http://appellateinquiry.jud.ct.gov/CaseDetail.aspx?CRN=49764&Type=PartyName
- Appellate Court of Connecticut.
- ·
- 88 A.3d 589 (Conn. App. Ct. 2014)
Gleason v. Smolinski
Conn. App.
Appellate Court of Connecticut.
No. 34990.
2014-04-8
Madeleine GLEASON et al. v. Janice SMOLINSKI et al.
Steven
J. Kelly, pro hac vice, with whom were Anne T. McKenna, pro hac vice,
and Christopher DeMarco, for the appellants (named defendant et al.).
John R. Williams, New Haven, for the appellee (named plaintiff).
SHELDON
*594594
Steven J. Kelly, pro hac vice, with whom were Anne T. McKenna, pro hac
vice, and Christopher DeMarco, for the appellants (named defendant et
al.). John R. Williams, New Haven, for the appellee (named plaintiff). ALVORD, BEAR and SHELDON, Js. SHELDON, J.
The defendants Janice Smolinski and Paula Bell 1 appeal from the trial court's judgment in favor of the plaintiff Madeleine Gleason 2 on her claims of intentional infliction of emotional distress and defamation arising from the defendants' conduct *595595following
the disappearance in 2004 of Bill Smolinski, who is Janice Smolinski's
son and Bell's brother. The defendants make six arguments as to why the
judgment of the court should be reversed: (1) the court erred in failing
to bar the plaintiff's claims under the first amendment to the United
States constitution; (2) the trial judge exhibited bias and partiality
that constituted plain error; (3) the court erred in relying on hearsay
statements to determine that the defendants intended to inflict
emotional distress upon the plaintiff; (4) there was insufficient
evidence to support the finding of intentional infliction of emotional
distress; (5) there was insufficient evidence to support the finding of
defamation; and (6) the court erred in awarding compensatory and
punitive damages to the plaintiff. For the following reasons, we
disagree with the defendants and affirm the judgment of the court.
1.
The plaintiff also sued John Murray, the owner, publisher and editor of
a monthly newspaper, the Waterbury Observer, for invasion of privacy
and intentional infliction of emotional distress. Murray filed a motion
to strike the claims against him, which the court granted on July 20,
2009. He then moved for summary judgment because all of the counts
directed at him had been stricken by the court. The court granted
Murray's motion for summary judgment on January 12, 2010. Thus, none of
the claims in this appeal pertain to Murray.
2.
The plaintiff's employer, B and B Transportation, Inc., was an original
plaintiff in this action, pleading claims against the defendants for
trespass, and tortious interference with business relationships and
expectancies. On July 30, 2011, B and B Transportation, Inc., withdrew
its claims against the defendants and is no longer a party to this
action.
The following facts and
procedural history, as set forth by the trial court in its memorandum of
decision filed August 10, 2012, are relevant to our resolution of the
foregoing claims. “The plaintiff Madeleine Gleason is and was at the
time of the events central to this case a school bus driver. For a time,
the young man whose disappearance has never been explained worked at
the same company. They met there and [the plaintiff] began dating the
young man whom the court will refer to as Bill Smolinski.3 Both of his parents and *596596sister
constantly referred to him as ‘Billy,’ which, for the court, at least
underlines the affection in which he was held as [the] only son to Mr.
William Smolinski and Janice Smolinski, the parents; and the only
brother to Paula Bell. Janice Smolinski and Paula Bell are the
defendants in the case, which was initiated by [the plaintiff] almost
two years after the disappearance of Bill Smolinski....
3.
The plaintiff met Bill Smolinski during their mutual employment as bus
drivers at B and B Transportation, Inc., and began dating. Shortly after
they began dating, Bill Smolinski ended his employment with B and B
Transportation, Inc., and his relationship with the plaintiff. About one
year later, Bill Smolinski and the plaintiff began dating again. The
plaintiff eventually broke up with Bill Smolinski because she “was older
than him and [she] could not handle the age difference....” The
plaintiff reported to Waterbury police Sergeant Edward Apicella on
August 3, 2005, during the course of the police department's
investigation of Bill Smolinski's disappearance that “she [had] met Bill
Smolinski and had known him for over a year from the time that he went
missing on 08/24/04, Tuesday. She said that she met him from driving a
bus. She said that during the course of their friendship she began a
relationship with him. She said that prior to her relationship with Bill
she was having an affair with Chris Sorensen and she is currently
continuing to have that affair. She said that she believed Bill
suspected/ knew of her having an affair with Chris for a time but she
didn't actually tell him until she went on a trip to Florida with Bill.
She said that it came to [a head] when they went on a trip to Florida
the week prior to August 22, 2004. She said that she was getting phone calls
on her cell phone ... while they were on a beach in Florida. Bill
grabbed the cell phone from her and was trying to see who was calling
her. [The plaintiff] said that when she tried to get the phone from him
he hit her and they had a fight. She began to yell at people on the
beach to call the police because Bill was not giving her cell phone. She
never made a report to the police and she eventually got her phone
back. Bill told her that he wanted to end the relationship because he
wanted more out of it. He didn't want to be with her if the relationship
was going nowhere. She agreed and they returned from Florida with Bill
on August 22 (Sunday). [The plaintiff] went on to say that she had been
married three times, she liked Bill but she didn't need to baby-sit a 31
year old guy who liked to drink and fight. She said that Bill used to
go to the Outside Inn (Hamilton Ave.) and get into fights all the time.
She also claimed that Bill started to smoke drugs (did not specify
type). She said she was already involved with Sorensen as well. It was
[Bill's] idea to break up but she agreed.... [The plaintiff] said that
she got a call from Chris saying that someone left a message on his
answering machine that said You better watch your back at all times.
[The plaintiff] heard the message and she said that it was Bill
Smolinski.” The plaintiff's testimony conflicts with the preceding
statement that she gave to the police, as she testified that she and
“[t]he other man ... had broken up months before [she and] Billy ...
even started seeing each other.”
The trial testimony revealed that because of the plaintiff's alleged affair with Sorensen, a local, married politician, the defendants formed the belief “[t]hat [the plaintiff] was in a love triangle with their son and ... another fellow ... and that he had gone missing, and that they assumed and they thought that [the plaintiff] had done something to him that he had gone missing.”
The trial testimony revealed that because of the plaintiff's alleged affair with Sorensen, a local, married politician, the defendants formed the belief “[t]hat [the plaintiff] was in a love triangle with their son and ... another fellow ... and that he had gone missing, and that they assumed and they thought that [the plaintiff] had done something to him that he had gone missing.”
“[S]hortly after the
disappearance of their son on August 24, 2004, Mr. and Mrs. Smolinski
and their daughter Paula Bell, started putting up missing persons
posters 4
in various parts of the state. They then noticed some of the posters
were being torn down or vandalized and discovered the plaintiff and a
friend were engaged in this activity. The two defendants ... then
proceeded to follow [the plaintiff] and videotaped her activities in
this regard. [The plaintiff] claims the posters were placed along her
school bus route and generally where she lived, worked, and conducted
some of her life activities. Eventually some of these activities led to
the plaintiff going to the Woodbridge police station, where the
defendants soon followed. A confrontation took place between the
parties.
4.
The evidence shows that the missing person posters that were hung by
the defendants consisted of photographs and physical descriptions of
Bill Smolinski as well as information about his disappearance, an offer
of a reward, and contact information to report tips to the police.
“[The
plaintiff] claims the defendants' activities interfered with and
damaged her monetarily by interfering with her business of operating a
school bus for a living. She also says she was defamed by the defendants
who had characterized her as a murderer. She also states that her right
to privacy was invaded and that generally the defendants intentionally
inflicted great emotional stress on her, causing her much anxiety and
torment.
“The defendants countered the
allegations by saying [that the] alleged actions critical of them were,
generally speaking, all lies. They deny entering a bus which [the
plaintiff] was driving or going on school property to post a missing
persons poster at a school where [the plaintiff] brought and dropped off
students. They deny calling [the plaintiff] a murderer or harassing her
on the phone. The plaintiff and the defendants trade mutual accusations
about being followed by their respective antagonists.”
The
court found that the defendants' conduct constituted intentional
infliction of emotional distress and that their statements that the
plaintiff was a murderer or was involved in murder constituted
defamation. The court awarded the plaintiff compensatory damages of
$32,000 on her claim of intentional infliction of emotional distress and
$7500 on her claim of defamation, for a total compensatory damages
award of $39,500. The court also awarded the plaintiff punitive damages
on both claims in an amount equal to one-third of the plaintiff's total
compensatory damages award (i.e., one third of $39,500, or $13,166.67).
This appeal followed. Additional facts will be set forth as necessary.
We will address each of the defendants' claims separately.
I
FIRST AMENDMENT CLAIM
We turn first to the defendants' argument that the plaintiff's claims are *597597barred
by the first amendment to the United States constitution, which was not
preserved by the defendants at trial. The defendants argue that their
unpreserved claim nonetheless is properly before this court because the
requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), have been satisfied. We disagree.
In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is adequate to
review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation clearly exists and clearly deprived the
defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant's claim will
fail.” (Emphasis in original; footnote omitted.) Id. at 239–40, 567 A.2d 823.
We conclude that the record is adequate for review and that the
defendants' claim is of constitutional magnitude because it alleges a
violation of the fundamental right to free speech under the first
amendment to the United States constitution.5 Thus, we turn our attention to the third prong of Golding, namely, whether the alleged constitutional violation clearly exists and clearly deprived the defendants of a fair trial.
5.
Although the defendants did not expressly invoke the fourteenth
amendment to the United States constitution, it is axiomatic that the
first amendment applies only to the states through the due process
clause of the fourteenth amendment. For convenience, we will refer to
this claim as the defendants' first amendment claim.
In
support of their argument that a constitutional violation clearly
exists, the defendants claim that their conduct constituted protected
speech and that the court should have dismissed the plaintiff's claims
against them as barred by the first amendment. The defendants assert
that their speech related to a matter of public concern because the
missing person posters were designed to uncover information about Bill
Smolinski's disappearance, and to assist with the ongoing investigation
and potential prosecution of a crime. The defendants cite to Snyder v. Phelps, ––– U.S. ––––, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011), in support of this assertion. Such comparison to the public speech described in Snyder, however, is unconvincing.
“The Free Speech Clause of the First Amendment ... can serve as a
defense in state tort suits, including suits for intentional infliction
of emotional distress.” Id., at 1215. Whether the first amendment
prohibits holding the defendants liable for their speech in this case
“turns largely on whether that speech is of public or private concern,
as determined by all the circumstances of the case. [S]peech on matters
of public concern ... is at the heart of the First Amendment's
protection.... The First Amendment reflects a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.... That is because speech concerning
public affairs is more than self-expression; it is the essence of
self-government.... Accordingly, speech on public issues occupies the
highest rung of the hierarchy of First Amendment values, and is entitled
to special protection....
“[N]ot all speech
is of equal First Amendment importance, however, and where matters of
purely private significance are at issue, First Amendment protections
are often less rigorous.... That is *598598because
restricting speech on purely private matters does not implicate the
same constitutional concerns as limiting speech on matters of public
interest: [T]here is no threat to the free and robust debate of public
issues; there is no potential interference with a meaningful dialogue of
ideas; and the threat of liability does not pose the risk of a reaction
of self-censorship on matters of public import.” (Citations omitted;
internal quotation marks omitted.) Id., at 1215–16.
“Speech deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other
concern to the community ... or when it is a subject of legitimate news
interest; that is, a subject of general interest and of value and
concern to the public.... The arguably inappropriate or controversial
character of a statement is irrelevant to the question whether it deals
with a matter of public concern....
“Deciding
whether speech is of public or private concern requires us to examine
the content, form, and context of that speech, as revealed by the whole
record.... [T]he court is obligated to make an independent examination
of the whole record in order to make sure that the judgment does not
constitute a forbidden intrusion on the field of free expression.... In
considering content, form, and context, no factor is dispositive, and it
is necessary to evaluate all the circumstances of the speech, including
what was said, where it was said, and how it was said.” (Citations
omitted; internal quotation marks omitted.) Id., at 1216.
In Snyder,
members of the defendant church congregation stood on a plot of public
land about 1000 feet from a church and picketed the military funeral for
the plaintiff's son by holding signs reflecting the defendant's views
about homosexuality and the death of soldiers. Id., at 1213. The United
States Supreme Court described the defendant's speech as follows: “The
content of [the defendant]'s signs plainly relates to broad issues of
interest to society at large, rather than matters of purely private
concern.... The placards read ‘God Hates the USA/Thank God for 9/11,’
‘America is Doomed,’ ‘Don't Pray for the USA,’ ‘Thank God for IEDs,’
‘Fag Troops,’ ‘Semper Fi Fags,’ ‘God Hates Fags,’ ‘Maryland Taliban,’
‘Fags Doom Nations,’ ‘Not Blessed Just Cursed,’ ‘Thank God for Dead
Soldiers,’ ‘Pope in Hell,’ ‘Priests Rape Boys,’ ‘You're Going to Hell,’
and ‘God Hates You.’ ... While these messages may fall short of refined
social or political commentary, the issues they highlight—the political
and moral conduct of the United States and its citizens, the fate of our
Nation, homosexuality in the military, and scandals involving the
Catholic clergy—are matters of public import. The signs certainly convey
[the defendant]'s position on those issues, in a manner designed ... to reach as broad a public audience as possible.
And even if a few of the signs—such as ‘You're Going to Hell’ and ‘God
Hates You’—were viewed as containing messages related to [the plaintiff]
or [the plaintiff's family] specifically, that would not change the
fact that the overall thrust and dominant theme of [the] demonstration
spoke to broader public issues.” (Citation omitted; emphasis added;
internal quotation marks omitted.) Id., at 1216–17.
The
defendants argue that their challenged speech pertaining to the search
for information to assist with a missing person investigation and
potential prosecution of a crime relates to a matter of public concern,
and thus is protected by the first amendment. They argue that their
speech related to a matter of public concern because all of the posters
were located on public grounds and none of the posters *599599mentioned
the plaintiff by name. Insisting that their conduct constituted
constitutionally protected speech, they argue that the court erred by
rendering a judgment of liability against them. The plaintiff argues
that the defendants' conduct did not constitute speech, nor did it
address a matter of public concern. The plaintiff asserts that, unlike
in Snyder, the defendants' conduct in posting and displaying the
challenged posters was not designed or intended to communicate about a
matter of public concern to a broad public audience, but rather to
target, harass and upset the plaintiff personally in order to “break
her.” Having heard testimony that the defendants targeted the plaintiff
by placing large quantities of posters near where the plaintiff was
residing at the time, the court agreed with the plaintiff and found
that: “[The plaintiff] lived with [her friend, Melissa DePallo] for a
short time ... on a dead-end street, and her house was definitely
bombarded with flyers. There were no other flyers on the whole street;
the pole in front of her house had twenty posters placed on it. When
they were taken down, they went up the next day; it went on not just for
the few months [that the plaintiff] lived with DePallo, it went on for a
year according to her. [The plaintiff] testified that she lived with
another friend, who testified on her behalf, and that person's house was
saturated with posters.... [The plaintiff] also testified that when she
returned to her own home in Woodbridge, it, too, was saturated with
posters—the same pattern repeated itself at all three places where she
lived. The posters would go up, they would be taken down and then appear
the next day. [The plaintiff] also testified that the defendants
followed her and [that] whenever they saw her called her insulting
names.... This evidence leads the court to credit the testimony of the
plaintiff [and] her friends....” (Internal quotation marks omitted.)
The
court's findings of fact support its conclusion that the defendants'
placement of many of the posters was targeted specifically at the
plaintiff, for the defendants' admitted purpose of “trying to break [the
plaintiff] ... until [she] breaks down and gives them information as to
the whereabouts of their son and brother who had been missing since
August 24, 2004.” The court credited the evidence and testimony
presented by the plaintiff and her witnesses, and found that the
defendants' conduct was “extreme and offensive ... [and] cannot be
accepted in a society built on law.” The defendants argue that the
context of the speech and its connection to the plaintiff do not make
the subject of the speech any less about a matter of public concern.
While the content of the posters makes no specific reference to the
plaintiff, the court concluded, and we agree, that the context and
placement of the posters was designed to “hound” the plaintiff into
providing the defendants with information about the disappearance of
Bill Smolinski, rather than to raise a matter of public concern.
Because
the defendants' conduct, insofar as it targeted the plaintiff, is not
protected speech, their claim of a constitutional violation resulting in
the deprivation of a fair trial fails to satisfy the third prong of Golding.
II
JUDICIAL BIAS CLAIM
The defendants next claim that the judge exhibited bias by: (1)
publicly committing himself, on the record during trial, to the
defendants' liability and wrongdoing; (2) admitting and relying upon
hearsay evidence proffered by the plaintiff; (3) holding in-chambers
hearings *600600to
protect the reputation of a local politician and witness Christian
Sorensen; and (4) refusing to permit the defendants' repeated offers of
evidence as to the defense of truth, motive and witness credibility. The
defendants argue that this court's failure to reverse the judgment
because of these alleged instances of judicial bias would result in
manifest injustice. We disagree.
The
plaintiff asserts that the defendants' claims must fail because they did
not file a motion for disqualification pursuant to Practice Book §§
1–22 and 1–23. Ordinarily, a “defendant's claim of judicial bias must
fail because he did not file a motion for disqualification in the trial
court. We have repeatedly refused to consider claims of trial court bias
in the absence of such a motion.... The fact that a trial court rules
adversely to a litigant, even if some of these rulings were to be
determined on appeal to have been erroneous, does not demonstrate
personal bias.” (Citations omitted.) Bieluch v. Bieluch, 199 Conn. 550, 552–53, 509 A.2d 8
(1986). This court may, however, when presented “with an accusation of
prejudice against a judge, which strikes at the very core of judicial
integrity and tends to undermine public confidence in the established
judiciary ... invoke [its] authority in the interests of justice to
review plain error not properly preserved in the trial court.” (Citation
omitted; internal quotation marks omitted.) Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982).
“No more elementary statement concerning the judiciary can be made than
that the conduct of the trial judge must be characterized by the
highest degree of impartiality. If he departs from this standard, he
casts serious reflection upon the system of which he is a part.... In
whatever he does, however, the trial judge should be cautious and
circumspect in his language and conduct.... A judge should be scrupulous
to refrain from hearing matters which he feels he cannot approach in
the utmost spirit of fairness and to avoid the appearance of prejudice
as regards either the parties or the issues before him.... A judge,
trying the cause without a jury, should be careful to refrain from any
statement or attitude which would tend to deny the defendant a fair
trial.... It is his responsibility to have the trial conducted in a
manner which approaches an atmosphere of perfect impartiality which is
so much to be desired in a judicial proceeding.” (Citations omitted;
internal quotation marks omitted.) Id. at 168–69, 444 A.2d 915.
It
is evident when reviewing the record before us that no such departure
occurred in the trial court. The defendants specifically claim that the
following statement made by the judge demonstrates judicial bias because
he publicly committed himself to the conclusion that the defendants
inflicted trauma on the plaintiff, causing her damage: “[T]he fact that
it—that it follows her wherever she goes and whatever she does, just
like they followed her wherever she went and whatever she did, that's
part of what's happened to this woman, and it's part of the trauma that
they've inflicted upon her.” The defendants argue that this statement
reflects that the judge, prior to the conclusion of the presentation of
all of the evidence, credited the plaintiff's testimony over that of the
defendants and their witnesses, and constitutes judicial bias.
When this statement is viewed in the proper context, however, it is
apparent that this statement was not made by the court, but rather, was
made by the plaintiff's counsel. The context of the allegedly biased
statement, which occurred during the direct examination of the plaintiff
by her counsel, is as follows:
*601601
“Q. Now, what, if any, reaction did you have to all of these things that were being done to you?
“A.
Well—well, I thought it was over with in the beginning, but every three
months to maybe every four and five months my name was in the paper and
how my children died, every single time. Every single time I had to
read how my daughter died and how my son died. And when I called the
Waterbury Police Department about my son's death, all they were
concerned with was Billy Smolinski; they didn't even give a darn about
my son's death. All I read in the paper is Madeleine Gleason, how many
times I was married and how many children died; what did that have to do
with their son missing? My children—my daughter died before he went
missing, and two of my children died after he went missing; of all
people, I would know what it's like to lose a child, but these people
all they do is keep following me, harassing me. Every time I turn on the
news, it's Madeleine Gleason, what does she have to hide? And if you
watch on the show, The Disappearance, my name seventy times on the show.
And all these newspapers and these television shows are going by what
the Smolinskis are telling them; they've never come to me and asked me
what my story is. I never even knew I was going to be on television
until I watched it. All these things that they say, it's a love
triangle. The reason why Bill and I broke up, and they know this, is
because I was older than him, and I could not handle the age difference.
That's the reason, it has nothing to do with the other man. The other
man and I had broken up months before Billy and I even started seeing
each other.
“Q. Now, how—how did these feelings that you had affect your daily life?
“A.
They affected everything. My daughter died, she has a daughter, I went
to go get custody of my granddaughter, their lawyer used the Smolinski
case for me not to get my granddaughter. Then they—then they said for me
to go to counseling because there's no way that I could have my
granddaughter. It took me—I'm up to seven years fighting for custody of
my granddaughter, and it always brings up the Smolinski case, that the
reason why—it's questionable whether I did any killing or not.
“[The
Defendants' Counsel]: Your Honor, I just want to put in the air that
the custody disposition, whatever it may or may not be, is just not
relevant.
“[The Plaintiff's Counsel]: It's clearly part of the collateral consequences.
“[The
Defendants' Counsel]: It's a completely different tribunal, completely
different setting; who knows what facts they're looking at.
“[The Plaintiff's Counsel]: You set in motion a chain of events, and you're responsible for the consequences.
“[The Defendants' Counsel]: If I may finish my objection that she's supposing the basis for it.
“The Court: I mean—I mean, do I take judicial notice of what some other court did regarding custody?
“[The Plaintiff's Counsel]: No, I'm not asking that, your Honor.
“The Court: I can't. Well, I can't go there.
“[The Plaintiff's Counsel]: What I'm asking you to take note of is her
testimony that the subject was brought up during that hearing, too, that
she can't get away from what these people have done.
“The Court: Yeah, But I can't deduce—
*602602
“[The Plaintiff's Counsel]: I'm not asking—
“The Court:—what—the reason she didn't get the granddaughter.
“The
Court [The Plaintiff's Counsel]: Absolutely not. I'm not asking you to.
But the fact that it—that it follows her wherever she goes and whatever
she does, just like they followed her wherever she went and whatever
she did, that's part of what's happened to this woman, and it's part of
the trauma that they've inflicted upon her.
“[The Plaintiff]: Plus, the kids on my bus—
“The
Court: Okay. There's no question pending. I—I'm not going to deduce
from that that because of—she's just saying at a separate hearing—there
could be a hearing—I don't want—this is a very stressful case, but it
could be a hearing in front of a—so, I don't mean to belittle what's
going on, it could be a hearing in front of the zoning board where this
is mentioned, so, I don't attach any importance to she's not getting her grand daughter because of anything these people allegedly did.” (Emphasis added.)
Although
the transcript notes that this statement was made by the court, common
sense and context compel the conclusion that the actual speaker of this
statement was the plaintiff's counsel, as evidenced by the speaker's
explanation in support of the introduction of the plaintiff's testimony
about a custody hearing, the outcome of which the plaintiff relates to
the defendants' alleged conduct.6
Further, the speaker of the statement immediately preceding the
statement in question was the court, which also supports the conclusion
that the identification of the court as the speaker of the statement in
question appears to be a scrivener's error.
6.
See, e.g., State v. Blue, 230 Conn. 109, 113 n. 3, 644 A.2d 859
(1994) (“[T]he transcript indicate[d] that it was the ‘Court’ that said
‘I understand what you're saying, yes.’ It is clear, however, from the
response and its context that this was a typographical error, and that
in fact the response was that of the defendant.”).
The actual
statement made by the court during this colloquy in no way demonstrates
judicial bias. Rather, the judge remained unbiased and neutral when
stating, “I'm not going to deduce from that that because of—she's just
saying at a separate hearing—there could be a hearing—I don't want—this
is a very stressful case, but it could be a hearing in front of a—so, I
don't mean to belittle what's going on, it could be a hearing in front
of the zoning board where this is mentioned, so, I don't attach any importance to she's not getting her grand daughter because of anything these people allegedly did.”
(Emphasis added.) Contrary to the defendants' assertion, the judge did
not publicly commit himself to the defendants' liability and wrongdoing
prior to the conclusion of the presentation of all of the evidence. In
fact, the judge's statement favors the defendants because he
declares that although the plaintiff testified about the result of the
custody hearing, he will not attach any weight to any alleged impact of
the defendants' alleged conduct on the outcome of that hearing.
The
remainder of the defendants' claims asserting judicial bias on the
basis of the judge's alleged introduction of allegedly hearsay
statements, in-chambers rulings, and refusal to permit evidence as to
the defense of truth, motive and witness credibility are equally
unsupported by the record and do not constitute judicial bias warranting
reversal. The defendants, for instance, claim that it is “astounding
that, when the defendants sought to introduce evidence of [the nolle
prosequi] disposition”*603603of
Janice Smolinski's arrest for hanging missing person posters, “the
court refused to admit it....” (Citation omitted.) The defendants'
citation to this portion of the trial transcript reveals, once again,
that when viewed in the entire context of the colloquy regarding the
evidence of the disposition of that arrest, the defendants misconstrue
the judge's ruling in a baseless attempt to support their claim of
judicial bias. The judge properly did not permit Woodbridge police
Officer James Sullivan to testify on cross-examination about the result
of Janice Smolinski's arrest on the ground that such testimony would be
hearsay. The defendants completely disregard the fact that the judge,
did, however, inform counsel that “[y]ou can get an official record” of
the disposition of the arrest. Thus, contrary to the defendants'
argument, the judge did not refuse to admit evidence of the disposition
of Janice Smolinski's arrest, but rather, he ensured that any such
evidence was admitted properly as an official record.
III
HEARSAY CLAIM
The defendants next claim that the court erred by relying on alleged
hearsay statements to find that the “hanging of posters in areas where
the plaintiff lived and worked [was] for the sole purpose of
intimidating and harassing the plaintiff.” The defendants assert that
such a finding was based on (1) Janice Smolinski's alleged statement to
police that she was “trying to break” the plaintiff; (2) Smolinski's
statements to the Waterbury Observer; (3) and telephone calls to B and B
Transportation, Inc., the plaintiff's employer, complaining about the
plaintiff. The plaintiff asserts that the court's findings were not
based on inadmissible evidence, and that the evidence about which the
defendants complain was either introduced by the defendants themselves,
or when offered by the plaintiff, was not objected to by the defendants.
We agree with the plaintiff.
“We have held
generally that [t]he trial court has broad discretion in ruling on the
admissibility [and relevancy] of evidence.... The trial court's ruling
on evidentiary matters will be overturned only upon a showing of a clear
abuse of the court's discretion.... Additionally, before a party is
entitled to a new trial because of an erroneous evidentiary ruling, he
or she has the burden of demonstrating that the error was harmful....
The harmless error standard in a civil case is whether the improper
ruling would likely affect the result.” (Citation omitted; internal
quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580–81, 804 A.2d 795 (2002).
In
its memorandum of decision, the court noted that the evidence before it
on the plaintiff's claim of intentional infliction of emotional
distress “include[d] not only the trial testimony presented by both
sides, but police reports and several articles from the Waterbury
Observer, which reported on the disappearance. The defendants did not
object to the introduction of these exhibits and in fact introduced
Woodbridge and Waterbury Police Department reports, which, in part,
repeated some of the information contained in the police reports
introduced by the plaintiff.” The court advised that “[t]he newspaper
articles will only be referred to insofar as they contain explicit
admissions by the defendants. Interestingly enough, the transcript
indicates that her lawyer asked [Janice] Smolinski if a couple of
newspapers introduced into evidence had been read by her. She said she
had read them. She was then asked if the articles were ‘substantially
true and accurate to the best of (her) knowledge’—answer, ‘A.
Absolutely. Yes.’ ” The court was justified*604604in
relying upon such evidence, which was either introduced or not objected
to by the defendants and consisted of damaging admissions by them.
As
an example of such evidence, the defendants claim that the judge relied
upon hearsay statements contained in Sullivan's police report that
Janice Smolinski was hanging the missing person posters in an attempt
“to break” the plaintiff into giving her information about her son's
disappearance. The defendants claim that they “objected to any testimony
by Sullivan regarding what was reported to him based on hearsay, but
the court allowed it.” The defendants conveniently disregard the fact
that after Sullivan testified, the plaintiff's counsel renewed his offer
of Sullivan's report as an exhibit, to which the defendants' counsel
withdrew his previous objections thereto. The court admitted the police
report as a full exhibit, to which the defendants' counsel stated that
he “ha[d] no objection.” At trial, the defendants' counsel abandoned his
objection to the introduction of this evidence, of which he now
complains on appeal. Such a claim that the court erred by relying on
this evidence is without merit.
IV
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
The defendants next claim that the court misapplied the law and facts
relating to the plaintiff's claim of intentional infliction of emotional
distress. Specifically, the defendants assert that the evidence was
insufficient to establish the requirements of intentional infliction of
emotional distress and that the court erred by ignoring the defendants'
justification for their alleged conduct. The defendants claim that the
court erred by relying solely on lay testimony to establish that the
defendants' conduct was the cause of the plaintiff's distress and that
such distress was severe. They argue that where there are alternative
theories as to the possible cause of a plaintiff's emotional distress,
the plaintiff must rely on expert testimony to establish causation. They
also argue that the court erred by not considering the possibility that
there were alternative causes of the plaintiff's emotional distress.7 We disagree.
7.
The defendants proffer the following theories as alternative causes for
the plaintiff's emotional distress: the death of the plaintiff's
daughter by suicide one month before Bill Smolinski's disappearance; the
death of the plaintiff's son by drug overdose in the year following the
disappearance; the death of another one of the plaintiff's children;
the plaintiff's breakup with Bill Smolinski; and the plaintiff's
publicly revealed relationship with Sorensen.
“[W]here the factual basis of the court's decision is challenged we
must determine whether the facts set out in the memorandum of decision
are supported by the evidence or whether, in light of the evidence and
the pleadings in the whole record, those facts are clearly erroneous....
In a case tried before a court, the trial judge is the sole arbiter of
the credibility of the witnesses and the weight to be given specific
testimony.... On appeal, we will give the evidence the most favorable
reasonable construction in support of the verdict to which it is
entitled.... A factual finding may be rejected by this court only if it
is clearly erroneous.” (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
“In order for the plaintiff to prevail in a case for liability under ... *605605[intentional
infliction of emotional distress], four elements must be established.
It must be shown: (1) that the actor intended to inflict emotional
distress or that he knew or should have known that emotional distress
was the likely result of his conduct; (2) that the conduct was extreme
and outrageous; (3) that the defendant's conduct was the cause of the
plaintiff's distress; and (4) that the emotional distress sustained by
the plaintiff was severe.” (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 586, 22 A.3d 1214
(2011). The evidence presented supports the court's finding that the
defendants' conduct inflicted severe emotional distress on the
plaintiff. As the court properly stated, it is not necessary for the
plaintiff to produce expert testimony in order to prove the existence of
emotional distress. See Oakes v. New England Dairies, Inc., 219 Conn. 1, 14–15, 591 A.2d 1261
(1991) (“we have previously rejected the proposition that proof of the
existence of emotional distress requires expert testimony” [citations
omitted] ).
The court concluded, on the basis
of the evidence before it, that the defendants engaged in “the hanging
of posters in areas where the plaintiff lived and worked for the sole
purpose of intimidating and harassing the plaintiff.... This went on for
months.” This conclusion was supported amply by the testimony of the
plaintiff's employer, Brad Cohen, her friend, DePallo, and the plaintiff
herself. Specifically, the court recounted Cohen's testimony that “in
traveling around several towns, the posters were generally ‘well spaced
out’—at different poles.' However, on [the plaintiff's] school bus run
and at the house where she lived, ‘there were multiple posters on each
and every telephone pole, on guardrails.’ He said you could easily do a
run (school bus route) by following the posters—‘they led down every
street, every side street, every nook and cranny of—of these places.’
... Cohen also testified that posters were placed at the entrance to his
school bus transportation business on either side of the driveway—a
driveway the plaintiff would have to enter and exit at least four times
daily.”
The court also recalled the testimony
of DePallo, who works for another school bus company, and who stated
that the plaintiff's “[school bus] run was definitely targeted with
flyers.” For a short time, the plaintiff lived at DePallo's home, about
which DePallo testified, is “on a dead-end street, and her house ‘was
definitely bombarded with flyers.’ There were no other flyers on the
whole street; the pole in front of her house had twenty posters placed
on it. When they were taken down, they went up the next day; it went on
not just for the few months [the plaintiff] lived with DePallo, it went
on for a year according to her.” The court also summarized the
plaintiff's testimony “that when she returned to her own home in
Woodbridge, it, too, was saturated with posters—the same pattern
repeated itself at all three places where she lived. The posters would
go up, they would be taken down and then appear the next day. [The
plaintiff] also testified that the defendants followed her and [that]
whenever they saw her called her insulting names.”
When
determining whether the defendants' conduct constituted intentional
infliction of emotional distress, the court did not consider only the
plaintiff's testimony and witnesses, but also the defendants' testimony
denying such conduct. Ultimately, the court “credit[ed] the testimony of
the plaintiff, her friends, and Mr. Cohen,” because although the
defendants testified that they did not engage in the conduct of hanging
missing person posters in order to harass the plaintiff, “other evidence
presented ... [showed] that the defendants had a strong motive to act
in the *606606way
it was alleged by the plaintiff.” The court's conclusion that the
defendants' conduct caused the intentional infliction of emotional
distress of the plaintiff is supported by the record and is not clearly
erroneous.
The defendants also claim that the
court erred by rejecting their justification for their conduct. The
defendants assert that their intent was not to harm the plaintiff, but
rather to uncover answers concerning Bill Smolinski's disappearance,
about which they believed the plaintiff had knowledge. There was,
however, “no evidence ... presented as to why [the defendants] could in
fact believe it was a necessary aid to the location of Bill Smolinski to
hang posters along [the plaintiff's] bus route.” The court carefully
balanced the evidence presented and even went so far as to remark that
“the [defendants] are to be admired for their persistent efforts to
bring Bill Smolinski's disappearance and their complaints to the highest
levels of state government and the federal authorities. One cannot help
sympathizing with their pain and frustration.” The court added,
however, that “what is unacceptable here and worthy of finding of
outrageous and extreme behavior is the continuing aggravated nature of
the defendants' activity in hounding [the plaintiff] where she lived and
worked and engaged in the ordinary activities of life.... Posters of a
missing person were placed so as to indicate to [the plaintiff] that the
very purpose of the poster campaign was to underline her supposed
knowledge of the criminal disappearance of Bill Smolinski.” (Citation
omitted.)
The court's finding that the
defendants' conduct was extreme and outrageous and constituted
intentional infliction of emotional distress was not clearly erroneous
on the basis of the record before it. Thus, we conclude that the court
properly held that all of the elements of the plaintiff's claim of
intentional infliction of emotional distress were established.
V
DEFAMATION CLAIM
The defendants next claim that the court erred in finding that certain
statements made by the defendants regarding the plaintiff constituted
defamation. They argue that none of the elements of defamation were
established by the evidence presented. We disagree.
As set forth in part IV of this opinion: “[W]here the factual basis of
the court's decision is challenged we must determine whether the facts
set out in the memorandum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in the whole record,
those facts are clearly erroneous.” (Internal quotation marks omitted.)
Murphy v. Lord Thompson Manor, Inc., supra, 105 Conn.App. at 552, 938 A.2d 1269.
The
court found three statements made by the defendants to be defamatory.
Specifically, it found two sets of statements made to the plaintiff's
friends, Fran Vrabel and DePallo, to be defamatory: (1) “Janice
Smolinski told [Vrabel] on several occasions that [the plaintiff] ‘did
something to her son’ and that ‘she believes that either [the plaintiff]
or someone in her family murdered her son’ ”; and (2) “Janice Smolinski
approached [DePallo] and said you do not know what [the plaintiff] is
capable of; she said she does not believe [the plaintiff] killed her
son, personally, but she knows where he is and [Janice] Smolinski
thought ‘she's involved.’ ” The court also found the following statement
made by the defendants to an unidentified man at the plaintiff's gym to
be defamatory: “[The plaintiff] drove to her gym, the defendants were
following her, and [the plaintiff] says, *607607‘a
guy came and said those people (referring to the Smolinskis) just
followed you in and said you were a murderer.’ ” As to the statements
made to Vrabel and DePallo, the defendants claim that these statements
merely represent Janice Smolinski's opinion and therefore, cannot
constitute defamation. As to the statement to the man at the plaintiff's
gym, the defendants argue that the court erred by admitting the
statement because it is hearsay and the identity of the speaker is
unclear.
“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.” Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759
(2004). The plaintiff must also “prove that the defendants 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). Further, as the court explained, “defamations per se are
statements charging the plaintiff with commission of a crime....
Traditionally, such statements are actionable per se only if they charge
the commission of crimes of moral turpitude or infamous penalty....
[W]hen the defamatory words are actionable per se, the law conclusively
presumes the existence of injury to the plaintiff's reputation.”
(Citations omitted; internal quotation marks omitted.)
“A defamation claim requires a statement—i.e. an assertion of fact,
either explicit or implied, and not merely an opinion, provided the
opinion does not imply the existence of undisclosed defamatory facts.” Lester v. Powers, 596 A.2d 65, 69
(Me.1991) “To be actionable, the statement in question must convey an
objective fact, as generally, a defendant cannot be held liable for
expressing a mere opinion.” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112
(1999). “[A]lthough 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
speaker's or writer's opinion, or as a statement of existing fact.”
(Citation omitted; emphasis omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 111–12, 448 A.2d 1317 (1982).
Here,
the court properly concluded that all three statements made by the
defendants regarding the plaintiff were defamatory. Specifically, in its
memorandum of decision, the court set forth the necessary elements of
defamation as well as the evidence that it would and would not rely upon
when determining whether defamation occurred.8 The court evaluated each *608608element
required to prove defamation and concluded that the statements were
defamatory: “The statements to DePallo and Vrabel say directly [that the
plaintiff] was a murderer or involved in the murder of Bill Smolinski.
The statements made to DePallo and Vrabel were obviously ‘published’ to
them. The statement made to the man at the gym was published to him. In
all these situations, [the plaintiff] was identified to the listener,
and since [the plaintiff] was being accused of murder or involved with
murder, the defamations are per se accusations since murder clearly
involves a crime of ‘moral turpitude’ or ‘infamous penalty.’ We do not
have here mere opinion—[the plaintiff] was said to be a murderer or
involved in a situation where murder occurred.”
8.
The court explained that when determining whether defamation occurred
here, it would not rely upon the testimony of Cohen, the plaintiff's
employer and the owner of B and B Transportation, Inc., in which he
described telephone calls he received from customers of his school bus
company expressing their concerns about the plaintiff because none of
these customers was identified or called as a witness in this case. The
court also did not consider the statements made by the defendants on
certain television programs or to the Waterbury Observer in the
plaintiff's defamation claim because no transcripts of the television
programs were introduced into evidence and the articles published by the
Waterbury Observer do not focus on the plaintiff “as the perpetrator of
a crime or as one involved in it.”
The court went on to determine that the statements were made with actual
malice because “[t]here was reckless disregard of whether the
statements that were alleged to have been made were truthful. We do not
have a case of mere negligent utterances not based on fact but on
suspicion and conjecture.” Last, the court considered the defendants'
hearsay argument regarding the statement to the man at the gym and
determined that “[s]uch a defamatory statement is not hearsay in [this]
slander action because the issue is whether the statement was made, not
whether it was true....” (Citations omitted.) We conclude that the
finding by the court of defamation as to all three statements made by
the defendants clearly established all four elements of defamation and
was not clearly erroneous.
The defendants
additionally claim that even if this court agrees that the trial court
properly determined that these statements were defamatory, such
statements do not support a claim for damages because the plaintiff
suffered no resulting reputational harm. Our Supreme Court has noted
that although injury to the plaintiff's reputation is an indispensable
element of a defamation action, “[w]hen the defamatory words are
actionable per se, the law conclusively presumes the existence of injury
to the plaintiff's reputation.” Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292
(1952). In its memorandum of decision, the court explained that
“[l]ibel and slander divide into the categories of per quod and per se.
Defamations per quod are statements for which their defamatory character
becomes apparent only through consideration of extrinsic facts and
circumstances.... A statement which is defamatory by reason of innuendo
falls within the category of defamation per quod.... [A] category
encompassing defamation per se are statements charging the plaintiff
with commission of a crime.... Traditionally, such statements are
actionable per se only if they charge the commission of a crime of moral
turpitude or infamous penalty....” (Citations omitted; internal
quotation marks omitted.) The court concluded, and we agree, that the
defamatory statements made by the defendants here were actionable per
se, and therefore, injury to the plaintiff's reputation is presumed.
Thus, we agree with the court's finding of defamation by the defendants
and the resulting damages to the plaintiff.
*609609 VI
DAMAGES CLAIM
The defendants last argue that the court erred in awarding damages to
the plaintiff in the absence of any proffered evidence of damages. They
claim not only that the plaintiff failed to produce any evidence of
damages in discovery or at trial, but also that the court failed to
explain how it arrived at the monetary figures of its award. We are not
persuaded by their argument.
“The assessment
of damages is peculiarly within the province of the trier and the award
will be sustained so long as it does not shock the sense of justice. The
test is whether the amount of damages awarded falls within the
necessarily uncertain limits of fair and just damages.... [W]e cannot
disturb the decision of the trial court unless there are considerations
of the most persuasive character.... The trial judge has a broad legal
discretion and his action will not be disturbed unless there is a clear
abuse.... The evidence offered at trial must be reviewed in the light
most favorable to sustaining the verdict.” (Internal quotation marks
omitted.) Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 283, 25 A.3d 632 (2011).
“When the defamatory words are actionable per se, the law conclusively
presumes the existence of injury to the plaintiff's reputation. He is
required neither to plead nor to prove it.... The individual plaintiff
is entitled to recover, as general damages, for the injury to his
reputation and for the humiliation and mental suffering which the libel
caused him.” (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn.App. 761, 768, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001).
“[I]n order to award punitive or exemplary damages, evidence must
reveal a reckless indifference to the rights of others or an intentional
and wanton violation of those rights.” (Internal quotation marks
omitted.) Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414
(1992). “In awarding punitive damages ... [t]he trial court has broad
discretion in determining whether damages are appropriate.... Its
decision will not be disturbed on appeal absent a clear abuse of
discretion. ... Punitive damages are awarded when the evidence shows a
reckless indifference to the rights of others or an intentional and
wanton violation of those rights.” (Citation omitted; internal quotation
marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009
(2008). “Punitive damages, which in Connecticut are limited to
attorney's fees less taxable costs ... may be awarded whether the
defamation is actionable per se or per quod.... Such damages, however,
are not awarded as a matter of right, but rather as a matter of
discretion, to be determined by the [court] upon a consideration of all
the evidence....” (Citations omitted; internal quotation marks omitted.)
DeVito v. Schwartz, 66 Conn.App. 228, 236, 784 A.2d 376 (2001).
The
damages awarded in this case were clearly within the province of the
judge and fell within the “necessarily uncertain limits of fair and just
damages.” (Internal quotation marks omitted.) Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, supra, 302 Conn. at 283, 25 A.3d 632.
The court, after thoroughly stating its relevant findings of fact and
bases upon which it found the defendants liable to the plaintiff for the
intentional infliction of emotional distress and defamation, set forth
its award. As to the plaintiff's claim of intentional infliction of
emotional distress, the court awarded *610610compensatory
damages in the amount of $32,000, and as to her claim of defamation,
the court awarded compensatory damages in the amount of $7500, for a
total compensatory damages award in the amount of $39,500. Moreover, the
court acted within its authority to add punitive damages to the award
for attorney's fees and costs in an amount equal to one-third of the
total compensatory damages award, or $13,166.67.9 The damages awarded by the court can hardly be considered to “shock the sense of justice” under our standards of law.
9.
See DeVito v. Schwartz, supra, 66 Conn.App. at 236, 784 A.2d 376
(“Punitive damages, which in Connecticut are limited to attorney's fees
less taxable costs ... may be awarded whether the defamation is
actionable per se or per quod.... Such damages, however, are not awarded
as a matter of right, but rather as a matter of discretion, to be
determined by the [court] upon a consideration of all the evidence....”
[Citations omitted; internal quotation marks omitted.] ).
The judgment is affirmed. In this opinion the other judges concurred. -------- Notes:
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