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Crismale v. Walston

Court of Appeals of Connecticut

August 7, 2018

NICHOLAS CRISMALE
v.
CHRISTOPHER ANDREW WALSTON ET AL.

          Argued April 10, 2018

         Procedural History

         Action to recover damages for, inter alia, defamation, and for other relief, brought to the Superior Court in the judicial district of New Haven, where the court, Wilson, J., granted the motion for summary judgment filed by the defendant Jeffrey Samorajczyk et al. and rendered judgment thereon; thereafter, the court granted the named defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. Affirmed.

          Jennifer Antognini-O'Neill, for the appellant (plaintiff).

          Christian A. Sterling, for the appellee (named defendant).

          Lavine, Elgo and Bright, Js.

          OPINION

          BRIGHT, J.

         In this action alleging slander and malicious prosecution, the plaintiff, Nicholas Crismale, appeals from the summary judgment rendered by the trial court in favor of the defendant Christopher Andrew Walston.[1] The plaintiff claims that the trial court erroneously concluded that the defendant's statements were privileged and that there was no evidence that the defendant acted with malice. We affirm the judgment of the trial court.

         In his complaint, the plaintiff alleges the following: He is a commercial fisherman, and the defendant is a seasonal shell fisherman. On December 14, 2011, the defendant stated to Jeffrey Samorajczyk and Todd Aaron Chemacki, enforcement officers with the Department of Energy and Environmental Protection (department), whom the plaintiff also brought an action against in their individual capacities; see footnote 1 of this opinion; that the plaintiff was trespassing on the defendant's clam beds and stealing his clams. The defendant knew that the plaintiff ‘‘was innocent, '' however. As a result of the defendant's statements to the enforcement officers, the plaintiff was arrested on charges for which he later was found not guilty. The plaintiff suffered economic losses by having to defend himself, and he suffered anxiety and humiliation. The defendant also told a reporter for the Hartford Courant (reporter), following the plaintiff's arrest: ‘‘I nailed him, and I nailed him good.'' On the basis of these facts, the plaintiff alleged that the defendant was liable for slander for his statements to the enforcement officers and for his statement to the reporter, and he was liable for malicious prosecution for reporting the plaintiff's alleged conduct to the enforcement officers.

         In response to the plaintiff's complaint, the defendant filed an answer and two special defenses. In his first special defense, which addressed both the slander count and the malicious prosecution count, the defendant claimed that his statements to the enforcement officers and the reporter were privileged because they ‘‘were made in good faith, without malice, in an honest belief in the truth of the statement, and in discharge of a public or private duty.'' Specifically, as to the allegation that he had slandered the plaintiff by his comment to the reporter, the defendant claimed that this statement also was privileged because it was his opinion, which was based on a true fact. In his second special defense, which specifically addressed the malicious prosecution count, the defendant claimed that he had acted lawfully and with probable cause under the circumstances, and that he acted without malice, merely intending to bring the plaintiff to justice using the proper legal channels to report his information. The plaintiff pleaded a general denial in response to these defenses.[2]

         On March 7, 2016, the defendant filed a motion for summary judgment on the ground that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. Specifically, as to count one, slander, the defendant argued that his statements to the enforcement officers were ‘‘subject to qualified immunity and [were] not made with malice . . . .'' As to his statement to the reporter, he argued that this statement was ‘‘privileged and does not qualify as defamation since . . . [it] was an opinion and statements of opinion are not considered slanderous.'' (Emphasis in original.) As to count two, malicious prosecution, the defendant argued that ‘‘he did not initiate or procure the institution of criminal proceedings against the plaintiff, he acted with probable cause, and there was no malice.'' In support of his motion for summary judgment, the defendant submitted: his own affidavit; the plaintiff's December 24, 2014 responses to interrogatories and requests for production; affidavits of Samorajczyk and Chemacki; deposition excerpts of the plaintiff's workers, Hector Avila, Santos Bertrand, and Sandoval Maynor; and an excerpt from the plaintiff's deposition.

         The plaintiff filed an opposition to the defendant's motion for summary judgment, arguing that there were issues of material fact as to both remaining counts of his complaint. He attached, in support of his opposition: excerpts of testimony from his criminal trial; the affidavits of Samorajczyk and Chemacki; portions of the plaintiff's deposition; the misdemeanor summons issued to him; the transcript of the department's emergency dispatch call from the defendant and its dispatch call to enforcement officers;[3] and the reporter's article, which had been published in the Hartford Courant. Oral argument on the motion and the objection thereto was heard on September 12, 2016.

         On December 27, 2016, the trial court granted the defendant's motion for summary judgment. As to the cause of action sounding in slander for the defendant's statements to the enforcement officers, the court concluded that the statements were entitled to a qualified privilege because they were made to law enforcement, in good faith and without malice, after the defendant saw the plaintiff, through binoculars, on his shellfishing lot. As to the defendant's statement to the reporter, which was made after the plaintiff had been arrested, the court concluded, in relevant part, that this statement was entitled to the ‘‘fair comment'' privilege as a statement of opinion on a matter of public concern namely, the plaintiff's arrest, and that the statement amounted to the defendant's opinion of what had occurred.[4]Finally, as to the plaintiff's count for malicious prosecution, the court concluded that, on the basis of the sworn affidavits of the arresting enforcement officers, attesting that there was probable cause to support the arrest of the plaintiff, and the absence of any evidence from the plaintiff that was contrary to those attestations, the defendant did not initiate or procure the criminal proceedings against the plaintiff, and that the arrest and prosecution were based on independent findings of probable cause by the enforcement officers. This appeal followed.

         ‘‘The standard of review of a trial court's decision granting summary judgment is well established. 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.'' (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017).

         The plaintiff claims that the court erred in the following ways when rendering summary judgment: (1) as to his allegation of slander based on the defendant's report to enforcement officers, the plaintiff claims that there were genuine issues of material fact as to whether the defendant acted with malice in reporting that the plaintiff was trespassing on his clam beds and stealing his clams; (2) as to the allegations of slander based on the defendant's statement to the reporter, the plaintiff claims that the court erred as a matter of law in concluding that the comments were entitled to the fair comment privilege because they were opinion on a matter of public interest, rather than factual assertions; and (3) as to the count for malicious prosecution, the plaintiff claims that there were genuine issues of material fact as to whether the defendant acted with malice when he provided misleading information to the department, which resulted in the plaintiff's arrest. We consider each claim in turn.

         I

         DEFAMATION BY SLANDER

         The plaintiff claims that the court improperly rendered summary judgment on the first count of his complaint, which sounds in slander. He argues that there were genuine issues of material fact as to whether the defendant had acted with malice when he (1) reported to the enforcement officers that the plaintiff was trespassing on his clam beds and stealing his clams, and (2) when he provided a statement to the reporter. We are not persuaded.

         ‘‘Although defamation[5] claims are rooted in the state common law, their elements are heavily influenced by the minimum standards required by the [f]irst [a]mendment. . . . At common law, [t]o 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. . . .

         ‘‘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 . . . . It is well settled that for a claim of defamation to be actionable, the statement must be false . . . and under the common law, truth is an affirmative defense to defamation . . . [and] the determination of the truthfulness of a statement is a question of fact for the jury. . . . Each statement furnishes a separate cause of action and requires proof of each of the elements for defamation. . . .

         ‘‘Beyond these common-law principles, there are numerous federal constitutional restrictions that govern the proof of the tort of defamation, the applicability of which varies with (a) the status of the plaintiff as a public or private figure, and (b) whether the subject of the speech is a matter of public or private concern. Thus, there are four possibilities: (1) public person/ public matter, (2) private person/public matter, (3) public person/private matter, and (4) private person/private matter. . . . The . . . elements of defamation, including the subsidiary historical facts, are . . . subject to proof under the preponderance of the evidence standard.'' (Citations omitted; footnote in original; footnote omitted; internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 430-32, 125 A.3d 920 (2015).

         ‘‘With respect to common-law privilege defenses, we note by way of background, that [a] defendant may shield himself from liability for defamation by asserting the defense that the communication is protected by a qualified privilege. . . . When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries. . . . The first is whether the privilege applies, which is a question of law over which our review is plenary. . . . The second is whether the applicable ...


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