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CLAEYS v. VILLAGE OF BROOKFIELD

September 21, 2004.

DANIEL CLAEYS, Plaintiff,
v.
VILLAGE OF BROOKFIELD and LIEUTENANT MICHAEL MANESCALCHI, Defendants.



The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

Before the court is defendants' motion for summary judgment. For the reasons explained below, the motion is granted in part and denied in part.

BACKGROUND

  This is a § 1983 action brought by plaintiff Daniel Claeys against Brookfield Police Lieutenant Michael Manescalchi and the Village of Brookfield (the "Village"). Plaintiff complains that Manescalchi wrongfully arrested him and took his money. The following summary of the relevant facts is drawn from the parties' Local Rule 56.1 Statements; several factual disputes exist*fn1 Plaintiff's Home Repair Work for Cecelia Welenowski

  In August 2002, plaintiff began working for himself as a handyman doing odd jobs in the western suburbs of Chicago. He created flyers advertising "Help Around the House" and distributed them in Brookfield. Around November 18, 2002, plaintiff received a telephone call from a prospective customer, Mrs. Cecelia Welenowski, who apparently learned about Help Around the House through a flyer left at her home. Welenowski is a 76-year-old widow who owns a home in Brookfield. She needed work done in her basement and on a walkway and a patio/driveway on her property.

  On November 22, 2002, plaintiff went to Welenowski's home with his wife and children. (It is disputed whether plaintiff's wife and children went into Welenowski's home, as Welenowski testified, or remained in their van, as Claeys testified.) After plaintiff examined Welenowski's basement, patio, and walkway and discussed their condition with her, he entered into an oral contract with Welenowski to make repairs. Plaintiff and Welenowski agreed that the repairs to the patio and walkway would not be a complete removal and replacement of the concrete, but patchwork where needed and blacktopping to smooth the surfaces. They also agreed that the "waterproofing" work in the basement would not be true waterproofing, but rather the application of a water-sealant paint on the basement walls and floors. In addition to the basement, patio, and walkway work, plaintiff also agreed to make a few other small repairs, including repairs to a step and a door. Plaintiff estimated that it would take a total of six to seven days to complete all the work.

  Plaintiff gave Welenowski two written price estimates. One estimate stated "repair driveway/sidewalk" for $850.00, and the other estimate stated "waterproof basement" for $270.00. These estimates total $1120.00, but according to plaintiff, he agreed to perform all the repairs for $1180.00. (Welenowski does not remember the two separate written estimates, but rather one piece of paper that showed the total estimate.) Plaintiff told Welenowski that she need only pay part of the price up front and the remainder upon completion, but Welenowski offered to pay the total amount immediately. Welenowski drafted a personal check for $1180.00 on her account at the First National Bank of Brookfield (the "Bank"), payable to the plaintiff's wife, Sharon Claeys. Later that same day, Mrs. Claeys went to the Bank and cashed the check.

  Plaintiff went to various hardware stores and bought materials and equipment, including approximately 21 bags of concrete. He spent more than $500.00. On Saturday, November 23 and Monday, November 25, 2002, plaintiff began the work, including moving Welenowski's belongings away from the basement walls and starting some of the concrete work. Plaintiff worked for about six hours on November 23 and more than four hours on November 25. He intended to continue working at Welenowski's home on November 26.

  First National Bank of Brookfield

  On Monday, November 25, Welenowski called her personal banker at the Bank, Roseann Majcen. (Welenowski and Majcen typically had several long conversations each week. Majcen was aware that Welenowski was having repairs done at her house because the previous week, Welenowski had told Majcen that she had hired a repairman whose flyer she had seen and that she was having her driveway blacktopped and sealant applied in her basement. Welenowski apparently also had told Majcen how much she was paying for the work.) Welenowski told Majcen that one of her books of checks was missing, and also told Majcen the following: while the repairman was doing work in the basement, the repairman's wife and children were with Welenowski. Welenowski was reading Bible stories to the children. The repairman's wife asked to use the restroom. When Welenowski went upstairs, the wife was not in the restroom, but in another room. Some time thereafter, Welenowski discovered that a book of checks was missing. Majcen recommended that Welenowski close her current account and open a new one to prevent any possible fraudulent activity involving the missing checks.

  After her conversation with Welenowski, Majcen suspected that the repairman and his wife were trying to take advantage of Welenowski, whom Majcen considered to be a "somewhat confused" person. Majcen spoke with a co-worker about the cost of Welenowski's repairs, and the co-worker thought that the price sounded "a bit excessive." (Defendants' Statement of Facts, Ex. B, Deposition of Roseann Majcen, at 41.) Subsequently, Majcen telephoned the Brookfield Police Department and asked for an officer who was doing "social service type work so they could check and see if this was legitimate work that they were doing on the house." (Id.) Majcen was referred to defendant Lieutenant Manescalchi and left a voice-mail message for him. Majcen stated in the message that Welenowski, an elderly Bank customer, was having repairs done at her house and that Welenowski suspected the repairman's wife of taking a book of checks. Majcen also mentioned that she suspected that the repairman brought his wife and children to Welenowski's house to be a "distraction" so that "maybe they could search around and take stuff." (Id. at 43.) After Majcen left this message, she prepared paperwork in anticipation of closing Welenowski's account and opening a new one.

  Brookfield Police Involvement

  Majcen testified that the next day, Tuesday, November 26, Manescalchi came to the Bank around 9 or 9:30 a.m. to talk with Majcen and follow up on her message. Majcen told Manescalchi what Welenowski had told her: Welenowski had seen a repairman's flyer and had hired him to do driveway and sealing work; the repairman's wife went to the restroom and Welenowski found her in a different room; and Welenowski's checks were missing. Majcen also told Manescalchi the amount that Welenowski was paying for the work. She asked him to "check out" the situation because of Welenowski's "trusting" nature. Manescalchi said that he would do so.

  Manescalchi's version of the meeting at the Bank is different. He believes that the meeting may have occurred on Monday, November 25 and that it did not occur on the same day he arrested plaintiff. He testified that [Bank Vice President] Jayne Williams, not Majcen, called him about Welenowski and that when he went to the Bank, he met with Williams and the teller who had waited on Sharon Claeys when she cashed Welenowski's check. Manescalchi did not know the teller's name. (Evidently, he met with Majcen, although she testified that she was not involved in the check-cashing transaction.) He states that Williams and the teller told him that "somebody came in to cash one of Ms. Welenowski's checks. They were suspicious of the check and that they called her to verify that it was good and that she said, yes, I wrote that check. So they cashed it for the individual. I believe that was on Friday. And then on Saturday Ms. Welenowski came into the bank and went to that teller and told her, you shouldn't have cashed that check, I'm being ripped off. And that teller brought that to Ms. Williams' attention, who, in turn, called me I believe on Monday, but I can't say for sure." (Defendants' Statement of Facts, Ex. D, Deposition of Michael Manescalchi, at 107.) Jayne Williams's account differs from Manescalchi's. She testified that she did not meet with Manescalchi before Claeys's arrest. According to Williams, Majcen and Manescalchi met on Monday, November 25, when Williams was not at the Bank. The first conversation she had with Manescalchi regarding Welenowski occurred on Tuesday, November 26, when Manescalchi brought cash to deposit in Welenowski's account, and Majcen and Manescalchi had to "fill [her] in." (Plaintiff's Exhibits in Opposition to Defendants' Motion, Ex. D, Deposition of Jayne Williams, at 20.)

  Manescalchi testified that some time after the meeting at the Bank, he telephoned Welenowski but got no answer, so then he went to her house to meet with her in person. He estimates that this meeting occurred in the early morning on November 26, around 8:30 or 9:00 a.m. (Welenowski disputes that Manescalchi met with her at this point in time and testified that the first contact she had with Manescalchi occurred after Claeys was arrested.) He identified himself to Welenowski and said that he was there because the Bank called him and told him what she had told them. According to Manescalchi, Welenowski stated that "this nice man and his wife came over and they were doing some work for me, but I think I'm getting ripped off." (Manescalchi Tr. at 113.) Welenowski also told him that she "thought she got a new driveway put in and she paid $800 for it and that her basement was being waterproofed" and asked Manescalchi to look at her basement. (Id.) Manescalchi testified that he looked at the driveway that was sealed, saw an empty five-gallon bucket of sealer, and saw one painted wall in the basement. Welenowski gave him two receipts from the person whom "she knew as Dan." (Manescalchi Tr. at 114.) The receipts totaled over $1,000.00, and his understanding from Welenowski was that $800 was the price for a new blacktopped driveway and the remaining funds were for waterproofing the basement. Manescalchi did not discuss any walkway repairs with Welenowski. He concluded that Welenowski "believed that she got a new asphalt driveway and, in fact, she had not." (Manescalchi Tr. at 129.)

  According to Manescalchi, Welenowski did not know "Dan's" last name, and Manescalchi did not run any sort of records check on plaintiff prior to arresting him.*fn2 When Manescalchi left Welenowski's house, he instructed her to call him when the repairman arrived at her house. He did this in order "to attempt to identify [the repairman] to further investigate the home repair fraud." (Manescalchi Tr. at 140.) Some time later that day, Manescalchi received a radio call from the police dispatcher telling him that Welenowski had telephoned and said that the repairman was coming back to her house. The Arrest

  Manescalchi headed back to Welenowski's house and parked three or four houses away. He saw a gray minivan pull out of an alley and approach Welenowski's house. Manescalchi turned his red lights on and stopped the minivan. (Welenowski had told him that "Dan" had a light-colored minivan.) Manescalchi also radioed for backup.

  According to Manescalchi, the driver matched Welenowski's description of "Dan." The person in the passenger seat, whom Manescalchi later determined to be Daniel Claeys's brother Jon Claeys, "[l]ooked similar to [the driver]" — "[a]bout the same size, blond-ish, light color hair, longer, . . . [p]retty close to the same age." Both men had facial hair and wore "shabby" work clothes. (Manescalchi Tr. at 157-58.) Manescalchi walked up to the driver's window, identified himself and showed his badge, and asked the driver who he was and what he was doing there. The driver said, "I'm Dan Claeys, I'm doing some work for the lady here." (Id. ...


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