Opinion
CV156049466S
09-19-2017
Virginia Silano v. Daniel Wheeler et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT NOS. 122, 194, 177, 201, AND 192
Barbara N. Bellis, Judge.
FACTS
The plaintiff, Virginia Silano, commenced this action on March 6, 2015, against the defendants: Daniel Wheeler a police officer with the Trumbull Police Department, Thomas Chetlen, George Cooney, and William Verespy. The ten-count revised complaint (#173) was filed on February 3, 2016. The plaintiff's allegations stem from two incidents, each of which allegedly resulted in the plaintiff's arrest. In the operative complaint, the plaintiff alleges the following facts.
The first incident occurred on January 10, 2011. On that date, the plaintiff called the police after noticing Chetlen standing outside her front door and acting aggressively. Wheeler and another officer came to the plaintiff's home. The plaintiff told the officers that she and Chetlen had been involved in prior confrontations. The next day, January 11, 2011, Wheeler informed Chetlen that the plaintiff had threatened to shoot Chetlen should the plaintiff see Chetlen near her home; Chetlen then provided a false statement to Wheeler in which Chetlen claimed that the plaintiff had threatened him directly. On January 26, 2011, Wheeler completed an arrest warrant affidavit charging the plaintiff with threatening and breach of peace arising from the January 10 incident. Wheeler's affidavit, however, contained material omissions and misstatements. The plaintiff was arrested pursuant to this warrant on February 10, 2011.
The second incident occurred on February 8, 2011. On that date, the police responded to a call from Cooney, the president of the Pinewood Lake Association (the association), concerning an incident near the association's clubhouse. While the plaintiff was parked near the association's clubhouse in the course of retrieving her cat, Chetlen approached the plaintiff's vehicle and then ran back into the clubhouse. After Cooney called the police, Chetlen falsely stated that the plaintiff was leaning outside her vehicle with a gun pointed at him. Verespy also provided a statement, saying that he saw someone in a black SUV with something in his or her hand. Moreover, Cooney falsely stated that when he arrived at the clubhouse he found Chetlen and Verespy hiding in a closet and that there was no surveillance footage of the incident concerning the plaintiff. Wheeler arrested the plaintiff without a warrant later that night.
Counts one through six are against Wheeler only. Counts one, two, and three concern the January 10 incident and state a claim for false arrest, negligence, and malicious prosecution, respectively. Counts four, five, and six arise from the February 8 incident and state the same causes of action against Wheeler, in the same order. Counts seven, eight, and nine state claims of malicious prosecution against Verespy, Chetlen, and Cooney, respectively. Count ten alleges civil conspiracy to maliciously prosecute the plaintiff against all the defendants, arising from the February 8 incident.
In the present case, each of the defendants has moved for summary judgment. On August 5, 2015, Wheeler filed a motion for summary judgment (#122). The motion is accompanied by a memorandum of law (#123) and exhibits (#124 and 125). On February 16, 2016, the plaintiff filed a memorandum of law in opposition with attached exhibits (#181, 182, and 183) as well as separately filed exhibits (#146, 147, and 151). On October 21, 2016, Verespy filed a motion for summary judgment (#194) accompanied by a memorandum of law in support (#195). The plaintiff filed a memorandum of law in opposition (#262 and 263) on April 25, 2017. On May 11, 2017, Verespy filed a supplemental memorandum of law (#272). On February 11, 2016, Chetlen filed a motion for summary judgment (#177). On November 16, 2016, Chetlen filed another motion for summary judgment (#201), with an accompanying memorandum of law (#202). The plaintiff filed a memorandum of law in opposition (#260) on April 17, 2017. Finally, on September 19, 2016, Cooney filed a motion for summary judgment with an attached memorandum of law (#192). On April 17, 2017, the plaintiff filed a memorandum of law in opposition (#261). As the defendants' motions for summary judgment concern overlapping issues and raise similar arguments, the motions are considered together.
In light of the number of exhibits in the present case, the court will reference specific materials as needed rather than list each one.
DISCUSSION
" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
In their motions and supporting memoranda, the defendants set forth various grounds in support of summary judgment. To recount every argument raised by the defendants and each counter-argument raised by the plaintiff is unnecessary, as each defendant need only present one legally sufficient ground for judgment as a matter of law. Accordingly, the court addresses the issues raised as necessary, considering each claim in turn.
Negligence, Against Wheeler
Wheeler argues that counts two and five, the negligence counts against him, are barred by the statute of limitations set forth in General Statutes § 52-584 because the present case was commenced more than two years from the dates of the plaintiff's arrests. Further, he contends that the savings statute does not operate to spare count five because an action initiated by the plaintiff in 2013 was not dismissed due to an unavoidable mistake. In support, Wheeler offers the return of service from the present case as well as the order issued by the court, Rush, J., dismissing the 2013 action. The plaintiff argues that the savings statute applies to the present case because the 2013 action was dismissed due to the fact that the marshal's service of process was defective, rendering her subsequent attempts to correct the marshal's error superfluous.
Silano v. Wheeler, Superior Court, judicial district of Fairfield, Docket No. CV-13-6034148-S.
" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 313, 77 A.3d 726 (2013).
General Statutes § 52-584 provides in relevant part: " No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
In the present case, count two of the plaintiff's revised complaint states a claim for negligence against Wheeler arising from her arrest on February 10, 2011. Pursuant to the applicable statute of limitations, the plaintiff had two years to bring this claim. The present case was commenced on March 6, 2015, more than two years later. Count two is therefore untimely and Wheeler is entitled to judgment as a matter of law.
Unlike count two, the disposition of count five depends upon whether the savings statute applies to the present case, because the plaintiff raised a claim for negligence concerning Wheeler's conduct pursuant to the February 8 incident in her 2013 action. General Statutes § 52-592, often referred to as the " savings statute, " extends the statute of limitations by one year for certain actions; it " is designed to prevent a miscarriage of justice if the [plaintiff fails] to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes." (Internal quotation marks omitted.) Davis v. Family Dollar Store, 78 Conn.App. 235, 240, 826 A.2d 262 (2003), appeal dismissed, 271 Conn. 655, 859 A.2d 25 (2004). General Statutes § 52-592 provides in relevant part: " If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment."
The order issued by the court, Rush, J., dismissing the 2013 action states that the plaintiff " attempted to amend the original complaint so as to remedy certain deficiencies in the original service, including the return date, simply by mailing the documents. [General Statutes] § 52-72(a) requires service by certain methods which do not include mailing."
In a prior proceeding in the present case, the court, Kamp, J., considered motions to strike filed by Verespy (#106) and Cooney (#112), in which those defendants argued that the savings statute did not spare claims originally stated in the plaintiff's 2013 action. Specifically, Verespy and Cooney argued that the plaintiff could not avail herself of the savings statute because the 2013 action was not dismissed due to an unavoidable mistake. The memoranda of decision (#169, 170) issued by the court determined that the savings statute did not spare the plaintiff's claims. First, the court, determined that because the plaintiff " never attempted to re-serve the amended summons and complaint in the 2013 action via an officer, " she could not avail herself of the provision of the statute concerning the " unavoidable accident or the default or neglect of the officer to whom it was committed." Next, the court determined that the insufficient service was not due to " unavoidable accident" because the plaintiff " purposely declined to fulfill all of the statutory requirements of § 52-72, " and failed to rectify the deficiency prior to dismissal. The court notes this earlier determination due to the law of the case doctrine.
" The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . ." (Internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 702, 138 A.3d 951 (2016). " The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle." Id., 703. " [When] a matter has previously been ruled [on] interlocutorily, the court . . . may treat that [prior] decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge . . . Nevertheless, if . . . [a judge] becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment." (Internal quotation marks omitted.) Id., 702-03.
In the present case, Wheeler argues--as Verespy and Cooney did in their motions to strike--that the plaintiff is unable to avail herself of the savings statute and that her claim for negligence in count five is therefore untimely. With due deference to the persuasive reasoning of the court, Kamp, J., this court agrees that the 2013 action was not dismissed due to unavoidable mistake. Contrary to the plaintiff's argument, although the order dismissing the 2013 action refers to possible deficiencies in the original service of process, the order nevertheless indicates that the 2013 action was dismissed due to the plaintiff's failure to serve the amended complaint in accordance with statutory guidelines. As a result of the saving statute's inapplicability, count five, which accrued on the date of the plaintiff's arrest on February 8, 2011, is untimely. Summary judgment is thereby granted in favor of Wheeler as to count five.
False Arrest and Malicious Prosecution, Against Wheeler
Wheeler argues that collateral estoppel bars counts one, three, four, and six--counts one and three state claims for false arrest and malicious prosecution, respectively, arising from the January 10 incident, and counts four and six raise the same claims, respectively, but arise from the February 8 incident--because the plaintiff is precluded from relitigating the issue of probable cause in the present case. In support of this argument, Wheeler offers a decision from the United States District Court for the District of Connecticut in which the court granted summary judgment in his favor in a related federal action brought by the plaintiff. Specifically, Wheeler argues that because the federal court determined that he had probable cause to arrest the plaintiff following both incidents at the heart of the present case, the claims against him alleging false arrest and malicious prosecution must fail.
In response, the plaintiff raises several arguments. First, she argues that the issue of probable cause was not fairly litigated because the federal court exceeded its jurisdiction and relied upon Wheeler's factual allegations. She also argues that the federal proceeding was unfair because Wheeler failed to comply with her discovery requests. Next, the plaintiff argues that collateral estoppel does not apply to the present case because of the different legal standards and procedural opportunities available in the federal court as opposed to the state court. Finally, the plaintiff argues that judicial economy will not be served by applying collateral estoppel because litigation will continue notwithstanding the court's determination, as there are other defendants named in the present case.
It is not disputed that probable cause to arrest is a complete defense to false arrest; see Russo v. Bridgeport, 479 F.3d 196, 203 (2d Cir.), cert. denied, 552 U.S. 818, 128 S.Ct. 109, 169 L.Ed.2d 24 (2007), citing Beinhorn v. Saraceno, 23 Conn.App. 487, 491, 582 A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991); as well as malicious prosecution. Brooks v. Sweeney, 299 Conn. 196, 211, 9 A.3d 347 (2010). " Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment [is] the appropriate method for resolving a claim of res judicata." Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993).
" Sometimes two different tribunals are asked to decide the same issue. When that happens, the decision of the first tribunal usually must be followed by the second, at least if the issue is really the same. Allowing the same issue to be decided more than once wastes litigants' resources and adjudicators' time, and it encourages parties who lose before one tribunal to shop around for another. The doctrine of collateral estoppel or issue preclusion is designed to prevent this from occurring." B& B Hardware, Inc. v. Hargis Industries, Inc., 135 S.Ct. 1293, 1298-99, 191 L.Ed.2d 222 (2015). " [C]ollateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action." (Internal quotation marks omitted.) Marques v. Allstate Ins. Co., 140 Conn.App. 335, 339, 58 A.3d 393 (2013). " An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action." (Emphasis in original; internal quotation marks omitted.) Girolametti v. Michael Horton Associates, Inc., 173 Conn.App. 630, 649, 164 A.3d 731 (2017).
" Our Supreme Court has held that res judicata precludes state court relitigation of matters fully litigated in federal court. Virgo v. Lyons, 209 Conn. 497, 501-02, 551 A.2d 1243 (1988). Federal law dictates whether a federal judgment is to be given claim preclusive effect in a state court. Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)." Commission on Human Rights & Opportunities v. Torrington, 96 Conn.App. 313, 318, 901 A.2d 46 (2006); see also Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (issue preclusive effect of prior federal judgment governed by federal law). Nevertheless, because application of federal law concerning preclusion and state law would not yield a different outcome in the present case, the court will rely on state law. " The threshold choice of law issue in Connecticut, as it is elsewhere, is whether there is an outcome determinative conflict between applicable laws of the states with a potential interest in the case. If not, there is no need to perform a choice of law analysis, and the law common to the jurisdiction should be applied." (Internal quotation marks omitted.) Burns v. Quinnipiac University, 120 Conn.App. 311, 320, 991 A.2d 666 (2010).
" The scope of matters precluded by [collateral estoppel] necessarily depends on what has occurred in the former adjudication." (Internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, 137 Conn.App. 540, 556, 49 A.3d 770 (2012). Accordingly, " [i]n order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding. To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding." (Internal quotation marks omitted.) Marques v. Allstate Ins. Co., supra, 140 Conn.App. 340.
In the present case, a review of the federal court decision reveals the following. The plaintiff's federal action brought claims " under section 1983 of title 42 of the United States Code, alleging wrongful arrest, malicious prosecution, selective enforcement, and (maybe) intentional infliction of emotional distress." Silano v. Wheeler, United States District Court, Docket No. 3:13-CV-00185 (JCH) (D.Conn. February 5, 2015). Recounting the factual background, the court noted that " Silano did not file a Local Rule 56(a)(2) Statement . . . Given that Silano is acting pro se, the court takes into account Silano's version of the facts as stated in her filings to the extent it is supported by admissible evidence." Id. One ground Wheeler raised in his motion for summary judgment in federal court was that he had probable cause to arrest the plaintiff on both occasions. As the federal court noted, " the existence of probable cause is a complete defense to section 1983 claims of false arrest and malicious prosecution in violation of the Fourth Amendment." Id.
With regard to the arrest arising from the January 10 incident, the federal court determined that Wheeler had probable cause to arrest the plaintiff. After rejecting the plaintiff's argument that Wheeler failed to speak with an alleged witness and obtained the arrest warrant by misstating and omitting material facts, the court articulated the reasons underlying its determination. " In particular, the following undisputed facts establish, as a matter of law, probable cause to arrest Silano for threatening in the second degree: Wheeler was aware that Silano possessed a gun, and that she had threatened to kill Chetlen a few months earlier. He was aware of the numerous--and, apparently, escalating--conflicts between them, of Silano's extreme frustration with Chetlen, and of Silano's statement that she would shoot Chetlen unless the police intervened in the way that she desired. Based on these undisputed facts, Wheeler had probable cause to arrest Silano . . . and no reasonable juror could find in Silano's favor on her false arrest or malicious prosecution claims with respect to the January 10, 2011 incident." (Footnotes omitted.) Silano v. Wheeler, supra, United States District Court, Docket No. 3:13-CV-00185 (JCH).
The federal court also determined that Wheeler had probable cause to arrest the plaintiff following the February 8 incident. " Without or without access to [the surveillance] video, probable cause existed to arrest Silano in light of the undisputed facts that Chetlen provided a statement indicating that he saw Silano point a silver-colored gun at [him]; Verespy provided a statement that substantially corroborated Chetlen's statement; Wheeler knew of Silano's threats to shoot Chetlen in the recent past; and Wheeler knew that Silano possessed a gun." Silano v. Wheeler, supra, United States District Court, Docket No. 3:13-CV-00185 (JCH).
Based on the foregoing, the issue of whether Wheeler had probable cause to arrest the plaintiff was actually litigated in, and necessarily determined by, the federal court. The issue was actually litigated because Wheeler raised it as a ground on which to base summary judgment; it was necessarily determined because the federal court based its decision to grant summary judgment in favor of Wheeler on the false arrest and malicious prosecution claims on that ground. The issue the plaintiff seeks to litigate in the present case is identical to the issue that was before the federal court because, in both instances, the plaintiff's claims depend upon whether Wheeler arrested her without probable cause. Accordingly, collateral estoppel bars the relitigation of the issue of probable cause unless some other consideration prevents it from applying. The court will address each of the plaintiff's arguments in turn.
" The burden of showing that the issues are identical and were necessarily decided in the prior action rests with the party seeking to apply issue preclusion . . . In contrast, the burden of showing that the prior action did not afford a full and fair opportunity to litigate the issues rests with . . . the party opposing the application of issue preclusion." (Internal quotation marks omitted.) Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013).
" For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated . . . The doctrine of collateral estoppel is based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Collateral estoppel is grounded in the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citation omitted; emphasis in original; internal quotation marks omitted.) Marques v. Allstate Ins. Co., supra, 140 Conn.App. 335, 339. " Implicit in the determination that a prior judgment has been validly rendered is the notion that it was not procured by fraud or collusion, as new litigation will not be barred if the former judgment was procured through such means." Girolametti v. Michael Horton Associates, Inc., supra, 173 Conn.App. 652.
" In an action in which an issue is litigated and determined, one party may conceal from the other information that would materially affect the outcome of the case . . . [T]he court in the second proceeding may conclude that issue preclusion should not apply because the party sought to be bound did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the first proceeding. Such a refusal to give the first judgment preclusive effect should not occur without a compelling showing of unfairness, nor should it be based simply on a conclusion that the first determination was patently erroneous. But confined within proper limits, discretion to deny preclusive effect to a determination under the circumstances stated is central to the fair administration of [the] preclusion doctrine." (Emphasis added.) 1 Restatement (Second) of Judgments, § 28, comment (j), pp. 283-84 (1982).
In the present case, the plaintiff's arguments concerning the fairness of the federal proceedings are not sufficiently compelling to deny its preclusive effect. First, the plaintiff's contention that the federal court exceeded its jurisdiction by considering the February 8 arrest is unavailing. The plaintiff submits what she contends was the operative complaint; the second count of that complaint alleges malicious prosecution against Wheeler, and refers to both the January 10 and February 8 incidents. Accordingly, the plaintiff's argument concerning the scope of issues properly before the federal court is undone by the fact that the plaintiff raised a claim concerning both incidents to which probable cause was a defense, and when Wheeler moved for judgment on that issue, the federal court considered it. Furthermore, the federal court's decision undercuts the plaintiff's assertion that the federal court unfairly relied upon Wheeler's factual assertions. As referenced earlier, in consideration of the plaintiff's self-represented status, the federal court expressly considered the plaintiff's version of the facts despite her failure to comply with procedural rules. Finally, the plaintiff's accusation that Wheeler wrongly withheld discovery materials is not support by evidence demonstrating that she was deprived of an adequate opportunity to litigate her case in federal court. The plaintiff submits evidence that Wheeler objected to the plaintiff's discovery requests, but also provides his limited responses as well as a supplemental response. That Wheeler raised objections in the course of discovery is not grounds for finding that he engaged in fraud. Consequently, the issue of probable cause was fully and fairly litigated before the federal court.
Next, the court must consider whether the federal court's determination should preclude the present case based upon the plaintiff's arguments concerning the differences between the forums. " The application of the collateral estoppel doctrine may not be proper when the burden of proof or legal standards differ between the first and subsequent actions. See, e.g., Bath Iron Works Corp. v. Director, Office of Workers' Compensation Programs, 125 F.3d 18, 22 (1st Cir. 1997) ('[c]ertainly a difference in the legal standards pertaining to two proceedings may defeat the use of collateral estoppel . . . [b]ut this is so only where the difference undermines the rationale of the doctrine' [citations omitted]); . . . see also Purdy v. Zeldes, 337 F.3d 253, 260 n.7 (2d Cir. 2003) ('Collateral estoppel in this context is a fact intensive inquiry that is best determined on a case-by-case basis. As the [D]istrict [C]ourt stated, the collateral estoppel effect of the prior proceeding may depend on the specific approach taken by the courts addressing the petition in a particular case.' [Internal quotation marks omitted.])." (Citation omitted.) Birnie v. Electric Boat Corp., 288 Conn. 392, 406-07, 953 A.2d 28 (2008). Essentially, " [i]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same." (Internal quotation marks omitted.) B& B Hardware, Inc. v. Hargis Industries, Inc., supra, 135 S.Ct. 1306.
In Birnie, the court did not preclude the second action because there was no adequate basis upon which to compare two potentially different standards. Birnie v. Electric Boat Corp., supra, 288 Conn. 395-96. Similarly, in Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn.App. 99, 30 A.3d 703, cert. granted, 303 Conn. 904, 31 A.3d 1179 (2011) (appeal withdrawn January 27, 2012), cert. granted, 303 Conn. 905, 31 A.3d 1180 (2011) (appeal withdrawn January 26, 2012), the court permitted state claims not actually litigated in a prior federal action to go forward because the different proximate cause standards under the specific federal statute and state common law were readily ascertainable.
In contrast, under both the state and federal constitutions, the issue of whether an officer had probable cause to arrest is subject to the totality of circumstances test; State v. Thomas, 98 Conn.App. 542, 554, 909 A.2d 969 (2006), cert. denied, 281 Conn. 910, 916 A.2d 53 (2007); and " [m]inor variations in the application of what is in essence the same legal standard do not defeat preclusion." (Internal quotation marks omitted.) B& B Hardware, Inc. v. Hargis Industries, Inc., supra, 135 S.Ct. 1307. The question for the purpose of preclusion is not whether the applicable legal standards are identical, but rather, it is what facts were necessarily determined, and the impact, if any, those determinations have in subsequent actions. See Marques v. Allstate Ins. Co., supra, 140 Conn.App. 339-40.
As the federal court noted in the prior proceeding, a second circuit decision respectfully disagreed with a determination reached by our Appellate Court as to whether the facts underlying a search warrant in a particular case established probable cause. Compare State v. Walczyk, 76 Conn.App. 169, 818 A.2d 868 (2003) (arrest warrant for threatening based on statement that police were not taking necessary action to avoid bloodbath lacked probable cause where defendant was not armed and did not refer to firearms) and Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (compelling police assistance by threatening violence established probable cause for search warrant). Although the state and federal court reached different conclusions based upon the specific facts of that case, the legal standard for probable cause remains the same in the federal and state court. See Walczyk v. Rio, supra, 496 F.3d 156, citing State v. James, 261 Conn. 395, 415, 802 A.2d 820 (2002).
For example, in Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006), the court determined that the plaintiff's claim for malicious prosecution was barred by the doctrine of collateral estoppel due to certain factual findings made by the Probate Court. " In order for the collateral estoppel doctrine to apply to preclude the plaintiff's action for malicious prosecution, it was sufficient that the issue of the plaintiff having taken property . . . was litigated at the hearing and decided by the Probate Court. In fact, the Probate Court found that the property had been `wrongfully taken' by the plaintiff. The establishment of that fact in the Probate Court proceeding was fatal to the plaintiff's successful prosecution of a claim for malicious prosecution." Id., 578-79. Accordingly, the court determined that the plaintiff's claim was precluded.
Finally, " [p]reclusion may be withheld when the party against whom it is invoked can avail himself of procedures in the second action that were not available to him in the first action and that may have been significantly influential in determination of the issue." 1 Restatement (Second), supra, § 29, comment (d), p. 293.
In the present case, the plaintiff argues that the federal court's decision should not be given a preclusive effect because she had a heavier burden in federal court due to her failure to comply with procedural rules, because the federal and state court have substantively distinct legal standards on the issue of probable cause, and because the plaintiff was not afforded the opportunity to engage in oral argument in the federal court.
With regard to the plaintiff's first argument, to the extent that the plaintiff appears to argue that she was prejudiced due to her failure to adhere to the federal court's procedural rules, this argument must fail. Not only is the plaintiff's failure not attributable to differing procedural standards between the federal and state court systems, but also, as mentioned earlier, the federal court was solicitous of the plaintiff despite her failure to comply with the rules.
Next, the legal test for probable cause to arrest is indeed the same in both forums. The plaintiff argues that because the federal court considered the evidence indicating that she communicated a threat of violence intended for Chetlen to Wheeler in determining that Wheeler had probable cause to arrest her, the federal court's determination should not have a preclusive effect in state court, where such evidence would not support a finding of probable cause. This argument is unpersuasive. Although it is possible that the federal court and this court might reach different conclusions based on the same evidence, such a possibility does not preclude application of collateral estoppel. As noted above, the same legal test for determining probable cause is used in both forums. Due to the federal court's clear articulation of the legal standard employed and the facts presented to it leading to its determination, this court is able to discern that the facts necessarily determined by the federal court in the prior proceeding established probable cause to arrest with regard to the January 10 incident.
As mentioned earlier, for the January 10 incident, the court relied on the following facts: " Wheeler was aware that Silano possessed a gun, and that she had threatened to kill Chetlen a few months earlier. He was aware of the numerous--and, apparently, escalating--conflicts between them, of Silano's extreme frustration with Chetlen, and of Silano's statement that she would shoot Chetlen unless the police intervened in the way that she desired." Silano v. Wheeler, supra, United States District Court, Docket No. 3:13-CV-00185 (JCH).
With regard to the plaintiff's final argument pertaining to differing standards, the opportunity to engage in oral argument is not the sort of difference that undermines the goals of preclusion. In the federal court action, the plaintiff submitted her arguments in writing and the federal court considered and weighed her contentions. The lack of oral argument before the federal court did not deprive the plaintiff of the opportunity to fully and fairly litigate her claims, and furthermore, although it is possible that oral argument may have had some impact on the resolution of the matter, it is unlikely that such a difference would have had a significant influence in the determination of the issue. See 1 Restatement (Second), supra, § 29, comment (d), p. 293.
Finally, " [a]pplication of the doctrine of collateral estoppel is neither statutorily nor constitutionally mandated. The doctrine, rather, is a judicially created rule of reason that is enforced on public policy grounds . . . [T]he decision whether to apply the doctrine of collateral estoppel in any particular case should be made based upon a consideration of the doctrine's underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close . . . and the competing interest of the plaintiff in the vindication of a just claim . . . These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation." (Internal quotation marks omitted.) Lighthouse Landings, Inc. v. Connecticut Light & Power Co., 300 Conn. 325, 344, 15 A.3d 601 (2011).
In the present case, the plaintiff argues that the goal of promoting judicial economy is not served by barring her claims against Wheeler because litigation will continue against the other defendants. This argument is not persuasive. As an initial matter, the goal expressed is to minimize repetitive litigation; relitigating the issues against Wheeler would indeed be repetitive, and similar claims raised against other defendants are irrelevant. Additionally, the other purposes of preclusion--preventing inconsistent judgments and providing repose--are furthered by the application of collateral estoppel in the present case.
For the foregoing reasons, collateral estoppel bars the plaintiff from relitigating the issue of probable cause as to Wheeler. He is therefore entitled to summary judgment as to the claims for false arrest and malicious prosecution because probable cause to arrest is a complete defense to false arrest; see Russo v. Bridgeport, supra, 479 F.3d 203; as well as malicious prosecution. Brooks v. Sweeney, supra, 299 Conn. 211. Consequently, the court grants summary judgment in favor of Wheeler as to counts one, three, four, and six.
Malicious Prosecution, Against Verespy, Chetlen, and Cooney
Verespy, Chetlen, and Cooney contend that counts seven, eight, and nine--alleging malicious prosecution arising from the February 8 incident against each defendant, respectively--must fail because probable cause is a complete defense to malicious prosecution and collateral estoppel bars the plaintiff from relitigating the issue of probable cause. The plaintiff argues that the issue in the present case is distinct from the issue litigated in the federal court because the federal court was not asked to consider " fabrication of probable cause, " and so the grant of summary judgment in Wheeler's favor by the federal court did not determine whether the statements made by Verespy, Chetlen, and Cooney were made with probable cause.
Verespy argues in the alternative that even if collateral estoppel does not bar the plaintiff from relitigating the issue of probable cause, the federal court's determination that Wheeler had probable cause to arrest the plaintiff necessarily means that Verespy also acted with probable cause due to the fact that " when [Verespy] made his statement to the police, he had as much information about the incident at the Clubhouse as Officer Wheeler had when he made the arrest." To the extent that this argument conflates the probable cause needed for Wheeler to lawfully effectuate the plaintiff's arrest and the probable cause needed for Verespy to provide his statement, its viability depends upon the application of collateral estoppel to Verespy.
As a threshold matter, " the defensive use of collateral estoppel . . . occurs when a defendant in a second action seeks to prevent a plaintiff from relitigating an issue that the plaintiff had previously litigated in another action against the same defendant or a different party . . . It is well established that privity is not required in the context of the defensive use of collateral estoppel . . ." (Citation omitted; internal quotation marks omitted.) Marques v. Allstate Ins. Co., supra, 140 Conn.App. 340-41. Accordingly, that Verespy, Chetlen, and Cooney were not parties to the prior federal proceeding is of no moment.
Next, to reiterate, " [i]n order for collateral estoppel to bar the relitigation of an issue in a later proceeding, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding. To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding." (Internal quotation marks omitted.) Marques v. Allstate Ins. Co., supra, 140 Conn.App. 340.
In the prior proceeding, the federal court determined that Wheeler had probable cause to arrest the plaintiff following the February 8 incident. The question is whether the plaintiff is attempting to relitigate this issue in the present case by bringing claims of malicious prosecution against Verespy, Chetlen, and Cooney.
" An action for malicious prosecution against a private person requires a plaintiff to prove that . . . the defendant acted without probable cause . " (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 210-11. " Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he has reasonable grounds for prosecuting an action . . . Mere conjecture or suspicion is insufficient . . . Moreover, belief alone, no matter how sincere it may be, is not enough, since it must be based on circumstances which make it reasonable . . . Although want of probable cause is negative in character, the burden is [on] the plaintiff to prove affirmatively, by circumstances or otherwise, that the defendant had no reasonable ground for instituting the criminal proceeding . . . The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Id., 211. " Lack of probable cause is the gravamen of the tort." Heussner v. Day, Berry & Howard, LLP, supra, 94 Conn.App. 577.
Furthermore, " a proper concern for private assistance to public law enforcement officers requires immunity from liability for malicious prosecution for the citizen who, in good faith, volunteers false incriminating information . . . [A] complaining witness who knowingly gives false information should not be protected by immunity from liability for malicious prosecution, because false information necessarily interferes with the intelligent exercise of official discretion." (Citation omitted; emphasis added; internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 412, 948 A.2d 1009 (2008).
In the present case, collateral estoppel does not bar the plaintiff's claims because the issue of probable cause was not determined as to these defendants. The federal court determined that Wheeler had probable cause to arrest the plaintiff. That court did not, however, determine whether Verespy, Chetlen, or Cooney had probable cause to make their respective statements, which is a separate issue. Rather, the federal court merely noted that " Wheeler relied on the statements of Chetlen and Verespy in determining that he had probable cause to arrest Silano." After recounting the substance of the statements, the federal court added: " Silano does not dispute that Verespy and Chetlen provided these reports, and she acknowledges that they served as the basis of Wheeler's probable cause determination." The federal court looked to Wheeler's conduct pursuant to the information provided to him, but not to whether Verespy, Chetlen, and Cooney knowingly provided false information. Therefore, whether Verespy, Chetlen, and Cooney had reasonable grounds to make their statements was not actually litigated or necessarily determined by the federal court and the plaintiff is not precluded from litigating this issue.
See, e.g., Winter v. Thibault, Superior Court, judicial district of Litchfield, Docket No. CV-06-500240-S (November 28, 2008, Pickard, J.) (prior proceeding in federal court not preclusive because,
Chetlen and Cooney rely solely on collateral estoppel to challenge the malicious prosecution claims against them. Verespy, however, raises alternative arguments. Verespy argues that he is entitled to judgment as a matter of law because the plaintiff is unable to prove several of the elements necessary to prevail on a claim for malicious prosecution. First, Verespy contends that there is no evidence to suggest that he initiated the criminal proceedings against the plaintiff. Rather, because he merely provided potentially incriminating information and the plaintiff was arrested at her own insistence, the plaintiff's claim must fail. Second, Verespy argues that the plaintiff is unable to show that he acted without probable cause because his statement to the police was a first-hand account of what he observed and so was objectively reasonable under the circumstances. Third, Verespy argues that the plaintiff cannot prove that he acted with malice because there is no evidence of an ulterior motive for his communications with the police. Finally, Verespy contends that because his statement to the police was not the cause of the plaintiff's arrest he is entitled to summary judgment. In support of these arguments, Verespy submits the following exhibits: Chetlen's statement to the Trumbull Police Department concerning the February 8 incident; the Incident Report signed by Wheeler concerning the February 8 incident; and excerpts from the deposition of Officer Gregory Lee. The plaintiff argues, inter alia, that Verespy is liable because he knowingly aided in her malicious prosecution by providing a false statement.
" [O]ne important exception exists . . . to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition . . . On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Squeo v. Norwalk Hosp. Ass'n, 316 Conn. 558, 594-95, 113 A.3d 932 (2015).
" 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 (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." (Internal quotation marks omitted.) Brooks v. Sweeney, supra, 299 Conn. 210-11.
With regard to the first element, " [a] private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer's decision to commence the prosecution . . . But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer. In such a case, if the defendant has made a full and truthful disclosure and has left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution." (Internal quotation marks omitted.) Lefebvre v. Zarka, 106 Conn.App. 30, 36, 940 A.2d 911 (2008).
In Lefebvre, " [t]he defendants supported their motions for summary judgment by providing statements given to the police by the plaintiff and the defendants. In addition, the defendants offered excerpts from [the officer's] deposition . . . In his deposition, [the officer] testified that when responding to a complaint, he always asks a complainant if he or she would like the matter investigated and if the complainant would be willing to make a statement. [The officer] testified that, in response to this question, [one of the defendants] stated that she would be willing to give a statement but that she did not make a specific request for any action. [The officer] also testified that his decision to seek the charges against the plaintiff was based largely on the plaintiff's statements regarding the incident." Lefebvre v. Zarka, supra, 106 Conn.App. 37. The court went on to note that " [a]s movants for summary judgment, the defendants produced evidence to show that they did not initiate or procure the institution of the criminal proceedings. The plaintiff did not contest this evidence, nor did he produce any evidence to the contrary. The one document that the plaintiff supplied in support of his opposition to the motion for summary judgment, the arrest warrant application, did not contain any facts regarding whether the defendants had applied any pressure on the public officials to prosecute the plaintiff or whether anything they had done was the determining factor in the officials' decision to commence prosecution . . . The plaintiff merely asserted in his brief that the defendants had made false statements but offered no admissible evidence in support of that assertion and provided no counteraffidavits as required . . . Thus, the plaintiff has not met his burden as the party opposing summary judgment, and we conclude that the court properly rendered summary judgment." (Citations omitted.) Id., 39.
The court in Nodoushani v. Southern Connecticut State University, 152 Conn.App. 84, 95 A.3d 1248 (2014), considered the element of probable cause. The court determined that " the defendants submitted ample documentation in support of their motion for summary judgment, thereby demonstrating that any suspicions with respect to the fraudulent nature of the plaintiff's reimbursement request were well-founded and based on a good faith investigation conducted by Bhalla [one of the defendants]. The defendants submitted a copy of Bhalla's affidavit, which details the steps that he took to investigate the authenticity of the plaintiff's reimbursement request. They additionally provided the documents that Bhalla obtained pursuant to his investigation . . . The defendants also submitted a copy of the plaintiff's sworn deposition testimony . . . All of these documents demonstrate that any communications that the defendants had with the university police regarding the plaintiff's reimbursement request were not made unlawfully or without probable cause. To the contrary, the defendants' allegations were supported by ample documentation that would be admissible at trial--including the plaintiff's own sworn admissions." Id., 94. In contrast, the court noted, " [t]he only evidence that the plaintiff submitted in opposition to the defendants' motion for summary judgment was his deposition testimony, consisting of bare conclusory assertions that the defendants directed the police to arrest him on the basis of false allegations." Id.
Finally, in Karwowski v. Fardy, 118 Conn.App. 480, 984 A.2d 776 (2009), the court considered whether summary judgment was properly granted to the defendants on the basis that the defendants had not acted with malice. The Appellate Court stated that " [i]n this case, the [trial] court found that the plaintiff had failed to rebut the defendants' proof, submitted with their motion for summary judgment, that they had not acted without probable cause and that they had not acted with malice in turning over the motive document to the authorities." Id., 487. In support of their motion for summary judgment, the defendants had submitted, inter alia, a letter from the relevant authorities requesting the defendants' cooperation. Karwowski v. Fardy, Superior Court, judicial district of New Britain, Docket No. CV-03-0522489-S (July 25, 2008, Pittman, J.). The Appellate Court's analysis focused " on whether the plaintiff demonstrated the existence of an issue of disputed material fact by rebutting the defendants' proof that they had no malicious intent in turning over the motive document to the authorities but, merely, were complying with the law." Karwowski v. Fardy, supra, 118 Conn.App. 488. Ultimately, the court determined that the plaintiff's bare assertions that the defendants acted with malice were insufficient to deprive the defendants of judgment as a matter of law. Id., 489-90.
In the present case, Verespy contends that the plaintiff is unable to demonstrate three of the elements necessary to support a cause of action for malicious prosecution. Although Verespy is correct that the plaintiff must prove initiation of criminal proceedings, a lack of probable cause, and malice to succeed on this count, he incorrectly shifts the burden to the plaintiff at this stage of the proceedings without first demonstrating that there is no genuine dispute of material fact as to each of these elements.
First, Verespy relies on Lefebvre to assert that because he provided a written statement of events that he believed to be true, the plaintiff is unable to prove that he initiated or procured the criminal proceedings against her. In support, Verespy submits the Trumbull Police Department's incident report from February 8, 2011, which includes only the following concerning Verespy: " Officer Lee met with William Verespy who gave a [s]worn written statement. William stated that on 02-08-2011 at about 1850 hours, he was walking out of the Pinewood Lake Association Club House, lower level and was carrying a cushion to Chetlen's car. He said that he was a few feet behind Chetlen, when he heard Chetlen say 'she has a gun' and observed a person in a dark car with something in their hand. William said that he ran back to the club house." Unlike the defendants in Lefebvre, Verespy has not provided a deposition from either officer (Wheeler or Lee) indicating that Verespy did not specifically request any particular action; although Verespy does offer an excerpt from the deposition of Officer Lee, Lee's testimony merely reiterates that Verespy never said that he saw a gun. Moreover, although the incident report does indicate that the plaintiff told the officers to arrest her, unlike in Lefebvre, there is no indication from the evidence submitted by Verespy as to whether the decision to seek charges against the plaintiff was based on this statement. In the absence of evidentiary support for Verespy's assertion that he did not initiate the criminal proceedings, the burden does not shift to the plaintiff.
Verespy's reliance on Nodoushani to demonstrate that he acted with probable cause is similarly misplaced. Verespy argues that he had probable cause to make his statement because the statement was not based upon conjecture or speculation, but rather, was based upon what Verespy observed, first-hand. To support this argument, Verespy relies on the incident report described previously, as well as the statement Chetlen provided to the police concerning the incident on February 8. Again, Verespy lacks the evidentiary support needed to shift the burden to the plaintiff. In Nodoushani, the defendants' documentation permitted the court to determine that the defendants' statements were the result of a good-faith investigation and that the plaintiff had corroborated some of the defendants' statements. In contrast, the incident report in the present case does no more than recount Verespy's statement without weighing in one direction or another as to its credibility or veracity. Without more, Verespy has not demonstrated that there is no genuine issue as to any material fact on the matter of probable cause.
To the extent that Verespy offers Chetlen's statement to the police as corroborative evidence, this too is unavailing. First, Chetlen's written statement is inadmissible hearsay, as Verespy offers this out of court statement for the truth of the matter asserted--the situation the two encountered outside the clubhouse--and the statement does not fall under any exception to hearsay. Chetlen's statement therefore cannot support Verespy's motion for summary judgment.
Verespy's argument concerning malice fails as well. Although he contends that the plaintiff has not proven the element of malice, the evidence Verespy submits falls short of the standard required for summary judgment. Verespy's assertion that he had no motive to dissemble is not supported by the evidence submitted. Unlike the defendants in Karwowski, Verespy does not offer evidence of a benign motive. Rather, the documentation recounting Verespy's words provides no insight into his reasons for offering such a statement. Verespy's bald assertion that he lacked malice is insufficient to establish the absence of a genuine issue of material fact.
Finally, Verespy's argument that there is no evidence to suggest that his statement to the police caused the plaintiff's arrest is unavailing. As an initial matter, factual causation is not an element of malicious prosecution, and accordingly, the plaintiff is not obligated to prove that but for Verespy's statement she would not have been arrested; in other words, the plaintiff is not required to show that Verespy's statement was the sole cause of her arrest. Moreover, Verespy's determination to cast his statement as functionally innocuous mischaracterizes the role it may have played in the series of events leading to the plaintiff's arrest. Verespy offers the incident report and Officer Lee's deposition testimony to establish that at no time did he state that he saw the plaintiff with a gun. The significance of Verespy's statement, however, is not whether it directly incriminated the plaintiff, but rather the extent to which it corroborated Chetlen's account of the incident. As such, a genuine issue of material fact remains as to whether Verespy's statement resulted in the plaintiff's arrest.
Verespy's causation argument overlaps somewhat with his assertion that he did not initiate the criminal proceedings against the plaintiff. To the extent that he raises causation as a distinct argument, however, the court considers this ground separately. ---------
For the foregoing reasons, the claims for malicious prosecution against Verespy, Chetlen, and Cooney remain viable at this stage of the proceedings and summary judgment is denied as to counts seven, eight, and nine.
Civil Conspiracy, Against all the Defendants
Count ten states a claim for civil conspiracy arising from the February 8 incident against all the defendants. Each defendant argues that without an underlying tort, this claim must fail. In response, the plaintiff contends that she is not required to have an actionable tort claim against each alleged co-conspirator.
" The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff . . . There is, however, no independent claim of civil conspiracy . . . Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort." (Citation omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 635-36, 894 A.2d 240 (2006). " [T]he purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing. Implicit in this purpose, and in the principle that there must be an underlying tort for the viability of a civil conspiracy claim, is the notion that the coconspirator be liable for the damages flowing from the underlying tortious conduct to which the coconspirator agreed . . . The purpose of civil liability is to allocate the loss between persons who may be in some legal sense responsible for that loss." Id., 636.
In the present case, the court has disposed of the underlying tort claims against Wheeler, though the claims for malicious prosecution against Verespy, Chetlen, and Cooney remain. Wheeler therefore cannot be liable for the damages resulting from the underlying tortious conduct alleged by the plaintiff. Although the plaintiff argues that the nature of conspiracy is such that each conspirator is liable for the acts of all other co-conspirators, this argument wrongly presumes that Wheeler is appropriately designated a co-conspirator in the absence of an underlying tort. The tort claims directed against Verespy, Chetlen, and Cooney do not create liability on behalf of Wheeler merely because the plaintiff alleges that all the defendants conspired against her. Accordingly, Wheeler is entitled to judgment as a matter of law as to count ten.
Given that the claims for malicious prosecution remain against Verespy, Chetlen, and Cooney, their reliance upon the argument that no underlying tort anchors the civil conspiracy claim is unavailing at this stage of the proceedings. Although Verespy and Cooney do not raise any other arguments, Chetlen does, and his alternative grounds for summary judgment will be addressed.
Chetlen raises several arguments in opposition to the civil conspiracy claim against him. Specifically, Chetlen argues that the plaintiff's revised complaint sets forth new and different allegations that are barred by the statute of limitations. The new allegations include that Chetlen made false statements about the plaintiff in June of 2011, and that he committed perjury at her criminal trial in May of 2012. Chetlen further asserts that these new allegations do not relate back to the core allegation of the original complaint, which remains in the revised complaint: that Chetlen gave a false statement to the police causing the plaintiff's arrest in February of 2011. Additionally, Chetlen contends that the plaintiff's allegations concerning conduct undertaken in the course of litigating the present case do not support a claim for civil conspiracy and that damages claimed in relation to the plaintiff's criminal case are unrelated to such conduct. Finally, in reference to the plaintiff's allegation that Chetlen committed perjury at her criminal trial, Chetlen argues that testimony in judicial proceedings is privileged and cannot form the basis of a conspiracy.
" In Connecticut, [t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment . . . [T]he majority rule . . . is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim." (Internal quotation marks omitted.) Rozbicki v. Sconyers, Superior Court, judicial district of Litchfield, Docket No. CV-15-6012417-S (June 14, 2017, Pickard, J.); see also Szatkowski v. Davidson, Superior Court, judicial district of Fairfield, Docket No. CV-10-6012844-S (March 20, 2012, Bellis, J.) (following majority rule).
In the present case, Chetlen's arguments address only some of the allegations leveled against him in count ten; Chetlen's arguments do not address the plaintiff's allegation that he made a false statement to the police in February of 2011. Accordingly, even if the court were to find merit in Chetlen's contentions, the ruling would not dispose of the entire claim against him. In conformity with the majority rule, Chetlen is not entitled to an entry of partial summary judgment on this count. Consequently, as to count ten, summary judgment is denied for Chetlen.
CONCLUSION
For the foregoing reasons, the court grants summary judgment as to Wheeler on counts one through six, as well as count ten. The court denies summary judgment as to Verespy, Chetlen, and Cooney on counts seven, eight, and nine, respectively. The court also denies summary judgment as to Verespy, Chetlen, and Cooney on count ten.
inter alia, " the fact that the arresting officers had probable cause to arrest the plaintiff based upon the statements of the defendant does not show that the defendant had probable cause to make the statements").
Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007). Moreover, even if Chetlen's statement were admissible, it does not establish the absence of a genuine issue of material fact concerning whether Verespy's statement was truthful. Although the fact that Chelten and Verespy offer similar accounts could indicate that both defendants were present during the incident and shared similar observations, it does not eliminate other possibilities such as collusion.