Date: 05-01-2012

Case Style: Gladys Kronovitter v. Richard Doyle

Case Number: AC 31799

Judge: Schaller

Court: Connecticut Court of Appeals on appeal from the Superior Court, Fairfield County

Plaintiff's Attorney: William S. Palmieri, for the appellant (named plaintiff).

Defendant's Attorney: Catherine S. Nietzel, with whom was Peter E. DeMartini, for the appellees (defendants).

Description: In this action for malicious prosecution, the plaintiff Gladys Kronovitter1 appeals from the judgment of the trial court, rendered after a trial by jury, in favor of the defendants, Richard Doyle and Kelly Fitch. On appeal, the plaintiff claims that the court improperly (1) instructed the jury to consider the elements of certain statutory infractions in relation to the element of probable cause, (2) admitted testimony from an expert witness without prior disclosure or a proper foundation and (3) admitted evidence pertaining to an in rem proceeding. We affirm the judgment of the trial court.

The jury found,2 or reasonably could have found, the following facts. At all times relevant to the present action, the plaintiff resided at 52 Flat Rock Road in the town of Easton with her brother, Edward Kronovitter.

On June 26, 2000, Doyle, a municipal police officer, and Fitch, the town’s animal control officer, went to the plaintiff’s home to check on her health and well-being.

The condition of the plaintiff’s property was poor. The vegetation was overgrown and the yard was covered with debris.3 The residential structure was in a state of disrepair.4 When the defendants located the plaintiff, she immediately requested that they leave the property.

The defendants complied with this request.

On February 25, 2002, the defendants returned to the plaintiff’s property to investigate complaints of dogs barking excessively during the night. On this date, the defendants observed two ‘‘ ‘makeshift pens’ ’’ constructed out of wooden pallets. These enclosures contained a total of approximately ten dogs and were ‘‘littered with dog feces.’’ The defendants also observed another five dogs through a window in the plaintiff’s home. Edward Kronovitter informed the defendants that he had approximately eighteen dogs on his property at that time. None of these dogs were licensed with the town or vaccinated against rabies.

Based on this information, the defendants applied for a warrant authorizing the seizure of the plaintiff’s animals. The warrant was issued by the court, Upson, J., on March 1, 2002, and executed by the defendants on March 4, 2002. On that date, the following facts were observed regarding the health of the animals. The dogs had overgrown nails and were covered in feces and urine. Their coats were dull and lacked grooming. Some of the dogs were thin, while others were obese. Two of the dogs had bloody stools. One dog had a sore on its hind leg, and another was missing an eye.

On April 4, 2002, Doyle applied for a warrant authorizing the arrest of the plaintiff for animal cruelty. In support of this application, Doyle made a sworn statement detailing both the condition of the plaintiff’s property and the health of the animals seized on March 4, 2002. A warrant was issued by the court, D. Brennan, J., on April 5, 2002. The plaintiff was arrested on April 12, 2002. The charges against the plaintiff were subsequently nolled on December 3, 2002.

The plaintiff commenced the present action against the defendants on December 1, 2005. The plaintiff filed a second revised complaint on October 3, 2007, alleging, inter alia, malicious prosecution.5 On December 8, 2009, the jury returned a verdict in favor of the defendants.6 This appeal followed. Additional facts will be set forth below as necessary.

I

The plaintiff’s first claim is that the court improperly instructed the jury to consider the elements of certain statutory infractions when determining whether the defendants possessed probable cause. We are not persuaded. The following additional facts are relevant to our resolution of this claim. The court issued the following instructions to the jury regarding the issue of probable cause. ‘‘The plaintiff was arrested for violating General Statutes §§ 53-247,7 22-349,8 22-3389 and 22-363.10 However, your determination as to whether there was probable cause to arrest the plaintiff is limited to whether there was probable cause for the charge of violating § 53-247 . . . .’’ The court continued: ‘‘You may, however, consider the circumstances giving rise to the other charges . . . such as whether the dogs had been vaccinated against rabies, and whether they were barking during . . . the night, in determining whether or not there was probable cause that the plaintiff violated General Statutes [§] 53-247.’’ The court then proceeded to read the text of §§ 53-247, 22-349, 22-338 and 22-363.

Despite explicitly restricting the question of probable cause to § 53-247, the court subsequently gave the following instruction: ‘‘the question before you was not whether the plaintiff was guilty or not guilty of the charges, but whether the defendants had probable cause to initiate criminal proceedings against her.’’ (Emphasis added.)

We begin our analysis by setting forth the well established standard of review. ‘‘When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.

. . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . .

As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.’’ (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 142–43, 757 A.2d 516 (2000).

In order to establish a cause of action for malicious prosecution, one 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 & Health Center, Inc., 296 Conn. 315, 330, 994 A.2d 153 (2010). In the present case, the plaintiff seeks to recover for the defendants’ pursuit of the animal cruelty charge against her. Consequently, the element of probable cause for the plaintiff’s claim of malicious prosecution must be evaluated in relation to the elements of § 53-247.

The plaintiff argues that the court’s various references to §§ 22-349, 22-338 and 22-363 in its instruction caused the jury to believe that a violation of those statutes would require a verdict in favor of the defendants.

Although the court’s reading of §§ 22-349, 22-338 and 22-363 and its use of the plural nouns ‘‘charges’’ and ‘‘proceedings’’ could be confusing if read in isolation, when read as a whole, the court’s instructions clearly informed the jury that the elements of these infractions were not relevant to the question of probable cause. Indeed, the court explicitly stated in its instruction that ‘‘determination as to whether there was probable cause to arrest the plaintiff is limited to whether there was probable cause for the charge of violating [§] 53-247 . . . .’’ Given the presence of this specific charge, we conclude that the instructions given by the court were not improper.

II

The plaintiff’s second claim is that the court improperly allowed Fitch to offer expert testimony without complying with the disclosure requirements of Practice Book § 13-4 or laying a proper foundation.11 We are not persuaded.

The following additional facts are relevant to our resolution of this claim. After the seizure of the plaintiff’s dogs, Fitch fed and cleaned the animals on multiple occasions. Fitch testified that the dogs ‘‘all had feces on their feet [and] bellies’’ and often lost control of their bladder and bowels when approached by people.

Fitch also testified that some of the dogs had an aggressive nature. Fitch also stated that some of the dogs were overweight, while others were thin. Finally, Fitch testified that two of the dogs had bloody stools.12

We begin by setting forth the applicable standard of review. ‘‘Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility . . . of evidence.

. . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’’ (Internal quotation marks omitted.) Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 489, 958 A.2d 1195 (2008).

The principal distinction between lay and expert witnesses is that the former is restricted, with limited exceptions, to providing factual testimony, while the latter is permitted to testify as to his or her opinion. See Arnone v. Enfield, 79 Conn. App. 501, 527, 831 A.2d 260 (‘‘A lay witness provides facts that are within his personal knowledge without providing his opinion concerning such facts. The test for determining whether a witness is an expert is whether the witness has any peculiar knowledge or experience, not common to the world, that renders his opinion of assistance to the trier of fact.’’ [Emphasis in original.]), cert. denied, 266 Conn. 932, 837 A.2d 804 (2003); Conn. Code Evid. § 7- 1 (‘‘[i]f a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue’’); Conn. Code Evid. § 7-2 (‘‘[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue’’).

The plaintiff’s claims are predicated on the assumption that Fitch was testifying as an expert witness. In the present case, Fitch offered testimony regarding the presence of bloody stools, the absence of basic grooming or hygiene, variations in weight and the general appearance of the animals owned by the plaintiff. While Fitch undoubtedly has special knowledge of and experience with animals, such knowledge and experience was not required for the factual statements contained in her testimony. Consequently, we conclude that Fitch was not testifying as an expert and that the trial court did not abuse its discretion by permitting her to testify.13

III

The plaintiff’s third claim is that the court abused its discretion by admitting evidence of an in rem proceeding that resulted in an order transferring ownership of the dogs to the town of Easton. We are not persuaded.14 The following additional facts are relevant to our resolution of this claim. The plaintiff’s second revised complaint asserted a cause of action against the defendants for breach of contract. Specifically, the plaintiff alleged that the defendants ‘‘[led her] to believe that [the] pets were being temporarily taken for vaccination, spaying or neutering, and subsequently would be returned,’’ that ‘‘[t]he defendants created a document stating this, signed it, caused [Edward Kronovitter] to sign it’’ and also that the ‘‘defendants refused to return, and continue to refuse to return the seized pets to [the plaintiff].’’15 On December 2, 2009, the plaintiff offered testimony supporting these allegations. In response, Doyle testified the following day that the dogs were not returned to the plaintiff because of an in rem proceeding that transferred ownership of the dogs to the town of Easton. The plaintiff subsequently abandoned her breach of contract claim against the defendants.16

‘‘[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.

. . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. . . . The purpose of allowing the introduction of such evidence is not to give the opposing party a license to introduce unreliable or irrelevant evidence but to allow the opposing party to put the initial offer of evidence into its proper context. . . .

Thus, the trial court must consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit [the evidence] . . . to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Such a decision, of course, rests within the discretion of the trial court.’’ (Citations omitted; internal quotation marks omitted.) Somers v. LeVasseur, 230 Conn. 560, 565–66, 645 A.2d 993 (1994).

The plaintiff offered testimony tending to show that the defendants had wrongfully refused to return the animals to her possession. Evidence regarding the in rem proceeding, and the order which issued as a result, was necessary to place this testimony into its proper context. Consequently, we conclude that the admission of this evidence did not constitute an abuse of the trial court’s discretion.17

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See: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP135/135AP319.pdf

Outcome: The judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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