Opinion
No. CV06-5001769 S
February 29, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
I FACTS PROCEDURAL HISTORY
On November 24, 2006, the plaintiff, Edward J. Tuccio, filed a complaint against the defendant, attorney Anthony D. Corleto, alleging defamation. The defendant represented the town of Ridgefield and certain of its officials in two previous civil actions brought against them by the plaintiff in federal district court for deprivation of his first amendment and equal protection rights. This action stems from a statement made by the defendant to Jenny Cox, a reporter for the Ridgefield Press, when he was interviewed during the pendency of the civil actions against the town and its officials. The statement made was in regard to criminal charges that had previously been instituted against the plaintiff by the state of Connecticut. The defendant's comment was subsequently published in the Ridgefield Press on September 7, 2006 wherein he stated that the "criminal charges against [the plaintiff] were dropped — not dismissed, dropped — for impersonation and fraudulent activity." On September 14, 2006, a clarification was printed and the defendant stated as follows: "As far as I know, the charges were dropped . . . [but] I wasn't involved in the [criminal] case." The plaintiff had been charged in or around January 2003 for four counts of making derogatory statements involving banks in violation of General Statutes § 36a-55, four counts of criminal impersonation in violation of General Statutes § 53a-130 and four counts of making false or misleading statements in violation of General Statutes §§ 36a-53a and 36a-57. See ¶ 9 of Exhibit A of the defendant's memorandum in support of motion for summary judgment. After a trial on the issues presented, however, the plaintiff was in fact acquitted of all charges. See ¶ 12 of the defendant's memorandum in support of motion for summary judgment.
These actions were consolidated on January 3, 2007. The case is cited as Patriots Way, LLC v. Marconi, United States District Court, Docket No. 3:06CV874 3:06CV1302 (D.Conn., March 30, 2007).
The plaintiff alleges in his complaint that the statements by the defendant were false, malicious and/or reckless and as a proximate and intended result were published in a widely circulated publication in Ridgefield. The plaintiff further alleges that as a result of the defendant's actions he has suffered injury to his reputation, economic losses and emotional distress. On November 16, 2007, the defendant filed a motion for summary judgment on the grounds that (1) the statement made by the defendant is not actionable, as a matter of law, because it is not defamatory; (2) the statement made was substantially true; and (3) the action is barred by the incremental harm doctrine. The plaintiff filed a memorandum of law in opposition to the defendant's motion on December 24, 2007. The motion was heard on the short calendar on January 28, 2008.
II 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.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and inferences and conclusions it would draw from them." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, tinder applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
The defendant argues in his motion for summary judgment that his statement does not rise to the level of defamation because it is undisputed that the plaintiff faced criminal charges and saying that the charges had been dropped only improved the effect of the statement. The defendant further argues that even if his statements could be considered to be defamatory, he is protected by the incremental harm doctrine because the statement that charges had been dropped did not cause any appreciable harm in addition to the true statement that criminal charges had been instituted. Lastly, the defendant asserts that the statement was substantially true, which provides him with an absolute defense.
In response, the plaintiff contends that the significance of the defendant's statement deals with the differentiation he made between the words "dropped" and "dismissed" when he stated that the charges were "dropped — not dismissed, dropped." The plaintiff further contends that the accusation by the defendant that the plaintiff was guilty of a crime punishable by imprisonment is libel per se. Additionally, the plaintiff counters that there is federal jurisdictional case law which has recognized a distinction between the dropping of charges by a prosecutor and an acquittal by a jury. Lastly, the plaintiff contends that the context in which the defendant made the statement is significant in that his purpose was to demean the plaintiff's lawsuits against the defendant's clients.
The plaintiff cites Assegai v. Bloomfield Board of Education, 308 F.Sup. 65, 70-71 (D.Conn. 2004) for this contention.
"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.) Hopkins v. O'Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007).
"Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation . . . Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. [The plaintiff] is required neither to plead nor to prove it . . . Whether a publication is libelous per se is a question for the court." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 848, 888 A.2d 104 (2006). "Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . The plaintiff claims that the communication in the present case was actionable per se because it charged a crime. To fall within this category of libel per se, the defamatory statement must charge a crime which involves moral turpitude or to which an infamous penalty is attached . . . The modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment." (Citations omitted; internal quotation marks omitted.) Battista v. The United Illuminating Co., 10 Conn.App. 486, 492-93, 523 A.2d 1356, cert. denied, 204 Conn. 802, 525 A.2d 1352 (1987). The statement made by the defendant to Cox was published in the Ridgefield Press and is, thus, considered libel. The argument by the plaintiff that the communication is libel per se is unpersuasive because that portion of the defendant's statement that the plaintiff was charged with a crime is true. Consequently, the court continues its analysis in terms of a claim of libel against the defendant.
"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 proof 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.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982).
Upon examination of the statements complained of by the plaintiff, the court notes that though the fact that the plaintiff was charged with a crime is a true statement, he was in fact acquitted of all charges. Thus, the statement that the charges were dropped or dismissed is legally and substantively distinct from saying that the defendant was acquitted. A question arises as to whether a statement that the charges were "dropped" or "dismissed" could have a different effect on the reader than a statement that the plaintiff was "acquitted" of the charges. As a result, the court must now consider the meaning of the words in question.
"Words claimed to be defamatory are to be given their ordinary meaning and to be understood in the sense which hearers [or readers] of common and reasonable understanding would ascribe to them under all the circumstances surrounding the utterances at the time, and where their meaning is ambiguous, it is for the jury to determine what it was. In considering the surrounding circumstances you also consider any other words spoken at the time as bearing on the question of whether there was [defamation] per se or whether, although the words did in terms import [defamation] per se, they were so used as to make their ordinary meaning, under all the circumstances, mere abuse by an angry person." (Internal quotation marks omitted.) Yavis v. Sullivan, 137 Conn. 253, 260, 76 A.2d 99 (1950).
"Drop" is defined as "give up . . . abandon" and "dismiss" is defined as "to put out of judicial consideration." Merriam-Webster's Collegiate Dictionary (10th Ed. 1993). These terms have seemingly similar meanings, namely that the criminal charges against the plaintiff are no longer viable. A question arises, however, as to the insinuation made by the defendant when he specifically differentiated between the terms "dropped" and "dismissed." As stated above, an issue of fact encompasses any inference or conclusion that can be drawn from evidentiary facts. United Oil Co. v. Urban Development Commission, supra, 158 Conn. 379. The defendant's specific distinction of these words could be taken to imply that the reader should draw the conclusion that each has a different connotation.
At the time the statement was made, the defendant was commenting on the plaintiff and his involvement in the multiple civil suits against the town of Ridgefield and juxtaposed those comments with reference to the plaintiff's criminal matter. "Dropped," used alone, might suggest, as the defendant contends, that the prosecution did not have enough evidence to prosecute the claim. The manner and context employed by the defendant, however, could imply to a reader that there was some activity at work, possibly on the part of the plaintiff, which led to the prosecutor not pursuing the matter. This is particularly implied by the defendant stressing the word "dropped" twice to distinguish it from the word "dismissed," leaving the further implication being that there had been no effort to make a determination on the merits of the charge. "Dismissed" would be used to evaluate that there had been due consideration of the charges through a hearing or ruling on the merits by an impartial magistrate. Consequently, this court concludes that there remains an issue of material fact as to the meaning of the defendant's statement and whether a defamation has occurred.
Because of this conclusion the court need not address the defendant's third argument regarding the incremental harm doctrine.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is denied.
BY THE COURT