Giannamore v. Shevchuk

• Decision Date: 10 June 2008
• Docket Number: No. 28058.,28058.
• Citation: 947 A.2d 1012,108 Conn.App. 303
• Court: Connecticut Court of Appeals
• Parties: Richard P. GIANNAMORE v. Donald E. SHEVCHUK.

947 A.2d 1012

108 Conn.App. 303

Richard P. GIANNAMORE v. Donald E. SHEVCHUK.

No. 28058.

Appellate Court of Connecticut.

Argued January 16, 2008.

Decided June 10, 2008.

William S. Palmieri, New Haven, for the appellant (plaintiff).

Jane G. Beddall, with whom was Terence A. Zemetis, Wallingford, for the appellee (defendant).

BISHOP, HARPER and ROBINSON, Js.

ROBINSON, J.

This appeal arises out of a malicious prosecution action brought by the plaintiff, Richard P. Giannamore, against the defendant, Donald E. Shevchuk. On appeal, the plaintiff claims that the trial court improperly set aside the jury's verdict and concluded that he had failed to establish that the defendant acted without probable cause to initiate criminal proceedings against him.¹ Additionally, the defendant claims, as alternate grounds for affirming the judgment of the court, that there was insufficient evidence to support the jury's findings that (1) he initiated the criminal proceedings against the plaintiff and (2) he acted with malice or an improper purpose other than bringing an offender to justice. We agree with the plaintiff and disagree with the defendant. Accordingly, we reverse the judgment of the trial court.

The following facts and procedural history are necessary for our discussion. The plaintiff commenced a five count action against the defendant on March 5, 2001.² The operative complaint, dated March 22, 2006, set forth a single count of malicious prosecution. This action originated out of a contract dispute between the plaintiff, a self-employed painter, and the defendant, a public defender in the Bristol courthouse.

On August 22, 1995, the parties entered into two written contracts. The first was for the interior of the defendant's house. The plaintiff was to paint the interior walls, ceilings and trim work in exchange for $5000. The plaintiff acknowledged the receipt of a $3000 deposit with the balance due upon completion. The second contract required the plaintiff to paint the exterior of the house. The plaintiff accepted a $2000 deposit for the exterior contract.

The interior contract required the plaintiff to complete the painting of the interior ten days after all of the interior trim work had been installed by a different contractor. It further stated that the plaintiff was not responsible for time lost because materials had not arrived or been installed. By September 20, 1995, neither the interior nor the exterior painting had been completed. On that date, the parties executed a written amendment to the two August 22, 1995 contracts. The prior contracts remained in effect, but the two deposits were now applied exclusively to the interior painting contract, paying it in full. The plaintiff also acknowledged the receipt of an additional sum of money, approximately $1666. Ultimately, the interior painting was never completed, and the exterior painting was never commenced.

In November, 1995, the defendant contacted Christopher Bartolotta, a state police trooper, regarding the painting of the house. Bartolotta advised him that his situation should be addressed as a civil matter in the court system. The defendant subsequently spoke with a prosecutor at the Bristol courthouse. The prosecutor advised the defendant to send the plaintiff a letter demanding the return of the money.³

On December 27, 1995, the defendant again contacted Bartolotta. Bartolotta took a statement from the defendant, reviewed certain documents and contacted the office of the state's attorney. In his written statement, the defendant alleged that the "total amount [the plaintiff] stole ... by not doing the agreed work, not showing up and continually asking me for additionally money was $3666.00." As a result of his investigation, Bartolotta prepared an application for an arrest warrant. A prosecutor in the Bristol courthouse, where the defendant worked, reviewed and approved the arrest warrant application. It then was signed by a judge of the Superior Court. Neither the defendant's written statement nor Bartolotta's arrest warrant application mentioned the terms of the amended contract. Furthermore, the arrest warrant indicated that $3666 had been stolen: $2000 from the initial deposit on August 22, 1995, and the $1666 payment made on September 22, 1995.⁴

On March 6, 1996, the plaintiff was arrested at his home for committing the crime of larceny in the third degree in violation of General Statutes § 53a-124. Incident to his arrest, the plaintiff was searched and a double edged knife was found on his person. As a result, the plaintiff also was charged with carrying a dangerous weapon in violation of General Statutes § 53-206(a).

The plaintiff paid attorney John R. Williams $14,000 to represent him with respect to the pending criminal charges. The larceny case eventually was transferred from the Bristol courthouse to Hartford. That case was nolled and dismissed on September 1, 1998.

The plaintiff's malicious prosecution action was tried before the jury. At the conclusion of the plaintiff's case, the defendant moved for a directed verdict. After hearing argument, the court reserved its decision on the defendant's motion. The court submitted interrogatories to the jury as requested by the defendant. The jury returned a verdict in favor of the plaintiff and awarded the plaintiff a total of $39,000 in damages, subject to a setoff of $6665.

Following the jury's verdict, the defendant filed a motion to set aside, a motion for remittitur, a motion for a decision on the motion for a directed verdict and an application for a judicial determination of probable cause. On September 1, 2006, the court issued a memorandum of decision granting the motion to set aside the verdict. The court concluded that "[b]ased on the undisputed facts ... the plaintiff cannot sustain his burden of proving that the defendant lacked probable cause to bring his complaint to the police." The court reasoned that the plaintiff himself acknowledged that he took money from the defendant and never returned to the house. In the view of the court, these facts supported the defendant's reasonable belief that the plaintiff had taken more than $1000 and wrongfully refused to return it. Because the plaintiff had failed to prove that the defendant lacked probable cause, his claim for malicious prosecution likewise failed. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff claims that the court improperly set aside the jury's verdict⁵ and improperly concluded that he had failed to establish that the defendant acted without probable cause to initiate criminal proceedings. Although the plaintiff has briefed these claims separately, in our view, they are intertwined, with the latter being the key issue. Simply put, the dispositive issue is whether the court properly determined that the defendant had probable cause to initiate criminal proceedings.

To facilitate our discussion, it is appropriate to set forth the legal principles regarding the tort of malicious prosecution. "The interest in freedom from unjustifiable litigation is protected by actions for malicious prosecution and abuse of process.... In malicious prosecution cases ... the emphasis is upon the misuse of criminal ... action as a means for causing harm.... The law supports the use of litigation as a social means for resolving disputes, and it encourages honest citizens to bring criminals to justice. Consequently the accuser must be given a large degree of freedom to make mistakes and misjudgments without being subject to liability. On the other hand, no one should be permitted to subject a fellow citizen to prosecution for an improper purpose and without an honest belief that the accused may be found guilty." (Emphasis added.) W. Prosser & W. Keeton, Torts (5th Ed.1984) § 119, pp. 870-71. Indeed, our Supreme Court expressly has recognized that the "law governing malicious prosecution seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation, but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law. 1 F. Harper & F. James, Torts (1956) § 4.11." McHale v. W.B.S. Corp., 187 Conn. 444, 447-48, 446 A.2d 815 (1982); see generally Rioux v. Barry, 283 Conn. 338, 343-49, 927 A.2d 304 (2007).

The elements of malicious prosecution are well established. "An action for malicious prosecution against a private person requires a plaintiff to 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 the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." McHale v. W.B.S. Corp., supra, 187 Conn. at 447, 446 A.2d 815; see also 52 Am. Jur.2d 145, Malicious Prosecution § 8 (2000); D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.1991) § 161, p. 430. Our Supreme Court has described these elements of the tort as the "`stringent requirements'...." Gallo v. Barile, 284 Conn. 459, 475, 935 A.2d 103 (2007); 52 Am.Jur.2d 143, supra, § at 5 ("Actions for malicious prosecution are not favored by the courts. Thus, a malicious prosecution action is subject to limitations that are more stringent than those surrounding other kinds of actions, and recovery is allowed only if the requirements have been fully complied with.").

The focus of our inquiry is the third element of malicious prosecution; that is, whether the defendant acted without probable cause.⁶ "Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he [or she] has reasonable...