Benjamin Ancona v. Richard M. Marzi (2011)

Young, Robert E., J. Opinion Title TRIAL MEMORANDUM On February 16, 2011, the parties appeared for a court trial in the above referenced action.   The plaintiff, Benjamin Ancona, Sr., was represented by counsel.   The defendant, Richard M. Marzi, was a self represented party.   The plaintiff abandoned any claim of action of slander per quod as may have been alleged in the First Count.   The plaintiff withdrew the Second Count, claiming harassment and the Third Count, seeking injunctive relief.   The action was presented as a claim of slander per se.   The court heard testimony from the parties and several witnesses and considered documentary evidence.  “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 and citations omitted).   Szekeres v. Szekeres, 126 Conn.App. 829 (2011).  “Defamation is comprised of the torts of libel and slander.   Defamation is that which tends to injure ‘reputation’ in the popular sense;  to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him.   W. Prosser & W. Keeton, Torts (5th Ed.1984), p. 773.   Slander is oral defamation.   This court has delineated specific categories of speech deemed actionable per se where the defamatory meaning of [the speech] is apparent on the face of the statement.   Battista v. United Illuminating Co., 10 Conn.App. 486, 49 1–92, 523 A.2d 1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352 (1987).”  (Internal quotation marks omitted.)   DeVito v. Schwartz, 66 Conn.App. 228, 234, 784 A.2d 376 (2001).  “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 [defamation] caused him.  (Internal quotation marks omitted.)   Lyons v. Nichols, 63 Conn.App. 761, 768, 778 A.2d 246 (2001).”   Id. at 234–35.   Based upon the presented evidence and testimony, the court finds the following facts.   On February 27, 2008, the defendant, Richard M. Marzi, attended a meeting of the New Britain Common Council.   It is unclear whether the topic was on the Council agenda, but there were several persons present to speak about the conditions at an apartment building located at 100 West Street in New Britain, which was owned by the plaintiff.   Among those present was the plaintiff's son, Benjamin Ancona, Jr., an attorney, who represented the interests of his father and who spoke at the meeting.   Ancona, Jr. testified that as he was addressing the council alderpersons, the defendant shouted from the audience, “Don't believe him.   His father's an arsonist.   He burned down his building.”   The defendant also yelled out, “slumlord” and “slumlord, junior, referencing both the plaintiff and his son.   The court finds this testimony credible.   Ancona, Jr. also testified that the defendant also called out that the plaintiff had an illegal basement apartment in the building.   He was unable to provide the same degree of detail concerning this allegation and the court does not credit this testimony.   The defendant testified and admitted that he did, indeed, call the Anconas slumlords and did state that the plaintiff had been arrested thirty years prior for attempting to burn his apartment building down.   The defendant testified that he believed the statements to be true.   However, there was no testimony that the plaintiff was a public figure and the absence of malice is not a defense in this matter.   The defendant denied accusing the plaintiff of having an illegal basement apartment at the meeting.   The court finds this denial credible.   There are, then, two statements of the defendant which could be considered to be slander per se:  (1) calling the plaintiff a slumlord and (2) stating the plaintiff was arrested for arson of his rental property.   As to the accusation that the plaintiff was a slum lord, this would be a claim that the statement falsely charged the plaintiff with conduct or characteristics that would adversely affect him in his business or trade.   The following testimony as to this claim was elicited:  The plaintiff testified that he suffered harm to his reputation.   However, neither he, nor his son, denied the truth of the allegation, nor did they testify that there was any effect resulting from the statement which adversely affected his trade or business.   The plaintiff, himself, testified that there were always complaints about his apartments, but attributed the complaints to people who did not want to pay their rent.   He also volunteered that he had padlocked doors of the building because of people breaking in to steal things and to take drugs.   The defendant testified that other people have published letters in the local paper accusing the plaintiff of being a slum lord.   A reporter for the local newspaper, Richard Guinness, testified that he authored several stories, prior and subsequent to this incident, in which he reported that the plaintiff was cited by the sanitarian for unsanitary conditions as well as code violations observed in the premises.   Mr. Guinness also testified that he spoke with the plaintiff, who acknowledged his properties were blighted.   Mr. Guinness testified as to the general reputation of the plaintiff as a “notorious slum lord” and that the plaintiff was aware that he was under a “nuisance abatement order.   A neighbor, Perry Mazzarella, testified that the plaintiff's property was the source of noise, loud music, screaming, domestic disputes, criminal activity and fireworks, all affecting the quality of life of the neighborhood and his ability to rent his own properties.   He testified as well that other persons spoke at the council meeting about the poor condition of the property.   The court finds by a preponderance of the evidence that the defendant's statement that the plaintiff was a slum lord did not amount to a false statement that would adversely affect the plaintiff in his trade or business.   The cumulative and credited testimony is that the plaintiff had a reputation of owning blighted buildings which negatively impacted the quality of life of the neighborhood.   It cannot be said that the statement, although inflammatory, was false.   The court finds credible the cumulative testimony that the condition of the plaintiff's property was of such a nature that calling him a slum lord was not a false statement of the plaintiff's conduct or characteristics which adversely affected him in his trade or business.   The court finds in favor of the defendant on this claim.   As to the statement that the plaintiff was an arsonist who burned down his building, the following testimony was elicited:  The plaintiff specifically denied that he had been arrested for arson He also stated that he had never been arrested for any crime.   The plaintiff testified that, as a result of the defendant's statements, his tenants were fearful that the plaintiff would set fire to this building and moved out, causing him harm to his business.   There was no evidence as to the number of tenants who moved out, whether he had difficulty in replacing the tenants or of any claim of economic loss.   The plaintiff's building superintendent, Peter Gustavo Cortez, testified that the building's occupancy decreased following a story in the local paper that the defendant accused the plaintiff of being an arsonist and that he was told by tenants that they were afraid the plaintiff would burn the building down.   The testimony of witnesses Mazzarella and Guinness was that the plaintiff and his son regularly evicted tenants from the building.   Guinness testified that the plaintiff told him this was the way to remediate the blight of his buildings.   The defendant's statement that the plaintiff was arrested for setting fire to his building constitutes a false claim that the plaintiff committed a crime that involves moral turpitude.   Moriarty v. Lippe, 162 Conn. 371, 383, 294 A.2d 326 (1972).   There was no evidence to the contrary.   The statement constitutes slander per se.   The court finds for the plaintiff against the defendant on the claim of slander per se.   The court finds, however, that, while the statement is slanderous per se and the law presumes injury, the negative impact upon the reputation of the plaintiff in the community was minimal.   Both nominal and punitive damages also may be awarded where the defamatory material is [defamation] per se.   Where the court has found that the plaintiff has suffered a technical legal injury, the plaintiff is entitled to at least nominal damages.  (Emphasis added.)   Lyons v. Nichols, supra, 63 Conn.App. 768.  ‘The award of nominal damages is appropriate when there is a clear invasion of a legal right ․ but no finding of a compensable injury.’   Id., 769.  ‘Nominal damages are awarded when the insignificant character of the defamatory matter, or the plaintiff's bad character, leads the jury to believe that no substantial harm has been done to his reputation, and there is no proof that serious harm has resulted from the defendant's attack upon the plaintiff's character and reputation.’   3 Restatement (Second), Torts, § 620, comment (a) (1977);  see, e.g., Walkon Carpet Corp. v. Klapprodt, 89 S.D. 172, 178, 231 N.W.2d 370 (1975) (upholding award of $1 after finding that defendant told others plaintiff was crook, had stolen carpet, belonged in penitentiary, drank to excess, was sexually promiscuous, but also finding that poor reputation of plaintiff not materially damaged by those statements).  ‘[Nominal damages] are also awarded when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory matter.’   3 Restatement (Second), supra, § 620, comment (a).   DeVito v. Schwartz, supra, 66 Conn.App. at 235–36.   There was no evidence of special damages, either past or future.   Having admitted that he has alleged or proven no special damages, the plaintiff is limited to a recovery of general damages on a showing that the utterance was slanderous per se.   Moriarty v. Lippe, supra, 162 Conn. at 382–83;  Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952).   No award is made for special damages.   The plaintiff is entitled to recover general damages.   Taking into consideration the testimony from several witnesses concerning the plaintiff's reputation in the community, the court finds that there was no appreciable damage to the reputation of the plaintiff and therefore awards the plaintiff nominal damages of $1.00.   The court awards no punitive damages.   The total award for damages to the plaintiff against the defendant is $1.00.   THE COURT, Robert E. Young, Judge