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Stevens v. Helming

Appellate Court of Connecticut

February 23, 2016

RICHARD STEVENS
v.
CARLTON HELMING ET AL

         Argued October 27, 2015.

          Action to recover damages for, inter alia, libel, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Wilson, J., denied the defendants' motion to dismiss; thereafter, the court granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed and the defendants cross appealed to this court.

          SYLLABUS

         The plaintiff sought to recover damages from the defendants, H and H Co., for, inter alia, libel, claiming that certain statements made by H in a newspaper article concerning alleged corporate waste by the plaintiff were defamatory. After the plaintiff's home heating oil business had failed, the defendants were appointed as receiver of the plaintiff's business. Following an audit, the defendants found that the plaintiff had apparently used corporate funds for personal expenses and sought to recover those funds from the plaintiff's bankruptcy estate on behalf of the defunct business by filing a proof of claim in the bankruptcy court. The newspaper article concerned the allegations raised in the proof of claim. The plaintiff thereafter brought this action, claiming that certain of the statements made by H were defamatory. The trial court granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. He claimed that in granting the motion for summary judgment, the trial court improperly failed to consider an alleged defamatory statement made by H in the newspaper article, in which H had stated that the plaintiff's failed business had paid the various amounts listed in the proof of claim over different periods, from one year to up to five years. Held that the trial court did not err in declining to consider the plaintiff's claim concerning the five year comment, the allegation not having been specifically pleaded in the complaint: in ruling on the motion for summary judgment, the trial court could consider only those facts alleged in the pleadings, and because the plaintiff did not make the allegation concerning the five year comment in the complaint and only later attempted to raise it in his surreply to the defendants' motion for summary judgment, the challenged statement was not before the trial court for its consideration; moreover, even though the plaintiff argued that a broad reading of the complaint encompassed the allegation and that the modern trend is to construe pleadings broadly, that trend is not a remedy for every instance where, as here, a party fails to adhere to the basic procedural requirements of pleading, especially in the context of a defamation complaint.

         Christopher A. Stratton filed a brief for the appellant-appellee (plaintiff).

         Steven J. Bolotin, with whom were Patrick J. Day and, on the brief, James L. Brawley, for the appellees-appellants (defendants).

         Lavine, Alvord and Bishop, Js. LAVINE, J. In this opinion the other judges concurred.

          OPINION

Page 729

         [163 Conn.App. 242] LAVINE, J.

         In this defamation case, the plaintiff, Richard Stevens, appeals from the judgment rendered by the trial court when it granted the motion for summary judgment filed by the defendants, Carlton Helming and Helming & Company, P.C.[1] On appeal, the plaintiff claims that the court erred by failing to consider an allegation concerning an alleged defamatory statement made by Helming, even though the allegation at issue was not specifically pleaded in the complaint. The defendants cross appealed, asserting that the court should have also granted their motion for summary judgment under the absolute litigation privilege. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The plaintiff was the sole shareholder of The F & S Oil Company (business), which went out of business on March 7, 2008, leaving hundreds of prepaid consumer contracts for heating oil unfulfilled. The Office of the Attorney General filed for an ex parte temporary injunction and appointment of a receiver to preserve the defunct business' assets. The [163 Conn.App. 243] defendants were appointed as receiver of the business, and one of their responsibilities was to recover funds to compensate the customers whose contracts

Page 730

were not fulfilled. During this time, the plaintiff filed a chapter 7 bankruptcy petition. The defendants audited the business' accounts and found instances where the plaintiff had apparently used corporate funds for personal expenses. Seeking to recover these funds from the plaintiff's bankruptcy estate on behalf of the business, Helming filed a proof of claim in the bankruptcy court on December 22, 2008, alleging that the plaintiff had committed corporate waste. The proof of claim contained an accounting and description of business payments that the plaintiff allegedly made for his personal use. The business' failure garnered media attention, and the Waterbury Republican-American published an article about the allegations of the plaintiff's corporate waste on March 4, 2009. The article quoted Helming as stating, " We have not done sufficient work yet to present it in court, but I don't have any doubt that probably 99 percent would stand up, and that we'd probably find more." The plaintiff refers to this statement as the " 99 percent comment." The article stated that Helming said that the business " paid the various amounts listed in the proof of claim over different periods, from one year to up to five years." The plaintiff refers to this as the " one to five year allegation." The article also included statements by the plaintiff's attorney, Elizabeth Austin, disputing the truth of the allegations in the proof of claim.

         On April 6, 2011, the plaintiff field a complaint against the defendants, in which he alleged that the 99 percent comment and the allegations in the proof of claim were defamatory. He did not plead that Helming defamed him by making the one to five year allegation. The defendants moved to dismiss the complaint; the court denied the motion on February 10, 2012. On August [163 Conn.App. 244] 13, 2012, the defendants filed an answer denying the allegations and asserting special defenses.[2] On January 31, 2014, the defendants moved for summary judgment on the grounds that Helming's statements were absolutely privileged; the statements were opinions protected by the fair comment ...


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