient Insurance Co., 96 Vt. 291, 296, 119 A. 423 (1923). The plaintiff in the instant case failed to allege facts in his amended complaint necessary to show the existence of malice. On...