JOAN GLAZER MARGOLIS, Magistrate Judge.
On September 4, 2014, plaintiff George Corey, appearing
On February 6, 2015, plaintiff filed the pending Application for Attachments and Prejudgment Remedies ["PJR"](Dkt. #43) against defendants Williams and Crouch,
For the reasons set forth below, plaintiff's PJR application (Dkt. #43) is
For more than thirty years, plaintiff Corey has resided with his wife, Debra Corey, at 30 Ackley Cemetery Road, East Haddam, a 2.05 acre parcel of land located behind the property of defendant Williams,
Defendant Crouch testified that on Friday, March 8, 2013, after a snowstorm, he attempted to remove snow from the shared driveway using a snow blower, but was unable to complete the task because the machine broke; however, in Crouch's words, the "driveway was passable." (6/3/15 Tr. at 96; Exh. 4).
The incident at issue here occurred on Saturday, March 9, 2013, when the Coreys' family friend, Jason A. Lynch, turned into the shared driveway to arrive at a celebration in honor of his birthday, which was the prior day; approximately halfway up the driveway, his 2006 Honda Accord became stuck in the snow and he was unable to free it. (Lynch Testimony; 6/5/15 Tr. at 59).
Plaintiff testified that the hemlock trees are on the northerly side of the driveway, which prevents the sun from melting the accumulated snow. (6/5/15 Tr. at 61). According to plaintiff and Mrs. Corey, these trees (which had been planted by Mrs. Corey's father approximately forty to forty-five years ago) are in the right of way, and for most of the time that they have lived at 30 Ackley Cemetery Road, plaintiff maintained the driveway by using the Bobcat as a plow and by treating the surface with salt and sand; however, he ceased this practice after he received a letter from defendants Williams and Crouch's attorney, Irving Shurberg, dated December 30, 2003. (Debra Corey Testimony; 6/5/15 Tr. at 61; Exh. A). This letter advised the Coreys that they
(Exh. A).
According to Mrs. Corey, the portion of the driveway from the street to the carriage house (which is approximately five hundred to seven hundred feet) is paved, and the remaining five hundred feet is an unpaved gravel driveway. (Debra Corey Testimony; Exhs. 2-3, B-8, C, H-2, H-4, I). She further explained that the driveway is flat from the street to the area where the hemlock trees are, but becomes "steep" after that. (Debra Corey Testimony; Exhs. 2-3, B-8, C, H-2, H-4, I). Mrs. Corey complained that they "cannot get up the driveway" beyond the carriage house, "it's just a mess," and the condition is "bad." (Debra Corey Testimony). Mrs. Corey testified that their family members, friends, and other company have gotten stuck in the driveway, including her elderly mother who became stuck twice during the previous winter. (Debra Corey Testimony). Mrs. Corey further testified that whenever her husband tried to remove limbs from any of these trees, defendants Williams and/or Crouch would call the police, which continues to occur "up to this day." (Debra Corey Testimony). Plaintiff testified that he has been instructed on two occasions not to "touch" the driveway, and that the state of the driveway now, with partially removed trees, is particularly dangerous in the winter. (6/5/15 Tr. at 93, 111-14). Plaintiff would prefer that both residences share the responsibility of properly maintaining the shared driveway. (6/5/15 Tr. at 115).
Defendant Williams agreed that these hemlock trees are in the right of way, and testified that they are close to where she and defendant Crouch park their own vehicles, which includes her camper. (Williams Testimony; 6/3/15 Tr. at 80-81; Exhs. 2, B-3, B-4, B-7, B-8, C-1). Defendant Crouch testified that in addition to these trees, there are several other items in the midst of the right of way, including a structure, a parking area, pre-existing ornamental boulders, a pre-existing fence line, and a pre-existing telephone line. (6/4/15 Tr. at 24-27, 36; Exh. I). Defendant Williams denied that the Coreys were ever told not to "touch" the driveway, but rather were instructed not to park vehicles in the right of way after a previous winter during which plaintiff had left construction vehicles, including a trailer, in the driveway for the entire winter. (Williams Testimony). She testified that plaintiff was not forbidden from trimming branches along the driveway or from snow plowing the half of the driveway leading to his house, but in the past, he had inappropriately taken down some trees to create a parking space. (Williams Testimony). She believed that Attorney Shurberg's letter illustrated some of the unreasonable uses of the right of way. (Williams Testimony; Exh. A). Defendant Williams added that sometime in 2013, she and defendant Crouch asphalted the driveway, including plaintiff's portion, for which the Coreys never offered any money. (Williams Testimony).
According to defendant Crouch, the driveway is approximately two hundred yards long, of which he attends to one hundred and fifty yards of it. (6/3/15 Tr. at 109-10). Similar to his girlfriend's testimony, defendant Crouch did not recall any blanket prohibition against plaintiff using his Bobcat on the driveway, but only that the Coreys are to "pass up and down safely without causing damage." (6/3/15 Tr. at 125-26, 134). Defendant Williams further testified that at some point, the parties had discussions about a maintenance agreement by which plaintiff would be able to use the Bobcat on the right of way provided that he stopped "piling . . . dirt at the side of the driveway and making it look awful[,]" but plaintiff never did that and the dirt piles have been "there for years now." (6/3/15 Tr. at 86-87). Defendant Crouch confirmed that there is no agreement on the land record regarding maintenance of the right of way. (6/4/15 Tr. at 29). Defendant Crouch denied ever having placed stones, boulders or pallets in the driveway to block the Coreys' access. (6/4/15 Tr. at 19-20, 29).
Defendants Williams and Crouch testified that they were watching television in their living room on March 9, 2013 when they heard a "loud noise," described as a "loud metallic bang"; when they looked out their window, they saw plaintiff on his Bobcat, dumping snow behind defendant Williams' Prius; they had concerns that plaintiff's activities would bring down the nearby electric wires and the vehicle was close to the evergreen trees. (Williams Testimony; 6/3/15 Tr. at 93-94, 98, 6/4/15 Tr. at 31-32; Exh. 13 (showing electric wires running through trees)). With defendant Williams present, defendant Crouch called the East Haddam Police Department from their home to report that plaintiff, their neighbor, was in their driveway in his Bobcat, knocking down their trees with the bucket of his Bobcat, and thereafter defendant Crouch left the house to determine what had happened but returned when he saw plaintiff "become angry[,]" "yelling[,]" "cursing[,]" "waving [his] arms in the air[,]" and "start[]" to "ram[] the trees[]" or "scrap[e] the trees[.]" (Williams Testimony; 6/3/15 Tr. at 91-92, 104; 6/4/15 Tr. at 32, 37-38, 43-44). Defendants Williams and Crouch remained on the sidewalk or parking area (which is approximately a thirty foot square), and witnessed plaintiff knock the trees over; in defendant Williams' view, the Bobcat was not "sliding" in the snow and the incident "did not appear [to her] to be an accident[.]" (Williams Testimony; 6/4/15 Tr. at 37-39).
After they returned inside, they continued to view "the trees being pushed into the yard, knocked down, one after another[,]" approximately five to six of them, in addition to the "several" they had seen while standing outside. (6/4/15 Tr. at 39-42). Defendant Crouch testified that the tire tracks in the snow do not indicate that plaintiff was sliding in the snow when he hit the trees, but rather they "travel straight forward from the interior of the driveway toward the trees." (6/4/15 Tr. at 34-35; Exhs. B-2, B-4). Defendant Hawes agreed that he only noticed "tire tracks leading up to the trees, with all the snow pushed to the opposite side[.]" (6/5/15 Tr. at 36). Defendant Crouch testified that he recalled seeing the automobile, but not the Bobcat, stuck in the driveway and he never observed the back of the Bobcat striking the trees, only the bucket in the front of it. (6/4/15 Tr. at 42-43). Defendant Crouch testified that Corey did not ask for their help that day, but even if he had, they would have been reluctant to do so because "[t]here was too much hostility[]" between them. (6/4/15 Tr. at 44-45).
Within approximately twenty to thirty minutes, defendant Mark Creighton, who is a police officer in East Haddam,
The Coreys estimate within twenty to twenty-five minutes of plaintiff and Lynch freeing the Honda from the snow, defendants Hawes and Creighton drove up in separate cars to plaintiff's house. (Lynch Testimony; 6/5/15 Tr. at 76). Upon seeing the police officers, Corey and Lynch exited the house; defendant Hawes spoke only with plaintiff, and defendant Creighton did not speak at all. (Lynch Testimony; 6/5/15 Tr. at 76-77). Lynch described defendant Hawes as "not receptive" to plaintiff's explanation, instead cutting him off in their conversation. (Lynch Testimony). Plaintiff admitted to defendants Creighton and Hawes that he had damaged the trees using his Bobcat in the common driveway, although defendant Creighton did not recall plaintiff having mentioned the right of way. (6/4/15 Tr. at 88-89; 6/5/15 Tr. at 77-78; Exhs. 7, K). Defendant Hawes directed plaintiff to put his arms behind his back, handcuffed him, charged him with Criminal Mischief in the Third Degree in violation of CONN. GEN. STAT. § 53a-117,
Defendant Williams testified that she did not "coerce" the police officers into arresting plaintiff, and that she and defendant Crouch did not enter into any "conspiracy" with any of the other defendants; defendant Crouch similarly testified that it was "up to the police to make [the] determinations" whether to arrest plaintiff, that he never conspired with the other defendants, and that he has no relationship with defendants Hawes, Creighton, Walters or the Town of East Haddam. (Williams Testimony; 6/3/15 Tr. at 101; 6/4/15 Tr. at 29-30, 32, 34).
Defendant Williams estimates that about twenty "mature" hemlock trees were damaged, covering about twenty feet, and she and defendant Crouch agree that it took them about three days to clean "the mess up[]"; however, they left behind some tree stumps, and one tree that they could not remove, which is still erect because it was wrapped in wire; they have not requested reimbursement from plaintiff for this damage. (Williams Testimony; 6/3/15 Tr. at 78-79, 111-12; Exhs. 2-3, 20, B). Defendant Crouch testified that plaintiff knocked over more than ten evergreen trees which were approximately thirty feet tall, "above the telephone wires," ranging in diameter at the trunks from six to ten inches wide. (6/4/15 Tr. at 33-34). Defendant Crouch testified that the notches in the trees caused by the Bobcat were "quite high up" on the trees, "approximately eight to ten feet[]" up. (6/4/15 Tr. at 24; Exh. B). Defendant Creighton testified that he saw that "[a]pproximately" four to six trees had been "knocked over[]" and "were debarked like somebody ran them over and pushed the loader up and peeled the bark up. Disheveled." (6/4/15 Tr. at 79). Defendant Hawes testified that he observed at least two trees that had been damaged, "at approximately [the] six to seven foot mark, where there was a large gouge in them. And then from that point higher, there was bark stripped from them, and they were pushed over towards [defendant] Crouch's front yard." (6/5/15 Tr. at 35-36). From the police officers' investigation, defendant Hawes believed that the trees had been damaged deliberately. (6/5/15 Tr. at 55).
Defendant Crouch testified that after he and defendant Williams removed the trees, there was one wire hanging down from the line, and he denied that this wire had been hanging for several years and he further denied he prevented utility workers from trimming the trees around the wire. (6/4/15 Tr. at 48-49). Defendant Creighton testified he did not observe any broken or downed electrical wires that day. (6/5/15 Tr. at 19-20). Defendant Hawes similarly testified that he did not observe any hanging or downed wires, nor did he notice any snow behind any car in the driveway of Williams and Crouch. (6/5/15 Tr. at 30).
Defendant Williams testified that she has never called the East Haddam Police Department or other municipal authorities to complain about plaintiff, but that defendant Crouch "probably" has called more than three times. (Williams Testimony). On April 1, 2013, defendant Crouch submitted a letter to the prosecutor's office in the Middletown Superior Court. (6/3/15 Tr. at 104-07; Exh. 1). Defendant Crouch agreed that he has made complaints to the Town of East Haddam against plaintiff, but denied that he had been instructed by town officials to stop. (6/3/15 Tr. at 126-27, 129; 6/4/15 Tr. at 28-29).
After eleven months, and approximately ten to eleven court appearances, plaintiff "got in a nolle[]" and the criminal charges against him "got thrown out"; plaintiff paid a private attorney $3,300 to $3,400 to represent him on these state charges. (Debra Corey Testimony; 6/5/15 Tr. at 80, 83-84, 115-17, 123; Exh. 6).
Tanya Russo, a licensed clinical social worker at United Community Family Services in Colchester, has seen plaintiff every other week since January 2013 for anxiety, major depressive disorder, and post-traumatic stress disorder, plaintiff having transferred to her from another therapist. (6/4/15 Tr. at 4-5, 7-8, 9; Exhs. 11-12). She has been treating him with cognitive behavioral therapy, solution-focused therapy and psychotherapy, expects that he will continue with therapy (which she reevaluates every three months), and does not believe that he will ever be "completely healed." (6/4/15 Tr. at 9-10). However, while plaintiff's ongoing dispute with his neighbors and the prosecution are mentioned a few times in her clinical notes, Russo testified that she did not notice any worsening of his symptoms after his arrest on March 9, 2013. (6/4/15 Tr. at 8-9; Exhs. 11-12).
Plaintiff testified as to the expenses incurred with respect to this litigation, namely the $400 filing fee, $234.39 in service expenses, $481.05 in office supplies, $356.44 for photographs, $160.10 for parking, $500 for security costs, $672 in travel expense, $59.79 for printing, and $14.28 for telephone calls. (6/5/15 Tr. at 100-01). He also estimated his damages to be $100,000 for the arrest, $50,000 for his detention, $50,000 for seizure, $350,000 for conspiracy, $50,000 for the search, $350,000 for malicious prosecution, $350,000 for violation of his constitutional rights, $100,000 for his imprisonment, $100,000 for assault, $100,000 for battery, $50,000 for trespass, $100,000 for encroachment of the right of way, $200,000 for defamation of character, $350,000 for future pain and suffering, $350,000 for further treatment, and $350,000 in punitive damages; plaintiff conceded, on cross-examination, that these numbers were "just [drawn] up at random[]" from research at the law library at the Middletown Superior Court. (6/5/15 Tr. at 102, 119-20, 121-23). He testified that he also paid $500 to two prior attorneys and $2,236.50 for a psychological evaluation, and anticipates $2,500,000 in future emotional damages. (6/5/15 Tr. at 103, 117-18).
A prejudgment remedy "is generally intended to secure the satisfaction of a judgment should plaintiff prevail."
CONN. GEN STAT. § 52-278d(a). In the words of U.S. District Judge Alvin W. Thompson:
A prejudgment remedy proceeding is "only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action."
Plaintiff's application for prejudgment relief turns upon whether plaintiff has shown "probable cause" that a judgment will enter in his favor. CONN. GEN. STAT. § 52-278(d)(a)(1). "Probable cause" has been defined by the Connecticut courts as "`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.'"
In his post-trial brief, filed August 29, 2015 (Dkt. #143), plaintiff argues that there was no probable cause for his arrest for Criminal Mischief in the Third Degree
In their post-trial brief, filed the previous day (Dkt. #142), defendants Williams and Crouch argue that their action did not amount to "state action" as required under 42 U.S.C. § 1983 (at 5-8), that there was no evidence of any conspiracy between the defendants (at 8-11), that there was probable cause to arrest plaintiff (at 11-14), that the nolle does not negate probable cause for plaintiff's arrest and/or preclude the claim of malicious prosecution (at 14-15), and that the PJR hearing was only limited to the events of March 9, 2013 and not plaintiff's other complaints against these two defendants regarding the right of way (at 15-16).
In their reply brief (Dkt. #144), defendants Williams and Crouch argue that the court lacks subject matter jurisdiction over the Connecticut common law claim for malicious prosecution (at 1-2), and that plaintiff failed to establish probable cause that he would be successful on the merits of his claim for malicious prosecution under Connecticut common law with respect to initiation of the criminal proceeding, termination of the criminal proceeding in his favor, probable cause, and malice (at 2-8).
Insofar as plaintiff's brief only addresses the elements of malicious prosecution, this ruling will do the same.
(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.
As plaintiff points out, in this case, there is no dispute that defendant Crouch initiated the criminal proceedings that led to plaintiff's arrest. Defendant Crouch explained that he contacted the East Haddam Police Department to report that plaintiff was in the driveway knocking down trees, and, as testified by defendant Hawes, upon the arrival of the police, defendant Crouch stated that he wanted to press charges against plaintiff. (Williams Testimony; 6/3/15 Tr. at 91-92; 6/5/15 Tr. at 37;
First, defendants Williams and Crouch had legitimate safety concerns about plaintiff's behavior due to the presence of electrical/telephone wires which run through the trees that were being knocked down. Despite the fact that defendant Crouch did not mention any broken or downed electrical wires in his statement to police (Exhs. 4, 7, K), nor did either police officer observe any such wires (6/5/15 Tr. at 19-20, 30), defendants Williams and Crouch testified at the hearing, and a photograph submitted to the Court confirms, that there are numerous wires crossing through the branches of the trees that run along the driveway. (Williams' Testimony; 6/4/15 Tr. at 32; Exh. 13). Because defendants Williams and Crouch feared that a falling tree would damage these wires, they had probable cause to contact the police and they were not acting primarily for a purpose other than bringing an offender to justice.
The fact that the trees at issue were located in the right of way (having been planted there by Debra Corey's parents some forty to forty-five years ago), and that defendant Crouch failed to mention this right of way in his conversations with the police officers, does not negate that defendants had probable cause to contact the police. Defendant Crouch was not obligated to discuss the parties' exact property interests when the officers arrived because the right of way was obvious; the police officers drove their vehicle from the street to defendants Williams and Crouch's home before continuing up the right of way to plaintiff's property. Defendant Crouch did not "knowingly provide[] false information to a public officer" by failing to mention the right of way, nor did he bring any "pressure to bear on the public officer [but instead] left the decision to prosecute entirely in the hands of the public officer."
In addition to probable cause for defendants Williams and Crouch to contact the police, there was also probable cause for plaintiff's subsequent arrest. Defendant Hawes testified credibly that during his inspection of the scene he noticed "tire tracks leading up to the trees, with all of the snow pushed to the opposite side[.]" (6/5/15 Tr. at 36). He also observed at least two trees that had been damaged "at approximately [the] six to seven foot mark, where there was a large gouge in them. And then from that point higher, there was bark stripped from them, and they were pushed over toward [defendant] Crouch's front yard." (6/5/15 Tr. at 35-36). Based upon these observations, defendant Hawes believed that the trees had been deliberately damaged (6/5/15 Tr. at 55), an opinion which is supported by the multiple photographs in Exh. B. Even if the officer had listened to plaintiff's version of events and believed that the damage to the trees had occurred unintentionally, he still had probable cause to charge plaintiff with criminal mischief in the third degree for "recklessly" damaging another's property. CONN. GEN. STAT. § 53a-117. Plaintiff testified that the heavy Bobcat "was sliding all over[]" because the "driveway was just a sheet of freaking ice[,]" so that plaintiff had "very little control over the machine[]" while he was "trying not to hit [Lynch's] new car." (6/5/15 Tr. at 60, 74, 76). The fact that this activity occurred in the easement created by the right of way did not give rise to plaintiff being able to "intentionally or recklessly" damage several trees located in the right of way.
For the reasons stated above, plaintiff's Application for Prejudgment Remedy (Dkt. #43) is
This is not a Recommended Ruling, but a ruling on a non-dispositive motion,
(Exh. 5).
In his post-hearing brief (Dkt. #143), plaintiff points to the attorney's fees paid to his criminal attorney, his parking and travel expenses, and the "severe emotional distress related to the experience of facing criminal prosecution." (At 5-6). In their brief (Dkt. #142), defendants Williams and Crouch question plaintiff's claim for emotional distress, based upon the testimony of LCSW Russo. (At 16-17).
CONN. GEN. STAT. § 53a-117.
