***********************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
***********************************************
JOHN BORG ET AL. v. LYNNE CLOUTIER
(AC 41693)
DiPentima, C. J., and Keller and Bright, Js.*
Syllabus
The plaintiffs, J, A and their minor child, sought to recover damages from
the defendant for trespass, nuisance and invasion of privacy, and the
defendant filed a counterclaim against J and A alleging claims of trespass,
private nuisance, invasion of privacy, defamation and defamation per
se in connection with an ongoing dispute between the parties, who are
neighbors. Following prior litigation between the parties and in response
to vandalism in the parties’ neighborhood, the defendant installed surveillance cameras on the rear of her property, facing the backyard of
the plaintiffs’ property, which upset J and A because, inter alia, they
believed that the cameras were angled to monitor their child’s play area.
Soon thereafter, J and A installed floodlights in their backyard that
emitted bright light into the defendant’s yard and through her windows,
and the defendant discovered a website connected to J that contained
references that she was associated with child pornography. Following
a trial, the jury returned a verdict in favor of the defendant on the
complaint and on the counterclaim and awarded $292,000 in noneconomic damages against both J and A on the private nuisance and intrusion on seclusion invasion of privacy claims, and $250,000 as to both
the defamation claim and false light invasion of privacy claim against
J. The jury also found that the actions of J and A were sufficiently
reckless or intentional to justify an award of punitive damages. Thereafter, the court denied the motion to set aside the verdict filed by J and
A, awarded the defendant $32,600 in punitive damages and ordered a
permanent injunction against J and A, limiting their use of the floodlights
directed at the defendant’s property and requiring J to remove the defamatory statements about the defendant from the website. The court subsequently granted the defendant’s motion for contempt, finding J and A
in contempt for failing to comply with its permanent injunction order.
On J and A’s amended appeal to this court, held:
1. J and A’s claim that the trial court abused its discretion in failing to set
aside the verdict because it failed to inquire adequately into possible
juror misconduct was unavailing: J and A waived their claim that that
court should have conducted an evidentiary hearing on the issue of
possible juror misconduct, as they assented to the court’s decision to
proceed with the trial without conducting further inquiry after its preliminary inquiry into the issue; moreover, under the circumstances, the
court properly limited the scope of its investigation of possible juror
misconduct, it conducted a sufficient inquiry into the issue and its
conclusion as to the absence of juror misconduct was adequately supported by the record.
2. J and A could not prevail on their claim that the trial court abused its
discretion in denying the motion to set aside the verdict on the count
alleging private nuisance against A and the jury’s finding of recklessness,
as there was sufficient evidence in the record to support the jury’s
verdict as to A; contrary to J and A’s contention that A could not be
liable for private nuisance because there was no direct evidence of her
participation in the circumstances that led to the private nuisance claim,
the jury was free to infer, on the basis of the circumstantial evidence
before it, that A maintained sufficient control and responsibility regarding the activities on the subject premises to find her liable, and the jury
was presented with evidence depicting a number of instances from
which it could infer that A participated in the creation of the private
nuisance intentionally and with a reckless disregard for the rights of
the defendant.
3. J and A could not prevail on their claim that the trial court abused its
discretion in denying the motion to set aside the verdict because there
was insufficient evidence to support the jury’s verdict on the counts
alleging defamation and false light invasion of privacy against J and its
finding of actual malice:
a. There was sufficient evidence on which the jury reasonably could have
concluded that J’s actions in connection with the website constituted
defamation, as the ample evidence linking J to the creation and maintenance of the website was sufficient to permit the jury reasonably to
infer that he had registered the website domain name using a credit
card and that he posted the statements about the defendant that the
jury determined to be defamatory.
b. There was sufficient evidence to support the verdict on the claim of false
light invasion of privacy as to J, as the jury reasonably could have
concluded that the false light into which the defendant had been placed,
as an alleged child pornographer, would be highly offensive to a reasonable person and that J created and maintained the website that published
this accusation with knowledge that it was false for the purpose of
antagonizing the defendant by misrepresenting her character.
c. There was sufficient evidence for the jury reasonably to find that J acted
with actual malice in publishing the defamatory statements about the
defendant on the website, as the jury reasonably could have concluded,
on the basis of the ongoing hostile relationship between the parties, J
and A’s refusal to discuss the defendant’s concerns about the floodlights
and J and A’s call to the police when the defendant put a letter in their
mailbox, that the website had been created solely to attack the defendant
in her role as J and A’s adversary.
4. The trial court abused its discretion in refusing to set aside the verdict
on the ground that jury awarded double damages to the defendant;
although the awards of $292,000 against both J and A for the private
nuisance and intrusion on seclusion invasion of privacy claims related
to the lights did not constitute duplicative damages, the awards of
$250,000 as to both the defamation and false light invasion of privacy
claims against J related to the website were duplicative, and, therefore,
the court should have set aside the verdict on that ground.
5. J and A could not prevail on their claim that the trial court improperly
awarded punitive damages to the defendant: J and A’s contention that
that court was required hold an evidentiary hearing, sua sponte, on
punitive damages was unavailing, and the court’s award of $32,600 in
punitive damages to the defendant was well within its broad discretion;
moreover, this court declined to review the J and A’s argument that the
trial court should have submitted to the jury the issue of the amount
of punitive damages rather than resolving that issue itself, as J and A
could not complain on appeal that the court’s bifurcation of the punitive
damages determination, to which they agreed at trial, entitled them
to relief.
6. The trial court correctly determined that a permanent injunction was
warranted; because that court’s memorandum of decision fully
addressed J and A’s claim on appeal, this court adopted it as the proper
statement of the facts and applicable law on this issue.
7. The trial court properly held J in contempt for failing to comply with its
permanent injunction order requiring him to take down the website that
contained the defamatory statements about the defendant; that order
was sufficiently clear and unambiguous to support a finding of contempt,
the record was unequivocally clear that J did not comply with the order
and J failed to prove that his failure to comply was not wilful.
Argued March 5—officially released September 15, 2020
Procedural History
Action to recover damages for, inter alia, trespass,
and for other relief, brought to the Superior Court in
the judicial district of Hartford and transferred to the
judicial district of Stamford-Norwalk, where the defendant filed a counterclaim; thereafter, the matter was
tried to the jury before Povodator, J.; verdict for the
defendant on the complaint and on the counterclaim;
subsequently, the court, Povodator, J., denied the
motion to set aside the verdict filed by the named plaintiff et al., granted the motion for remittitur filed by the
named plaintiff et al. and rendered judgment for the
defendant, from which the named plaintiff et al.
neth B. Povodator, judge trial referee, granted the defendant’s motion to modify a temporary injunction and
ordered certain permanent injunctive relief, and the
named plaintiff et al. filed an amended appeal; subsequently, the court, Hon. Kenneth B. Povodator, judge
trial referee, granted the defendant’s motion for contempt, and the named plaintiff et al. filed an amended
appeal. Reversed in part; judgment directed.
Christopher G. Winans, for the appellants
(plaintiffs).
Brian M. Paice, with whom were Raymond M. Gauvreau and, on the brief, Tara Racicot and Peter Sabellico, for the appellee (defendant).
Opinion
KELLER, J. The underlying action is the latest chapter
in a long-running dispute between neighbors. The plaintiffs John Borg and Alison Borg1 brought several causes
of action sounding in trespass, private nuisance, and
invasion of privacy against the defendant, Lynne
Cloutier. In a counterclaim, the defendant brought several causes of action against either one or both of the
plaintiffs sounding in trespass, private nuisance, invasion of privacy, defamation and defamation per se, relating to the plaintiffs’ allegedly directing flood lights at
the defendant’s residence for extended periods of time
and for allegedly publishing a website containing defamatory statements about the defendant.2 Following a trial,
the jury returned a verdict in favor of the defendant on
the complaint and on the counterclaim, and the court
denied the plaintiff’s motion to set aside the verdict,
awarded the defendant common-law punitive damages
and ordered a permanent injunction against the plaintiffs, limiting their use of the lights directed at the defendant’s property and requiring John Borg to remove the
defamatory statements about the defendant from the
website. The court thereafter held both plaintiffs in
contempt for not complying with the permanent injunction as to the lights and held John Borg in contempt
for violating the terms of the injunction as to the website. On appeal, the plaintiffs claim that the court erred
in (1) denying their motion to set aside the verdict in
favor of the defendant on her counterclaim, (2) awarding punitive damages to the defendant, (3) granting the
permanent injunction against John Borg regarding the
website, and (4) holding John Borg in contempt with
respect to the website containing defamatory statements about the defendant.3 For the reasons set forth
herein, we affirm in part and reverse in part the judgment of the trial court.
The court, in its well reasoned and thorough memorandum of decision on the plaintiffs’ motion to set aside
the verdict on the defendant’s counterclaim, set forth
the following facts and procedural history. ‘‘This is a
lawsuit arising from a neighbor dispute. The plaintiffs
and the defendant live in Westport, in an area of town
where the houses are relatively small and in relatively
close proximity to each other. The parties’ properties
generally back up to each other, with the rear property
line essentially straddled by a ten feet wide right-ofway (approximately five feet from the centerline of the
right-of-way encumbering each side’s fee interest). The
defendant is a relatively longtime resident of her home,
and is the owner of the home. The plaintiffs . . . began
occupying the property several years before this dispute
arose. The nominal owner of the property on which
the plaintiffs reside is a trust, established by [Alison
Borg’s] family.
‘‘This dispute4 involves [a complaint and a counter-
claim with mutual claims of trespass, private nuisance,
and invasion of privacy (seclusion)], with additional
claims by the defendant against [John Borg] based on
defamation and invasion of privacy (false light).’’ (Footnotes added and omitted.)
We now set forth additional facts, which the jury
reasonably could have found. The defendant is a retired
woman in her seventies who lives by herself in Westport. In the fall of 2015, following prior litigation
between the parties; see footnote 4 of this opinion; and
in response to recent vandalism in the neighborhood in
which she and the plaintiffs live, the defendant installed
surveillance cameras on the rear of her property, facing
the backyard of the plaintiffs’ property. The plaintiffs
were upset by the defendant’s installation of the cameras because they believed that the cameras were
angled to monitor their minor child’s play area and
because they used their property to see clients and
patients of their psychotherapy practice. The plaintiffs
insisted that the defendant remove the cameras. The
defendant made efforts to have the camera angles
adjusted.
Not long after, the plaintiffs installed floodlights in
their backyard that emitted bright light into the defendant’s yard and through her windows at all hours of
the day and night. Unable to sleep due to the bright
lights, the defendant attempted to communicate her
concerns about the lights with the plaintiffs on a number
of occasions through different intermediaries but
received no response from the plaintiffs. On one occasion, the defendant opened the plaintiffs’ mailbox to
put a handwritten letter inside it expressing her concerns, and the police thereafter were notified that the
defendant had improperly and illegally opened the
plaintiffs’ mailbox.
In addition, the defendant discovered the existence
of a website that contains the headline, ‘‘[The defendant] . . . [watches] kiddies,’’ and lists the defendant’s
address in connection with accusations that she
installed her surveillance cameras to observe ‘‘a child’s
playground area and the backyard of neighbor’s property who were involved in the recent litigation,’’ and,
further, lists the defendant’s name in connection with
a harassment and child pornography case file pending
in the Stamford Superior Court, thereby insinuating that
the defendant had an interest in child pornography.5
The website also lists the contact number for the
Department of Children and Families and contains photographs of the defendant’s property and cameras. The
website does not identify its owner or any of its contributors.
The court’s memorandum of decision lays out the
following additional procedural history. ‘‘[T]he plaintiffs initially sued the defendant, and the named plaintiffs included [John Borg and Alison] Borg, as well as
their daughter. The [counterclaim] filed by the defendant, nominally directed to all of the plaintiffs, [was]
clearly directed only to [John Borg and Alison Borg]
(arguably belatedly acknowledged by the defendant at
or around the time of trial).
‘‘As presented to the jury, the claims of the plaintiffs
were based on theories of private nuisance, invasion
of privacy (right of seclusion), and trespass. As presented to the jury, the claims of the defendant directed
to the . . . plaintiffs were reciprocal theories, i.e., private nuisance, invasion of privacy (right of seclusion)
and as to [John] Borg only, trespass. There were additional claims of defamation and invasion of privacy
(false light), directed only to [John] Borg.
‘‘On January 24, 2018, after a trial that lasted approximately [three] weeks, the jury found for the defendant
as to all of the plaintiffs’ claims (including that of the
minor plaintiff). The jury also found for the defendant
with respect to all of her claims against the . . . plaintiffs, awarding $146,000 in noneconomic damages as
against each plaintiff for each of the claims of private
nuisance and invasion of privacy (right of seclusion)
and $10 of nominal damages as to [John] Borg with
respect to the trespass claim. As to the defamation and
invasion of privacy (false light) claims, the jury awarded
the defendant $250,000 on each claim directed to [John]
Borg. The jury also found that the defendant had proven
that the plaintiffs had acted sufficiently recklessly or
intentionally as to justify an award of common-law punitive damages.’’ (Footnote omitted.)
On March 2, 2018, after the court accepted the jury
verdict, the plaintiffs filed a motion to set aside the
verdict and for remittitur. On that same day, the defendant filed a motion to set the amount of the punitive
damages award. The court conducted a hearing on the
proper amount of punitive damages and, by way of
memorandum of decision, awarded the defendant
$32,600 in the form of attorney’s fees. On May 8, 2018,
after a hearing that took place on April 2, 2018, the court
denied the plaintiffs’ motion to set aside the verdict
after carefully considering the several grounds raised
therein, and it granted a remittitur in the amount of
$292,000,6 which was accepted by the defendant as to a
portion of the damages. On April 20, 2018, the defendant
filed a motion to modify a temporary injunction that
had been in place since prior to the trial, asking the
court to award permanent injunctive relief regarding
both the lights and the website. The court granted the
requested permanent injunctive relief, over the plaintiffs’ objection, after an evidentiary hearing. The permanent injunction ordered by the court required, inter alia,
that both plaintiffs refrain from using any outside light
at the rear of their property in excess of a specified
lumen output threshold, and that John Borg remove or
take steps to ensure the removal of the website and its
postings. Thereafter, the defendant moved to hold in
contempt the plaintiffs for failing to comply with the
permanent injunction order, which the court granted.
This appeal, which has been amended twice, followed.
We will address each of the plaintiffs’ claims in turn.
Additional facts and procedural history will be set forth
as necessary.
I
MOTION TO SET ASIDE THE VERDICT
The plaintiffs claim first that the court erred in denying their motion to set aside the verdict in favor of the
defendant on her counterclaim. Specifically, they assert
that the court abused its discretion in failing to set aside
the verdict on the grounds that (1) the court failed to
investigate the possibility of juror misconduct and its
effect on the verdict, (2) the evidence of Alison Borg’s
liability for nuisance was insufficient, (3) the evidence
of Alison Borg’s recklessness was insufficient, (4) the
jury awarded double damages to the defendant, (5) the
evidence presented on the false light claim asserted
against John Borg was insufficient, (6) the evidence
presented on the defamation claim asserted against
John Borg was insufficient, and (7) the evidence presented on the actual malice claim against John Borg
was insufficient. Each of these grounds was raised in
the motion and rejected by the court. For purposes of
judicial economy, although not necessarily in this order,
we will address the juror misconduct and double damages claims independently, and will address together
the various claims relating to the insufficiency of evidence, grouped by the particular plaintiff to whom
they pertain.
Before we address the plaintiffs’ claims as they relate
to the court’s denial of the motion to set aside the
verdict, we first set forth our standard of review. ‘‘The
standard of review governing our review of a trial
court’s denial of a motion to set aside the verdict is
well settled. The trial court possesses inherent power
to set aside a jury verdict [that], in the court’s opinion,
is against the law or the evidence. . . . [The trial court]
should not set aside a verdict [when] it is apparent that
there was some evidence [on] which the jury might
reasonably reach [its] conclusion, and should not refuse
to set it aside [when] the manifest injustice of the verdict
is so plain and palpable as clearly to denote that some
mistake was made by the jury in the application of legal
principles. . . . Ultimately, [t]he decision to set aside
a verdict entails the exercise of a broad legal discretion
. . . that, in the absence of clear abuse, we shall not
disturb.’’ (Internal quotation marks omitted.) R.I. Pools,
Inc. v. Paramount Concrete, Inc., 149 Conn. App. 839,
847,
89 A.3d 993, cert. denied,
312 Conn. 920,
94 A.3d
1200 (2014).
A
Failure to Investigate Alleged Juror Misconduct
The plaintiffs claim that the court failed to inquire
adequately into possible juror misconduct when a
juror—who had been dismissed after the first day of
deliberations and replaced by an alternate juror—made
a remark while in the presence of the court clerk, outside of the courtroom and the presence of the other
jurors, about his opinion that he was ‘‘ ‘uncomfortable’ ’’
with John Borg and that he was ‘‘ ‘creepy.’ ’’7 The plaintiffs, citing Connecticut Light & Power Co. v. Gilmore,
289 Conn. 88, 104,
956 A.2d 1145 (2008), specifically
argue that the court should have granted their request
for an evidentiary hearing on whether the juror’s ‘‘misbehavior [was] such to make it probable that the juror’s
mind was influenced by it so as to render him or her
an unfair and prejudicial juror,’’ and that, in denying
such request for an evidentiary hearing, the court
abused its discretion. The defendant counters that the
court made a sufficient inquiry into the possibility of
juror misconduct and, further, that the plaintiffs have
waived this claim. We agree with the defendant.
The following additional undisputed facts, as set forth
in the court’s memorandum of decision on the plaintiffs’
motion to set aside the verdict, and procedural history
are relevant to our resolution of the plaintiffs’ claim.
‘‘When the jury commenced deliberations, the parties
and court were aware that one of the jurors would not
be able to return the following day if the jury did not
render verdicts on the complaint and [counterclaim]
on that first day of deliberations. At the end of the day,
as the court was releasing the jury for the day, the court
acknowledged that one juror was unable to return the
following day, and released/discharged that particular
juror. A few minutes later, the clerk reported to the
court that as that discharged juror was leaving—separate and apart from the other jurors—he made an unflattering comment concerning [John] Borg, something
along the lines of [John] Borg being ‘creepy.’ Counsel
were apprised of this interchange and in open court
were given an opportunity to ask the clerk questions
about the circumstances under which she had heard
that comment. [The clerk] confirmed that the discharged juror had been separated from the remaining
jurors when he made that comment.
‘‘The court already had charged the jury that it should
not allow its decision to be swayed by likes and dislikes,
particularly since at least some of the parties could fit
into somewhat stereotypical personas—the defendant
could come across as a prototypical grandmother and
the minor plaintiff (testifying with a stuffed animal in
her lap) coming across as a prototypical cute little girl.
The court also was aware that there were claims that
[John] Borg had been responsible for a website associating the defendant with child pornography (specifically
identifying the defendant and one of her neighbors by
name, immediately followed by the phrase ‘Think Child
Porn’), which could have an impact beyond relevance
to the merits of the claims of defamation and invasion
of privacy (false light).
‘‘The court explained to the parties that it intended
to give an additional/curative instruction, not referencing the comment of the discharged juror, but reemphasizing that the jury was to determine the merits of the
claims based on the evidence, and not on whether they
liked or disliked any of the parties. The court gave
counsel an opportunity to comment and make suggestions, and the parties agreed that the court’s proposed
course of action was appropriate. No one, and especially the plaintiffs, suggested that the court take more
aggressive action such as making inquiries of the
remaining jurors, something that the court had identified as a possibility but expressed a preference not to
do so as to avoid unduly emphasizing the question of
the likeability of the parties.
‘‘Although the plaintiffs had agreed to the course of
action proposed by the court—and the court followed
through as it had proposed without any exception or
objection from any party—after the jury returned its
verdicts in favor of the defendant as to both the complaint and [counterclaim] the plaintiffs raised the issue
of juror misconduct as warranting setting aside the
verdict based on this incident.’’
The court, in analyzing the impact, if any, of the
dismissed juror’s comment, then stated the following:
‘‘The plaintiffs must contend with at least two impediments to relief. The court exercised its discretion in
fashioning an appropriate response to a situation that
unexpectedly arose. (Technically, it did not actually
involve the jury itself but rather a former juror.) Additionally, the plaintiffs agreed to the course of action
proposed by the court. Therefore, the plaintiffs must
establish not only an abuse of discretion in the action
taken, and a likelihood to taint the deliberation process,
but they must also negate their waiver of any complaint
about the course of action followed by the court. The
court outlined its planned course of action, the plaintiffs
were given an opportunity for input, and the plaintiffs
did not object to the course of action proposed and
actually taken by the court. To the extent that the plaintiffs are claiming that the excessiveness of the verdict
in favor of the defendant is indicative of a pervasive
negative attitude of the jury as directed to the plaintiffs,
that is possibly a factor with respect to evaluation of
the claim that the verdict was excessive. The plaintiffs
have not provided any authority, however, that after
agreeing to, or at least acquiescing in, a procedure
adopted by the court, a party may retroactively complain about the procedure because the verdict was perceived to be excessive without anything more. . . .
‘‘The court must emphasize that the comment was
made after all of the evidence had been presented and
the jury had begun deliberating—in any case in which
a party engaged in actionable or criminal conduct, once
the jury begins deliberating, the jury will be reaching
implicit if not explicit conclusions relating to the character of the actions of parties, and often the egregiousness of that conduct. In civil cases, the issue of
recklessness or malice often is an explicit determination, and in this case, the jury was instructed that it
was to make those determinations in connection with
the evaluation of the conduct of the parties (recklessness as to all parties against whom a claim had been
asserted; malice as a possible issue in the claim of
defamation). The ultimate issue is not whether the jury
(or individual jurors) liked or disliked a party; the issue
is whether there was a fair and impartial determination
of the merits, and there is no basis for concluding that
the plaintiffs did not have a fair and impartial determination of the merits of the claims they were making and the
claims asserted against them, based on the statement
by a former juror that one of the plaintiffs was creepy.
‘‘The court took appropriate prophylactic/curative
action, and other than pointing to the claimed excessive
nature of the verdict, the plaintiffs can point to nothing
indicating impropriety by the jury. With respect to the
claim that excessiveness of the verdict confirms some
prejudice against [John] Borg, the actual verdict largely
belies such a claim. The defendant pursued a trespass
claim against [John] Borg; the jury recognized that the
only evidence of a trespass by [John] Borg established
a relatively trivial invasion of the defendant’s property,
and therefore awarded only nominal damages as would
be appropriate for a relatively innocuous trespass ($10).
That nominal award reflects that the jury was able to
(and did) follow the court’s instructions, even if there
had been an undercurrent of dislike for him; the jury
did not allow any collateral emotional attitudes to distort their analysis of an appropriate level of damages.’’
(Footnote omitted.)
On appeal, the plaintiffs claim that the court should
have conducted an evidentiary hearing because,
‘‘[a]bsent an inquiry as to [the juror’s] relationship to
his fellow jurors, the stain of prejudice and unfairness
soils these proceedings and calls into question the fairness and propriety of the jury’s verdict.’’ The plaintiffs
failed to object to the court’s course of action in the
trial court, and the record reflects that they acquiesced
in the court’s conduct. Thus, we conclude that they
have waived their right to raise this claim. ‘‘Generally,
[w]hen a party consents to or expresses satisfaction
with an issue at trial, claims arising from that issue are
deemed waived and may not be reviewed on appeal.’’
(Internal quotation marks omitted.) State v. Bharrat,
129 Conn. App. 1, 35,
20 A.3d 9, cert. denied,
302 Conn.
905,
23 A.3d 1243 (2011). As previously discussed, the
plaintiffs declined the opportunity to object to the
court’s decision to proceed without questioning each
juror individually. Only after the verdict was returned
did the plaintiffs allege impropriety in the court’s action
and claim that the court should have conducted an
evidentiary hearing. Having considered all of the relevant circumstances, we conclude that the plaintiffs
assented to the court’s decision to proceed without
conducting further inquiry into the possibility of
juror impropriety.
Even if we were to conclude that the plaintiffs had
not waived this claim, we conclude that the trial court
did not abuse its discretion in choosing not to conduct
an evidentiary hearing on the issue of possible juror
impropriety.
‘‘To ensure that the jury will decide the case free
from external influences that might interfere with the
exercise of deliberate and unbiased judgment . . . a
trial court is required to conduct a preliminary inquiry,
on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. . . .
‘‘Any assessment of the form and scope of the inquiry
that a trial court must undertake when it is presented
with allegations [or the possibility] of jury [bias or]
misconduct will necessarily be fact specific. . . . We
[therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged [or
possible] jury misconduct can fairly be characterized
as an abuse of its discretion. . . . Although we recognize that trial [c]ourts face a delicate and complex task
whenever they undertake to investigate [the possibility]
of juror misconduct or bias . . . we nevertheless have
reserved the right to find an abuse of discretion in
the highly unusual case in which such an abuse has
occurred. . . . Ultimately, however, [t]o succeed on a
claim of [juror] bias the [plaintiffs] must raise [their]
contention of bias from the realm of speculation to the
realm of fact. . . .
‘‘Consequently, the trial court has wide latitude in
fashioning the proper response to allegations [or the
possibility] of juror bias. . . . [W]hen . . . the trial
court is in no way responsible for the [possible] juror
misconduct [or bias], the [plaintiffs bear] the burden
of proving that the misconduct [or bias] actually
occurred and resulted in actual prejudice. . . .
‘‘[W]here the [plaintiffs claim] that the court failed
to conduct an adequate inquiry into possible juror bias
or prejudice, the [plaintiffs bear] the burden of proving
that such bias or prejudice existed, and [they] also
[bear] the burden of establishing the prejudicial impact
thereof.’’ (Internal quotation marks omitted.) State v.
Osimanti,
111 Conn. App. 700, 714–15,
962 A.2d 129
(2008), aff’d,
299 Conn. 1,
6 A.3d 790 (2010).
In this instance, the record reveals that the court
conducted a sufficient inquiry. Upon learning of the
juror’s comment, the court permitted counsel for both
parties to question the clerk who had heard the remark.
The court provided a curative instruction to the jury,
reminding the jurors that they must not base their determinations on their personal opinions of either party
but, rather, on the merits of each claim and the evidence
presented. Most significantly, the court presented counsel with the opportunity to comment and make suggestions as to the proposed course of action. Neither party
objected to the court’s plan to not conduct an evidentiary hearing or question individual jurors regarding the
juror’s comment. In fact, the plaintiffs’ counsel admitted
that doing so could cause more problems than it would
solve and chose not to proceed with individual juror
questioning. It was only after the verdict was returned,
in their motion to set aside the verdict, that the plaintiffs
raised for the first time the claim of juror misconduct.
The plaintiffs cite no case law in support of the notion
that a plaintiff can allege juror misconduct, having not
raised it previously, solely on the basis of the amount
of the jury verdict.
Additionally, there is no duty imposed on the court
to conduct an evidentiary hearing on a claim of juror
misconduct. See Harrison v. Hamzi,
77 Conn. App.
510, 521–22,
823 A.2d 446, cert. denied,
266 Conn. 905,
832 A.2d 69 (2003). When a court’s inquiry is adequate
and the court has found the absence of any juror impropriety, the defendant has failed to establish juror bias.
See State v. Osimanti, supra,
111 Conn. App. 716. In
this instance, we find no fault with the court’s conclusion that the statement of the dismissed juror—outside
of the presence of the other jurors—that he found John
Borg ‘‘ ‘creepy’ ’’ did not constitute juror impropriety
nor did it prejudice the plaintiffs. Under this circumstance, therefore, the plaintiffs failed to demonstrate
that juror misconduct likely occurred and resulted in
actual prejudice to them. See id., 714–15. We conclude,
therefore, that even if the plaintiffs did not waive their
right to claim that the court erred by failing to hold an
evidentiary hearing, the court did not abuse its discretion by limiting the scope of its investigation of alleged
juror misconduct, and the court’s conclusion regarding
the absence of juror misconduct finds adequate support
in the record.
B
Insufficiency of Evidence Relating to
Claims Directed at Alison Borg
The plaintiffs next claim that, because there was
insufficient evidence to support the jury’s finding
against Alison Borg on the count alleging private nuisance and its finding of recklessness, the trial court
abused its discretion by refusing to set aside the verdict.
More specifically, with regard to the nuisance claim,
the plaintiffs argue that Alison Borg ‘‘had nothing what-
soever to do with the offending lights save for living in
the home where they were installed (by [John Borg])’’
and that ‘‘her liability was proverbially ‘guilt by association.’ ’’ With regard to the finding of recklessness, the
plaintiffs argue that ‘‘[a]rtificial illumination can hardly
be classified as extreme . . . or dangerous’’ and that
Alison Borg’s conduct did not constitute recklessness.
We disagree.
In reviewing claims of insufficient evidence, we are
mindful that ‘‘[the trial court] should not set aside a
verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its]
conclusion . . . .’’ (Internal quotation marks omitted.)
Salaman v. Waterbury, 246 Conn. 298, 304,
717 A.2d
161 (1998). Our review of the relevant transcript and
exhibits, viewed in the light most favorable to sustaining
the verdict; see Gregorio v. Naugatuck,
89 Conn. App.
147, 157,
871 A.2d 1087 (2005); reveals that there was
sufficient evidence to support the jury’s verdict against
Alison Borg.
With regard to the count alleging private nuisance,
the jury reasonably could have found that Alison Borg’s
control over her premises as the primary occupant of
the home made her tortiously liable for private nuisance. In assessing the plaintiffs’ claim, the court laid
out the following facts that, based on our own review,
were supported by evidence. ‘‘Although not owned in
a title sense by either of the . . . plaintiffs, the property
on which they lived was their Connecticut residence—
especially, Alison Borg . . . and also was the location
of the professional office for [Alison] Borg. (There was
some evidence that [John] Borg also used the home for
some of his professional pursuits.) Title to the property
was in a trust, established by [Alison] Borg’s parents,
with her mother being identified, at times, as . . . the
trustee. On a number of occasions, the defendant tried
to communicate with the plaintiffs concerning her complaints about the lights shining on her property, directly
and through an intermediary . . . . On one occasion,
the [defendant] placed a letter in the plaintiffs’ mailbox
. . . only to have the police called by the plaintiffs
about the claimed unauthorized opening of their mailbox. (Although the plaintiffs deny receiving the letter,
the jury could have credited the defendant’s testimony
that she placed it in the mailbox, and the jury could
have rejected the plaintiffs’ contention that they never
received it—the letter was addressed to [John Borg]
and [Alison] Borg.) There were numerous messages (in
evidence) sent to the [plaintiffs] . . . relating to the
lights and seeking at least an opportunity to discuss
the problem, such that the jury could have inferred
that [Alison] Borg was well aware of the problem and
effectively opted for continuation of the objectionable
status quo.
‘‘The jury also was well aware that this was an ongo-
ing battle between neighbors, and that it was not simply
[John] Borg and the defendant. [Alison Borg’s] family
. . . had created the trust, and the trust was the title
owner of the property that had been the actual litigant
in the prior dispute concerning the proper location of
the right-of-way. There was no evidence that [John]
Borg had overridden the wishes of [Alison] Borg, and
it is a reasonable inference that she knew where the
outside lights were focused; at a minimum, she acquiesced in targeting the defendant. (Certainly after the
counterclaim had been filed, and after the temporary
injunction hearing, there could be no credible claim
that she was unaware of the defendant’s claim that the
lights were perceived by the defendant to be a serious
intrusion and an interference with her ability to use
and enjoy her property.)
‘‘Somewhat more technically, in her counterclaim,
the defendant asserted that ‘[t]he plaintiffs John Borg
and/or Alison Borg erected two large floodlights on
their property, that are turned on at all times of the
day and evening, that shine into the defendant’s entire
home, including her bedroom.’ In their answer, the
plaintiffs stated: ‘Admitted as to the existence of lights;
the balance of the allegations are denied. [The plaintiffs’
daughter] is nine years old.’ Thus, although there was
no generic reference to ‘the plaintiffs’ in paragraph [ten
of the counterclaim], the answer to this paragraph took
pains to . . . identify their daughter . . . separately
from the [plaintiffs] . . . . In other words, an effort
was made to distinguish individual plaintiffs, when
appropriate . . . . No such distinction was made as to
Alison Borg.
‘‘Indeed, going somewhat further in this technical
vein, [paragraph one] of the counterclaim alleged that
all three plaintiffs resided at 5 Sterling Drive in Westport; the answer denied that status as to [John] Borg
(also constituting another instance . . . to the effect
that the plaintiffs differentiated among the plaintiffs in
their answer, as they deemed appropriate). Therefore,
according to the plaintiffs, the only adult who (admittedly) resided at the subject location was Alison Borg.
Although the jury may not have been aware of the
technical details of the pleadings, the pleadings indicate
an equal if not more than equal role in the property,
and in that sense confirms the jury verdict against [Alison] Borg. [Accordingly] the jury could have concluded
that [John] Borg’s involvement with the Westport property was somehow secondary to his primary residence
elsewhere—leaving [Alison] Borg in primary control.
. . .
‘‘Therefore, in terms of relationship to the technical
owner, in terms of admitted residency at the Westport
address, and in terms of seemingly being at least an
equal if perhaps somewhat passive participant with
respect to dealing with [the defendant], the jury could
have concluded that [Alison] Borg’s control over the
premises, which would include the objectionable lighting, made her tortiously liable for the installation and
persistence of the lighting as a private nuisance and
invasion of privacy (seclusion).’’ (Footnotes omitted;
internal quotation marks omitted.)
The plaintiffs’ argument on appeal—namely, that Alison Borg cannot be liable for private nuisance because
there is no direct evidence of her participation in the
circumstances that the led to the nuisance claim—must
fail. Indisputably, the jury was presented with evidence
that Alison Borg at least had equal or greater than equal
control over their premises as John Borg. The jury also
was aware that the family of Alison Borg owns the
premises in trust and had participated in the prior action
between these parties regarding the boundary line of
the property. Accordingly, the jury was free to infer,
on the basis of the circumstantial evidence before it,
that Alison Borg maintained sufficient control and
responsibility regarding the activities on the premises
to find her liable in private nuisance, and the court
did not err in leaving undisturbed the jury verdict on
this count.
Regarding the finding of recklessness underpinning
the punitive damages awarded against Alison Borg, the
jury reasonably could have found that Alison Borg’s
actions were sufficiently intentional and, therefore, wilful; see Elliott v. Waterbury,
245 Conn. 385, 415,
715
A.2d 27 (1998); to justify such an award. In considering
this claim, the court laid out the following facts, which
we conclude, based on our review of the record, were
supported by the evidence. ‘‘The jury was well aware
of the feud-like relationship between the parties. The
jury could have credited the defendant’s testimony that
she repeatedly tried to contact the plaintiffs to discuss
her concerns about lighting, both directly and through
an intermediary, all to no avail. The jury was aware
that this lawsuit had been pending for a period of time,
such that [Alison] Borg clearly knew about the defendant’s complaints, with nothing done to attempt to ameliorate the problems (other than by court order). The
fact that when [the defendant] had put a letter in their
mailbox, inviting the plaintiffs to discuss these problems, the police were called by the plaintiffs, all could
lead to an inference of recklessness if not affirmative
malice.’’
‘‘Recklessness is a state of consciousness with reference to the consequences of one’s acts. . . . It is more
than negligence, more than gross negligence. . . . The
state of mind amounting to recklessness may be
inferred from conduct. But, in order to infer it, there
must be something more than a failure to exercise a
reasonable degree of watchfulness to avoid danger to
others or to take reasonable precautions to avoid injury
to them. . . . Wanton misconduct is reckless miscon-
duct. . . . It is such conduct as indicates a reckless
disregard of the just rights or safety of others or of the
consequences of the action. . . . Whether the [plaintiff] acted recklessly is a question of fact subject to
the clearly erroneous standard of review.’’ (Citation
omitted; internal quotation marks omitted.) Franc v.
Bethel Holding Co.,
73 Conn. App. 114, 137–38,
807 A.2d
519, cert. granted on other grounds,
262 Conn. 923,
812
A.2d 864 (2002) (appeal withdrawn October 21, 2003).
The jury was presented with evidence depicting a
number of instances from which it could infer that
Alison Borg participated in the creation of a private
nuisance intentionally and with reckless disregard for
the rights of the defendant. For example, the jury heard
evidence regarding multiple occasions on which the
defendant tried to resolve the problems between herself
and the plaintiffs outside of court but was met with
both silence and, later, with a call made to the police.
Additionally, the history between the parties, of which
the jury was made well aware, further underscores the
court’s determination that the evidence in support of
recklessness on the part of Alison Borg was not insufficient.
On the basis of those subordinate facts, we conclude
that there was sufficient evidence to support the jury’s
verdict and that the trial court did not abuse its discretion in declining to set aside the verdict against Alison Borg.
C
Insufficiency of Evidence Relating to
Claims Directed at John Borg
The plaintiffs next claim that, because there was
insufficient evidence to support the jury’s finding
against John Borg on the counts alleging defamation
and false light invasion of privacy, and its finding of
actual malice, the trial court improperly refused to set
aside the verdict. We disagree.
1
Defamation
With regard to the counts alleging defamation per se
and defamation; see footnote 2 of this opinion; the jury
reasonably could have found that John Borg’s actions
connected to the website posting constituted defamation. ‘‘[T]o 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.) Silano v. Cooney, 189 Conn. App. 235,
241,
207 A.3d 84 (2019). The plaintiffs’ claim on appeal,
as well as in their motion to set aside the verdict on this
count, pertains only to the sufficiency of the evidence
regarding whether John Borg is the person responsible
for the website posting. The plaintiffs do not challenge
the other elements of defamation, and, accordingly, we
need not address them.
The jury was presented with the following evidence,
as was succinctly described by the court in its memorandum of decision: ‘‘Delving into the website content,
personal and localized information—unlikely to be
known or available to people outside the immediate
area—was incorporated into the content of the various
pages, including a video (generated during the earlier
litigation) and photos taken from the right-of-way, if
not on a property abutting the right-of-way. The website
was registered in common with numerous other websites that specifically identified the properties in the
area, with the notable exception of the plaintiffs’ property address. Much of the content relates to the ongoing
skirmishes and battles in this relatively limited area.
Some of the links and pages adopt positions from the
perspective of the plaintiffs, e.g., references to a civil
rights lawsuit commenced by the plaintiffs against the
Westport police, and separate reference to a minor
whose rights were being violated. After the litigation
was started, websites relating to the defendant’s attorneys also were created (passing mention made during
the trial).
‘‘Although there was no smoking gun, the defendant
retained forensic experts [who] were able to establish
that the company that had registered the various
domain names was one with which [John] Borg had
been associated a few years earlier. [John] Borg was
listed on the documentation on file with the Secretary
of the State relating to that entity, as having various
roles with the company, but [John] Borg insisted that
his involvement with that company had been highly
limited and had terminated years ago. A forensic expert
was able to link the payment for registration of some
of the relevant domain names with the business entity
account—but using a company card that specifically
had been issued to [John] Borg.’’
The court then analyzed the jury’s verdict, in light of
the evidence, as follows: ‘‘As with all aspects of the
plaintiffs’ motion, the court must view the evidence in
a light most favorable to sustaining the verdict which
in this instance requires the court to determine whether
the circumstantial evidence identified above, in aggregate, was a sufficient basis for the jury to determine that
[John] Borg was in fact responsible for the offending
website and its contents. . . .
‘‘Viewing the evidence in a manner most favorable
to sustaining the verdict, the court believes that the
answer is in the affirmative. [That evidence includes
the] nature of the information on the website; the perspective in the sense of position taken; the perspective
in the sense of literal viewpoint from which photographs were taken; the existence of animosity; the linkage between [John] Borg and the entity that registered
the websites; the existence of address based registered
webpages with the exception of the address of the plaintiffs; the self-professed technical and technological skill
of [John] Borg with respect to Internet technology; the
highly localized knowledge contained on some of the
pages; all in the context of litigation started by the
plaintiffs with the primary purpose of protecting the
perceived interests of their daughter—the alleged ‘target’ of the improper conduct of the defendant.
‘‘No other child or backyard was identified as being
viewed in the manner in which there was claimed viewing of the plaintiffs’ backyard. (Certainly there was no
evidence of anyone else in the neighborhood complaining about the defendant’s security cameras and what
they might be capturing.) The plaintiffs made a point
of their perceived need to shield their daughter from
the defendant’s cameras, and tried to portray their
daughter as reluctant to be photographed because of
the defendant’s cameras.
‘‘To be sure, John Borg testified to the contrary—he
denied any involvement with the website, denied any
continuing affiliation with the company to which the
website was registered, and indeed went so far as to
indicate that he had had a somewhat contentious if not
adversarial relationship at times with that company,
having had to purchase certain rights relating to websites that he did wish to control. The jury, however,
was not obliged to accept his explanations, and again,
the court is required to view the evidence in a light most
favorable to sustaining the verdict, not undermining it.’’
(Footnote omitted; internal quotation marks omitted.)
We agree with the court that, on the basis of the
evidence at trial, the jury reasonably could have found
in favor of the defendant on her claim alleging defamation against John Borg, as the evidence submitted in
support of that claim was sufficient. The ample evidence linking John Borg to the creation and maintenance of the website, although circumstantial, was sufficient to permit the jury reasonably to infer that John
Borg had registered the website domain name using a
company credit card and that he posted the statements
the jury determined to be defamatory. Accordingly, we
conclude that the court did not err in refusing to set
aside the verdict on the basis of insufficient evidence
of defamation.
2
Invasion of Privacy
We next turn to the claim of false light invasion of
privacy as to John Borg. To establish a false light invasion of privacy claim, the claimant must show that ‘‘the
false light in which [she] was placed would be highly
offensive to a reasonable person, and . . . the actor
had knowledge of or acted in reckless disregard as to
the falsity of the publicized matter and the false light
in which [she] would be placed. . . . The essence of
a false light privacy claim is that the matter published
concerning the [claimant] (1) is not true . . . and (2)
is such a major misrepresentation of [her] character,
history, activities or beliefs that serious offense may
reasonably be expected to be taken by a reasonable
[person] in [her] position.’’ (Citations omitted; internal
quotation marks omitted.) Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 131,
448
A.2d 1317 (1982).
The defendant’s counterclaim for false light invasion
of privacy hinges on many of the same facts and evidence relevant to the defamation claims, discussed in
part I C 1 of this opinion. On the basis of that evidence,
the jury reasonably could have concluded that the false
light into which the defendant had been placed—as an
alleged child pornographer—would be highly offensive
to a reasonable person. In addition, the jury reasonably
could have concluded that John Borg created and maintained the website with this accusation with knowledge
that it was false for the purpose of antagonizing the
defendant by misrepresenting her character in a major
way. Accordingly, we conclude that the court did not
abuse its discretion in refusing to set aside the verdict
on the basis of insufficient evidence relating to the claim
of false light invasion of privacy as to John Borg.
3
Actual Malice
Finally, regarding the claim of insufficient evidence
with respect to the jury’s finding of actual malice, we
conclude that the jury, having found that John Borg
created the defamatory website posts in question, reasonably could have found that he exhibited actual malice in so doing. Our Supreme Court has defined actual
malice as ‘‘the publication of a false statement with
knowledge of its falsity or reckless disregard for its
truth . . . .’’ Gambardella v. Apple Health Care, Inc.,
291 Conn. 620, 634,
969 A.2d 736 (2009). We agree with
the trial court that the jury reasonably could have concluded, on the basis of the ongoing hostile relationship
between the parties, the plaintiffs’ refusal to discuss
the defendant’s concerns about the floodlights, and the
police being called when the defendant put a letter in
the plaintiffs’ mailbox, that the website was nothing
‘‘[o]ther than . . . an attack on the defendant, in her
role as adversary, [as] no other possible motivation [for
creating the website] appears likely.’’
Because we agree with the court that, on the basis
of all of the aforementioned evidence, a jury reasonably
could conclude that John Borg acted with actual malice
in publishing defamatory accusations about the defen-
dant on the website, we conclude that the court did
not abuse its discretion in refusing to set aside the
verdict as to the counterclaims against John Borg.
D
Double Damages Claim
The plaintiffs’ final claim with regard to the motion
to set aside the verdict is that the court erred in denying
the motion because the jury’s award of damages against
both John Borg and Alison Borg constituted double
damages. We agree with the plaintiffs that the jury
awards of $250,000 as to both the defamation claim and
the false light invasion of privacy claim brought against
John Borg related to the website were duplicative.
Accordingly, we conclude that the court abused its discretion in refusing to set aside the verdict on that basis.
‘‘[A] plaintiff may be compensated only once for his
just damages for the same injury. . . . Plaintiffs are
not foreclosed from suing multiple defendants, either
jointly or separately, for injuries for which each is liable,
nor are they foreclosed from obtaining multiple judgments against joint tortfeasors. . . . This rule is based
on the sound policy that seeks to ensure that parties
will recover for their damages. . . . The possible rendition of multiple judgments does not, however, defeat
the proposition that a litigant may recover just damages
only once.’’ (Citations omitted; footnotes omitted; internal quotation marks omitted.) Gionfriddo v. Gartenhaus Cafe, 211 Conn. 67, 71–72,
557 A.2d 540 (1989).
‘‘Duplicated recoveries . . . must not be awarded for
the same underlying loss under different legal theories.’’
(Internal quotation marks omitted.) Kelly v. Kurtz,
193
Conn. App. 507, 533,
219 A.3d 948 (2019).
In the present case, the plaintiffs claim that the defendant was awarded double damages when (1) John Borg
was assessed $146,000 plus $295.60 for the private nuisance claim and $146,000 for the intrusion upon seclusion invasion of privacy claim, both stemming from
the use of the floodlights, (2) John Borg was assessed
$250,000 for the defamation claim and $250,000 for the
false light invasion of privacy claim related to the website, and (3) Alison Borg was assessed almost the same
noneconomic damages as John Borg ($146,000 plus
$295.59 and $146,000, respectively) for the private nuisance and invasion of privacy claims relevant to the
floodlight placement.8
In its memorandum of decision, the court stated as
follows: ‘‘In the interrogatories, the court explicitly
asked the jury to provide a net figure of damages as to
each of the plaintiffs, allowing for any possible duplication. The jury indicated in its answers to the interrogatories that the $146,000 awarded as to each of two claims
directed to each of the plaintiffs was intended to be
cumulative, as to each plaintiff. As to John Borg, there
was a similar indication with respect to the awards of
$250,000. Specifically, at the conclusion of the section of
the interrogatories directed to John Borg, interrogatory
[number] 53 asked: Adjusting for any overlap or duplication of damages with respect to the claims asserted by
[the defendant] against John Borg that you find to have
been proven (your responses to interrogatories #36,
#39, #42, #46 and #51),9 the total (net) compensatory
damages she sustained as a result of the John Borg’s
wrongful conduct total . . . .
‘‘The jury entered $792,305.60 as that net figure, in
the space provided. That is the sum of the entries to
the interrogatories listed in [interrogatory number] 53:
$146,295.60 + $146,000 + $10 + $250,000 + $250,000
(again, the damages awarded for each of the five claims
asserted against John Borg). There is a similar interrogatory and similar answer as to [Alison] Borg—
$146,295.59 + $146,000 = $292,295.59. (Only the claims
of private nuisance and invasion of privacy (seclusion)
were submitted to the jury with respect to [Alison]
Borg—therefore, only two damages award figures.)
Therefore, there can be absolutely no question that the
jury intended to award a total (net of any adjustment
for duplication) of $292,000 in noneconomic damages
as against each of the plaintiffs [on the two counts
related to the floodlights—those of private nuisance
and invasion of privacy (seclusion)].
‘‘The plaintiffs did not ask the court to charge the
jury in a manner suggesting that the awards for private
nuisance and invasion of privacy (seclusion) were
inherently duplicative such that there could only be a
single recovery, and likewise there was no analogous
request relating to defamation and invasion of privacy
(false light). Further, the manner in which the jury determined its awards is beyond the scope of review by the
court (so long as not affirmatively improper), the court
cannot determine whether the jury determined each
award separately and then determined that the aggregated figures was the total intended award, or determined an aggregate award that was then allocated
across the claims. The treatment of economic damages,
discussed immediately below, indicates that the jury
was conscious of the need to allocate/award damages
in a nonduplicative sense, and the court has no basis—
other than in the context of remittitur—to conclude
that there was duplication of the awards directed to
either of the plaintiffs.
‘‘The court recognizes that it failed to ask the jury to
make a similar determination with respect to the awards
against the two plaintiffs—was there duplication in the
award of $292,000 against each of the plaintiffs for these
two claims? On the one hand, the jury was aware of
the court’s concern about duplicative awards, but on
the other hand, there was no explicit mechanism provided to the jury for indicating whether there was an
intent to award $292,000 against each . . . plaintiff,
without any duplication, i.e., an intent to award aggregate damages [of] $584,000 as to those claims. . . .
‘‘The court believes that it is compelled to conclude
that the jury did, in fact, intend to award $292,000 in
noneconomic damages as against each of the plaintiffs,
for an aggregate award on the private nuisance and
invasion of privacy (seclusion) of $584,000. Although
it may seem to be a tail wagging the dog approach, it
is the economic damages component of the award that
convinces the court that it cannot treat those awards
as duplicative. The claim for economic damages relating
to these claims was $591.19. If the jury had awarded
that amount as economic damages against each of the
plaintiffs, that might have been persuasive evidence of
duplication of the award as to noneconomic damages—
duplication as to one readily could suggest duplication
as to the other. If the economic damages claimed had
been an even number, and the jury had awarded a figure
that was half of that claimed amount against each plaintiff, there would be at least a theoretical possibility of
duplication of an award of a reduced amount. But the
jury was faced with an odd number for the economic
damages, and awarded different amounts (by a penny)
against the two plaintiffs such that the total added up
to the aggregate claim of $591.19. The jury made sure
that there was no duplication in the award of economic
damages, and given that level of care with a Iess than
$600 figure, the court cannot conclude that they were
not as conscious of potential duplication of noneconomic damages. The jury clearly was looking at an
aggregate award to the defendant consisting of the damages assessed against . . . John Borg added to the
damages assessed against . . . Alison Borg. . . .
‘‘The manner in which the jury reached its conclusions is unknown; it is clear, however, that the jury
intended an aggregate damages award, on the claims
of private nuisance and invasion of privacy (seclusion)
in the amount of $584,591.19. This is not a case in which
the jury was given multiple theories of liability and can
be deemed to have awarded duplicative damages
. . . .’’ (Footnote added; internal quotation marks
omitted.)
On appeal, the plaintiffs claim that the damages are
unsupported by the record and ‘‘amount to a wholesale
windfall for the defendant,’’ and argue that the damages
are duplicative in nature. First, with regard to the damages assessed against John Borg and Alison Borg for
each of the claims pertaining to the use of lights, the
court, in its analysis, considered the fact that neither
party objected to the jury charge as given, nor did the
plaintiffs ask the court to charge the jury in a manner
that would instruct it to consider the nuisance and
invasion of privacy claims related to the floodlights as
one claim for purposes of awarding damages. The court
assessed the fact that the responses to the jury interrog-
atories asking for the total amount of damages awarded
each with respect to John Borg and Alison Borg
revealed that ‘‘there can be absolutely no question that
the jury intended to award a total . . . of $292,000 in
noneconomic damages as against each of the plaintiffs.’’
In addition, the court weighed the fact that, in terms
of economic damages, the jury did not award identical
damages against each plaintiff and, instead, awarded
them totals that differed by one penny. It was upon this
observation that the court premised its conclusion that
the jury knew that its award against each plaintiff could
permissibly be different, which therefore implies that
its award of identical amounts against each plaintiff was
not a mistake but was intended to constitute separate,
cumulative awards on the nuisance and invasion of
privacy claims.
Giving, as we must, great deference to the court’s
decision to not set aside the verdict on the basis of
double damages, and upon review of the court’s inquiry
into the nature of the jury’s award, there is no sound
basis on which to disturb the court’s conclusion that
the award of damages on the claims related to the lights
as against each plaintiff was not duplicative.
With regard to the two claims against John Borg
related to the website, however, we conclude that the
court should have set aside the verdict awarding
$250,000 to the defendant for each of those claims.
Our Supreme Court has observed that ‘‘we join those
jurisdictions that have allowed causes of action for
invasion of privacy and defamation to be pleaded
together. Miller v. News Syndicate Co.,
445 F.2d 356,
357 (2d Cir. 1971); Varnish v. Best Medium Publishing
Co.,
405 F.2d 608 (2d Cir. 1968), cert. denied,
394 U.S.
987,
89 S. Ct. 1465,
22 L. Ed. 2d 762, reh. denied,
395
U.S. 930,
89 S. Ct. 1769,
23 L. Ed. 2d 251 (1969); Rinsley
v. Brandt,
446 F. Supp. 850, 858 (D. Kan. 1977), and
cases therein. This conclusion recognizes that each
action protects different interests: privacy actions
involve injuries to emotions and mental suffering, while
defamation actions involve injury to reputation. [Rinsley v.
Brandt, supra,446 F. Supp. 858], quoting Froelich
v. Adair,
213 Kan. 357,
516 P.2d 993 (1973). There can,
of course, be only one recovery for any particular publication. Dodrill v. Arkansas Democrat Co.,
265 Ark. 628,
638,
590 S.W.2d 840 (1979), cert. denied,
444 U.S. 1076,
100 S. Ct. 1024,
62 L. Ed. 2d 759 (1980), citing 3
Restatement (Second), Torts § 652E, comment b, and
62 Am. Jur. 2d, Privacy § 5.’’ Goodrich v. Waterbury
Republican-American, Inc., supra,
188 Conn. 128 n.19.
Relying on this authority, we conclude that, to the
extent that the trial court sanctioned this recovery with
respect to these two counts, it instead should have
granted the plaintiffs’ motion to set aside the verdict.
Accordingly, we conclude that the jury awards of
$292,000 against each plaintiff for the private nuisance
and intrusion upon seclusion invasion of privacy claims
did not constitute duplicative damages. The jury awards
of $250,000 as to both the defamation claim and the
false light invasion of privacy claim brought against
John Borg related to the website, however, were duplicative, and, accordingly, we conclude that the court
abused its discretion in refusing to set aside the verdict
on that basis.
II
AWARD OF PUNITIVE DAMAGES
The plaintiffs next claim that the court improperly
awarded punitive damages to the defendant because
(1) the court failed to conduct an evidentiary hearing
to determine the amount of punitive damages, in the
form of attorney’s fees, to be ordered, and (2) the court
should have submitted to the jury the issue of the
amount of punitive damages to be awarded, rather than
resolving that issue itself. Specifically, with regard to
their first claim, the plaintiffs argue that the court
abused its discretion in awarding punitive damages to
the defendant in the absence of any bills or invoices
produced by the defendant. Regarding their second
claim, the plaintiffs argue that, pursuant to this court’s
holding in Iino v. Spalter, 192 Conn. App. 421,
218 A.3d
152 (2019), the court should have submitted to the jury
the issue of the amount of punitive damages to be
awarded. We disagree.
The following additional facts are relevant to our
resolution of this claim. In the court’s memorandum of
decision on the motion to set the amount of punitive
damages, the court stated that ‘‘[t]he parties, prior to
submission of the case to the jury, had agreed that
the jury would only determine whether any party had
proved entitlement to punitive damages, with the actual
determination of the amount of punitive damages to be
addressed by the court.’’10 At trial, without objection,
the court instructed the jury in accordance with the
agreed on bifurcation. The court stated: ‘‘If you conclude that any of the parties acted with reckless disregard for the rights of the adverse party with respect to
invasion of privacy, trespass or private nuisance, you
may award punitive or exemplary damages. Again, you
only need to determine that a party is entitled to punitive
damages. The court will do the actual calculation of
the amount after your verdict is rendered.’’ On March
2, 2018, after the court accepted the jury verdict in favor
of the defendant, which included a determination that
the defendant was entitled to punitive damages, the
plaintiffs filed a motion to set aside the verdict. Also
on March 2, 2018, the defendant filed a motion for the
court to set the amount of punitive damages awarded
to her on the basis of Alison Borg’s recklessness and
John Borg’s actual malice, as found by the jury. In
support of that motion, the defendant filed a sworn
affidavit of her counsel asserting the total amount of
attorney’s fees she had incurred from the date she filed
her counterclaim as being $96,855.25. The defendant
did not submit law firm invoices or time records. On
May 9, 2018, by way of memorandum of decision, the
court awarded the defendant $32,600 in punitive damages, approximately 30 percent of the requested total.
On appeal, the plaintiffs argue that (1) the court
should have held an evidentiary hearing at which the
defendant would be required to produce evidence of
her incurred legal fees, and (2) the determination of
the amount of punitive damages to be awarded should
have been left to the jury.
We first set forth the relevant standard of review
and the legal principles that inform our analysis. ‘‘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.) Nelson v. Tradewind Aviation, LLC,
155 Conn. App. 519, 542,
111 A.3d 887, cert.
denied,
316 Conn. 918,
113 A.3d 1016 (2015).
First, in the absence of a request by the plaintiffs
for an evidentiary hearing, we find unpersuasive the
plaintiffs’ argument that the court should have conducted an evidentiary hearing prior to determining the
total amount of punitive damages to award the defendant. In addition to the broad discretion afforded to
trial courts in determining issues of punitive damages,
‘‘[c]ourts may rely on their general knowledge of what
has occurred at the proceedings before them to supply
evidence in support of an award of attorney’s fees. . . .
The court [is] in a position to evaluate the complexity
of the issues presented and the skill with which counsel
had dealt with these issues.’’ (Internal quotation marks
omitted.) Andrews v. Gorby,
237 Conn. 12, 24,
675 A.2d
449 (1996).
In the present case, the court was presented with a
sworn affidavit of the defendant’s counsel, setting forth
the total amount of legal fees incurred by the defendant.
The plaintiffs do not appear to challenge the fees
charged by counsel to defend against the complaint and
to pursue the counterclaim. Rather, it appears that they
did nothing more than argue that the court should award
only 20 percent of the amount requested. They did not
ask to examine the defendant’s counsel and offered
no affidavits or evidence of their own regarding the
reasonableness of the fees claimed.
In addition, the court, Povodator, J., had been
involved with this case since the beginning and, therefore, was familiar with the claims and evidence
involved. In its memorandum of decision, the court
stated: ‘‘[T]he court has a singularly advantageous perspective . . . [in that] the undersigned has been
involved with this case virtually from its inception
. . . . Absent the particularity required by case law as
identified by the court, the court is limited in its ability
to rely on its own experience and judgment in determining the proper attorney’s fees. Recognizing that the
plaintiffs’ 20 [percent] estimate [as being an appropriate
fee award] was (not surprisingly) unreasonably low,
the court will round down its conservative to low estimate of one third, to 30 [percent].’’ (Footnote omitted.)
The court, after considering the history of the case—
with which it was familiar—and in recognition of the
fact that it had only been presented with an affidavit
and not with actual fee bills, rounded down its own
estimate of what it deemed appropriate attorney’s fees.
Accordingly, we find the plaintiffs’ argument that the
court was required to hold an evidentiary hearing, sua
sponte, on punitive damages unavailing, and the court
was well within its broad discretion in awarding $32,600
in punitive damages to the defendant.
Next, with regard to the plaintiffs’ argument that the
amount of punitive damages should have been left for
the jury—and not the court—to determine pursuant to
Iino v. Spalter, supra,
192 Conn. App. 421, we again
are unpersuaded.
In Iino, the defendant executrix of the decedent’s
estate appealed from the judgment of the trial court in
favor of the plaintiff, who brought an action sounding
in tort against the decedent’s estate. Id., 424. The defendant claimed on appeal, inter alia, that the court improperly permitted the jury to find her liable for punitive
damages without evidence as to the plaintiff’s litigation
expenses and that the court improperly reserved to
itself the issue of the amount of punitive damages to
be awarded. Id., 423. Prior to the plaintiff’s presentation
of evidence at trial, the defendant submitted a request
to the court that the court submit any determination
of punitive damage amounts to the jury. Id., 457. Following the plaintiff’s failure to present any evidence of her
legal fees as evidence, the defendant asked the court
not to charge the jury on punitive damages because no
such evidence had been presented but reiterated that,
if the issue of liability for punitive damages were to go
to the jury, the court must have the jury also determine
the amount of those punitive damages. Id. The plaintiff
agreed that the issue of punitive damages was a jury
question but stated that the question of the amount of
damages was for the court to determine. Id., 457–58. The
trial court agreed with the plaintiff, and the defendant
appealed to this court. Id., 458.
On appeal, this court, agreeing with the defendant,
concluded that, ‘‘[b]ecause the defendant properly and
timely requested that the question of the amount of
punitive damages be decided by the jury, it was incumbent on the plaintiff to submit evidence supporting her
claim to such damages in her case. It is undisputed that
she did not do so. We conclude, on the basis of the
foregoing, that the court improperly charged the jury
on punitive damages when there was no evidence of
damages to support that charge.’’ Id., 470.
Iino, along with the cases to which this court refers
within that opinion, contemplates the absence of any
agreement between the parties regarding a bifurcation
of the issues of punitive damages liability and amount.11
In the present case, unlike in Iino, the parties agreed
prior to trial that the issues of liability and damages
would be bifurcated between the jury and the court.
Additionally, unlike in Iino, the plaintiffs here raised
no objection to the court’s instruction to the jury that
the court would determine the amount of punitive damages to be awarded, if applicable.
In the present appeal, the plaintiffs do not challenge
the court’s observation, as set forth in its memorandum
of decision, that the parties had agreed to submit the
issue of the amount of punitive damages, if any, to the
court, and not the jury. The plaintiffs’ failure to object
to the court’s instruction to the jury that it was to
consider solely the issue of whether punitive damages
should be awarded, but not the amount of such damages, is consistent with the court’s observation. ‘‘Our
rules of practice require a party, as a prerequisite to
appellate review, to distinctly raise its claim before the
trial court. . . . For that reason, we repeatedly have
held that we will not decide an issue that was not
presented to the trial court. To review claims articulated
for the first time on appeal and not raised before the
trial court would be nothing more than a trial by ambuscade of the trial judge.’’ (Citations omitted; internal
quotation marks omitted.) Dziedzic v. Pine Island
Marina, LLC,
143 Conn. App. 644, 654–55,
72 A.3d 406
(2013). Accordingly, the plaintiffs cannot be heard to
complain on appeal that the court’s bifurcation of the
punitive damages determination, with which they
agreed at the time of trial, entitles them to relief. To
review this aspect of the present claim would amount
to an ambuscade of the trial court.
III
PERMANENT INJUNCTIVE RELIEF
The plaintiffs next claim that the court wrongly issued
permanent injunctive relief because the defendant
failed to sustain her burden of proving an absence of
an adequate remedy at law.12 More specifically, they
claim that the defendant received an adequate remedy
at law when she received a sizeable damages award
from the jury and that the court ‘‘abused its discretion
on the facts and erred on the law’’ in granting the defendant’s request for an injunction.13 The defendant argues
that, ‘‘[d]espite the jury’s finding in favor of [the defendant on her] counterclaim against the plaintiffs . . .
and . . . awarding a significant amount of damages,
the website remained up, thus denying [the defendant]
the justice and peace that the trial should have afforded
her,’’ and, accordingly, the monetary remedy was not
adequate. We agree with the defendant.
We begin by setting forth the relevant standard of
review. ‘‘A party seeking injunctive relief has the burden
of alleging and proving irreparable harm and lack of
an adequate remedy at law. . . . A prayer for injunctive
relief is addressed to the sound discretion of the court
and the court’s ruling can be reviewed only for the
purpose of determining whether the decision was based
on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused
its discretion . . . the trial court’s decision must
stand.’’ (Internal quotation marks omitted.) Commissioner of Correction v. Coleman, 303 Conn. 800, 810,
38 A.3d 84 (2012), cert. denied sub nom. Coleman v.
Arnone,
568 U.S. 1235,
133 S. Ct. 1593,
185 L. Ed. 2d
589 (2013). ‘‘How a court balances the equities is discretionary but if, in balancing those equities, a trial court
draws conclusions of law, our review is plenary.’’ (Internal quotation marks omitted.) Morton v. Syriac,
196
Conn. App. 183, 191,
229 A.3d 1129, cert. denied,
335
Conn. 915,
229 A.3d 1045 (2020).
The following additional facts and procedural history
are relevant to our resolution of this claim. The court
scheduled an evidentiary hearing on the motion to modify the permanent injunction on May 18, 2018, which
was continued to June 28, 2018, following John Borg’s
motion for a continuance. The hearing occurred as
scheduled, and, on August 23, 2018, the court granted
the defendant’s request for a permanent injunction.
In its memorandum of decision ordering the permanent injunction, the court stated, with respect to the
website: ‘‘The issue of irreparable harm is relatively
straightforward. The jury concluded that the website
is under the control of John Borg. The website associated the defendant with child pornography. There is
continuing harm and there is no benefit to anyone from
the continued existence of that particular aspect of the
website and no cognizable harm if that particular page
were to be deleted or edited so as to remove the association of the defendant with child pornography.
‘‘[John Borg], while not acknowledging any involvement with that particular website or page, has often
alluded to the ability of the defendant to contact the
host of the website, asking/demanding that the page be
taken down, or otherwise indicating that there is some
level of self-help available. The problem is that the ‘remedy’ available is neither simple nor assured. [John Borg]
is asking the defendant to identify the proper entity
hosting the website and then contact that host—effectively asking for its assistance. The efficacy of this
approach depends on proper identification of the host
and determining the proper means of requesting that
the page be taken down—and if that is done correctly,
ultimately depending on the willingness of the host
to take the offending page down, notwithstanding the
presumed absence of a corresponding request from its
client/customer. Against the uncertainty of an ability to
ensure relief through her own efforts, the party responsible for the existence of the offending webpage can
direct removal of the offending page without any apparent uncertainty attributable to intervening steps and
intervening actors (who must be convinced to act, presumptively against the wishes of a client). In this context, the ability to ask someone to provide relief—asking as a stranger, with no clear right to relief—is not
perceived to be an adequate remedy at law. Conversely,
even if the page were to be taken down by the hopefully
correctly identified (and compliant) host, in the absence
of any mandate directed to [John Borg], there would
be nothing preventing him from using a different host or
different website (or both) to repost the same offensive
message. Given the jury determination of malice and
entitlement to punitive damages, such a concern must
be treated as more than hypothetical or speculative.
Accordingly, the court has determined that the equities
clearly warrant injunctive relief directed to . . . John
Borg and that there is no adequate remedy at law.’’
Our examination of the record and briefs and our
consideration of the arguments of the parties persuades
us that the trial court correctly determined that a permanent injunction was warranted. Because the quoted portion of the court’s memorandum of decision fully
addresses the plaintiffs’ claim on appeal, we adopt it
as the proper statement of the facts and applicable law
on this issue. It would serve no useful purpose to repeat
the discussion contained therein. See Morton v. Syriac,
supra,
196 Conn. App. 198.
IV
MOTION FOR CONTEMPT
Finally, the plaintiffs claim that the court erred in
granting the defendant’s motion for contempt against
John Borg pertaining to his alleged failure to comply
with the court’s order; see footnote 13 of this opinion;
requiring that he take down the website containing
defamatory statements about the defendant. We
disagree.
We begin our analysis by setting forth the relevant
standard of review. ‘‘[O]ur analysis of a judgment of
contempt consists of two levels of inquiry. First, we
must resolve the threshold question of whether the
underlying order constituted a court order that was
sufficiently clear and unambiguous so as to support a
judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude
that the underlying court order was sufficiently clear
and unambiguous, we must then determine whether the
trial court abused its discretion in issuing, or refusing
to issue, a judgment of contempt, which includes a
review of the trial court’s determination of whether the
violation was wilful or excused by a good faith dispute
or misunderstanding. . . . [A] person must not be
found in contempt of a court order when ambiguity
either renders compliance with the order impossible,
because it is not clear enough to put a reasonable person
on notice of what is required for compliance, or makes
the order susceptible to a court’s arbitrary interpretation of whether a party is in compliance with the order.’’
(Citation omitted; internal quotation marks omitted.)
Bruno v. Bruno, 177 Conn. App. 599, 620,
176 A.3d
104 (2017).
The following facts are relevant to this claim. On
August 23, 2018, as discussed in part III of this opinion,
the court issued a permanent injunction order requiring
John Borg, inter alia, ‘‘to remove, or take steps to ensure
removal of, the webpage on battleofcompohill.com containing the reference to the defendant as being associated with child pornography, either by deleting the page
or removing all references to child pornography and
‘watching’ children . . . .’’ The court issued this order
despite John Borg’s continued denial of having access
to or the ability to remove the website because he
claimed to have no involvement in its creation or maintenance. In issuing its order, the court explained that
‘‘[t]he court recognizes that John Borg has denied and
apparently has continued to deny any ability or authority to take or effectuate any such corrective action, but
in light of the jury determination and the court’s own
assessment of the evidence for purposes of this equitable phase of the proceedings, the court is not constrained by such persistent denials (recognizing that
any enforcement/contempt proceeding might require a
more intensive examination of the existence or absence
of ability to comply).’’
On October 12, 2018, the defendant filed a motion
for contempt claiming, inter alia, that John Borg had
failed to comply with the court’s order because the
website was still up and accessible. Following hearings
on the motion for contempt, the court, on March 12,
2019, issued a written order in which it granted the
defendant’s motion.14
We first assess, whether the court’s order was sufficiently clear and unambiguous as to put John Borg
on notice of what was required for compliance. For
purposes of analysis, we restate the relevant language
of the order: ‘‘The plaintiff John Borg is ordered to
remove, or take steps to ensure removal of, the webpage
on battleofcompohill.com containing the reference to
the defendant as being associated with child pornography, either by deleting the page or removing all references to child pornography and ‘watching’ children
. . . it being the intent of the court that John Borg take
all steps and measures reasonably within his power to
remove the offending page, including but not limited
to rights he has or may have as the nominal owner of
the website or person in control of the entity-owner of
the website or person acting as liaison with the host
on behalf of the owner or in any way having any involvement or control over the content of the website. [John
Borg] is ordered to comply no later than three weeks
after issuance of this order.’’ Upon our review of the
permanent injunction order, we see no way in which
the text of the order could be construed as being unclear
or ambiguous and, accordingly, agree with the court
that the order was sufficiently clear and unambiguous
as to support a finding of contempt.
Having determined that the order was clear and
unambiguous, we next must determine, as the plaintiffs
argue on appeal, whether the trial court abused its discretion in holding John Borg in contempt. The plaintiffs
argue that he did not wilfully defy the order because
‘‘[he] does not own the site . . . control the site . . .
[or] know who owns or controls or runs the site . . .
[and] [b]y definition, the only thing he could do was to
contact the domain registrant to request that the site
be taken down, which he did.’’ (Emphasis in original.)
Specifically, they argue that the trial court, in its memorandum of decision on the motion for contempt, noted
that an inability to comply would not render him wilfully
noncompliant. The plaintiffs’ argument is belied by the
following text of the memorandum of decision: ‘‘The
inability to comply with an order is a defense to contempt, but the burden is on the alleged contemnor to
prove that defense. . . . The burden of proving a
defense of inability to comply with the order is on . . .
John Borg, and he is saddled with a substantial credibility gap, with his lack of credibility substantially selfinflicted.’’ Concluding that John Borg had failed to satisfy his burden of establishing the affirmative defense
of inability to comply, the court—relying on the ‘‘presumed existence of harm arising from the continuing
presence of the defamatory webpage’’—imposed a fine
of $50 per day until the webpage was removed, finding
John Borg in contempt for failing to comply with the
permanent injunction order.
The record is clear that John Borg was ordered to
take down the website or, at least, attempt to mitigate
the damage it had continued to cause the defendant.
The record is also unequivocally clear that John Borg
had not done so, and the court acted well within its
discretion in finding that John Borg has failed to prove
that his failure to comply was anything but wilful.
Accordingly, we reject the plaintiffs’ claim.
The judgment is reversed in part and the case is
remanded with direction to vacate either the award of
$250,000 in favor of the defendant on the defamation
count or the award of $250,000 in favor of the defendant
on the false light invasion of privacy count; the judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In addition to John Borg and Alison Borg, who are married, their minor
daughter also is a plaintiff. The causes of action brought by the plaintiffs,
however, are not before the court at this time. Rather, we are concerned
only with the counterclaim brought by the defendant. All references to the
plaintiffs, except where specifically noted, refer to John Borg and Alison
Borg.
2
Although defamation and defamation per se were pleaded as separate
counts within the defendant’s counterclaim, it appears that, based on the jury
interrogatories, the jury was asked to award damages only for defamation
generally. There is no claim on appeal that jury should have entered a
separate award in accordance with its determination that John Borg’s defamatory statement about the defendant on the website was defamatory per se.
3
The plaintiffs appeal from only the court’s ruling on their motion to set
aside the verdict in favor of the defendant on her counterclaim, as they did
not file a motion to set aside the verdict with regard to their complaint.
4
The court, in its memorandum of decision on the motion to set aside
the verdict, referred to ‘‘this dispute’’ because ‘‘there had been a prior dispute
that forms part of the history of the relationship between the parties. Shortly
after the plaintiffs began to occupy their property, they learned that the
then existing right-of-way (supposedly centered on the boundary between
their respective properties) was improperly located, encroaching on the
property occupied by the plaintiffs rather than straddling the property line
as indicated by the appropriate deeds. One of the other residents in the
area, whose property abutted the right-of-way and also was affected by this
potential or actual problem, commenced litigation relating to the state of
title and location of the right-of-way, resulting in an eventual settlement
whereby the right-of-way was relocated closer to, if not exactly in, the
deeded location. This required the defendant, and other property owners
on her side of the right-of-way, to recognize that their backyards were not
as large as had been believed, and required in some instances the relocation
of fences (including the defendant’s).
‘‘The relevance of the prior litigation is that it likely created or exacerbated
bad feelings on the part of at least some of the neighbors as related to the
plaintiffs, and may have contributed to a defensive if not metaphorically
paranoid attitude on the part of the plaintiffs (a sense that the neighbors
did not like them or resented them). The earlier litigation, Fellows v. Schor,
[Superior Court, judicial district of Fairfield, Docket No.] CV-XX-XXXXXXX-S,
was commenced with a return date in January, 2014, and was effectively
settled in June–July, 2015 (judgment of dismissal entered on July 31, 2015).
This action was commenced less than a year later, with a return date of
May 17, 2016.’’
5
At trial, the defendant testified regarding these statements on the website,
indicating that she had no knowledge of any such case against her and
stating that she found these accusations to be upsetting.
6
In its memorandum of decision, by which the court ordered the remittitur
of $292,000, the court stated: ‘‘[T]he court orders a remittitur of $292,000,
but does so by ordering that the awards of $292,000 against each of the
plaintiffs for noneconomic damages related to the private nuisance and
invasion of privacy (seclusion) be treated as joint and several, thereby
limiting the recovery for noneconomic damages related to private nuisance
and invasion of privacy (seclusion) to an aggregate amount of $292,000
without impinging on the jury’s determination that each plaintiff is or should
be liable for (or up to) that amount.’’
7
Following the dismissal of the juror in question, the court instructed the
jury to begin its deliberations anew with the alternate juror who had been
chosen as a replacement.
8
Although the court determined that the damages awarded to the defendant were not duplicative in any of the ways asserted by the plaintiffs, the
court ultimately granted the plaintiffs’ motion for remittitur on other
grounds. The court issued a remittitur in the amount of $292,000, leaving
the plaintiffs jointly and severally liable for the remaining $292,000 on the
nuisance and invasion of privacy (seclusion) claims. See footnote 6 of
this opinion.
9
Interrogatories numbers 36, 39, 42, 46 and 51 are the interrogatories
asking for the determination of damages, as to each of the five claims
asserted against John Borg.
10
During a colloquy outside the presence of the jury, the court explained
its proposed jury instructions to counsel and provided the parties with an
opportunity to object. Specifically, the court stated: ‘‘What I . . . did is, if
you look at the verdict forms, I’ve also added a place . . . for . . . entitle[-
ment] to punitive damages. So, it’s clear on the verdict form. My assumption
is nobody has said anything to the contrary, nobody has offered any proof,
so it’s . . . I think we have that as a default that it’s quite common, probably
most common, that the jury simply says, yea or nay on the punitive damages,
and we would deal with that after the verdict. Nobody has said anything to
the contrary. Nobody has offered any evidence to the contrary. So, I’m not
sure how we can have any awards of punitive damages, except on that
basis. So, I’m assuming that that’s what you’re doing and if anybody wants
to say anything to the contrary in a couple of minutes, you’ll have your
opportunity to tell me where I’ve gone astray on any of the things I’ve
commented on.’’
When provided with the opportunity to take issue with any of the court’s
proposed instructions, counsel for the plaintiffs indicated that he did not
have any objections.
11
In Iino, this court discusses the federal case of Wolf v. Yamin, 295 F.3d
303, 312 (2d. Cir 2002), and states the question certified to our Supreme
Court in that case as follows: ‘‘[U]nder Connecticut law on punitive damages,
is a plaintiff who does not offer any evidence of litigation costs at trial
before a jury barred from recovering any punitive damages? (This question
assumes there has been no agreement by the parties to a bifurcation of
the punitive damages determination between the jury/trier of fact as to
liability and the judge as to amount.)’’ (Emphasis altered; internal quotation
marks omitted.) Iino v. Spalter, supra,
192 Conn. App. 460.
12
The permanent injunction ordered by the court pertained to both the
plaintiffs’ use of the lights on their property, as well as to the defamatory
website connected to John Borg. More specifically, the permanent injunction
limited the plaintiffs’ use of the lights directed at the defendant’s property
and required John Borg to remove the defamatory statements about the
defendant from the website. On appeal, the plaintiffs do not challenge the
permanent injunction limiting their use of the lights, and, accordingly, we
address only the court’s order to the extent that it pertains to the website.
13
The permanent injunction order states in relevant part: ‘‘John Borg is
ordered to remove, or take steps to ensure removal of, the webpage on
battleofcompohill.com containing the reference to the defendant as being
associated with child pornography, either by deleting the page or removing
all references to child pornography and ‘watching’ children . . . it being
the intent of the court that John Borg take all steps and measures reasonably
within his power to remove the offending page, including but not limited
to rights he has or may have as the nominal owner of the website or person
in control of the entity-owner of the website or person acting as liaison
with the host on behalf of the owner or in any way having any involvement
or control over the content of the website. [John Borg] is ordered to comply
no later than three weeks after issuance of this order.’’
14
Although John Borg was found in contempt of the court’s permanent
injunction order with respect to both the operation of lights on the plaintiffs’
property and his connection to the website containing defamatory statements about the defendant, the plaintiffs challenge only the contempt ruling
in connection with the website, and not the contempt ruling regarding the
lights. Accordingly, we address only the former.
