AC No. 34990 IN THE CONNECTICUT APPELLATE COURT _______________ JANICE SMOLINSKI AND PAULA BELL, Defendants-Appellants, v.

MADELINE GLEASON, Plaintiff-Appellee. _______________ On Appeal from the Superior Court Judicial District of New Haven Case No. NNH-CV06-5005107S (Coradnio, J.) _______________ BRIEF OF APPELLANTS/DEFENDANTS _______________ MICHELLE S. CRUZ LAW OFFICES OF MICHELLE S. CRUZ 10 Columbus Blvd. Hartford, CT 06106 Tel.: (860) 415-6529 AttyMichelleSCruz@yahoo.com STEVEN J. KELLY (PRO HAC PENDING) ANNE T. MCKENNA (PRO HAC PENDING) SILVERMAN, THOMPSON SLUTKIN & WHITE, LLC 201 North Charles Street, Suite 2600 Baltimore, Maryland 21201 Tel.: (410) 385-2225 Fax: (410) 547-2432 skelly@mdattorney.com amckenna@silvermckenna.com Counsel for Appellants

March 25, 2013

TABLE OF CONTENTS STATEMENT OF THE ISSUES.............................................................................................iv TABLE OF AUTHORITIES......................................................................................................v I. II. INTRODUCTION..........................................................................................................1 STATEMENT OF THE FACTS.....................................................................................1 A. B. C. D. III. IV. THE LOVE TRIANGLE..........................................................................................2 THE SMOLINSKI FAMILY’S DESPERATE SEARCH FOR BILLY AND GLEASON’S BIZARRE RESPONSE TO THAT SEARCH...............................................................4 BILLY’S MOTHER’S ARREST FOR POSTING FLYERS..............................................6 GLEASON’S MANY OTHER CAUSES FOR ANGUISH AND DIMINISHED REPUTATION. .8

STATEMENT OF THE PROCEEDINGS....................................................................10 ARGUMENT...............................................................................................................12 A. B. PLAINTIFF’S CLAIMS ARE BARRED BY THE FIRST AMENDMENT AND THE CONNECTICUT CONSTITUTIONAL EQUIVALENT....................................................12 THE TRIAL COURT EXHIBITED BIAS WHICH CONSTITUTES PLAIN ERROR............16 1. 2. C. JUDICIAL CONDUCT; DUTIES OF JUDGE; STANDARD OF REVIEW..............17 THE TRIAL RECORD DEMONSTRATES PLAIN ERROR IN THE TRIAL JUDGE’S BIAS AND LACK OF IMPARTIALITY............................................................19

THE TRIAL COURT ERRED BY FINDING “INTENT” SOLELY BASED ON HEARSAY STATEMENTS MADE TO POLICE AND MEDIA.......................................................22 THE TRIAL COURT MISAPPLIED THE LAW AND FACTS RELATING TO THE IIED CLAIM..............................................................................................................24 1. 2. THE RECORD IS INSUFFICIENT TO SUPPORT A FINDING ON THE THIRD AND FOURTH ELEMENTS OF IIED..................................................................25 THE TRIAL COURT ERRED BY IGNORING DEFENDANTS’ JUSTIFICATION FOR THEIR ALLEGED CONDUCT.....................................................................27

D.

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E.

THE TRIAL COURT ERRED IN FINDING DEFAMATION ON THIS RECORD................28 1. 2. 3. THE ALLEGED STATEMENTS TO VRABEL AND DEPALLO ARE OPINIONS THAT CANNOT CONSTITUTE DEFAMATION........................................................29 THE COURT ERRED BY FINDING DEFAMATION BASED ON A COMMENT TO AN UNIDENTIFIED GYM CUSTOMER.........................................................31 THE DEFAMATION CLAIM FAILS BECAUSE PLAINTIFF DID NOT SHOW THE ALLEGED STATEMENTS WERE FALSE ............................................33

F.

THE TRIAL COURT ERRED IN AWARDING DAMAGES IN THE ABSENCE OF ANY PROOF OF DAMAGES.........................................................................................33 ............................................................................................................................. ............................................................................................................................. .............................................................................................................................
...................................................................................................................... ...................................................................................................................... ...................................................................................................................... ......................................................................................................................

V.

CONCLUSION............................................................................................................35

REQUEST FOR ORAL ARGUMENT....................................................................................36 CERTIFICATE OF SERVICE................................................................................................36 CERTIFICATE OF COMPLIANCE........................................................................................37

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STATEMENT OF THE ISSUES 1. Did the trial court err in failing to bar Appellee/Plaintiff Madeleine Gleason’s claims under the First Amendment to the United States Constitution and its Connecticut Equivalent? 2. Did the trial judge’s bias and lack of impartiality constitute plain error requiring reversal? 3. Did the trial court err by relying on hearsay statements to determine Defendants’ intent? 4. Did the trial court err in finding defamation based on the evidence it considered?

5. Did the trial court err in finding Intentional Infliction of Emotional Distress based on the evidence it considered?

6. Did the trial court err by awarding compensatory and punitive damages in the absence of any supporting evidence?

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TABLE OF AUTHORITIES Code of Judicial Conduct Rules 1.2-3.1.........................................................................................................................17

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I.

INTRODUCTION

At issue in this case is whether a criminal suspect is entitled to use Connecticut’s tort law to silence a murder victim’s family in that family’s search for justice. Since 2004, Billy Smolinski’s parents and sister have suffered through countless sleepless nights and untold horror forced only to imagine the horrible fate that befell the young man for whom they cared so deeply. For over eight years, they have worked to motivate police and public officials to investigate their son’s death and to aid other similarly situated victims’ families. Despite their loss and good work they are faced with a monetary judgment for compensatory and punitive damages for—in essence—replacing missing person’s posters torn down by a woman who is an identified suspect in the police investigation. The trial court’s finding of liability in this case is troubling. If allowed to stand, the ruling threatens to stifle countless families caught in similar struggles for justice. The Smolinksis and so many like them are merely giving life to the ancient maxim underpinning our system of justice: fiat justitia ruat caelum—let justice be done though the heavens may fall. For the myriad of reasons set forth herein, Defendants respectfully request that this Honorable Court affirm that fundamental right, and reverse and remand this case for further proceedings consistent with this Court’s ruling. II. STATEMENT OF THE FACTS

On August 24, 2004, William “Billy” Smolinski disappeared never to be heard from again. Billy was a 31-year-old tow truck driver who was very close to his parents and sister. (See Pl.’s Exhibit 9, John Murray, Trying to Find a Missing Child A Mother’s

Anguish, Waterbury Observer July 2006, at 24, App. 1.) Billy lived in the town of Waterbury and the “investigation” of his disappearance is within the primary jurisdiction of the

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Waterbury Police Department. Many of the issues underlying this case stem from that Department’s failure to pursue the case in any meaningful way and the Smolinskis’ struggle to change that. (See generally App. 1-3.) A. THE “LOVE TRIANGLE” (11/29/2011 Tr. at

Prior to his disappearance, Billy dated Madeleine Gleason.

85:17-25.) At the time, Gleason was a 51-year-old bus driver who lived and worked in Woodbridge. (Id.) There is no dispute that Gleason and Billy broke off their relationship in the days leading up to Billy’s disappearance and that Gleason was one of the last people ever to see him or talk to him. (See 11/29/2011 Tr. at 122:17-27.) The reasons for the breakup and how it relates to Billy’s disappearance are very much in dispute. The Record reveals Gleason either lied in her trial testimony or in statements to police concerning this critical point. According to Gleason’s statements to police in the days following Billy’s disappearance, Billy “wanted to break up with her because he thought she was cheating on him and he left her place early morning (8/24/04) a little depressed.” (See Def.s’ Trial Exhibit B & C, App. 4.) In an August 5, 2005 interview with police, Gleason admitted that, while dating Billy, she was having an affair with married Woodbridge politician, Christian Sorenson. (App. 10.) She indicated she believed Billy had suspected the same for some time, and she finally told Billy about the affair on their trip to Florida in the week prior to Billy’s disappearance. ( Id.) Upon learning this, she told police Billy grabbed her cell phone from her and “they had a fight” concerning calls and/or texts Gleason received from Sorenson. ( Id.) Gleason admitted she saw Billy on the morning he disappeared, when he placed a ladder against her bedroom window to try to get in. ( Id.)

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Gleason told a much different story while on the witness stand nearly seven years after Billy disappeared; claiming she was not in a relationship with Sorenson when Billy was murdered. (See 11/29/2011 Tr. at 91:1-5.) She further claimed, in contrast to her

contemporaneous statements to police, she broke up with Billy because, as a 51-year-old, she was tired of “babysitting” a 31-year-old. ( Id.) Although she admitted she had a prior relationship with Sorenson, she claimed the relationship ended before she was with Billy and that she had no contact with Sorenson until after Billy disappeared. ( Id. at 127:11-13.) Also in contrast to her prior police statements, she testified the “love triangle” surrounding Billy’s disappearance, which was widely reported in the media, was a complete “fabrication” by the Smolinskis. (See id. at 96:25-26.) In an attempt to illustrate Gleason’s inconsistencies, Defendants subpoenaed Sorenson as a trial witness. (See 12/5/2011 Tr. at 28:17-18.) In an off-the-record, inChambers ruling, the trial judge prohibited Defendants from asking Sorenson any questions about his relationship with Gleason. That ruling was prejudicial because, like Gleason, Sorenson gave wildly inconsistent statements concerning the events leading up to Billy’s disappearance. In questioning by police, Sorenson initially denied any relationship with Gleason and any contact with Billy. (App. 5.) Under pressure, he eventually admitted having an affair with Gleason while he was married and presented police with an audio tape of a call Billy made on the day of his disappearance stating, “Chris you better watch your back at all times.” (Id.) Sorenson immediately notified Gleason of Billy’s threat. ( Id.) Because of the trial court’s in-Chambers restrictions, Defendants’ direct examination of Sorenson was extremely limited. In the few questions Defendants were permitted to ask him, Sorenson acknowledged Billy contacted him three times in the hours leading up to his

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disappearance and, on the day he disappeared, Billy left a threatening cell phone message on Sorenson’s voicemail, which Sorenson eventually turned over to police. ( See 12/5/2011 Tr. at 29:27-30:9.) Sorenson also acknowledged his father is in business with Gleason’s employer, B and B Transportation, Inc. (“B&B”) (an original plaintiff in this lawsuit) owner Brad Cohen, who was also the driving force behind the three criminal complaints against the Smolinskis and one of the three fact witnesses providing the sole “support” for Plaintiff’s claims. (Id. at 28-29.) The Smolinskis were fully aware of the Gleason-Sorenson connection and all the facts contained within the various police reports because those reports had been widely reported in the media. (See, e.g., App. 1-3.) Moreover, the Smolinskis were fully aware Gleason was identified as a suspect in Billy’s disappearance and that she had never been cleared as such. (See generally App. 1; see also Def.s’ Trial Exhibit A at 2, App. 15.) According to police reports, Gleason has been asked to take a polygraph regarding the incident. (App. 15.) Gleason has refused on advice of counsel. (11/29/2011 Tr. at 118:214.) Further, to this day, Gleason admits she continues to withhold information from police concerning Billy’s disappearance. (See id.) B. THE SMOLINSKI FAMILY’S DESPERATE SEARCH BIZARRE RESPONSE TO THAT SEARCH
FOR

BILLY

AND

GLEASON’S

Billy Smolinski was last seen on a Tuesday evening. The family immediately notified the police when they were unable to reach him and were told they needed to wait three days to file a missing person’s report, which they did. ( See 12/5/2011 Tr. at 12:12-15.) Paula Bell, Billy’s sister, called Gleason on that Wednesday and reported the family had not seen or heard from and the family was concerned. ( Id. at 11:23-25.) Paula also checked in with Gleason early that Friday to see if she had heard from Billy. ( Id.) Paula and her

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parents filed a missing person’s report with the Waterbury Police late that Friday night, after which they drove past Billy’s house to see if he had come home. ( Id. at 32.) They found Gleason and her friend Fran Vrabel sitting in Billy’s house. ( Id. at 32:25-33:2.) Gleason drew Mrs. Smolinski’s attention to some unsigned cards on a coffee table she claimed were “from Billy.” (Id. at 44:11-17.) The next day, the extended Smolinski family banded together in a community-wide effort to find Billy. (See 12/5/2011 Tr. at 34:1-2.) The family produced “thousands” of missing person’s posters, and members of the extended family put the posters up throughout the state of Connecticut and in several other states. ( Id.) The posters feature pictures of Billy and urge anyone with information concerning Billy’s disappearance to call a hotline. (See Pl.s’ Trial Exhibits 1-2, App. 20-21.) Gleason is not identified or featured in any way on any of the posters or materials. ( Id.) The family posted the posters on

telephone poles, billboards and in other public spaces. (12/5/2011 Tr. at 44.) Just a couple weeks after Billy disappeared, and while their campaign was in full swing, Bill Smolinski (Billy’s dad) noticed flyers he had put up on Route 63, the main road into New Haven, were taken down. ( Id. at 34:20-27.) When the flyers were replaced, they came down the next day. (Id.) So, he posted a flyer and hid in the woods to investigate the cause. (Id. at 35.) Bill Smolinski was shocked and horrified to observe Gleason pull her school bus over, get off the bus, and brazenly tear down the poster and throw it on the ground. (Id.) Mrs. Smolinski reported this activity to police, who told her she needed to videotape Gleason taking the posters down for any action to be taken. ( Id. at 50:7-9.) From the very beginning of the investigation, Gleason admited she was tearing down the missing persons posters. She acknowledged bringing her children with her to tear

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down posters. (Id. at 131:17-19.) She admitted she and her friend, Fran Vrabel, followed the mother of the murdered son and tore the posters down as Mrs. Smolinski was putting the posters up; right in front of Ms. Smolinski. ( See id. at 132:1-24.) While Gleason offers general accusations regarding “the Smolinskis” following her, the only specific incidents on which any testimony is offered involve Plaintiff and her cohorts following Janice Smolinksi to where she is posting flyers, getting in Mrs. Smolinski’s face, and ripping down the posters. (See 11/9/2011 Tr. 51:1-12; Pl.s’ Trial Ex. 4.) Gleason further acknowledged her friend Melissa Depallo, one of three witnesses who testified on her behalf, vandalized missing person’s posters featuring Billy by spray-painting them, cutting the faces out of them and writing things on them. (11/29/2011 Tr. at 105:11-14.) C. BILLY’S MOTHER IS ARRESTED FOR POSTING FLYERS

Apparently not content with tearing down and vandalizing the posters depicting the Smolinskis’ (presumably) murdered son and brother, Gleason decided to hire a lawyer and to pursue criminal charges against the family. Plaintiff’s criminal “case” largely rests on three criminal complaints made by Gleason, her boss and her best friend, which eventually resulted in the arrest of Janice Smolinski. Nowhere in the transcript, however, is the critical fact that the only charges ever resulting from these complaints were dismissed as baseless. Further, all the documented “incidents” forming the basis for Plaintiff’s

complaints occurred in the town of Woodbridge and were investigated by the Woodbridge Police Department. Woodbridge is the town where both Billy and Gleason worked, and it is the town where Sorenson served as selectman. The first documented “allegation” is on March 14, 2005. According to Detective Robert B. Crowther of the Woodbridge Police Department, Gleason reported she was being

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harassed by Mrs. Smolinski and felt that her bus route was being targeted with flyers. (12/5/2011 Tr. at 3:12-19.) In his March 14, 2005 report, 1 Crowther indicates he investigated the allegations of targeting and found them to be without merit. ( See

3/14/2005 Report, App. 22-23.) The report indicates Crowther investigated Gleason’s claim that the posters are “targeted at her” and rejected it because the posters are “in Woodbridge, New Haven, Derby, and Ansonia and Waterbury and other towns as well.” (Id.) The report further notes Crowther did not feel Gleason’s allegations gave rise to any criminal claim under Connecticut law and that he advised Gleason to contact the Waterbury Police Department to set up a polygraph and clear herself as a suspect in Billy’s disappearance. (Id.) At trial, Crowther confirmed that he investigated Gleason’s allegation and that the “charge of harassment just didn’t stand.” (12/5/2005 Tr. at 3:12-17.) He also testified he advised Janice Smolinski she was doing nothing wrong by putting up the posters. (Id. at 4.) Not content with this response, Gleason returned to the Woodbridge Police Department on April 4, 2005. This time she had Cohen with her. (12/5/2011 Tr. at 7:2-5.) Cohen owned former plaintiff B&B and was the business partner of Sorenson, a prominent politician in Woodbridge who, according to Plaintiff, Woodbridge Police were concerned with protecting. (See 11/29/2011 Tr. at 100:9-11.) Not surprisingly, Gleason’s reception was different. Contrary to what the same officers told them on the prior occasion, the police this time advised Defendants their “actions against Gleason” could be considered

The Record is unclear whether this report was admitted into evidence. The exhibit list contains a notation of an undated police report as Plaintiff’s Exhibit 3. It is not clear based on the trial transcript whether that references this report or the April 4, 2005 or both. Crowther reads directly from his report in his trial testimony. ( See 12/5/2011 Tr. at 7-9.)
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harassment and that if they continued in their “activities,” an arrest could be made. ( See 4/4/2005 Report2 at 2, App. 24.) On April 15, 2005, Sullivan received a complaint from Gleason’s friend, Fran Vrabel, indicating Mrs. Smolinksi put a missing person’s poster on a telephone poll that, although close to the roadway and far from the school, Vrabel claimed was technically on public school property. (11/29/2005 Tr. at 49.) Even though Vrabel is not an employee of the school and presumably does not own it, based solely on Vrabel’s “statement” concerning the alleged trespass, Sullivan swore out an arrest warrant and arranged to have Janice Smolinski arrested. (Id.) On the day of Mrs. Smolinski’s trial, prosecutors determined the case against her was without merit and initiated a nolle prosequi application disposing of (and erasing) the charges. When Defendants sought to introduce evidence of that

disposition, (see 11/29/2011 Tr. at 51:20-21), the court refused to admit it ( id. at 26-27). D. GLEASON’S MANY OTHER CAUSES FOR ANGUISH AND DIMINISHED REPUTATION

In painting herself as the victim of the Smolinski family’s effort to find Billy, Gleason glosses over and obscures the many other likely sources of her alleged emotional distress and damaged reputation. First and foremost, Gleason repeatedly was identified in police reports and in media accounts as a suspect in Billy’s disappearance. Indeed, in this action, Gleason sued the reporter for the Waterbury Observer who was largely responsible for publicly disseminating the information concerning the “love triangle” and the police suspicions concerning Gleason. The court dismissed that suit. Much of Gleason’s trial testimony suggests that being publicly identified as a suspect was the real source of her emotional anguish and As discussed in Note 1 above, it is not clear whether this report is Plaintiff’s Exhibit 4, but it is extensively referenced and discussed throughout the trial transcript.
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damage to her reputation. ( See, e.g., 11/29/2011 Tr. at 12:13-15 (Cohen testifying the “amount of spotlight, so to speak, that was put on [Gleason] was over the top”); 31:18-27 (Depallo testifying that Gleason had to put on sunglasses to avoid recognition because her face was “broadcasted all over the news.”); 109-110 (Gleason testifying about impact of the media reports on her).) Second, Gleason had many other issues in her life that likely caused grave emotional distress. Gleason’s daughter committed suicide in May 2004, three months

before Billy disappeared. (11/29/2011 Tr. at 110:1-2.) Her son died of a drug overdose the year after Billy disappeared, and she lost another child thereafter. ( Id.) The trial court allowed virtually no evidence on these other issues, while giving Plaintiff broad latitude in presenting evidence concerning her alleged emotional distress. these issues Specifically, the court permitted testimony of how Defendants’ alleged activities precluded Gleason from getting custody of her granddaughter. Indeed, when Defendants’ counsel objected to the introduction of such evidence, the trial court took it upon itself to make a troubling proclamation on the record: “the fact that it [the effects of Defendants’ alleged activities]—that it follows her wherever she goes and whatever she does, just like they followed her wherever she went and whatever she did that’s part of what’s happened to this woman and it’s part of the trauma they’ve inflicted upon her.” (Id. at 112:1-7 (emphasis added).) When Defendants attempted to present witness testimony from the person actually awarded custody of the child concerning the actual reasons why Gleason did not get custody, the trial court refused to admit such evidence. (12/5/2011 Tr. at 23:14-19.) The trial court sustained Plaintiff’s counsel’s objection to proffered evidence

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of Gleason’s history of arrests and domestic violence, finding such evidence “irrelevant.” (Id.) III. STATEMENT OF THE PROCEEDINGS

This case was filed on July 19, 2006 by initial plaintiffs Madeline Gleason and B&B against John Murray, Janice Smolinski and Paula Bell. Gleason and B&B 3 filed a Revised Complaint on November 15, 2007. The Revised Complaint sets forth 18 counts alleging intentional infliction of emotional distress, invasion of privacy, tortious interference with business relationships and expectancies, economic injury (to B&B), and trespass. ( See Docket No. 108.) Counts 13-18 of the Revised Complaint relate exclusively to Murray in his capacity as a reporter for the Waterbury Observer. ( Id.) Murray moved to strike those counts arguing, among other things, the claims are barred First Amendment to the United States Constitution. (See Docket No. 110.) By Memorandum of Decision dated July 20, 2009, the court (Wilson, J.) granted Defendant Murray’s motion, noting because the allegations relate to the alleged tortious use of speech, the analysis is “governed by first amendment principles.” (Docket No. 111 at 9.) The court further observes the allegedly tortious speech relates entirely to “Gleason’s relationship with Billy Smolinksi shortly before his disappearance,” and the discussion of Gleason’s relationship history and of issues relating to her children are all of “legitimate public concern” and therefore immune from tort liability under the First Amendment. ( See id. at 9-10.) The court dismissed all claims against Murray on August 29, 2011. ( See Docket No. 124.)

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B&B withdrew all its claims on August 1, 2011. (See Docket No. 127.)

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Plaintiff Gleason responded to Defendants’ Interrogatories and Requests for Production of Documents on September 2011. (App. 27-41.) Plaintiff’s discovery responses were patently deficient as she failed to produce any documents evidencing her allegations of harassment and defamation and produced no documents or information concerning her alleged “damages.” (See generally App. 7.) Based on these deficiencies, Defendants filed a motion in limine seeking to exclude all matters not contained in Plaintiff’s discovery responses on November 28, 2011. ( See Docket No. 131.) The trial judge apparently issued an informal ruling on the motion and on related matters in an informal Chambers conference. ( See 11/29/2011 Tr. 43:16-44:13.) Neither the ruling nor any aspect of the apparent rulings on evidentiary matters was placed on the Record. A courtside trial was held before the Honorable Thomas Corradino on November 29, 2011 and on December 5, 2011. At the conclusion of Plaintiff’s case, Defendants moved to dismiss counts seven and eight of the Revised Complaint, relating to tortious interference with business relations. Defendants submitted a post-trial brief on February 21, 2012, in which they identified a vast array of factual and legal deficiencies in Plaintiff’s case. ( See Docket No. 135.) The court conducted a hearing on post-trial issues on April 20, 2011, during which Plaintiff’s counsel indicated he is seeking “nominal damages” because Plaintiff did not “present proof of actual damages.” (4/20/2011 Tr. at 4:19-24.) In addition,

throughout the argument, the court extensively discussed “admissions” the court contends were made by Defendants in the application for the arrest warrant of Janice Smolinski and in comments allegedly made to the Waterbury Observer. ( Id. at 10:8-11-27.) The court strongly suggests that these “admissions” fatally undermine Defendants’ position that they

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were putting up posters to find Billy and provide the sole support for the court’s ultimate finding that the Defendants’ true objective was solely to inflict emotional distress on Plaintiff. (See id.) The court issued its Memorandum of Decision on August 10, 2012, granting judgment in favor of Plaintiff on her claims for intentional infliction of emotional distress (“IIED”) and defamation and awarding $39,500 in compensatory damages and $13,035 in punitive damages. Defendants moved for articulation on October 24, 2012 and the court issued a Response to Motion for Articulation on November 5, 2012. IV. ARGUMENT A. PLAINTIFF’S CLAIMS ARE BARRED BY THE FIRST AMENDMENT AND THE CONNECTICUT CONSTITUTIONAL EQUIVALENT

Whether Defendants’ speech is protected by the first amendment is a question of law, subject to plenary review, under which the Court must determine whether the trial court’s failure to dismiss Plaintiff’s claims was legally and logically correct. 4 Id. Because the Record establishes Plaintiff’s claims rests solely on actions protected by the First Amendment, the trial court’s failure to dismiss Plaintiff’s claims was legally and logically incorrect.

As set forth in Sections II and III above, Defendants’ First Amendment claim was adequately preserved. However, even if Defendants’ First Amendment claim was not adequately preserved, the Court may still consider the claim on appeal under the doctrine adopted in State v. Golding. 213 Conn. 233 (1989). In Golding, the Connecticut Supreme Court held a defendant may prevail on a claim of constitutional error not preserved at trial when: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. Defendants’ First Amendment claim satisfies all these factors. See Perricone v. Perricone, 292 Conn. 187, 212 n.24 (2009) (holding that the Golding doctrine applies in civil as well as criminal cases).
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The First Amendment “can serve as a [complete] defense in state tort suits, including suits for intentional infliction of emotional distress” brought by private non-state and non-public figures. Snyder v. Phelps, 131 S.Ct. 1207, 1215 (2011). Whether the First Amendment prohibits holding Defendants liable for their speech activities in this case “turns largely on whether that speech is of public or private concern, as determined by all the circumstance of the case.” Id. at 1215. “Speech on matters of public concern . . . is at the heart of the First Amendment’s protection.” Id. (internal quotations omitted). The boundaries of public/private concern are not easily defined, and Courts must examine the “content, form and context of that speech, as revealed by the whole record.” Id. (internal quotations omitted). No single factor is dispositive; “it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.” Id. In Snyder, members of the Westboro Baptist Church picketed an Iraq war veteran’s funeral. Their picket signs reflected the church’s views about homosexuals and how God punishes the United States for its sinfulness with acts such as the death of its soldiers. See id. at 1213 (describing signs stating, “Got Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “You’re Going to Hell”). They stood on a plot of public land located approximately 1,000 feet from the church, and the funeral procession passed within 200 to 300 feet of the picketers. Id. The deceased soldier’s

father filed suit against the church and its founders, alleging several state tort law claims, including intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Id. at 1214. A jury found the defendants liable and awarded compensatory and punitive damages. Id. The court of appeals reversed, holding the church defendants

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were entitled to judgment as a matter of law because the First Amendment protected the church defendants’ speech activities. Id. The United States Supreme Court affirmed. In reaching its decision, the Court examined the content, form, and context of the speech, and concluded that the picketing activity addressed issues of public interest even though they inflicted grave distress on the soldier’s grieving family. Id. at 1216-17. The Court acknowledged the jury found the picketing (and the contents of the messages) “‘outrageous’” and the defendants caused plaintiff to suffer serious emotional distress. Id. at 1219. The Court nevertheless held that the First Amendment shielded the church

defendants from tort liability. As the Court explained: Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. . . . [But] we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate. Id. at 1220. The speech activities that lie at the core of this case also relate to matters of public concern. The content of the Smolinskis’ posters and other speech activities all focused on the search for information to assist with the investigation and potential prosecution of a crime. (See 12/5/2011 at 34:1-2, 44; App. 4.) That a member of the community was missing and possibly the victim of a crime surely is “a subject of general interest and of value and concern to the public.” See Snyder, 131 S.Ct. at 1216 (explaining “[s]peech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’”); see also Cox Broad. Corp. v. Cohn, 420 U.S. 462, 492 (1975) (finding “[t]he

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commission of crime [and] prosecutions resulting from it . . . are without question events of legitimate concern to the public”). The context of the speech — its connection with Gleason — does not make the subject of the speech any less of a matter of public interest. See, e.g., Snyder, 131 S. Ct. at 1217. First, all documented alleged incidents occurred on public grounds. ( See App. 15-19, 22-26.) Second, none of the reward posters mention plaintiff by name. (App. 2021.) Further, the other disputed speech activities that may have alluded to or referenced Gleason by name are squarely within First Amendment protections because police identified plaintiff as a suspect in Billy’s disappearance ( see App. 2, 4, 16). See, e.g., Shoen v. Shoen, 292 P.3d 1224 (Co. Ct. App. 2012) (concluding defendant’s accusation on television that plaintiff may be involved in a murder, and his views about the inadequacy of the investigation by law enforcement were matters of public concern and subject to constitutional protection in defamation action); see also RESTATEMENT (SECOND)
OF

TORTS

§ 652D cmt.f (1977) (“Those who commit crime or are accused of it may not only not seek publicity but may make every possible effort to avoid it, but they are nevertheless persons of public interest, concerning whom the public is entitled to be informed.”) (emphasis added). Here, the trial court erred when it entered a judgment of liability against Billy’s mother and sister for engaging in protected speech designed to uncover information about their son/brother and assist with the investigation and prosecution of a crime. That their speech activities may have caused Gleason distress does not transform the public nature of their speech. The trial court’s ruling violates a fundamental tenant of the First

Amendment — the “‘profound national commitment to the principle” that the speaker of

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issues of public concern should not be punished for exercising their rights in a peaceful manner. Snyder, 131 S.Ct. at 1215, 1220.5 It also frustrates the public policy in favor of

investigating, stopping, and reporting crimes. 6 Because the trial court’s error is “‘of such monumental proportion that [it] threaten[s] to erode our system of justice and work a serious and manifest injustice on the aggrieved party,’” this Court must reverse the judgment. Perricone v. Perricone, 292 Conn. 187, 218-219 (2009). B. THE TRIAL COURT EXHIBITED BIAS WHICH CONSTITUTES PLAIN ERROR

The trial judge’s failure to recuse himself or sua sponte declare a mistrial constitutes plain error because his conduct throughout the trial raises suspicion on the fairness of the administration of justice, and evidences the trial judge’s apparent bias and lack of impartiality. Specifically, the trial judge (1) publically committed himself during trial on the record to Defendants’ liability and wrongdoing; (2) admitted and relied upon hearsay evidence proffered by plaintiff; (3) held in-Chambers hearings to “protect the reputation” of

Although Connecticut courts have not squarely addressed this issue, the state constitutional protection for free speech should be no less protective of the Smolinskis’ speech. See Conn. Const. art. I, § 4 (guaranteeing “[e]very citizen may freely speak, write and publish his sentiments on all subjects”); see, e.g., State v. Linares, 232 Conn. 345, 385 (Conn 1995) (concluding the state constitution may be more protective of some forms of speech than the federal constitution); Cologne v. Westfarms Associates, 192 Conn. 48, 57 (1984) (observing federal law only “establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights”). 6 See, e.g., Lachman v. Sperry-Sun Well Surveying Co. , 457 F.2d 850, 853 (10th Cir. 1972) (“It is public policy . . . everywhere to encourage the disclosure of criminal activity”); Porterfield v. Mascari II, Inc. , 823 A.2d 590, 603 (Md. 2003) (explaining the state’s “public policy . . . favoring the investigation and reporting of suspected criminal activity”); Crea v. FMC Corp., 16 P.3d 272, 275 (Id. 2000) (“There is a strong public policy favoring investigation and disclosure of criminal activity.”); Lundberg v. Scoggins, 335 N.W.2d 235, 235 (Minn. 1983) (dismissing tort action against crime victim for negligent accusation and misidentification of criminal suspect based on “longstanding public policy reasons encouraging witness/victim participation in criminal investigations and prosecutions”).
5

16

a local politician and key witness; and (4) refused to permit Defendants’ repeated offers of evidence as to the defense of truth, motive, and witness credibility. 1. JUDICIAL CONDUCT; DUTIES OF JUDGE; STANDARD OF REVIEW

CANON 2 of Connecticut’s Code of Judicial Conduct requires a trial judge to perform the duties of judicial office impartially and without bias. 1 Conn. Prac., Super. Ct. Civ. Rules CANON 2 (2012 ed.). The pertinent Rules in CANON 2 provide: RULE 2.2. Impartiality and Fairness A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. RULE 2.3. Bias, Prejudice, and Harassment (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice… RULE 2.4. External Influences on Judicial Conduct or Judgment (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge’s judicial conduct or judgment. A Connecticut trial judge has “a duty to see that no falsehood or other fraud is perpetrated in court.” General Statutes § 1-25; Code of Professional Responsibility DR 7-102(B)(1) and (2). In Cameron v. Cameron, Connecticut’s Supreme Court succinctly and clearly sums up the law and standards governing an assertion of bias on appeal: We would not ordinarily review on appeal a claim that a trial judge should have disqualified himself or declared a mistrial at a certain stage of the proceedings when no such request was made during the trial…We are dealing here, however, with an accusation of prejudice against a judge, “which strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary . . .” For this reason, which implicates basic concepts of fair trial, we have decided to invoke our authority in the interests of justice to review “plain error” not properly preserved in the trial court. Practice Book § 3063.

17

No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. …In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. A judge “should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him.” A judge, trying the cause without a jury, should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial. It is his responsibility to have the trial conducted in a manner which approaches an ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. Proof of actual bias is not required for disqualification. The appearance as well as the actuality of impartiality on the part of the trier is an essential ingredient of a fair trial. 187 Conn. 163, 168-169 (1982) (internal citations omitted). Although Defendants did not raise the bias issue below, this Court has broad discretion to review the claim on appeal. See Cameron, 187 Conn. at 168. In reviewing a claim of judicial bias, Connecticut appellate courts employ a plain error standard of review. Statewide Grievance Committee v. Burton, 299 Conn. 405, 416 (2011) (citing Knock v. Knock, 224 Conn. 776, 792-93 (1993)). The standard is an objective one, and “any

conduct that would lead a reasonable person knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification.” Id. (citing State v. Shabazz, 246 Conn. 746, 768-69 (1998)). To prevail, Defendants need not show actual bias, but will meet their burden if they can prove the conduct in question gave rise to a reasonable appearance of impropriety. Wiegand v. Wiegand, 129 Conn App. 526, 534 (2011). Connecticut courts have found “plain error” in cases “where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the See

18

judicial proceedings.” Doody v. Doody, 99 Conn. App. 512 (2007); Small v. Stop & Shop Cos., 42 Conn. App. 660, 663 (1996); Baugher v. Baugher, 63 Conn. App. 59, 68 (2001). 2. THE TRIAL RECORD DEMONSTRATES PLAIN ERROR IN THE TRIAL JUDGE’S BIAS AND LACK OF IMPARTIALITY.

Fundamentally, the trial judge had a duty to stop any fraud being perpetrated in the courtroom. But the Record reveals Gleason and Sorenson either lied in their trial testimony or in statements to police, and the trial judge precluded Defendants from offering impeachment evidence to reveal those inconsistencies. ( See Section II(A), supra at 2-3 (setting forth Gleason’s inconsistent testimony.) These rulings permitted mistruths testified to in the court room, under oath, to stand. According to Gleason’s testimony, Woodbridge Police were concerned with protecting Sorenson, as he was a prominent politician in Woodbridge. ( See 11/29/2011 Tr. at 100:9-11.) Moreover, Sorenson was business partners with Cohen, plaintiff’s employer. (Id.) Given these facts and Gleason’s inconsistencies, Defendants subpoenaed Sorenson as a trial witness (See 12/5/2011 Tr. at 28:17-18.), because Defendants had a legal right to attack witness credibility and to establish the role of bias and motive in the testimony given by Cohen, Gleason and Sorenson. But incredulously, in an off-the-record, in-Chambers ruling, the trial judge prohibited Defendants from asking Sorenson any questions about the romantic relationship between Sorenson and Gleason. This ruling constitutes plain error and runs afoul of Rule 2.4 of the Code of Judicial Conduct. The ruling was prejudicial because, like Gleason, Sorenson gave wildly inconsistent statements concerning the events leading up to Billy’s disappearance. (See Section II(A), supra at 3-4.)

19

While the Court permitted police, Gleason, Cohen, and Vrabel to testify about Janice Smolinski’s arrest for putting up missing posters, (based solely on Vrabel’s “statement” concerning an alleged trespass), and allowed introduction of the arrest into evidence, the Court refused to permit Defendants to introduce into evidence the fact that prosecutors determined the case against Janice Smolinski was without merit and that prosecutors initiated a nolle prosequi application disposing of and erasing the charges. It is astounding that, when Defendants sought to introduce evidence of that disposition, ( see 11/29/2011 Tr. at 51:20-21), the court refused to admit it ( id. at 26-27). Gleason and her witnesses testified that being publicly identified as a suspect was the real source of her emotional anguish and damage to her reputation. ( See, e.g.,

11/29/2011 Tr. at 12:13-15; 31:18-27; 109-110.) But Gleason had many other issues in her life that likely caused grave emotional distress. The trial court allowed virtually no evidence on these other issues, while giving Plaintiff broad latitude in presenting evidence concerning her alleged emotional distress. (See Section II(D), supra at 8-10.) The court permitted testimony of how Defendants’ alleged activities allegedly precluded Gleason from getting custody of her granddaughter. But when Defendants

attempted to present witness testimony from the person actually awarded custody of the child concerning the actual reasons why Gleason did not get custody, the trial court refused to admit such evidence. (12/5/2011 Tr. at 23:14-19.) The trial court sustained Plaintiff’s counsel’s objection to proffered evidence of Gleason’s history of arrests and domestic violence, finding such evidence “irrelevant.” ( Id.) Perhaps most troubling, when Defendants’ counsel objected to the introduction of irrelevant and unsubstantiated evidence, the trial judge publically committed himself to the

20

conclusion that Defendants inflicted trauma on plaintiff, that the followed wherever she went and that they caused her damage, stating: “ the fact that it [the effects of Defendants’ alleged activities]—that it follows her wherever she goes and whatever she does, just like they followed her wherever she went and whatever she did that’s part of what’s happened to this woman and it’s part of the trauma they’ve inflicted upon her .” (emphasis supplied).) Under Cameron, this statement alone merits the trial judge’s sua sponte declaration of a mistrial. Moreover, the Record simply fails to support the judge’s conclusion. The judge’s statements directly contradict the testimony given under oath by both Defendants. Indeed the court goes out of its way to find that it “credits” Gleason’s testimony and that of her cohorts over that of the Smolinski family. ( See Mem. Dec. at 9.) Once a trial judge “declares that he believes a party or a witness has been deceitful, however, he cannot continue to preside in his role of impartial arbiter.” Cameron, 187 Conn. at 170. For reasons the court does not make clear in its decision, the Court admits 3 separate categories of inadmissible hearsay: (1) Cohen’s testimony about phone calls from school board members; (2) double hearsay contained within the police reports; and (3) the statement from the unidentified man at the gym. While briefed elsewhere, the admission of and reliance upon these statements in the Court’s decision reflects an overall pattern of bias and impartiality that it is troubling. The Record reveals a situation “which inevitably raises in the minds of litigants ... a suspicion as to the fairness of the court’s administration of justice.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 615 (1967). The trial court’s decision here portrays a judicial system that: protects a local politician who changed his story; permits civil damages despite clear (Id. at 112:1-7

21

First Amendment rights to speech seeking information about a disappeared family member; it gives money to a “suspect” in a murder investigation who was ripping down missing posters while a driving a public school system school bus, all because the a victim’s mother and sister were putting up missing posters and discussing media stories about a woman identified as a “suspect” by police. In Mercer v. Cosley, this Court warned that the plain error doctrine is a “rule of reversibility” that the court invokes “to rectify a trial court ruling that, although not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment for reasons of policy.” 110 Conn. App. 283, 291 (2008). A party should prevail under plain error when the party demonstrates that the failure to grant relief will result in manifest injustice. Id. In this case, failure to grant relief will indeed result in manifest injustice. C. THE TRIAL COURT ERRED BY FINDING “INTENT” SOLELY BASED STATEMENTS MADE TO POLICE AND MEDIA
ON

HEARSAY

The trial court’s judgment rests entirely on its finding that Defendants engaged in the “hanging of posters in areas where the plaintiff lived and worked for the sole purpose of intimidating and harassing the plaintiff.” (Mem. Dec. at 7 (emphasis added).) For which the court relied on the following “evidence”: Janice Smolinski’s alleged statement to police that she was “trying to break her” ( Id. at 9); Mrs. Smolinski’s alleged statements to the Waterbury Observer; and Calls to B&B complaining about Gleason ( Id. at 7). The trial court should not have considered or relied upon Mrs. Smolinski’s alleged comments to police for three reasons. First, the statements were made in connection with an arrest that was dismissed as baseless. (See App. 3.) Under Section 54-142 of the Connecticut General Statutes, no

22

testimony should have been permitted concerning any aspect of the investigation leading up to the arrest. According to CGS 54a Section 142(e), “any law enforcement agency having information contained in such erased records shall not disclose to anyone.” Furthermore, “Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” Id. As a result, the court committed reversible error by admitting testimony concerning the arrest. See id. Second, because Mrs. Smolinksi allegedly made the statements to law enforcement in good faith in the course of an official investigation, the statements are subject to qualified privilege under Connecticut law and the trial court’s admission of and reliance on the statements constitutes plain error. See Gallo v. Barile, 284 Conn. 459, 471-72 (2007). Finally, the trial court improperly admitted the evidence even though it is plainly unreliable hearsay. In his April 5, 2005 Report, Sullivan indicates “ [t]his officer returned to where Smolinski and Bell were waiting and in speaking with them . . . Mrs. Smolinski stated she has been saturating all the areas where she knows Gleason goes because she is trying to break her.” While the report plainly states Mrs. Smolinski made the statement to Sullivan, Sullivan denies at trial that she said any such thing to him, instead claiming that Crowther must have “advised him” Mrs. Smolinski made such a statement. (11/29/2011 Tr. at 40:18-19 (emphasis added).) Defendants objected to any testimony by Sullivan

regarding what was reported to him based on hearsay, but the Court allowed it. ( See id. at 41-45.) For his part, Crowther said he had no independent recollection of any conversation but testified that he must have relayed the comment to Sullivan if Sullivan said so and, when pressed on precisely what Mrs. Smolinski said, Crowther read verbatim from the

23

report in which Sullivan claims Mrs. Smolinski made the remark to him. (12/5/2011 Tr. at 8:9-11.) Combined with Mrs. Smolinski’s denial of the statements, these factors render the alleged statement patently unreliable hearsay that the trial court should have excluded. See Baughman v. Collins, 56 Conn. App. 34, 38 (1999). The remaining two categories of “intent” evidence are similarly problematic because they are hearsay statements with no indicia of reliability. The trial court acknowledges that the alleged telephone calls to Cohen are hearsay, but indicates it “attaches no weight to the contents” of such call. (Mem. Dec. at 7.) The court also acknowledges that the alleged media statements are hearsay and that Mrs. Smolinski was never specifically questioned by either party regarding the statements. ( Id. at 8.) Citing no authority, the court suggests it is free to weigh this hearsay evidence as proof of Defendants’ motive. Connecticut law plainly provides that, unless the alleged statement is deemed to fall within a recognized hearsay exception and determined to be reliable (neither of which is present here), it is reversible error for courts to rely on such evidence for any reason. Baughman, 56 Conn. App. at 38. D. CLAIM Whether the trial court correctly concluded Defendants’ actions satisfied the requisite elements for a successful intentional infliction of emotional distress claim is a mixed question of law and fact on which this Court must “determine whether the court’s conclusions are legally and logically correct and find support in the facts that appear in the record.” Winchester v. McCue, 91 Conn. App. 721, 726 (2005) (citing Tuchman v. State, 89 Conn. App. 745, 750 (2005)). THE TRIAL COURT MISAPPLIED
THE

LAW

AND

FACTS RELATING

TO THE

IIED

24

To establish a cause of action for IIED under Connecticut law, Plaintiff must put forth evidence sufficient to prove: (1) Defendants intended to inflict emotional distress or that they knew or should have known that emotional distress was the likely result of their conduct; (2) the conduct was extreme and outrageous; (3) that their conduct was the cause of the Plaintiff's distress; and (4) that the emotional distress sustained by the Plaintiff was severe. See Watts v. Chittenden, 301 Conn. 575, 586 (2011). None of these elements were established in this case. 1. THE RECORD IS INSUFFICIENT FOURTH ELEMENTS OF IIED
TO

SUPPORT

A

FINDING

ON THE

THIRD

AND

The trial court committed plain legal error by crediting Gleason’s IIED claim based solely on lay testimony. In finding Plaintiff met her burden in establishing the third and fourth elements of IIED, the trial court relied exclusively upon testimony by Gleason and her two friends, Vrabel and Depallo. ( See Mem. Dec. at 15.) The court observed “it is not

necessary to produce expert testimony to establish” the severity of the emotional distress or the causation. (Id.) That conclusion is at odds with Connecticut law. Where the facts suggest emotional distress could have been caused by several potential external factors, the plaintiff must show why defendant’s specific conduct created an additional risk of distress, above and beyond the distress that would have otherwise occurred. See Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 713-14, cert. denied, 252 Conn. 953 (2000); Hayes v. Yale-New Haven Hospital, 48 Conn. Sup. 311, 345 (2001), aff’d, 82 Conn. App. 58 (2004). Further, where, as here, alternative theories as the possible cause of plaintiff’s emotional distress are present, plaintiff must rely on expert testimony to establish causation; causation cannot

25

be proved by lay testimony alone. See Dickerson v. Eagle Landing Residential Care, 2010 Conn. Super. LEXIS 1186 at *9 (May 25, 2010) (trial court properly excluded plaintiff’s lay testimony that a battery exacerbated her emotional distress, holding expert testimony was required to establish causation). In addition, there is no evidence that the court gave any consideration to the myriad of other potential causes of Gleason’s purported emotional distress, including her public identification as a suspect in Billy’s disappearance and the related media coverage of her various other problems. All the witnesses on whose testimony the court relied in finding IIED identified that publicity as a cause of emotional distress for Gleason. ( See, e.g., 11/29/2011 Tr. at 12:13-15; 31:18-27; 109-110.) In addition, the trial court’s opinion fails to account, in any manner, for the other likely causes of distress, including: (1) the suicide of Gleason’s daughter the month before Billy’s disappearance; (2) the death by drug overdose of her son in the year after; (3) the death of yet another child; (4) her breakup with Billy; (5) the fact that she was publicly identified as dating a married local politician. ( See Mem. Dec. at 14-15.) Finally, the trial court should have prevented Gleason from presenting evidence on the severity of her emotional distress or on the causation issue based on her failure to disclose previous mental health treatment. When asked to provide documentation of any medical treatment that is in anyway relevant to her claimed emotional distress, Plaintiff indicated she had “none.” (App. 36 (Interrogatory No. 31.) Defendants filed a motion in limine to exclude any matters not disclosed in discovery. ( See Docket No. 130.) At trial, Plaintiff admitted she had been in therapy and contended that she could produce records from the same. (11/29/2011 Tr. at 137:1-27.) Defendants were prejudiced by Plaintiffs’

26

failure to disclose her treatment history because that evidence bears directly on the issue of causation and the severity of the emotional distress allegedly caused by Defendants’ conduct.
2. THE TRIAL COURT ERRED BY IGNORING DEFENDANTS’ JUSTIFICATION FOR THEIR ALLEGED CONDUCT

Defendants’ alleged conduct cannot constitute IIED as a matter of Connecticut law for two primary reasons. First, the court misapplied the law of privilege in the context of IIED. As the trial court recognizes, RESTATEMENT (SECOND)
OF

TORTS (1965) § 46(g) states: “[t]he conduct,

although it would otherwise be extreme and outrageous, may be privileged under the circumstances. The actor is never liable, for example, where he has done no more than to insist upon his rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” The court rejected the notion

Defendants’ conduct could be privileged because Defendants’ real intent was to “underlie [Gleason’s] supposed knowledge of the criminal disappearance of Bill[y] Smolinski.” (Mem. Dec. at 13.) The court’s analysis is fatally flawed in that the court assumes both that Gleason does not have such information and that the Defendants were not reasonable in believing she does. As discussed Statement of Facts (Section II(A), supra at 3), the Smolinskis had good reason to believe Gleason was a suspect. In addition, aside from the self-serving testimony of Plaintiff and her cohorts, the only credible evidence suggests that all Defendants ever did was (1) put up posters where Gleason and her friends had torn them down and/or vandalized them; and (2) on the instruction of police, videotape Gleason and her cohorts tearing the posters down. To find such efforts by a grieving mother and sister

27

actionable under tort law would be to turn the public policy underlying Connecticut’s law on IIED on its head. Second, because Defendants’ “intent” was to get answers regarding Billy’s disappearance and replace the torn down fliers, rather than to harm Plaintiff, the conduct cannot be held to be sufficiently “extreme or outrageous” to constitute IIED as a matter of Connecticut law. See Zushrya St. Lot v. Burlington Coat Factory , 2009 Conn. Super LEXIS 1623 at *11 (2009) (“[I]t is the intent to cause injury that is the gravamen of the tort . . .”); Mellaly v. Eastman Kodak Co., 42 Conn. Supp. 17, 19-20 (1991) (finding sufficiently outrageous intent where ex-husband told plaintiff he had AIDS when he actually did not); Carrol v. Allstate Insurance Co., 262 Conn. 433 (2003) (finding lack of intent where insurance adjuster accused of burning down his own home and refused to reimburse plaintiff for the loss of his home); Angiollo v. Buckmiller, 102 Conn. App. 697, 707 (2007) (signing plaintiff’s name on an application to open a grave was not sufficiently outrageous conduct); Smulewicz-Zucker v. Zucker, 98 Conn. App. 419, 427 (2006) (husband’s “bartering child custody for money” was not extreme and outrageous); Petitte v. DSL.net, Inc., 102 Conn. App. 363, 377 (2007) (not extreme and outrageous conduct when defendant rescinded plaintiff’s employment offer after plaintiff had resigned from current job). E. THE TRIAL COURT ERRED IN FINDING DEFAMATION ON THIS RECORD

Whether the trial court erred in concluding Defendants’ actions satisfied the requisite elements for a successful defamation claim is a mixed question of law and fact which is reviewed under the plenary standard to “determine whether the court’s conclusions are legally and logically correct and find support in the facts that appear in the record.”

28

Winchester v. McCue, 91 Conn. App. 721, 726 (2005) (citing Tuchman v. State, 89 Conn. App. 745, 750 (2005)). To prove defamation, Plaintiff was required to produce admissible evidence to prove by a preponderance of the evidence: (1) Defendants 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. See Cweklinsky v. Mobil Chemic Co. , 267 Conn. 210, 217 (2004). Further, Plaintiff must show the defamatory statements were made with “actual malice.” See Chadha v. Shimelman, 75 Conn. App. 819, 826 (2003). “Actual malice

requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false.” Chadha v. Charlotte Hungerford Hosp. , 97 Conn. App. 527, 537, (2006). Again, none of these elements were established in this case. The trial court found defamation based on two categories of statements: (1)

statements allegedly made by Defendants to Vrabel and Depallo, and (2) a statement made to Gleason by an unidentified man at her gym. Neither category of statements gives rise to a cognizable defamation claim under Connecticut law. 1. THE ALLEGED STATEMENTS TO VRABEL THAT CANNOT CONSTITUTE DEFAMATION
AND

DEPALLO

ARE

OPINIONS

The trial court finds two specific sets of alleged statements to Gleason’s friends defamatory: “Fran Vrabel testified that Janice Smolinski told her on several occasions that Gleason ‘did something to her son’ and that ‘she believes that either [Gleason] or someone in her family murdered her son.’” (Mem. Dec. at 20.) “Ms. DePallo testified Janice Smolinski approached her and said you do not know what Gleason is capable of; she said she does

29

not believe Gleason killed her son personally but she knows where he is and Mrs. Smolinski thought ‘she’s involved.’” (Mem. Dec. at 20.) Fundamentally, these statements are not defamation because they are mere statements of opinion. To be actionable, the statement in question must convey an objective fact as opposed to the speaker’s mere views as to the likely facts. Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 795-96, (1999). A speaker can only make a factual statement when the person hearing the speaker believes the speaker is making a declaration on an objectively verifiable fact on which the speaker has personal knowledge. See id. An opinion, on the other hand, is a personal comment about another's conduct, qualifications or character that has some basis in fact. Goodrich v. Waterbury RepublicanAm., Inc., 188 Conn. 107, 111, (1982). Even though an opinion appears in a factual

context, it remains an opinion ‘if it is clear from the context that the maker is not intended to assert another objective fact but only his personal comment on the facts which he has stated.’” Id. at 111. For example, “a statement must be an expression of fact such as ‘he is a thief’ . . .” rather opinion statement “‘I think he is a thief.’” Daley, 249 Conn. at 795-96. All the statements Gleason’s friends allege Mrs. Smolinski made fall squarely within the latter category—Mrs. Smolinski’s “beliefs” concerning Gleason. The alleged statements where Mrs. Smolinski says “she believes that either Madeline or someone in her family murdered her son” and she “believes” Gleason is involved in some way involved are opinions on their face. Daley, 249 Conn. at 795-96. In addition, the remaining statement, “you do not know what Gleason is capable of,” is a mere expression of opinion which cannot give rise to a tort claim in Connecticut. See id. This is especially true because Gleason’s friends are just as acquainted with the facts of Billy’s disappearance (if not more

30

so) than Mrs. Smolinski and they know that she is not in a position to offer any “objective fact” concerning the disappearance contrary to widely available public knowledge. Further, even if the alleged statements were deemed defamatory, the statements cannot support a claim for damages because Gleason suffered no resulting reputational harm. Both Vrabel and Depallo continue to be friendly with Plaintiff and fully supported her at trial. See Cweklinsky, 267 Conn at 217 (reputational damage is an essential element). 2. THE COURT ERRED BY FINDING DEFAMATION BASED AN UNIDENTIFIED GYM CUSTOMER
ON A

COMMENT

TO

The trial court characterizes the only remaining statement it deemed defamatory as follows: “She drove to her gym, the defendants were following her and Gleason says ‘a guy came and said those people (referring to the Smolinksis) just followed you in and said you were a murderer’.” (Mem. Dec. at 22.) Fundamentally, the trial court failed to recognize that Gleason’s alleged statement is, once again, directly undermined by her prior statements to police. In an August 5, 2005 report to Waterbury Police wherein Gleason was questioned about (and denied) tearing down posters, she told police about a time when she “joined a gym and shortly after the owner came up to her with a flier saying someone gave it to him and that person told him that [Gleason] knew about it.” (App. at 11 (emphasis added).) Gleason “refused to identify” anyone to police. (Id.) At trial, Gleason testified “I joined a gym they followed me; the guy came in and said those people just followed you in and said you were a murderer.” (11/29/2005 Tr. at 114:25-27.) The trial court’s decision to ignore Gleason’s statement to police in favor of her trial testimony is troubling say the least. Moreover, in crediting the statement, the court drew inferences totally unsupported by the statement itself. It is impossible to determine from the record exactly who Gleason

31

claimed made the allegedly defamatory remark. Gleason was about to list other instances where “they” made such statements when she was interrupted by counsel for Defendants’ hearsay objection (Id. at 115:1.) In response to the objection, the court indicated “I’ll let it in but I don’t know if I can attach any weight to it. ( Id. at 115:7-8.) Gleason gave no details indicating precisely who allegedly made the statement to the unidentified man or who “followed her” into the gym. (Id. at 114:25-27.) In prior testimony, when testifying about “them” following her, Gleason stated “it would not only be Janet [ sic] and Paula, but it would be their family.” (11/29/2005 Tr. at 102:16-18.) Indeed, in characterizing the statement, the court assumes (with no support) that Gleason is talking about the “Smolinskis.” The

Smolinskis (whoever that includes) are not defendants in this action. Accordingly, the trial court erred by holding Defendants liable for a statement that cannot be specifically attributed to either one of them. See Daley, 249 Conn. at 795-96. The trial court also erred both in admitting the hearsay evidence and in relying on it as one of two bases for finding defamation. The statement constitutes double-hearsay because Gleason is reporting what the man in the gym said the “Smolinskis” said to him. Section 8-7 of the Connecticut Code of Evidence states, “hearsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception.” The first level of hearsay, the party following Gleason (implied by Gleason as the Smolinskis) to the man at the gym, would satisfied by Section 8-3(1) (statement by a party opponent) if the statement was indeed made by a party. However, that exception does not apply because it is impossible to tell who allegedly made the statement. Additionally, there is no hearsay exception applicable to the second level of hearsay; the man’s reporting the incident to Gleason. There is simply nothing that

32

prevented Gleason from asking the man for his name and listing him as a witness in her case. The record contains no indication she made any such effort. Consequently, the trial court should have excluded the evidence under Connecticut’s hearsay rule. Baughman, 56 Conn. App. at 38. 3. THE DEFAMATION CLAIM FAILS BECAUSE PLAINTIFF DID NOT SHOW THE ALLEGED STATEMENTS WERE FALSE See Goodrich v. Waterbury See

Truth is an absolute defense to defamation.

Republican-Am., Inc., 188 Conn. 107, 112, (1982). Further, Plaintiff has the burden of proving the alleged defamatory statements were false. See id. As discussed in Section C (supra at 27-28), the Record provides no evidence demonstrating the falsity of the statements. F. THE TRIAL COURT ERRED PROOF OF DAMAGES
IN

AWARDING DAMAGES

IN THE

ABSENCE

OF ANY

Whether the trial court erred in awarding damages is subject to a clear abuse of discretion standard of review. See Murphy v. Lord Thompson Manor, Inc. , 105 Conn. App. 546, 557 (2008) (citing Barber v. Mulrooney, 61 Conn. App. 108, 111 (2000)). An award for damages will be upheld as long as it does not “shock the sense of justice.” Id. At the post-trial hearing in this matter, Plaintiff’s counsel made the stunning admission that Plaintiff sought only “nominal damages” because Plaintiff did not “present proof of actual damages.” (4/20/2011 Tr. at 4:19-24.) The admission was necessary

because Plaintiff failed to produce any evidence of damages in discovery or at trial. When asked to provide documentation of any medical treatment that is in any way relevant to her claimed emotional distress, Plaintiff indicated she had “none.” (App. 36 (Interrogatory No. 31); id. at 28 (Interrogatory No. 6).) When asked to present evidence of economic loss, 33

Plaintiff indicates only (1) attorney’s fees, and (2) “plaintiff’s relationship with her employer has become strained.” (See Id. at 37-38.) In response to document requests seeking evidence of lost wages, the Plaintiff indicates she is “not claiming an impairment of earning capacity . . . .” (Id. at 38 (Document Request 2).) Defendants filed a motion to exclude all evidence other than that contained within those (deficient) responses and Plaintiff should have been barred from presenting any evidence not disclosed. ( See Docket No. 131.) To establish she is entitled to compensatory damages for the harm she claims she suffered, Plaintiff was required to present evidence demonstrating (1) she incurred such losses and (2) the losses proximately resulted from Defendants’ conduct. See Preston v. Phelps Dodge Copper Products Co., 35 Conn. App. 850, 863 (1994). While Plaintiff is entitled to seek nominal damages in the absence of such proof, such damages are generally limited to $1. See Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 504 (1995). Punitive damage awards in Connecticut are designed to punish defendants for behavior “wanton and malicious injury, evil motive and violence,” which must be established by a preponderance of the evidence. See id. The trial court puts forth no justification for awarding actual and punitive damages absent Plaintiff’s admitted lack of proof for same. In ruling on the IIED claim, the court simply fixes the amount at $32,000 without discussing how it arrived at that figure. (Mem. Dec. at 32.) Similarly, for the defamation count, the court baldly fixes damages at $7,500. (Id. at 34.) While the court cites law in support of the fact that it can award punitive damages based on the IIED and defamation causes of action asserted, it refers to no evidence in the Record supporting the award of punitive damages. ( See id.) The trial

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court’s damages finding is therefore unsupported by the Record and it should be reversed by this Court. V. CONCLUSION & STATEMENT OF RELIEF REQUESTED

Although the amount of money at issue in this appeal is relatively small, the issues this appeal places before this Court are significant. Left to stand, the trial court’s verdict threatens to stifle the efforts of countess families like the Smolinskis to find loved ones and to motivate action on the part of police and public officials. For these reasons, Appellants/Defendants Janice Smolinski and Paula Bell respectfully request that this Honorable Court reverse the trial court’s judgment and remand the case for further proceedings consistent with the Court’s opinion. Respectfully submitted,

______________________________ Michelle S. Cruz, Esquire #428425 10 Columbus Blvd. Hartford, CT 06106 (413) 210-8914 AttyMichelleSCruz@yahoo.com

STEVEN J. KELLY (PRO HAC PENDING) ANNE T. MCKENNA (PRO HAC PENDING) SILVERMAN THOMPSON SLUTKIN WHITE, LLC 201 North Charles Street, Suite 2600 Baltimore, Maryland 21201 Tel.: (410) 385-2225 Fax: (410) 547-2432 skelly@mdattorney.com amckenna@silvermckenna.com Counsel for Appellants

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REQUEST FOR ORAL ARGUMENT Given the unique factual presentations discussed herein, Appellants respectfully request oral argument in this appeal.

CERTIFICATE OF SERVICE PURSUANT TO PB § 62-7 I HEREBY CERTIFY, that on this 25th day of March, 2013 a copy of the forgoing Motion was sent, first class, postage pre-paid and via electronic mail to: John Williams, Esquire 51 Elms Street New Haven, CT 06510 (203) 562-9931 (203) 776-9494 FAX Honorable Thomas Coradino 235 Church Street New Haven, CT 06510 (203) 503 – 6800 (203) 789-6424 FAX

______________________________ Michelle S. Cruz, Esquire #428425

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CERTIFICATE OF COMPLAINCE WITH PB § 67-2 The undersigned certifies that this Brief complies with all the applicable requirements of PB Section 67-2. ______________________________ Michelle S. Cruz, Esquire #428425

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