Jeffrey Frohn v. John Ring et al. (2014)

MEMORANDUM OF DECISION

This action, in which the plaintiff, Jeffrey Frohn, alleges that the defendants conspired to have him arrested on a false criminal charge of not having a home improvement contractor's license, is before the court on the defendant John Ring's motion summary judgment (# 138).   The plaintiff filed an opposition thereto (# 143).   The motion appeared on the short calendar on January 13, 2014, at which the court was requested to adjudicate the motion on the papers submitted.

I

Background

In his amended complaint, dated February 2, 2013 (# 128) (complaint), the plaintiff alleges that he was a licensed home improvement contractor and entered into a contract with defendant Frances Morris to perform home improvement services to property located in Sharon, Connecticut.   He alleges that he performed pursuant to the contract and Morris refused to pay for his services.   In paragraph 3, he alleges that Ring was employed by the Department of Public Safety, Division of the State Police, and, at all relevant times, was acting under the color of law.

In paragraph 7, the plaintiff alleges that, prior to and on or about May 28, 2009, the defendants conspired to have him arrested on a false criminal charge, not having a home improvement contractor's license, with said conduct continuing until on or about June 9, 2009, when the charge was dismissed.   Therein, he alleges that “[b]oth defendants knew the criminal allegation was false, specifically that the plaintiff was properly licensed, with said actions being taken as a way for defendant Morris to avoid paying the plaintiff what he was owed.”

The plaintiff also alleges that Ring had the ability to, and was required, pursuant to performing his official function, to determine if the plaintiff held the proper license, yet failed to do so.   See complaint, ¶ 11.   He alleges that he was arrested after Ring knowingly signed an arrest warrant affidavit containing information which Ring knew was false.   See complaint, ¶ 12.   After appearing in court, at which the plaintiff provided the prosecuting attorney with information showing that he was properly licensed, all charges against the plaintiff were dismissed.   See complaint, ¶¶ 13, 15.

In paragraph 16, he alleges that “[t]he allegation made against the plaintiff, that is that he engaged in the crime of not having a proper license was false and made by both defendants with actual malice.”   He also alleges that “the defendants conspired with one another to have the plaintiff arrested as a means of avoiding paying the monies owed to the plaintiff.”   See complaint, ¶ 17.   Further, he alleges that he was held out as a criminal when the details of his arrest appeared in local newspapers.   See complaint, ¶ 18.

The plaintiff's claims against Ring incorporate the above discussed allegations and are set forth in four counts, for malicious prosecution (fifth count), false light invasion of privacy (sixth count), negligent infliction of emotional distress (seventh count), and intentional infliction of emotional distress (eighth count).

In his opposition, the plaintiff opposes the motion only as to the fifth, malicious prosecution count.   At page 5, he states that he cannot put forth a good faith argument as to the other causes of action.   Accordingly, the court treats the other causes of action as abandoned and need not address them.

Additional references to the factual allegations are set forth below.

II

Standard of Review

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Rodriguez v. Testa, 296 Conn. 1, 6–7, 993 A.2d 955 (2010).

“When 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

“The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

III

Discussion

Ring argues that, if probable cause existed for the plaintiff's arrest, the plaintiff cannot satisfy the elements of a malicious prosecution claim, as the existence of probable cause is a complete defense.   In response, the plaintiff contends that the fact that he did have a home improvement contractor's license shows that the objective facts did not support probable cause, and that Ring's failure to investigate and his submission of false information show that there exists a genuine issue of material fact as to whether or not he intentionally lied and omitted facts in preparing and submitting the application for an arrest warrant.

“To establish a cause of action for either vexatious litigation or malicious prosecution, a plaintiff must prove want of probable cause, malice and a termination of suit in the plaintiff's favor.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital and Health Center, Inc., 296 Conn. 315, 330, 994 A.2d 153 (2010).  “In a cause of action for malicious prosecution, the plaintiff additionally must establish that the defendant caused the proceeding to be instituted.”  (Internal quotation marks omitted).   Bhatia v. Debek, 287 Conn. 397, 406, 948 A.2d 1009 (2008).

“Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action ․ Malice ¹ may be inferred from lack of probable cause ․ The want of probable cause, however, cannot be inferred from the fact that malice was proven.”  (Citations omitted;  internal quotation marks omitted.)  Falls Church Group, Ltd. v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007).

“The test for deciding whether a litigant acted with probable cause ․ is well settled ․ [T]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ․ Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of ․ Thus, in the context of a [malicious prosecution] action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 94–95.

“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.)  Brooks v. Sweeney, 299 Conn. 196, 211, 9 A.3d 347 (2010).

“[T]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction ․ The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence ․ [P]roof of probable cause requires less than proof by a preponderance of the evidence ․ Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred ․ The probable cause determination is, simply, an analysis of probabilities ․ The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act ․ Probable cause is not readily, or even usefully, reduced to a neat set of legal rules ․ Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause.”  (Internal quotation marks omitted.)   State v. Santiago, 305 Conn. 101, 149, 49 A.3d 566 (2012).

Concerning probable cause, the material facts are undisputed.   As to the status of the plaintiff's home improvement contractor's license, Ring's investigation report (see Deft. Attachment A (# 139), page 30, stated that Ronnie Clinton, a home improvement investigator for the State of Connecticut Department of Consumer Protection, informed him that the plaintiff's home improvement contractor's license had expired on November 1, 2007 and that the plaintiff did not apply for a renewal until September 26, 2008, after which the license went into effect on October 1, 2008.   According to Clinton, “Frohn was illegally operating his home improvement business from 11/01/07 through 10/01/08.”   See Deft. Attachment A (# 139), page 30.   In his report, Ring stated that, since Frohn worked at Morris' residence from February 4, 2008 to June 8, 2008, he did so in violation of General Statutes § 20–427(b)(5),² Accordingly, Ring concluded that he had a sufficient basis on which to apply for an arrest warrant.   See Deft. Attachment A (# 139), page 30;  pages 41–45 (information, arrest warrant and application).

Where, as here, an officer is provided with information from a state employee who was charged with investigating licensing issues, concerning the plaintiff's lack of a license during the relevant period, which did not contain any glaring discrepancies, Ring was entitled to rely on it without corroboration.   See State v. Amarillo, 198 Conn. 285, 310, 503 A.2d 146 (1986);  see also Shattuck v. Town of Stratford, 233 F.Sup.2d 301, 310–12 (D.Conn.2002) (arresting officer entitled to rely on information provided by public official acting within the scope of her duties).

In concluding it was immaterial that a more thorough investigation might have revealed other information, the United States Court of Appeals for the Second Circuit stated, “It bears repeating that probable cause does not require an officer to be certain that subsequent prosecution of the arrestee will be successful.   It is therefore of no consequence that a more thorough or more probing investigation might have cast doubt upon the situation.”  (Internal quotation marks omitted.)  Krause v. Bennett, 887 F.2d 362, 371 (2d Cir.1989) (Krause).  “Once officers possess facts sufficient to establish probable cause, they are neither required nor allowed to sit as prosecutor, judge or jury.   Their function is to apprehend those suspected of wrongdoing, and not to finally determine guilt through a weighing of the evidence.”   Id., 372.   See Mulligan v. Rioux, 229 Conn. 716, 758, 643 A.2d 1226 (1994) (citing Krause).

Probable cause “does not require the accuracy presented by hindsight.   Inherent in the concept of probable cause is that the factual basis ․ may be inaccurate.”  State v. Glenn, 251 Conn. 567, 576, 740 A.2d 856 (1999).   Accordingly, contrary to the plaintiff's argument, the fact that he did have a license at the relevant time does not show that the objective facts provided to Ring did not support probable cause.   Likewise, Ring's failure to investigate further is immaterial.

Under these circumstances, the court need not consider the plaintiff's arguments concerning malice.   As discussed above, whether or not Ring knew that the plaintiff was licensed, and acted with malice in submitting the application for the arrest warrant, the objective facts show that there was probable cause for the arrest.   Since the existence of probable cause is an absolute protection against an action for malicious prosecution, see Brooks v. Sweeney, supra, 299 Conn. 211, Ring has shown that he is entitled to judgment as a matter of law.

CONCLUSION

Based on the foregoing reasons, defendant Ring's motion for summary judgment is granted.   It is so ordered.

BY THE COURT

ROBERT J. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. “Our Supreme Court has defined malice as acting with an improper or unjustifiable motive ․ Additionally, Black's Law Dictionary defines malice as the ‘intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.’   Black's Law Dictionary (6th Ed.1990).”  (Citation omitted.)  Carrubba v. Moskowitz, 81 Conn.App. 382, 397–98, 840 A.2d 557 (2004), affirmed, 274 Conn. 533, 877 A.2d 773 (2005)..  FN1. “Our Supreme Court has defined malice as acting with an improper or unjustifiable motive ․ Additionally, Black's Law Dictionary defines malice as the ‘intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.’   Black's Law Dictionary (6th Ed.1990).”  (Citation omitted.)  Carrubba v. Moskowitz, 81 Conn.App. 382, 397–98, 840 A.2d 557 (2004), affirmed, 274 Conn. 533, 877 A.2d 773 (2005).

FN2. Section 20–427(b)(5) provides, “(b) No person shall:  ․ (5) offer to make or make any home improvement without having a current certificate of registration under this chapter[.]”.  FN2. Section 20–427(b)(5) provides, “(b) No person shall:  ․ (5) offer to make or make any home improvement without having a current certificate of registration under this chapter[.]”

Shapiro, Robert B., J.