Hennepin County Government Center, downtown Minneapolis, Minnesota
Malicious Prosecution lawsuit
Gregerson v. Smith, Parker, et. al.

Malicious Prosecution - Appeal

malicious prosecution
docket
-Complaint
-Smith's answer
-Kazaryan's answer
-motion to dismiss
-punitive damages
-summary judgment
discovery
appeal
petition for review

On May 13th, 2010, I filed a notice of appeal with the Minnesota Court of Appeals. I am appealing the trial court's summary judgment in favor of the defendants in my malicious prosecution/abuse of process lawsuit. It was dismissed without allowing me to go to trial because I allegedly did not have enough evidence to create a genuine dispute which required a trial.

The Court of Appeals case number is A10-863. A redacted version of my appellant brief is below (the addendum and appendix are not included):
Appellant's Brief, Minnesota Court of Appeals

The case was scheduled for non-oral conference on October 14th, 2010, and was assigned to Judge Roger M. Klaphake, Judge Jill Flaskamp Halbrooks, and Judge Francis J. Connolly.

Decision

The appeal opinion was written by retired Judge James C. Harten and issued November 9th, 2010. The court of appeals AFFIRMED the dismissal of all of my claims against all defendants, without allowing me to proceed to trial, because there was no evidence to support my claim I had been sued without probable cause. The opinion can be read here:

If you read the history of the original litigation against me, there was both evidence and court opinions that the seven claims against me were "purely speculative", had "no credible evidence", and were "highly implausible". The fact that I prevailed on all seven counts while representing myself in court pro-se further suggests they lacked probable cause (the case is Gregerson v. Vilana Fin., Inc., No. 06-1164, 2008 WL 451060 (D. Minn. Feb. 15, 2008)). On November 12th, 2010, the court of Appeals decision was discussed in an article on Slashdot.

One of the defendants in the current suit, Bassford Remele, had written a note during the earlier litigation saying their client is lying. None of this evidence was mentioned in the Court of Appeals opinion affirming dismissal of my claims, without trial, based on lack of evidence. A summary is below.

Claim: defendants sued me knowing their client's claims were false.
evidence on the record conclusion of the Court of Appeals
"...client...is lying about buying picture from person who can't be located."
...there is no credible evidence to support the belief that "Zubitskiy" exists or was the source of the controverted photos. It is highly implausible...(¶ 13)
--Judge Ann D. Montgomery, Findings of Fact and Conclusions of law in the original litigation against me, 2008-02-15
Appellant asked [defendant] Parker in discovery if he believed Vilenchik's claims in the underlying litigation; Parker refused to answer...on the grounds it was irrelevant.
Appellant asked [defendant] Smith in discovery if he believed Vilenchik's claims in the underlying litigation; he declined to say believed Vilenchik.
"Respondents did believe their client and had a reasonable belief that the counterclaims against appellant would succeed."

note: in the legal briefs filed by the respondents, they never claimed they believed their client. This claim has only been asserted by the Court of Appeals on their behalf. The note at left in which Rebecca Moos writes "...[our] client...is lying..." was quote in my appellant's brief three times (on pages 14, 19, and 34), but was ignored and not mentioned in the Court of Appeals opinion.

Note that I am not asking the Court of Appeals for a verdict in my favor, I am asking to go to trial and have my day in court, just as the other side had their day in court against me before.

Claim: defendant's client's claims were an obvious falsehood, and they knew so and/or had a reckless disregard for the truth.
evidence on the record conclusion of the Court of Appeals
Further undermining Defendants’ story is the fact no contact information for Zubitskiy was included on the 3/19/04 Agreement presented by Defendants and, despite Plaintiff’s discovery requests, Defendants have failed to provide any information regarding the whereabouts or existence of Zubitskiy. (¶ 13)
Further, when notified that the Commissioner of Commerce was prepared to formally investigate whether Kazaryan fraudulently notarized the 3/19/04 Agreement, Kazaryan voluntarily agreed to surrender his notary seal. (¶ 16)
...[they claim] Zubitskiy took the photos in March, yet the conditions depicted in the photograph show it was taken during late spring or summer (¶ 14).... Zubitskiy is fictional and the 3/19/04 agreement is fraudulent (¶ 16)
--Judge Ann D. Montgomery, Findings of Fact and Conclusions of law in the original litigation against me, 2008-02-15
"Respondents client...assured them that he had paid Zubitskiy, the purported owner of the photographs, and produced a notarized sales agreement."
assertions [that cast doubt on the truthfulness of Vilenchik‟s claims] do not create a genuine issue of material fact for trial on a claim for malicious prosecution because they do not establish that [respondents] did not or could not believe those facts to be true.

In addition to being prohibited from representing facts that a lawyer knows are false, they are prohibited from representing an "obvious falsehood". Their client's version of events was ruled to a "highly improbable" lie, with "no credible evidence" to support it. The Court of Appeals ignored this evidence.

Claim: defendants sued me when they had no evidence to support their client's claims, lacking probable cause.
evidence on the record conclusion of the Court of Appeals
"Gregerson’s certificates of copyright registration constitute sufficient evidence of existence and ownership of a valid copyright for images #2891 and #2258, and there is no genuine dispute as to the ownership of the photos in question.(p. 6)"
"Count six...for unjust enrichment... is purely speculative...Motion for Summary Judgment is Granted..."(p. 16)
--Judge Ann D. Montgomery, Memorandum Opinion and order, 2007-08-31
Q. Can you tell me why you believe more strongly that Michael Zubitskiy is the photographer rather than myself?
A. Because I bought a picture from him.
...
Q. Are you aware of any evidence Michael Zubitskiy took the photo?
A. I am not aware.
...
Q. Have you attempted to contact Michael Zubitskiy to ask him about whether he took the picture from this web page?
A. I haven't.
...
A. ...I'm not questioning your copyright on the picture.
--deposition of defendant's client, 2006-02-13 (quoted in Appellant's Brief).
"Appellant argues that, because he claimed ownership of the photographs, respondents could not have believed that their client's claims had merit. But believing one's clients' claims and disbelieving one's opponent's conflicting arguments and evidence is the norm for litigation attorneys."
--Court of Appeals Opinion, p. 7 (emphasis added).

note: I did not claim ownership, I had legally-binding title of ownership (in the form of a valid certificate of copyright registration). I also had proof of prior publication and exclusive possession of the high-resolution file. My opponent did not claim ownership, and admitted to having no evidence the (fictional) source of the photo was the true owner, and even denied he was challenging my claim of ownership; it was his attorney's who orchestrated and invented the client's factual claims on his behalf.

Claim: defendants used the lawsuit against me to demanded I stop all speech about their client including expression of opinion and true facts protected by the 1st amendment ("abuse of process")
evidence on the record conclusion of the Court of Appeals
"The [lawyer's] letter demanded that Gregerson remove the entire essay from Gregerson's website. [The] lawyer surely knew he could only ask Gregerson to remove those statements in the essays that were allegedly false...[he] made no effort to describe to Gregerson what statements in the essay were allegedly false. The lawyer's letter appears to be a bullying tactic designed to cause Gregerson to refrain from making statements which [he] knew Gregerson was entitled to make."
--Judge Mark Wernick, opinion and order, April 10, 2006

note: during settlement discussions I was never asked to pay money damages or remove false information from my website. The only demand was that I cease ALL speech about their client, including true speech and expressions of opinion that are within my first-amendment rights. I was told they would continue their claims against me in court unless I permanently surrendered this free-speech right.

"...[they] aimed to stop the publication of negative information and opinion about themselves, and a favorable judgment on their counterclaims would presumably have achieved that objective by requiring appellant to cease that publication on his website."
--Court of Appeals Opinion, p. 9 (empahsis added).

Note: it is inconceivable that any legal claim would result in a person being required to stop the publication of "opinion"; and the publication of information not even challenged as false is protected under the first amendment. This opinion by the Minnesota Court of Appeals states it is a legitimate use of Minnesota courts to sue someone to compel them to stop publishing opinion and truthful information. It is grossly obvious this is directly and completely contradicted by First Amendment to the U.S. Constitution.

What you can do

The internet is powerful, or I would not have been targeted with the earlier baseless lawsuits over my website. If you believe lawyers who represent bogus claims are liable for the damages of the victims of that conduct, you can help -- LINK TO THIS WEBSITE, using meaningful linkwords:

http://www.cgstock.com/malicious_prosecution/

What I can do

Petition the Minnesota Supreme Court to review this decision. If review is granted, seek input in the form of an Amicus Curiae brief from organizations interested in the First Amendment.

Links

Post a comment on this page

Disclaimer: This is a personal website expressing the opinions and observations of the author.
Website first posted: July 4th, 2009. This page last modified: 2010-11-16
The underlying defamation lawsuit -- Chris Gregerson (chris@cgstock.com)
http://www.cgstock.com/malicious_prosecution