Opinion
FSTCV146023210S
03-28-2016
Brody Tice v. Jennifer Bish
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO REARGUE/RECONSIDER (#134.00)
Kenneth B. Povodator, Judge.
Nature of the Proceeding
This is a case that has its origins in a marital dispute; the marriage has ended but this dispute goes on. The undisputed factual history leading to this proceeding can be pieced together from the submissions of the parties. An overview is recited by the defendant on the first two pages of his memorandum in support of his motion for summary judgment (#122.00), citing the deposition of the plaintiff as the source:
[T]he Defendants, Bish and Allen, had an affair while the Defendant Jennifer Bish was married to the Plaintiff. The Plaintiff discovered the affair while in Massachusetts with Ms. Bish to attend a marriage counseling session when he saw a text message on Ms. Bish's phone from Mr. Allen. A struggle over the phone ensued between Ms. Bish and the Plaintiff and he wound up arrested by the Bourne Massachusetts Police on a domestic abuse charge which he claims was brought by Ms. Bish without probable cause.
Continuing with more details, the court relies on a modestly-edited version of the recitation of facts by the plaintiff, in his objection to the co-defendant's motion for summary judgment (#129.00):
The plaintiff was arrested on July 23, 2011, based on a criminal complaint filed by co-defendant Bish. A criminal complaint was issued July 25, 2011. The charges brought against the plaintiff were dismissed on August 25, 2011. Shortly thereafter, on or about September 13, 2011, the defendant threatened the plaintiff with a lawsuit as well as criminal prosecution, for purposes of harassing him. The defendant then attempted to have the charges reopened by contacting (hiring) counsel in Massachusetts on or about September 29, 2011, in connection with proceedings relating to possible reopening of the prosecution. (For purposes of this motion, the court must assume that the defendant, through counsel, took an advocacy-type position, urging the reopening of the charges.) The Commonwealth of Massachusetts refused to reopen the case and the Defendant was no longer subject to any court action as of January 11, 2012.
In the current proceeding, the plaintiff has sued both defendants claiming malicious prosecution, intentional infliction of emotional distress, and abuse of process. During initial argument on the motions, the court expressed its grave reservations as to whether abuse of process was applicable, absent any " process" that might have been abused. The plaintiff seems to have abandoned the abuse of process claims, and therefore the court will only focus on the remaining two claims. Both defendants filed motions for summary judgment, identifying distinct (non-overlapping) grounds for seeking summary judgment. The codefendant Bish claimed that the action was barred by the statute of limitations and by collateral estoppel/res judicata. The court rejected both of those claims, as to each of the counts, on the merits.
But see footnote 6, below.
Defendant Allen, however, filed a motion that claimed that the facts could not support a claim of intentional infliction of emotional distress or malicious prosecution because, inter alia, the defendant had not engaged in conduct meeting the necessary thresholds for either or both causes of action, as established by the undisputed facts. The court initially declined to address this motion on the merits, because it involved the merits of a two-state fact pattern and it was not clear to the court as to the proper choice of law to be applied (and if Massachusetts law did apply, how that law might differ from the law in Connecticut). This was of special concern in the context of summary judgment when there is required to be essentially a certainty of outcome. The prosecution occurred in Massachusetts, and the efforts to reopen the prosecution also occurred in Massachusetts (at least through the conduct of an agent of the defendant, i.e his attorney) such that the court could not ignore the possibility that Massachusetts law might be different and be required to be applied.
In connection with the motion to reargue/reconsider, the defendant has cited authority for the proposition that in the absence of any claim by any party that the law of some other state is applicable, the court should consider (should have considered) Connecticut law to be applicable. Certainty as to material facts is required for summary judgment; the court is not comfortable with the notion that less certainty is required as to applicable legal principles, since the outcome is supposed to be measured by whether the moving party is entitled to judgment, as a matter of law.
The defendant filed a motion to reargue/reconsider, claiming that in the absence of either party raising a " choice of law" issue, the court was bound to apply (assume applicability of) Connecticut law and that in any event, the law in Connecticut and the law in Massachusetts were essentially identical such that there would be no difference in outcome regardless of which state's law the court deemed applicable. The plaintiff filed an objection, principally claiming that the defendant had not met the threshold for a motion to reargue.
The court believes that the plaintiff has met the standards for a motion to reargue, in bringing to the court's attention legal principles that the court had identified as being in need of resolution (in issue)-and to the extent that a motion to reargue and/or a motion for reconsideration relies on the discretion of the court, the court felt it to be appropriate to do so.
Although initially objecting to any further consideration of the issues by the court, the plaintiff eventually conceded that there would be no difference in outcome, assuming Massachusetts law rather than Connecticut law were to be applicable. The plaintiff also filed a supplemental memorandum, identifying cases that he claimed supported the viability of his claims directed to defendant Allen. The court heard substantive re-argument relating to the merits of defendant Allen's motion for summary judgment on March 21, 2016.
Discussion
With respect to the claim of malicious prosecution, during argument, the court pressed the plaintiff on the question of whether an attempt to reopen a prosecution, without any prosecution ever actually occurring as a result of the defendant's efforts, could be a basis for a claim of malicious prosecution. The defendant conceded that he had no specific authority on that point.
In his brief, the plaintiff cited the Restatement (Second) of Torts in support of portions of his argument; the court reviewed that treatise, and in particular, the introductory sections relating to foundational issues for claims of malicious prosecution. The Restatement 's treatment of the predicates for a valid claim confirmed the court's concerns. In the comments relating to the initial section, the treatise states:
The making of the charge is not actionable, however, under the rule stated in this Section unless a prosecution actually results from it, or, in other words, unless criminal proceedings are instituted against the accused by the tribunal or official before whom the charge is made in one of the ways described in § 654. If no such action results, the fact that a criminal charge has been made and considered by an agency of law enforcement gives no cause of action under the rule stated in this section, since the accused has not been subjected to prosecution as the result of the charge. Restatement (Second) of Torts § 653 (1977).
Section 654 proceeds to identify what constitutes the commencement of a prosecution:
(2) Criminal proceedings are instituted when
(a) process is issued for the purpose of bringing the person accused of a criminal offense before an official or tribunal whose function is to determine whether he is guilty of the offense charged, or whether he shall be held for later determination of his guilt or innocence; or
(b) without the issuance of process an indictment is returned or an information filed against him; or
(c) he is lawfully arrested on a criminal charge.
The commentary to this section confirms the inadequacy of an unsuccessful effort to initiate a prosecution:
c. Issuance of process . Criminal proceedings are usually instituted by the issuance of some form of process, generally a warrant for arrest, the purpose of which is to bring the accused before a magistrate in order for him to determine whether the accused shall be bound over for further action by a grand jury or for trial by a court. The magistrate may, however, have a summary jurisdiction so that he may at the hearing dispose of the case by finding the accused either innocent or guilty. In either case, the issuance of the process constitutes the institution of the criminal proceedings. Restatement (Second) of Torts § 654 (1977).
The unsuccessful participation in a proceeding intended to determine whether the prosecution should be reopened--even if characterized as advocacy for the reopening of the prosecution--fails to meet the threshold of the required existence of a prosecution. The Restatement distinguishes between actual malicious prosecution and something that might be characterized as an attempt at malicious prosecution. The court has been presented with no authority, and has found none, suggesting that an unsuccessful attempt is to be treated as if it were a successful attempt to initiate (or re-initiate) prosecution. The plaintiff has presented no analysis demonstrating why he believes that there should be such an extension of the concept of malicious prosecution; Lawrence v. O& G Industries, Inc., 319 Conn. 641, 126 A.3d 569 (2015).
Absent a prosecution in which this defendant was involved as an instigating or procuring party, there can be no malicious prosecution liability for this defendant. Again, the plaintiff has identified no authority for a successful claim of malicious prosecution based on what, at most, was an unsuccessful attempt at instigating a prosecution. The motion for summary judgment is granted with respect to the claim of malicious prosecution.
With respect to the claim of intentional infliction of emotional distress, our appellate courts have set a high and sometimes seemingly insurmountable hurdle (see, e.g., Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003); Di Teresi v. Stamford Health Sys., 142 Conn.App. 72, 86-89, 63 A.3d 1011 (2013)), and the parties agree that the Massachusetts courts have adopted a similar approach. The plaintiff has cited a number of cases that he contends support his contention that the conduct of this defendant was sufficiently egregious (outrageous) as to make liability under this theory a material issue of fact for determination by a factfinder (jury), i.e. enough to get past the gatekeeper function served by the court in this regard. None of the cases cited is persuasive.
The plaintiff relies upon a Massachusetts appellate-level decision, Kelso v. Kelso, 86 Mass.App.Ct. 226, 15 N.E.3d 767 (Mass.App.Ct. 2014), but that case has no value/weight with respect to the issues before the court. To be sure, in Kelso there had been a claim of intentional infliction of emotional distress, but the court never addressed the actual or possible merits of that claim. Rather, the lower court had decided the case based on collateral estoppel/res judicata (apparently, similar to the unsuccessful efforts of the co-defendant in this case) and the court reversed the lower court decision on the basis that res judicata/collateral estoppel was inapplicable. This court could not find anything in that decision suggesting an evaluation of the merits, possible merits, or legal sufficiency of the intentional infliction of emotional distress claim, other than that it had been improper to resolve the dispute in the manner of the lower court (collateral estoppel/res judicata).
The plaintiff also relies upon a Massachusetts trial court decision, Harris v. Harvin, No. 012292, 2005 WL 2461876, at *2 (Mass.Super. 2005). In that case, however, not only was there an actual arrest but there actually had been an incarceration for a period of several days, leaving custody and care of the plaintiff's children a matter of grave concern:
Finally, in connection with the plaintiff's claim for intentional infliction of emotional distress, this court recognizes that " the bar [has been] set sufficiently high so that only substantial claims of emotional harm [can] overcome it." Quinn v. Walsh, 49 Mass.App.Ct. 696, 706, 732 N.E.2d 330 (2000). In the instant case, the plaintiff has more than cleared that bar. The defendant intended to, and did, inflict emotional distress on the plaintiff; her conduct in falsifying the charges was outrageous and extreme, beyond all possible bounds of decency, and utterly intolerable in a civilized community; her actions were the cause of the plaintiff's distress; and no reasonable person should be expected to endure the severe degree of distress experienced by the plaintiff. See Agis v. Howard Johnson Co., 371 Mass. 140, 144-45, 355 N.E.2d 315 (1976). The plaintiff in the instant case was held for four days over a long holiday weekend on charges that he did not begin to understand He had never been in jail before and he was understandably traumatized by the event. He was extremely worried about the care and welfare of his children of whom he was the sole caretaker at the time. Harris v. Harvin, No. 012292, 2005 WL 2461876, at *2 (Mass.Super. 2005).
Not to belabor the point, the court believes there is a legally-significant chasm between successfully-maliciously instituting a prosecution, and a mere (unsuccessful) attempt to do so, and that carries over into the intentional infliction of emotional distress claim. At most, the conduct of this defendant constituted an unsuccessful attempt and, as discussed in the earlier portion of this decision, that distinction is substantial enough to require differentiation between a potentially viable claim of malicious prosecution and a claim of malicious prosecution that lacks the essential element of a prosecution.
The plaintiff also cites and relies upon a Connecticut trial court decision, Vazquez v. Loza-Vega, Judicial District of Stamford/Norwalk at Stamford, No. CV126013551, 2014 WL 783820 (January 28, 2014). The court's discussion used the existence or non-existence of an arrest as something of a benchmark for outrageousness:
The present case is distinguishable from many of the cases involving false statements regarding drug use because of the ongoing child custody case. The child custody case makes the present case analogous to a case where the accused was actually arrested, rather than one where he was not arrested. [Fabricated evidence] that a parent leaves drugs lying around the house would certainly damage that parent's case in the child custody proceedings. Having a trusted member of the household create false evidence and then provide it to attorneys who would likely use it in the custody case does appear to be outrageous behavior. In addition if, as the plaintiff contends, the defendant staged a second incident, the fight with the plaintiff's fiancée, that would further increase the emotional distress caused. Finally, the alleged relationship could heighten the sense of betrayal felt by the plaintiff. 2014 WL 783820, at *8.
Thus, the court deemed the proceedings actually pending in court as sufficiently similar to an actual prosecution that in a context not inherently requiring a prosecution, it could be deemed a surrogate. By contrast, in terms of this defendant (i.e. not his then-wife but his then-wife's boyfriend), this case does not involve fabricated evidence, does not involve betrayal by someone who had been trusted, does not involve staging of a subsequent incident, and does not involve an actually-pending proceeding, all of the indicia of outrageousness that were present in Vazquez .
The plaintiff also cites and relies upon Jezierny v. Brown, No. CV04084755S, 2005 WL 2496525, another Connecticut trial court decision, which involved an actual prosecution (and inferentially fabricated complaints of misconduct):
Here, the plaintiff alleges that the defendant's extreme and outrageous conduct includes: (1) making false complaints to the police to the effect that the plaintiff was continuously calling his house to harass him; (2) claiming these calls were made at all times of the day and on many different days when the plaintiff never made these calls; and (3) requesting the police arrest the plaintiff. As a result of this conduct, the plaintiff alleges that she was required to appear in court several times and to defend herself in a trial before the court in which she was found not guilty. The court finds that to bring the weight of a criminal prosecution on the shoulders of the plaintiff and to use the criminal justice system to achieve a vindictive goal rises to the level of extreme and outrageous conduct by the defendant. Thus, count three is legally sufficient to state a claim for intentional infliction of emotional distress. Jezierny v. Brown, No CV04084755S, 2005 WL 2496525, at *3.
Again, here there was no prosecution resulting from this defendant's conduct and this defendant is not accused of presenting claimed new (and especially false) assertions of improper conduct-his efforts, as alleged, were focused on reconsideration/reinstitution of previously-dropped charges. At most, he relied on previously-asserted misconduct, rather than new (fabricated) claims of misconduct.
Not only are the plaintiff's cases distinguishable as discussed; the consistent quality of that distinguishability highlights the critical factor of actual prosecution (or at least presentation of false/fabricated accusations in a first-hand sense), in order to exceed the threshold for a possibly-viable claim of intentional infliction of emotional distress in situations such as this. None of that is present here--there is no suggestion of new claimed misconduct (especially, fabricated) having been presented, and the use of an attorney to act for the defendant lends at least an air of independent judgment to the effort to reopen the prosecution.
The court must also note the significance and relevance of the concept of an absolute litigation privilege/immunity; see, e.g., Simms v. Seaman, 308 Conn. 523, 69 A.3d 880 (2013). An application submitted to a legal tribunal is entitled to immunity unless it crosses the line of malicious prosecution or abuse of process or some similar recognized cause of action intended to address abuses in the legal arena. Accordingly, the court must be especially careful when an application to a tribunal (and it does not need to be a court, it can be an administrative body, Petyan v. Ellis, 200 Conn. 243, 246-53, 510 A.2d 1337 (1986)) is made part of the foundation of a claim such as intentional infliction of emotional distress. Having concluded that the attempt to re-instate the prosecution does not constitute malicious prosecution, the court is uncertain whether it can be given any weight (except perhaps for context or intent)--and it certainly cannot be given the near determinative weight that the plaintiff seems to give it.
Absolute litigation privilege has been determined to implicate subject matter jurisdiction, Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358 (2014), and therefore is not waivable. It is not dispositive of this issue as the relevant conduct for the privilege is not the only conduct forming the basis for the claim of intentional infliction of emotional distress. The privileged or immunized quality of the conduct does impact the extent that the court can consider the conduct as a, or the, principal basis for a claim of intentional infliction of emotional distress. Therefore, although it is not a basis for dismissal, it must be considered for purposes of this motion. (At a minimum, the public policy implications must be considered.)
Absent the effort to re-instate prosecution, the only conduct in issue is the incident with threats being made, and aside from the absence of sufficient egregiousness in such conduct, the court also is required to be sensitive to the need to recognize the distinction between actionable conduct and the content of communications. See, e.g., Gleason v. Smolinski, 319 Conn. 394, 125 A.3d 920 (2015); State v. Nowacki, 155 Conn.App. 758, 780-84, 111 A.3d 911 (2015). It is far from clear how or why the plaintiff might take seriously a threat of criminal prosecution coming from someone not involved in the actual underlying incident, i.e. not the " victim" (is it a true threat or a vernacular threat?), and threats of civil litigation, however unpleasant, are far from the necessary level of " outrageousness." (This is without consideration of the fact that the plaintiff claims to have had legal training, which might affect the presumed credibility of any such threats to someone not so trained.) Given the high bar set by appellate decisions for sufficiently-outrageous conduct, these facts cannot pass muster.
The affidavit submitted in opposition to summary judgment states " On or about September 13, 2011 the Defendant Allen threatened me with a civil lawsuit and with criminal charges." The complaint states: " On or about September 13, 2011, the Defendant Allen threatened the Plaintiff with a civil lawsuit for purposes of harassing him financially and psychologically as well as threatening criminal prosecution for purposes of adversely affecting his ability to practice law."
Accordingly, the court is satisfied that based on the undisputed facts, the defendant is entitled to judgment, as a matter of law, with respect to the claim of intentional infliction of emotional distress; the motion for summary judgment is granted as to that claim as well.
Conclusion
The alleged facts describe a situation that certainly is sympathetic. On a trip intended to engage in marriage counseling, the plaintiff discovered evidence that he believed to be proof of his wife's infidelity. As a result of his alleged reaction to learning that information, he was arrested and charged with criminal conduct. After the charges were dropped, his soon-to-be-ex-wife and her new boyfriend attempted to have the charges reinstated. The plaintiff can hardly be faulted for feeling that everyone was trying to get him, and can hardly be faulted for wanting to obtain some form of satisfaction or recourse.
While the goal of the tort system may be to provide remedies to those who have been wronged, appellate-level decisions repeatedly have stated that not every wrong is remediable through the tort system. " While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." (Internal quotation marks and citation, omitted.) Di Teresi, supra, 142 Conn.App. 80. The plaintiff has not asked the court to recognize a new cause of action, Lawrence, supra, and the facts do not fit the existing causes of action that have been invoked.
To the extent that the plaintiff repeatedly has pointed to the threats made by the defendant and his subsequent apologies, they don't change the inadequacies identified. An apology--assuming it to be entitled to any probative weight in this context--has no bearing on whether there was a prosecution and no bearing on whether the conduct was sufficiently outrageous. The same can be said of the threats; even if credible, the conduct was not sufficiently outrageous. (If the existence of malicious intent were the focus of attention, the threats might be of greater significance.)
The court is concerned about the possible implications if the plaintiff were allowed to proceed based on an unsuccessful attempt to reinstate prosecution. How is that to be distinguished from any other unsuccessful application to a court or the police for institution of a prosecution? Or more narrowly, is there to be a " one bite at the apple" rule, such that an effort to supplement or clarify an earlier unsuccessful application for an arrest is or might be actionable if there is no resulting prosecution? Presumptively actionable?
The parties have agreed that the court should apply Connecticut law. The arrest and efforts to reinstate the prosecution were in accordance with Massachusetts law. The court does not know whether Massachusetts has adopted a protective (pro-active) " public policy" similar to that in Connecticut, post Tracey Thurman. See, e.g., repeated references to the history of Connecticut's domestic violence laws in State v. Fernando A., 294 Conn. 1, 981 A.2d 427 (2009). Absent such a legal framework, the need for repeated efforts to initiate or re-instate a prosecution might have to be viewed in a different light (analogous to the situation in Connecticut prior to the legislative response to the consequences suffered by Ms Thurman resulting from the more erratic if not often seemingly cavalier attitude to domestic violence incidents then prevailing).
Finally, the court is sensitive to the fact that this decision could be perceived as based on legal insufficiency, thereby potentially invoking Larobina v. McDonald, 274 Conn. 394, 876 A.2d 522 (2005), especially with respect to the malicious prosecution claim. Arguably, it is a matter of perspective or formulation of the issue--is it that there is no evidence of the required element of a prosecution, or that an unsuccessful attempt at initiating (re-initiating) a prosecution does not state a cognizable cause of action for malicious prosecution? Aside from the absence of any invocation of Larobina by the plaintiff, this is not a matter that is or could be amenable to cure by amended pleading. Precisely because of the alternate formulations, the proof is just not available, however the plaintiff may frame the issue or attempt to replead. The court does not believe that Larobina is a consideration at this stage.
For all of these reasons, then, the motion for summary judgment, after reargument (reconsideration), is granted as to the first and second counts of the plaintiff's complaint, asserting claims of malicious prosecution and intentional infliction of emotional distress, as directed to defendant Allen.
As recently as the argument on March 21, 2016, the plaintiff again indicated that he was not pursuing a claim of abuse of process--but the proposed amended complaint filed less than two weeks earlier contains a third count asserting a claim of abuse of process. (#139.00.) To the extent that it has not been abandoned (and is not formally withdrawn), the analysis relating to the malicious prosecution claim is even more applicable, because this defendant was not involved in generation of any formal charges or anything else that might remotely be characterized as " process." (As discussed in one of the excerpts quoted from the Restatement, above, there was nothing that might constitute criminal process.) Therefore, if the court has misinterpreted the plaintiff's intentions relating to his having abandoned the claim of abuse of process, the motion is granted as to that claim, as well. (Defendant Allen has filed an objection to that proposed amendment (#143.00), such that the original complaint remains the operative complaint for purposes of this decision.)