GIANNAMORE v. SHEVCHUK, No. CV01-0164079S (Sep. 1, 2006)

ELIZABETH A. GALLAGHER, JUDGE.

This action was originally brought in five counts, alleging abuse of process, malicious prosecution, CUTPA violations, intentional infliction of emotional distress, and, negligent infliction of emotional distress. Upon motion of the defendant, counts three and four, alleging CUTPA violations and intentional infliction of emotional distress were stricken by the court (Alvord, J.). The defendant filed an answer to the revised complaint, denying the material allegations and asserting special defenses. The pleadings were closed, and the case was claimed for the jury list. With permission of the court (Agati, J.), the defendant moved for summary judgment as to the remaining counts The court (Gallagher, J.) granted the motion as to the first and fifth counts of the complaint (abuse of process and negligent infliction of emotional distress) and denied the motion as to the second count (malicious prosecution). The case was thereafter tried to the jury which rendered a verdict for the plaintiff on the count of malicious prosecution.

At the end of the plaintiff's case, the defendant moved for a directed verdict on the grounds, inter alia, that the plaintiff failed to prove that the defendant lacked probable cause. The court reserved decision, and allowed the matter to go to the jury. The defendant has filed post-verdict motions, including a motion to set aside the verdict, a motion for remittitur, a motion for decision on defendant's motion for directed verdict and an application for judicial determination of probable cause.

The evidence presented at trial established that, in 1995, the plaintiff had his own painting business known as Reliable Contractors and Associates. The defendant was a public defender assigned to the G.A. courthouse in Bristol, Connecticut. The CT Page 16075 parties entered into two separate contracts for the painting of the interior and exterior of the defendant's newly constructed home on August 22, 1995. The contract for painting the interior of the home provided that the plaintiff would apply one coat of primer to all interior walls and ceiling, and interior trim, two coats of ceiling paint to all interior ceilings, one coat of finish paint to all the interior walls, and two coats of oil-based paint to all interior trim. The contract provided that the painting of the interior could be done in a 10-day period after all the trim was in. It also provided that the plaintiff would not be responsible for any lost time due to material not being there. Finally the contract provided that the payments would be made in accordance with the contract. The defendant agreed to pay the plaintiff the sum of $5,000. At the time of signing, the defendant gave the plaintiff $3,000 as a deposit. The contract for painting the exterior provided that the plaintiff would apply one coat of primer to the exterior body and trim, one coat of finish paint and/or stain to the exterior body, and two coats of finish paint to the exterior trim for the sum of $5,000. The contract provided for a deposit of $2,000, another $500 to be paid after the inside was completed and the outside primed, and $2,500 upon completion. At the time of signing, the defendant gave a $2000 deposit to the plaintiff. On September 20, 1995, the parties amended the contracts by providing that the previously paid $5,000 was to be entirely applied to the interior painting, that $1,666.66 was to be paid toward the outside contract at the time the second floor of the inside was fully completed, that another $1666.66 was to be paid at the time the inside was fully completed, and the balance of $1,666.68 was to be paid when the outside painting was completed. The amendment provided that the outside contract would go into effect on the day both parties anticipate the completion of the inside. As to the date of anticipated completion of the interior, the amendment specified September 1995 but left a blank space for the day. The amendment contained a provision whereby the plaintiff agreed to begin painting the outside immediately upon completion of the inside. The plaintiff also acknowledged receipt of $1,665. The amendment was signed by both parties.

The plaintiff worked on the job, according to his recollection, for well over 20 days. He experienced delays due to the fact that the trim was not applied in a timely fashion. He complained about the delays to the defendant. He completed about 85% of the upstairs interior and some of the downstairs. The last time he did any work on the job was in mid-September. He stopped work on CT Page 16076 the defendant's house because he felt that the relationship had ended. He did not return to the house after September 20, 1995. He began working elsewhere after that date.

In November, the defendant went to the Connecticut State Police to make a complaint about the plaintiff. The trooper initially indicated to the defendant that the matter was civil. The defendant then proceeded to speak to the Assistant State's Attorney in Bristol, and he was advised to write a letter to the plaintiff, demanding a return of his money. When the defendant received no response, he returned to the Connecticut State police. On December 27, 1995, the defendant gave a statement to the police in which he complained that the plaintiff did no work after September 20, 1995 when the defendant gave him the $1,666, and that the total amount the plaintiff stole from him by not doing the agreed-upon work was $3,666. Based on the defendant's statement and upon reviewing the relevant statutes, Trooper Barlotta prepared a sworn affidavit in support of an application for an arrest warrant for the plaintiff. The warrant was signed by a Superior Court judge on February 28, 1996. The plaintiff was arrested on March 6, 1996 on the charge of larceny in the third degree.

After several months, the case against the plaintiff was transferred from Bristol to Hartford where it was nolled and then dismissed. Thereafter, the plaintiff brought this action against the defendant.

To prevail on a claim of malicious prosecution, a plaintiff must 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 (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982).

In his motions for directed verdict and to set aside the verdict, the defendant claims that the jury could not reasonably find for the plaintiff on three elements: initiation, malice, and lack of probable cause. Because the court reserved decision on the defendant's motion for directed verdict, the court must now determine whether the plaintiff met his burden of proving that CT Page 16077 the plaintiff lacked probable cause to bring the action. Although when the facts are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law, "[w]hether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court . . ." DeLaurentis v. New Haven, 220 Conn. 225, 252-53, 597 A.2d 807 (1991). "The existence of probable cause is an absolute protection against an action for malicious prosecution . . ." Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). "Although want of probable cause is negative in character, the burden is upon the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding." (Citations omitted.) Zenik v. O'Brien, 137 Conn. 592, 597, 79 A.2d 769 (1951).

Based on the undisputed facts in this case, the plaintiff cannot sustain his burden of proving that the defendant lacked probable cause to bring his complaint to the police. On September 20, 1995, the plaintiff took $1,665.00 from the defendant, agreeing to paint the outside of the defendant's house. The plaintiff then proceeded to take other work, and he never returned to the defendant's house. He did not respond to the defendant's demand for a return of his money. As a lawyer, and particularly as a public defender, the defendant was knowledgeable about statutes. The facts admitted to by the plaintiff at trial justify a reasonable belief on the part of the defendant that he took more than one thousand dollars and was wrongfully refusing to return it.

Notwithstanding any finding of the jury regarding the defendant's motive in bringing about an investigation of the matter and his subsequent arrest, the plaintiff has not and, based on his own testimony, cannot sustain his burden of proving that the defendant lacked probable cause to do so. "[W]ant of probable cause may not be inferred from proof of malice." Vandersluis v. Weil, supra.

The plaintiff has not satisfied the requirement of proving lack of probable cause which is necessary to prevailing in an action for malicious prosecution. Therefore, the verdict is set aside.

Judgment enters for the defendant.