Opinion
No. CV 05-4011040
January 10, 2007
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#102)
On May 19, 2005, the plaintiffs, Patricia Santoro and Chet Santoro, filed a two-count complaint, sounding in defamation per se and defamation per quod, respectively, against the defendant Bruce Storm, the superintendent of the Branford public schools. The relevant facts, as alleged in the plaintiffs' complaint, are as follows. During the 2000-2001 school year, the plaintiffs became concerned that uncertified coaches were employed by the athletic program at Branford High School where their son was, at that time, a student and varsity athlete. After researching their concerns through the state board of education and the American Red Cross, the plaintiffs presented their concerns to the Branford Board of Education at a public meeting held on February 28, 2001. The present action arises out of allegedly libelous statements relating to these events made by the defendant in a memorandum submitted to the Branford Board of Education on March 21, 2001, and in an article published in a Branford newspaper, The Sound, on March 8, 2001.
On October 17, 2005, the defendant filed a motion for summary judgment on both counts of the plaintiffs' complaint, accompanied by a supporting memorandum and extensive documentary evidence. On November 21, 2005, the plaintiffs filed a memorandum of law in opposition to the motion for summary judgment, also accompanied by extensive documentary evidence. A reply memorandum was filed by the defendant on May 30, 2006. Oral argument on this motion was heard on December 11, 2006.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). " `Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "Summary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
I. Count One — Defamation per se
In count one, the plaintiffs allege that the defendant defamed the plaintiffs by "telling a local newspaper reporter that certain documents produced by the plaintiffs at the February 28, 2001 meeting were fraudulent." The plaintiffs also allege that the defendant "further defamed the plaintiffs by publishing a memorandum to school board members on or about March 21, 2001, in which [the defendant] stated that the plaintiffs had submitted `fake and potentially fraudulent' documents to the board's February 28, 2001 meeting and that the plaintiffs engaged in acts of fraudulent deception to obtain documents." The plaintiffs further allege that the statements made in this memorandum alleged moral turpitude by the plaintiffs and were calculated to injure their reputation in the community.
The defendant moves for summary judgment on count one of the complaint on the ground that the plaintiffs' claim of libel per se fails as a matter of law. The defendant raises several bases to support his contention that he is entitled to summary judgment on count one. The defendant argues the following: (1) Truth is an absolute defense; (2) the plaintiffs were not identified to a third party; and (3) the defendant did not accuse the plaintiffs of a crime of moral turpitude. The court addresses each in turn.
A. Truth as a Defense
The defendant argues that because it is undisputed that the "American Red Cross" document (Defendant's Exhibit I) submitted by the plaintiffs at the February 28, 2001 meeting was not an official American Red Cross document, but one manufactured by Kevin Finucane, a two-fold argument exists to support the defendant's contention that his statements were not defamatory. First, the document that was submitted to the Red Cross by the plaintiffs (Defendant's Exhibit H) was not presented to the Board at the meeting, and after the Red Cross verified that the document presented was not authentic, the defendant had reasonable grounds to conclude that the document was "fake and/or fraudulent." Second, the nonexistence of a disputed fact regarding the lack of authenticity of the Red Cross document submitted by the plaintiffs demonstrate that the defendant's statements about the document in the March 8, 2001 newspaper article and the March 21, 2001 memorandum to the school board were in fact true.
The uncertified deposition testimony of the plaintiff Patricia Santoro, submitted as Exhibit F by the defendant, indicates that Kevin Finucane is the plaintiffs' neighbor. Neither party disputes that Kevin Finucane produced the document in issue.
In response, the plaintiffs do not deny the truth of the defendant's statement concerning the lack of authenticity of the document. They contend that the document presented at the February 28, 2001 meeting was obviously not an official document nor was it intended to be. The plaintiffs argue they were prepared to explain the document in detail at the time it was submitted, but they were not given the opportunity to do so. At oral argument, the plaintiffs further argued that the defendant did not act in good faith when he made the alleged defamatory statements because he was aware of the circumstances surrounding the procurement of the Red Cross document, including the involvement of Kevin Finucane, and purposefully implicated the plaintiffs in a negative light.
The court first addresses the defendant's argument that his statements were true, and therefore are not defamatory. For "a party [to] be held liable for libel, there must be an unprivileged publication of a false and defamatory statement . . . Truth is an absolute defense to an allegation of libel." (Citation omitted.) Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316, 477 A.2d 1005 (1984). When a private citizen alleges a cause of action for defamation, courts have held, however, that "truthful statements which carry a defamatory implication can be actionable." (Internal quotation marks omitted.) Id., 324. In the present case, although the plaintiffs have admitted that the "Red Cross" document presented to the board was not an official document, the unofficial status of this document, alone, is not dispositive of this motion for summary judgment. A factual question remains as to whether the defendant's statements concerning the procurement of this document, when viewed in the entirety, carry a defamatory implication.
The court next addresses the defendant's alternative argument that his statements about the document, even if false, were made in good faith and therefore are not actionable. Even if the defendant's conclusion that the document was "fake or fraudulent" was reasonable in light of his investigation into the Red Cross document and the organization's subsequent acknowledgment that the document was not an official document, this does not establish the lack of a factual dispute that his statements in the news article and the memorandum are nondefamatory. As set forth above, a factual dispute remains as to whether the statements, taken as a whole, carry a defamatory implication.
This court notes that "[s]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). "[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion . . . [E]ven with respect to motive, intent or good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 842, 888 A.2d 104 (2006).
B. Third-Party Identification
The defendant also argues that, as a matter of law, the plaintiffs cannot prevail on their defamation per se claim because the allegedly defamatory statements made by the defendant in the newspaper article did not identify the plaintiffs to a third person. The defendant's statement in the newspaper, that "someone represented themselves to the Red Cross as a Board of Education member," did not identify the plaintiffs as the "someone." At oral argument, the plaintiffs argued that the defendant's statement, when viewed in the context of the entire article, creates an implication that the plaintiffs were the "someone" who falsely misrepresented themselves in order to obtain information. Furthermore, the plaintiffs argue that the defendant was aware that Kevin Finucane was the individual who contacted the Red Cross to make the inquiry, and therefore by not identifying Finucane in the statement to the newspaper, the defendant purposefully implicated the plaintiffs in a negative light.
Publication of a defamatory statement to a third person is a prima facie element of a cause of action for defamation. See Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). This court rejects the defendant's hypertechnical argument that the defendant's statement did not identify the plaintiffs to a third person because of the use of the vague identifier "someone." The plaintiffs were identified by name in the beginning of the article as the individuals who brought the matter of certification to the board's attention. The plaintiffs were also later identified by the defendant, by name, as the persons who produced the Red Cross document. This identification is immediately followed in the next paragraph, with this statement by the defendant: "This was a manufactured document. The Red Cross can't identify it, and someone represented themselves as a Board of Education member." Because a reasonable person could conclude that the defendant was referring to the plaintiffs in his statement that "someone represented themselves as a Board of Education member," the court rejects the defendant's argument that the plaintiff's claims fail as a matter of law because of lack of identification to a third person.
C. Moral Turpitude
The court next addresses the defendant's argument that the plaintiff's claim of defamation per se must fail because the defendant did not accuse the plaintiffs of committing a crime, much less a crime of moral turpitude. The defendant contends that his statements, in the newspaper as well as in the memorandum, cannot constitute libel per se. In response, the plaintiffs argue that the statements made by the defendant directly implicate the plaintiffs in acts of moral turpitude. At oral argument, the plaintiffs argued that the defendant's statements did in fact amount to an accusation of a crime.
"Defamation is comprised of the torts of libel and slander . . . Libel . . . is written defamation . . . Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . 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 . . . Whether a publication is libelous per se is a question for the court." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 848, 888 A.2d 104 (2005). Courts have generally recognized two classes of libel that are actionable per se: "(1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached." (Internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 853, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003). "The modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment." Bottista v. United Illuminating Co., 10 Conn.App. 486, 493, 523 A.2d 1356 (1987), cert. denied, 204 Conn. 802, 525 A.2d 965 (1987). On its face, the acts described in the newspaper article and in the memorandum appear to support a charge of forgery in violation of General Statutes § 53a-140 or criminal impersonation in violation of General Statutes § 53a-130, both of which are class B misdemeanors. According to General Statutes § 53a-36: "A sentence of imprisonment for a misdemeanor shall be a definite sentence and the term shall be fixed by the court as follows . . . (2) for a class B misdemeanor, a term not to exceed six months . . ." This court therefore concludes that the alleged defamatory statement as a matter of law falls into the category of libel per se.
General Statutes § 53a-140, titled Forgery in the third degree: Class B misdemeanor, states in relevant part: "(a) A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged."
General Statutes § 53a-130, titled Criminal impersonation: Class B misdemeanor, states in relevant part: "(a) A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends to be a public servant other than a sworn member of an organized local police department or the Division of State Police within the Department of Public Safety, or wears or displays without authority any uniform, badge or shield by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense."
For all of the above-stated reasons, the court finds that the plaintiffs have sufficiently alleged a claim for libel per se. The defendant has not sustained his burden on summary judgment to establish that genuine issues of material fact are not in dispute. A reasonable person could conclude that the defendant's statements carry a defamatory implication and were published to a third party. The defendant's motion for summary judgment on count one of the plaintiffs' complaint is thereby denied.
II. Defamation Per Quod
In count two, the plaintiffs incorporate the allegations of count one to assert a cause of action for libel per quod. Specifically, the plaintiffs allege that the comments made by the defendant in the newspaper and in the memorandum to the board of education constitute defamation. The defendant moves for summary judgment on count two of the complaint on the ground that the plaintiffs' claim for defamation per quod fails as a matter of law. The defendant argues the following to support his position: (1) the undisputed facts demonstrate that the defendant's statements were opinions, and therefore not defamatory; and (2) the claim for libel per quod must fail because the plaintiffs fail to allege pecuniary harm.
A. Opinions Are Not Defamatory
The defendant argues that the plaintiffs' common-law defamation claim based on the statements made in the newspaper and in the memorandum must fail for two reasons. First, the defendant argues that the statements made by the defendant are not defamatory because the defendant merely expressed his opinion, not a factual statement. Second, the defendant argues that count two must fail as a matter of law because the plaintiffs have failed to allege pecuniary harm as required for a cause of action in common law defamation, or libel per quod. In response, the plaintiffs argue that the statements made by the defendant "were not true, were not mere opinions, and were inspired by malice. The statements were not ones made in the ordinary course of performing one's duties and were not couched in terms that an ordinary person would likely take to be mere opinion."
In his memorandum in support of his motion for summary judgment, the defendant offers an argument to contest the plaintiffs' allegations of defamation in four other documents. The court, however, need not address this argument as the plaintiffs conceded at oral argument that their defamation claim is based solely on the memorandum filed by the defendant with the board and the statements made to the newspaper.
In Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999), the Supreme Court stated: "To be actionable [in defamation], the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." "A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . In a libel action, such statements of fact usually concern a persons conduct or character . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." (Citations omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 438 A.2d 1317 (1982). In a defamation action, "this distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated . . . Thus, while this distinction may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speakers or writer's opinion, or as a statement of existing fact." (Citation omitted; internal quotation marks omitted.) Id., 111-12.
Looking to the specific statements made by the defendant to determine whether the statements indicate an opinion or a factual allegation, the court finds that the defendant's statements in both the memorandum and the newspaper article can be characterized as a statement of fact and, therefore, can support a cause of action for defamation. The statement made by the defendant, as reported by the newspaper, can be viewed by an ordinary person as stating more than just a personal observation of the plaintiff's conduct: "This was a manufactured document. The Red Cross can't identify it, and someone represented themselves as a Board of Education member." This statement implies knowledge of an existing fact, especially considering that the defendant had previously been identified in the newspaper article as the person charged with making a further inquiry into the plaintiffs' allegations that coaches were not properly certified.
Likewise, the statements made by the defendant in his memorandum to the board of education can also be viewed by an ordinary person to be more than just a personal observation. The court finds it significant that the purpose of this memorandum was to report the results of an investigation into the coaches' certification process and to address the plaintiffs' allegations. This was a formal report, and an ordinary person would expect such a report to be based upon objective facts, not personal observations. Therefore, the following statements made by the defendant concerning the events surrounding the Red Cross document can be viewed as based on objective facts: "Upon further investigation, it was learned that the Red Cross had in fact provided information to the `confederate' of the `concerned citizens' under the misguided presumption that this individual was a representative of the Board of Education. Upon further investigation and sharing of the photograph of the `confederate,' it was determined that that individual had arrived at the New Haven Red Cross on two different occasions, again representing himself as an agent of the Board of Education in an attempt to secure information . . ." Twice in this statement, the defendant references the investigation he conducted to achieve this knowledge of the circumstances. This suggests knowledge of objective facts, rather than personal opinion, as the basis for the statements.
The court also finds it significant that the defendant relies on the truth of his statements, made after a thorough investigation of the facts, in order to support the motion for summary judgment as to count one, but then argues that the same statements were mere opinions, to support the motion for summary judgment of count two.
The defendant's statements in both the memorandum and the newspaper article suggest a basis of objective fact, and not just a personal observation, thereby raising a genuine issue of material fact. As noted by the Supreme Court, "[w]here the court cannot reasonably characterize the allegedly libelous words as either fact or opinion because, for example, innuendo is present, this becomes an issue of fact for the jury, which would preclude a directed verdict." Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 112 n. 5. The court thereby rejects the defendant's argument that he is entitled to summary judgment as a matter of law on count two.
B. Pecuniary Harm
In the alternative, the defendant also argues that he is entitled to summary judgment as a matter of law on count two because the plaintiffs have failed to allege pecuniary harm as required to support a cause of action for common law defamation. In their complaint, the plaintiffs allege that they suffered emotional distress and damage to their reputation in the community as a direct and proximate result of the defendant's statements. The plaintiffs do not specifically address the defendant's argument regarding pecuniary harm in their reply brief. Instead, the plaintiffs argue that the court must ultimately decide whether all the elements of the tort have been satisfied.
"While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod . . . A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication . . . When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover . . ." (Citation omitted; internal quotation marks omitted.) DeMorais v. Wisniowski, 81 Conn.App. 595, 603-04, 841 A.2d 226 (2004). "To prevail on a common-law defamation claim, a plaintiff must prove that the defendant published false statements about her that caused pecuniary harm." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).
In the present case, the plaintiffs have pleaded general damages in the form of mental distress and harm to their reputation. The plaintiffs have failed to plead or prove the special damages resulting from the defamatory statements as required to support a cause of action for common-law defamation. The court does note, however, that the use of the motion for summary judgment on count two incorporates the function of a motion to strike. The defendant did not file a timely motion to strike and is therefore raising the argument of legal insufficiency in the motion for summary judgment. According to the Supreme Court, "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Here, the plaintiffs would have had an opportunity to replead if the legal insufficiency of their complaint had been raised in a motion to strike and the defendant has not established, as he must under the holding of Larobina v. McDonald, that the defect cannot be cured by repleading. Summary judgment is thereby denied as to count two.