George J. Mizhir, III vs. Jenny Carbonneau, and others, March 15, 2010
Malicious Prosecution, Judgment notwithstanding the verdict, Remittur
Mizhir filed a malicious prosecution action against three individuals he believed set up his arrest. One of the original 3 defendants, Brian McCarty (McCarty) Defaulted and after assessing damages a judgment was entered against him for 25,000 dollars. The case against the remaining two defendants was tried in front of a jury and after answering special questions from the judge, a judgment was entered against them jointly and severally for $200,000. Both defendants filed separate motions for new trial, entry of judgment n.o.v., and remitter, all of which were denied. Carbonneau appealed those denials. Because she contended the judge erred in denying her request for judgment n.o.v., the evidence was viewed in the light most favorable to the plaintiff. The Appellate Division affirmed the judgment and damages.
Facts
One of the defendants, Michael McAuliff (McAuliff) had been living with his girlfriend for a long time, until she ended the relationship and moved in with Mizhir, home she worked with at a real estate company. McAuliff was extremely jealous of Mizhir and wanted revenge, so he discussed the whole situation and how upset he was with his longtime friend Jenny Carbonneau (Carbonneau). McAuliff knew that McCarty was a paid informant for the Worcester County Drug Task Force, and one day while they were hanging out McAuliff offered to help McCarty and the police because he knew a lot about the area.
While they were out driving McAuliff pointed at a vehicle parked on a street known to both men as “Crack Alley” with a license plate that read “MIZHIR”. Eventually McAuliff convinced McCarty that Mizhir was selling drugs and that he should be investigated by the task force. The police eventually decided to arrest Mizhir solely based on the information McCarty had given them.
The day the police were going to arrest Mizhir, a woman calling herself “Michelle Maki” called the real estate office and wanted to speak to Mizhir claiming to be interested in purchasing some real estate. After a series of phone calls between Mizhir, his office, and Maki a meeting was set up at a location across the street from a school. There was sufficient evidence from cell phone records to conclude that Michelle Maki was really Jenny Carbonneau.
When Mizhir arrived at the agreed location he was immediately surrounded by police cars, arrested, and his vehicle searched. This search produced a bag with a large amount of cocaine and he faced a charge of possession of cocaine with intent to distribute in a school zone that carried a minimum two year prison sentence.
Malicious Prosecution
The elements of malicious prosecution are: 1) acts to initiate criminal proceedings against the plaintiff; 2) with malice towards the plaintiff; 3) without probable cause; 4) such proceedings must terminate in the plaintiff’s favor. The evidence taken in the light most favorable to Mizhir of the cell phone records and Mizhir’s testimony that the voice he heard on the phone was Carbonneau’s, was sufficient for the jury to conclude that Carbonneau participated in activities resulting in Mizhir’s arrest. The jury’s finding that she acted with malice was also supported by the fact that she and McAuliff were close friends who had spoken at length about the breakup, so it was likely she shared McAuliff’s contempt for the Mizhir.
Because the jury was within their right to disregard any hearsay statement about Mizhir’s involvement in drug dealing made by McAuliff (who did not testify, and the jury was instructed that an adverse inference could be drawn against him), the only evidence was that Mizhir’s car was legally parked on a street known to some as “Crack Alley”. That evidence does not create probable cause.
The final contention that the proceedings were not terminated in Mizhir’s favor was also not correct. During the criminal trial Mizhir succeeded in getting the bag of cocaine suppressed, at which time the prosecution moved to dismiss the case. Until Wynne v. Rosen, 391 Mass. 797 (1984) proceedings were not considered terminated in the plaintiff’s favor when a nolle prosequi of a complaint was entered. In Wynne, the SJC stated that when the district attorney formally abandons the criminal proceedings by a nolle prosequi or a motion to dismiss, and the circumstances compel an inference that there existed no reasonable grounds to pursue prosecution, the proceedings are considered terminated in the plaintiff’s favor, while proceedings terminated on the basis of procedural or technical procedure will not equal a favorable final termination.
The Appellate Division concluded that “a motion to dismiss criminal charges predicated on the suppression of evidence necessary to set up a prima facie case is a termination in favor of the plaintiff for the purposes of maintaining an action for malicious prosecution.”
Remittur
Despite the fact that Carbonneau’s attorney raised the issue of damages in his conclusion section, and thus it was too late in his motion to be considered, the court addressed the issue anyway. The jury in the trial court found both Carbonneau and McAuliff guilty of three of four charges, and only McAuliff guilty of libel. When asked by the judge what the damages they sought to award were, the jury responded with “$170,000 against McAuliff, and $30,000 dollars against Carbonneau.” The judge then asked whether the total was $200,000 dollars, and the jury agreed. The judge then dismissed the jury and found the defendants jointly and severally liable for the $200,000.
- Prepared by AEK
