Opinion
No. CV-05-40044557-S
October 3, 2006
MEMORANDUM RE MOTION TO STRIKE #107
FACTS
The plaintiff is an attorney engaged in the practice of law in Waterbury and who enjoyed a good reputation for honesty, morality and ethical conduct. On March 4, 2005, the plaintiff filed suit against the defendant the estate of GRACE LIZAUSKAS for defamation. The plaintiff has alleged that Grace Lizauskas prior to her death filed a false and defamatory Affidavit on the Town of Woodbury land records accusing the plaintiff of unethical, fraudulent, criminal and immoral conduct which reads in part.
Iris Lord, as executrix of the Grace Lizauskas estate, is the estate's legal representative. See George v. St. Ann's Church, 182 Conn. 322, 324, 438 A.2d 97 (1980).
"These were to be the only change to the above documents. Attorney John Ambrozaitis prepared the new legal documents which he represented were necessary to enact this change;
"On or about July 10, 1997, unbeknownst to me, Attorney John Ambrozaitis prepared a letter . . . signed by my husband after he became incompetent and while I was his Power of Attorney with no notice to me. In addition, he prepared an Assignment . . . which I signed having been led to believe it would be activated when the Trust was dissolved at the time of my death;
"On May 14, 2003, Attorney John Ambrozaitis mailed me a package . . . A review of this package revealed that my husband's will had been changed dramatically . . . this change was the result of the fact that the trust assets had been prematurely transferred to Mark Ryan in 1997;
"It was never the intention of my husband and/or me to transfer our assets prior to our deaths. The letter of July 10, 1997, is not valid as my husband was not competent at the time it was signed. I was his Power of Attorney and did not sign or accept this agreement."
On June 21, 2005, the plaintiff filed a one-count revised complaint alleging that as a result of the filing of this affidavit the plaintiff has been injured in his reputation and has suffered economic losses and emotional distress. On March 17, 2006, the defendant pursuant to Practice Book § 10-39 et seq., filed a motion to strike the complaint on two grounds. First, that the plaintiff has failed to state a claim in "Libel Per Quod" because he has incurred no special damages, and Second, that the statements at issue are based on opinions, and are therefore not actionable as libel. The plaintiff filed a timely objection thereto on March 29, 2006. The defendant thereafter filed a reply on April 4, 2006.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [W]e construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 778 (2006). "[With respect to] a motion to strike, we are limited to and must accept as true the facts alleged in the . . . complaint . . ." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 315 n. 4, 813 A.2d 1003 (2003).
The defendant's first claim is that the plaintiff has failed to state a claim in "Libel per quod" because he has incurred no special damages. As evidence the defendant points to the plaintiff's answer to defendants' interrogatory number 17, wherein the plaintiff admits the only damages he has suffered are attorneys fees and expenses. The elements of "libel per quod" are found in Battista v. United Illuminating Co., 10 Conn.App. 486, 491-93, 523 A.2d 1356, cert denied 204 Conn. 802, 525 A.2d 1352 (1987). In Battista, at page 491 the court held "While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod. A libel per quod is not libelous on the face of the communication, but becomes libelous in the light of extrinsic facts known by the recipient of the communication. When a plaintiff brings an action in libel per quod, he must plead and prove actual damages to recover." D. Wright Fitzgerald, Connecticut Law of Torts (2d Ed.) 146. The distinction between Libel Per Se and Libel Per Quod is important because "[a] plaintiff may recover general damages where the defamation in question constitutes Libel Per Se." Yavis v. Sullivan, 137 Conn. 253, 76 A.2d 99 (1950). "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." Urban v. Hartford Gas Company, 139 Conn. 301, 308, 93 A.2d 292 (1952). In Urban, our Supreme Court held that "The rule is different, however, when the defamation is actionable per quod. There, the law indulges no such presumption. For this reason, injury to the reputation must be alleged and proved as an essential link between the slanderous utterance and the special damage which constitutes the basis of recovery in actions per quod. The special damage, to which we now refer, must be of a material and, generally, of a pecuniary nature. It must result from the conduct other than the defamer or the defamed, and that conduct must be directly caused by the publication of the slander. Restatement 3 Torts, 575 comment b. For example, if a third person, because he believes the slander or because of an unwillingness to employ one whose reputation has been impaired by it, withdraws his previous offer to hire that person, the latter's loss of reasonable expectation of gainful employment would amount to special damages." The defendant argues that since the plaintiff has not alleged any pecuniary loss and that the only losses he has incurred as a result of the communication are legal fees and expenses the Revised Complaint as drafted fails to state a cause of action. The plaintiff in his objection does not dispute that the communication constitutes libel per quod, thus, the court will consider it as such a claim and not as claim for libel per se. The plaintiff argues, however, that it is not necessary to plead and prove special damages, that the issue here is simply whether the Revised Complaint, on its face giving the words used a broad construction alleges special damages. The primary concern of the court when deciding a motion to strike is whether or not the complaint on its face states a claim upon which relief can be granted. The complaint in paragraph four specifically states: "As a result the plaintiff . . . has suffered economic damages . . ." The court as previously stated, "[on] a motion to strike, is limited to . . . the facts alleged in the . . . complaint." (Emphasis added; internal quotation marks omitted.) Craig v. Driscoll, supra, 262 Conn. 315 n. 4. As a result, on this motion, the court may not consider the plaintiff's answer to an interrogatory. Though the complaint as drafted, may not withstand a motion for summary judgment, the court finds it is legally sufficient to survive a motion to strike.
Indeed, "[i]t is elementary that [a motion to strike] must rely wholly upon the factual allegations of the pleading addressed and may not contain affirmative factual assertions which could only be proved by evidence." State v. Bashura, 37 Conn.Sup. 745, 748, 436 A.2d 785 (1981). See also, Murphy v. Norwalk, Superior Court, judicial district of Fairfield, Docket No. CV 92 291210 (July 14, 1992, Katz, J.) (denying the defendant's motion to strike because the defendant based its motion on answers to interrogatories.).
The defendant's second ground for striking the complaint is that the statements at issue are based on opinion, and are therefore not actionable as libel. The affidavit filed by Mrs. Lizauskas which is the subject of this action reads in part: "On or about July 10, 1997, unbeknownst to me, Attorney John Ambrozaits prepared a letter . . . signed by my husband after he became incompetent and while I was his Power of Attorney with no notice to me. In addition he prepared an Assignment . . . which I signed having been led to believe it would be activated when the trust was dissolved at the time of my death"; "It was never the intention of my husband and/or me to transfer our assets prior to our deaths. The letter of July 10, 1997, is not valid as my husband was not competent at the time he signed. I was his Power of Attorney and did not sign or accept this agreement." For a statement to be considered defamatory, it "must convey an objective fact, as generally, a defendant cannot be held liable for expressing mere opinion." Daley v. Aetna Life Casualty Company, 249 Conn. 766, 795, 734 A.2d 112 (1999). A threshold issue, therefore, is whether the statements made by the defendant are statements of fact or mere opinion.
"A statement can be identified as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known . . . In a libel action, such statements of fact usually concern a person's conduct or character . . . An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact." (Citations omitted; emphasis in original.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 448 A.2d 1317 (1982). "This distinction between fact and opinion cannot be made in a vacuum, however, for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated . . . Thus, while this distinction may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." Id., at 111-12. Assuming the truth of the factual allegations and viewing the complaint in the manner most favorable to sustaining its legal sufficiency, Greco v. United Technologies Corp., 277 Conn. 347 (2006), the court finds the complaint to be sufficient. The language, fairly construed, alleges as fact, that the plaintiff knowingly caused an incompetent person to dispose of his assets without notice to the guardian.
For the aforesaid reasons, the Motion to Strike is Denied.