Mulligan v. Rioux

• Decision Date: 25 July 1995
• Docket Number: No. 14172,14172
• Citation: 662 A.2d 153,38 Conn.App. 546
• Court: Connecticut Court of Appeals
• Parties: Arthur J. MULLIGAN v. Robert RIOUX et al.

Page 153

662 A.2d 153

38 Conn.App. 546

Arthur J. MULLIGAN v. Robert RIOUX et al.

No. 14172.

Appellate Court of Connecticut.

Argued May 26, 1995.

Decided July 25, 1995.

Joseph A. La Bella, with whom was John F. Scully, and, on the brief, John T. Scully, Hartford, for appellant (plaintiff).

John B. Farley, Hartford, for appellees (defendants).

Before FOTI, HEIMAN and FRANCIS X. HENNESSY, JJ.

HEIMAN, Judge.

The plaintiff appeals from the judgment of the trial court setting aside the jury verdict in his favor as excessive as a matter of law. On appeal, the plaintiff claims that the trial court improperly set aside the verdict on the basis of an improper finding that the plaintiff did not produce sufficient evidence of lost earning capacity. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. In the fall of 1985, the plaintiff was finishing his seventeen year career as the director of the department of public works for the town of East Hartford. On October 28, 1985, four days before his planned retirement, the plaintiff was arrested and charged with violating an East Hartford town bidding ordinance. ¹ The warrant that provided a basis for the plaintiff's arrest was prepared by the defendants, Detective Robert Rioux and Detective Gerald Myers, ² and contained allegations that the plaintiff had continued a contract for lubrication services from Automatic Lubrication after the contract had terminated and without putting it out to bid. On November 19, 1985, the plaintiff was arrested for a second time, again on the basis of a warrant prepared by the defendants. The November 19 arrest resulted in twelve charges against the plaintiff for allegedly receiving bribes from Automatic Lubrication in the form of twelve rounds of golf at the Blackledge Country Club. The plaintiff's arrests were reported in various local newspapers and featured on local news on television.

On February 20, 1987, the plaintiff was acquitted of all charges against him. Thereafter, in September, 1987, the plaintiff instituted a civil action against the defendants alleging malicious prosecution and a violation of his federal civil rights pursuant to 42 U.S.C. § 1983 ³ based on both arrests. In his complaint, the plaintiff alleged that (1) the defendants had failed to investigate properly the charges relating to both arrests and had submitted an affidavit in support of both arrests that contained numerous false and inaccurate statements, ⁴ (2) the arrests were made without probable cause and with malice, and (3) as a result, the plaintiff had received "massive amounts of unfavorable publicity," greatly damaging his reputation, and had experienced humiliation, disgrace and mental anguish.

At trial, the plaintiff introduced evidence on the issue of damages that his reputation had been destroyed as a result of the arrests and that he and his family had suffered both physically and mentally. The plaintiff's wife testified that the plaintiff had difficulty eating and sleeping after the arrests. Other evidence established that the plaintiff became withdrawn and mistrusting of people and that his self-esteem was severely damaged.

In addition to the alleged intangible injuries, the plaintiff introduced evidence concerning his claim for lost earning capacity. Evidence was introduced that the plaintiff had planned to work in the private sector after he retired from public office, but those plans collapsed due to his damaged reputation. He testified that his goal was to achieve financial security for himself and his wife and that he was willing to work as many hours as necessary to achieve that goal. The plaintiff introduced evidence that his annual salary with the department of public works was $48,000 plus benefits and that he could make more in the private sector. Specifically, he testified as to two employment opportunities that he considered pursuing after his retirement. The first was a company started by the plaintiff and two colleagues, James Fitzgerald and Eugene Paganetti. The plaintiff was not active in the corporation while in public office, but planned to join and act as a manufacturers representative upon his retirement. The business, however, collapsed after the arrests because of the damage to the plaintiff's reputation and credibility. The second was an opportunity with David Hanlon of DRJ Associates. Hanlon testified that he spoke with the plaintiff in the early fall of 1985 about representing engineers and contractors seeking business with Connecticut state and municipal governments. Hanlon testified that the plaintiff would have been ideal for the job because of his credibility and his valuable professional and political ties in Connecticut and that he could have earned between 4 and 8 percent of the company's gross sales in Connecticut, depending on the level of involvement that the plaintiff chose. Gross sales in Connecticut at the time were approximately $1.5 million.

At the close of the evidence, the trial court instructed the jury that if it found for the plaintiff it would have to consider the issue of damages. The jury was informed that "[d]amages for malicious prosecution are not limited to easily determined special damages such as attorney's fees or loss of time from work.... Damages are also designed to compensate for intangible injuries such as mental anguish, humiliation, embarrassment, mortification, shame, fear, and damage to reputation." The jury returned a general verdict for the plaintiff on all counts of his complaint and awarded him damages totaling $974,000.

The defendants moved the trial court to set aside the jury's verdict and for judgment notwithstanding the verdict, claiming, inter alia, that the defendants were protected from liability under the doctrine of qualified immunity and that the verdict was excessive as a matter of law. The trial court concluded that the defendants were entitled to qualified immunity, set aside the verdict of the jury, and rendered judgment for the defendants on all counts of the plaintiff's complaint.

The plaintiff, thereafter, appealed to this court and the appeal was transferred to the Supreme Court pursuant to Practice Book § 4023 and General Statutes § 51-199. Our Supreme Court reversed the judgment of the trial court, finding that the trial court applied the incorrect standard of qualified immunity to the plaintiff's common law claims and had improperly substituted its judgment for that of the jury on factual issues relating to the plaintiff's civil rights claim. Mulligan v. Rioux, 229 Conn. 716, 726-38, 643 A.2d 1226 1994). ⁵ Although the Supreme Court's reversal reinstated the verdict, it remanded the case to the trial court for a determination of the defendants' claim that the verdict was excessive as a matter of law and based on inadmissible evidence of lost earning capacity. Id., at 752, 643 A.2d 1226.

On remand, the trial court found that the evidence before the jury on the issue of lost earning capacity established that the plaintiff intended to do only part-time work after his retirement from the department of public works. The trial court did not find the evidence presented by Hanlon to be inadmissible, but stated that Hanlon's testimony "did not provide a basis for the jury putting a dollar amount on lost earning capacity from that source." The trial court, therefore, concluded that the evidence produced by the plaintiff in support of his claim for lost earning capacity was too speculative to support the jury's verdict. The trial court set aside the verdict and ordered that a new hearing in damages be held. This appeal followed.

In determining whether to set aside a verdict, "[t]he size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.... [T]he court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Citations omitted; internal quotation marks omitted.) Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991); see also Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988).

On appeal, our standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is whether the trial court abused its discretion. Mulligan v. Rioux, supra, 229 Conn. at 753, 643 A.2d 1226; Oakes v. New England Dairies, Inc., 219 Conn. 1, 14, 591 A.2d 1261 (1991). In conducting this review, we are, however, guided...