Opinion
No. CV 03 0193922 S
April 22, 2004
MEMORANDUM OF DECISION
This is a Seven-Count complaint based on allegations against both defendants, the first Four Counts directed against the defendant, Infopulse, alleging defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and a CUTPA claim (section 42-110a et seq.). The last Three Counts are against the defendant, Lee Fleming (Fleming) alleging defamation, intentional infliction of emotional distress and negligent infliction of emotional distress. In response, the defendants filed a special defense alleging the truth of the statements allegedly made by them as well as a counterclaim for breach of contract for failure to pay their bill of $264.00.
In the plaintiff's brief she claims the alleged defamatory statements made by the defendants were "libelous" per se. Slander is defamation by speech and libel is defamation by writing. If libel per se exists the plaintiff is entitled to recover damages and need not prove specific damages. In this regard, the plaintiff has waived her claim for economic damages.
The mere fact of a slanderous utterance per se presumes malice on the part of the defendant and necessarily imports the award of damages. A common form of slanderous per se is falsely charging a person with committing a crime of moral turpitude. Of course, the burden of proof is on the plaintiff to prove the truth of her allegations by a fair preponderance of the evidence. Craney v. Donovan, 95 Conn. 482, 485 (1920). If the plaintiff establishes that the statement(s) were made by the defendants and published to others, and if it falls within the definition of defamation per se, then the burden shifts to the defendants to prove any defenses they may have, such as truth or privilege. The plaintiff argues that the defendants made the statements alleged in her complaint, published them to others and that those statements were defamatory per se, and that she is entitled to damages because the defendants have not proven them truthful as a defense or that the alleged statements were merely "rhetorical hyperbole" or lusty and imaginative expressions of contempt.
This Court has serious questions about the veracity and credibility of the defendant Fleming. The parties started out in a harmonious relationship when the plaintiff hired the defendants to perfect a website to attract people to show her services assisting self-employed individuals under the title of "Creative Age." Creative Age was formed by the plaintiff to assist executives who have blocks or for individuals who want to form their own business. Also, the defendant was hired to assist the plaintiff in the running of a contest. In fact, the credibility of the defendant, Flemings' testimony is slanted and greatly affected by her strong feelings of wanting to even the score against the plaintiff. As time passed, their relationship grew more strained and eventually, the defendants ceased working for the plaintiff claiming an unpaid bill for $264. As a result of this non-payment, a revenge motive on the part of the defendants began to drive this case and the publication by the defendants of the alleged libelous statements on the internet.
In Count One, this Court finds that the defendant, Infopulse, did publish a statement that "the plaintiff did take her business elsewhere to avoid paying her bill," but the court finds such statement, although rude and uncomplimentary, did not rise to the level of being a libelous statement. Accordingly, the Court finds for the defendant, Infopulse, on this Count.
The Second Count incorporates the first ten paragraphs of the First Count and adds three additional paragraphs alleging the defendant's conduct in publishing the former statement to be extreme and outrageous and to inflict emotional distress upon the plaintiff. This Court holds that this statement although made intentionally and possibly true and with intent to annoy the plaintiff is not so extreme or outrageous as to satisfy a claim for emotional distress. Accordingly, the Court finds for this defendant on this Count.
The Third Count alleges negligent infliction of emotional distress to the plaintiff. Again, the defendant Infopulse incorporates the first eleven paragraphs of the Second Count and adds the allegations that such conduct by the defendant involved an unreasonable risk of causing emotional distress to the plaintiff. The court finds for the defendant on this Count for the reasons set forth as to its decision in the Second Count.
As to the Fourth Count, also against Infopulse, the plaintiff incorporates the first eleven paragraphs from the First Count and adds paragraphs eleven through thirteen of the Second Count as well as paragraphs twelve and thirteen of the Third Count. The plaintiff rounds out this Fourth Count by alleging that the actions of the defendant were immoral, unethical, oppressive and/or unscrupulous and caused substantial harm to the plaintiff. This Count alleges a CUTPA claim under Conn. General Statutes § 42-110a et seq. against the defendant. Finally, the plaintiff claims to have suffered an ascertainable loss of money. The Court finds that the defendant's conduct does not rise to the level of a CUTPA claim, but even if it did the plaintiff has waived her claim to any economic damage. The Court finds for the defendant, Infopulse, on this Count.
The Fifth, Sixth and Seventh Counts are directed against the defendant, Lee Fleming.
In the Fifth Count of the Complaint, the plaintiff alleges the defendant published numerous statements about her which she claims to be libelous per se and those that the Court finds to be libelous will be enumerated hereafter. It is also interesting to note that this defendant published these alleged libelous remarks separately over a period of three consecutive days. They are: "The best way for Mona to protect her interests would be for her to pay her bills and stop cheating the people she hires." The word "cheat" is defined in Webster's Dictionary as "to deprive of something valuable by the use of deceit or fraud." Also, "to violate rules dishonestly." The Court finds this expression by this defendant to constitute libel per se and finds for the plaintiff. Continuing, the defendant also stated: "[t]his suit is nothing but extortion. Mona Thorpe stole from us, and we personally know of two others she ripped off as well" and "[s]he is the first and only client who ever cheated us." Finally, on February 28, 2003, Fleming published the following referring to a letter written to her by the Plaintiff, to wit "another bit of extortion; she has not paid us the money she owes us, "that the plaintiff earn[ed] her living via filing groundless lawsuits"; and had "cheat[ed] contractors she hired and she's not smart enough to get away with it anymore."
Finally, as to the statement "somebody has to take a stand and expose the con artists and the cheats — this is my stand, my tiny contribution to preventing other small businesses from falling victim to Mona's theft." As stated above in this opinion the word "cheat" is libelous per se and is further compounded by the word "theft" with the latter expression the equivalent of charging the plaintiff with committing a crime punishable by imprisonment and as such libelous per se.
The totality of the statements made by this defendant, both libelous and those just "rhetorical hyperbole" clearly indicate a pattern by this defendant to demean and embarrass the plaintiff and intending to injure her. The recited libels established the plaintiff's claim for libel per se and the court will award her damages. In addition, the defendant has not established her defense of the truthfulness of these statements.
In the Sixth Count alleging intentional infliction of emotional distress, the Court recalls the plaintiff's testimony in which she stated that when she became aware of the internet postings by this defendant, she became a nervous wreck as she felt she couldn't stop what was being said about her. She felt nauseous and reluctant to talk to people as she didn't know what they were thinking.
The elements which must be proven to establish a claim of intentional infliction of emotional distress are (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was a likely result of his conduct, (2) that the conduct was extreme and outrageous, (3) that this conduct was the cause of the plaintiff's distress and (4) that the emotional distress sustained by the plaintiff was severe. Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 711 (2000). Further, the court stated: "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." The plaintiff first contracted the defendant to design a website in May of 2002 and the first website posting by the defendant against the plaintiff occurred in October of 2002. Subsequently, in February 2003, while the libelous statements were still posted on the internet, a press release by our Attorney General, Richard Blumenthal, was posted on the internet referring to the contest originated by the plaintiff charging a fee of $125 for the best submission in starting a new business and was declared illegal and ordered shut down as being a "play-to-pay scam." Despite this posting by the Connecticut Attorney General, the defendant's libelous statements remained on the internet before as well as after the plaintiff had complied with the Attorney General's order and refunded all monies received by her from this contest. The Court finds that there were sixteen statements made by this defendant evidencing a clear intention to harm the plaintiff even though the Court found only several to be libelous per se.
It is clear that this defendant intended to inflict emotional distress, that her conduct was extreme and outrageous, that this conduct was the cause of the plaintiff's distress and that the plaintiff's distress was severe. All of the Court's comments apply equally well as to the Seventh Count which alleges negligent infliction of emotional distress.
For the reasons stated, the Court finds for the plaintiff on the Fifth, Sixth and Seventh Counts of her complaint and awards her damages of Two Thousand Five Hundred ($2,500) Dollars plus costs of suit. As stated in Battista v. United Illuminating Co., 10 Conn. App. 486, 492 (1987). "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.'" The Court further stated that defamatory words are actionable per se and the law presumes the existence of injury to the plaintiff. Id., 492. Finally, on the same page of this case, the Court held: ". . . the trial court erred in limiting the jury to an award of nominal damages."
Finally, this Court feels compelled to also award punitive damages as it views the defendant's conduct as establishing malice on her part in the posting of the numerous internet statements. In Lyons v. Nichols 63 Conn. App. 761, 768 (2001), the Court held: "Both nominal and punitive damages also may be awarded where the defamatory material is libel per se . . . In turn, an award of punitive damages is appropriate where the plaintiff has recovered nominal damages . . . punitive damages are appropriate in a libel action where the Court has found that the defendant acted with actual malice when publishing the defamatory material. Id., 768-69. This Court awards the plaintiff here Two Thousand Dollars in punitive damages for a total award of Four Thousand Five Hundred Dollars ($4,500).
The Court heard the testimony of both parties with respect to the defendant's counterclaim for breach of contract, a claim amounting to Two Hundred Sixty Dollars and 40/100 ($260.40) after payment by the plaintiff of Nine Hundred Forty-One ($941.) Dollars. The plaintiff claimed she did not pay this remaining balance because she was not satisfied with work performed and since the defendant had ceased working for her. The key elements of a breach of contract are the formation of an agreement, performance by the party seeking recovery, and a breach of agreement by the other party and damages. Bouchard v. Sundberg, 80 Conn. App. 180, 189 (2003). The plaintiff admitted in her testimony to refusing to pay the final $264.40 owed to Infopulse. The Court finds that the defendant has not satisfied its burden in proving the elements of this cause of action and accordingly, denies the defendant a recovery and finds in favor of the plaintiff.
Judgment may enter in favor of the plaintiff to recover damages of $2,500 plus punitive damages of $2,000, a total of $4,500 plus costs of suit.
BY THE COURT
GROGGINS, J.