                                                          Supreme Court

                                                          No. 2016-41-Appeal.
                                                          (KC 13-878)

       Carel Bainum                  :

            v.                       :

Coventry Police Department.          :


       NOTICE: This opinion is subject to formal revision before
       publication in the Rhode Island Reporter. Readers are requested to
       notify the Opinion Analyst, Supreme Court of Rhode Island,
       250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                     Supreme Court

                                                                     No. 2016-41-Appeal.
                                                                     (KC 13-878)

                Carel Bainum                   :

                      v.                       :

         Coventry Police Department.           :


                    Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

                                          OPINION

         Justice Indeglia, for the Court. The plaintiff, Carel Bainum (plaintiff or Bainum), no

stranger to the elderly, or the courts for that matter, 1 appeals pro se challenging the motion

justice’s grant of summary judgment in favor of the defendant, the Coventry Police Department

(the department or defendant). This matter came before the Supreme Court on March 8, 2017,

pursuant to an order directing the parties to appear and show cause why this Court should not

summarily decide the issues raised by this appeal. After hearing the parties’ arguments and

reviewing the parties’ memoranda, we conclude that cause has not been shown. Accordingly, we

decide this matter at this time without further briefing or argument. For the reasons outlined

below, we affirm the judgment of the Superior Court.

                                                   I

                                         Facts and Travel

         This case stems from Bainum’s allegedly unwelcomed visits to the Coventry Health and

Rehabilitation Center (the center), a nursing home in Coventry, Rhode Island. At the crux of

plaintiff’s case is her relationship with Michael Koczan, now deceased, a former resident in the



1
    See Baligian v. Bainum, 983 A.2d 271 (R.I. 2009) (mem.).


                                              -1-
center’s dementia ward. On or around October 16, 2009, Bainum was visiting then-ninety-

seven-year-old Koczan, when Officer Ryan Desisto of the department asked her to leave, at the

center’s request.    The plaintiff, after answering some of the officer’s questions, eventually

complied with his request and voluntarily departed the home. 2 The plaintiff was also notified at

some point 3 by the center’s employees that Koczan’s daughter, Kristin Wild, sought to halt any

future visits from Bainum with Koczan.

          Nonetheless, plaintiff, on more than one occasion, subsequently visited Koczan at the

center.    For example, on January 23, 2010, while disguised with a blonde wig to avoid

recognition by the center’s staff, she visited Koczan. A staff member eventually recognized

Bainum, however, and informed the department of her presence. Because of her contact with

Koczan, the department summoned plaintiff to appear at the Kent County District Court on a

criminal charge of willful trespass pursuant to G.L. 1956 § 11-44-26. That action was later

transferred to the Superior Court, where a jury found Bainum guilty. On September 15, 2010, a

trial justice sentenced Bainum. 4 Although plaintiff appealed to this Court, she withdrew her

appeal on April 21, 2014.

          Following her criminal conviction, on August 15, 2013, plaintiff brought a civil action

against the department. In her complaint, she asserted that her willful-trespass conviction was

the consequence of two “malicious acts” by defendant: (1) perjured testimony of Officer Desisto

during plaintiff’s criminal trial; and (2) altered police reports concerning Bainum’s visits to the

2
   As a consequence of this visit, the department purportedly mailed plaintiff “a formal no
trespass warning.”
3
  We note that it is unclear upon which visit Bainum was informed of Wild’s demand that she no
longer see Koczan. The plaintiff, in her complaint, asserts that she was informed of Wild’s
request on her visit to the center on January 23, 2010; in department records, however, this fact
relates to Bainum’s October 2009 visit.
4
  In sentencing, the trial justice issued a one-year suspended sentence with probation and a no-
contact order for plaintiff with Koczan.


                                              -2-
center. With respect to the false testimony allegation, plaintiff contended that Officer Desisto

testified that he gave plaintiff a verbal no-trespass warning on October 16, 2009, at the direction

of Earle Lerner, the center’s then-administrator. The plaintiff referenced, however, an affidavit

she obtained from Lerner just prior to pressing this claim. In it, Lerner contradicted Officer

Desisto’s testimony by stating that he did not request a no-trespass order or warning for Bainum

on October 16 because he wanted to first discuss it with his supervisor, who was absent that day.

Additionally, plaintiff alleged that members of the department inappropriately altered Officer

Desisto’s October 16 police report about Bainum. Based on these assertions, plaintiff submitted

that members of the department including Officer Desisto colluded and conspired against her.

She further declared that “[t]he perjured testimony of Ryan Desisto, along with other intentional

malicious acts by him and other employees of the Coventry Police Department, were intended to

harm the Plaintiff, and they did.”

       On June 4, 2015, defendant moved for summary judgment on the grounds that: (1)

plaintiff’s criminal conviction defeated her malicious-prosecution claim; (2) collateral estoppel

barred any false-arrest claim; (3) plaintiff’s conspiracy claim must fail based on its inviable

underlying tort claim; and (4) qualified immunity shielded defendant from liability. Before the

motion justice, plaintiff asserted that: (1) “this is a case of collusion and conspiracy”; and (2) the

doctrine of collateral estoppel is inapplicable because the department was not a party in prior

litigation nor was a claim of collusion and conspiracy litigated in a prior case against it.

       In his bench decision on September 14, 2015, the motion justice found that plaintiff’s

complaint failed as a matter of law and deemed each of her claims, which he understood as false

arrest, malicious prosecution, and collusion and conspiracy, to be meritless. The motion justice




                                               -3-
disposed of the false-arrest claim as he found that no arrest had occurred. 5 He also found that the

malicious-prosecution claim turned on whether a prosecution was obtained without probable

cause and reasoned that plaintiff’s willful-trespass conviction “conclusively establishe[d]” the

requisite probable cause, which resolved this claim as a matter of law. Finally, the motion

justice noted that he had never heard of a claim for “collusion and conspiracy”; but, assuming

that such a claim existed, he held that collateral estoppel barred it because it intermingled with

the events underlying plaintiff’s trespass charge, for which she was tried and convicted.

       On appeal, plaintiff urges the reversal of the motion justice’s grant of summary judgment.

She argues that a genuine issue of material fact exists on her claim of “[c]ollusion and

[c]onspiracy” because she offered “specific, admissible facts in the records, through

documentation and affidavits” that constitute prima facie evidence on this issue. In her papers

before us, plaintiff, in spite of the above-mentioned affidavit, describes the catalyst of her claim

to be a scheme by Lerner to “set [her] up” and “keep her out” of the center. She asserts that

Lerner discovered that plaintiff knew of Medicare fraud occurring under his supervision. 6 She

contends that this led Lerner to retaliate by persuading Officer Desisto and other department

officers to ban Bainum from the center. Beyond conspiracy, plaintiff challenges the motion

justice’s consideration of collateral estoppel in his grant of summary judgment. 7




5
  During the motion justice’s ruling from the bench, plaintiff interjected that she “never claimed
false arrest.”
6
  Appended to plaintiff’s prebriefing statement is an article from the Hartford Business Journal
that explains Lerner’s role at other nursing homes in “lying to obtain nearly $1.5 million in state
Medicare payments to cover business debts and improvements to his luxury homes.”
7
  Additionally, plaintiff, for the first time at oral argument, asserted what she described as a
violation of her right to associate or “gather” under the First Amendment to the United States
Constitution because she was blocked from visiting Koczan. Beyond this claim lacking merit,
the raise-or-waive rule forecloses our consideration of it.


                                             -4-
                                                 II

                                       Standard of Review

       We review the grant of summary judgment de novo, utilizing standards identical to those

used by the motion justice, while examining the evidence from a vantage point most favorable to

the nonmovant. Providence Journal Co. v. Rhode Island Department of Public Safety ex rel.

Kilmartin, 136 A.3d 1168, 1172-73 (R.I. 2016). “Summary judgment is appropriate when no

genuine issue of material fact is evident from the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits if any, and the motion justice

finds that the moving party is entitled to prevail as a matter of law.” Id. at 1173 (quoting Beacon

Mutual Insurance Co. v. Spino Brothers Inc., 11 A.3d 645, 648 (R.I. 2011)).

                                                III

                                            Discussion

       At the outset, we consider plaintiff’s claim of “collusion and conspiracy.”

Rather than an independent source of liability, civil conspiracy is a vehicle for demonstrating

joint liability for distinct tortious behavior; and, as such, plaintiff must set forth “a valid

underlying intentional tort theory.” Read & Lundy, Inc. v. Washington Trust Co. of Westerly,

840 A.2d 1099, 1102 (R.I. 2004) (quoting Guilbeault v. R.J. Reynolds Tobacco Co., 84 F. Supp.

2d 263, 268 (D.R.I. 2000)). Although plaintiff does not expressly articulate an underlying tort

theory, we glean the underlying tort of malicious prosecution from her papers. 8



8
  Despite plaintiff’s puzzling assertion at oral argument that she has not raised a malicious-
prosecution claim, we will proceed with analyzing this tort because malicious prosecution is the
only possible claim we can perceive from the record. For example, in her complaint, she alleges
that her willful-trespass conviction stemmed from “malicious acts by the Coventry Police Dept.”
The plaintiff also highlighted what she described as “[t]he perjured testimony of Ryan Desisto,
along with other intentional malicious acts by him and other employees of the Coventry Police
Department, [which] were intended to harm the Plaintiff, and they did.”


                                             -5-
          Malicious prosecution requires proof that the defendants (1) commenced a prior criminal

case against the plaintiff, (2) lacked probable cause to bring such a proceeding, (3) maliciously

commenced it, and (4) the prior proceeding closed in favor of the plaintiff. Hill v. Rhode Island

State Employees’ Retirement Board, 935 A.2d 608, 613 (R.I. 2007).                Because we have

traditionally frowned upon malicious-prosecution actions based on their likelihood of deterring

the prosecution of criminal offenses, a plaintiff bears a heightened burden of proof: “‘clear

proof’ of malice and lack of probable cause.” Id. (quoting Soares v. Ann & Hope of Rhode

Island, Inc., 637 A.2d 339, 345 (R.I. 1994)). Here, plaintiff’s claim is easily disposed of as a

matter of law because proof of a criminal conviction conclusively establishes evidence of

probable cause. See Horton v. Portsmouth Police Department, 22 A.3d 1115, 1123 (R.I. 2011)

(“When probable cause exists to initiate a proceeding, a claim of malicious prosecution must fail

* * * .”); Dyson v. City of Pawtucket, 670 A.2d 233, 239 (R.I. 1996).

          Further, the plaintiff’s malicious-prosecution claim fails under the fourth element, which

requires that the criminal proceeding terminated in the plaintiff’s favor. Here, the plaintiff’s

criminal willful-trespass conviction clearly demonstrates that the prior proceeding did not

terminate in her favor. See Heck v. Humphrey, 512 U.S. 477, 484 (1994) (“One element that

must be alleged and proved in a malicious prosecution action is termination of the prior criminal

proceeding in favor of the accused.”); Horton, 22 A.3d at 1123 n.8. Because the underlying

malicious-prosecution claim fails as a matter of law, the plaintiff’s civil-conspiracy claim must

also fail; and, accordingly, our de novo review leads us to conclude that summary judgment was

proper.




                                               -6-
                                                IV

                                            Conclusion

       For the aforementioned reasons, 9 the judgment of the Superior Court is affirmed. The

record in this case shall be remanded to that court.



Justice Flaherty did not participate.




9
  We, too, appreciate plaintiff’s own suggestion at oral argument that this case could have been
disposed of immediately because of her failure to join a proper-party defendant. In accord with
this Court’s holding in Peters v. Jim Walter Door Sales of Tampa, Inc., 525 A.2d 46, 47 (R.I.
1987), the proper defendant would have been the Town of Coventry, rather than the department,
a subdivision of the municipality.


                                              -7-
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Carel Bainum v. Coventry Police Department.
                                     No. 2016-41-Appeal.
Case Number
                                     (KC 13-878)
Date Opinion Filed                   March 27, 2017

Justices                             Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                      Kent County Superior Court

Judicial Officer From Lower Court    Associate Justice Bennett R. Gallo
                                     For Plaintiff:

                                     Carel Bainum, Pro Se
Attorney(s) on Appeal
                                     For Defendant:

                                     Michael DeSisto, Esq.




SU-CMS-02A (revised June 2016)
