Jonap v. Silver, 2292

• Decision Date: 17 April 1984
• Docket Number: No. 2292,2292
• Citation: 1 Conn.App. 550,474 A.2d 800
• Court: Connecticut Court of Appeals
• Parties: Burton A. JONAP v. Jules SILVER et al.

Page 800

474 A.2d 800

1 Conn.App. 550

Burton A. JONAP v. Jules SILVER et al.

No. 2292.

Appellate Court of Connecticut.

Argued Nov. 29, 1983.

Decided April 17, 1984.

Robert L. Trowbridge, Hartford, with whom, on brief, was Jeffrey B. Coppage, Hartford, for appellants-appellees (defendants).

Barry J. Ward, New London, with whom was Gilbert Shasha, New London, for appellee-appellant (plaintiff).

Before DANNEHY, TESTO and HULL, JJ.

HULL, Judge.

In a suit for injurious falsehood and invasion of privacy tried to a jury, a verdict on each of six counts in the complaint was returned for the plaintiff. After the defendants filed a motion to set aside the verdicts and a motion for judgment notwithstanding the verdicts, the court set aside the verdicts concerning two counts for injurious falsehood and rendered judgment for the defendants on those two counts. On appeal, ¹ the defendants claim that the court erred in granting judgment for the plaintiff on the invasion of privacy counts. The plaintiff on cross appeal claims that the court erred in granting, in part, the defendants' motion to set aside the verdicts.

The plaintiff, Burton A. Jonap, was the marketing director for the defendant company, Masti-Kure Products Co., Inc., from November, 1970, to January, 1977. The company was a manufacturer in the animal health products field. During the 1970's, this field came under increased scrutiny by the federal Food and Drug Administration (FDA). The defendant, Jules Silver, was the president of the defendant company. In a letter dated November 29, 1976, the defendants requested, allegedly without the plaintiff's consent, that the editor of "Animal Nutrition and Health" magazine publish a letter dated April 1, 1975, which was attributed to the plaintiff. The letter criticized at length certain FDA policies which had seriously interfered with the defendants' marketing efforts. The letter was published in the January/February 1977 edition of the magazine. ²

The plaintiff brought an action against the defendants claiming that the letter, which was published and attributed to him, had caused damage to his reputation and, as a result, had interfered with his business opportunities and earning capacity. The original complaint filed on October 13, 1977, alleged injurious falsehood. The plaintiff was subsequently allowed, over the defendants' objection, to amend his complaint to allege that the defendants had invaded his privacy both by appropriating his name and by placing him in a false light. ³

At the conclusion of the evidence, the court, Schaller, J., reserved judgment on the defendants' motion for directed verdict and the case went to the jury. The jury returned three separate verdicts against each defendant. The verdict on counts one and two for injurious falsehood awarded the plaintiff $24,000; the verdict on counts three and four for invasion of privacy for appropriating his name awarded the plaintiff $24,000; and the verdict on counts five and six for invasion of privacy for placing the plaintiff in a false light awarded him $32,000. The defendants filed a motion to set aside the verdicts and a motion for judgment notwithstanding the verdicts. The court set aside the verdicts on counts one and two and rendered judgment for the defendants on those counts.

On appeal, the defendants claim: (1) that the added counts for invasion of privacy by appropriation and for being placed in a false light were barred as a matter of law by the applicable statute of limitations; (2) that the plaintiff failed to prove the essential elements of invasion of privacy by being placed in a false light; (3) that the evidence did not support the awards for damages under both of the invasion of privacy counts in the amended complaint; (4) that the weight of the evidence establishes that the plaintiff consented to the publication of the subject letter; and (5) that the court did not abuse its discretion in rendering judgment notwithstanding the verdict as to counts one and two concerning injurious falsehood.

On cross appeal, the plaintiff claims (1) that the court erred in setting aside the verdicts on the injurious falsehood claims because there was sufficient evidence upon which the jury could base their verdicts; and (2) that the court erred in rendering judgment notwithstanding the verdicts on the counts for injurious falsehood because the court erroneously had excluded substantial evidence.

I

On September 8, 1980, the court granted the plaintiff's request to amend his complaint to add allegations of invasion of privacy to the original allegations of injurious falsehood. The defendants had objected to that amendment claiming that the invasion of privacy claims were barred by the applicable statute of limitations. General Statutes § 52-577. On December 2, 1980, the plaintiff filed a second amended complaint in which he consolidated some of his invasion of privacy claims. Rather than file an objection to the plaintiff's second request to amend, the defendants raised the statute of limitations claim as a special defense. The defendants claim on appeal, as they did in their objection to the first amended complaint and in their special defense to the second amended complaint that the allegations of invasion of privacy by appropriation and by false light included in the plaintiff's amended complaint were barred by the applicable statute of limitations because those allegations were separate and distinct from the cause of action for injurious falsehood, the only allegation in the original complaint. We disagree.

The date of the incident giving rise to the cause of action was November 29, 1976, the date the defendants mailed the letter requesting the editor of the magazine to publish the letter in question. The applicable three year statute of limitations for this cause of action began to run at that time. See General Statutes § 52-577. The cause of action alleged in the original complaint filed in September, 1977, was brought well within the period allowed by the statute of limitations. The defendants claim, however that because the counts additionally alleged in the amended complaint filed in May, 1980, were separate and distinct from the initial cause of action, the amended complaint cannot relate back in time to the date when the original complaint was filed and, therefore, the additional causes of action should have been barred as they were raised after the three year statute of limitations had run. ⁴

The trial court may allow, in its discretion, an amendment to pleadings. Saphir v. Neustadt, 177 Conn. 191, 206, 413 A.2d 843 (1979); Wesson v. F.M. Heritage Co., 174 Conn. 236, 239, 386 A.2d 217 (1978); see Practice Book § 176. Such a ruling can be reversed only upon a clear showing of an abuse of discretion. Saphir v. Neustadt, supra; Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957). Factors to be considered in determining whether there has been an abuse of discretion include unreasonable delay, fairness to opposing parties and the negligence of the party offering the amendment. DuBose v. Carabetta, 161 Conn. 254, 263, 287 A.2d 357 (1971); Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959).

An amended complaint, if permitted, relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action. Keenan v. Yale New Haven Hospital, 167 Conn. 284, 285, 355 A.2d 253 (1974); Baker v. Baker, 166 Conn. 476, 486, 352 A.2d 277 (1974). A cause of action must arise from a single group of facts. Keenan v. Yale New Haven Hospital, supra; Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961). The test for determining whether or not a new cause of action has been alleged is somewhat nebulous. "To relate back to the institution of the action the amendment must arise from a single group of facts." Keenan v. Yale New Haven Hospital, supra; Kelsall v. Kelsall, 139 Conn. 163, 165, 90 A.2d 878 (1952). " 'A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.... "A right of action at law arises from the existence of a primary right in the plaintiff, and in invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action." ' " (Citations omitted.) Saphir v. Neustadt, 177 Conn. 191, 207, 413 A.2d 843 (1979); see Burgess v. Vanguard Ins. Co., 192 Conn. 124, 125-26, 470 A.2d 244 (1984). An amendment may properly expand or amplify what had originally been alleged in support of the cause of action. Burgess v. Vanguard Ins. Co., supra; Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 239, 429 A.2d 486 (1980); Gallo v. G. Fox & Co., supra. A change in the allegations of liability, therefore, does not necessarily amount to the introduction of a new cause of action. Cooper v. Ketover, 35 Conn.Sup. 38, 43, 393 A.2d 64 (1978); 1 Stephenson, Conn.Civ.Proc. § 99. Where an entirely new and different factual situation is presented, however, a new and different cause of action is stated. Gallo v. G. Fox & Co., supra. ⁵

We find that the acts which gave rise to a claim for injurious falsehood are not separate and distinct from the acts which gave rise to the alleged invasion of privacy claims. All of the plaintiff's theories of liability arise from a single group of facts. We find, therefore, that the court did not abuse its discretion in allowing the amendment to the complaint.

II

The defendants claim that the plaintiff failed to prove the essential elements of invasion of privacy by placing the plaintiff in a false light and, therefore, that their motion for judgment notwithstanding the verdict should have been granted on counts five and six.

The existence of a cause of action for invasion of privacy has only recently been officially...