Michael Grimaldi et al. v. Lori A. Paggioli et al. (2012)

MEMORANDUM OF DECISION

The court heard evidence, over three days, in this hearing in damages matter.   The defendants, Lori and Thomas Paggioli, were defaulted for failure to plead on December 22, 2010, in this case in which the plaintiffs, Michael Grimaldi, Christine Grimaldi, Kristian Grimaldi, and Elise Grimaldi, claim compensatory and punitive damages for intentional and negligent infliction of emotional distress.

Under Practice Book § 17–34, “[i]n any hearing in damages upon default, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff's complaint, except such as relate to the amount of damages ․” All that remains is for the plaintiff to prove damages.   Peterson v. Woldeyohannes, 111 Conn.App. 784, 790 (2008).   The plaintiff is not, however, automatically entitled to the amount of damages claimed, but bears the burden of proving, by a preponderance of the evidence, how much the plaintiff is entitled to receive as a judgment.  Whitaker v. Taylor, 99 Conn.App. 719, 726 (2007).

The intentional and negligent infliction of emotional distress claims are based on the same allegations which are:

1.  That Lori Paggioli publicly threatened to kill Michael Grimaldi;

2.  That Thomas Paggioli publicly stated that all the plaintiffs should be dead;

3.  That “unidentified persons placed an unknown substance in the gas tank of an automobile driven by Elise Grimaldi causing an EGR valve to rupture and leak carbon monoxide into the car;

4.  That Thomas Paggioli cut down a large maple tree which was on the Grimaldis' property;

5.  That Thomas Paggioli dug up a curtain drain on the Grimaldis' property;

6.  That a firebomb was detonated on the Grimaldis' porch;

7.  That Thomas Paggioli dumped several truckloads of chicken manure near the border of the Grimaldi property and left the pile there for a month attracting a large infestation of black flies which rendered the Grimaldi residence uninhabitable;

8.  That Lori Paggioli told others that the plaintiffs should be driven from the town of Bolton;  and

9.  That these actions were extreme, outrageous, and intended to inflict emotional distress upon the plaintiff and/or likely to cause distress so severe that physical illness could result.

Except as bears on the issue of damages, the court must regard these allegations as proven facts.   As a result of the evidence adduced at the hearing in damages, the court finds the following additional facts.

Michael and Christine Grimaldi are the parents of Kristian and Elise Grimaldi, who are now adults.   Sometime in the early- to mid–1990s, Michael Grimaldi was indicted and convicted in federal court for taking illegal kickbacks while employed by Aetna.   He was placed on probation and ordered to pay $400,000 in restitution.   At that time, the Grimaldis lived in East Haddam.   The parents had to sell various real estate holdings in order to satisfy the restitution order.

While living in East Haddam, Michael Grimaldi engaged in an affair with his children's fifteen-year-old babysitter.   The illicit relationship was discovered in 1997, and Michael Grimaldi was convicted of sexual assault second degree in state court.   He received a sentence of ten years, execution suspended after the service of two years, and ten years probation.   He spent 1998 to 2000 in several correctional institutions and had to register as a sex offender.

As a result of his arrest, prosecution, and scandal in 1997, his wife and children moved to Bolton to a home owned by Michael's father.   The residence was located on Birch Mountain Road and comprised 1,600 square feet.

After his release, Michael and his family attempted to start a new life in Bolton.   Michael began a home remodelling business, and he and Christine purchased the Bolton residence from his father on June 22, 2001.   The Grimaldis decided to expand the residence significantly.   The expansion incorporated a workshop and apartment for Kristian, and the house size was increased to 4,800 square feet.   In order to finance this project, in May 2007, the Grimaldis borrowed $462,000 which was secured by an open-end mortgage.

Also, in 2007, it was discovered that the septic system installed eight years earlier by Michael's father had leaching trenches which were too close to the abutting property owned by the defendants.   In 2008, the town of Bolton issued a cease and desist order curtailing use of underground drainage pipes which conducted surface water, as well as ground water, in violation of Bolton's drainage ordinances.

These administrative actions led to a dispute among the parties regarding the true property line.   Also, the town informed the Grimaldis that they could not lawfully operate the remodelling business from that residence.

When he was released from prison in 2000, the Grimaldis had few assets.   However, by the mid 2000s they purchased a rental property in Andover, two boats, one of which cost $50,000, and equipment and vehicles for use in the remodelling business.

Also, shortly after he moved to Bolton, a former mistress contacted Michael to inform him that she also resided in Bolton and that she had given birth to his son who was about the same age as his other son, Kristian.   Despite his loss of employment with Aetna, his two felony convictions and incarceration, and his notorious infidelities, Christine Grimaldi remained loyal to her husband and shouldered the heavy burden of keeping her family together.

As the economy sagged, so did the Grimaldis' remodelling business.   In 2004, they recorded a net profit of $9,400.   For 2005, they experienced a net loss of $51,000;  and for 2006 and 2007, net losses of $6,000 and $36,000, respectively.   Two business vehicles had to be relinquished.   In March 2007, foreclosure proceedings were instituted.   On July 14, 2008, a judgment of strict foreclosure entered, and in August 2008, title to the Bolton residence vested in the mortgagee.   At the time of judgment, the indebtedness was $492,744.49 and the fair market value of the Bolton residence was $398,000.   Concurrently, the Grimaldis had delinquencies with several other creditors and faced collection litigations.

Measure of Damages

It is important to recall that the court is determining damages for intentional and/or negligent infliction of emotional distress claims.   This case is not about the measure of damages for nuisance, trespass, the improper cutting of trees, or battery.

Instead, the court must focus on the distress, humiliation, and fear incurred, and those economic expenses which foreseeably flow from that emotional injury, if any.   Therefore, the court cannot award damages for economic losses which caused the emotional distress, but only for such economic expenses which resulted from the emotional harm.   That means that, in this case, for example, the court makes no attempt to compensate the plaintiffs for the loss of the maple tree or damages to the curtain drain.

Also, with respect to intentional infliction of emotional distress, punitive damages are available if the evidence shows a reckless indifference or intentional violation of the rights of the plaintiffs.  Berry v. Loiseau, 233 Conn. 786, 823–825 (1992).   Such punitive damages are limited to costs of litigation including reasonable attorney's fees, Id., 827.

Obviously the plaintiffs in this case were concurrently experiencing emotional distress from several sources completely independent of the misconduct of the defendants.   The task of parsing out quanta of distress attributable to the defendants is a daunting one.

Loss of Bolton Residence

The court first addresses the plenary claim by all four plaintiffs regarding the emotional injury and economic losses sustained as a result of leaving their home in Bolton.   The court finds that the plaintiffs have failed to prove that the harassment by the defendants proximately caused any such damages.

The plaintiffs lost their home to foreclosure because of a lack of money not attributable to the defendants.   The Grimaldis were overextended financially, and the remodelling business was generating losses rather than profits.   The court finds the testimony of the plaintiffs that they relinquished their Bolton residence because of the harassment by the defendants to be unworthy of belief.   The court determines that even if the Grimaldis had had the most cordial of neighbors, they would have lost their home in the same way.   Consequently, the court assesses no damages on account of this aspect of distress.

Damages of Michael Grimaldi

As recounted earlier, Michael Grimaldi experienced much stress in his life which was unrelated to the harassment by the defendants.   He was a convicted felon with a prison record and a registered sex offender.   His remodeling business was suffering, and his financial situation was dire.   He faced foreclosure and debt collection litigation.   The town of Bolton uncovered multiple ordinance violations which added to the family's money woes and anxiety.   In addition, Michael Grimaldi was being treated for skin cancer on his back.

With this backdrop of emotional strain, the court must assign fair, just, and reasonable damages to compensate for the fear, anxiety, and humiliation inflicted upon Michael Grimaldi by the public threat to his life and that of his family.   Both threats occurred on March 23, 2007, when town officials met with Michael and Christine Grimaldi near the disputed boundary line to specify the violations and possible remediation.   The Paggiolis attended the discussions and uttered the threats in the context of that dispute.   There were no obvious means brandished to carry out the threats at that time.

The court awards Michael Grimaldi $1,000 as damages against Lori Paggioli and $500 damages against Thomas Paggioli for their respective threats.

As to the removal of the maple tree, scant evidence was proffered that that event caused much consternation.   Again, the parties were in the midst of a contentious property dispute.   The Paggiolis had obtained a professional survey which clashed with the Grimaldis' opinion of where the boundary dividing their land lay.   It is unclear whether the tree would have survived the remediation effort.   As noted above, the court is not assessing damages for the diminution of the value of the Grimaldis' land or the loss of the value of the wood.   Rather, the court is awarding damages for the infliction of emotional distress on Michael Grimaldi caused by Thomas Paggioli's felling of the tree.   The court awards $100 against Thomas Paggioli on account of that action.

Michael Grimaldi was in Florida when the explosion on the porch happened.   The evidence presented discloses that the “bomb” was more akin to a large firecracker than to a Molotov cocktail.   More importantly, however, is the lack of evidence that either Thomas or Lori Paggioli were responsible for the detonation.

Paragraph eight of each count avers that the plaintiffs believe that the defendants were “responsible” for the detonation, but the complaint fails to allege their responsibility as a fact.   Therefore, the entry of a default triggers no concession by the defendants as to that responsibility by virtue of Practice Book § 17–34.   In the absence of any proof that the defendants themselves detonated the explosion or prompted others to do so, no damages can be awarded for the plaintiffs' suspicions.

Regarding the digging up and damaging the curtain drain, it should be noted that Thomas Paggioli repaired the damage under the auspices of town officials.   Again, this misconduct arose from a boundary dispute.   However, Michael Grimaldi was understandably upset and agitated by the destruction of the drain and the potential expense to redress that harm.   The court assesses $1,000 damages against Thomas Paggioli for that action.

The court must also measure, in monetary terms, compensation for the aggravation and emotional disturbance created by having a manure pile stored close to the Grimaldi residence for a one-month period.   Because of the entry of a default, the court must assume that Thomas Paggioli engaged in that activity in order to inflict emotional distress on the Grimaldis.   Michael Grimaldi had to endure the odor and massive influx of black flies attendant to the manure pile.

Michael Grimaldi also contends that the flies contaminated the wound on his back which was the result of surgery to remove the skin cancer.   No medical evidence supported this supposition.   The court confers no credit to the Grimaldis' testimony on this point.

It should be observed that the Grimaldis chose to reside next to a hayfield which was regularly fertilized with manure produced by the Paggiolis' chickens and cattle.   Some odor and insect infestation was to be expected.   To repeat the court is not determining damages under a nuisance claim.   The court awards Michael Grimaldi $1,500 against Thomas Paggioli for this misbehavior.

Finally, as to the tampering with the automobile driven by Elise Grimaldi, paragraph five of each count states that “unidentified persons” engaged in such an act and the plaintiffs suspect the defendant of being the moving force behind it.   Even where a default has entered, the court is not obligated to award damages where the allegations fail to “make out a valid claim for the relief requested.”  Whitaker v. Taylor, supra, 726.   The lack of evidence connecting the defendants to the sabotage of the automobile in question precludes any damages pertaining to emotional distress arising from that incident.

Also, the court awards no damages for any derogatory statements made by Lori Paggioli because the court finds no such damages were proven.

To summarize, the court enters judgment in favor of Michael Grimaldi against Thomas Paggioli in the total amount of $3,100;  and against Lori Paggioli in the total amount of $1,000.

It is appropriate at this point to discuss the proper course a trial court must follow when determining damages at a hearing in damages after default where inconsistent or alternative causes of action are asserted in the complaint.   In this case, the plaintiffs assert both intentional and negligent infliction of emotional distress premised on the identical set of underlying allegations.   In Catalina v. Nicolelli, 90 Conn.App. 219, 225–226 (2005), our Appellate Court held that the entry of the default waives the right to raise the issue of inconsistent claims.   Duplicate recovery, however, is prohibited.  Id., 225.   The prescribed procedure is for the trial court to enter a single judgment as to all pertinent counts of the complaint despite any inconsistency.  Id., 225–226.   The court, therefore, enters the judgment described above as to the second and tenth counts of the complaint, which counts pertain to Michael Grimaldi and Thomas Paggioli and as to the first and ninth counts pertaining to Lori Paggioli.

Damages for Christine Grimaldi

The facts and discussion related above reveal that a tremendous amount of the emotional stress in Christine Grimaldi's life from 2005 to present was caused by events unrelated to the conduct of the Paggiolis.   The court awards Christine Grimaldi $1,000 against Lori Paggioli for the threat against Michael Grimaldi made in her presence and $1,000 against Thomas Paggioli for the threat by Thomas Paggioli also.   In addition, the court assesses $1,500 against Thomas Paggioli for the manure pile event and $100 for the tree cutting incident.

In sum, judgment enters in favor of Christine Grimaldi against Lori Paggioli on counts three and eleven in the total amount of $1,000 and against Thomas Paggioli as to counts four and twelve in the total amount of $2,600.

Damages of Kristian Grimaldi

Kristian Grimaldi was deeply affected by his father's imprisonment and the resulting departure from the family home in East Haddam.   Kristian testified that the harassment by the defendants caused him to move from the Bolton residence and suffer further emotional harm because of that second loss of a home in 2008.   The court attributes no damages to this change of residence because, as described earlier, the loss of the Bolton home was caused by the foreclosure which was precipitated by economic factors disassociated with any misconduct by the defendants.

Kristian was not present when the threats were made by the defendants on March 23, 2007, nor was he at the home when the explosion on the porch occurred.   The court discerns no compensable emotional distress to Kristian from the felling of the tree or the damage to the drain.

The court enters judgment in favor of Kristian Grimaldi in the total amount of $1,500 against Thomas Paggioli as to counts six and fourteen stemming from the manure dumping event.   The court enters judgment as against Lori Paggioli on counts five and thirteen for nominal damages of $1.

Damages of Elise Grimaldi

Elise Grimaldi has suffered much emotional turmoil which predates any of the misbehavior by the defendants.   She endured stigmatization and internal conflict arising from transgender issues.   She was also arrested for selling illicit drugs to a minor.   She only resided at the Bolton residence sporadically from 2006 onward.

As noted above, the court finds that, neither the tampering with her car nor the porch explosion can provide the basis for liability on behalf of the defendants.   Consequently, the court enters judgment in favor of Elise Grimaldi of $1 as to each defendant for counts seven, eight, fifteen, and sixteen, see Peterson v. Woldeyohannes, supra, 791.

Punitive Damages

The court awards punitive damages in the form of reasonable attorneys fees.   The plaintiffs had a fee arrangement with their counsel consisting of payment of forty percent of the judgment obtained.   The total judgment for all plaintiffs was $9,200, so the court awards attorneys fees in the amount of $3,680.

Costs are to be taxed by the clerk.

Sferrazza, J.

Sferrazza, Samuel J., J.