Borg v. Cloutier

Decision Date15 September 2020
Docket NumberAC 41693
Citation239 A.3d 1249,200 Conn.App. 82
CourtConnecticut Court of Appeals
Parties John BORG et al. v. Lynne CLOUTIER

Christopher G. Winans, for the appellants (plaintiffs).

Brian M. Paice, Hartford, with whom were Raymond M. Gauvreau and, on the brief, Tara Racicot and Peter Sabellico, for the appellee (defendant).

DiPentima, C. J., and Keller and Bright, Js.*

KELLER, J.

The underlying action is the latest chapter in a long-running dispute between neighbors. The plaintiffs John Borg and Alison Borg1 brought several causes of action sounding in trespass, private nuisance, and invasion of privacy against the defendant, Lynne Cloutier. In a counterclaim, the defendant brought several causes of action against either one or both of the plaintiffs sounding in trespass, private nuisance, invasion of privacy, defamation and defamation per se, relating to the plaintiffs’ allegedly directing flood lights at the defendant's residence for extended periods of time and for allegedly publishing a website containing defamatory statements about the defendant.2 Following a trial,

the jury returned a verdict in favor of the defendant on the complaint and on the counterclaim, and the court denied the plaintiff's motion to set aside the verdict, awarded the defendant common-law punitive damages and ordered a permanent injunction against the plaintiffs, limiting their use of the lights directed at the defendant's property and requiring John Borg to remove the defamatory statements about the defendant from the website. The court thereafter held both plaintiffs in contempt for not complying with the permanent injunction as to the lights and held John Borg in contempt for violating the terms of the injunction as to the website. On appeal, the plaintiffs claim that the court erred in (1) denying their motion to set aside the verdict in favor of the defendant on her counterclaim, (2) awarding punitive damages to the defendant, (3) granting the permanent injunction against John Borg regarding the website, and (4) holding John Borg in contempt with respect to the website containing defamatory statements about the defendant.3 For the reasons set forth herein, we affirm in part and reverse in part the judgment of the trial court.

The court, in its well reasoned and thorough memorandum of decision on the plaintiffsmotion to set aside the verdict on the defendant's counterclaim, set forth the following facts and procedural history. "This is a lawsuit arising from a neighbor dispute. The plaintiffs and the defendant live in Westport, in an area of town where the houses are relatively small and in relatively close proximity to each other. The parties’ properties generally back up to each other, with the rear property line essentially straddled by a ten feet wide right-of-way (approximately five feet from the centerline of the

right-of-way encumbering each side's fee interest). The defendant is a relatively longtime resident of her home, and is the owner of the home. The plaintiffs ... began occupying the property several years before this dispute arose. The nominal owner of the property on which the plaintiffs reside is a trust, established by [Alison Borg's] family.

"This dispute4 involves [a complaint and a counterclaim with mutual claims of trespass, private nuisance, and invasion of privacy (seclusion) ], with additional claims by the defendant against [John Borg] based on defamation and invasion of privacy (false light)." (Footnotes added and omitted.)

We now set forth additional facts, which the jury reasonably could have found. The defendant is a retired

woman in her seventies who lives by herself in Westport. In the fall of 2015, following prior litigation between the parties; see footnote 4 of this opinion; and in response to recent vandalism in the neighborhood in which she and the plaintiffs live, the defendant installed surveillance cameras on the rear of her property, facing the backyard of the plaintiffs’ property. The plaintiffs were upset by the defendant's installation of the cameras because they believed that the cameras were angled to monitor their minor child's play area and because they used their property to see clients and patients of their psychotherapy practice. The plaintiffs insisted that the defendant remove the cameras. The defendant made efforts to have the camera angles adjusted.

Not long after, the plaintiffs installed floodlights in their backyard that emitted bright light into the defendant's yard and through her windows at all hours of the day and night. Unable to sleep due to the bright lights, the defendant attempted to communicate her concerns about the lights with the plaintiffs on a number of occasions through different intermediaries but received no response from the plaintiffs. On one occasion, the defendant opened the plaintiffs’ mailbox to put a handwritten letter inside it expressing her concerns, and the police thereafter were notified that the defendant had improperly and illegally opened the plaintiffs’ mailbox.

In addition, the defendant discovered the existence of a website that contains the headline, "[The defendant] ... [watches] kiddies," and lists the defendant's address in connection with accusations that she installed her surveillance cameras to observe "a child's playground area and the backyard of neighbor's property who were involved in the recent litigation," and, further, lists the defendant's name in connection with a harassment and child pornography case file pending in the Stamford Superior Court, thereby insinuating that the defendant

had an interest in child pornography.5 The website also lists the contact number for the Department of Children and Families and contains photographs of the defendant's property and cameras. The website does not identify its owner or any of its contributors.

The court's memorandum of decision lays out the following additional procedural history. "[T]he plaintiffs initially sued the defendant, and the named plaintiffs included [John Borg and Alison] Borg, as well as their daughter. The [counterclaim] filed by the defendant, nominally directed to all of the plaintiffs, [was] clearly directed only to [John Borg and Alison Borg] (arguably belatedly acknowledged by the defendant at or around the time of trial).

"As presented to the jury, the claims of the plaintiffs were based on theories of private nuisance, invasion of privacy (right of seclusion), and trespass. As presented to the jury, the claims of the defendant directed to the ... plaintiffs were reciprocal theories, i.e., private nuisance, invasion of privacy (right of seclusion) and as to [John] Borg only, trespass. There were additional claims of defamation and invasion of privacy (false light), directed only to [John] Borg.

"On January 24, 2018, after a trial that lasted approximately [three] weeks, the jury found for the defendant as to all of the plaintiffs’ claims (including that of the minor plaintiff). The jury also found for the defendant with respect to all of her claims against the ... plaintiffs, awarding $146,000 in noneconomic damages as against each plaintiff for each of the claims of private nuisance and invasion of privacy (right of seclusion) and $10 of nominal damages as to [John] Borg with respect to the trespass claim. As to the defamation and

invasion of privacy (false light) claims, the jury awarded the defendant $250,000 on each claim directed to [John] Borg. The jury also found that the defendant had proven that the plaintiffs had acted sufficiently recklessly or intentionally as to justify an award of common-law punitive damages." (Footnote omitted.)

On March 2, 2018, after the court accepted the jury verdict, the plaintiffs filed a motion to set aside the verdict and for remittitur. On that same day, the defendant filed a motion to set the amount of the punitive damages award. The court conducted a hearing on the proper amount of punitive damages and, by way of memorandum of decision, awarded the defendant $32,600 in the form of attorney's fees. On May 8, 2018, after a hearing that took place on April 2, 2018, the court denied the plaintiffsmotion to set aside the verdict after carefully considering the several grounds raised therein, and it granted a remittitur in the amount of $292,000,6 which was accepted by the defendant as to a portion of the damages. On April 20, 2018, the defendant filed a motion to modify a temporary injunction that had been in place since prior to the trial, asking the court to award permanent injunctive relief regarding both the lights and the website. The court granted the requested permanent injunctive relief, over the plaintiffs’ objection, after an evidentiary hearing. The permanent injunction ordered by the court required, inter alia, that both plaintiffs refrain from using any outside light at the rear of their property in excess of a specified

lumen output threshold, and that John Borg remove or take steps to ensure the removal of the website and its postings. Thereafter, the defendant moved to hold in contempt the plaintiffs for failing to comply with the permanent injunction order, which the court granted. This appeal, which has been amended twice, followed.

We will address each of the plaintiffs’ claims in turn. Additional facts and procedural history will be set forth as necessary.

IMOTION TO SET ASIDE THE VERDICT

The plaintiffs claim first that the court erred in denying their motion to set aside the verdict in favor of the defendant on her counterclaim. Specifically, they assert that the court abused its discretion in failing to set aside the verdict on the grounds that (1) the court failed to investigate the possibility of juror misconduct and its effect on the verdict, (2) the evidence of Alison Borg's liability for nuisance was insufficient, (3) the evidence of Alison Borg's recklessness was insufficient, (4) the jury awarded double damages to the defendant, (5) the evidence...

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4 cases
  • Sosa v. Robinson
    • United States
    • Appellate Court of Connecticut
    • September 22, 2020
  • Cloutier v. Borg (In re Borg)
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — District of Connecticut
    • January 18, 2023
  • Bank of N.Y. Mellon v. Madison
    • United States
    • Appellate Court of Connecticut
    • March 2, 2021
    ...this distinct claim before the trial court, and, therefore, we decline to review this unpreserved claim. See Borg v. Cloutier , 200 Conn. App. 82, 122, 239 A.3d 1249 (2020) ("Our rules of practice require a party, as a prerequisite to appellate review, to distinctly raise its claim before t......
  • Kennedy v. Caruso
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 19, 2021
    ...character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.'” Id. (internal citations Here, Fairfield Defendants and Hirsch raise similar arguments that there is an absence of evidence to support the falsity elem......

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