Parnoff v. Aquarian Water Co. of Connecticut (AC40109) , 188 Conn. App. 145 ( 2019 )

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LAURENCE V. PARNOFF v. AQUARION WATER
COMPANY OF CONNECTICUT ET AL.
(AC 40109)
Keller, Moll and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages from the defendant police depart-
ment, its police chief and a police officer, M, for, inter alia, false arrest
and pursuant to the applicable federal law (42 U.S.C. § 1983) for the
alleged violation of his constitutional rights in connection with his arrest
by M. In count twenty-two of the operative complaint, which set forth
a § 1983 claim against M, the plaintiff incorporated certain paragraphs of
count eighteen that briefly described the events that led to the plaintiff’s
arrest and the arrest itself. The plaintiff then asserted broadly that M
had deprived him of his rights, privileges and immunities under state
and federal law, but he did not clearly articulate the basis of his § 1983
claim. M filed a motion for summary judgment with respect to count
twenty-two on the ground that he was immune from liability under the
doctrine of qualified immunity. In his memorandum of law in opposition
to the motion for summary judgment, the plaintiff primarily argued that
summary judgment on that count was not warranted because there was
a genuine issue of material fact as to whether M had probable cause to
arrest him. In rendering summary judgment in favor of M, the trial court
first clarified that the plaintiff claimed false arrest in count eighteen of
his complaint. The court then concluded that summary judgment on
count twenty-two was appropriate because there was no issue of mate-
rial fact concerning the objective evidence of probable cause for the
plaintiff’s arrest. In reaching its conclusion, the court stated that qualified
immunity precluded recovery under 42 U.S.C. § 1983 and that lack of
probable cause is a critical element of both a common-law false arrest
claim and a claim brought under § 1983. On appeal, both of the plaintiff’s
claims challenged the trial court’s summary judgment on the ground
that a genuine issue of material fact existed as to the reasonableness
of the force used by M in effectuating the plaintiff’s arrest. Held that
this court declined to review the plaintiff’s claims on appeal, the plaintiff
having challenged the trial court’s summary judgment on the basis of
a distinctly different theory from the theory that he argued before the
trial court and on which the trial court actually rendered its summary
judgment; the plaintiff’s complaint failed to articulate with sufficient
clarity the basis of the § 1983 claim, the theory that the plaintiff pursued
in opposition to M’s motion for summary judgment was not based on
M’s use of excessive force but, rather, concerned false arrest and whether
there was a genuine issue of material fact as to whether M had probable
cause to arrest him, the plaintiff made no argument before the trial
court pertaining to excessive force although he had the opportunity to
do so, and the trial court’s memorandum of decision, therefore,
addressed only whether there was an issue of material fact as to probable
cause for the arrest.
Argued October 22, 2018—officially released March 5, 2019
Procedural History
Action to recover damages for, inter alia, false arrest,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the court, Rad-
cliffe, J., granted the motion for summary judgment
filed by the defendant Glynn McGlynn et al. and ren-
dered judgment thereon, from which the plaintiff
appealed to this court. Affirmed.
John R. Williams, for the appellant (plaintiff).
John A. Florek, with whom was Alexander Florek,
for the appellee (defendant Glynn McGlynn).
Opinion
KELLER, J. This appeal, and a related appeal, Parnoff
v. Aquarion Water Co. of Connecticut, 188 Conn. App.
, A.3d (2019), which we also officially release
today and which contains a recitation of the underlying
facts, involve a challenge by the plaintiff, Laurence V.
Parnoff, to the summary judgments rendered by the
trial court in favor of the defendants. In the present
appeal, the plaintiff appeals from the summary judg-
ment rendered by the trial court in favor of the defen-
dant Glynn McGlynn, a Stratford police officer.1 The
plaintiff claims that (1) ‘‘[t]he evidence before the court
was sufficient to permit a jury to find that the force
used by the defendant . . . was unreasonable under
the fourth amendment,’’ and (2) the ‘‘defendant’s asser-
tion of the affirmative defense of qualified immunity
was unavailing at the summary judgment stage of this
case’’ because the defendant cannot reasonably con-
tend that no objective police officer could have thought
that the force used was reasonable. For the reasons set
forth herein, we decline to review the plaintiff’s claims.
In the present appeal, the plaintiff appeals from the
summary judgment rendered in favor of the defendant
and, in setting forth the grounds for the appeal, he
argues that an issue of material fact exists as to the
force used by the defendant in effectuating the plain-
tiff’s arrest. However, the theory he pursued in opposi-
tion to the defendant’s motion for summary judgment
was based not on the excessive use of force by the
defendant but on the lack of probable cause for his
arrest. The trial court construed the plaintiff’s count
directed against McGlynn to be a false arrest claim and
determined that summary judgment on count twenty-
two in favor of the defendant was appropriate because
there was ‘‘no issue of material fact concerning the
objective evidence of probable cause for the arrest of’’
the plaintiff.
At the outset, we note that the plaintiff’s sixth revised
complaint, which is the operative complaint in this case,
is not a model of clarity. Count twenty-two is titled
‘‘Title 42 of the United States Code, Section 1983 as to
Defendant Glynn McGlynn (Town of Stratford Police
Officer).’’ Therein, the plaintiff incorporated paragraphs
1 through 20 of count eighteen, titled ‘‘Tortious Con-
duct,’’ which briefly described the events leading up to
his arrest and the arrest itself, and then asserted broadly
that the defendant deprived him of the rights, privileges,
and immunities secured to him by the constitution and
laws of the United States and the state of Connecticut.
At no point in count twenty-two did he use the term
‘‘force’’ or the phrase ‘‘excessive force’’ to support his
claim under 42 U.S.C. § 1983.2 It is unclear on what
exactly his § 1983 claim is based.
In the defendant’s memorandum of law in support
of his motion for summary judgment, he argued that
he was immune from liability under the doctrine of
qualified immunity. The defendant set forth multiple
bases for why he believed that the doctrine applied.
First, the defendant argued that qualified immunity
existed because the force used in effectuating the plain-
tiff’s arrest was objectively reasonable given the situa-
tion he faced, but he contended that the plaintiff’s
‘‘language used in count twenty-two is hardly fact spe-
cific’’ and indicated that the plaintiff appeared also to
complain about the arrest itself. The defendant then
argued that it was clear that there was ‘‘probable cause
to arrest the plaintiff’’ at the time of his arrest, citing
to case law supporting the contention that ‘‘the exis-
tence of probable cause to arrest is a complete defense
to an action for false arrest.’’
In the plaintiff’s memorandum of law in opposition
to the motion for summary judgment, he spent the vast
majority of his argument relating to count twenty-two,
arguing that no probable cause existed for the arrest.
The plaintiff began his argument by calling to the court’s
attention an ‘‘expert who [would] present evidence that
the plaintiff’s arrest on all charges was without probable
cause’’ and directed the court to his appendix, which
contained an affidavit from an expert attesting that it
was his opinion that no probable cause existed for the
plaintiff’s arrest. The plaintiff then recited law on the
issue of qualified immunity. He argued that summary
judgment was not appropriate because there were con-
flicting facts as to whether the defendant had probable
cause to arrest the plaintiff and, in a conclusory manner,
‘‘whether [his] force was excessive.’’ He does not, how-
ever, develop the excessive force statement or point to
any evidence attached to his memorandum to support
it. The plaintiff then set forth the facts leading up to
his arrest. Our review of his memorandum of law in
opposition to the defendant’s motion for summary judg-
ment reasonably suggests that he discussed these facts
in order to persuade the court that there was no proba-
ble cause to arrest him. He then concluded his argument
as follows: ‘‘Based upon this failure to investigate prior
to making the arrest, a trier of fact could conclude that
the [defendant’s] actions were objectively unreason-
able. It is almost absolute that the claim of lack of
probable cause for the plaintiff’s arrest, with evidence
that such claim will be presented to the trier of fact, is
sufficient to raise a significant issue as to whether the
[defendant] would be able to pass the reasonableness
test and prevail relative to [his] defense of qualified
immunity. We believe that [he] cannot, and that our
objection should be sustained.’’
On August 29, 2016, the court held a hearing on the
motion for summary judgment. As to the counts per-
taining to the defendant, the court first addressed count
eighteen, which was the count the plaintiff incorporated
entirely into count twenty-two to support his § 1983
claim against the defendant. The court stated: ‘‘[Count
eighteen] is tortious conduct. I assume that that’s false
arrest.’’ The defendant’s counsel seemed to agree by
stating that ‘‘[i]t seems to be some type of general tort
theory’’ and then proceeding to his governmental immu-
nity argument. At no point during the proceeding did
the plaintiff’s counsel argue that count twenty-two, or
count eighteen for that matter, was an excessive force
claim rather than one alleging false arrest. Instead, the
plaintiff’s counsel began by saying that ‘‘[r]elative to
the immunities, if the arrests were illegal, I question
whether the immunities protect the police officer.’’ He
proceeded to argue that ‘‘when you arrest without prob-
able cause, then I think you lose your immunities.’’ He
indicated to the court that ‘‘[w]e’ve briefed this thor-
oughly. I’m not going to waste a lot of the court’s time.
Arrests are discretionary acts, no question, if there’s
probable cause. The [§] 1983 action, that’s a reasonable
standard. Under all the facts that are presented to the
court here, there’s enough to raise a question of fact
as to whether or not the actions of the police officer
were reasonable.’’
On January 5, 2017, the court issued a memorandum
of decision. It granted the motion for summary judg-
ment as to count twenty-two recognizing ‘‘that the
defense of qualified immunity, which protects public
officials from civil actions where they are performing
discretionary functions, precludes recovery under [42
U.S.C. §] 1983.’’ It went on to state that ‘‘[l]ack of proba-
ble cause is a critical element of both a common-law
false arrest claim and one brought pursuant to [§] 1983.’’
It concluded that there was ‘‘no genuine issue of mate-
rial fact concerning the objective evidence of probable
cause for the arrest’’ of the plaintiff. There was no
discussion of excessive force.
To allow the plaintiff to appeal from the summary
judgment on the basis of a distinctly different ground
or theory from the ground or theory he argued before
the trial court would amount to an ambuscade of the
trial court. See Ahmadi v. Ahmadi, 294 Conn. 384, 395,
985 A.2d 319 (2009) (‘‘[a] party cannot present a case
to the trial court on one theory and then seek appellate
relief on a different one’’ [internal quotation marks omit-
ted]). In the present case, the plaintiff’s complaint failed
to articulate with sufficient clarity what he was claiming
in count twenty-two. Although the defendant was cau-
tious and argued multiple reasons why qualified immu-
nity applied to that count in his motion for summary
judgment, the plaintiff focused his opposition to the
defendant’s motion for summary judgment on false
arrest by arguing that there was an issue of material
fact as to whether the defendant had probable cause
to arrest the plaintiff. Although the plaintiff made a
conclusory statement about the force used in effectuat-
ing his arrest, he never developed that legal assertion
further. See McKiernan v. Caldor, Inc., 183 Conn. 164,
166, 438 A.2d 865 (1981) (issue ‘‘briefly suggested’’ in
trial court is not distinctly raised). Then, during the
hearing on the motion, the court noted its confusion
with count eighteen (the count incorporated fully into
count twenty-two) by attempting to clarify that the
plaintiff was claiming false arrest in that count. At no
point did the plaintiff indicate that he was claiming
otherwise. When it was the plaintiff’s opportunity to
address the court, he pressed the issue of false arrest.
He stated, inter alia, that ‘‘when you arrest without
probable cause, then I think you lose your immunities.’’
He made no arguments pertaining to excessive force,
and the court’s memorandum of decision understand-
ably addressed solely whether there was an issue of
material fact as to probable cause for the arrest.
If this court were to reverse the summary judgment
on the independent theory the plaintiff now argues on
appeal—i.e., whether the evidence before the trial court
was sufficient to permit a jury to find that the force used
by the defendant was unreasonable—it would usurp
the trial court’s authority to consider and rule on issues
before it.3 See Jahn v. Board of Education, 152 Conn.
App. 652, 665, 99 A.3d 1230 (2014) (‘‘[t]o allow the [plain-
tiff] to argue one theory . . . [before the trial court]
and then press a distinctly different theory on appeal
would amount to an ambuscade of the trial court’’ [inter-
nal quotation marks omitted]). Accordingly, we decline
to review the plaintiff’s claims on appeal.
We also note that the plaintiff does not appear to
challenge the specific ground, false arrest, on which the
court actually rendered summary judgment; he simply
argues on appeal that ‘‘the evidence before the court
was sufficient to permit a jury to find that the force
used by the defendant was . . . unreasonable under
the fourth amendment.’’
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s sixth revised complaint also named as defendants Aquarion
Water Company of Connecticut (Aquarion), and its employees, Beverly A.
Doyle, David Lathlean, and Kyle Lavin; Patrick Ridenhour, the Stratford
chief of police; and the Stratford Police Department. The related appeal
previously mentioned addresses the plaintiff’s challenge to the trial court’s
summary judgment as to the counts pertaining to Aquarion, Doyle, Lathlean,
and Lavin (counts one through seventeen). In the present appeal, the plaintiff
does not challenge the summary judgment as to the counts pertaining to
Ridenhour or the Stratford Police Department. The plaintiff’s sole challenge
in the present appeal is to the court’s summary judgment in favor of McGlynn
as to count twenty-two. Accordingly, we refer to McGlynn in this opinion
as the defendant.
2
Although the plaintiff describes in count twenty-two that his arrest was
‘‘unwarranted, unjustifiable and excessive,’’ it is ambiguous as to whether
he was claiming false arrest or excessive force.
On appeal, the plaintiff supports his claim by indicating that he alleged
that the defendant ‘‘grabbed and forcibly turned the plaintiff around . . .
violently pulled the plaintiff’s arthritic arms behind him . . . unduly tightly
and painfully handcuffed the plaintiff pulling the plaintiff’s arms behind his
back and requiring later corrective action . . . .’’ This allegation, however,
was never included in or incorporated into count twenty-two.
3
We note that the plaintiff never filed a motion for articulation or a motion
for reargument with the trial court, which he could have filed if he believed
that the court failed to address his purported excessive force argument.
See Orcutt v. Commissioner of Correction, 284 Conn. 724, 738, 937 A.2d
656 (2007) (‘‘[i]t is . . . the responsibility of the appellant to move for an
articulation or rectification of the record [when] the trial court has failed
to state the basis of a decision . . . to clarify the legal basis of a ruling
. . . or to ask the trial judge to rule on an overlooked matter’’ [internal
quotation marks omitted]); Opoku v. Grant, 63 Conn. App. 686, 692–93, 778
A.2d 981 (2001) (‘‘[T]he purpose of reargument is . . . to demonstrate to
the court that there is some decision or some principle of law which would
have a controlling effect, and which has been overlooked, or that there has
been a misapprehension of facts. . . . [Reargument] also may be used to
address alleged inconsistencies in the trial court’s memorandum of decision
as well as claims of law that the [movant] claimed were not addressed by
the court.’’ [Citation omitted; internal quotation marks omitted.]).