Opinion
CV095031331S
12-12-2016
Giuseppe Capasso v. Ian Christmann
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT #150.00
Matthew E. Frechette, J.
I. FACTS
The gravamen of this case arises from a dispute between two neighbors with abutting property. In a second revised complaint dated March 3, 2012, the plaintiffs, G.L. Capasso Inc., and its managing partner, Giuseppe Capasso, assert six causes of action against the defendants, Ian and Carolyn Christmann. The complaint alleges the following facts. The plaintiff operates a construction company at 15 Oxford Street, New Haven, Connecticut, under a special exception permit granted since 1984. The defendants are abutting neighbors at 475 Quinnipiac Avenue, New Haven, Connecticut, and have a history of complaints against the plaintiffs' use of the property, including the construction of a chain link fence, storage of materials on the property, and operating commercial vehicles early in the morning outside the time periods pursuant to the special exception. The defendants have communicated with New Haven officials regarding the legality of the plaintiffs' fence. As a result of the defendants' actions, the plaintiffs filed the current action as a response " to [d]efendants ' extortion scheme seeking to extort action from [p]laintiffs in return for the [d]efendants not continuing to publish scandalous, scurrilous and false claims and statements of alleged inappropriate conduct of the [p]laintiffs . . ." The complaint states six causes of action: defamation, tortious inference with prospective business relations, prima facie tort, intentional infliction of emotional distress, negligent infliction of emotional distress and violation of the Connecticut Unfair Trade Practices Act (CUTPA).
For the purposes of this memorandum, " plaintiff" and " Capasso" will refer to Giuseppe Capasso. Defendants will be named individually.
On September 15, 2014, the court (Blue, J.), granted the defendants' motion for summary judgment (137.20). On appeal, the Appellate Court reversed and remanded the court's decision, stating that " [s]ummary judgment could not be rendered if the defendants failed to establish that there was no genuine issue as to any material fact." Capasso v. Christmann, 163 Conn.App. 248, 261, 135 A.3d 733 (2016). On May 19, 2016, the defendants filed a motion for summary judgment (150.00). In response, the plaintiff filed a second supplemental memorandum in opposition (152.00) and an affidavit in opposition to the summary judgment (151.00). The parties presented oral arguments on August 15, 2016, and returned to court for further argument on November 21, 2016. Additional facts will be discussed where relevant.
II. DISCUSSION
A. Legal Standard--Summary Judgment
" A party seeking summary judgment has the considerable burden of demonstrating the absence of any genuine issue of material fact because litigants ordinarily have a constitutional right to have issues of fact decided by a [trier of fact] . . . Thus, [i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citation omitted; internal quotation marks omitted.) Midland Funding, LLC v. Mitchell-James, 163 Conn.App. 648, 654-55, 137 A.3d 1 (2016). " Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Id., 655.
" Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Rieffel v. Johnston-Foote, 165 Conn.App. 391, 400, 139 A.3d 729, cert. denied, 322 Conn. 904, 138 A.3d 289 (2016).
" A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment . . . The facts at issue [in the context of summary judgment] are those alleged in the pleadings ." (Citation omitted; emphasis in original; internal quotation marks omitted.) Stevens v. Carlton Helming, 163 Conn.App. 241, 245, 135 A.3d 728 (2016).
" In deciding such a motion, the court's sole task is to determine whether genuine issues of material fact exist, not to resolve those issues on the merits. The existence of a genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence, and not by [m]ere assertions of fact." (Internal quotation marks omitted.) Nova Dye & Print Co. v. Winogradow, Superior Court, judicial district of Waterbury, Docket No. CV-99-0153399, (May 4, 2001, Doherty, J.). " An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule. On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).
B. Parties' Arguments
Briefly summarized, in their motion for summary judgment, the defendants assert that there is no evidence of a false statement made, either orally or written, that caused harm to the plaintiffs. Additionally, there is an absence of evidence that the defendants' conduct satisfies the elements required for tortious interference, intentional infliction of emotional distress, negligent infliction of emotional distress and violation of CUTPA. Furthermore, the defendants argue that the third count, " prima facie tort, " is the same cause of action as the second count. As evidence, the defendants attached the following documentation (150.00): Exhibit A--an affidavit from Ian Christmann dated May 19, 2016, a map of the neighboring property, an article from the New Haven Independent newspaper entitled " Mr. Capasso, Tear Down That . . . Fence" dated March 12, 2009, and a copy of Capasso's special exception permit from the city of New Haven dated December 5, 1984; Exhibit B--transcript excerpts from the deposition of Capasso (uncertified); Exhibit C--e-mails between the defendants and city of New Haven officials between February and November 2009 (unauthenticated); Exhibit D--a copy of the court's memorandum of decision in New Haven v. G.L. Capasso, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023753-S, (April 15, 2013, Berdon, J.T.R.); Exhibit E--a copy of the plaintiffs' notice of serving supplemental compliance with interrogatories; and Exhibit F--an affidavit from Carolyn Christmann dated May 19, 2016, and the same attachments found in Exhibit A (map of the neighboring property, New Haven Independent article, copy of Capasso's special exception permit).
In their opposition memoranda, the plaintiffs contend that the submitted evidence and affidavits support all of the causes of action alleged in the complaint. The plaintiffs attached the following documentation to the second supplemental memorandum in opposition (152.00): Exhibit 1--e-mails between the parties and city of New Haven officials between February and March 2009 (unauthenticated) and a letter from the New Haven Executive Director of Public Works to Ian Christmann dated March 9, 2009; Exhibit 2--an e-mail exchange between the plaintiffs' attorney and members of the Quinnipiac River Community Group between June 2 and 3, 2009 (unauthenticated); Exhibit 3--another e-mail from Ian Christmann to New Haven officials dated April 30, 2009 (unauthenticated). The plaintiffs also filed an affidavit by Capasso in opposition to summary judgment (151.00) which included: Exhibit 1--a copy of a motion for contempt filed by the city of New Haven in New Haven v. G.L. Capasso, Inc., Docket No. CV-11-6023753-S dated October 16, 2014; a copy of the court's memorandum of decision in New Haven v. G.L. Capasso, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023753-S, (April 15, 2013, Berdon, J.T.R.) (same as Exhibit D in the defendants' motion for summary judgment); a copy of New Haven v. G.L. Capasso, Inc., 151 Conn.App. 368, 96 A.3d 563 (2014); a copy of Ian Christmann's affidavit in New Haven v. G.L. Capasso, Inc., Docket No. CV-11-6023753-S, dated October 16, 2014; Exhibit 2--transcript excerpts from oral arguments in New Haven v. G.L. Capasso, Inc., Docket No. CV-11-6023753-S, on March 24, 2015 (uncertified); Exhibit 3--a copy of the plaintiffs' notice of serving supplemental compliance with interrogatories (same as Exhibit E in the defendants' motion for summary judgment) which includes a " lost work/profit claims" worksheet filed by the plaintiffs.
C. Evidence Authentication
As a preliminary matter, the court notes that in addition to properly sworn and signed affidavits, both parties have submitted unauthenticated evidence and uncertified transcript excerpts. " [B]efore a document may be considered by the court [in connection with] a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009). " Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006)." Stonington v. State of Connecticut, Office of Policy & Management, Superior Court, judicial district of New London, Docket No. CV-06-4006164-S (July 2, 2009, Martin, J.) (48 Conn.L.Rptr. 166, 168, ).
" Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). " However, where unauthenticated documents are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them." Grasson v. Salati, Superior Court, judicial district of New Haven, Docket No. CV-10-5033540-S, (March 21, 2013, Wilson, J.); see also King v. Teamster Local 443, Superior Court, judicial district of New Haven, Docket No. CV-08-5023817-S, (January 18, 2013, Frechette, J.). Furthermore, " [w]here both parties have submitted identical copies of the same document as evidence to be considered by the court in support of their respective positions on a party's motion for summary judgment, both can be understood to have admitted by their references to it in their affidavits, briefs and arguments that the [document] before the court was in fact authentic." (Internal quotation marks omitted.) Thompson-Taffe v. Advent Automation, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-11-6019146-S, (November 6, 2013, Hartmere, J.), citing Bruno v. Whipple, 138 Conn.App. 496, 507, 54 A.3d 184 (2012).
Accordingly, in the present matter since neither party has made any evidentiary objections, the court has the discretion to consider the unauthenticated evidence, including the e-mails and uncertified deposition transcripts submitted by both parties. To the extent that there is hearsay in the parties' affidavits, the court will not consider such statements. " Hearsay statements are insufficient to contradict facts offered by the moving party . . . and if an affidavit contains inadmissible evidence it will be disregarded." (Citations omitted; footnote omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 568-69, 636 A.2d 1377 (1994); see also Walker v. Housing Authority, 148 Conn.App. 591, 600, 85 A.3d 1230 (2014) (" [h]earsay is generally inadmissible; see Conn. Code Evid. § 8-2; and therefore when deciding a motion for summary judgment a court may not consider material that would be hearsay at trial").
D. First Count--Defamation
" Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him . . . Slander is oral defamation . . . Libel . . . is written defamation." (Citations omitted; internal quotation marks omitted.) Lega Siciliana Soc. Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). " A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007).
" To prevail on a common-law defamation claim, a plaintiff must prove that the defendant published false statements about her that caused pecuniary harm." Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). In order to support a cause of action for defamation, " the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Id. " A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . In a libel action, such statements of fact usually concern a person's conduct or character . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." (Citations omitted; emphasis omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 448 A.2d 1317 (1982). Although " this distinction [between fact and opinion] may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." (Footnote omitted; internal quotation marks omitted.) Id., 111-12. " [I]f the alleged defamatory words could not reasonably be considered defamatory in any sense, the matter becomes an issue of law for the court . . . When such a determination is made, the words that are claimed to be defamatory are given their natural and ordinary meaning and are taken as reasonable persons would understand them . . . Moreover, the words must be viewed in the context of the entire editorial." (Citations omitted; internal quotation marks omitted.) Dow v. New Haven Independent, Inc., 41 Conn.Supp. 31, 36, 549 A.2d 683 (1987).
" A claim of [defamation] must be pl[eaded] with specificity, as the precise meaning and choice of words employed is a crucial factor in any evaluation of falsity. The allegations should set forth facts . . . sufficient to apprise the defendant of the claim made against him . . . [A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom . . ." (Internal quotation marks omitted.) Stevens v. Carlton Helming, supra, 163 Conn.App. 247 n.3. Additionally, " [i]mprecise pleading is not permitted in the context of alleged [defamation], and the court will confine itself to allegations specifically pl[eaded] in the operative complaint. The court agrees . . . that only the allegations of the operative complaint can be considered in deciding [a] motion for summary judgment." (Internal quotation marks omitted.) Id.
There are various defenses to defamation. " Truth is an absolute defense to an allegation of libel." Mercer v. Cosley, 110 Conn.App. 283, 301, 955 A.2d 550 (2008). In addition, " [t]he privilege of 'fair comment, ' . . . [is] a qualified privilege to express an opinion or otherwise comment on matters of public interest." Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 114. " In order for a statement to be defended as fair comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement of fact." (Internal quotation marks omitted.) Id., 121. See generally S. Harris, 14 Connecticut Practice Series: Employment Law (2005) § 3:2, pp. 161-65.
Here, in paragraph 7 of the complaint, the plaintiffs assert that the defendants made false claims and statements of alleged inappropriate conduct, stating the plaintiffs " (a) were not good members of the community; (b) violated the law; (c) showed their disregard of the damage of the neighborhood by its installation of a fence; (d) allowed and caused a deterioration of the environment; (e) violated ordinances and permits; and (f) owned property potentially contaminated by petroleum products." Furthermore, in paragraph 20, the plaintiffs allege that the defendants conducted a " libelous public campaign against the plaintiffs in [e]-mails and in the newspaper: (a) referring to the [p]laintiffs' legal and necessary fence as a 'spite fence; ' (b) accusing the [p]laintiffs of multiple other purported wrongful activity, including violating zoning laws and the illegal storage and disposal of chemicals, and (c) stating 'just so you don't feel picked on' threatening the 'launching an environmental injustice campaign' as a cover for their aforesaid campaign against the [p]laintiffs."
The Christmanns contend that neither of them made a false statement of fact about the plaintiffs. In addition, any statements made by the defendants were either true statements of fact or privileged opinion. As evidence, both defendants provided affidavits stating: " At no time did I make a false statement of fact (orally or in writing) concerning G.L. Capasso or Guiseppe Capasso. At no time did I convey anything orally or in writing that could be construed plausibly as a false statement of fact with respect to whether G.L. Capasso and/or Guiseppe Capasso: (a) were not being good members of the community; (b) violated the law; (c) damaged the neighborhood; (d) caused a deterioration of the environment; (e) violated ordinances; and/or (f) contaminated property with petroleum products." As the defendants have met their initial burden, the plaintiffs must present evidence that demonstrates the existence of some disputed factual issue. It is not enough to merely assert the existence of a disputed issue. Rieffel v. Johnston-Foote, supra, 165 Conn.App. 400.
In response, the plaintiffs argue that the ten statements listed in Carmine Capasso's affidavit dated July 31, 2014 (140.00), evidences defamatory and false statements made by the defendants. The ten statements found in paragraph 13 of the affidavit states: " Exhibits 1, 2, and 3 attached to [p]laintiffs' [m]emorandum in [o]pposition (139.00) contained false accusations and statements and threatened a continuing public campaign against my father and [G.L. Capasso Inc.] expressly stating and implying that [G.L. Capasso Inc.] and my father: (1) were not good neighbors, businesses and members of the community; (2) were violators of the zoning law and both state and local fence regulations; (3) had an improper relationship with New Have[n] such that the [c]ity gave them a sweetheart [deal] and failed to enforce its codes against them; (4) were not good, and needed to be better, corporate citizens; (5) were landlords with property needing to get in shape; (6) were suspected of improper chemical storage and disposal; (7) had OSHA issues; (8) would be subjects in an environmental injustice campaign by people very successful in raising their concerns to the broader public; (9) would be subjected to complaints for every little claimed violation; and (10) should work with the [d]efendants or expect escalation."
Specific allegations of defamatory statements not raised in the complaint (such as alleged statements later raised in a reply brief) are not before the court's consideration in a motion for summary judgment because the court can consider only the facts alleged in the pleadings. Stevens v. Canton Helming, supra, 163 Conn.App. 246. " Simple fairness requires that a defendant not be forced to defend against facts that are not clearly pleaded in a complaint." Id., 248. Nevertheless, the court has reviewed all of the submitted evidence and affidavits that the plaintiffs purports to demonstrate defamatory statements made by the defendants.
As a preliminary matter, the complaint includes general allegations that the defendants made false claims that the plaintiffs " violated the law, " " violated ordinances and permits, " and " violat[ed] zoning laws." See paragraphs 7(b), 7(e) and 20(b) respectively. Perhaps in support of these assertions, the plaintiffs attached to Capasso's affidavit in opposition to summary judgment, Judge Berdon's memorandum of decision dated April 15, 2013, in New Haven v. G.L. Capasso, Inc., Superior Court, judicial district of New Haven, Docket No. CV-11-6023753-S, and the Appellate Court's subsequent decision, 151 Conn.App. 368, 96 A.3d 563 (2014). The court notes that Judge Berdon concluded that the defendants in his case (the plaintiffs in the present action) violated the conditions of the special exception to a zoning ordinance and issued a mandatory injunction against the defendants. On appeal, the Appellate Court affirmed the decision, finding that there was sufficient evidence to establish that the defendants violated the conditions of the special exception. " For a claim of defamation to be actionable, the statement must be false and truth is an affirmative defense." Rafalko v. University of New Haven, 129 Conn.App. 44, 53, 19 A.3d 215 (2011).
The other alleged specific defamatory statements in the complaint originates from paragraph 20, including accusations of a " spite fence, " violations of zoning laws and the illegal storage and disposal of chemicals, " just so you don't feel picked on, " and threatening the " launching [of] an environmental injustice campaign." These statements derive from the following exhibits.
E-mails between Christmanns and New Haven Officials
Both parties attached numerous e-mails between the Christmanns and New Haven officials. Between February 26 through 28, 2009, Ian Christmann wrote to various city officials, requesting a stop work notice be issued on the plaintiffs' fence installation. In an e-mail dated March 4, 2009, Ian Christmann wrote to John Prokop, Executive Director of Public Works for New Haven, requesting a fencing hearing over the plaintiffs' chain link fence. In a letter dated March 9, 2009, Prokop responded that the city is not obligated to provide a hearing and that the plaintiffs' fence is in compliance with zoning regulations. The Christmanns sent e-mails on April 28, May 4, 12, 26, 29, June 14, 16, October 24, November 2 and 10, 2009, to various city officials, including Rizzo, Ramos and Rhodeen, complaining of noise stemming from the plaintiffs' property early in the morning, including the forklifting of scaffolding materials and loading of construction trucks. These e-mails demonstrate that the defendants were attempting to seek assistance in resolving a fencing dispute and reporting noise complaints. The complaint has neither specified, nor can the court discern, any allegations of defamatory statements from these e-mails.
The officials include: Andrew Rizzo, Building Official/Executive Director of the New Haven Building Department, Rafael Ramos and Alex Rhodeen, Alderman for Ward 13.
For example, on April 28, 2009, Ian Christmann e-mailed: " [I]t's 6:23 a.m. and Capasso is forklifting metal scaffolding into their truck." On June 14, 2009, Carolyn Christmann e-mailed: " Capasso on site at 5:55 [a.m.] on Sunday! Beeping [t]ruck arrives." On June 16, 2009, Ian Christmann e-mailed: " This morning at 6:15 we were woken to sound of Capasso's beeping trucks and the workers forklifting scaffolding." On October 24, 2009, Ian Christmann e-mailed: " Capasso was on site yet again at 6:30 this a.m. (Saturday)." On November 10, 2009, Carolyn Christmann emailed: " Capasso on site before 6:15 [a.m.] today. Trucks beeping/backing at 6:17 [a.m.]."
New Haven Independent Article
The plaintiffs assert that further defamatory statements were made in an article published by the New Haven Independent . Titled " Mr. Capasso, Tear Down That . . . Fence, " the March 12, 2009 article describes the fencing dispute between the parties. The article states that Ian Christmann contacted his alderman, Rhodeen, because he was alarmed by the potential barbed wire on top of the plaintiffs' chain link fence. " As a result of that call, Rafael Ramos of the city's Livable City Initiative arrived last week. He declared that all barbed wire is forbidden in the city. Christmann remembers a shouting match between Ramos and Vinnie Capasso. The result: no barbed wire was put up, but the eight-foot chain link fence, which is in compliance with code, went right up." The article further states that " meanwhile, other neighbors have been emailing Capasso, calling on the company's sense of citizenship and asking him to compromise in some matter to give the Christmanns some relief." The article quoted Carolyn Christmann stating, " We still really want this to work out. We don't want to report every little violation in the yard now. We just want a fence we can live with and to continue to be good neighbors." The complaint has neither specified, nor can the court discern, any allegations of defamatory statements made by the defendants against the plaintiffs in the newspaper article.
E-mails between the Parties
The plaintiffs' allegations predominately relies on two e-mails received by the plaintiffs (see plaintiffs' second supplemental memorandum in opposition, exhibit 1, pp. 5-6): One sent on February 27, 2009, at 12:03 p.m. from the Quinnipiac River Community Group (the " 12:03 p.m. e-mail") signed by " Ian Christmann, QRCG member, " and the second, a reply to that e-mail at 5:10 p.m. from alfresco@comcast.net (the " 5:10 p.m. e-mail") signed by " C." The 12:03 p.m. e-mail sent by Ian Christmann references an earlier e-mail (the " 9:29 a.m. e-mail"). During oral arguments on November 21, 2016, the plaintiffs' attorney stated that the contents of the 5:10 p.m. e-mail is not considered as evidence of defamatory statements made by the defendants, as the statements contained therein were neither made by or published by the defendants. " [S]tatements of both counsel in open court . . . are judicial admissions binding on their clients." Bank of Stamford v. Schlesinger, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-90-0107264-S, (February 28, 2014, Tierney, J.T.R.), aff'd, 160 Conn.App. 32, 125 A.3d 209 (2015). " Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings." Jones v. Forst, 41 Conn.App. 341, 346, 675 A.2d 922 (1996). " The general rule is that admissions, if relevant and material, made by an attorney incidental to the general authority of the attorney to represent his client in connection with and for the purpose of controlling the matter committed to him are admissible against the client." Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 218 Conn. 474, 478, 590 A.2d 431 (1991), quoting Collens v. New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967). Accordingly, the allegations that the defendants wrote defamatory statements in the 5:10 p.m. email regarding the plaintiffs' " spite fence, " suspected chemical storage and disposal issues and " OSHA and declaration issues" are not applicable.
Furthermore, evidence in the record suggests that the author of the e-mail address alfresco@comcast.net is Chris Ozyck, another QRCG member and a not party in this action. See plaintiffs' second supplemental memorandum in opposition, exhibit 2, pp. 10-11.
The defendants' counsel admitted that the 12:03 p.m. e-mail was from Ian Christmann, which stated in relevant part, " I neglected to include the first part of Chris's email before sending it out." At oral arguments, counsel admitted that the e-mail implicitly references the 9:29 a.m. email, which included the following statements: " With the sweetheart deal you got from the [c]ity I would think you would be a better corporate citizen . . . Besides, your fence is out of compliance with both state and local regulations and I believe you need zoning relief to do your yard storage in a RM 1 zone . . . We will be launching an environmental injustice campaign this spring against bad actors in the heights, I hope we will be able to highlight you as a good neighbor and business . . . Thanks Chris."
Words that are claimed to be defamatory are given their natural and ordinary meaning and must be viewed in the context of the entire editorial. Dow v. New Haven Independent, Inc., supra, 41 Conn.Supp. 36. Upon review of the 12:03 p.m. and 9:29 a.m. e-mails, the court finds that none of the alleged statements are defamatory, and are, at worse, an expression of opinion from the author. Referencing the plaintiffs' zoning variance as a " sweetheart deal" and believing that the plaintiffs need zoning relief for storage are the opinions of the author. Expressions of pure opinion are (those based upon known or disclosed facts) are " guaranteed virtually complete constitutional protection." Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 118. Furthermore, reference to the QRCG's environmental injustice campaign indicates hope that the plaintiffs will be used as a good example for the community, and does not constitute a false statement causing pecuniary harm. In the absence of a genuine issue of material fact as to whether the defendants published defamatory statements, summary judgment is appropriate. See generally Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 906 A.2d 14 (2006); Traylor v. Kopp, Superior Court, judicial district of New London, Docket No. CV-13-5014624-S, (July 2, 2015, Zemetis, J.); Nodoushani v. Southern Connecticut State University, Superior Court, judicial district of New Haven, Docket No. CV-06-5007490-S, (June 4, 2012, Young, J.), aff'd, 152 Conn.App. 84, 95 A.3d 1248 (2014).
E. Second Count--Tortious Interference with Business Expectancies
" It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 510, 28 A.3d 976 (2011). " [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant's conduct was in fact tortious." (Internal quotation marks omitted.) Solomon v. Aberman, 196 Conn. 359, 365, 493 A.2d 193 (1985). " The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough . . . A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . It is also true, however, that not every act that disturbs a contract or business expectancy is actionable . . . A defendant is guilty of tortious interference if he has engaged in improper conduct . . . [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means . . . Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant's commission of a tort ." (Emphasis added; internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 710, 138 A.3d 951 (2016); see also Biro v. Hirsch, 62 Conn.App. 11, 21, 771 A.2d 129 (" [t]he plaintiff [is required] to plead and prove at least some improper motive or improper means"), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
In the present matter, the plaintiffs have not demonstrated that the defendants committed a tort. As discussed in the preceding section, none of the defendants' alleged statements constituted the tort of libel and/or slander. Furthermore, the plaintiffs lack the necessary allegation that the defendants knew of the plaintiffs' business relationships. The defendants have met the initial burden of proof by providing affidavits that state: " At no time did I interfere, knowingly or otherwise, with G.L. Capasso's or Guiseppe Capasso's customers or business pursuits." Once the defendants meet their burden, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Mere assertions of fact are insufficient to establish the existence of a material fact. Rieffel v. Johnston-Foote, supra, 165 Conn.App. 400. The plaintiffs' affidavits do not contain evidence or facts indicating that the defendants intentionally interfered with a business relationship while knowing of the relationship. Accordingly, because there are no genuine issues of material fact that the defendants knowingly and intentionally interfered with the plaintiffs' business relationships or engaged in any tortious conduct, the defendants are entitled to summary judgment.
F. Third Count--Prima Facie Tort (Extortion)
Count three of the complaint is titled " prima facie tort." The plaintiffs' supplemental memorandum of law in opposition to summary judgment (143.00) states that this cause of action is extortion pursuant to General Statutes § 53a-119(5)(B). See Capasso v. Christmann, 163 Conn.App. 248, 252 n.3, 135 A.3d 733 (2016) (" the plaintiffs clarified that the tort alleged in count three was extortion"). The count incorporates the allegations in the preceding paragraphs of the complaint and further states the defendants' conduct " was completely unjustified and was intended to inflict substantial harm on the [p]laintiffs." In their supplemental memorandum, the plaintiffs assert that " [o]ne method for committing this type of extortion is abuse of process" and that " the [d]efendants used their complaints and publications to the Quinnipiac River Community Group (QRCG) as leverage to coerce the [p]laintiffs to install the fence they wanted." In their motion for summary judgment, the defendants incorporate the same arguments used in addressing the tortious interference cause of action, while noting that " [t]he defendants are unable to discern any meaningful difference between the second and third counts, and are equally unable to comprehend a viable legal theory in [c]ount [t]hree."
General Statutes § 53a-119(5) defines " Extortion" as: " A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime; or (D) accuse some person of a crime or cause criminal charges to be instituted against him; or (E) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or (F) cause a strike, boycott or other collective labor group action injurious to some person's business; except that such a threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act; or (G) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or (H) use or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely; or (I) inflict any other harm which would not benefit the actor."
" This court is not aware of any case law that provides a civil remedy for attempted extortion in violation of General Statutes § 53a-119(5)(D). Therefore, there is an absence of any genuine issue of material fact as to whether count three of [the] complaint states a legally cognizable cause of action." Carnemolla v. Walsh, Superior Court, judicial district of Waterbury, Docket No. CV99-0155192-S, (November 8, 2001, Rogers, J.), aff'd, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); see also Hanssler v. New Country Motor Cars of Greenwich, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-02-0192755-S, (October 19, 2005, Wilson, J.) (" [T]he plaintiff here has no civil cause of action. Section 53a-119(5)(D) is inapplicable in the present case as the statute does not apply to victims of a crime who seek restitution"). Accordingly, as the third count provides no civil remedy because it is a provision of the criminal code, the defendants are entitled to summary judgment.
G. Fourth Count--Intentional Infliction of Emotional Distress
In the fourth count of the complaint, the plaintiffs allege that the defendants " have maliciously embarked on a course of conduct intended to cause Capasso . . . to suffer mental and emotional distress, tension and anxiety . . ."
" In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Footnote omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). " All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Biro v. Hirsch, supra, 62 Conn.App. 20.
" Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 443.
" [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint, counterclaim or cross complaint set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006). " Moreover, the publication of a newsworthy article does not create an unreasonable risk of causing emotional distress." (Internal quotation marks omitted.) Finnelli v. Tepfer, Superior Court, judicial district of Fairfield, Docket No. CV-07-5011659-S, (April 24, 2009, Gilardi, J.).
In the present matter, the defendants argue that as a matter of law, there is no conduct attributable to them that could be construed as extreme and outrageous. In addition, they argue that there is no admissible evidence that could be construed as severe emotional distress suffered by the plaintiff. Upon review of the plaintiffs' evidence, the allegations of emotional distress stems from two sources: an affidavit by Carmine Capasso (140.00), in which paragraph 27 states: " Although not one of the [d]efendants' libelous or slanderous statements about [G.L. Capasso Inc.] or my father is true, nevertheless the published remarks had an adverse effect on members of the public and in [G.L. Capasso Inc.'s] business relationships and when confronted with these claims my father's enjoyment of life and personal relationships were impaired and caused him emotional distress." Additionally, in Capasso's deposition, the plaintiff stated that he has trouble sleeping as a result of the defendants' conduct.
The court finds that the defendants' alleged actions do not constitute extreme and outrageous conduct. As discussed previously, the defendants' quotes in the newspaper article and from the QRCG e-mails do not constitute defamatory statements, nor are such statements, even if they were defamatory, constitute extreme and outrageous conduct that " go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Accordingly, the element of extreme and outrageous conduct fails as a matter of law.
The court further notes that proportionality of the elements may balance an assessment for intentional infliction of emotional distress. " [A]ll courts require some kind of evidence of severe distress. When the defendant's conduct is extreme enough, that fact tends to prove severe distress. When the defendant's conduct is not. so extreme, the plaintiff may need proportionately stronger evidence that her distress is severe. By itself, testimony that the plaintiff cried and was upset is simply insufficient." (Footnotes omitted.) D. Dobbs, Law of Torts (2000) § 306, pp. 832-33. Even assuming arguendo, that the plaintiff has met his burden in demonstrating that the defendants' conduct was extreme and outrageous, the claim of intentional infliction of emotional distress still fails because the plaintiff has not established that he sustained severe emotional distress. In his deposition, Capasso stated that he suffered hurt feelings, loss of sleep and had trouble sleeping. He also stated that he did not inform his doctors about his sleep problems. There is no genuine issue of material fact that the emotional distress suffered by the plaintiff was severe.
See, e.g., Perez-Dickson v. Bridgeport, 304 Conn. 483, 529, 43 A.3d 69 (2012) (" [T]he only evidence of severe emotional distress that the plaintiff presented with respect to this conduct is that she became frightened and choked up upon being told that her career might be in jeopardy. There was no evidence that the plaintiff was in distress for an extended period or that she sought medical treatment. No reasonable juror could conclude that this constituted severe emotional distress").
The court agrees with the defendants' argument that there is no alleged conduct that can be construed as extreme and outrageous or that the plaintiff suffered severe emotional distress; accordingly, the defendants are entitled to summary judgment as to the fourth count. See Savage v. Andoh, Superior Court, judicial district of New Haven, Docket No. CV-07-5015657-S, (February 6, 2013, Fischer, J.) (" [T]he plaintiff's emotional distress claim is derivative of her defamation claims--her emotional distress claim is premised on the same conduct as her claims for libel and slander. As a result, there can be no finding of intentional infliction of emotional distress because the plaintiff's defamation claims fail"); Finnelli v. Tepfer, supra, Superior Court, Docket No. CV-07-5011659-S, (" where the alleged emotional distress flows from the publishing of defamatory statements, the emotional distress claim is merely a derivation of the defamation claim and when the defamation claim fails, so too must the derivative claim"); see also Stapleton v. Monro Muffler, Superior Court, judicial district of Hartford, Docket No. CV-98-0580365-S, (February 3, 2003, Sheldon, J.) (unfounded worries, diminished appetite and poor sleep are consequences that do not constitute severe emotional distress as a matter of law).
H. Fifth Count--Negligent Infliction of Emotional Distress
" To prevail on a claim of negligent infliction of distress, the plaintiff is required to prove that (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182 n.8, 994 A.2d 666 (2010). Thus, " [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179, 197, 851 A.2d 1154 (2004).
" [A] pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous. A claim based on the negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Thus . . . a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
Here, the plaintiffs have not demonstrated that the defendants' conduct involved an unreasonable risk of causing emotional distress, nor demonstrated that the emotional distress was severe enough that it might result in illness or bodily harm. As such, the defendants are entitled to summary judgment as to the fifth count.
I. Sixth Count--Connecticut Unfair Trade Practices Act (CUTPA)
" [General Statutes § ]42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . [I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission for determining when a practice is unfair: (1) [w]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money . . . as a result of the use or employment of a [prohibited] method, act or practice . . ." (Internal quotation marks omitted.) Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 880-81, 124 A.3d 847 (2015); see also Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 609 n.9, 119 A.3d 1139 (2015).
" [T]o prevail on a CUTPA claim, the plaintiff must prove, pursuant to General Statutes § 42-110b(a), that the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce and that as a result of the use of the act or practice prohibited by § 42-110b(a), the plaintiff suffered an ascertainable loss of money or property . . . The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation." (Citations omitted; internal quotation marks omitted.) Di Teresi v. Stamford Health System, Inc., 149 Conn.App. 502, 508, 88 A.3d 1280 (2014). " Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . ." (Citation omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008).
The defendants argue that none of their statements or conduct can be construed plausibly as a CUTPA violation. In addition, the alleged misconduct is not claimed to have occurred in any trade or commerce. In their opposition memoranda, the plaintiffs theorize that because the defendants are self-employed, " [t]heir public campaign to extort a fence they liked, which in the process keep them constantly in the public eye, was clearly unfair method of competition in their conduct of their trade or commerce to the disadvantage of other professional photographers and authors."
" Although our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship . . . the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Citation omitted; emphasis in original.) Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006); see also Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002) (" it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce" [internal quotation marks omitted]). The plaintiffs have not claimed any sort of business relationship between the parties, thus, CUTPA is not applicable. Accordingly, the defendants are entitled to summary judgment as to the sixth count.
III. CONCLUSION
For the foregoing reasons, summary judgment is granted for the defendants as to all counts.