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 contractor, 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 Practices 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

thatR 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 knowledge 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 constitutionally 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 disclosures 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 concluding 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 notrise 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,ratherthan 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, Complex Litigation Docket, and tried to the court, D. Sheridan, J.; judgment in part for the plaintiff on the

complaint and in part forthe defendants on the counterclaim, from which the plaintiff appealed and the defendants 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 construction contract, both parties appeal from the judgment 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 following 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 Statutes § 52-564, and conversion. Cohen alleged the following 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 counterclaims for breach of contract, defamation, and intentional 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 defamation 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 intentional 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 malice, the court employed the wrong legal standard in

determining the issue of malice, and each of his allegedly 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 defamation 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 construction 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 percolation 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 singlefamily home to be built on his property in Chester.

Buckley provided Cohen several names of general contractors 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 contractor (‘NHCC’) registration.

‘‘Robert M. Meyers is the president and sole shareholder of RMMI. At all times RMMI acted through Meyers, 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 conducting 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 additional 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 complaint 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 improvements substantially in accordance with SCHEDULE

A, the house drawing plan and Site plan. And SCHEDULE 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 improvements, 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 backfilling.

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, cabinets, 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 outside 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 acknowledge that this agreement contains the entire understanding, 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, modification, 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 having 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 status; (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 completion 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.

‘‘OnAugust 31, 2010, afterreceiving 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 driveway 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 application 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 October 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,’ ranging 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 responsible 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 otherfor various delays,

discrepancies, problems, and cost overruns on the project. 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 terminated 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 memorialize long and bitter conflict is impressive in its dimensions 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 allConnecticut 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 DurhamMeriden-East Haddam corridor will have your

number. As for being a licensed building inspector—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 public. . . . [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 consumer columnist for numerous Connecticut newspapers. 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 secretary ofRMMI 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 construction 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 Department 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 Highway 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 investigator 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 notregistered/licensed (a criminal offense) . . . [p]erformed construction work
(2010) on a new house without getting a building permit

. . . [a]llegedly threatened to kill a customer in a dispute 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, incompetent contractor.’ Cohen thereafter went to a Middlefield 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 Complains about Middlefield Building Inspector at Selectmen’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 Tierney, deputy state building inspector; Attorney General

George Jepsen; and William M. Rubenstein, commissioner 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, competence 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 ‘personal 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 violation 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 Selectmen 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 contractor.

‘‘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 cannotreason 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 Martinez, a consumer information representative in the fraud

division of the Department of Consumer Protection,

stating, ‘[i]t is my contention now that Robert M. Meyers, doing business as Robert M. Meyers, Inc., had for

the past decade or more operated an ongoing criminal

enterprise disguised as a building contracting business. Mr. Meyers engaged in fraud,theft/larceny, embezzlement, 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 outside 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.robertmeyersinfo.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 precautions . . .’

• ‘‘ ‘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 concluded, 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., constitutes 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 creditedCohen’s testimony 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

forfraud, unjust enrichment, statutory theft and conversion 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 complete 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 finding that Meyers used the corporate form to violate a
statutory duty.’’

The court disagreed, and issued an order on December 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 commonly known as piercing the corporate veil.’’ (Internal

quotation marks omitted.) Litchfield Asset Management 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 corporation 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 Construction & 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 transaction 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 positive legal duty, or a dishonest or unjust act in contravention 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 practices, 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 individual, used the corporate form to perpetrate a fraud. The

evidence offered by [Cohen] does not justify transforming a breach of contract claim against a corporation

into a personal obligation of the corporation’s principal. . . .

‘‘[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 conducted 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] corporation. 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 speculation, and thus was completely unpersuasive.’’

The court thus concluded that Cohen had ‘‘offered

insufficient evidence to satisfy . . . the instrumentality . . . 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 reargue—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 control of Meyers, violated a statutory duty to Cohen under

the NHCCA. In other words, Cohen contends that the

trial court’s own factualfindings 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 consumer protection statutes’’ and his right to make such

statements in prosecuting this action. Cohen also

argued, in his posttrial brief, that his statements regarding Meyers involved matters of public concern and thus

were constitutionally protected.3 The trial court found

thatCohen’s statements regarding Meyers were defamatory per se. The court further found that Cohen’s arguments 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. Smolinski, 319 Conn. 394, 431, 125 A.3d 920 (2015). ‘‘Defamation is comprised of the torts of libel and slander:

slander is oral defamation and libel is written defamation.’’ (Internal quotation marks omitted.) Id., 430 n.30.

To establish a prima facie case of defamation at common 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 person; 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 apparent 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 circumstances 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 truthfulness 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-American, 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 communication 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 findings are clearly erroneous, such that there is no evidence 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 malice, 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 omitted.) 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 principles 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 incompetent 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 statements, 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 regarding 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 statements. The court then found: ‘‘Several defamatory statements 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 circumstantial 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 extramarital 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 professionally that went far beyond aggressive litigation tactics 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 conditional privilege has been lost, and recovery for defamation is not precluded.’’

In his posttrial brief, Cohen also claimed that his

comments about Meyers were constitutionally protected because they were matters of public concern

‘‘relating to both Meyers as a builder with whom multiple 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 benefit.’’ The court also rejected that claim, finding as follows: ‘‘[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 Meyers and perhaps induce the town of Middlefield to prematurely 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, vitriolic, 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 substantially true even though the burden of proof was on

Meyers to prove that they were not.

We have examined the record on appeal and considered 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 decision 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 defendants argue that any injury suffered by Cohen was

caused, instead, by his own refusal ‘‘to submit the driveway permit fee, bond and certificate of insurance in

orderto obtain a building permit and continue construction,’’ and not their failure to make NHCCA disclosures.

The defendants thus claim that the court erred in awarding 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 parties 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, however, 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 . . . .’’ (Internal quotation marks omitted.) DeVito v. Schwartz, 66

Conn. App. 228, 236, 784 A.2d 376 (2001).

In addressing the parties’ claims for punitive damages, 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 otherwise 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 rendered 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 forintentional 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 witnesses and the weight to be given specific testimony.

. . . On appeal, we will give the evidence the most

favorable reasonable construction in support of the verdict 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 emotional 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 outrageous; (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. . . . Liability for intentional infliction of emotional distress

requires conduct that exceeds all bounds usually tolerated by decent society . . . . Liability has been found

only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, 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 ‘conduct’ that is identified as the cause of Meyers’ emotional

distress consists of written and verbal oral communication 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 employment as a building official for the town of Middlefield.’’

The court found that Cohen had engaged in ‘‘an intentional 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 provocation, and relentless scrutiny, all of which put Meyers

under severe, unremitting pressure.’’ The court nevertheless 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 meetings, 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 authority—necessary to impose liability for intentional infliction 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 intentional 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 outrageous as to constitute an intentional infliction of emotional 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 conduct. 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, ‘Housebuilder 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 primarily 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, 105Conn. 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 occasioned 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 contracting 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 evidence having the greater weight, the more convincing force in your mind.

. . . Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).’’ (Footnote 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 conduct 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 communication 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 Consumer Protection, Cohen stated that the lawsuit between Meyers and the

Christophers ‘came to a conclusion when Mr. Christopher died fairly suddenly, 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 statements 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.’’