Opinion
CV146045374S
02-22-2017
Virginia Silano v. George Cooney et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael Hartmere, Judge Trial Referee.
The plaintiff, Virginia Silano (" Silano"), filed a two-count complaint against the defendant, George Cooney (" Cooney"), individually and as the owner/member of Hemlock Manor, LLC (" Hemlock Manor"), on July 21, 2014, charging malicious prosecution. The plaintiff filed an amended complaint dated February 20, 2015, which charges the defendant Cooney in four counts. Count one charges, malicious prosecution as to George Cooney d/b/a Hemlock Manor, LLC; count two charges malicious prosecution as to Cooney; count three charges libel per se as to Cooney, individually; and count four charges slander per se as to Cooney, individually. The complaint and amended complaint were signed by the plaintiff, Virginia Silano, pro se. The defendants filed an answer and special defenses dated October 13, 2015. This matter was tried to the court on September 22, September 27 and September 28, 2016. At the conclusion of the plaintiff's case, the defendants orally moved to dismiss all counts in the complaint and the court reserved decision on that motion. The defendant then rested. Thereafter, the parties filed post-trial briefs and reply memoranda.
FINDINGS OF FACT
Based on the testimony and evidence presented during the trial, the court makes the following findings.
The plaintiff and the defendant are both members of the Pinewood Lake Association (" PLA") and residents of Trumbull, Connecticut. Silano, a college graduate with two bachelor's degrees, is a litigation paralegal who works for various attorneys. Cooney, a former New York City police officer, is self-employed as the owner/operator of the defendant Hemlock Manor. Cooney, at all relevant times, was the president of the board of governors of the PLA, of which Silano also was a member until June 2011. The PLA is a neighborhood association of approximately 350 to 400 families which manages the lake affairs, stages plays, cooking classes, and children's activities, among other things. The PLA board of governors meets on the first Thursday of each month and all members of the PLA may attend the meetings.
At the time of the events at issue here, Cooney's business, Hemlock Manor, was under contract by at least one entity (Winthrop Douglas, Inc.) that does business with Pepsi Cola Bottling Company of New York (PCBNY) and he also worked for Pepsi Co, Inc. in New York. Hemlock Manor would conduct " audits" /investigations on corporations and locations where Pepsi products were sold. For Pepsi Co. New York, Cooney would simply observe surreptitiously and record the codes on the product. When conducting an audit at a particular location for Winthrop Douglas, Cooney would purchase, again surreptitiously, varying amounts of soda (Pepsi products) in order to recover the codes on those products. He would later be reimbursed by Winthrop Douglas for those purchases. Cooney would also purchase soda products on his own in order to procure additional accounts. While there was no " average day, " Cooney visited approximately 30 locations per day to make these purchases. As a result of these activities, Cooney would accumulate substantial amounts of soda. Cooney donated much of his accumulated soda to various charitable organizations including shelters in New York, where he conducted his business. He also stored fairly substantial amounts of soda in his garage at his home in Trumbull. One neighbor described the garage as having cases of soda stacked six feet high, while Cooney stated that he would keep ten or more cases in the garage. He clearly stated that he did not sell any of the soda. The evidence clearly established that Cooney did not sell any of the soda. He donated all of the product to various charitable organizations and to the PLA.
In 2009, while president of the board of governors of the PLA, Cooney offered to stock a soda machine with soda from his stockpile, free of charge, if the association purchased a soda machine for the patio area near the beach. The board of governors approved and the PLA did purchase a machine. Cooney began stocking the soda machine with Pepsi products obtained through his line of work. Cooney stocked the soda machine with approximately two cases of soda per week during the summer months. Cooney also donated soda for functions at the lake, but soda placed in the machine by Cooney was for resale. The PLA sold the soda for fifty cents each, which was pure profit to the PLA. The PLA financial statement for calendar year 2009 reflects income of $1, 093.54 from soda, and the 2010 financial statement shows $1, 955.83 income from soda. There was no income to the PLA from the sale of soda in 2011 for reasons which follow.
The plaintiff had complained to Cooney in 2010 about Pepsi cans littering the area around her home and that the Pepsi cans could not be returned for deposit in Connecticut. The plaintiff testified that she made calls to Pepsi in 2011 and made a complaint to Pepsi concerning the sale/resale by the defendant Cooney of Pepsi in Connecticut when the product had originated in New York. The plaintiff also complained that the soda was expired, and that the cans were dirty and not redeemable in Connecticut. She called Pepsi in Waterbury first and thereafter the legal department in New York. Silano was concerned about the redistribution and spoke to PCBNY, the bottler, with whom Cooney conducted business through Winthrop Douglas. Silano also left the name of another board member with PCBNY as a contact person. Silano made similar complaints to the State of Connecticut Department of Environmental Protection in June 2011.
In May 2011 Cooney was aware that Silano had been involved in several incidents which had led to her arrest, including one incident which involved pointing a firearm at another board member on February 8, 2011 at the PLA clubhouse. On May 31, 2011 Cooney called a PLA meeting for June 9, 2011 concerning the suspension or expulsion of the plaintiff from the PLA. Before the start of the meeting, the plaintiff resigned as a member of the PLA.
Silano was not convicted on any of these charges, including the firearms charge, although at trial during cross examination, Silano's husband, Gregory Marconi, stated " it was my gun."
On June 2, 2011, Cooney learned from Marc Aliberti (" Aliberti"), the president of Winthrop Douglas, that Silano had been making complaints and negative comments to officials at PCBNY about Cooney's selling of Pepsi products in Connecticut, the condition of the products and Cooney's manner and behavior while doing so. Cooney prepared a statement dated June 9, 2011, outlining what Aliberti had told him the plaintiff said and brought it to the Trumbull Police Department in order to make a record of it. Cooney did not ask for Silano's arrest, although he knew she had a history of similar behavior which he considered a pattern of bad behavior. A detective at the Trumbull Police Department told Cooney that if the behavior continued, Cooney should return to the police department.
On July 28, 2011 Cooney received another telephone call from Aliberti, who informed Cooney that Silano had again contacted PCBNY and provided them with further false allegations that Cooney is continuing to misrepresent their company by selling their product to " every store in Trumbull" and that Cooney continued to represent their company in an otherwise negative manner. Cooney gave a written statement to the Trumbull Police Department concerning the foregoing. Cooney stated that Silano's false allegations have caused a threat of cancellation of his employment services with the Pepsi organization. Cooney stated that Silano's contacts and statements " serve no other legitimate purpose other than to repeatedly annoy and alarm myself and my business associates to the point of unnecessary disruption and threat of cancellation of services. Loss of this contract could result in a significant loss of revenue to my corporation, my contractors and my family."
Detective Kevin Hammel knew Silano from other complaints filed with the Trumbull Police Department. After he took Cooney's sworn statement on August 5, 2011, Hammel opened a criminal investigation. As part of his investigation Hammel attempted, unsuccessfully, to interview the plaintiff. Detective Hammel did speak with Aliberti several times during the course of the investigation and received a written statement from Aliberti on October 18, 2011. In his affidavit in support of an application for an arrest warrant for the plaintiff, Detective Hammel swears that in Aliberti's written statement to the Trumbull Police Department Aliberti stated:
. . . Winthrop Douglas conducts business with both PCBNY and Hemlock Manor, LLC. Aliberti has been and continues to be a contact and business associate of both organizations. Hemlock Manor, LLC is contracted in the scope of audits and investigations, and does not represent Aliberti, or the PCBNY in the scope of sales, customer service or any other public or product interaction.
Aliberti continues that on June 2, 2011, a representative from PCBNY notified him that they have been contacted by a person named Virginia Silano, whom was complaining that George Cooney was misrepresenting them by selling expired and otherwise unfit Pepsi products and misrepresenting himself, while selling Pepsi products in a negative manner by cursing and being rude to customers in and around the area of Trumbull, Connecticut. Virginia (Silano) left her home telephone number as a return contact and there were several communications between Virginia and PCBNY before the application was deemed to be unsubstantiated. PCBNY expressed to Aliberti, their displeasure with these allegations and discussed possible ramifications.
On July 28, 2011, on a separate occasion, Aliberti was again contacted by PCBNY to inform him that they were again contacted by Virginia Silano. Virginia once again complained that George Cooney was misrepresenting the Pepsi organization by selling expired and otherwise unfit Pepsi products " all over Trumbull" and she provided a negative character reference. Virginia left her home phone number as a return contact and there were several communications between Virginia and PCBNY. This time, the representative at PCBNY asked Virginia to provide further proof of her allegations which she was unable to provide. PCBNY, again expressed their displeasure of Virginia's continued allegations and further discussed a termination of contract with Hemlock Manor, LLC, due to Virginia's continuing allegations. Aliberti also stated that he has discussed these incidents with representatives of the PCBNY and can confirm that these events have put the future of their relationship with Hemlock Manor, LLC in jeopardy.
The above statement was received via email from Mr. Aliberti, as he lives and works out of state and was unable to travel the Trumbull Police Department to offer the statement in person. It should be noted that the affiant had several telephone conversations with Mr. Aliberti before and after this statement was sent to the affiant and the content of his email is consistent with our conversations.
While this investigation was ongoing, another Trumbull Police Department detective received a complaint from George Cooney's wife that Silano attempted to run her down with an automobile. Additionally, Silano was arrested on October 13, 2011 for a false report of childabuse (to DCF) based on a complaint from another PLA board of governors member.
Silano's only conviction arose from a violation of a protective order.
Based on the facts set forth in Detective Hammel's affidavit, a Superior Court judge found probable cause and issued a warrant for the arrest of Silano on a charge of harassment in the second degree in violation of Connecticut General Statutes, section 53a-183 on November 22, 2011. After many court appearances, this charge against Silano ultimately was dismissed on October 18, 2013. This lawsuit followed.
Silano also has filed approximately thirteen other similar lawsuits against various board members of the PLA, the PLA, and Trumbull police officers and detectives which contain similar allegations and seek similar damages.
Other facts will be supplied as necessary.
LEGAL DISCUSSION
I. Malicious Prosecution
Count one of the amended complaint charges the defendant, George Cooney d/b/a, Hemlock Manor, LLC with malicious prosecution, and count two charges Cooney individually with malicious prosecution. Connecticut courts have long and consistently applied the following test:
An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than bringing an offender to justice. Brodrib v. Doberstein, 107 Conn. 294, 296-98, 140 A. 483 (1928); Bhatia v. Debek, 287 Conn., 397, 404, 948 A.2d 1009 (2008).
In the present case, the plaintiff proved that the criminal proceeding in which she was charged with harassment of the defendant terminated in her favor with a dismissal of the charge.
However, the plaintiff failed to prove the remaining essential elements of her claims of malicious prosecution by a preponderance of the evidence. The plaintiff did not prove that the defendant initiated or procured the institution of the criminal proceedings against the plaintiff. " A private person can be said to have initiated a criminal proceeding if he has insisted that the plaintiff should be prosecuted, that is, if he has brought pressure of any kind to bear upon the public officer's decision to commence the prosecution . . . But a private person has not initiated a criminal proceeding if he has undertaken no more than to provide potentially incriminating information to a public officer." (Citations omitted.) McHale v. W.B.S. Corp., 187 Conn. 444, 448, 446 A.2d 815 (1982). In the present case, the defendant Cooney did provide potentially incriminating information to the Trumbull Police Department, but Detective Hammel did a thorough follow-up investigation, including obtaining Aliberti's statement and numerous conversations with Aliberti, both prior and subsequent to receiving the statement, which led to the plaintiff's arrest. There was no credible evidence introduced that Cooney brought pressure of any kind upon Detective Hammel or anyone else in the Trumbull Police Department to prosecute the plaintiff. Cooney's statements, coupled with and corroborated by Aliberti's statements, clearly established probable cause for the charge against the plaintiff. No credible evidence was introduced, which showed that the defendants acted with malice, for a purpose other than that of bringing an offender to justice. The evidence demonstrated that Cooney simply wanted the harassment to stop, as further evidenced by the protective order. Thus, the plaintiff has failed to prove the malicious prosecution charges contained in counts one and two of her amended complaint.
II. Defamation
In counts three and four of her amended complaint, Silano seeks damages for libel per se and slander per se against Cooney based on his June 9, 2011 and August 5, 2011 oral and written statements to the Trumbull Police Department. Libel and slander are forms of defamation; libel is written defamation and slander is oral defamation. The elements of a claim for defamation are as follows:
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. (Citations omitted; internal quotation marks omitted.) Gambardella v. Capital Healthcare, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009).
[L]ibel is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business, and is of such a nature that it is calculated to cause injury to one in his profession or business . . . Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence . . . Libel or slander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached. (Citations omitted; internal quotation marks omitted.) Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987).
In the present case, the plaintiff's libel per se and slander per se claims are based on Cooney's statements to the Trumbull Police Department that the plaintiff contacted his business associates and provided a negative character reference; that Silano falsely stated that he acted in a negative manner while selling Pepsi products; that she falsely complained that he sold outdated and dirty Pepsi products; falsely complained that he was selling Pepsi products to " every store in Trumbull"; and falsely alleged that he was misrepresenting his business associates. The plaintiff cannot prevail on her libel per se and slander per se claims because Cooney's statements do not charge the plaintiff with improper conduct in her profession, are not of a nature to cause injury to her profession, do not charge her with incompetence and do not charge her with a crime of moral turpitude to which an infamous penalty is attached. To an attorney or person trained in the law, Cooney's statements do form the basis for a charge of harassment in the second degree in violation of Connecticut General Statutes, section 53a-183, which is a class C misdemeanor punishable by three months incarceration and/or a fine of $500. Harassment in the second degree is not a crime of moral turpitude.
Similarly, the plaintiff's claims of libel per se and slander per se fail because Cooney's statements were not defamatory. " 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 . . ." (Citations omitted.) Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). The actual words which Cooney used do not accuse the plaintiff of a crime or other misconduct. The words do not charge Silano with improper conduct in her profession and are not of a nature to cause injury to her profession, nor do they charge her with incompetence. The statements impugn Cooney's integrity, and are defamatory and disparaging to Cooney, not to the plaintiff.
Importantly, plaintiff's defamation claims fail because Cooney's statements to Detective Hammel and the Trumbull Police Department were truthful, based upon the credible evidence. There was no credible evidence introduced at trial, which supported Silano's allegations.
In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense . . . Contrary to the common-law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification . . . It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments, which do not add to the sting of the charge or introduce any matter by itself actionable . . . The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced. (Citations omitted; internal quotation marks omitted.)Mercer v. Cosley, 110 Conn.App. 283, 304, 955 A.2d 550 (2008).
Here, Cooney testified and Detective Hammel confirmed that Aliberti had in fact made the statements complained of to Cooney. Silano failed to introduce any evidence to the contrary. It is undisputed that Aliberti made the statements to Cooney and verified them to Detective Hammel. Thus, Cooney's statements to the Trumbull Police Department were true.
Finally, Silano cannot prevail on her claims because Cooney's statements are protected by a qualified privilege afforded to a complaining witness. Gallo v. Barile, 284 Conn. 459, 477, 935 A.2d 103 (2011). In order to overcome the privilege, Silano had to prove that Cooney made his statements with malice. Mara v. Otto, 127 Conn.App. 404, 409, 13 A.3d 1134 (2011). In Mara, the Appellate Court stated:
[T]he malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice. Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth . . . Malice in fact is sufficiently shown by proof that the publications were made with improper and unjustifiable motives. (Internal quotation marks omitted; citations omitted.)Id. at 409.
In the present case, the plaintiff did not prove that the defendant's statements to the Trumbull Police Department were made with malice. Indeed, the court has found that the statements made by the defendant were truthful. Cooney simply relayed to the Trumbull Police Department statements that had been made to him by Aliberti, which were not refuted by the plaintiff. Additionally, plaintiff admitted that she had contacted Pepsi and PBCNY to complain about the defendant. Moreover, Detective Hammel testified that Cooney did not seek the plaintiff's arrest, which negates any conceivable inference of malice, and Cooney testified that he was concerned that Silano's conduct would adversely affect his business relationships. Aliberti also was concerned that Silano's conduct would affect the business relationships. Since malice was not proven, Cooney's statements are protected by the qualified privilege afforded to a complaining witness.
The court finds, based on the credible evidence presented at trial, that the plaintiff has failed to sustain its burden of proof as to the defamation claims contained in counts three and four.
Given these findings, it is unnecessary for the court to address the plaintiff's various claims of damages, and the defendants' motion to dismiss.
CONCLUSION
Based on all of the foregoing, this court finds that the plaintiff has failed to prove her claims of malicious prosecution and defamation against the defendants as contained in counts one through four of the amended information.
Judgment for the defendants on all counts.