Miles v. Perry

• Decision Date: 21 July 1987
• Docket Number: No. 4736,4736
• Citation: 529 A.2d 199,11 Conn.App. 584
• Parties: , 14 Media L. Rep. 1985 Kristine MILES v. Robert W. PERRY, et al.
• Court: Connecticut Court of Appeals

Page 199

529 A.2d 199

11 Conn.App. 584, 14 Media L. Rep. 1985

Kristine MILES v. Robert W. PERRY, et al.

No. 4736.

Appellate Court of Connecticut.

Argued March 3, 1987.

Decided July 21, 1987.

Tracy Alan Saxe, Stamford, for appellant (named defendant).

Barry J. Boodman, Stamford, for appellants (defendants Joyce Yerwood et al.).

Kathryn C. Senie, with whom was Christopher G. Senie, Westport, for appellee (plaintiff).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

DUPONT, Chief Judge.

In this defamation action, the defendants ¹ appeal from the judgment of the trial court rendered in favor of the plaintiff. The dispositive issues ² to be determined on this appeal are whether the trial court erred (1) in concluding that the plaintiff is not a public figure, (2) in holding that the defendants did not successfully prove any recognized privilege which would immunize them from liability for harm caused by defamatory falsehoods, (3) in awarding the plaintiff $25,000 as general damages, without proof of special damages, and (4) in holding the defendants jointly and severally liable for the entire amount of damages. We find no error.

The trial court found the following facts. The plaintiff had been a member of the Union Baptist Church in Stamford for thirty years. She served on the church's finance committee and as the financial secretary of the church for the six years immediately prior to the time when the church's board of trustees eliminated the latter position. ³ The defendants are the pastor of the church and several members of the church's board of trustees.

In 1981, the defendants employed an accountant ⁴ to review the church's tax exempt status. The review prompted an investigation by the board of trustees concerning the financial affairs of the church. In January, 1983, a meeting of the church membership was called for the purpose of informing the membership of the investigatory findings. The accountant employed by the board of trustees participated in the meeting of the membership.

At the church meeting, the defendants orally presented prepared texts and displayed photographic slides designed to illustrate their statements. Specifically, the testimony showed that at the meeting, the defendant Gerald Ross, vice-chairman of the board of trustees, read a statement referring to the "former financial secretary" and "questionable transactions." The defendant Mattie Drakeford, the financial secretary of the church, read a further explanation of the charges. The defendant John Johnson, auditor for the church, showed several slides of checks purporting to substantiate the alleged claim that funds had been "misappropriated." The defendant Robert W. Perry, pastor of the church, acted as moderator of the meeting and read a statement of purpose referring to "discrepancies of church funds." Also, both Perry and the defendant Joyce Yerwood, chairman of the board of trustees, answered questions posed to them by the congregation.

At trial, various witnesses testified that there was absolutely no question in their minds that the defendants' reference to the "former financial secretary" related to the plaintiff, and that all of the defendants were accusing the plaintiff of misappropriating church funds. The plaintiff testified that after the church meeting people shunned her and accused her of stealing funds from the church. In February, 1983, she stopped attending the church.

Although the plaintiff did not claim to have suffered any actual pecuniary harm, she did claim general damages for the humiliation and mental anguish that she allegedly suffered as a result of the defendants' defamatory remarks. The trial court found that the defendants' remarks regarding her alleged misappropriation of funds were defamatory. The trial court further found that the plaintiff had proven that those assertions were false. It also concluded that the defendants' remarks were actionable per se as libel and slander. The trial court awarded the plaintiff the sum of $25,000, and held all the defendants jointly and severally liable for the entire amount.

I

For the purpose of determining the constitutional protection afforded the defendants' speech under the first amendment to the United States constitution, the first issue which this court must address is the defendants' assignment of error to the trial court's conclusion that the plaintiff was not a public figure. The determination of whether a plaintiff is a public figure is dispositive of the standard of proof and the degree of fault of the defendants which the plaintiff had to prove. Under the rule enunciated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as later extended in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), a public figure, as well as a public official, cannot recover damages for a defamatory falsehood, absent clear and convincing proof that the defamatory falsehood was published or broadcast with actual malice, that is, with knowledge that the statement was false or with reckless disregard for its falsity. New York Times Co. v. Sullivan, supra, 376 U.S. at 280, 84 S.Ct. at 726. The standard of fault applicable to "private individuals," on the other hand, merely requires the plaintiff to prove a negligent misstatement of fact. Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). The United States Supreme Court's subsequent decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), refined the controlling standard in defamation suits when such suits are brought by private individuals. "[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Id., 347, 94 S.Ct. at 3010. Thus, if the plaintiff is a public figure, she would need to prove actual malice; Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 534-36, 368 A.2d 125 (1976); Moriarty v. Lippe, 162 Conn. 371, 377-78, 294 A.2d 326 (1972); but if she is a private individual, she need only prove, by a preponderance of the evidence, negligence in the failure to investigate the facts properly prior to publication. Corbett v. Register Publishing Co., 33 Conn.Sup. 4, 10, 356 A.2d 472 (1975); 3 Restatement (Second), Torts § 580B, pp. 221-22.

The trial court held that the plaintiff was a private individual. Ordinarily, the plaintiff, as a private individual, need only have proved, by a preponderance of the evidence, that the defendants negligently made the defamatory statements. The trial court found, however, that the plaintiff proved malice by a preponderance of the evidence. In this case, the plaintiff needed to prove malice in fact for two reasons. First, the plaintiff needed to prove malice in order to rebut the defendants' defense of privilege. Second, the plaintiff needed to prove malice in order to recover general damages, without proof of special damages.

We must determine whether the trial court was correct in its finding that the plaintiff was a private individual. This is necessary because that finding determines the standard of proof required for any finding of malice of the defendants as it relates to their defense of privilege. Furthermore, if the plaintiff were a public figure, the scope of judicial review might be different.

Appellate courts ordinarily do not disturb the facts as found by the trial court unless the findings of facts are clearly erroneous. See Practice Book § 4061; Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In Brown v. K.N.D. Corporation, 7 Conn.App. 418, 509 A.2d 533, cert. granted, 201 Conn. 802, 513 A.2d 696 (1986), however, this court held that where a defamation plaintiff is a "public official," ⁵ the trial court's determination of whether the public official proved actual malice with clear and convincing evidence is susceptible to an independent de novo review by appellate courts, in order to insure that the defendant's first amendment guarantees are not unduly trampled upon. Therefore, if the plaintiff is a public figure, we would need to decide if a de novo review is mandated or if the clearly erroneous standard of review would suffice. ⁶ If the plaintiff is a private individual, however, the trial court's finding of actual malice is subject only to the clearly erroneous standard of judicial review.

Also, if the plaintiff is a public figure, she is required to prove actual malice by clear and convincing evidence. If the plaintiff is a private individual, on the other hand, she is required to prove actual malice, in order to rebut the defense of privilege and recover general damages, merely by a preponderance of the evidence. Dacey v. Connecticut Bar Assn., supra, 170 Conn. at 534, 368 A.2d 125; Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197 (1933).

We hold, for the reasons stated below, that the plaintiff is a private individual and, therefore, that the plaintiff had to prove her case and rebut the defense of privilege by a preponderance of the evidence. As a result of our holding, we need not decide the issue of whether a finding of malice is subject to de novo appellate review when the plaintiff is a public figure.

In Gertz, the United States Supreme Court defined the meaning of "public figure" for the purposes of the first and fourteenth amendments: "For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular controversies in order to influence the resolution of...