Cohen v. Meyers

 JOSEPH COHEN v. ROBERT MEYERS ET AL.
(AC 38737)
Sheldon, Beach and Mihalakos, Js.
Syllabus
The plaintiff sought to recover damages from the defendant general contrac-
tor, M, and the defendant R Co., of which M was the president and sole
shareholder, for, inter alia, breach of a home construction contract. The
defendants thereafter filed a counterclaim alleging breach of contract,
defamation and intentional infliction of emotional distress. The matter
was tried to the court, which rendered judgment in part for the plaintiff,
concluding that R Co. had violated the Connecticut Unfair Trade Prac-
tices Act (CUTPA) (§ 42-110a et seq.) by failing to comply with the New
Home Construction Contractors Act (act) (§ 20-417a et seq.) and, inter
alia, by not registering as a new home construction contractor with the
Department of Consumer Protection while negotiating a contract with
the plaintiff. The court also rendered judgment in part for the defendants
on the counts of their counterclaim alleging breach of contract and
defamation. On the plaintiff’s appeal and the defendants’ cross appeal
to this court, held:
1. The plaintiff could not prevail on his claim that the trial court improperly
failed to pierce the corporate veil of R Co. and to hold M personally
liable for fraud and violation of CUTPA; although the court determined
that R Co. failed to comply with the act governing new home construction
contracts and that that failure constituted a violation of CUTPA, it
concluded that M’s control of R Co., alone, was an insufficient basis on
which to pierce the corporate veil and that the plaintiff’s proof did not
establish wilful, malicious, immoral or deceitful conduct by M, the record
having supported the court’s finding that the plaintiff offered insufficient
evidence to satisfy the instrumentality test for disregarding a defendant’s
corporate structure.
2. The trial court properly ruled in favor of M on his defamation claim, that
court having found that the plaintiff’s statements that M was a cheat,
thief, liar, admitted criminal, and incompetent building contractor, and
that M had caused the death of a customer, cheated on his wife, or
contracted a venereal disease, were defamatory per se, and that the
plaintiff had not met his burden of proof as to his special defense that
the subject statements were true or substantially true; moreover, the
court properly rejected the plaintiff’s claims that his statements were
privileged, as it found that the statements were made with actual knowl-
edge that they were false or with reckless disregard for whether they
were false, that actual malice had been proven by a preponderance of
the evidence, resulting in the loss of any conditional privilege, and that
the speech in question was solely a contrived means for malicious
harassment on a matter of private concern and, thus, was not constitu-
tionally protected as concerning a matter of public concern, and this
court adopted the reasoning of the trial court as a proper statement of
the facts and legal analysis on the issues raised on appeal.
3. The defendants could not prevail on their claim on cross appeal that the
trial court improperly awarded the plaintiff damages on his CUTPA
claim against R Co. because the plaintiff did not prove that he suffered
any compensable injury as a result of R Co.’s failure to comply with
the act governing new home construction contracts: the court, which
credited the plaintiff’s testimony that he received the necessary disclo-
sures from R Co. as required under the act, and that it was highly likely
that he would not have contracted with or paid R Co. the sum of $54,750,
awarded the plaintiff compensatory damages for that amount, for which
he received little or no benefit and which represented his out-of-pocket
costs directly associated with the parties’ contract; moreover, the fact
that the parties’ contractual relationship ultimately deteriorated, which
also may have caused the plaintiff damages, was not a basis for conclud-
ing that the court’s finding that R Co.’s CUTPA violation proximately
caused the plaintiff damages was clearly erroneous.
4. M could not prevail on his claim that the trial court improperly failed to
award him punitive damages on his defamation claim; that court, which
noted that it had considered all of the evidence presented at trial,
declined to award punitive damages to either party without setting forth
the specific legal or factual bases for its decision, and in the absence
of specific details set forth by the court on which it may have relied,
it was presumed that the court properly applied the law and did not
abuse the wide discretion afforded to it in making that determination.
5. M ’s claim that the trial court erred in rejecting his claim for intentional
infliction of emotional distress was unavailing; the court found that even
if the plaintiff was engaged in a personal vendetta intended specifically
to humiliate and harass M or to make him lose his job, the specific
conduct of the plaintiff did not rise to the level of extreme and outrageous
conduct as a matter of law, as required to impose liability for intentional
infliction of emotional distress, the court having properly focused on
the conduct on which M’s claim was based and the manner in which the
plaintiff undertook his campaign to harm M’s personal and professional
reputation, rather than the generalized characterizations of that conduct,
regardless of the motivation behind it.
Argued May 25—officially released August 15, 2017
Procedural History
Action to recover damages for, inter alia, breach of
contract, and for other relief, brought to the Superior
Court in the judicial district of Middlesex, where the
defendants filed a counterclaim; thereafter, the matter
was transferred to the judicial district of Hartford, Com-
plex Litigation Docket, and tried to the court, D. Sheri-
dan, J.; judgment in part for the plaintiff on the
complaint and in part for the defendants on the counter-
claim, from which the plaintiff appealed and the defen-
dants cross appealed to this court. Affirmed.
Christopher A. Klepps, with whom was Richard D.
Carella, for the appellant-appellee (plaintiff).
Melissa S. Harris and Michael F. Dowley, for the
appellees-appellants (defendants).
Opinion
SHELDON, J. In this case arising from a home con-
struction contract, both parties appeal from the judg-
ment of the trial court. The plaintiff, Joseph Cohen,
brought this action against the defendants, Robert M.
Meyers and Robert M. Meyers, Inc. (RMMI), stemming
from a contract for the construction of a new home to
be built by RMMI on a lot of land that Cohen had owned
for many years prior to entering into said contract.
Cohen’s nine count revised complaint alleged the fol-
lowing claims against Meyers: breach of contract, fraud,
unjust enrichment, violation of the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., statutory theft in violation of General Stat-
utes § 52-564, and conversion. Cohen alleged the follow-
ing claims against RMMI: breach of contract, rescission,
and violation of CUTPA. The defendants filed an answer
denying Cohen’s allegations or leaving him to his proof,
set forth various special defenses, and asserted counter-
claims for breach of contract, defamation, and inten-
tional infliction of emotional distress. Cohen denied
the special defenses advanced by the defendants in
response to his complaint. Cohen also denied or left
the defendants to their proof as to their counterclaims
and asserted special defenses to those counterclaims,
claiming abandonment and fraud as to the breach of
contract counterclaim, and truth and privilege as to
the defamation counterclaim. The defendants denied
Cohen’s special defenses.
After a bench trial, the court, D. Sheridan, J., filed
a memorandum of decision in which it found in favor of
Cohen on his CUTPA claim against RMMI, and awarded
damages on that claim in the amount of $54,750. The
court rejected all of Cohen’s additional claims against
the defendants. The court found in favor of RMMI on
its counterclaim for breach of contract, but found that
it had failed to prove damages resulting from that
breach, and thus awarded it nominal damages in the
amount of $1. The court found for Meyers on his defa-
mation claim and awarded him noneconomic damages
in the amount of $100,000. The court found in favor of
Cohen on the defendants’ counterclaim for the inten-
tional infliction of emotional distress. The court
declined to award punitive damages to either party.
On appeal, Cohen challenges the court’s judgment in
favor of Meyers, individually, on his claims for fraud
and violation of CUTPA, asserting that the court erred
in declining to pierce RMMI’s corporate veil. Cohen
also claims that the court improperly held him liable
for defamation because his speech was protected by the
first amendment, he did not make any of the allegedly
defamatory statements against Meyers with actual mal-
ice, the court employed the wrong legal standard in
determining the issue of malice, and each of his alleg-
edly defamatory statements was substantially true even
though the burden of proof was assertedly on Meyers
to prove that they were not.
In their cross appeal, the defendants first claim that
the court erred in awarding damages on the plaintiff’s
CUTPA claim against RMMI because he failed to prove
that he suffered any actual loss or injury as a result of
the CUTPA violation. Meyers also claims that the court
erred in failing to award punitive damages on his defa-
mation claim and in rejecting his claim for intentional
infliction of emotional distress. We affirm the judgment
of the trial court.
The trial court found the following relevant facts. ‘‘In
October, 1999, Cohen bought a parcel of undeveloped
land within the town of Chester . . . known as 11
Kings Highway, with the intention of someday building
a single-family home upon the property.
‘‘At the time of Cohen’s purchase of . . . 11 Kings
Highway, a ‘driveway’ surfaced with sand and crushed
gravel and protected by adjacent drainage swales, had
been in place since 1987. When Cohen bought the lot
in 1999, his ‘understanding’ was that the land was ‘a
fully buildable lot,’ with approvals in place. Cohen also
referred in his testimony to the property as an ‘approved
building lot.’ The only additional permit or approval he
understood he needed prior to commencing construc-
tion was for a septic system, which would require a
satisfactory percolation test. Cohen testified that, based
on discussions with the Chester zoning enforcement
officer, which occurred in 1999 and again in 2002, he
continued to believe that—except for septic—all
approvals were in place and he ‘had no concerns’ about
his ability to build a house on the property using the
existing driveway for access and the existing drainage
swales for erosion control.
‘‘In 2005, the town of Chester Planning and Zoning
Commission adopted new driveway regulations. While
the existing driveway on the 11 Kings Highway property
in Chester met the town’s driveway requirements in
place from 1987 to 2005, it did not comply with the
requirements adopted in 2005.
‘‘In April, 2009, Cohen undertook to obtain a percola-
tion test and septic design for the property, which was
later approved. Around the same time, Cohen hired
designer Brian Buckley to prepare plans for a single-
family home to be built on his property in Chester.
Buckley provided Cohen several names of general con-
tractors to consider for the construction of the home,
one of which was RMMI. At that time, in April, 2009,
RMMI possessed a valid new home construction con-
tractor (‘NHCC’) registration.
‘‘Robert M. Meyers is the president and sole share-
holder of RMMI. At all times RMMI acted through Mey-
ers, and Meyers has admitted that he had ‘complete
control and domination of all business and fiscal poli-
cies and procedures’ of the corporation.
‘‘Beginning in April, 2009, there was an exchange of
e-mail correspondence between Cohen and Meyers, on
behalf of RMMI, which continued sporadically through
January, 2010. During that time period, on October 1,
2009, RMMI’s NHCC registration lapsed. Additional
e-mails were exchanged from January 19, 2010 through
July 28, 2010. During this time period, the parties
worked out the basic aspects of their agreement, and
RMMI provided a draft of a contract to Cohen. Of
course, RMMI did not possess a valid NHCC registration
while making any of these communications or conduct-
ing these negotiations.
‘‘In the last days of July, 2010, it became apparent
that Cohen prepared to move forward with the building
of the house. In preparation for the anticipated contract
with Cohen, Meyers, on behalf of RMMI, took several
actions. First, he reached an agreement with Cohen
that the additional costs of land-clearing beyond that
specified in their proposed written agreement would
be split fifty-fifty. Cohen paid the sum of $1250 directly
to the contractor, Stanley Burr, for one half the addi-
tional cost of the site-clearing cost of the property.
Second, on July 30, 2010, Meyers renewed RMMI’s
NHCC registration. Third, on July 30, 2010, Meyers
opened a commercial checking account at Citizens
Bank in the name of RMMI.
‘‘On August 2, 2010, Cohen and RMMI signed the
written ‘Agreement,’ which is appended to the com-
plaint and was exhibit 1 at the trial. The first paragraph
of the agreement clearly and explicitly states that the
contracting parties are Cohen and RMMI:
‘‘AGREEMENT
‘‘This Agreement, made on this 2nd day of Aug.
2010, by and between Joseph M. Cohen (‘Owner’)
of 1060 Shermer Rd. Apt. 16 Northbrook, IL 60062-
3736 and Robert M. Meyers, Inc. of 843 Haddam
Quarter Rd. Durham, Connecticut (‘Builder’).
‘‘Consistent with this recitation, the agreement is
signed—once again clearly and explicitly—by RMMI,
acting through its President, Robert M. Meyers. . . .
‘‘Certain provisions of the agreement are especially
pertinent to this dispute and it is worthwhile to set
them out here in full:
‘‘1. DWELLING: The Builder shall perform the work
and supply all the materials to construct a single
family dwelling on the property with all site improve-
ments substantially in accordance with SCHEDULE
A, the house drawing plan and Site plan. And SCHED-
ULE B, the specifications. (Such dwelling shall be
referred to as ‘dwelling.’) The Builder reserves the
right to: (i) substitute any materials of like or better
quality; (ii) make minor deviations from the drawing/
plans and specifications; and (iii) in the event that
there is a discrepancy between the drawing/plan and
the specifications, the specifications shall control.
. . .
‘‘3. PRICE AND PAYMENT SCHEDULE: The Owner
agrees to pay the Builder the sum of $229,000.00 for
the construction of the Dwelling and site improve-
ments, time being of the essence regarding the date
of payment. The price shall be paid as follows:
a. $50,000.00 Upon execution of this agreement.
b. $40,000.00 Upon installation of septic system
and digging hole for foundation.
c. $40,000.00 Upon pouring foundation and back-
filling.
d. $40,000.00 Upon the main structure being
framed and roofing installed.
e. $30,000.00 Upon siding and gypsum board being
installed and rough mechanics being installed.
f. $20,000.00 Upon installation of flooring, cabi-
nets, and completion of interior painting and tile.
g. Balance $9,000.00 Upon obtaining a Certificate
of Occupancy.
‘‘Notwithstanding the foregoing if a Certificate of
Occupancy is not issued as a result of anything out-
side of this agreement, then the final payment shall
be due as if the Certificate of Occupancy was issued
on the date the Certificate of Occupancy was denied.
‘‘In addition, the Owner acknowledges that there
may be an additional cost not provided in this
agreement for water service connection fees and
Electric Power Company connection fees, including
but not limited to any transformer, transformer
Vaults, pull stations, etc., not shown on the site
plan. . . .
‘‘12. ENTIRE AGREEMENT: The Parties acknowl-
edge that this agreement contains the entire under-
standing, terms, and conditions between the parties.
This agreement cannot be changed orally, but only
by agreement in writing signed by the party against
whom enforcement of any waiver, change, modifica-
tion, or discharge is sought. . . .
‘‘15. REPRESENTATIONS: In addition to any other
warranties or representations contained in this
agreement, the Owner warrant[s] and represent[s]
to the builder that:
a. The property is an approved building lot and
the builder will be able to obtain a building permit
upon application and without having to comply
with any special requirements of Planning and
Zoning, inland-wetlands commission, or any other
governmental or quasigovernmental agency hav-
ing jurisdiction over this property except as set
forth in this agreement.
‘‘At the time of the signing of the agreement, Cohen
issued a check to RMMI for $50,000 in accordance with
the ‘PRICE AND PAYMENT SCHEDULE’ of the
agreement. The check was deposited into the Citizens
Bank commercial checking account that had been
opened a few days earlier.
‘‘Prior to entering into the agreement, RMMI did not
provide the plaintiff a written notice pursuant to the
New Home Construction Contractors Act [(NHCCA)],
Connecticut General Statutes § 20-417d (A), advising
[Cohen] to (a) contact the Department of Consumer
Protection regarding the contractor’s registration sta-
tus; (b) to inquire into whether any complaints had
been filed against the contractor; and (c) to request a
list of consumers of new homes constructed to comple-
tion by the contractor.
‘‘At the time the agreement was signed, RMMI had
been the subject of new home construction complaints
to the Department of Consumer Protection . . . in
2001, 2004, 2006, and 2008.
‘‘After signing the contract and receiving the first
payment, RMMI commenced work at the site, including
land-clearing, blasting, excavation, and placement of
temporary forms. When laying out and excavating for
the foundation footings for the house, RMMI rotated
or ‘pivoted’ the axis of the foundation to avoid a rock
outcropping. When Cohen learned of this, he expressed
great concern, since the orientation of the house had
been precisely planned so as to maximize the view from
the house over the Connecticut River valley.
‘‘On August 31, 2010, after receiving Cohen’s concerns
and complaints about the rotation of the foundation,
Meyers informed Cohen in an e-mail that, ‘Joe, if you
want the foundation moved back, I will call the concrete
contractor and have him move it back.’
‘‘On August 10, 2010, Meyers went to the Chester
town hall to file an application for a building permit. The
Chester zoning enforcement officer, Judith R. Brown,
informed Meyers that a building permit could not be
issued because a driveway permit was required in order
to obtain a building permit. Brown also required that
Meyers file applications for a zoning permit and a drive-
way permit. A great deal of communication between
Cohen and various town officials ensued, with Cohen
pleading his case to all involved that the driveway
should be ‘grandfathered’ and he should not be required
to obtain a driveway permit.
‘‘Despite Cohen’s efforts, on September 1, 2010, the
application for a driveway permit was denied because
it did not meet the driveway standards set forth in the
2005 driveway regulation. On September 7, 2010, after
meeting with the town engineer, Cohen sent an e-mail
to the various town officials requesting a waiver of the
driveway regulations. On September 13, 2010, Cohen
filed a formal application for the driveway waiver with
the Board of Selectmen of the town of Chester.
‘‘On September 21, 2010, the driveway waiver applica-
tion was considered at a Board of Selectmen meeting
that was attended by Cohen and Meyers. The waiver
was denied pending information regarding turning
radius requirements for emergency vehicles. On Octo-
ber 5, 2010, the waiver of the driveway regulations was
approved at a meeting of the Board of Selectmen.
‘‘On October 6, 2010, [Brown] wrote a letter to Cohen
stating that the waiver was approved, but that before he
could start driveway improvements, he was to arrange a
preconstruction meeting with the driveway contractor,
herself, and the town engineer, pay a $25 application
fee, post a driveway bond in the amount of $1500, and
provide a certificate of insurance prior to the issuance
of a zoning permit.
‘‘On October 8, 2010, Cohen sent an e-mail to Meyers,
which attached a detailed list of ‘issues for discussion’
before restarting construction on the project. The list
included driveway issues, building permit ‘problems,’
and various other items that Cohen claimed had
increased the project cost by 5 to 10 percent. Cohen’s
list suggested a variety of paths to ‘move forward,’ rang-
ing from shutting down construction temporarily or
permanently, to completing the construction as quickly
as possible, to entering into a new contract. In reply to
Cohen’s e-mail, Meyers stated that he was not responsi-
ble for the delay or the permit or driveway issues, and
declared that Cohen was in breach of the contract,
stating: ‘[t]his delay is costing me time and money.
Reminder: You represented to me by contract that you
have [an] approved building lot and that I should not
have to be caused a delay from the town government.
. . . Without a building permit, approved site plan and
adjusted contract, this job is [stopped] and you remain
in breach of contract.’
‘‘For the next week, Cohen and Meyers continued to
exchange e-mails blaming each other for various delays,
discrepancies, problems, and cost overruns on the proj-
ect. Cohen attempted to get Meyers to meet with the
town and restart the building process, but Meyers
refused to do so unless he could move forward with
the existing contract ‘without issues.’ He interpreted
Cohen’s insistence on discussing topics such as delay
and increased cost as ‘nothing more than you trying to
get me to pay for your misfortune.’
‘‘On October 25, 2010, Cohen sent a certified letter
to Meyers stating that the contract was ‘under review’
and directing him not to perform any additional work,
make any expenditures, or order materials or services
related to 11 Kings Highway.
‘‘On November 10, 2010, [Brown], the Chester zoning
enforcement officer, returned the building permit appli-
cation and checks to Meyers because she had been
advised by Cohen that ‘he will not be going forward
with his plans to build at 11 Kings Highway at this time.’
‘‘Ultimately, on December 1, 2010, Cohen notified
RMMI via certified letter that the contract was termi-
nated for cause.
‘‘Cohen then embarked upon a relentless pursuit of
his grievances against Meyers that has continued
unabated to the present. The catalog of e-mails, letters,
newspaper articles, and other writings which memorial-
ize long and bitter conflict is impressive in its dimen-
sions and in its vitriol. What follows are excerpts which
are particularly relevant to the issues in this lawsuit.
‘‘On January 17, 2011, in an e-mail to Mr. Meyers, Mr.
Cohen stated:
‘‘ ‘Please share the following with your wife and
your attorney: Time is up—this week I begin filing
formal complaints and notifying officials in all Con-
necticut River Valley Durham and surrounding
towns about my dispute with you. I also intend to
[take out] an ad in the Middletown Press and other
publications (I am 100 [percent] serious). When I
call you out as a liar, cheat, thief and lawbreaker—
it will all be true! When your wife comes home
from work at Middlesex Memorial saying she is
humiliated; when your children ask what is wrong
with you; when your neighbors (who I contact by
mail) start staring at you strangely, you will know
you blew your last chance to fix things. And every
building official and state official in the Durham-
Meriden-East Haddam corridor will have your
number. As for being a licensed building inspec-
tor—I doubt it since I will track you and make
sure every community gets a full accounting of
your track record . . . . I will be visiting officials
with formal letters of complaint in East Haddam,
Durham and Meriden as soon as possible. You are
going to be under the gun of officials and the pub-
lic. . . . [You have] left me no choice but to make
you pay for it.’
‘‘On January 18, 2011, Mr. Cohen began exchanging
e-mails with George P. Gombossy, a syndicated con-
sumer columnist for numerous Connecticut newspa-
pers. Cohen told Gombossy:
‘‘ ‘thanks for getting involved in this. meyers’ llc
includes his wife, so I am going to put her name and
work affiliation in everything I do going forward. i
have a feeling when middlesex memorial sees their
name getting trashed with an employee’s they may
put the screws to her.’
‘‘(Lowercase in original.)
‘‘On January 19, 2011, Cohen sent another e-mail to
Meyers, stating:
‘‘ ‘Your stupidity is overwhelming. I have tried to
be nice to you because you are a small man without
much of a life. What little you have is about to be
diminished. . . . When you are sitting around
with no work or selling light bulbs at the local
store, remember you blew any chance you had to
salvage your reputation.’
‘‘In the wake of these e-mails, as he suggested he
would, Cohen began communicating with various state
and local officials regarding Meyers. He also, as he
suggested he would, began to include Meyers’ wife,
Christine A. Meyers, as part of his communications and
requests for information. Cohen justified his efforts
directed at Christine Meyers because she was a secre-
tary of RMMI and Meyers’ ‘business partner.’ The former
is true, but as to the latter, no competent evidence was
submitted as to any active participation by Mrs. Meyers
in any of the business affairs of RMMI, or in the con-
struction project at 11 Kings Highway.
‘‘On January 19, 2011, Cohen forwarded a Freedom
of Information Act (‘FOIA’) [General Statutes § 1-200
et seq.] request to Richard McManus, building official
for Durham (copied to Laura Francis, first selectman),
requesting any and all building permits or other permits
for construction or renovations issued or requested by
Robert M. Meyers, Robert M. Meyers Inc., LLC, Robert
Meyers, and Christine A. Meyers. Thereafter, Cohen met
personally with McManus. Cohen also met with Keith
Darin, then building official for East Haddam, to review
files of houses built by RMMI.
‘‘Cohen made a FOIA request directed to the Depart-
ment of Consumer Protection, asking for all complaints
against RMMI and Meyers. On January 31, 2011, Cohen
filed a complaint with the Department of Consumer
Protection related to the construction at 11 Kings High-
way in Chester, but also alleging that Meyers performed
new home construction, while not registered, at 24
Alger Road, in East Haddam. . . . [Cohen] began to
exchange e-mails with Terence Zehnder, the investiga-
tor for the Department of Consumer Protection, and in
a March 29, 2011 e-mail to Zehnder, stated, ‘Meyers is
stubborn, not smart, arrogant and has gotten away with
pulling crap for years.’ To resolve [Cohen’s] complaint,
RMMI provided an assurance of voluntary compliance
to the commissioner of the Department of Consumer
Protection and paid a civil penalty of $250 on April
19, 2011.
‘‘On January 3, 2012, Cohen sent a three page letter
to the Middlefield Board of Selectmen, stating, ‘[i]t is
my belief [Meyers] is a liar, cheat, commits fraud, steals,
is not competent as a builder, and lacks proper respect
for the law. Robert Meyers has . . . [w]orked (in 2009/
2010) as a builder while not registered/licensed (a crimi-
nal offense) . . . [p]erformed construction work
(2010) on a new house without getting a building permit
. . . [a]llegedly threatened to kill a customer in a dis-
pute over the customer’s house . . . [i]gnored another
town’s building inspector and planned to go against his
order (2010), created and submitted a fake document
into a court proceeding (2011).’ Cohen also states:
‘Robert M. Meyers has disdain for the law, the court
system and the truth. . . . [I]t is my experience and
belief Robert M. Meyers is a dishonest, deceitful, incom-
petent contractor.’ Cohen thereafter went to a Mid-
dlefield Board of Selectmen meeting to read aloud the
content of his letter, and that appearance was reported
by the press. On January 13, 2012, an article appeared
in the ‘Town Times’ headlined, ‘Chester Resident Com-
plains about Middlefield Building Inspector at Select-
men’s Meeting,’ reporting that Cohen stated that
‘Meyers does not have respect for the law, authority
or the truth and felt he was fundamentally dishonest
and deceitful.’
‘‘On September 7, 2012, Cohen sent a letter to Joseph
V. Cassidy, acting state building inspector, and copied
the letter to Donald DeFronzo, acting commissioner of
the Department of Construction Services; Daniel Tier-
ney, deputy state building inspector; Attorney General
George Jepsen; and William M. Rubenstein, commis-
sioner of the Department of Consumer Protection. In
the letter, Cohen stated: ‘I believe Mr. Meyers may have
obtained his building inspector’s license under false
pretenses and/or is not qualified to be licensed by the
state of Connecticut.’ Cohen also stated that Meyers
was guilty of ‘a serious criminal violation’ when he built
and sold a new house at 24 Alger Road in East Haddam.
In the letter, Cohen states that Meyers is ‘an alleged
liar, cheat and thief—an admitted criminal who violated
state building and consumer protection laws’; and [that]
Meyers is ‘something of a Jekyll and Hyde personality:
Charming until he gets your money, then a sociopath
who enjoys taunting and threatening in response to
legitimate questions about business practices, compe-
tence and integrity.’
‘‘On September 27, 2012, Meyers was disclosed as an
expert witness who was expected to be called at the
trial of this case. The disclosure stated that Meyers ‘is
expected to testify that, in his opinion, there was no
violation of any codes regarding the work done by Mr.
Meyers at the property subject to this lawsuit prior to
the issuance of any building permit by the town of
Chester. Mr. Meyers may also give his opinion that the
town of Chester did not have any governing rules or
regulations which would have resulted in a violation of
the work done at the property prior to the issuance of
a building permit by the town of Chester.’ . . .
‘‘Upon learning of this expert disclosure, Cohen
began a new, more aggressive and more strident round
of communications with state and local officials, pur-
portedly ‘to ascertain information related to Cohen’s
prosecution in this case.’ . . .
‘‘Cohen made a FOIA request to the [Department of
Construction Services] (the state building inspector’s
office) for documents related to Meyers’ service as a
building official in East Haddam. After reviewing the
response, on October 10, 2012, Cohen sent a letter to
the state building official, in which he stated that Meyers
had ‘a long history of consumer complaints and skirting
the law’ . . . . He complained that Meyers ‘stole most
of the $53,500 I gave him . . . .’ He expressed a ‘per-
sonal belief’ that ‘Mr. Meyers is a liar, cheat, thief and
incompetent as a builder and would not be deserving
of a job in public service.’
‘‘On October 16, 2012, Cohen spoke at a meeting
of the Middlefield Board of Selectmen, stating, among
other things, that Meyers was not registered as a new
home construction contractor in 2009/2010 when he
built a home at 24 Alger Road, a criminal violation of
state law for which he was not prosecuted, and that at
the time he passed the state test for the building official,
he was not licensed and was in ‘serious criminal viola-
tion of the very rules he was charged with upholding.’
‘‘On October 23, 2012, Cohen sent a letter to the first
selectman of the town of Middlefield stating that Meyers
had lied on his job application. In the letter, Cohen
also stated that a customer had alleged that Meyers
threatened to kill him.
‘‘Cohen spoke again at a Middlefield Board of Select-
men meeting on November 5, 2012, again claiming that
it was a criminal violation for Meyers to build the house
at 24 Alger Road without licensing as a new home con-
tractor.
‘‘On November 26, 2012, Cohen sent another letter
to the Middlefield Board of Selectmen, letting them
know of the pending lawsuit and complaints lodged
against Meyers, claiming that $53,500 was ‘stolen’ and
he was left only with a torn-up piece of property. Cohen
stated: ‘[Y]ou cannot reason with a man who lies, cheats
and steals with a cold heart; a man I know who will
laugh in your face and taunt you, telling you he has
your money and it is now his money . . . .’
‘‘On April 10, 2013, Cohen sent a letter to Angie Marti-
nez, a consumer information representative in the fraud
division of the Department of Consumer Protection,
stating, ‘[i]t is my contention now that Robert M. Mey-
ers, doing business as Robert M. Meyers, Inc., had for
the past decade or more operated an ongoing criminal
enterprise disguised as a building contracting busi-
ness. Mr. Meyers engaged in fraud, theft/larceny, embez-
zlement, violation of consumer protection laws, elder
abuse and other criminal behavior . . . .’
‘‘On April 29, 2013, Cohen wrote again to the first
selectman of the town of Middlefield, stating: ‘I have
been working with state and federal authorities to bring
criminal and other actions against Mr. Meyers for
alleged crimes including larceny, fraud and abuse—
charges I believe Mr. Meyers is guilty of . . . I look
forward to the day when news trucks are lined up out-
side your Town Hall building to conduct live broadcasts
. . . Meyers, through his corporate entity . . . took
money from me that Mr. Meyers apparently embezzled
from his corporation and used for his personal expenses
. . . Meyers lied, cheated and stole from [one of his
customers, John Christopher, and his wife, Sarah] and
that led to Mr. Christopher’s death. It is an awful tale,
but something not out of character when it comes to
Mr. Meyers, who is one of the most despicable people
I have ever come across.’
‘‘Sometime in the summer of 2013, Cohen created
an Internet website entitled ‘Housebuilder from Hell;
Robert ‘Bob’ Meyers’ at the address www.robertmeyer-
sinfo.com. The website was paid for and maintained
by Cohen, and consists of pages of text with limited
graphics. Cohen confirmed that he has complete control
over the content of the website. Several statements on
the website are especially pertinent to this lawsuit:
• ‘‘ ‘Certainly, I did not make Meyers into what he
is—a liar, thief cheat, incompetent and lawbreaker.’
• ‘‘ ‘Meyers, I learned in my query into his past, thinks
it is okay to cheat on his wife, contract venereal disease,
and advertise for dates on the Internet . . .’
• ‘‘ ‘Bob Meyers is a thug, a criminal and expert
liar . . .’
• ‘‘ ‘Let me tell you some of the things Bob Meyers
does not want you to know, all of which I would contend
reflect on Meyers’ poor moral character, his criminal
and anti-social inclinations, and that confirm he is a
liar and a cheat and a lawbreaker. They include . . .
1. Bob Meyers had an affair while married. At some
point, Bob Meyers contracted venereal disease . . .
Since I know Bob Meyers at one point was trolling
the Internet for women using my money, let this be
a warning: practice safe sex (some venereal disease
infections cannot be cured), and the safest sex is to
choose your relationships carefully and take other pre-
cautions . . .’
• ‘‘ ‘I did not know at the time that Meyers had a
history of lawbreaking and complaints, that his wife
had tired of his lack of ability to be a decent husband
and partner in marriage, or that Meyers’ behavior was
not unlike that of a criminal who refuses to accept
responsibility for his actions.’
‘‘The court credited Meyers’ testimony that he has
been affected physically, mentally, and emotionally by
Cohen’s conduct. Meyers testified to sleepless nights,
anxiety, tremendous stress, jitters, night sweats, a pit
in his stomach, and constantly worrying what would
happen next. Meyers testified that he often goes home,
closes the blinds, seals himself in and pulls a blanket
over his head. He admitted to thoughts of suicide as a
way to ‘stop all of the pain.’ He summed up his situation
by remarking that Cohen’s accusations of him killing a
man, and being a liar, a thief and a criminal have turned
his life into ‘a pile of crap.’ Meyers’ changes in behavior,
outlook, and demeanor over the past few years were
corroborated by the testimony of various friends and
relations.’’ (Citations omitted; emphasis in original;
footnotes omitted.)
On the basis of the foregoing facts, and additional
facts that will be set forth as necessary, the court con-
cluded, inter alia: ‘‘RMMI’s failure to register with the
Department of Consumer Protection as a new home
construction contractor under the NHCCA, while at
the same time negotiating a contract for new home
construction, is a violation of the [NHCCA]. RMMI’s
failure to provide the plaintiff with the written notice
required by § 20-417d (A) prior to entering into the
agreement is also a violation of the NHCCA. A violation
of the NHCCA, General Statutes § 20-417a et seq., con-
stitutes a per se violation of [CUTPA]. As a result of
the CUTPA violation established in count seven, the
plaintiff is entitled to ‘actual damages’ under General
Statutes § 42-110g (a).’’ The court credited Cohen’s testi-
mony that ‘‘he would have acted differently had he
received proper NHCCA disclosures from RMMI,’’ and
thus [rendered] judgment in favor of Cohen against
RMMI, and awarded him actual damages in the amount
of $54,750 on his CUTPA claim. The court found in favor
of RMMI on its counterclaim for breach of contract, but
found that damages were not proven and thus awarded
nominal damages in the amount of $1. The court found
in favor of Meyers against Cohen on his defamation
claim and awarded Meyers noneconomic damages in
the amount of $100,000. The court rejected the parties’
remaining claims against each other.1
The parties thereafter filed motions to reargue. First,
Cohen sought reargument, inter alia, on the grounds
that the court erred in summarily dismissing his claims
for fraud, unjust enrichment, statutory theft and conver-
sion against Meyers individually. Cohen argued that the
court erred in declining to pierce the corporate veil and
to hold Meyers individually liable for his conduct, and
that its decision was inconsistent, in that it ‘‘concluded
that RMMI violated a statutory duty by failing to comply
with the NHCCA in violation of CUTPA [but] . . . .
that Meyers did not use the corporate form to violate
a statutory duty or perpetuate a fraud.’’ Cohen argued:
‘‘[T]he court’s express findings that Meyers had com-
plete control and domination over RMMI, that RMMI
violated an express statutory duty and engaged in unfair
and deceptive practices, and that such violation was
the cause of the plaintiff’s damages, necessitates a find-
ing that Meyers used the corporate form to violate a
statutory duty.’’
The court disagreed, and issued an order on Decem-
ber 3, 2015, holding, inter alia: ‘‘[T]he court rejects
[Cohen’s] contention that the facts found by the court
in its memorandum of decision necessarily compel a
finding that Meyers used his control and domination of
the corporation to commit fraud or wrong, to perpetrate
the violation of a statutory or other positive legal duty,
or a dishonest or unjust act in contravention of
[Cohen’s] legal rights.’’
Meyers sought reargument of the court’s refusal to
award him punitive damages on his defamation claim
and challenging the court’s finding that Cohen’s actions
were not so extreme and outrageous as to support a
claim of intentional infliction of emotional distress. The
court denied Meyers’ motion.
This appeal and cross appeal followed. Additional
facts will be set forth as necessary.
I
PLAINTIFF’S APPEAL
A
Cohen first claims that the court erred in declining
to pierce the corporate veil of RMMI, and thus to hold
Meyers personally liable for fraud and violation of
CUTPA. We are not persuaded.
‘‘A court’s disregard of an entity’s structure is com-
monly known as piercing the corporate veil.’’ (Internal
quotation marks omitted.) Litchfield Asset Manage-
ment Corp. v. Howell, 70 Conn. App. 133, 148 n.10, 799
A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002).
‘‘Ordinarily the corporate veil is pierced only under
exceptional circumstances, for example, where the cor-
poration is a mere shell, serving no legitimate purpose,
and used primarily as an intermediary to perpetuate
fraud or promote injustice.’’ (Internal quotation marks
omitted.) Angelo Tomasso, Inc. v. Armor Construc-
tion & Paving, Inc., 187 Conn. 544, 557, 447 A.2d 406
(1982). ‘‘Whether the circumstances of a particular case
justify the piercing of the corporate veil presents a
question of fact. . . . Accordingly, we review the trial
court’s decision whether to pierce [a party’s] corporate
veil under the clearly erroneous standard of review.’’
(Citations omitted; internal quotation marks omitted.)
Naples v. Keystone Building & Development Corp., 295
Conn. 214, 234, 990 A.2d 326 (2010).
We have recognized two tests for disregarding a
defendant’s corporate structure: the instrumentality
rule and the identity rule. On appeal, Cohen claims that
he satisfied the requirements of the instrumentality rule,
and thus that the court erred in declining to pierce the
corporate veil.2 ‘‘The instrumentality rule requires, in
any case but an express agency, proof of three elements:
(1) Control, not mere majority or complete stock con-
trol, but complete domination, not only of finances but
of policy and business practice in respect to the transac-
tion attacked so that the corporate entity as to this
transaction had at the time no separate mind, will or
existence of its own; (2) that such control must have
been used by the defendant to commit fraud or wrong,
to perpetrate the violation of a statutory or other posi-
tive legal duty, or a dishonest or unjust act in contraven-
tion of [the] plaintiff’s legal rights; and (3) that the
aforesaid control and breach of duty must proximately
cause the injury or unjust loss complained of.’’ (Internal
quotation marks omitted.) Id., 232.
In declining to pierce RMMI’s corporate veil under
the instrumentality rule, the trial court explained: ‘‘It
is admitted that Meyers singlehandedly owned and
operated RMMI on a day-to-day basis. But, the fact
that a sole stockholder of a corporation is in exclusive
control of the company’s finances and business prac-
tices, standing alone, is an insufficient basis in itself to
pierce the corporate veil. While control is a factor, ‘[o]f
paramount concern is how the control was used, not
that it existed.’ . . .
‘‘In this respect, [Cohen] has failed completely to
offer any evidence that Robert M. Meyers, the individ-
ual, used the corporate form to perpetrate a fraud. The
evidence offered by [Cohen] does not justify trans-
forming a breach of contract claim against a corporation
into a personal obligation of the corporation’s princi-
pal. . . .
‘‘[Cohen] offered no evidence to suggest that Meyers
did not respect and observe the laws which afford him
the right to form and manage a corporation of which he
was the sole shareholder. RMMI had its own accounts,
made payments to and from those accounts and con-
ducted regular business as a general contractor, and
apparently existed for years on its own, separate and
distinct from . . . Meyers as an individual. Granted,
the plaintiff offered evidence that funds from the RMMI
account were used to pay bills of Meyers that he should
have paid personally. But, Robert Gollnick . . .
RMMI’s accountant, testified that all those payments
were accounted for and reflected on the balance sheet
as loans to a company officer. Eventually, Meyers had
to put money back into the corporation to offset the
personal payments that were made from [the] corpora-
tion. In sum, [Cohen]’s evidence that . . . Meyers used
the corporate form as a vehicle to commit fraud or
dishonest acts consists of vague allusions and specula-
tion, and thus was completely unpersuasive.’’
The court thus concluded that Cohen had ‘‘offered
insufficient evidence to satisfy . . . the instrumental-
ity . . . test,’’ and thus rejected his attempt to pierce
RMMI’s corporate veil.
On appeal, Cohen claims that he satisfied the instru-
mentality test, and thus that the court should have
pierced the corporate veil and held Meyers individually
liable for violating CUTPA. Cohen’s claim is based upon
the same argument that he raised in his motion to rear-
gue—that the trial court’s determination that he failed
to prove that Meyers exercised his control over RMMI
to commit fraud or wrong or to perpetrate the violation
of a statutory or other positive legal duty is inconsistent
with its determination that RMMI, while under the con-
trol of Meyers, violated a statutory duty to Cohen under
the NHCCA. In other words, Cohen contends that the
trial court’s own factual findings proved that he satisfied
the instrumentality test. The court summarily rejected
‘‘[Cohen’s] contention that the facts found by this court
in its memorandum of decision necessarily compel a
finding that Meyers used his control and domination of
the corporation to commit fraud or wrong, to perpetrate
the violation of a statutory or other positive legal duty,
or a dishonest or unjust act in contravention of
[Cohen’s] legal rights.’’ Although the court determined
that RMMI had failed to comply with the NHCCA, and
that that failure constituted a violation of CUTPA, the
court concluded: ‘‘The plaintiff’s proof in this case did
not establish wilful, malicious, immoral or deceitful
conduct.’’ The court’s determination that Cohen failed
to satisfy the instrumentality test is supported by the
record and he fails now, as he did before the trial court,
to demonstrate that RMMI ‘‘did not serve a legitimate
business purpose, or that failing to pierce its corporate
veil and hold [Meyers] personally responsible would
perpetrate a fraud or other injustice.’’ We therefore
cannot conclude that the court’s ruling was clearly
erroneous.
B
Cohen also challenges the court’s judgment against
him on Meyers’ counterclaim for defamation. By way of
special defense to Meyers’ counterclaim, Cohen alleged
that he should not be held liable for defamation because
his remarks concerning Meyers were true. Cohen also
alleged that his remarks were privileged based upon
his ‘‘right to bring forth complaints to the Department
of Consumer Protection regarding the unscrupulous
and unlawful actions of [Meyers] which violate con-
sumer protection statutes’’ and his right to make such
statements in prosecuting this action. Cohen also
argued, in his posttrial brief, that his statements regard-
ing Meyers involved matters of public concern and thus
were constitutionally protected.3 The trial court found
that Cohen’s statements regarding Meyers were defama-
tory per se. The court further found that Cohen’s argu-
ments in defense of those statements unavailing. We
agree with the trial court.
We begin by setting forth the general principles of law
that are pertinent to our analysis of Cohen’s challenge
to the trial court’s defamation ruling against him. ‘‘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 . . . .’’
(Internal quotation marks omitted.) Gleason v. Smolin-
ski, 319 Conn. 394, 431, 125 A.3d 920 (2015). ‘‘Defama-
tion is comprised of the torts of libel and slander:
slander is oral defamation and libel is written defama-
tion.’’ (Internal quotation marks omitted.) Id., 430 n.30.
To establish a prima facie case of defamation at com-
mon law, the plaintiff must prove 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 per-
son; and (4) the plaintiff’s reputation suffered injury as
a result of the statement.’’ (Internal quotation marks
omitted.) Id., 430.
Statements deemed defamatory per se are ones in
which the defamatory meaning of the speech is appar-
ent on the face of the statement. Battista v. United
Illuminating Co., 10 Conn. App. 486, 491–92, 523 A.2d
1356, cert. denied, 204 Conn. 802, 803, 525 A.2d 1352
(1987). Our state has generally recognized two classes
of defamation per se: (1) statements that accuse a party
of a crime involving moral turpitude or to which an
infamous penalty is attached, and (2) statements that
accuse a party of improper conduct or lack of skill or
integrity in his or her profession or business and the
statement is calculated to cause injury to that party in
such profession or business. See Moriarty v. Lippe, 162
Conn. 371, 383–84, 294 A.2d 326 (1972) (slander per
se); Proto v. Bridgeport Herald Corp., 136 Conn. 557,
565–66, 72 A.2d 820 (1950) (libel per se).
‘‘When the defamatory words are actionable per se,
the law conclusively presumes the existence of injury
to the plaintiff’s reputation. [The plaintiff] is required
neither to plead nor to prove it.’’ (Internal quotation
marks omitted.) Lowe v. Shelton, 83 Conn. App. 750,
766, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859
A.2d 568 (2004). ‘‘Whether words are actionable per se
is a question of law for the court . . . All of the circum-
stances connected with the publication of defamatory
charges should be considered in ascertaining whether
a publication was actionable per se. The words used,
however, must be accorded their common and ordinary
meaning, without enlargement or innuendo.’’ (Citations
omitted.) Miles v. Perry, 11 Conn. App. 584, 602–603,
529 A.2d 199 (1987).
‘‘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 . . . the determination of the truthful-
ness of a statement is a question of fact . . . .’’ (Internal
quotation marks omitted.) Gleason v. Smolinski, supra,
319 Conn. 431. ‘‘Contrary to the common law rule that
required the defendant to establish the literal truth of
the precise statement made, the modern rule is that
only substantial truth need be shown to constitute the
justification. . . . It is not necessary for the defendant
to prove the truth of every word of the libel. If he
succeeds in proving that the main charge, or gist, of the
libel is true, he need not justify statements or comments
which do not add to the sting of the charge or introduce
any matter by itself actionable. . . . The issue is
whether the libel, as published, would have a different
effect on the reader than the pleaded truth would have
produced.’’ (Citations omitted; internal quotation marks
omitted.) Goodrich v. Waterbury Republican-Ameri-
can, Inc., 188 Conn. 107, 112–13, 448 A.2d 1317 (1982).
‘‘A defendant may shield himself from liability for
defamation by asserting the defense that the communi-
cation 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 privilege nevertheless has been defeated
through its abuse, which is a question of fact. . . . In
a defamation case brought by an individual who is not
a public figure, the factual findings underpinning a trial
court’s decision will be disturbed only when those find-
ings are clearly erroneous, such that there is no evi-
dence in the record to support them. . . . Finally, to
the extent that a litigant challenges the legal standard
that is required to establish that a privilege has been
defeated, that issue is a question of law over which our
review is plenary.’’ (Citations omitted.) Gambardella v.
Apple Health Care, Inc., 291 Conn. 620, 628–29, 969
A.2d 736 (2009).
‘‘Qualified privileges may be defeated by a showing,
by a preponderance of the evidence . . . of actual mal-
ice, also known as constitutional malice, or malice in
fact.’’ (Citation omitted.) Gleason v. Smolinski, supra,
319 Conn. 433 n.32.4 ‘‘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. . . . A negligent misstatement of fact will
not suffice; the evidence must demonstrate a purposeful
avoidance of the truth.’’ (Internal quotation marks omit-
ted.) Chadha v. Charlotte Hungerford Hospital, 97
Conn. App. 527, 537–38, 906 A.2d 14 (2006). Malice is
rarely subject to proof by direct evidence but is often
proved only by inference through an accumulation of
circumstantial evidence. With the foregoing legal princi-
ples in mind, we review the trial court’s findings and
legal conclusions.
In considering Meyers’ defamation claim, and
Cohen’s defenses to it, the trial court noted, inter alia:
‘‘There does not appear to be serious debate between
the parties that the statements in question—that Meyers
is a ‘cheat,’ ‘thief,’ ‘liar,’ ‘admitted criminal,’ and incom-
petent building contractor, or that he caused the death
of a customer, cheated on his wife, or contracted a
venereal disease—if false, and if not protected by a
privilege, would be considered defamatory. The state-
ments, considered separately or in combination, would
certainly expose a person to scorn or contempt, cause
him to be avoided, or injure him in his business or
trade.’’
The court parsed Cohen’s various statements regard-
ing Meyers into three categories: those that accused
him of a ‘‘crime involving moral turpitude or to which
an infamous penalty is attached (e.g., ‘thief,’ ‘admitted
criminal,’ or that he caused the death of a customer);
those that accused him of improper conduct or lack of
skill or integrity in his profession or business (. . .
‘cheat,’ ‘liar,’ and an incompetent building contractor)’;
and those that fall into a grey area—namely, that Meyers
cheated on his wife or contracted venereal disease.’ ’’
The court found that Cohen’s statements concerning
Meyers were defamatory per se.
Turning to Cohen’s defense that all of his statements
concerning Meyers were true or substantially true, the
court first rejected Cohen’s argument that Meyers bore
the burden of proving the falsity of the defamatory
statements at issue herein, explaining that, having
asserted truth as a special defense, it was his burden
to prove the truth or substantial truth of those state-
ments. The court then found: ‘‘Several defamatory state-
ments of Cohen stretch the test for ‘substantial truth’
past its breaking point.’’5 The court thus concluded that
Cohen had not met his burden of proof as to the special
defense of truth, and that recovery for defamation was
not precluded on that basis.
The court then went on to address Cohen’s claims
of privilege. The court rejected those claims, finding as
follows: ‘‘The court believes that the direct and circum-
stantial evidence in the record of this case abundantly
supports a finding that Cohen’s statements regarding
Meyers stealing, committing criminal acts, causing a
death, contracting venereal disease, and having extra-
marital affairs were made with actual knowledge that
they were false or with reckless disregard for whether
they were false.’’6 The court further concluded: ‘‘Having
patiently and exhaustively reviewed the entire record,
the court is persuaded that Cohen’s departures from
the truth were in fact motivated by spite or ill will—a
burning desire to destroy Meyers personally and profes-
sionally that went far beyond aggressive litigation tac-
tics or a good faith interest in protecting the public
good. This is reflected at the very outset of this dispute
in the January, 2011 e-mails he sent to Meyers and
others when he promised to ‘call you out as a liar, cheat,
thief and lawbreaker. . . . You are going to be under
the gun of officials and the public. . . . [You have] left
me no choice but to make you pay for it’ and continues
throughout, right up until the vehement and caustic text
of the ‘Housebuilder from Hell’ website. That publicly
expressed intent to inflict harm, coupled with the fact
that Cohen—when he wanted to—was fully capable of
restricting his comments about [Meyers] to statements
that were true, persuades the court that the accusation
[that] Meyers ‘caused’ a death was deliberately made
in purposeful avoidance of the truth.
‘‘Without discussing in detail, the court finds that a
similar analysis applies to Cohen’s deliberate use of the
terms ‘thief’ and ‘criminal’ to refer to Meyers, and his
website’s disclosure that Meyers ‘cheated on his wife’
and ‘contracted a venereal disease.’ These statements
were all made in reckless disregard for whether they
were false and in purposeful avoidance of the truth, as
part of a cruel and vindictive effort to inflict injury upon
Meyers. Actual malice has been proven to the court by
a preponderance of the evidence; therefore, any condi-
tional privilege has been lost, and recovery for defama-
tion is not precluded.’’
In his posttrial brief, Cohen also claimed that his
comments about Meyers were constitutionally pro-
tected because they were matters of public concern
‘‘relating to both Meyers as a builder with whom multi-
ple consumers had made prior complaints and a lawsuit,
and Meyers as a building official using his office to
obtain building code interpretations for his own bene-
fit.’’ The court also rejected that claim, finding as fol-
lows: ‘‘[H]aving reviewed the entirety of the record and
heard the testimony, the court concludes that, despite
the important setting in which the statements were
made, the content of the message and the context in
which they were published makes it clear that they
[were] not in furtherance of an uninhibited, robust, and
wide open debate on matters concerning public affairs.
Their purpose was solely to harass and humiliate Mey-
ers and perhaps induce the town of Middlefield to pre-
maturely end his employment, perhaps so as to avoid
a public relations embarrassment. The statements were
published against the background of a private business
dispute that had mushroomed into a contentious, vitri-
olic, and extremely uncivil lawsuit. The court finds that
Cohen’s remarks were part of an extended campaign
of retaliation and revenge against Meyers that had
everything to do with their private dispute, and little if
anything to do with Meyers’ employment as building
official or, for that matter, building officials in general.
. . . [T]he statements were not ‘intended to persuade
. . . with regard to a matter of public concern, [but]
rather [to] merely torture [him] gratuitously with regard
to a purely private matter.’ ’’
The court thus concluded: ‘‘[T]he court finds that
the speech in question is solely a contrived means for
malicious harassment on a matter of private concern,
and is therefore not entitled to protection under the
first amendment to the [United States] constitution.’’
On appeal, Cohen claims that the court improperly
held him liable for defamation because his speech was
protected by the first amendment, he did not make
any of the allegedly defamatory statements with actual
malice, the court employed the wrong legal standard
in determining malice, and that he had proven that each
of the allegedly defamatory statements was substan-
tially true even though the burden of proof was on
Meyers to prove that they were not.
We have examined the record on appeal and consid-
ered the briefs and the arguments of the parties, and
conclude that the trial court properly ruled in favor of
Meyers on his defamation claim against Cohen. Because
the trial court thoroughly addressed the arguments
raised in this appeal, we adopt its well reasoned deci-
sion on the defamation claim, as quoted extensively
herein, as a proper statement of the facts and legal
analysis on the issues raised in this appeal. Any further
discussion by this court would serve no useful purpose.
See, e.g., Woodruff v. Hemingway, 297 Conn. 317, 321,
2 A.3d 857 (2010).
II
DEFENDANTS’ CROSS APPEAL
A
On cross appeal, the defendants first claim that the
court erred in awarding damages on Cohen’s CUTPA
claim against RMMI because he did not prove that he
had suffered any compensable injury as a result of
RMMI’s failure to comply with the NHCCA. The defen-
dants argue that any injury suffered by Cohen was
caused, instead, by his own refusal ‘‘to submit the drive-
way permit fee, bond and certificate of insurance in
order to obtain a building permit and continue construc-
tion,’’ and not their failure to make NHCCA disclosures.
The defendants thus claim that the court erred in award-
ing damages on Cohen’s CUTPA claim because he failed
to prove that he suffered an injury or actual loss as a
result of the CUTPA violation. We disagree.
The trial court determined that, as a result of RMMI’s
CUTPA violation, Cohen was entitled to actual damages
pursuant to § 42-110g (a), which provides in relevant
part: ‘‘Any person who suffers any ascertainable loss
of money or property, real or personal, as a result of
the use or employment of a method, act or practice
prohibited by section 42-110b, may bring an action in
the judicial district in which the plaintiff or defendant
resides or has his principal place of business or is doing
business, to recover actual damages. . . .’’ The court
noted: ‘‘Actual damages under CUTPA have been
defined to include loss and expenses incurred by the
CUTPA plaintiff as a result of a violation of the act.
Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App.
575, 587, 636 A.2d 1383 (1994).’’
With those legal principles in mind, the court credited
Cohen’s testimony that, ‘‘had he received the necessary
disclosures from RMMI as required by the NHCCA, it
is highly likely that he would not have contracted with
RMMI, and would not have paid RMMI the sum of
$54,750.’’ The court further explained that Cohen had
little to show for the $54,750 that he had paid to RMMI
and that, if he had contracted with another party, it is
reasonably probable that sum would have gone toward
the cost of construction of a ‘‘completed home instead
of a minimally excavated and prepared lot.’’ The court
thus awarded Cohen compensatory damages in the
amount of $54,750—representing out-of-pocket costs
directly associated with the contract in question—for
a violation of CUTPA.
The issue of whether Cohen suffered an ascertainable
loss as a result of RMMI’s CUTPA violation is a question
of fact, which we review under the clearly erroneous
standard. D’Angelo Development & Construction Corp.
v. Cordovano, 121 Conn. App. 165, 182, 995 A.2d 79,
cert. denied, 297 Conn. 923, 998 A.2d 167 (2010).
Here, the court based its damages award on Cohen’s
testimony that he would not have signed the contract
with RMMI in the first place if he had received the
proper NHCCA disclosures, and thus awarded Cohen
compensatory damages for the money he had paid to
RMMI, for which he received little to no benefit. The
court’s conclusion is supported by the trial record. The
fact that the contractual relationship between the par-
ties ultimately deteriorated, and that, too, may have
caused Cohen damages, is not a basis for concluding
that the court’s finding that RMMI’s CUTPA violation
proximately caused him damages was clearly
erroneous.
B
Meyers also claims that the court erred in failing
to award punitive damages on his defamation claim.
We disagree.
‘‘In awarding punitive damages . . . [t]he trial court
has broad discretion in determining whether damages
are appropriate. . . . Its decision will not be disturbed
on appeal absent a clear abuse of discretion.’’ (Internal
quotation marks omitted.) Bhatia v. Debek, 287 Conn.
397, 420, 948 A.2d 1009 (2008). ‘‘Such damages, how-
ever, are not awarded as a matter of right, but rather
as a matter of discretion, to be determined by the [court]
upon a consideration of all the evidence . . . .’’ (Inter-
nal quotation marks omitted.) DeVito v. Schwartz, 66
Conn. App. 228, 236, 784 A.2d 376 (2001).
In addressing the parties’ claims for punitive dam-
ages, the court noted that it had considered all of the
evidence presented at trial and declined to award puni-
tive damages to either party. The court did not other-
wise set forth the specific legal or factual bases for
that decision. The court denied reargument sought by
Meyers on his claim for punitive damages, explaining
that reargument was unnecessary because it had
already considered all of the factual and legal issues
raised by Meyers in his motion to reargue when it ren-
dered its November 12, 2015 decision. In the absence
of specific details set forth by the trial court upon which
it may have relied, and thus possibly erred, in declining
to award punitive damages, we presume that it properly
applied the law and did not abuse the wide discretion
afforded to it in making that determination.
C
Finally, Meyers claims that the court erred in
rejecting his claim for intentional infliction of emotional
distress. Meyers argues that the court erred in failing
to find that Cohen’s actions constituted extreme and
outrageous conduct. We disagree.
‘‘[W]here the factual basis of the court’s decision is
challenged we must determine whether the facts set
out in the memorandum of decision are supported by
the evidence or whether, in light of the evidence and
the pleadings in the whole record, those facts are clearly
erroneous. . . . In a case tried before a court, the trial
judge is the sole arbiter of the credibility of the wit-
nesses and the weight to be given specific testimony.
. . . On appeal, we will give the evidence the most
favorable reasonable construction in support of the ver-
dict to which it is entitled. . . . A factual finding may
be rejected by this court only if it is clearly erroneous.’’
(Internal quotation marks omitted.) Murphy v. Lord
Thompson Manor, Inc., 105 Conn. App. 546, 552, 938
A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976
(2008).
‘‘In order for the plaintiff to prevail in a case for
liability . . . [alleging intentional infliction of emo-
tional distress], four elements must be established. It
must be shown: (1) that the actor intended to inflict
emotional distress or that he knew or should have
known that emotional distress was the likely result of
his conduct; (2) that the conduct was extreme and out-
rageous; (3) that the defendant’s conduct was the cause
of the plaintiff’s distress; and (4) that the emotional
distress sustained by the plaintiff was severe. . . . Lia-
bility for intentional infliction of emotional distress
requires conduct that exceeds all bounds usually toler-
ated by decent society . . . . Liability has been found
only where the conduct has been so outrageous in char-
acter, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atro-
cious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the
facts to an average member of the community would
arouse his resentment against the actor, and lead him
to exclaim, Outrageous! . . . Conduct on the part of
the defendant that is merely insulting or displays bad
manners or results in hurt feelings is insufficient to
form the basis for an action based upon intentional
infliction of emotional distress.’’ (Citations omitted;
internal quotation marks omitted.) Appleton v. Board of
Education, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000).
In considering Meyers’ claim for intentional infliction
of emotional distress, the court noted that ‘‘[t]he ‘con-
duct’ that is identified as the cause of Meyers’ emotional
distress consists of written and verbal oral communica-
tion with various newspaper outlets, state officials,
town officials and members of the public concerning
Meyers’ past history as a builder and contractor, his
current licensure as a building official, and his employ-
ment as a building official for the town of Middlefield.’’
The court found that Cohen had engaged in ‘‘an inten-
tional campaign—using permissible methods such as
FOIA requests or open comments at public meetings—
to drive a wedge between Meyers and his employer,
the town of Middlefield. It was marked by tactless,
abusive, and derogatory discourse, merciless provoca-
tion, and relentless scrutiny, all of which put Meyers
under severe, unremitting pressure.’’ The court never-
theless found that ‘‘even if Cohen was engaged in a
personal vendetta intended specifically to humiliate and
harass Meyers or make him lose his job, the specific
conduct of making defamatory remarks at public meet-
ings, sending letters to government officials containing
defamatory statements, and maintaining an Internet
website with defamatory information, does not rise to
the level of ‘extreme and outrageous conduct’—as that
concept has been defined in the relevant case author-
ity—necessary to impose liability for intentional inflic-
tion of emotional distress. The conduct that has been
proven at trial is not extreme and outrageous as a matter
of law, and therefore the cause of action for the inten-
tional infliction of emotional distress must fail.’’
(Emphasis in original.)
Meyers claims that the trial court ‘‘erred by failing
to consider Cohen’s overall pattern, series, course and/
or accumulation of acts when determining whether
Cohen’s actions were sufficiently extreme and outra-
geous as to constitute an intentional infliction of emo-
tional distress . . . .’’ Meyers’ claim is belied by the
trial court’s thorough and meticulous recitation of
Cohen’s conduct. Indeed, the court considered Cohen’s
conduct in its entirety, finding that he had undertaken
a campaign that was designed to harm Meyers’ personal
and professional reputation. The court nevertheless
determined that the manner in which Cohen undertook
that campaign against Meyers—through written and
verbal statements impugning Meyers— was not
extreme and outrageous. The court properly focused
on the conduct on which Meyers’ claim was based,
rather than by the generalized characterizations of this
conduct, regardless of the motivation behind that con-
duct. His argument that the court erred in rejecting his
claim for intentional infliction of emotional distress
is unavailing.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court noted that Cohen had expressed his intention to withdraw
his rescission claim, but had never formally done so. On the basis of that
stated intention, the court rendered judgment in favor of Meyers on that
claim. That ruling has not been challenged on appeal.
2
The trial court also declined to pierce RMMI’s corporate veil pursuant
to the identity rule. Cohen has not challenged that ruling.
3
We note that Cohen did not plead that Meyers was a public official, that
his statements involved a matter of public concern or public import, or that
his speech was constitutionally protected.
4
‘‘[T]he clear and convincing evidence standard furnishes the applicable
standard of proving actual malice to sustain an award of punitive damages
to a private figure plaintiff.’’ Gleason v. Smolinski, supra, 319 Conn. 433 n.32.
5
The court explained: ‘‘For example, Meyers wrote on his website, ‘House-
builder from Hell,’ that ‘at some point, Bob Meyers contracted venereal
disease’ and then warned women to ‘practice safe sex,’ implying that they
may find themselves in a relationship with Meyers since . . . ‘I know Bob
Meyers at one point was trolling the Internet for women . . . .’ Evidently,
Cohen based this statement upon entries in the medical records of Meyers
(obtained during discovery in this case) that showed he had undergone
cauterization of genital warts, which, in the opinion of the doctor, were
most likely caused by the human papillomavirus (HPV). True, HPV is primar-
ily spread by sexual intercourse. But it also true that the majority of sexually
active adults will be infected by HPV at some point in their lives.
‘‘There is a vastly different impression upon the listener upon learning
that a person ‘had treatment for genital warts’ as opposed to ‘contracted a
venereal disease.’ In fact, putting aside the fact that all of this has nothing
to do with Meyers’ competence as a builder, the court concludes that
inflicting the stigma, humiliation and scorn attached to a ‘venereal disease’
upon Mr. Meyers, as opposed to relating any true state of facts, was exactly
what Cohen intended by his statement. [Cohen] has failed to meet his burden
of proving by a preponderance of the evidence that the statement [that]
Meyers ‘contracted a venereal disease’ is substantially true, as that concept
has been defined in the relevant case authority.
‘‘In a similar fashion, Cohen’s repeated accusations that Meyers was a
‘thief’ were based on his sophism that Meyers ‘stole’ the $53,500 payment
under the contract. Words claimed to be defamatory are given their natural
and ordinary meaning and are taken as reasonable persons would understand
them. Ventresca v. Kissner, 105 Conn. 533, 535, 136 A. 90 (1927). A reasonable
person would understand the descriptive term, ‘thief,’ to apply to a person
who commits the crime of theft; someone who wrongfully, stealthily—and
sometimes violently—takes the property of another. A reasonable person
would not ascribe the term, ‘thief,’ to a contracting party who has retained
funds freely and voluntarily paid to it because of a dispute over who has
breached the contract. The use of the word, ‘thief,’ by Cohen is fully intended
to bring down more scorn and contempt upon Meyers than would be occa-
sioned by a statement of the literal truth: ‘a defendant in a lawsuit where
a breach of a contract to build a house is alleged.’ Other than the fact that
Meyers retained the initial payment under the contract, the plaintiff offered
no other evidence of ‘thievery’ by Meyers. The plaintiff has failed to prove
by a preponderance of the evidence the substantial truth of his many public
statements that Meyers is a ‘thief.’
‘‘Cohen’s repeated references to Meyers committing ‘criminal acts’ or
‘criminal violations,’ or being an ‘admitted criminal’ or even that his con-
tracting business was ‘an ongoing criminal enterprise’ are based on another
fallacious argument. Because the New Home Construction Contractors Act
provides for the imposition of criminal penalties in certain cases, and
because Meyers has admitted he failed to comply with the NHCCA, Cohen
stated that he is an ‘admitted criminal’; that he has committed a ‘criminal
act’; and that his business is a ‘criminal enterprise.’ But the plaintiff offered
no evidence that Meyers had ever been charged with a crime by any law
enforcement agency, much less been convicted of a crime. An accusation
that a person is ‘a criminal’ has always been a serious matter in our society.
It is associated with behavior that is immoral, antisocial, evil, shameful
and fundamentally wrong. Labeling Meyers as an ‘admitted criminal’ would
create an impression in the mind of the listener many times more damaging
than a literally true disclosure of the complete facts as to his violation of
the NHCCA and the lack of any criminal charges or convictions. The plaintiff
has failed to prove by a preponderance of the evidence the substantial truth
of his many public statements that Meyers is a ‘criminal’ or committed
‘criminal acts.’
‘‘Finally, the evidence at trial never made quite clear what the factual
basis was for Cohen’s statement that Meyers ‘cheated on his wife.’ The court
presumes it had its genesis in the fact that Meyers admitted that he had
used an online dating service (match.com). The proof amounted to little
more than supposition or conjecture and fell far short of a fair preponderance
of the evidence, which is properly defined as the better evidence, the evi-
dence having the greater weight, the more convincing force in your mind.
. . . Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).’’ (Foot-
note omitted.)
6
The court stated: ‘‘As one example, Cohen, on more than one occasion,
stated that the conduct of Meyers ‘caused’ or ‘led to’ the death in 2007 of one
of his customers, John Christopher. The statement that John Christopher’s
widow, Sandra Christopher, believes that the stress of dealing with the
litigation with Meyers hastened John Christopher’s demise from cancer is,
in all respects, true. The statement that ‘Meyers lied, cheated and stole from
the Christophers and that led to Mr. Christopher’s death,’ is not. The latter
statement declares a direct cause and effect relationship between the con-
duct of Meyers and the death of Mr. Christopher that is not warranted or
justified by any credible, objective facts.
‘‘Cohen had actual knowledge of the true state of facts. He was fully
capable of accurately reciting the facts of Mr. and Mrs. Christopher’s story.
In a November 26, 2012 letter to the selectmen of the town of Middlefield,
Cohen mentions the fact that Mr. Christopher died at a ‘relatively young’
age without ever living in the ‘dream house’ that Meyers was to build. The
letter tracks very closely the established facts regarding the dispute between
the Christophers and Meyers, and nowhere in the letter does Cohen suggest
that Meyers’ conduct ‘led to’ Mr. Christopher’s death. But, in a familiar
pattern that would be seen in other contexts, Cohen’s subsequent communi-
cation about the subject strays farther and farther from the objective facts
until, in the end, there is little truth in them at all.
‘‘In an April 10, 2013 letter to Angie Martinez of the Department of Con-
sumer Protection, Cohen stated that the lawsuit between Meyers and the
Christophers ‘came to a conclusion when Mr. Christopher died fairly sud-
denly, perhaps in part because of Mr. Meyers’ actions.’ In vivid language
from his website, ‘Housebuilder from Hell,’ Cohen tells of ‘law-breaking,
building code violations, losses totaling many hundreds of thousands of
dollars, the death of an aggrieved, home buyer, an alleged threat of extreme
violence—and one man at the center of it all—contractor and state-licensed
building inspector Robert M. ‘Bob’ Meyers.’ In a June 18, 2013 letter to the
Commissioner of the Department of Consumer Protection, Cohen stated
that ‘Meyers has caused not just terrible problems for consumers, but death,
mayhem and other horrors.’ The manner and context in which these state-
ments were delivered—in a writing (e-mail) as opposed to speech, and
on multiple occasions, persuade this court that this was not a negligent
misstatement of fact.’’