Opinion
HHDCV156059311S
03-08-2016
J. Xavier Pryor v. Timothy Brignole et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#116)
Sheila A. Huddleston, Judge.
This is a defamation action brought by an attorney against his former employers. The plaintiff has moved to strike the special defenses asserted by the defendants on the grounds that they rely on facts that are inconsistent with the allegations in the complaint, they assert mere legal conclusions as special defenses, and they fail to allege facts necessary to support or invoke several special defenses. For the reasons set forth below, the motion is granted as to the second and third special defenses and denied as to all other special defenses.
FACTUAL ALLEGATIONS
On May 11, 2015, the plaintiff, J. Xavier Pryor, filed a two-count complaint against the defendant, attorney Timothy Brignole, and Brignole's law firm, Brignole, Bush & Lewis, LLC (Brignole firm), for slander per se as to each defendant. In count one, the plaintiff alleges the following facts. The plaintiff is an attorney who began working for the defendants in April 2003. In January 2014, the plaintiff gave notice to Brignole of his intention to resign his position with Brignole's firm to commence the practice of law with another firm. Two weeks later, in early February 2014, the plaintiff voluntarily ceased employment with the Brignole firm. In October 2014, Brignole met with Thomas Accarpio (Accarpio), owner of Preferred Electric, LLC, in Brignole's offices to discuss the status of a case in which the Brignole firm had represented Preferred Electric. While the plaintiff was employed by the Brignole firm, he had represented Preferred Electric. During the meeting between Brignole and Accarpio, Brignole falsely told Accarpio that he had fired the plaintiff for his lack of skill, incompetence, and poor performance in the Preferred Electric case. As a result of Brignole's materially false and slanderous statement, the plaintiff claims damages for per se injury to his professional reputation, humiliation, and mental anguish.
In count two, the plaintiff incorporates all of count one and further alleges that Brignole made the false and slanderous statements in his official capacity as manager, owner, and principal for the Brignole firm. Because Brignole was authorized to speak for the firm, the firm is liable for the slanderous statements made by Brignole.
On July 29, 2015, the defendants filed an answer and special defenses. The defendants deny that the plaintiff provided verbal notice of his voluntary intention to resign and that in February 2014, the plaintiff did resign. The defendants further deny that Brignole falsely told Accarpio that he had fired the plaintiff from his position for his lack of skill, incompetence, and poor performance in the Preferred Electric case and that the plaintiff suffered damages. The defendants also deny the additional allegations made in count two.
Having denied the essential allegations of the plaintiff's complaint, the defendants then specially pleaded the defenses of (1) truth of the matter asserted, (2) privilege, (3) fair comment doctrine, (4) no intention to misrepresent, (5) no derogation of the plaintiff's reputation, and (6) need for proof of special damages.
On September 21, 2015, the plaintiff moved to strike the defendants' first, second, third, fourth, fifth, and sixth special defenses and filed a supporting memorandum of law. The defendant filed an objection and memorandum of law in opposition to the motion to strike on November 4, 2015. This matter was heard at short calendar on November 23, 2015.
STANDARD OF REVIEW
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " In addition to challenging the legal sufficiency of a complaint or counterclaim, our rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, 'including any special defenses contained therein . . .' Practice Book § 10-39; see also Practice Book § 10-6." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 179-80, 73 A.3d 742 (2013).
" Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). " In . . . ruling on [a] . . . motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
DISCUSSION
The plaintiff alleges the following defamatory statement: " Brignole falsely informed Thomas Accarpio that Defendant Brignole had fired Plaintiff Pryor from his position with [the Brignole firm] for his lack of skill, incompetence, and/or otherwise poor performance in the Preferred Electric case."
" 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 . . ." (Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 431, 125 A.3d 920 (2015). " Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written defamation." (Internal quotation marks omitted.) Id., 430 n.30. To establish a prima facie case of defamation at common law, the plaintiff must prove 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.) Id., 430.
Although defamation claims are rooted in common law, respect for constitutional values expressed in the first amendment has imposed variations in the burdens of proof depending upon whether the plaintiff is a public or private figure and whether the subject of the speech is a matter of public or private concern. See id., 431. In this case, nothing in the pleadings suggests that the plaintiff is a public figure or that the subject of the speech was a matter of public concern; the subject involves a private attorney's representation of a private client and the attorney's relationship with his employer, also a private law firm. Speech regarding a private party on a matter of private concern deserves " no special protection under the first amendment . . ." Miles v. Perry, 11 Conn.App. 584, 597, 529 A.2d 199 (1987).
I
FIRST SPECIAL DEFENSE: TRUTH OF THE MATTER ASSERTED
The defendants' first special defense is that " [t]he statements made to Thomas Accarpio were true, or substantially true, and therefore protected speech." In support of that special defense, the defendants allege that the plaintiff failed to achieve the successful result expected in the Preferred Electric trial; that defendant Brignole expressed his dissatisfaction with the plaintiff's performance in that and other trials; and that the plaintiff was aware that Brignole was not satisfied with his performance. The plaintiff contends that these allegations are inconsistent with the facts alleged in the complaint.
" It is well settled that for a claim of defamation to be actionable, the statement must be false . . . and under the common law, truth is an affirmative defense to defamation . . . the determination of the truthfulness of a statement is a question of fact for the jury." (Internal quotation marks omitted.) Gleason v. Smolinski, supra, 319 Conn. 431. " [N]otably, our courts have held that only substantial truth need be shown by a defendant . . . A defendant may show only that the main charge, or gist, of the [slander] is true . . . If he succeeds, he does not have to further justify statements that do not add to the sting of the charge." (Citation omitted; internal quotation marks omitted.) Gianetti v. Connecticut Newspaper Publishing Co., 136 Conn.App. 67, 76, 44 A.3d 191, cert. denied, 307 Conn. 923, 55 A.3d 567 (2012). " In a civil action for [slander], where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112, 448 A.2d 1317 (1982).
The defendants' first special defense alleges the substantial truth of the statements made. As stated above, truth is recognized at common law as an affirmative defense to a defamation claim and must be specially pleaded. Accordingly, the motion to strike the first special defense is denied.
II
SECOND SPECIAL DEFENSE: PRIVILEGE
The defendants' second special defense is that Accarpio was the defendants' client and communications between attorneys and clients are privileged. The plaintiff claims that the defendants have not pleaded sufficient facts to support a claim of privilege. The court agrees with the plaintiff.
" A defendant may shield himself from liability for defamation by asserting the defense that the communication is protected by a qualified privilege . . . When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries . . . The first is whether the privilege applies, which is a question of law . . . The second is whether the applicable privilege nevertheless has been defeated through its abuse, which is a question of fact." (Citations omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736 (2009).
" A qualified or conditional privilege arises out of an 'occasion, ' such as, when one acts in the bona fide discharge of a public or private duty." Miles v. Perry, supra, 11 Conn.App. 594 n.8. In a defamation action, privilege is an affirmative defense that must be specially pleaded. See id. The essential elements of a defense of privilege are " (1) an interest to be upheld, (2) a statement limited in its scope to this purpose, (3) good faith, (4) a proper occasion, and (5) a publication in a proper manner to proper parties only." Id., 595.
In this case, the defendants assert the attorney-client relationship as the basis for their claim of privilege. While the attorney-client relationship may represent an " interest to be upheld, " as required for the first element of a privilege asserted to defeat a defamation claim, the defendants have not alleged facts to support either a claim of privilege in the context of defamation actions or facts to support a claim of attorney-client privilege generally. " As a general rule, [c]ommunications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice." (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 10, 826 A.2d 1088 (2003). Here, the defendants fail to allege that the defamatory comment was made in confidence for the purpose of giving legal advice.
To the contrary, in their memorandum in opposition to the motion to strike, the defendants represent that the comments were made to explore whether the Brignole firm might have any liability to Preferred Electric based on the plaintiff's allegedly " egregious activities" during the Preferred Electric trial. They argue that they were entitled to determine whether there were " any type of actionable events between Mr. Accarpio and the law firm of Brignole, Bush and Lewis's former employees based on ineffective assistance at the time of trial." This argument suggests that the communication was made in an effort to protect the interests of the Brignole firm, not that it was given as legal advice to the client.
The plaintiff also argues that attorney-client privilege belongs to the client, not the attorney, and that Accarpio waived the privilege. This argument is not relevant to the defense of privilege in the defamation context. As stated above, a privilege defense in defamation law requires proof of an interest to be upheld, a statement limited in scope to that purpose, made in good faith on a proper occasion to a proper party. If a statement was made in confidence by an attorney to a client for the purpose of giving legal advice and otherwise met the elements of the privilege defense in defamation actions, the client's subsequent waiver of the attorney-client privilege would not change the fact that the comment was privileged when made.
Nevertheless, as discussed above, the allegations in this special defense are insufficient to establish that the communication was protected by the attorney-client privilege in the first instance or that it otherwise met the requirements of a defense of privilege under the law of defamation. Accordingly, the motion to strike is granted as to the second special defense.
III
THIRD SPECIAL DEFENSE: FAIR COMMENT DOCTRINE
The defendants' third special defense incorporates the allegations of the first and second special defenses and further asserts that (1) the comments allegedly made by defendant Brignole " were related to the defendant's official action"; (2) the comments were " fair and accurate relating to that official action"; and (3) such statements are privileged under the fair comment doctrine. The plaintiff argues that the defendants fail to allege facts that are sufficient to invoke the fair comment doctrine, which addresses matters of public concern. The court agrees with the plaintiff.
" The privilege of fair comment, which was one of the most important privileges realized at common law, was a qualified privilege to express an opinion or otherwise comment on matters of public interest . . . Traditionally, fair comment concerned persons, institutions or groups who voluntarily injected themselves into the public scene or affected the community's welfare, such as public officials, political candidates, community leaders from the private sector or private enterprises which affected public welfare . . ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican American, Inc., supra, 188 Conn. 114-15. The privilege gained constitutional status in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and cases following it. " The privilege of fair comment is a common law qualified privilege arising out of an occasion to express an opinion or otherwise comment on matters of public interest." Miles v. Perry, supra, 11 Conn.App. 595.
In the present case, the defendants have not alleged any facts supporting a claim that the alleged defamatory statement involved a matter of public concern. While the defendants are correct that the fair comment doctrine is a cognizable special defense to a defamation action, they have not provided a factual basis for asserting the defense. Accordingly, the motion to strike is granted as to third count.
IV
FOURTH SPECIAL DEFENSE: NO INTENTION TO MISREPRESENT
The fourth special defense incorporates the allegations of the first, second, and third special defenses and adds the allegation that the statements were " opinions as opposed to statements of fact" and " [o]pinion statements are protected and privileged speech." Thus, although cryptically captioned " No intention to misrepresent, " the gravamen of the fourth special defense is that the alleged defamatory statement was a statement of opinion and therefore privileged. The plaintiff argues that this fourth special defense fails to allege facts that are consistent with the complaint, as is required for a special defense, and that it merely restates the first special defense. The court disagrees, and, in any event, has previously held that the first special defense is properly pleaded because truth of the matter asserted is an affirmative defense to a defamation claim by a private plaintiff.
" A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." Restatement (Second), Torts § 566 (1977). At common law, there are two kinds of expression of opinion. The " pure" type " occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff's conduct, qualifications or character." Id., comment (b). The " mixed" type is " one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated . . . [but give] rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant." Id.
A " pure" expression of opinion based on an expressly stated fact is constitutionally protected. " Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Thus, if a defendant " bases his expression of a derogatory opinion of the plaintiff on his own statement of false and defamatory facts, he is subject to liability for the factual statement but not for the expression of opinion." Restatement (Second), Torts § 566, comment (c)(1) (1977). " If the defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of facts that are not defamatory, he is not subject to liability for the factual statement--nor for the expression of opinion, so long as it does not reasonably indicate an assertion of the existence of other, defamatory, facts that would justify the forming of the opinion." Id., comment (c)(2).
Whether an employee voluntarily quit or was fired appears to be a statement of fact; whether his employer believed his performance in a particular matter was deficient is a matter of opinion. In the first special defense, which is incorporated into the fourth special defense, the defendants alleged that Brignole's comments were true or substantially true; in the fourth special defense, they add the claim that the derogatory comments were opinion. The defendants have therefore alleged that the challenged comment is based on a substantially true statement of fact and the remainder is a statement of opinion. With respect to defamation actions by private individuals, this adequately alleges an " opinion" defense. Accordingly, the motion to strike is denied as to the fourth special defense.
V
FIFTH SPECIAL DEFENSE: NO DEROGATION OF PLAINTIFF'S REPUTATION
In the fifth special defense, the defendants incorporate the allegations of the first four special defenses and further assert that Brignole's allegedly defamatory comment indicated only that the plaintiff had mishandled a single case and therefore was not calculated to impugn the plaintiff's overall reputation as a lawyer. The plaintiff moves to strike this special defense on the ground that it fails to allege facts consistent with the plaintiff's complaint. The court disagrees.
The plaintiff contends that he has pleaded slander per se. Slander, as noted above, is oral defamation. It has long been the law that " [s]poken words are actionable per se only if they charge a general incompetence or lack of integrity. They are not slanderous per se if they charge no more than specific acts, unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity." Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 567, 72 A.2d 820 (1950). The defendants' assertion that the alleged defamatory comment involved only a single incident and did not impugn the plaintiff's general competence or integrity as an attorney, if proven, would defeat a claim of slander per se. Whether such an assertion must be pleaded as a special defense, or could be raised by way of a general denial, is not at issue here; the plaintiff challenges it only as an incorrect statement of the law. Because the fifth special defense properly characterizes the law of slander per se, the motion to strike is denied as to the fifth special defense.
VI
SIXTH SPECIAL DEFENSE: NEED FOR PROOF OF SPECIAL DAMAGES
In the sixth special defense, the defendants incorporate all the allegations of the first five special defenses and add the assertion that the plaintiff has failed to allege a defamatory act that falls into one of the categories of defamation that does not require proof of special damages. The plaintiff moves to strike this special defense on the ground that he has adequately pleaded slander per se.
As with the fifth special defense, the plaintiff's sixth special defense accurately reflects the law concerning slander per se. Under Connecticut law, a plaintiff who has established that words were actionable per se is entitled " to recover general damages without proof of special damages." Miles v. Perry, supra, 11 Conn.App. 602. " On the other hand, if the words are defamatory, but not actionable per se, the plaintiff may recover general damages for harm to her reputation only upon proof of special damages for actual pecuniary loss suffered." Id. If, as the defendants allege in the fifth special defense, Brignole's comment is construed as relating only to a single incident, and not to general incompetence, then slander per se would not be established and the plaintiff would be required to prove special damages. Again, while it is debatable whether this allegation must be pleaded as a special defense or could be raised as a general denial of the plaintiff's claim of slander per se, the plaintiff has not raised that issue as a ground for his motion to strike. The motion to strike the sixth special defense is denied.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike is denied as to the first, fourth, fifth, and sixth special defenses. The motion to strike is granted as to the second and third special defenses.