Opinion
X04HHDCV115038794S
11-12-2015
Joseph M. Cohen v. Robert M. Meyers et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
David M. Sheridan, J.
This is an action brought by the plaintiff Joseph M. Cohen (" Mr. Cohen") against the corporate defendant Robert M. Meyers, Inc. (" RMMI") and Robert M. Meyers individually (" Mr. Meyers") in connection with a new home construction project in Chester, Connecticut. This matter was tried to the court over thirteen separate dates in February and March 2015. Testimony was received from twenty-four witnesses and 218 documents were admitted as full exhibits. Post-trial briefs were filed by both parties.
I. FINDINGS OF FACT
This court, having carefully reviewed the documentary exhibits and objectively evaluated the substance of the testimony from the witnesses, having analyzed and weighed the evidence according to the applicable standards of law, and having considered the parties' arguments made to the court, finds the following facts to have been proven by a fair preponderance of the evidence.
In October of 1999, Mr. Cohen bought a parcel of undeveloped land within the Town of Chester, Connecticut, known as 11 Kings Highway, with the intention of someday building a single-family home upon the property.
At the time of Mr. Cohen's purchase of the 11 Kings Highway, a " driveway" surfaced with sand and crushed gravel and protected by adjacent drainage swales, had been in place since 1987. When Mr. Cohen bought the lot in 1999, his " understanding" was that the land was " a fully buildable lot, " with approvals in place. Mr. Cohen also referred in his testimony to the property as an " approved building lot." The only additional permit or approval he understood he needed prior to commencing construction was for a septic system, which would require a satisfactory percolation test. Mr. Cohen testified that, based on discussions with the Chester Zoning Enforcement Officer which occurred in 1999 and again in 2002, he continued to believe that--except for septic--all approvals were in place and he " had no concerns" about his ability to build a house on the property using the existing driveway for access and the existing drainage swales for erosion control.
In 2005, the Town of Chester Planning and Zoning Commission adopted new driveway regulations. While the existing driveway on the 11 Kings Highway property in Chester met the town's driveway requirements in place from 1987 to 2005, it did not comply with the requirements adopted in 2005.
In April 2009, Mr. Cohen undertook to obtain a percolation test and septic design for the property, which was later approved. Around the same time, Mr. Cohen hired designer Brian Buckley to prepare plans for a single-family home to be built on his property in Chester. Mr. Buckley provided Mr. Cohen several names of general contractors to consider for the construction of the home, one of which was RMMI. At that time, in April of 2009, RMMI possessed a valid New Home Construction Contractor (" NHCC") registration.
Robert M. Meyers is the president and sole shareholder of RMMI. At all times RMMI acted through Mr. Meyers and Mr. Meyers has admitted that he had " complete control and domination of all business and fiscal policies and procedures" of the corporation.
Beginning in April 2009 there was an exchange of e-mail correspondence between Mr. Cohen and Mr. Meyers, on behalf of RMMI, which continued sporadically through January of 2010. During that time period, on October 1, 2009, RMMI's NHCC registration lapsed. Additional e-mails were exchanged from January 19, 2010 through July 28, 2010. During this time period, the parties worked out the basic aspects of their agreement and RMMI provided a draft of a contract to Mr. Cohen. Of course, RMMI did not possess a valid NHCC registration while making any of these communications or conducting these negotiations.
In the last days of July 2010, it became apparent that Mr. Cohen prepared to move forward with the building of the house. In preparation for the anticipated contract with Mr. Cohen, Mr. Meyers, on behalf of RMMI, took several actions. First, he reached an agreement with Mr. Cohen that the additional costs of land clearing beyond that specified in their proposed written agreement would be split 50-50. Mr. Cohen paid the sum of $1,250.00 directly to the contractor, Stanley Burr, for one-half the additional cost of the site clearing cost of the property. Second, on July 30, 2010, Mr. Meyers renewed RMMI's NHCC registration. Third, on July 30, 2010, Mr. Meyers opened a commercial checking account at Citizens Bank in the name of RMMI.
On August 2, 2010, Mr. Cohen and RMMI signed the written " Agreement" which is appended to the complaint and was Exhibit 1 at the trial. The first paragraph of the agreement clearly and explicitly states that the contracting parties are Mr. Cohen and RMMI:
AGREEMENT
This Agreement, made on this 2nd day of Aug. 2010, by and between Joseph M. Cohen (" Owner") of 1060 Shermer Rd. Apt. 16 Northbrook, IL 60062-3736 and Robert M. Meyers, Inc. of 843 Haddam Quarter Rd. Durham, Connecticut (" Builder").
Consistent with this recitation, the agreement is signed--once again clearly and explicitly--by RMMI, acting through its President, Robert M. Meyers (see Agreement, p. 4).
Certain provisions of the agreement are especially pertinent to this dispute and it is worthwhile to set them out here in full:
1. DWELLING : The Builder shall perform the work and supply all the materials to construct a single family dwelling on the property with all site improvements substantially in accordance with SCHEDULE A, the house drawing plan and Site plan. And SCHEDULE B, the specifications. (Such dwelling shall be referred to as " dwelling.") The Builder reserves the right to: (i) substitute any materials of like or better quality; (ii) make minor deviations from the drawing/plans and specifications; and (iii) in the event that there is a discrepancy between the drawing/plan and the specifications, the specifications shall control.
* * *
3. PRICE AND PAYMENT SCHEDULE : The Owner agrees to pay the Builder the sum of $229,000.00 for the construction of the Dwelling and site improvements, time being of the essence regarding the date of payment. The price shall be paid as follows:
a. $50,000.00 Upon execution of this agreement;
b. $40,000.00 Upon installation of septic system and digging hole for foundation;
c. $40,000.00 Upon pouring foundation and backfilling;
d. $40,000.00 Upon the main structure being framed and roofing installed;
e. $30,000.00 Upon siding and gypsum board being installed and rough mechanics being installed;
f. $20,000.00 Upon installation of flooring, cabinets, and completion of interior painting and tile;
g. Balance $9,000.00 Upon obtaining a Certificate of Occupancy.
Notwithstanding the foregoing if a Certificate of Occupancy is not issued as a result of anything outside of this agreement, then the final payment shall be due as if the Certificate of Occupancy was issued on the date the Certificate of Occupancy was denied.
In addition, the Owner acknowledges that there may be an additional cost not provided in this agreement for water service connection fees and Electric Power Company connection fees, including but not limited to any transformer, transformer Vaults, pull stations, etc., not shown on the site plan.
* * *
12. ENTIRE AGREEMENT : The Parties acknowledge that this agreement contains the entire, understanding, terms, and conditions between the parties. This agreement cannot be changed orally, but only by agreement in writing signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought.
15. REPRESENTATIONS : In addition to any other warranties or representations contained in this agreement, the Owner warrant and represent to the builder that:
a. The property is an approved building lot and the builder will be able to obtain a building permit upon application and without having to comply with any special requirements of Planning and Zoning, inland-wetlands commission, or any other governmental or quasi-governmental agency having jurisdiction over this property except as set forth in this agreement.
At the time of the signing of the agreement, Mr. Cohen issued a check to RMMI for $50,000.00 in accordance with the " PRICE AND PAYMENT SCHEDULE" of the agreement. The check was deposited into the Citizens Bank commercial checking account that had been opened a few days earlier.
Prior to entering into the agreement, RMMI did not provide the plaintiff a written notice pursuant to the New Home Construction Contractors Act, Connecticut General Statutes § 20-417d(a), advising the plaintiff to: (a) contact the Department of Consumer Protection regarding the contractor's registration status; (b) to inquire into whether any complaints had been filed against the contractor; and (c) to request a list of consumers of new homes constructed to completion by the contractor.
At the time the agreement was signed, RMMI had been the subject of new home construction complaints to the Department of Consumer Protection (" DCP") in 2001, 2004, 2006, and 2008.
After signing the contract and receiving the first payment, RMMI commenced work at the site, including land clearing, blasting, excavation, and placement of temporary forms. When laying out and excavating for the foundation footings for the house, RMMI rotated or " pivoted" the axis of the foundation to avoid a rock outcropping. When Mr. Cohen learned of this he expressed great concern, since the orientation of the house had been precisely planned so as to maximize the view from the house over the Connecticut River valley.
On August 31, 2010, after receiving Mr. Cohen's concerns and complaints about the rotation of the foundation, Mr. Meyers informed Mr. Cohen in an e-mail that " Joe, if you want the foundation moved back, I will call the concrete contractor and have him move it back."
On August 10, 2010, Mr. Meyers went to the Chester Town Hall to file an Application for Building Permit. The Chester Zoning Enforcement Officer, Judith Brown, informed Mr. Meyers that a building permit could not be issued because a driveway permit was required in order to obtain a building permit. Ms. Brown also required that Mr. Meyers file applications for a zoning permit and a driveway permit. A great deal of communication between Mr. Cohen and various Town officials ensued, with Mr. Cohen pleading his case to all involved that the driveway should be " grandfathered" and he should not be required to obtain a driveway permit.
Despite Mr. Cohen's efforts, on September 1, 2010, the application for a driveway permit was denied because it did not meet the driveway standards set forth in the 2005 driveway regulation. On September 7, 2010, after meeting with the Town Engineer, Mr. Cohen sent an e-mail to the various Town officials requesting a waiver of the driveway regulations. On September 13, 2010, Mr. Cohen filed a formal application for the driveway waiver with the Board of Selectmen of the Town of Chester.
On September 21, 2010, the driveway waiver application was considered at a Board of Selectmen meeting that was attended by Mr. Cohen and Mr. Meyers. The waiver was denied pending information regarding turning radius requirements for emergency vehicles. On October 5, 2010, the waiver of the driveway regulations was approved at a meeting of the Board of Selectmen.
On October 6, 2010, Judith Brown wrote a letter to Mr. Cohen stating that the waiver was approved, but that before he could start driveway improvements, he was to arrange a preconstruction meeting with the driveway contractor, herself, and the town engineer, pay a $25 application fee, post a driveway bond in the amount of $1,500, and provide a certificate of insurance prior to the issuance of a zoning permit.
On October 8, 2010, Mr. Cohen sent an e-mail to Mr. Meyers which attached a detailed list of " issues for discussion" before re-starting construction on the project. The list included driveway issues, building permit " problems, " and various other items that Mr. Cohen claimed had increased the project cost by 5 to 10 percent. Mr. Cohen's list suggested a variety of paths to " move forward, " ranging from shutting down construction temporarily or permanently, to completing the construction as quickly as possible, to entering into a new contract. In reply to the Mr. Cohen's e-mail, Mr. Meyers stated that he was not responsible for the delay or the permit or driveway issues, and declared that Mr. Cohen was in breach of the contract, stating: " [t]his delay is costing me time and money. Reminder: You represented to me by contract that you have a [sic] approved building lot and that I should not have to be caused a delay from the town government . . . Without a building permit, approved site plan and adjusted contract, this job is stoped [sic] and you remain in breach of contract."
For the next week, Mr. Cohen and Mr. Meyers continued to exchange e-mails blaming each other for various delays, discrepancies, problems, and cost overruns on the project. Mr. Cohen attempted to get Mr. Meyers to meet with the Town and restart the building process, but Mr. Meyers refused to do so unless he could move forward with the existing contract " without issues." He interpreted Mr. Cohen's insistence on discussing topics such as delay and increased cost as " nothing more than you trying to get me to pay for your misfortune."
On October 25, 2010, Mr. Cohen sent a certified letter to Mr. Meyers stating that the contract was " under review" and directing him not perform any additional work, make any expenditures, or order materials or services related to 11 Kings Highway.
On November 10, 2010, Judith Brown, the Chester Zoning Enforcement Officer returned the building permit application and checks to Mr. Meyers because she had been advised by Mr. Cohen that " he will not be going forward with his plans to build at 11 Kings Highway at this time."
Ultimately, on December 1, 2010, Mr. Cohen notified RMMI via certified letter that the contract was terminated for cause.
Mr. Cohen then embarked upon a relentless pursuit of his grievances against Mr. Meyers that has continued unabated to the present. The catalogue of e-mails, letters, newspaper articles, and other writings which memorialize long and bitter conflict is impressive in its dimensions and in its vitriol. What follows are excerpts which are particularly relevant to the issues in this lawsuit.
On January 17, 2011, in an e-mail to Mr. Meyers, Mr. Cohen stated:
Please share the following with your wife and your attorney: Time is up--this week I begin filing formal complaints and notifying officials in all Connecticut River Valley Durham and surrounding towns about my dispute with you. I also intend to takeout an ad in the Middletown Press and other publications (I am 100% serious). When I call you out as a liar, cheat, thief and lawbreaker--it will all be true! When your wife comes home from work at Middlesex Memorial saying she is humiliated; when your children ask what is wrong with you; when your neighbors (who I contact by mail) start staring at you strangely, you will know you blew your last chance to fix things. And every building official and state official in the Durham-Meriden-East Haddam corridor will have your number. As for being a licensed building inspector--I doubt it since I will track you and make sure every community gets a full accounting of your track record . . . I will be visiting officials with formal letters of complaint in East Haddam, Durham and Meriden as soon as possible. You are going to be under the gun of officials and the public . . . you have left me no choice but to make you pay for it . . .
On January 18, 2011, Mr. Cohen began exchanging e-mails with George P. Gombossy, a syndicated Consumer Columnist for numerous Connecticut newspapers. Mr. Cohen told Gombossy:
thanks for getting involved in this. meyers' llc includes his wife, so I am going to put her name and work affiliation in everything I do going forward. i have a feeling when middlesex memorial sees their name getting trashed with an employee's they may put the screws to her.(Lowercase in original).
On January 19, 2011, Mr. Cohen sent another e-mail to Mr. Meyers, stating:
Your stupidity is overwhelming. I have tried to be nice to you because you are a small man without much of a life. What little you have is about to be diminished . . . When you are sitting around with no work or selling light bulbs at the local store, remember you blew any chance you had to salvage your reputation.
In the wake of these e-mails, as he suggested he would, Mr. Cohen began communicating with various State and local officials regarding Mr. Meyers. He also, as he suggested he would, began to include Mr. Meyers' wife, Christine A. Meyers, as part of his communications and requests for information. Mr. Cohen justified his efforts directed at Christine Meyers because she was a secretary of RMMI and Mr. Meyers' " business partner." The former is true, but as to the latter, no competent evidence was submitted as to any active participation by Mrs. Meyers in any of the business affairs of RMMI, or in the construction project at 11 Kings Highway.
On January 19, 2011, Mr. Cohen forwarded a Freedom of Information Act (" FOIA") request to Richard McManus, Building Official for Durham (copied to Laura Francis, First Selectman), requesting any and all building permits or other permits for construction or renovations issued or requested by Robert M. Meyers, Robert M. Meyers Inc., LLC, Robert Meyers, and Christine A. Meyers. Thereafter, Mr. Cohen met personally with Mr. McManus. Mr. Cohen also met with Keith Darin, then Building Official for East Haddam, to review files of houses built by RMMI.
Mr. Cohen made a FOIA request directed to the Department of Consumer Protection, asking for all complaints against RMMI and Mr. Meyers. On January 31, 2011, Mr. Cohen filed a complaint with the Department of Consumer Protection related to the construction at 11 Kings Highway in Chester, but also alleging that Mr. Meyers performed new home construction, while not registered, at 24 Alger Road, in East Haddam. Mr. Meyers began to exchange e-mails with Terence Zehnder, the investigator for the Department of Consumer Protection, and in a March 29, 2011 e-mail to Zehnder, stated, " Meyers is stubborn, not smart, arrogant and has gotten away with pulling crap for years." To resolve Mr. Meyers' complaint, RMMI provided an Assurance of Voluntary Compliance to the Commissioner of the Department of Consumer Protection and paid a civil penalty of $250 on April 19, 2011.
Although a finding on the question is not required to decide the case, after hearing extensive evidence on the construction of the Alger Road home, the court finds that Mr. Meyers was not required to register as a New Home Contractor in connection with that project, since it was--at least initially--built as a dwelling to be occupied by himself and his family. Due to his divorce, Mr. Meyers changed his plans and did not occupy the house, choosing to sell it instead.
On January 3, 2012, Mr. Cohen sent a three-page letter to the Middlefield Board of Selectmen, stating, " [i]t is my belief Robert M. Meyers is a liar, cheat, commits fraud, steals, is not competent as a builder and lacks proper respect for the law. Robert Meyers has . . . [w]orked (in 2009/2010) as a builder while not registered/licensed (a criminal offense), performed construction work (2010) on a new house without getting a building permit . . . [a]llegedly threatened to kill a customer in a dispute over the customer's house, ignored another town's building inspector and planned to go against his order (2010), created and submitted a fake document into a court proceeding (2011)." Mr. Cohen also states: " Robert M. Meyers has disdain for the law, the court system and the truth . . . it is my experience and belief Robert M. Meyers is a dishonest, deceitful, incompetent contractor." Mr. Cohen thereafter went to a Middlefield Board of Selectmen meeting to read aloud the content of his letter and that appearance was reported by the press. On January 13, 2012, an article appeared in the " Town Times" headlined " Chester Resident Complains about Middlefield Building Inspector at Selectmen's Meeting, " reporting that Mr. Cohen stated that " Meyers does not have respect for the law, authority or the truth and felt he was fundamentally dishonest and deceitful."
On September 7, 2012, Mr. Cohen sent a letter to Joseph Cassidy, Acting State Building Inspector and copied the letter to Donald DeFronzo, Acting Commissioner of the Department of Construction Services, Daniel Tierney, Deputy State Building Inspector, Attorney General George Jepsen, and William M. Rubenstein, Commissioner of the Department of Consumer Protection. In the letter, Mr. Cohen stated: " I believe Mr. Meyers may have obtained his Building Inspector's license under false pretenses and/or is not qualified to be licensed by the State of Connecticut." Mr. Cohen also stated that Mr. Meyers was guilty of a " a serious criminal violation" when he built and sold a new house at 24 Alger Road in East Haddam. In the letter, Mr. Cohen states that Mr. Meyers is " an alleged liar, cheat and thief--an admitted criminal who violated state building and consumer protection laws . . ."; and Mr. Meyers is " something of a Jekyll and Hyde personality: Charming until he gets your money, then a sociopath who enjoys taunting and threatening in response to legitimate questions about business practices, competence and integrity."
On September 27, 2012, Mr. Meyers was disclosed as an expert witness who was expected to be called at the trial of this case. The disclosure stated that Mr. Meyers " is expected to testify that, in his opinion, there was no violation of any Codes regarding the work done by Mr. Meyers at the property subject to this lawsuit prior to the issuance of any building permit by the Town of Chester. Mr. Meyers may also give his opinion that the Town of Chester did not have any governing rules or regulations which would have resulted in a violation of the work done at the property prior to the issuance of a building permit by the Town of Chester." (See Docket Entry #167.)
Upon learning of this expert disclosure, Mr. Cohen began a new, more aggressive and more strident round of communications with state and local officials, purportedly " to ascertain information related to [Mr.] Cohen's prosecution in this case." (See Plaintiff's Post-Trial Brief, p. 51.)
Mr. Cohen made a FOIA request to the Connecticut Department of Construction Services (the State Building Inspector's office) for documents related to Mr. Meyers' service as a Building Official in East Haddam. After reviewing the response, on October 10, 2012, Mr. Cohen sent a letter to the State Building Official, in which he stated that Mr. Meyers had " a long history of consumer complaints and skirting the law." He complained that Mr. Meyers " stole most of the $53,500 I gave him . . ." He expressed a " personal belief" that " Mr. Meyers is a liar, cheat, thief and incompetent as a builder and would not be deserving of a job in public service."
On October 16, 2012, Mr. Cohen spoke at a meeting of the Middlefield Board of Selectmen, stating, among other things, that Mr. Meyers was not registered as a New Home Construction Contractor in 2009/2010 when he built a home at 24 Alger Road, a criminal violation of state law for which he was not prosecuted, and that at the time he passed the state test for the building official, he was not licensed and was " in serious criminal violation of the very rules he was charged with upholding."
On October 23, 2012, Mr. Cohen sent a letter to the First Selectman of the Town of Middlefield stating that Mr. Meyers had lied on his job application. In the letter, Mr. Cohen also stated that a customer had alleged that Mr. Meyers threatened to kill him.
Mr. Cohen spoke again at a Middlefield Board of Selectmen meeting on November 5, 2012, again claiming that it was a criminal violation for Mr. Meyers to build the house at 24 Alger Road without licensing as a new home contractor.
On November 26, 2012, Mr. Cohen sent another letter to the Middlefield Board of Selectmen, letting them know of the pending lawsuit and complaints lodged against Mr. Meyers, claiming that $53,500 was " stolen" and he was left only with a torn-up piece of property. Mr. Cohen stated: " You cannot reason with a man who lies, cheats and steals with a cold heart; a man I know who will laugh in your face and taunt you, telling you he has your money and not his money . . ."
On April 10, 2013, Mr. Cohen sent a letter to Angie Martinez, a Consumer Information representative in the Frauds Division of the Department of Consumer Protection, stating, " [i]t is my contention now that Robert M. Meyers, doing business as Robert M. Meyers, Inc. had for the past decade or more operated an ongoing criminal enterprise disguised as a building contracting business . Mr. Meyers engaged in fraud, theft/larceny, embezzlement, violation of consumer protection laws, elder abuse and other criminal behavior . . ." (Emphasis in original.)
On April 29, 2013 Mr. Cohen wrote again to the First Selectman of the Town of Middlefield, stating: " I have been working with state and federal authorities to bring criminal and other actions against Mr. Meyers for alleged crimes including larceny, fraud and abuse--charges I believe Mr. Meyers is guilty of . . . I look forward to the day when news trucks are lined up outside your Town Hall building to conduct live broadcasts . . . Meyers, through his corporate entity . . . took money from me that Mr. Meyers apparently embezzled from his corporation and used for his personal expenses . . . Mr. Meyers lied, cheated and stole from the Christophers and that led to Mr. Christopher's death. It is an awful tale, but something not out of character when it comes to Mr. Meyers, who is one of the most despicable people I have ever come across . . ."
Mr. Cohen's frequent references to Mr. Meyers' contributing in some way to the death of John Christopher are based on the sentiments of his widow, Sandra Christopher. Mrs. Christopher testified at trial that John Christopher was afflicted with cancer, but she nonetheless believes his death was hastened by the stress of prolonged litigation with Robert Meyers related to the construction of their home.
Sometime in the summer of 2013, Mr. Cohen created an Internet website entitled " Housebuilder from Hell; Robert 'Bob' Meyers." At the address www.robertmeyersinfo.com . The website was paid for and maintained by Mr. Cohen, and consists of pages of text with limited graphics. Mr. Cohen confirmed that he has complete control over the content of the website. Several statements on the website are especially pertinent to this lawsuit:
Certainly, I did not make Meyers into what he is--a liar, thief cheat, incompetent and lawbreaker.
Meyers, I learned in my query into his past, thinks it is okay to cheat on his wife, contract venereal disease, and advertise for dates on the internet . . .
Bob Meyers is a thug, a criminal and expert liar . . .
Let me tell you some of the things Bob Meyers does not want you to know, all of which I would contend reflect on Meyers' poor moral character, his criminal and anti-social inclinations, and that confirm he is a liar and a cheat and a lawbreaker. They include . . . 1. Bob Meyers had an affair while married. At some point, Bob Meyers contracted venereal disease . . . Since I know Bob Meyers at one point was trolling the Internet for women using my money, let this be a warning: practice safe sex (some venereal disease infections cannot be cured), and the safest sex is to choose your relationships carefully and take other precautions . . .
I did not know at the time that Meyers had a history of lawbreaking and complaints, that his wife had tired of his lack of ability to be a decent husband and partner in marriage, or that Meyers' behavior was not unlike that of a criminal who refuses to accept responsibility for his actions.
The court credited Mr. Meyers' testimony that he has been affected physically, mentally, and emotionally by Mr. Cohen's conduct. Mr. Meyers testified to sleepless nights, anxiety, tremendous stress, jitters, night sweats, a pit in his stomach, and constantly worrying what would happen next. Mr. Meyers testified that he often goes home, closes the blinds, seals himself in and pulls a blanket over his head. He admitted to thoughts of suicide as a way to " stop all of the pain." He summed up his situation by remarking that Mr. Cohen's accusations of him killing a man, and being a liar, a thief and a criminal have turned his life into " a pile of crap." Mr. Meyers' changes in behavior, outlook, and demeanor over the past few years were corroborated by the testimony of various friends and relations.
II. ANALYSIS
A. Counts One, Three, Five, Six, Eight and Nine--Claims Against Robert M. Meyers Individually
In five different counts of the complaint, the plaintiff seeks a judgment against Robert M. Meyers individually by piercing the corporate veil of RMMI. Specifically, in counts One, Three, Five, Six, Eight, and Nine, the causes of action are brought " on account of the individual defendant Robert M. Meyers' actions and his complete control of the corporate defendant . . ." (Complaint, PP12 through 29) and " [a]s a result of the actions of the individual defendant Robert M. Meyers and his complete control over the corporate defendant Robert M. Meyers, Inc." (Complaint, PP33 and 34).
In addition, at pages 61 to 63 of his Post-Trial Brief [#335], the plaintiff makes it clear that in those counts he is seeking judgment only against Robert M. Meyers as an individual. As to Count One (Breach of Contract). " Judgment should enter . . . against Meyers individually under a theory of piercing the corporate veil." As to Count Three (Fraud): " Judgment should enter against [Robert M.] Meyers . . ." As to Count Five (Unjust Enrichment): " Judgment should enter against [Robert M.] Meyers . . ." As to Count Five (CUTPA): " Judgment should enter . . . against Meyers individually under a theory of piercing the corporate veil under CUTPA . . ." As to Count Seven (Statutory Theft): " Judgment should enter against Meyers individually . . ." And, as to Count Eight (Conversion): " Judgment should enter against Meyers individually . . ."
" A corporation is a separate legal entity, separate and apart from its stockholders . . . It is an elementary principle of corporate law that a corporation and its stockholders are separate entities . . ." (Internal quotation marks omitted.) Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 147, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). However, under " exceptional circumstances, " the court may " pierce the corporate veil" and treat the liabilities of the corporation as the liabilities of its shareholders. United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn.App. 749, 755, 603 A.2d 1190 (1992). " In the usual veil piercing case, a court is asked to disregard a corporate entity so as to make available the personal assets of the owners to satisfy a liability of the entity." Litchfield Asset Management Corp. v. Howell, supra, 149.
" Whether the circumstances of a particular case justify the piercing of the corporate veil presents a question of fact." (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 234, 990 A.2d 326 (2010). " A court may pierce the corporate veil only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice." (Internal quotation marks omitted.) United Electrical Contractors, Inc. v. Progress Builders, Inc., supra, 755.
" [V]eil piercing is not lightly imposed. [C]orporate veils exist for a reason and should be pierced only reluctantly and cautiously. The law permits the incorporation of businesses for the very purpose of isolating liabilities among separate entities . . ." (Citations omitted; internal quotation marks omitted.) Commissioner of Environmental Protection v. State Five Industrial Park, Inc., 304 Conn. 128, 139-40, 37 A.3d 724 (2012).
Our Supreme Court has recognized two tests (or rules) to determine whether corporate veil may be pierced: the instrumentality test and the identity test. " The instrumentality rule requires . . . proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." (Emphasis omitted; internal quotation marks omitted.)Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 553, 447 A.2d 406 (1982).
It is admitted that Robert Meyers singlehandedly owned and operated RMMI on a day-to-day basis. But, the fact that a sole stockholder of a corporation is in exclusive control of the company's finances and business practices, standing alone, is an insufficient basis in itself to pierce the corporate veil. While control is a factor, " [o]f paramount concern is how the control was used, not that it existed." Stone v. Frederick Hobby Associates, II, Judicial District of Stamford, Docket No. CV000181620S (July 10, 2001, Mintz, J.); see also Litchfield Asset Management v. Howell, supra, 70 Conn.App. at 156 (in determining whether to pierce the corporate veil and hold an individual liable under the identity rule, courts have considered, most importantly, the manner in which the individual uses the corporation).
In this respect, the plaintiff has failed completely to offer any evidence that Robert M. Meyers, the individual, used the corporate form to perpetrate a fraud. The evidence offered by the plaintiff does not justify transforming a breach of contract claim against a corporation into a personal obligation of the corporation's principal. Compare, Campisano v. Nardi, 212 Conn. 282, 293-94, 562 A.2d 1 (1989) (" the instrumentality rule is [not] triggered whenever individual control of a corporation is coupled with a breach of contract by the corporation . . . In the absence of a claim that the corporation was formed for an improper purpose, or that the [plaintiff was] improperly induced to enter into a contract with the corporation, the mere breach of a corporate contract cannot of itself establish the basis for application of the instrumentality rule"); Charbonneau v. N.E.B. Construction, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-5034910-S (March 6, 2015, Burke, J.) (lack of evidence that the sole member was using the LLC to perpetuate a wrongdoing or that the business was inherently suspect); Tortora v. Lathan, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029401-S (December 23, 2014, Kamp, J.) (company followed corporate formalities and insufficient proof of domination).
The plaintiff offered no evidence to suggest that Mr. Meyers did not respect and observe the laws which afford him the right to form and manage a corporation of which he was the sole shareholder. RMMI had its own accounts, made payments to and from those accounts and conducted regular business as a general contractor, and apparently existed for years on its own, separate and distinct from Robert M. Meyers as an individual. Granted, the plaintiff offered evidence that funds from the RMMI account were used to pay bills of Robert Meyers that he should have paid personally. But, Robert Gollnick, CPA, RMMI's accountant, testified that all those payments were accounted for and reflected on the balance sheet as loans to a company officer. Eventually, Mr. Meyers had to put money back into the corporation to offset the personal payments that were made from corporation. In sum, the plaintiff's evidence that the individual defendant Robert M. Meyers used the corporate form as a vehicle to commit fraud or dishonest acts consists of vague allusions and speculation, and thus was completely unpersuasive.
The plaintiff argues that " Meyers is indistinguishable from his corporate entity, and the court should pierce the corporate veil and award damages against Robert Meyers individually." (Plaintiff's Post-Trial Brief, p. 15.) But the evidence offered by the plaintiff in support of its effort to pierce the corporatize veil also fails to satisfy the identity rule. " The identity rule has been stated as follows: If plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise." (Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 554, 447 A.2d 406 (1982). This is a " stringent" standard. See Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 58, 68 A.3d 1162 (2013). There is, in this case, no persuasive evidence that RMMI is a " mere shell, serving no legitimate purpose . . . to perpetrate fraud or promote injustice." Naples v. Keystone Building & Development Corp., supra, 295 Conn. 233.
Moreover, there is some question as to whether the identity rule has any analytical value in a case of a corporation with a sole shareholder. " While it is true that there have been cases where the court has pierced the corporate veil to find a sole shareholder liable . . . our Supreme Court has observed that the identity rule primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities . . ." (Citations omitted, internal quotation marks omitted.) Angelo Tomasso v. Armor Construction & Paving, Inc., 187 Conn. 544, 558, 447 A.2d 406 (1982).
The plaintiff bears the burden of demonstrating that the present case is one of those " exceptional circumstances" where the corporate veil should be pierced. In this case, the court finds the plaintiff has offered insufficient evidence to satisfy either the instrumentality or the identity test, and therefore the plaintiff's attempt to pierce the corporate veil under must fail.
The court does not find that the plaintiff has proven that the defendant Robert M. Meyers should be subject to individual liability. Thus the court finds in favor of the defendant Robert M. Meyers as to all counts against him and examines the plaintiff's claims as to the defendant RMMI only.
B. Count Two-- Breach of Contract v. RMMI .
In Count Two, Mr. Cohen claims a breach of contract against RMMI. Mr. Cohen claims that RMMI breached the agreement by commencing work on the lot without first obtaining a building permit, by " pivoting" the house location (Plaintiff's Post-Trial Brief, pp. 10-11); using the " deposit funds" from " the segregated account" (Plaintiff's Post-Trial Brief, p. 11); and by declaring Mr. Cohen in breach and refusing to perform when there was a delay in obtaining the permit. (Plaintiff's Post-Trial Brief, pp. 11-12.)
" The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Treglia v. Santa Fuel, Inc., 148 Conn.App. 39, 45, 83 A.3d 1222 (2014). " One cannot recover upon a contract unless he has fully performed his own obligation under it, has tendered performance, or has some legal excuse for not performing." Automobile Insurance Co. v. Model Family Laundries, Inc., 133 Conn. 433, 437, 52 A.2d 137 (1947).
1. Breach of Contract--Commencing Work Without a Permit
The plaintiff argues that RMMI breached the agreement as follows:
When the issuance of the building permit was delayed because of an issue unknown to either party . . . Meyers' reaction was to declare Cohen in breach of the Agreement and refuse to perform any further work unless Cohen paid Meyers more money. (Ex 90.) Meyers' actions in commencing work without a permit, and then demanding more money not contemplated in the Agreement are a material breach of this Agreement.(Plaintiff's Post-Trial Brief, pp 9-10.)
At the outset, the court does not accept the plaintiff's premise that " the building permit was delayed because of an issue unknown to either party." The evidence suggests that the parties had some discussion with regard to the driveway prior to entering into the agreement, and that Mr. Meyers had expressed some concern that driveway issues would affect his ability to obtain the Town's permission to begin construction. In a January 31, 2011 statement to the Department of Consumer Protection, Mr. Cohen stated that he had " represented to Meyers that the existing driveway with slight improvements would be 'grandfathered in' and that driveway regulations adopted in 2005 would not apply." These discussions apparently led to the inclusion in the agreement addressing the lot's status as an " approved lot" or a " buildable lot." These facts suggest that the possibility of a need for additional approvals was not, as the plaintiff suggests, " unforeseen" at the time of contracting.
Moreover, nothing in the agreement suggests that the contractor would be in breach if he began preliminary site work without a building permit. As Mr. Cohen acknowledged in his statement to the Department of Consumer Protection, the exact point where preliminary site work crosses over to constructing improvements such that a permit is required, is unclear. (See Exhibit 257, p. 6: " The issue of 'preliminary site work' without a building permit: as ZCO Brown and others have explained it is a gray area . . .") Regardless, if the parties felt that it was material to their bargain that no activity take place at the site until the building permit was obtained, they could have made that part of their written agreement. But they did not, and hence any claim for breach of contract based on " commencing work without a permit" must fail.
Finally, the claim that Mr. Meyers breached the agreement by " demanding more money" is without merit. The communication in question makes it clear that Mr. Meyers intended that the increased costs occasioned by the delay in obtaining the permit be handled by way of a change order adjusting the contract price. If Mr. Cohen would not agree to the change order, Mr. Meyers gave notice that RMMI would declare the contract to have been breached. That conduct is clearly within RMMI's contractual rights and is not a ground for a claim of breach of contract.
2. Breach of Contract--" Pivoting the Foundation"
The agreement calls for RMMI to construct the house " substantially in accordance with the house drawing and site plan." RMMI also reserved the right to " make minor deviations from the drawing/plans and specifications." When laying out and excavating for the foundation footings for the house, RMMI rotated or " pivoted" the axis of the foundation to avoid a rock outcropping. The parties spent a great deal of time at trial hotly disputing the extent of the rotation and whether this was, or was not, a " minor deviation" from the plan.
In the end, the court finds that there is no basis for a breach of contract because on August 31, 2010, after receiving Mr. Cohen's concerns and complaints about the rotation of the foundation, Mr. Meyers replied: " Joe, if you want the foundation moved back, I will call the concrete contractor and have him move it back." At this point, the work had been stopped because of the driveway issue. No concrete had been poured for footings. RMMI represented that when the work started again it would relocate the footings so that the orientation of the house would be consistent with the plans. Mr. Meyers reiterated this commitment in an e-mail on October 8, before any breach was declared and before the contract was terminated: " [a]s for the footing location: I told you I'd move the footing planks and the rock is not in the way of the finished product."
The claim of breach of contract based on " pivoting" the foundation is without merit.
3. Breach of Contract--" Using the Deposit Funds"
The plaintiff asserts that " Meyers' actions in using the Deposit Funds for his own personal purposes without Cohen's knowledge or permission, which Deposit Funds were being held in a segregated account to be used solely for the construction of Cohen's house pursuant to the Agreement, constitutes theft and is a breach of the Agreement." (Plaintiff's Post-Trial Brief p. 11.)
There is no reasonable construction of the contract under which an obligation can be found for RMMI to " segregate" monies received from Mr. Cohen and use them only for construction of Mr. Cohen's home. The written document (which by reason of the merger clause is a full integration of the parties' agreement) refers to the $50,000 paid at the time of signing as a partial payment of the $229,000 " price" to be " paid" for " the construction of the Dwelling and site improvements." Paragraph 4 refers to the $50,000 as " the deposit."
Use of the term " deposit" in Paragraph 4 is not necessarily inconsistent with Paragraph 3, since one of the common uses of the term " deposit" is " a pledge or partial payment" (Webster's Collegiate Dictionary (11th Ed. 2003)); or " partial or initial payment of a cost or debt" (The American Heritage Dictionary of the English Language (5th Ed. 2011)); or " a sum payable as a first installment on the purchase of something or as a pledge for a contract, the balance being payable later." (Oxford Advanced Learner's Dictionary (8th Ed. 2009)); or " a first payment that you make when you agree to buy something expensive such as a car or house. The rest of the money that you pay later is called the balance" (MacMillan English Dictionary Online, www.macmillandictionaries.com/dictionary-online, last accessed November 9, 2010).
" A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Allstate Life Ins. Co. v. BFA Ltd. Partnership, 287 Conn. 307, 313, 948 A.2d 318 (2008). The contract language evidences no intent other than that the $50,000 sum be treated as an ordinary contract payment. Had the parties intended those monies be held in some special status, such as in escrow, they could have expressed that in their writing, but they did not. Had the parties intended that those monies remain the property of Mr. Cohen, with RMMI unable to exercise the ordinary rights of ownership over those funds, much, much different language would have been required to reflect that intent.
In the present case, the court finds from the language used in the agreement and the facts and circumstances of the case that there was no intent to impose upon RMMI an obligation to " segregate" the funds received from Mr. Cohen and use them only for construction of his house. Therefore, there can be no cognizable claim for breach of contract on that basis.
4. Breach of Contract--Anticipatory Breach
Finally, the plaintiff argues that RMMI was in anticipatory breach of contract by declaring Mr. Cohen to be in breach as a result of the delay in obtaining the building permit. " An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived . . . Its effect is to allow the non-breaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance . . . The manifestation of intent not to render the agreed upon performance may be either verbal or nonverbal . . . and is largely a factual determination in each instance." (Citations omitted; internal quotation marks omitted.) Pullman, Comley, Bradley & Reeves v. Tuck-It-Away, Bridgeport, Inc., 28 Conn.App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992).
Considering the evidence presented, the court concludes that RMMI's act of declaring Mr. Cohen in breach was not itself a breach of the contract, since the delay in obtaining the building permit was due to a breach of the express contractual representation and warranty made by Mr. Cohen. Based on an ill-founded belief that his property would be " grandfathered" and automatically exempted from requirements of the 2005 driveway regulations, Mr. Cohen knowingly and intentionally warranted and represented in the agreement that a building permit would be issued without the need to " comply with any special requirements of Planning and Zoning, inland-wetlands commission, or any other governmental or quasi-governmental agency having jurisdiction over this property."
There is no doubt that this was a material contractual representation or warranty. It was a statement of fact regarding a past fact or existing circumstance related to the contract intended to induce the other party to enter into the contract. When a material representation of fact in a contract is found to be false or erroneous, or where a contractual warranty is breached, it is a breach of contract which relieves the other contracting party of the obligation to perform under the contract. For these reasons, liability for breach of contract based on anticipatory repudiation cannot be found under these facts.
In conclusion, having reviewed all of the plaintiff's evidence and argument in support of his claim for breach of contract, the court finds that the plaintiff has failed to sustain his burden of proof and decides the issues against the plaintiff Joseph Cohen and in favor of the defendant RMMI.
C. Count Seven-- CUTPA v. RMM, Inc.
The defendant RMMI's failure to register with the Department of Consumer Protection as a new home construction contractor under the NHCCA, while at the same time negotiating a contract for new home construction, is a violation of the New Home Construction Contractors Act (NHCCA), General Statutes § 20-417a et seq. The defendant RMMI's failure to provide the plaintiff with the written notice required by Conn. Gen. Stat. § 20-417d(a) prior to entering into the agreement is also a violation of the NHCCA.
General Statutes § 20-417b provides in relevant part: " No person shall engage in the business of new home construction or hold himself or herself out as a new home construction contractor unless such person has been issued a certificate of registration by the commissioner in accordance with the provisions of sections 20-417a to 20-417j . . ."
A violation of the NHCCA, General Statutes § 20-417a et seq., constitutes a per se violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
See Conn. Gen. Stat. § 20-417g (" A violation of any of the provisions of sections 20-417a to 20-417j, inclusive, shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b"). See also, D'Angelo Development & Construction Corp. v. Cordovano, 121 Conn.App. 165, 181-82, 995 A.2d 79, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010).
As a result of the CUTPA violation established in Count Seven, the plaintiff is entitled to " actual damages" under General Statutes § 42-110g(a). " Actual damages under CUTPA have been defined to include loss and expenses incurred by the CUTPA plaintiff as a result of a violation of the Act. Prish Walko v. Bob Thomas Ford, Inc., 33 Conn.App. 575, 587, 636 A.2d 1383 (1994).
Section 42-110g(a) provides, in pertinent part: " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages."
In the present case, Mr. Cohen testified that, had he received the necessary disclosures from RMMI as required by the NHCCA, it is highly likely that he would not have contracted with RMMI, and would not have paid RMMI the sum of $54,750. In return for that $54,750 Cohen has little to show in the way of construction. Mr. Cohen theorizes that if he had engaged another contractor, that $54,750 would have gone toward construction of a completed home, instead of a minimally excavated and prepared lot. As a result, Mr. Cohen believes he has suffered a $54,750 loss, detriment, or injury as a result of the wrongful conduct of RMMI.
This total reflects the $50,000 initial payment made by Mr. Cohen, the $1,250 paid to Mr. Burr for land clearing, and the $3,500 paid to RMMI for additional costs.
There is some degree of speculation and 20-20 hindsight required to reach this conclusion. Nonetheless, although the court did not find Mr. Cohen's testimony to be entirely credible as to all of his claims, the court credits this testimony that he would have acted differently had he received the proper NHCCA disclosures from RMMI. This conclusion is based in part on his extraordinary zeal and resourcefulness in " checking out" the site-clearing and foundation contractors who did perform work on the property. As to whether the home could have eventually been completed by another contractor, although not a certainty, the court finds that to be within the realm of reasonable probability. For these reasons, the court awards compensatory damages in the amount of $54,750--representing out of pocket costs directly associated with the contract in question--for a violation of CUTPA as established in Count Seven.
The plaintiff also claims consequential damages of $55,735.23, including $52,290.00 of rental costs he claims he incurred because, when the house was not completed in early 2011, he " had no place to live" and had to incur the expense of renting an apartment. The plaintiff offered no persuasive testimony as to why these expenses would be properly recoverable as a consequence of the wrongful conduct of RMMI alleged in Count Seven. The court declines to award any of these claimed consequential damages because it is not persuaded that these expenses could fairly and reasonably be considered as arising naturally, according to the usual course of things, from RMMI's violation of the New Home Contractor Act.
" Under CUTPA, [t]he court may, in its discretion, award punitive damages. In order to award punitive or exemplary damages, the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . [a]warding punitive damages and attorneys fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Creative Masonry & Chimney, LLC v. Johnson, 142 Conn.App. 135, 144, 64 A.3d 359, cert. denied, 309 Conn. 903, 68 A.3d 658 (2013). The plaintiff's proof in this case did not establish willful malicious, immoral, or deceitful conduct. The evidence also demonstrated that, in response to a complaint by Mr. Cohen, the Commissioner of the Department of Consumer protection imposed a civil penalty of $250 " for offering to perform and or performing new home construction work and not being in compliance with Sec. 20-417d of the Connecticut General Statutes." (Exh. 265.) That is, of course, the same conduct that forms the basis for a finding of a violation of CUTPA in this case. While a $250 civil penalty is not insignificant, it does afford some measure as the Department of Consumer Protection's view of the gravity of the offense, and the level of punishment deemed appropriate. For those reasons, among others, the court in its discretion declines to award punitive damages.
" General Statutes § 42-110g(d) provides in relevant part that, in any action in which a person alleges damages resulting from an unfair trade practice prohibited by § 42-110b of CUTPA, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys fees based on the work reasonably performed by an attorney and not on the amount of the recovery . . ." Smith v. Snyder, 267 Conn. 456, 470, 839 A.2d 589 (2004).
Attorneys fees provisions " provide an incentive for . . . 'private attorney generals' to take on the burden of vindicating the public interest . . . by providing a mechanism to compensate them for the costs of doing so." Commissioner of Environmental Protection v. Mellon, 286 Conn. 687, 696, 945 A.2d 464, 945 A.2d 464 (2008). In view of the record in this case, the court is not persuaded that the plaintiff's lawsuit was brought or maintained in the public interest, such that the policy goals of CUTPA would be furthered by an award of attorneys fees. Therefore, the court declines to award attorneys fees.
D. Counterclaim Count One--Breach of Contract
In Count One of the defendants' Counterclaim, RMMI alleges that Mr. Cohen breached the parties agreement, specifically Section 15, " Representations, " when RMMI was unable to obtain a building permit upon application and where other special requirements needed to be complied with before a permit could be issued, such as securing a driveway waiver from the Board of Selectmen and obtaining planning and zoning approval.
For the reasons previously stated, the court holds that Mr. Cohen breached the express contractual representation and warranty in Section 15 that a building permit would be issued without the need to " comply with any special requirements of Planning and Zoning, inland-wetlands commission, or any other governmental or quasi governmental agency having jurisdiction over this property."
Having proven a breach of contract, the counterclaim plaintiff is entitled to an award of damages. However, the evidence adduced by the counterclaim plaintiff does not provide a sufficient basis for finding any economic loss or damages arising out of Mr. Cohen's breach of contract. " It is axiomatic that the burden of proving damages is on the party claiming them . . . [w]hen damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . [d]amages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). While a plaintiff need not prove damages with mathematical exactitude, a plaintiff must establish the amount of loss " with reasonable certainty and not speculatively and problematically." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 650, 904 A.2d 149 (2006).
Because damages arising from the breach of contract were not proven with the requisite certainty, the counterclaim plaintiff RMMI is awarded one dollar ($1) as nominal damages.
E. Counterclaim Count Two--Defamation
In the Second Count of his Counterclaim, Mr. Meyers claims libel and slander based on false statements made in Mr. Cohen's numerous e-mails, statements, letters, public comments made at town meetings, and internet postings on his website " Housebuilder from Hell." Mr. Meyers claims that the statements have been untrue and detrimental to his professional and personal reputations. Mr. Cohen has filed special defenses, claiming truth and claiming privilege, based on an interest in protecting his property and an interest and right to bring forth complaints to officials of state and local governments.
Liability for defamation exists where the court finds that " the defendants published false statements that harmed the [plaintiff], and that the defendants were not privileged to do so." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995).
Defamation is comprised of the torts of libel and slander. " Slander is oral defamation . . . [and] [l]ibel . . . is written defamation." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). " 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." (Internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001).
" 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.) Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 848, 863 A.2d 735 (2005), aff'd, 291 Conn. 620, 969 A.2d 736 (2009).
The counterclaim defendant Mr. Cohen does not appear to contest certain elements of the defamation claim: 1) that the statements in question were published to third parties; and 2) that the defamatory statement identified the plaintiff to those third parties. Accordingly, the court will focus its analysis on the remaining questions related to defamation: whether the statements are actionable under the law of defamation, whether the plaintiff is required to show injury to his reputation and, if so, whether he has done so; whether either of the special defenses (truth and privilege) preclude recovery for defamation; and whether the statements are protected by the First Amendment.
" 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 . . ." Gleason v. Smolinski, 319 Conn. 394, 431 (2015), citing Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
There does not appear to be serious debate between the parties that the statements in question--that Mr. Meyers is a " cheat, " " thief, " " liar, " " admitted criminal, " and incompetent building contractor, or that he caused the death of a customer, cheated on his wife, or contracted a venereal disease--if false, and if not protected by a privilege, would be considered defamatory. The statements, considered separately or in combination, would certainly expose a person to scorn or contempt, cause him to be avoided, or injure him in his business or trade.
The question for the court is whether the statements are deemed actionable per se, that is, liability may be imposed without evidence of actual injury or pecuniary loss. " When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. [The plaintiff] is required neither to plead nor to prove it." Lowe v. Shelton, 83 Conn.App. 750, 766, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). " Whether words are actionable per se is a question of law for the court . . . [a]ll of the circumstances connected with the publication of defamatory charges should be considered in ascertaining whether a publication was actionable per se. The words used, however, must be accorded their common and ordinary meaning, without enlargement or innuendo." (Citations omitted.) Miles v. Perry, 11 Conn.App. 584, 602-03, 529 A.2d 199 (1987).
Statements deemed defamatory per se are ones in which the defamatory meaning of the speech is apparent on the face of the statement. Battista v. United Illuminating Co., 10 Conn.App. 486, 491-92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987). Our state has generally recognized two classes of defamation per se: (1) statements that accuse a party of a crime involving moral turpitude or to which an infamous penalty is attached, and (2) statements that accuse a party of improper conduct or lack of skill or integrity in one's profession or business and the statement is calculated to cause injury to that party in her profession or business. Moriarty v. Lippe, 162 Conn. 371, 383-84, 294 A.2d 326 (1972) (slander per se); Proto v. Bridgeport Herald Corp., 136 Conn. 557, 565-66, 72 A.2d 820 (1950) (libel per se).
Looking at Mr. Cohen's statements, some of them clearly fall into the category of accusing one of a crime involving moral turpitude or to which an infamous penalty is attached (e.g., " thief, " " admitted criminal, " or that he caused the death of a customer). Others accuse him of improper conduct or lack of skill or integrity in his profession or business (such as the fact that Mr. Meyers is a " cheat, " a " liar, " and an incompetent building contractor). Finally, there are a few that fall into a grey area--namely that Mr. Meyers cheated on his wife or contracted a venereal disease. These accusations could be deemed to accuse Mr. Meyers of a lack of honesty and integrity that is reflective of the manner in which he conducts his business. Indeed, that appears to be the intent of Mr. Cohen's statements, since he prefaced them with that qualifier:
Let me tell you some of the things Bob Meyers does not want you to know, all of which I would contend reflect on Meyers' poor moral character, his criminal and anti-social inclinations, and that confirm he is a liar and a cheat and a lawbreaker. They include . . . 1. Bob Meyers had an affair while married. At some point, Bob Meyers contracted venereal disease . . .
The case authority instructs the court to consider " [a]ll of the circumstances connected with the publication of defamatory charges" in ascertaining whether a publication was actionable per se. Nelson v. Tradewind Aviation, LLC, 155 Conn.App. 519, 532, 111 A.3d 887 (2015). Having done so, the court holds that the statements that Mr. Meyers cheated on his wife or contracted a venereal disease are defamatory per se.
F. Special Defense--Truth
" [F]or a claim of defamation to be actionable, the statement must be false; and under the common law, truth is an affirmative defense to defamation." (Citations omitted). Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228-29, 837 A.2d 759 (2004). " Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification . . . [i]t is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable . . . [t]he issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982).
In his First Special Defense to the Count Two of the defendants Counterclaim, Mr. Cohen alleges: " Any statements allegedly made or caused to be published by [Mr. Cohen] regarding [RMMI and Mr. Meyers] have been substantially true, and as such [RMMI and Mr. Meyers'] claims of libel and slander are barred." As to that defense, the counterclaim defendant argues that the evidence at trial established that " all of [Mr.] Cohen's statements were true, and made without malice; i.e., without the knowledge or in reckless disregard to the falsity. Meyers proved no statement to be false." (Plaintiff's Post-Trial Brief, p. 63.) At the outset, the plaintiff misstates the burden. It is the plaintiff/counterclaim defendant's burden to prove that the statements are substantially true, for " in any affirmative or special defense, the burden of proof rests with the defendant." Lumbermens Mutual Casualty Co. v. Scully, 3 Conn.App. 240, 245 n.5, 486 A.2d 1141 (1985).
As stated above, the test for " substantial truth" is whether the defamatory statement, even if not literally true, does not create an impression in the mind of the listener more damaging than a literally true statement would. See Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 112-13; Mercer v. Cosley, 110 Conn.App. 283, 304, 955 A.2d 550 (2008).
Several defamatory statements of Mr. Meyers stretch the test for " substantial truth" past its breaking point. For example, Mr. Meyers wrote on his website " Housebuilder from Hell" that " at some point, Bob Meyers contracted venereal disease" and then warned women to " practice safe sex, " implying that they may find themselves in a relationship with Mr. Meyers since " . . . I know Bob Meyers at one point was trolling the Internet for women . . ." Evidently, Mr. Cohen based this statement upon entries in the medical records of Mr. Meyers (obtained during discovery in this case) that showed he had undergone cauterization of genital warts which, in the opinion of the doctor, were most likely caused by the Human Papilloma Virus (HPV). True, HPV is primarily spread by sexual intercourse. But it also true that the majority of sexually active adults will be infected by HPV at some point in their lives.
There has been scientifically recognized for decades that HPV may be spread by means other than sexual intercourse. In fact, a substantial number of studies have confirmed reports of HPV infections in females who were virgins. See, e.g., Tay, Ho, and Lim-Tan " Is Genital Human Papillomavirus Infection Always Sexually Transmitted?" Australia-New Zealand Journal of Obstetrics and Gynaecology, August 1990.
There is a vastly different impression upon the listener upon learning that a person " had treatment for genital warts" as opposed to " contracted a venereal disease." In fact, putting aside the fact that all of this has nothing to do with Mr. Meyers' competence as a builder, the court concludes that inflicting the stigma, humiliation and scorn attached to a " venereal disease" upon Mr. Meyers, as opposed to relating any true state of facts, was exactly what Mr. Cohen intended by his statement. The plaintiff has failed to meet his burden of proving by a preponderance of the evidence that the statement Mr. Meyers " contracted a venereal disease" is substantially true, as that concept has been defined in the relevant case authority.
In a similar fashion, Mr. Cohen's repeated accusations that Mr. Meyers was a " thief" were based on his sophism that Mr. Meyers " stole" the $53,500 payment under the contract. Words claimed to be defamatory are given their natural and ordinary meaning and are taken as reasonable persons would understand them. Ventresca v. Kissner, 105 Conn. 533, 535, 136 A. 90 (1927). A reasonable person would understand the descriptive term " thief" to apply to a person who commits the crime of theft; someone who wrongfully, stealthily--and sometimes violently--takes the property of another. A reasonable person would not ascribe the term " thief" to a contracting party who has retained funds freely and voluntarily paid to it because of a dispute over who has breached the contract. The use of the word " thief" by Mr. Cohen is fully intended to bring down more scorn and contempt upon Mr. Meyers than would be occasioned by a statement of the literal truth: " a defendant in a lawsuit where a breach of a contract to build a house is alleged." Other than the fact that Mr. Meyers retained the initial payment under the contract, the plaintiff offered no other evidence of " thievery" by Mr. Myers. The plaintiff has failed to prove by a preponderance of the evidence the substantial truth of his many public statements that Mr. Meyers is a " thief."
Mr. Cohen's repeated references to Mr. Meyers committing " criminal acts" or " criminal violations, " or being an " admitted criminal" or even that his contracting business was " an ongoing criminal enterprise" are based on another fallacious argument. Because the New Home Construction Contractors Act provides for the imposition of criminal penalties in certain cases, and because Mr. Meyers has admitted he failed to comply with the NHCCA, Mr. Cohen stated that he is an " admitted criminal"; that he has committed a " criminal act"; and that his business is a " criminal enterprise." But the plaintiff offered no evidence that Mr. Meyers had ever been charged with a crime by any law enforcement agency, much less been convicted of a crime. An accusation that a person is " a criminal" has always been a serious matter in our society. It is associated with behavior that is immoral, anti-social, evil, shameful and fundamentally wrong. Labeling Mr. Meyers as an " admitted criminal" would create an impression in the mind of the listener many times more damaging than a literally true disclosure of the complete facts as to his violation of NHCCA and the lack of any criminal charges or convictions. The plaintiff has failed to prove by a preponderance of the evidence the substantial truth of his many public statements that Mr. Meyers is a " criminal" or committed " criminal acts."
Finally, the evidence at trial never made quite clear what the factual basis was for Mr. Cohen's statement that Mr. Meyers " cheated on his wife." The court presumes it had its genesis in the fact that Mr. Meyers admitted that he had used an on-line dating service (match.com). The proof amounted to little more than supposition or conjecture and fell far short of a fair preponderance of the evidence, which is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
In sum, for all these reasons, the plaintiff/counterclaim defendant has not met his burden of proof as to the special defense of truth, and recovery for defamation is not precluded on that basis.
G. Special Defense--Privilege
" A defendant may shield himself from liability for defamation by asserting the defense that the communication is protected by a qualified privilege." Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009). The necessary elements to be proven in order to establish a conditional privilege are: a) an interest to be upheld, b) a statement limited in its scope to this purpose, c) good faith, d) a proper occasion, and e) a publication in a proper manner to proper parties only. Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987). In the Miles case the Appellate Court recognized a conditional or qualified privilege applicable to false expression encompassing a matter of public concern. Id., 594. The privilege applies to false statements made as fair comment on matters of public interest. Id., 595.
However, " a qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive." (Emphasis in original.) Gambardella, supra, 630.
In order to overcome the special defense of conditional privilege, the counterclaim plaintiff must prove that Mr. Meyers acted with actual malice. " Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth." (Citation omitted; internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 537-38, 906 A.2d 14 (2006).
Malice is rarely subject to proof by direct evidence but is often proved only by inference through an accumulation of circumstantial evidence. Berry v. Loiseau, 223 Conn. 786, 805, 614 A.2d 414 (1992).
The court believes that the direct and circumstantial evidence in the record of this case abundantly supports a finding that Mr. Cohen's statements regarding Mr. Meyers stealing, committing criminal acts, causing a death, contracting venereal disease, and having extra-marital affairs were made with actual knowledge that they were false or with reckless disregard for whether they were false.
As one example, Mr. Cohen, on more than one occasion, stated that the conduct of Mr. Meyers " caused" or " led to" the death in 2007 of one of his customers, John Christopher. The statement that John Christopher's widow, Sandra Christopher, believes that the stress of dealing with the litigation with Mr. Meyers hastened John Christopher's demise from cancer is, in all respects, true. The statement that " Mr. Meyers lied, cheated and stole from the Christophers and that led to Mr. Christopher's death, " is not. The latter statement declares a direct cause and effect relationship between the conduct of Mr. Meyers and the death of Mr. Christopher that is not warranted or justified by any credible, objective facts.
Mr. Cohen had actual knowledge of the true state of facts. He was fully capable of accurately reciting the facts of Mr. and Mrs. Christopher's story. In a November 26, 2012 letter to the Selectmen of the Town of Middlefield, Mr. Cohen mentions the fact that Mr. Christopher died at a " relatively young" age without ever living in the " dream house" that Mr. Meyers was to build. The letter tracks very closely the established facts regarding the dispute between the Christophers and Mr. Meyers, and nowhere in the letter does Mr. Cohen suggest that Mr. Meyers' conduct " led to" Mr. Christopher's death. But, in a familiar pattern that would be seen in other contexts, Mr. Cohen's subsequent communication about the subject stray farther and farther from the objective facts until, in the end, there is little truth in them at all.
In an April 10, 2013 letter to Angie Martinez of the Department of Consumer Protection, Mr. Cohen stated that the lawsuit between Mr. Meyers and the Christophers " came to a conclusion when Mr. Christopher died fairly suddenly, perhaps in part because of Mr. Meyers' actions." In vivid language from his website " Housebuilder from Hell, " Mr. Cohen tells of " law-breaking, building code violations, losses totaling many hundreds of thousands of dollars, the death of an aggrieved, home buyer, an alleged threat of extreme violence--and one man at the center of it all--contractor and state-licensed building inspector Robert M. 'Bob' Meyers." In a June 18, 2013 letter to the Commissioner of the Department of Consumer Protection, Mr. Cohen stated that " Mr. Meyers has caused not just terrible problems for consumers, but death, mayhem and other horrors." The manner and context in which these statements were delivered--in a writing (e-mail) as opposed to speech, and on multiple occasions, persuade this court that this was not a negligent misstatement of fact.
Having patiently and exhaustively reviewed the entire record, the court is persuaded that Mr. Cohen's departures from the truth were in fact motivated by spite or ill will--a burning desire to destroy Mr. Meyers personally and professionally that went far beyond aggressive litigation tactics or a good faith interest in protecting the public good. This is reflected at the very outset of this dispute in the January 2011 e-mails he sent to Mr. Meyers and others when he promised to " call you out as a liar, cheat, thief and lawbreaker . . . You are going to be under the gun of officials and the public . . . you have left me no choice but to make you pay for it . . ." and continues throughout right up until the vehement and caustic text of the " Housebuilder from Hell" website. That publicly expressed intent to inflict harm, coupled with the fact that Mr. Cohen--when he wanted to--was fully capable of restricting his comments about Mr. Cohen to statements that were true, persuades the court that the accusation Mr. Meyers " caused" a death was deliberately made in purposeful avoidance of the truth.
Without discussing in detail, the court finds that a similar analysis applies to Mr. Cohen's deliberate use of the terms " thief" and " criminal" to refer to Mr. Meyers, and his website's disclosure that Mr. Meyers " cheated on his wife" and " contracted a venereal disease." These statements were all made in reckless disregard for whether they were false and in purposeful avoidance of the truth, as part of a cruel and vindictive effort to inflict injury upon Mr. Meyers. Actual malice has been proven to the court by a preponderance of the evidence, therefore any conditional privilege has been lost, and recovery for defamation is not precluded.
H. Is Mr. Cohen's Speech Protected by the First Amendment?
The counterclaim defendant Mr. Cohen argues that: " . . . the website posted by Cohen was designed to put the public on notice of the history of Meyers' actions, as well as Cohen's own dealings with Meyers. These are matters of public concern, relating to both Meyers as a builder with whom multiple consumers had made prior complaints and a lawsuit, and Meyers as a building official using his office to obtain building code interpretations for his own benefit. These are matters of public import, and Cohen's speech regarding Meyers is rightfully protected by both the State and Federal Constitutions." (Plaintiff's Post-Trial Brief, p. 61.)
The Connecticut Supreme Court recently decided the case of Gleason v. Smolinski, 319 Conn. 394 (2015). That decision provides considerable guidance to the court as to the application of First Amendment principles to claims of defamation and intentional infliction of emotional distress. As in Gleason, one question before this court is whether Mr. Cohen's speech and/or conduct is shielded from tort liability by the free speech provisions of the First Amendment to the Constitution. To answer that question, the court must decide whether Mr. Meyers has used the First Amendment protections as a " cloak or veil for intentionally tortious conduct that is only tangentially related to the claimed matter of public concern." Gleason, supra, 416.
In the present case, this court has already found that there was a great deal of animosity between the parties, and the record is replete with examples. In Gleason, the Supreme Court noted that while such an animus " might indicate circumstantially that a defendant is dressing intentionally tortious conduct in the garb of the First Amendment, such animus, including the defendant's motive to harm the plaintiff, does not necessarily render the messages conveyed matters of purely private rather than public concern. The vehicle, context, and content of the messages remains of paramount importance." Gleason, supra, 418.
In examining the vehicle, context, and content of the messages in the record before it, the Gleason court noted that the challenged communications " were entirely content neutral with respect to the plaintiff; none mentioned her by name, and all simply contained photographs and descriptions of Bill, along with reward and tip information." That is not the case here. Every defamatory communication specifically and explicitly identifies Mr. Meyers. There is nothing in the statements published by Mr. Cohen that reflects intent to comment upon new home construction contractors generally, or town building officials generally.
A second factor considered by the Gleason court was the particular forum in which the statements were expressed. In the present case, the vehicles for the publication of some of the statements made by Mr. Cohen--letters petitioning government officials or speaking at public meetings of governmental bodies--are the bedrock of the exercise of the right of free speech in our democracy. In this particular case, that is a factor to be afforded substantial weight.
But, in the end, having reviewed the entirety of the record and heard the testimony, the court concludes that, despite the important setting in which the statements were made, the content of the message and the context in which they were published makes it clear that they are not in furtherance of an uninhibited, robust, and wide-open debate on matters concerning public affairs. Their purpose was solely to harass and humiliate Mr. Meyers and perhaps induce the Town of Middlefield to prematurely end his employment, perhaps so as to avoid a public relations embarrassment. The statements were published against the background of a private business dispute that had mushroomed into a contentious, vitriolic, and extremely uncivil lawsuit. The court finds that Mr. Cohen's remarks were part of an extended campaign of retaliation and revenge against Mr. Meyers that had everything to do with their private dispute, and little if anything to do with Mr. Meyers' employment as building official or, for that matter, building officials in general. In the words of the Gleason court, the statements were not " intended to persuade . . . with regard to a matter of public concern, [but] rather [to] merely torture [him] gratuitously with regard to a purely private matter."
For the reason stated, the court finds that the speech in question is solely a contrived means for malicious harassment on a matter of private concern, and is therefore not entitled to protection under the First Amendment to the Constitution. See Gleason, supra, 426.
I. Counterclaim Count Three--Intentional Infliction of Emotional Distress
Count Three of the counterclaim is styled as a claim for " harassment/intentional infliction of emotional distress." Citing State v. Snyder, 40 Conn.App. 544, 551-52, 672 A.2d 535 (1996), the counterclaim plaintiff asserts--and briefs at length--a " claim of harassment." (See Defendants' Post-Trial Brief, pp. 49-50.) There is no such civil cause of action recognized in Connecticut. State v. Snyder discusses the crime of harassment in the second degree as recognized in our criminal penal code, General Statutes § 53a-183(a)(2). Therefore, the court will measure the evidence offered in support of the allegations of Count Three of the counterclaim only against the elements of the tort of intentional infliction of emotional distress.
To prove a claim for intentional infliction of emotional distress, four elements must be established by a preponderance of the evidence. " 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." Watts v Chittenden, 301 Conn. 575, 586, 22 A.3d 1214 (2011).
The " conduct" that is identified as the cause Mr. Meyers' emotional distress consists of written and verbal oral communication with various newspaper outlets, state officials, town officials and members of the public concerning Mr. Meyers' past history as a builder and contractor, his current licensure as a building official, and his employment as a Building Official for the Town of Middlefield. The counterclaim plaintiff points to numerous Freedom of Information requests by Mr. Cohen and Mr. Cohen's frequent speaking appearances at Middlefield Board of Selectmen meetings as evidence of " an intention by [Mr.] Cohen to harass, disturb, upset, annoy, threaten and or alarm [Mr.] Meyers. Such actions were done with malice, with the intent to cause financial and other harm and exceed what is accepted in a civilized community." (Defendants' Post-Trial Brief at p.52.)
In response, the counterclaim defendant argues that: " None of [Mr.] Cohen's actions were intended to inflict emotional distress, rather they were simply a part of the prosecution of this litigation. [Mr.] Cohen's actions were not extreme or outrageous, nor were they the cause [Mr.] Meyers' alleged emotional distress. In all instances [Mr.] Cohen's actions were clearly protected speech under both the First Amendment and by Connecticut's Constitution." (Plaintiff's Post-trial memo p. 63.)
Viewed in the context of all of the dealings between Mr. Meyers and Mr. Cohen, it is hard to believe that Mr. Cohen's efforts directed at the Town of Middlefield were " simply" designed to gather information for the pending litigation. Rather, it was, by all appearances, an intentional campaign--using permissible methods such as FOIA requests or open comments at public meetings--to drive a wedge between Mr. Meyers and his employer, the Town of Middlefield. It was marked by tactless, abusive, and derogatory discourse, merciless provocation, and relentless scrutiny, all of which put Mr. Meyers under severe, unremitting pressure.
However, " a claim for intentional infliction of emotional distress must be evaluated more by the actual conduct on which the claim is based, rather than by the generalized characterizations of this conduct." (Emphasis added). Shelton Yacht & Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-007380-S (February 2, 2007, Stevens, J.). In this case, the court has carefully scrutinized Mr. Cohen's actual conduct in communications with Town officials and at Town meetings, rather than viewing them through a prism of improper motive and malicious intent.
" 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 . . . 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." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012).
A review of the cases addressing the definition and parameters of " extreme and outrageous" conduct in intentional infliction of emotional distress cases indicates that the particular conduct at issue in this case--when viewed dispassionately--falls short of the stringent standard for imposition of tort liability. For example, in Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 774-76, 54 A.3d 221 (2012), the court concluded that a pattern of harassment, humiliation and infliction of emotional distress that put the plaintiff under relentless and severe pressure to quit her job did not constitute extreme and outrageous conduct. The court commented that " [a] vindictive conspiracy to terminate a plaintiff's employment, even if true, would not necessarily be sufficient to state a claim for intentional infliction of emotional distress." Id., 775.
In Gillians v. Vivanco-Small, 128 Conn.App. 207, 213, 15 A.3d 1200, cert. denied, 301 Conn. 933, 23 A.3d 726 (2011), allegations that the plaintiff's co-workers, motivated by personal vendetta, conspired to create a hostile work environment that included falsely accusing plaintiff of racial and sexual bias and giving plaintiff negative performance evaluations were insufficient to state claim for intentional infliction of emotional distress.
In Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007), the court determined that " defendants who harassed, intimidated, defamed and then disciplined a plaintiff without proper investigation did not engage in conduct that was extreme and outrageous."
In Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000), a defendant's condescending comments about the plaintiff in front of colleagues, questioning plaintiff's vision and ability to read, complaints to plaintiff's daughter, asking police to escort plaintiff from school, requiring her to submit to psychiatric testing and ultimately forcing her to resign were not considered sufficient to establish extreme and outrageous conduct. The court commented: " These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct within the meaning of the precedents to which we referred previously." Id., 211.
In sum, even if Mr. Cohen was engaged in a personal vendetta intended specifically to humiliate and harass Mr. Meyers or make him lose his job, the specific conduct of making defamatory remarks at public meetings, sending letters to government officials containing defamatory statements, and maintaining an internet website with defamatory information, does not rise to the level of " extreme and outrageous conduct" --as that concept has been defined in the relevant case authority--necessary to impose liability for intentional infliction of emotional distress. The conduct that has been proven at trial is not extreme and outrageous as a matter of law, and therefore the cause of action for the intentional infliction of emotional distress must fail.
Having decided that the plaintiff has failed to prove an essential element of his cause of action, the court need not reach the question of whether the of Mr. Cohen's conduct that the counterclaim plaintiffs assert constitutes the intentional infliction of emotional distress is protected by the First Amendment to the Constitution.
For these reasons, the court finds the issues with regard to Count Three of the Counterclaim in favor of the counterclaim defendant, Joseph Cohen.
III. CONCLUSION
Judgment enters for the plaintiff Joseph Cohen on Count Seven of the Complaint. Economic damages are awarded in the amount of $54,750 (Fifty-Four Thousand, Seven Hundred and Fifty Dollars). Judgment enters for the defendants as to all other counts of the plaintiff's complaint.
Although no formal withdrawal has been filed, the plaintiff expressed at trial, and in his post-trial briefing, his intention to withdraw the rescission claim in Count Four. See plaintiff's post-trial Memorandum [#335], p. 61. Accordingly, judgment is also entered as to Count Four.
Judgment enters for the counterclaim plaintiff Robert M. Meyers, Inc. as to Count One of the counterclaim. Nominal damages in the amount of $1.00 (One Dollar) are awarded as to Count One of the Counterclaim.
Judgment enters for the counterclaim plaintiff Robert M. Meyers as to Count Two of the Counterclaim. Non-economic damages of $100,000 (One Hundred Thousand Dollars) are awarded as to Count Two of the Counterclaim.
Judgment enters for the counterclaim defendant Joseph Cohen as to Count Three of the Counterclaim.
The court, in its discretion, considering all the evidence, does not award punitive damages to either party. The court also declines to grant the counterclaim plaintiff Robert M. Meyers the prospective injunctive relief that he has requested because he did not prove that he will, in the future, suffer irreparable harm or that he will be without an adequate remedy at law.
Each party is to bear its own costs.