Opinion
No. CV01 038 02 79
May 14, 2003
MEMORANDUM OF DECISION
The plaintiff in this action, Jeffrey Lord, filed a four-count complaint against the defendant, Patricia Lord, on January 5, 2001, alleging a breach of a Separation Agreement between the parties (count one); violation of Connecticut General Statute § 52-570d (count two); negligent infliction of emotional distress (count three); and intentional infliction of emotional distress (count four). In her answer to the complaint the defendant denied the allegations and asserted special defenses including: 1) that the plaintiff tape recorded while in New York State; accordingly, counts two through four failed to state a claim upon which relief could be granted; and 2) the plaintiff failed to mitigate his damages.
On December 6, 2001, the defendant filed a Motion for Summary Judgment, which was granted by the court as to count one, but denied as to count two, three and four (Memorandum of Decision dated August 20, 2002, Gallagher, J.) ( 33 Conn.L.Rptr. 88). On February 3, 2002, this matter was tried before this court on counts two, three and four of the plaintiff's complaint.
FACTS
After hearing the testimony of and observing witnesses and reviewing the exhibits marked into evidence the court finds the following facts. The parties divorced on July 29, 1998. Custody of their daughter was awarded to the defendant who moved to New York State. The plaintiff was awarded visitation rights. Sometime in July or August 1998, the defendant, while living in New York, began tape recording conversations with the plaintiff, without his knowledge or consent, and without a notification or warning device. The defendant was concerned that the plaintiff was going to bring her to court over visitation with their daughter; accordingly, Ms. Lord tape-recorded her conversations with Mr. Lord. The defendant did not believe the tape recording was illegal in New York State.
In December of 1999, the defendant related to the plaintiff that she was recording their conversations and would use them in court, if necessary. The plaintiff voiced his protest concerning the tape recording, and again by letter dated April 16, 2000; however, the parties continued to communicate by phone. The tape recording continued until the initial complaint in this matter was filed in October 2000. Since that time, the parties have communicated primarily by fax. The relationship of the parties after their divorce has been fraught with disagreement and rancor.
DISCUSSION
Count two of the plaintiff's complaint is brought pursuant to Connecticut General Statute § 52-570d. The court finds, and the defendant does not contest, that the defendant's actions violated the terms of this statute. The defendant vehemently disputes that the provisions of Connecticut General Statute § 25-570d apply to the defendant, who was located in New York State when the recordings were made. Because the defendant was situated in New York when the conversations were recorded, Ms. Lord argues that New York law applies. It is not in dispute that such recordings are not illegal in New York.
Sec. 52-570d. Action for illegal recording of private telephonic communications
(a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use.
(b) the provisions of subsection (a) of this section shall not apply to:
(1) Any federal, state or local criminal law enforcement official who in the lawful performance of his duties records telephonic communications;
(2) Any officer, employee or agent of a public or private safety agency, as defined in section 28-25, who in the lawful performance of his duties records telephonic communications of an emergency nature:
(3) Any person who, as the recipient of a telephonic communication which conveys threats of extortion, bodily harm or other unlawful requests or demands, records such telephonic communication;
(4) Any person who, as the recipient of a telephonic communication which occurs repeatedly or at an extremely inconvenient hour, records such telephonic communication;
(5) Any officer, employee or agent of any communication common carrier who in the lawful performance of his duties records telephonic communications or provides facilities to an investigative office or criminal law enforcement official authorized pursuant to chapter 959a to intercept a wire communication;
(6) Any office, employee or agent of a Federal Communication Commission licensed broadcast station who records a telephonic communication solely for broadcast over the air;
(7) Any officer, employee or agent of the United States Secret Service who records telephonic communications, which concern the safety and security of the President of the United States, members of his immediate family or the White House and its grounds; and
(8) Any officer, employee or agent of a Federal Communications Commission broadcast licensee who records a telephonic communication as part of a broadcast network or cooperative programming effort solely for broadcast over the air by a licensed broadcast station.
(c) Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorneys fee.
The identical position was asserted by the defendant in propounding her Motion for Summary Judgment dated December 6, 2001. Argument on this motion was heard by the court and a Memorandum of Decision rendered on August 20, 2002. Judge Gallagher provided a thorough and scholarly analysis of the choice of law issue and held that under § 152 and § 6 of the Restatement (Second) of the Conflict of Laws, Connecticut law applies in this case. The defendant opines that this court is not bound by decision of Judge Gallagher and has the discretion to reconsider the question anew. Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A. 107 (1932). Further, the defendant argues that the plaintiff's burden of proof at trial is far greater than his burden in defending a motion for summary judgment. "[T]he Plaintiff simply had to establish a genuine issue of material fact to survive the Defendant's Motion for Summary Judgment, he now carries a more exacting burden of proof with respect to the allegations contained in his Complaint, thereby further vitiating the scope and effect of the decision of the Defendant's Motion for Summary Judgment." (Defendant's Brief, p. 10.)
Judge Gallagher's decision, however, was not based on a finding of a material issue of fact. Rather, because Connecticut law was controlling, Judge Gallagher ruled that "summary judgment cannot enter for the defendant." This court concurs with this analysis, and will apply it as the law of the case. The law of the case doctrine provides that when "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." Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). While a judge is not bound to follow a previous decision, and may consider an issue as if she was determining it for the first time, Santoro v. Kleinberger, 115 Conn. 631, 638, 163 A.107 (1932), "a court in a subsequent proceeding 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." State v. Hoffer, 174 Conn. 452, 462-63, 389 A.2d 1257 (1978).
At trial, the plaintiff established that the defendant surreptitiously recorded their telephone conversations. Accordingly, the court finds not only that the defendant violated General Statutes § 52-570d (a), but also that the enumerated exceptions of Section (b) are inapplicable to the facts of this case. The court finds in favor of the plaintiff on count two, and will proceed to address the issue of damages.
At trial, the plaintiff alleged that he was injured as a result of the defendant's statutory violation, i.e., the illegal recording of their telephone conversations. The plaintiff testified that upon learning that the defendant had been recording their telephone conversations, he felt "duped." He also testified that he suffered gastrointestinal problems, and ultimately had to speak with a psychologist on more than one occasion. Further, he testified that he had to warn his family members about their phone conversations possibly being recorded.
"It is well established that 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." (Internal quotation marks omitted.) Powers v. Olsen, 252 Conn. 98, 105, 742 A.2d 799 (2000). As regards the plaintiff's testimony, the court does not credit the plaintiff's assertion that the defendant's statutory violation caused the plaintiff sleepless nights and gastrointestinal problems. Even if the plaintiff had in fact suffered such problems, they more likely were caused by the other numerous problems transpiring in the plaintiff's life, including other litigation and hostilities with his ex-wife, visitation conflicts, and relocation. Additionally, the plaintiff did not offer evidence to corroborate the alleged meetings with the psychologist, and did not submit any other evidence of damage. The court finds, therefore, that the plaintiff did not prove, by a preponderance of the evidence, that he suffered actual damage as a result of the defendant's statutory violation. Accordingly, the court awards the plaintiff $1.00 as nominal damages, leaving only the issue of whether the plaintiff is entitled to attorneys fees and costs.
In count two of his complaint, the plaintiff alleges that he is "aggrieved" by the defendant's illegal recording of their telephone conversations, and seeks monetary damages, attorneys fees and costs, and such other relief as this court deems applicable. In his trial brief, however, the plaintiff argues exclusively for an award of attorneys fees and costs. The defendant argues, to the contrary, that the court does not have the statutory authority to award attorneys fees to the plaintiff without a showing of actual damages, however, she does not cite case law to support this contention. The pertinent issue, therefore, is whether the plaintiff is entitled to an award of attorneys fees under § 52-570d (c) absent a showing of actual damages.
The plaintiff's original complaint contained a fourth prayer for relief that is no longer applicable given Judge Gallagher's ruling on the defendant's motion for summary judgment.
Section 52-570d (c) provides: "Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorneys fee." (Emphasis added.) The critical words in § 52-570d (c) are "together with." The New College Edition of the American Heritage Dictionary of the English Language (1981) defines the word "together" as "[i]n or into a single group, mass or place"; "[a]gainst or in relationship to one another"; or "[r]egarded collectively." It goes on to state: " Together with is often employed following the subject of a sentence or clause to introduce an addition." (Emphasis in original.) The Black's Law Dictionary (5th Ed. 1989) defines "together" as "[i]n union with, along with." Thus, implicit in the legislature's employment of the phrase "together with" is the symbiotic relationship between "damages" and "attorneys fees." The legislature says as much. During the Senate's debate on "An Act Concerning the Recording of Telephone Conversations," Senator Blumenthal stated: "[This act] does provide as a remedy . . . the provision that the party that is damaged can seek civil damages, including attorney's costs." (Emphasis added.)
Further, Section 52-570d (c) is phrased in the conjunctive rather than the disjunctive. The phrase "together with" ordinarily implies the conjunctive similar to the word "and." See: Information Systems Networks v. Kansas City, Mo., 147 F.3d 711, 714 (8th Cir. 1998) ("`[t]ogether with' is a conjunctive phrase"); Meadows Country Club, Inc. v. Unnever, 702 So.2d 586, 588 (Fla.App. 2d Dist. 1997) (noting the conjunctive nature of phrase beginning with "together with"); Trust Co. of Columbus v. Cowart, 248 Ga. 691, 286 S.E.2d 23, 24 (1982) ("The first part of the paragraph . . . is a conjunctive statement beginning with the phrase `together with' "). Thus, the legislature's use of the conjunctive "together with" indicates that an award of attorneys fees is dependant upon a showing of actual damages. See Penn v. Irizarry, 220 Conn. 682, 687, 600 A.2d 1024 (1991) ("[t]he use of [a] conjunctive . . . indicates that both conditions must be fulfilled").
Other jurisdictions, having interpreted the words "together with," have come to a similar conclusion. See Gilmore v. Mulvihill, 109 Mont. 601, 98 P.2d 335 (1940); Bachovchin v. Stingley, 504 N.W.2d 288 (Minn.App. 1993). Gilmore v. Mulvihill, supra, 336, involved "an action to recover $285 paid on an executory contract whereby plaintiff agreed to purchase 285 head of five-year-old ewes from the defendants, and for damages for breach of such contract by the defendants, with interest on the amounts demanded and costs of suit." The jury found for the plaintiff, awarding him $114 in damages, but made no mention of the $285 down payment made by the plaintiff. Id., 336-37. The court noted the verdict's contradiction of the jury instruction, which stated in relevant part: "the plaintiff is entitled to recover from the defendants the money paid to the defendants as a part payment of the purchase price together with the damages, if any, sustained by him by reason of the non-delivery of [the] sheep." Id., 340. The court concluded that "[t]ogether, in the sense used in the instruction, means, [i]n union with, along with . . . The instruction as to finding damages is made contingent upon the finding that plaintiff was entitled to recover the advance payment of $285, and if plaintiff was not entitled to recover such advance, he could not, under the instruction, establish damages." (Citation omitted; internal quotation marks omitted.) Id., 341.
In Bachovchin v. Stingley, supra, 504 N.W.2d 288, the issue was whether, pursuant to Minn.Stat. 325E.13-16 (prohibiting acts relating to odometers), the plaintiff was entitled to costs and disbursements, including attorneys fees, when the plaintiff did not suffer any harm or damage as a result of the defendant's statutory violation. The statute reads in part: [a]ny person injured by a violation of sections 325E.13 to 325E.16 shall recover the actual damages sustained together with costs and disbursements, including a reasonable attorneys fee . . ." (Emphasis in original.) Bachovchin v. Stingley, supra, 290, quoting Minn.Stat. § 325E.16, subd. 3. The court stated that "the phrase `together with' suggests that an award of damages is a prerequisite for any award of costs, disbursements, or attorneys fees"; Bachovchin v. Stingley, supra, 290; and concluded, therefore, that "[a] person who sustains no actual damages is not entitled to an award of costs and disbursements, including attorneys fees, under Minn.Stat. § 325E.16, subd. 3." Id., 291.
That the legislature intended to make an award of attorneys fees dependent upon a showing of actual damage is further supported by the language the legislature employed in a related statute. General Statutes § 52-570b, which provides a cause of action for computer-related offenses, states that "[i]n any civil action brought under this section, the court shall award to any aggrieved person who prevails, reasonable costs and reasonable attorneys fees." General Statutes § 52-570b (e). The legislature was explicit in its instruction that a prevailing party — not just a party that suffered actual damages — is entitled to attorneys fees. See Blue Cross Blue Shield of Connecticut v. Dimartino, Superior Court, judicial district of New Haven, Docket No. 300642 (July 2, 1991, Schaller, J.) (holding that § 52-570b (e) provides for award of attorneys fees even if plaintiff suffered no actual damages). Hence, had the legislature intended to make an award of attorneys fees independent of a showing of actual damage, it had at its disposal language to that effect in § 52-570b (e). Rather, the legislature drafted § 52-570d (c) in the conjunctive, which suggests that the court is to award attorneys fees only as an embellishment of the plaintiff's actual damages.
Thus, in accordance with § 52-570d (c), before a court can award attorneys fees, the plaintiff must prove that he was actually damaged by the defendant's statutory violation. Having already found that the plaintiff did not prove, by a preponderance of the evidence, that he suffered actual damage, the court finds not only that the plaintiff is not entitled to attorneys fees, but also that the plaintiff cannot prevail on counts three and four.
The same is true for the award of attorneys fees in federal civil rights actions pursuant to 42 U.S.C. § 1988, the Civil Rights Attorneys Fees Awards Act. In Farrar v. Hobby, 506 U.S. 103 (1992), the United States Supreme Court held that where a claimant is able to establish a violation of the act, but cannot prove actual damages, attorneys fees should not be awarded. Because the basic purpose of damage award under a 42 U.S.C. § 1983 Civil Rights Action should be to compensate persons for injuries caused by the deprivation of constitutional rights, the Court concluded "no compensatory damages may be awarded in a § 1983 suit absent proof of actual injury." Id. at 112.
Judgment may enter in favor of the plaintiff on count two in the amount of $1.00.
WOLVEN, J.