Opinion
No. CV 095029383
March 10, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#105)
The defendant, Anne Faraclas, filed a motion for summary judgment (#105) arguing that she is entitled to judgment as a matter of law because her statements during a meeting were not defamatory. The plaintiff, Kimberly Sweeney, opposes the motion in an Objection and a Memorandum in Opposition (#107), contending, among other things, that there are issues of fact in dispute which preclude the granting of the motion. For reasons more fully set forth below this court denies the motion for summary judgment.
The correct spelling of the defendant's last name is Faraclas not Faracalas. It is spelled incorrectly in the complaint.
On May 28, 2009, the plaintiff filed a one-count complaint sounding in defamation against the defendant. In the complaint, the plaintiff alleges that she was employed by Sawyer School in Hamden as a business and computer teacher, and that she also acted as the student council advisor at Sawyer. The complaint alleges that the defendant was the director of the school. According to the plaintiff's complaint, on June 24, 2008, at a student council meeting, the defendant, in the presence of others, "maliciously and with intent to cause a belief that [the] Plaintiff was a dishonest and unfit person to engage in her profession as an accounting teacher, said the following about the Plaintiff: (1) `There was a check made out to your company'; (2) `I do not understand why we would be writing a check out to your company'; (3) `Where is the money that was made from the fundraiser?'; (4) `To me this appears as though you are a thief and an embezzler.'" The plaintiff characterizes all of these statements as false, untrue and defamatory. Because of these statements, the plaintiff claims that she has suffered damages to her profession, her reputation, her credit and her standing in the community.
On August 12, 2009, the defendant filed an answer, two special defenses, and a motion for summary judgment. In support of the motion for summary judgment, the defendant attached a memorandum of law and two exhibits. On October 20, 2009, the plaintiff filed an objection and a memorandum of law in opposition to this motion. The court heard oral arguments at short calendar on November 23, 2009.
In her first special defense, the defendant alleges that statement one is "a true statement and, therefore, cannot form the basis of a defamation claim." In the second special defense, the defendant alleges that the remaining statements are "expressions of opinion rather than statements of fact, and, therefore, cannot form the basis of a defamation claim."
"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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 354-55, 963 A.2d 640 (2009).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008). "Summary judgment in favor of the defendant is properly granted if the defendant in its motion raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
"Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). "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.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). "In a civil action for [defamation], where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly [defamatory] statement of fact provides an absolute defense." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112, 437 A.2d 1317 (1982).
I.
"There was a check made out to your company,"
The defendant first moves for summary judgment on the ground that the plaintiff did not "present sufficient evidentiary support to establish the requisite elements of her claim of defamation." In particular, the defendant argues that statement one is truthful in its entirety, and, thus, it is not actionable as a defamatory statement. In support of this contention, the defendant refers the court to a website, www.myfvo.com; and attaches copies of negotiated checks numbers 537 and 578 from the bank account of the student council made payable to "My Virtual Assistant." As noted earlier, in her complaint, the plaintiff claims that all of the defendant's statements are false and untrue.
Even though the plaintiff offered no evidence regarding whether or not she in fact owned and operated Fundamental Virtual Office or whether or not she received money from the Student Council, this court finds that she did not need to, because the defendant failed to establish these facts and therefore the burden of production never shifted to her. First, although the defendant claims that it is an undisputed fact that the plaintiff owned and operated the Fundamental Virtual Office, she did not attest to this fact in her affidavit. Ms. Faraclas makes no mention, at all, to the Fundamental Virtual Office in her affidavit. Instead, Ms. Faraclas' attorney refers this court to a website, www.mvfvo.com. which he claims proves the ownership of the company by the plaintiff. The website did not exist when the court searched for it. Even if it had, whether an internet website source, alone, would have been sufficient to establish legal ownership or shift the burden to the plaintiff has not been established, nor has the defendant cited any legal authority for this proposition. Thus, the defendant failed to establish that the plaintiff owned Fundamental Virtual Assistant and the burden never shifted to the plaintiff to dispute this claim. Second, although the defendant argues that it is undisputed that the Student Council paid funds to the plaintiff, once again, she failed to attest to any facts related to this claim. Her affidavit makes no mention of any checks. And, the defendant offered no proof that the checks were given to or cashed by the plaintiff. The only thing the defendant produced in support of her argument were copies of two checks made out to "My Virtual Assistant." Neither check contains the plaintiff's name, or her signature. And, neither check is made out to "Fundamental Virtual Assistant," the company which the defendant claims was owned and operated by the plaintiff.
Accordingly, this court cannot find that the statement "there was a check made out to your company," is a true statement.
II.
"I do not understand why we would be writing a check out to your company"
"Where is the money that was made from the fundraiser?"
"To me, this appears as though you are a thief and an embezzler"
The defendant argues that there is no way to reasonably construe statements two and three as defamatory. The fourth statement, the defendant claims is clearly a statement of opinion. On the other hand, the plaintiff argues that this court should make a determination, as a matter of law, that these statements, when that taken together and in context, are or may be defamatory.
In order for a statement to be actionable as defamation it must be one of fact and not opinion. In other words, "the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). "A statement can be defined 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 [defamation] 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., supra, 188 Conn. 111.
"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 all 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." (Citations omitted; internal quotation marks omitted.) Id., 111-12.
Merely because a statement is phrased as an opinion does not, however, mean that it is not actionable. Connecticut courts have generally found that one must look at the context and the implications of the statement when determining if it was actionable or not. See, Shea v. Waterbury, Superior Court, judicial district of New Britain, Docket No. CV 08 5007926 (February 20, 2009, Tanzer, J.) ("A defamatory communication . . . may consist of a statement in the form of an opinion, [and] a statement of this nature is actionable . . . if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. Restatement (Second), Torts, Expressions of Opinion, § 565, p. 170 (1976)"); see also Kimber v. Bancroft, Superior Court, judicial district of New Haven, Docket No. CV 01 0455708 (June 25, 2004, Corradino, J.); Mendez v. Vonroll Isola U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 02 0462113 (April 8, 2004, Corradino, J.).
The Supreme Court of Connecticut has never explicitly stated whether it is for the court or the trier of fact to determine whether an allegedly defamatory statement is one of fact or opinion. However, there is support for the proposition that in Connecticut this determination is one of fact for the trier of fact. See, e.g., Daley v. Aetna Life Casualty Co., supra, 249 Conn. 795-96 (jury asked to determine whether allegedly defamatory statements constituted statements of opinion or fact). See, also Kimber v. Bancroft, supra, Superior Court, Docket No. CV 01 0455708 (" Daley seems to indicate" that the determination whether an allegedly defamatory statement is one of fact or opinion "is a question for the jury"). Compare, Mendez v. Vonroll Isola U.S.A., Inc., supra, Superior Court, Docket No. CV 02 0462113 (Although the court acknowledged "that the determination as to whether an alleged defamatory utterance is one of fact or mere opinion is a question for jury," it concluded that "where no supportable evidence is presented by the party contending that a statement of fact is involved, surely a court can hold as a matter of law that a question for the jury is not presented"). Additionally, the Connecticut Supreme Court has noted that interpreting innuendo is a matter for the trier of fact. Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 112 n. 5. ("Where the court cannot reasonably characterize the allegedly [defamatory] words as either fact or opinion because, for example, innuendo is present, this becomes an issue of fact for the jury, which would preclude a directed verdict.")
In the present case, the three statements taken together could reasonably be taken as accusations of wrong-doing. Therefore, even though statements two and three are posed as kinds of questions, and even though statement four is prefaced by the words "to me," these statements, in context, could be construed to be defamatory. Thus, the determination of whether they are defamatory or not should be left to the trier of fact.
In reaching this conclusion, the court considers the reasoning of other courts confronted with statements which include prefatory and qualifying language. This holding applies the reasoning in Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1, 18 (1990), in which the Supreme Court stated that: "If a speaker says, `In my opinion John Jones is a liar,' he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, `In my opinion Jones is a liar,' can cause as much damage to reputation as the statement, `Jones is a liar.' . . .'[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.'" Accord, Dubinsky v. United Airline Master Executive Council, 303 Ill.App.3d 317, 326, 708 N.E.2d 441, 236 Ill. Dec. 855, cert. denied, 184 Ill.2d 555, 714 N.E.2d 526, 239 Ill.Dec. 607 (1999) (citing to this language favorably from Milkovich). See also, Peroutka v. Streng, 116 Md.App. 301, 324-25, 695 A.2d 1287 (Maryland App.Ct., 1997).
The New York Court of Appeals, in Gross v. New York Times Co., 82 N.Y.2d 146, 155, 623 N.E.2d 1163, 603 N.Y.S.2d 813 (1993) also discussed how to interpret such statements. It held that "an accusation of criminality that, read [or heard] in context, is set forth as a fact is not transformed into a nonactionable expression of opinion merely because it is couched in the form of [an] opinion." Id. The court explained "[t]o illustrate if, the statement `John is a thief' is actionable when considered in its applicable context, the statement ` I believe John is a thief' would be equally actionable when placed in precisely the same context. By the same token, however, the assertion that `John is a thief' could well be treated as an expression of opinion or rhetorical hyperbole where it is accompanied by other statements, such as `John stole my heart,' that, taken in context, convey to the reasonable reader that something other than an objective fact is being asserted." Id. The court advised "[i]n all cases, whether the challenged remark concerns criminality or some other defamatory category, the courts are obliged to consider the communication as a whole, as well as its immediate and broader social contexts, to determine whether the reasonable listener or reader is likely to understand the remark as an assertion of provable fact . . ." Id.
III.
In conclusion, in the present case, the court concludes that the first statement is one which is factually in dispute. Therefore, it does not entitle the defendant to judgment. The next three statements, standing alone, might reasonably be viewed as non-actionable. But, when taken together and in context, one might reasonably view them either as nonactionable or as defamatory statements accusing the plaintiff of criminality or wrong-doing. Therefore, the court finds that the defendant is not entitled to summary judgment as a matter of law, because a trier of fact must make the ultimate determination of whether the statements are defamatory, based upon the evidence introduced at trial.