Benedetto Minichino et al. v. August Zupka et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 121)

FACTS

This action for defamation, intentional infliction of emotional distress, and civil conspiracy arises from a dispute between the plaintiffs, Benedetto Minichino and Judith Minichino, and the defendants, August Zupka and Robert Welch.   On April 13, 2012, the plaintiffs filed a four-count complaint, which alleges the following facts.   The defendants maliciously published false oral and written statements which were intended to impeach Benedetto Minichino's honesty, integrity, virtue, and reputation.   The statements concerned Benedetto Minichino's position as chairman of the board of directors of a condominium association.   The plaintiffs identify at least nineteen defamatory statements allegedly made by the defendants, including statements that Benedetto Minichino (1) is a liar;  (2) is deceiving condominium unit-owners;  (3) has engaged in a cover up;  (4) has abused his power;  (5) has used his influence to keep August Zupka off the condominium board of directors;  (6) knowingly violates the condominium by-laws;  (7) withholds information from unit-owners;  and (8) uses discriminatory practices. (4/13/12, Pls.' Compl. ¶¶ 7, 10, 12.)   These oral and written publications were published “with malice, hatred and ill will toward [Benedetto Minichino] ․” (4/13/12, Pls.' Compl. ¶ 15.)   The plaintiffs further allege that the defendants intentionally and deliberately inflicted emotional distress on Benedetto Minichino and his wife, Judith Minichino, by making these defamatory statements.   As a result of the defendants' oral and written statements, Benedetto Minichino suffered loss of reputation, shame, mortification, and injury to his feelings.

Count one of the plaintiffs' complaint is a defamation claim.   Counts two and four are claims for intentional infliction of emotional distress that was allegedly inflicted on Benedetto Minichino and Judith Minichino, respectively.   Count three is a claim for civil conspiracy, alleging that the defendants conspired together to disseminate the aforementioned untrue information.   The plaintiff requests compensatory damages, punitive damages, interest, and cost of suit.

On May 2, 2012, the defendants filed an answer, a special defense, and a counterclaim.   In their special defense, the defendants allege that the plaintiffs failed to give written notice to the defendants requesting a retraction of the libelous charge pursuant to General Statutes § 52–237.¹  On June 15, 2012, the plaintiffs filed a motion to strike the defendants' special defense, arguing that the special defense was legally insufficient.   On June 27, 2012, the defendants filed an objection to the motion to strike.   On July 9, 2012, the court, Young, J., granted the plaintiffs' motion to strike the special defense and overruled the defendants' objection.   The order granting the plaintiffs motion stated in its entirety:  “The [defendants'] allegations do not constitute a special defense, i.e., that the plaintiff has no cause of action.   See [Practice Book] § 10–50.”  Minichino v. Zupka, Superior Court, judicial district of New Haven, Docket No. CV–12–6028696–S (July 9, 2012, Young, J.) (Order at Docket No. 104.10).

On September 4, 2013, the defendants filed a motion for summary judgment, accompanied by a supporting memorandum of law.²  In support of their motion for summary judgment, the defendants submit an affidavit of August Zupka.³  In response, the plaintiffs filed memoranda in opposition to the motion for summary judgment, and in support of their objections thereto, on September 26, 2013 and November 1, 2013.⁴  In support of their opposition to the motion, the plaintiffs submit (1) an affidavit of Benedetto Minichino, and (2) an affidavit of Judith Minichino.   The matter was heard at short calendar on November 18, 2013.

DISCUSSION

“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.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312, 77 A.3d 726 (2013).  “The courts hold the movant to a strict standard.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).  “[O]nly [o]nce [the movant's] burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the nonmovant] to show that a genuine issue of fact exists justifying a trial.”   (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).  “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.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).   It is axiomatic that “[s]ummary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.”   Romprey v. Safeco Ins. Co. of America, supra, 320.

In the present case, the defendants argue that it is undisputed that the plaintiffs have not alleged any actual damages and have not requested that the defendants retract the allegedly libelous statements pursuant to § 52–237, and that they are therefore entitled to summary judgment in the absence of any issues of material fact.   In response, the plaintiffs advance two arguments.   First, the plaintiffs argue that this issue has previously been ruled on by the court in Judge Young's order granting the plaintiffs' motion to strike the defendants' special defense.   Second, the plaintiffs argue that § 52–237 does not require that a party request a retraction of the allegedly libelous statement where the party intends to prove malice.   Because their complaint alleges malice, the plaintiffs argue that there remain genuine issues of material fact and, thus, the motion for summary judgment must be denied.

I

The plaintiffs first urge the court not to address the substantive issues, arguing instead that the motion for summary judgment should be disposed of on procedural grounds because the issue raised in the defendants' motion was previously ruled on by the court.   More specifically, the plaintiffs argue that the defendants' special defense, which was stricken by Judge Young on July 9, 2012, was also premised on a failure to comply with § 52–237 and that, by granting the plaintiffs' motion to strike the special defense, the court has already ruled on this specific issue.   The plaintiffs further argue that since the court has already ruled against the defendants on this issue, the same issue is not a proper basis for this motion for summary judgment.

Although the plaintiffs do not expressly invoke the doctrine, their argument implicates the law of the case doctrine, which “expresses the practice of judges generally to refuse to reopen what [already] has been decided ․ New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ․ Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.”  (Internal quotation marks omitted.)  Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).

In the present case, Judge Young granted the plaintiffs' motion to strike the defendants' special defense that Benedetto Minichino failed to give written notice to the defendants requesting a retraction of the libelous charge.   Judge Young's order granting the plaintiff's motion stated in its entirety:  “The [defendants'] allegations do not constitute a special defense, i.e., that the plaintiff has no cause of action.   See [Practice Book] § 10–50.”   Minichino v. Zupka, supra, Superior Court, Docket No. CV–12–6028696–S (Order at Docket No. 104.10).   Like the stricken special defense, the defendants' pending motion for summary judgment is premised on the plaintiffs' failure to request a retraction of the libelous charge.   Therefore, there does appear to be a good deal of overlap between the legal issue in the motion to strike the special defense and the legal issue in the present motion for summary judgment.   Nonetheless, “[t]he law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked.”  Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).   In this situation, it is arguably unclear whether the court has actually addressed this specific legal question because Judge Young's order granting the motion to strike the special defense did not specify the precise grounds for his decision, other than a general statement that the defendant's allegations do not constitute a special defense and a citation to our rules of practice governing special defenses.⁵  The order does not specify a conclusion regarding the import of § 52–237 in this case.   Furthermore, a motion to strike a special defense and a motion for summary judgment are substantially different motions employing dissimilar standards.   While “[a] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court”;  (internal quotation marks omitted) Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013);  a motion for summary judgment necessarily requires an analysis of “pleadings, affidavits and any other proof submitted” to determine whether “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”;  (internal quotation marks omitted) Patel v. Flexo Converters USA., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).   In light of these considerations, and in an effort to ensure that the defendants' argument is thoroughly addressed, the law of the case doctrine does not foreclose consideration of the merits of the pending motion for summary judgment.

II

Turning to the merits of the defendants' motion, it is instructive to briefly review the common-law tort of defamation.  “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 ․ 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.”   (Internal quotation marks omitted.)  Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).   Defamation is comprised of two separate torts:  libel and slander.  Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008).  “Slander is oral defamation ․ Libel ․ is written defamation.”  (Internal quotation marks omitted.)  Id. Depending upon the circumstances, a plaintiff in a defamation action may be entitled to recover general damages, special damages, or both categories of damages.   See Pollack v. Eitelberg, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–09–5011274–S (November 30, 2012, Jennings, J.T.R.) (discussing general and specific damages).  “General damages ․ [are] for the injury to [the plaintiff's] reputation and for the humiliation and mental suffering which the [defamation] caused him.”  (Internal quotation marks omitted.)  DeVito v. Schwartz, 66 Conn.App. 228, 235, 784 A.2d 376 (2001).   By contrast, “special damages [are available only] upon proof of actual injury or loss ․” (Emphasis added.)   Cohen v. Meyers, Superior Court, judicial district of Middlesex, Docket No. CV–11–5008047–S (August 27, 2012, Morgan, J.).  “To recover special damages ․ the plaintiff must prove that he suffered economic loss that was legally caused by the defendant's defamatory statements ․” DeVito v. Schwartz, supra, 235.

Section 52–237 places a limitation on the damages available to plaintiffs in libel cases.⁶  Specifically, § 52–237 provides:  “In any action for a libel, the defendant may give proof of intention;  and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved.”  (Emphasis added.)   Under the statute, “there are two possible courses of action a plaintiff [who does not allege special damages] may take.”   Harris v. Kupersmith, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–08–6000995–S (August 31, 2009, Adams, J.).   In order to recover general damages, “a plaintiff ․ [must show either] [ (1) ] ‘malice in fact’ or [ (2) ] a failure by the defendant to publish a retraction upon the plaintiff's written request.” ⁷  (Emphasis added.)  Miles v. Perry, 11 Conn.App. 584, 604, 529 A.2d 199 (1987).   A plaintiff who claims only general damages and fails to prove either malice in fact or a demand for a retraction is not entitled to recovery under the statute.

Nonetheless, under the statute, “where the plaintiff proves ‘malice in fact,’ she is entitled to recover general damages, even if no retraction has been demanded, or if special damages have neither been alleged nor proved.”  Id., 605.   A “plaintiff [who fails to plead special damages or request a retraction] must prove by a fair preponderance of the evidence ‘malice in fact’ in order to recover general damages.”  Id., 605–06.   For example, in Haxhi v. Moss, 25 Conn.App. 16, 18 n.2, 591 A.2d 1275 (1991), it was “undisputed that ․ the plaintiffs not only failed to request a retraction but in fact refused the defendant's offer to have a retraction published.”   Nonetheless, our Appellate Court held that these actions did not bar the recovery of general damages by the plaintiffs.  Id. The court found that § 52–237 permitted the recovery of general damages if “the plaintiffs ․ prove that the defendant acted with malice in fact ․” Id.

In the present case, the defendants submit an affidavit of August Zupka in support of their motion for summary judgment.   In the affidavit, Zupka testifies that Benedetto Minichino has never requested a retraction of the allegedly libelous statements.   In response, the plaintiffs submit affidavits of Benedetto Minichino and Judith Minichino.   In their affidavits, both plaintiffs testify that any request for a retraction of the libelous statements would have been fruitless due to the contentious relationship between Benedetto Minichino and the defendants.   Both plaintiffs further attest that the defendants circulated a petition to all unit-owners at the condominium complex that was accompanied by a libelous letter, and that the circulation of the petition with the libelous letter will be used as evidence at trial to demonstrate that the defendants acted with malice.

Count one of the plaintiffs' complaint sets forth a claim for libel by alleging the publication of defamatory written statements.⁸  Count one alleges only general damages, not special damages.   Specifically, count one alleges that Benedetto Minichino has suffered injury to his reputation, as well as experiencing shame, mortification, and injury to his feelings.   These are classic examples of general damages.   See, e.g., DeVito v. Schwartz, supra, 66 Conn.App. 235 (noting that “general damages ․ [are] for the injury to [the plaintiff's] reputation and for the humiliation and mental suffering which the [defamation] caused him”).   The plaintiffs make no attempt to plead any facts demonstrating actual injury or loss to support special damages.   Therefore, in order to recover damages, § 52–237 requires that the plaintiffs either (a) request a retraction of the allegedly libelous charge, or (b) prove malice in fact.   The defendants, the movants on this motion for summary judgment, have submitted evidence indicating that the plaintiffs never requested a retraction of the allegedly libelous statements from the defendants.   The plaintiffs do not submit any evidence contesting this point.   In fact, the affidavits of the plaintiffs tacitly acknowledge that such a request was never made, and instead argue that a request would have been fruitless under the circumstances.   Therefore, there is no genuine issue of material fact that the plaintiffs failed to request a retraction from the defendants.   This fact alone, however, is not determinative because § 52–237 provides two alternative paths to plaintiffs.   Even though they have not alleged damages and there is no genuine issue of material fact that they failed to request a retraction of the libelous charge, the plaintiffs may still recover general damages under the statute if they prove malice in fact.   In their motion for summary judgment, the defendants do not advance any arguments with regard to the malice in fact “option” afforded by the statute.   It is noted that the plaintiffs' complaint expressly alleges malice and the affidavits of both plaintiffs indicate their intent to prove malice at trial.   That is all that the statute requires under these circumstances.   Because the plaintiffs have satisfied § 52–237, the defendants' motion for summary judgment is denied.

In any event, even if this court agreed with the defendants' argument regarding § 52–237, summary judgment could not properly be granted on all of the plaintiffs' claims, or even on the defamation claim alone.   The defendants have moved for summary judgment on all the claims directed against them. (9/4/13, Defs.' Mot. Summ. J., p. 1 [requesting the court to enter “Summary Judgment on the claims against the defendant”].)   The plaintiffs' complaint is set forth in four counts, alleging claims sounding in defamation (count one), intentional infliction of emotional distress (counts two and four), and civil conspiracy (count three).   Even a persuasive argument regarding an alleged failure to comply with § 52–237 would only affect the first count, and, therefore, could not properly form the basis for the granting of summary judgment on the remaining counts of the complaint.   Here, the defendants have altogether failed to present any arguments with regards to counts two, three, or four, and, therefore, summary judgment could not properly be rendered on the entire complaint.   Moreover, summary judgment on count one alone would also be improper because the count alleges claims for both libel and slander, but § 52–237 applies only to claims for libel.

“There is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint.   At the trial court level there is a split of authority on the issue.   A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment ․ [S]ome courts have found that the language of Practice Book § 17–51 ․ authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim.”  (Internal quotation marks omitted.)   Newman v. Frito–Lay, Inc., Superior Court, judicial district of New Haven, Docket No. CV–09–6006180–S (September 10, 2012, Wilson, J.).   In the present case, because the allegations referencing libelous statements cannot be severed from the remainder of the defamation claim, summary judgment on count one of the plaintiffs' complaint is improper even if the defendants met their burden of demonstrating the lack of any genuine issue of material fact with regard to the claim for libel.

CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is denied.

Wilson, J.

FOOTNOTES

FN1. General Statutes § 52–237 provides:  “In any action for a libel, the defendant may give proof of intention;  and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved.”.  FN1. General Statutes § 52–237 provides:  “In any action for a libel, the defendant may give proof of intention;  and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved.”

FN2. By court order, the motion and memorandum of law in support thereof were later deemed filed on October 23, 2013.   See footnote 4 of this memorandum..  FN2. By court order, the motion and memorandum of law in support thereof were later deemed filed on October 23, 2013.   See footnote 4 of this memorandum.

FN3. Initially, the defendants did not submit any evidence in support of their motion.   Our rules of practice provide that “[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  Practice Book § 17–45.   Our Supreme Court has held that “[a]s the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   When this matter was heard at short calendar on November 18, 2013, the court granted the parties an additional opportunity to submit supporting materials.   Thereafter, on November 21, 2013, the defendants, the moving parties in the present motion, submitted an affidavit of August Zupka and, on November 22, 2013, the plaintiffs submitted affidavits of Benedetto Minichino and Judith Minichino..  FN3. Initially, the defendants did not submit any evidence in support of their motion.   Our rules of practice provide that “[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like.”  Practice Book § 17–45.   Our Supreme Court has held that “[a]s the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   When this matter was heard at short calendar on November 18, 2013, the court granted the parties an additional opportunity to submit supporting materials.   Thereafter, on November 21, 2013, the defendants, the moving parties in the present motion, submitted an affidavit of August Zupka and, on November 22, 2013, the plaintiffs submitted affidavits of Benedetto Minichino and Judith Minichino.

FN4. The plaintiff's first objection, filed on September 26, 2013, argued, inter alia, that the motion was untimely under Practice Book (2013) § 17–44, which provides that “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”  (Emphasis added.)   Because the case was already assigned a trial date and the defendants failed to obtain permission from the court, the plaintiffs argued that the motion was not properly before the court.   Subsequently, on October 3, 2013, the defendants requested permission to file the motion for summary judgment.   The plaintiffs objected to the request on the same date.   On October 23, 2013, the court, Robinson, J., granted the defendants' request for permission to file the motion for summary judgment, ruling that the motion and supporting memorandum of law that were previously filed on September 4, 2013 were to be deemed filed on October 23, 2013.   Thereafter, the plaintiffs filed another objection to the motion on November 1, 2013..  FN4. The plaintiff's first objection, filed on September 26, 2013, argued, inter alia, that the motion was untimely under Practice Book (2013) § 17–44, which provides that “any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial.”  (Emphasis added.)   Because the case was already assigned a trial date and the defendants failed to obtain permission from the court, the plaintiffs argued that the motion was not properly before the court.   Subsequently, on October 3, 2013, the defendants requested permission to file the motion for summary judgment.   The plaintiffs objected to the request on the same date.   On October 23, 2013, the court, Robinson, J., granted the defendants' request for permission to file the motion for summary judgment, ruling that the motion and supporting memorandum of law that were previously filed on September 4, 2013 were to be deemed filed on October 23, 2013.   Thereafter, the plaintiffs filed another objection to the motion on November 1, 2013.

FN5. Specifically, Judge Young's order cited Practice Book § 10–50, which provides:  “No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.”.  FN5. Specifically, Judge Young's order cited Practice Book § 10–50, which provides:  “No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.”

FN6. “[T]he statute applies only to libel, and not to defamation actions involving slander.”  Miles v. Perry, 11 Conn.App. 584, 606, 529 A.2d 199 (1987)..  FN6. “[T]he statute applies only to libel, and not to defamation actions involving slander.”  Miles v. Perry, 11 Conn.App. 584, 606, 529 A.2d 199 (1987).

FN7. Our case law has defined “malice in fact as not necessarily meaning hatred, spite or ill will against the plaintiff but as meaning that there must have been some improper or unjustifiable motive ․” Proto v. Bridgeport Herald Corp., 136 Conn. 557, 564, 72 A.2d 820 (1950)..  FN7. Our case law has defined “malice in fact as not necessarily meaning hatred, spite or ill will against the plaintiff but as meaning that there must have been some improper or unjustifiable motive ․” Proto v. Bridgeport Herald Corp., 136 Conn. 557, 564, 72 A.2d 820 (1950).

FN8. Count one also includes a claim for slander by alleging the publication of false oral statements..  FN8. Count one also includes a claim for slander by alleging the publication of false oral statements.

Wilson, Robin L., J.