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RICHARD STEVENS v. CARLTON HELMING ET AL.
(AC 37013)
Lavine, Alvord and Bishop, Js.
Argued October 27, 2015—officially released February 23, 2016
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Christopher A. Stratton filed a brief for the appellant-
appellee (plaintiff).
Steven J. Bolotin, with whom were Patrick J. Day
and, on the brief, James L. Brawley, for the appellees-
appellants (defendants).
Opinion
LAVINE, J. In this defamation case, the plaintiff, Rich-
ard Stevens, appeals from the judgment rendered by
the trial court when it granted the motion for summary
judgment filed by the defendants, Carlton Helming and
Helming & Company, P.C.1 On appeal, the plaintiff
claims that the court erred by failing to consider an
allegation concerning an alleged defamatory statement
made by Helming, even though the allegation at issue
was not specifically pleaded in the complaint. The
defendants cross appealed, asserting that the court
should have also granted their motion for summary
judgment under the absolute litigation privilege. We
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff was the sole share-
holder of The F & S Oil Company (business), which
went out of business on March 7, 2008, leaving hundreds
of prepaid consumer contracts for heating oil unful-
filled. The Office of the Attorney General filed for an
ex parte temporary injunction and appointment of a
receiver to preserve the defunct business’ assets. The
defendants were appointed as receiver of the business,
and one of their responsibilities was to recover funds
to compensate the customers whose contracts were
not fulfilled. During this time, the plaintiff filed a chapter
7 bankruptcy petition. The defendants audited the busi-
ness’ accounts and found instances where the plaintiff
had apparently used corporate funds for personal
expenses. Seeking to recover these funds from the
plaintiff’s bankruptcy estate on behalf of the business,
Helming filed a proof of claim in the bankruptcy court
on December 22, 2008, alleging that the plaintiff had
committed corporate waste. The proof of claim con-
tained an accounting and description of business pay-
ments that the plaintiff allegedly made for his personal
use. The business’ failure garnered media attention,
and the Waterbury Republican-American published an
article about the allegations of the plaintiff’s corporate
waste on March 4, 2009. The article quoted Helming as
stating, ‘‘We have not done sufficient work yet to pre-
sent it in court, but I don’t have any doubt that probably
99 percent would stand up, and that we’d probably find
more.’’ The plaintiff refers to this statement as the ‘‘99
percent comment.’’ The article stated that Helming said
that the business ‘‘paid the various amounts listed in
the proof of claim over different periods, from one year
to up to five years.’’ The plaintiff refers to this as the
‘‘one to five year allegation.’’ The article also included
statements by the plaintiff’s attorney, Elizabeth Austin,
disputing the truth of the allegations in the proof of
claim.
On April 6, 2011, the plaintiff field a complaint against
the defendants, in which he alleged that the 99 percent
comment and the allegations in the proof of claim were
defamatory. He did not plead that Helming defamed
him by making the one to five year allegation. The
defendants moved to dismiss the complaint; the court
denied the motion on February 10, 2012. On August
13, 2012, the defendants filed an answer denying the
allegations and asserting special defenses.2 On January
31, 2014, the defendants moved for summary judgment
on the grounds that Helming’s statements were abso-
lutely privileged; the statements were opinions pro-
tected by the fair comment privilege; the allegedly
improper statements were not defamatory as they did
not ascribe any improper conduct to the plaintiff; and
the allegedly unprivileged statements were substan-
tially true.
The plaintiff opposed the defendants’ motion for sum-
mary judgment on the legal ground that the statements
were false and not privileged. The defendants filed a
reply memorandum. The plaintiff then alleged in his
surreply that Helming had defamed him by making the
one to five year allegation. The trial court issued its
memorandum of decision on June 23, 2014. The court
declined to consider the plaintiff’s claim regarding the
one to five year allegation because the plaintiff failed
to plead that Helming had defamed him by making that
statement. The court granted the defendants’ motion
for summary judgment in regard to the 99 percent com-
ment on the grounds that it was an opinion on a matter
of public concern protected by the first amendment,
and was protected by the qualified privilege of fair com-
ment. See Goodrich v. Waterbury Republican-Ameri-
can, Inc., 188 Conn. 107, 114, 448 A.2d 1317 (1982). The
plaintiff appealed, claiming that the trial court improp-
erly declined to consider the one to five year allegation
when it granted the defendants’ motion for summary
judgment. That is the plaintiff’s only claim on appeal.
‘‘The standard for appellate review of a court’s deci-
sion to grant a motion for summary judgment is well
established. Practice Book § 17-49 provides that sum-
mary judgment shall be rendered forthwith if the plead-
ings, affidavits and any other proof submitted show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter
of law. A material fact is a fact that will make a differ-
ence in the result of the case. . . . The party seeking
summary judgment has the burden of showing the
absence of any genuine issue as to all material facts
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law . . . and
the party opposing such a motion must provide an evi-
dentiary foundation to demonstrate the existence of a
genuine issue of material fact. . . . In deciding a
motion for summary judgment, the trial court must view
the evidence in the light most favorable to the nonmov-
ing party.’’ (Internal quotation marks omitted.) Arnone
v. Connecticut Light & Power Co., 90 Conn. App. 188,
193, 878 A.2d 347 (2005).
‘‘A genuine issue of material fact must be one which
the party opposing the motion is entitled to litigate
under his pleadings and the mere existence of a factual
dispute apart from the pleadings is not enough to pre-
clude summary judgment.’’ (Emphasis added; internal
quotation marks omitted.) New Haven Savings Bank
v. LaPlace, 66 Conn. App. 1, 15, 783 A.2d 1174, cert.
denied, 258 Conn. 942, 786 A.2d 426 (2001). ‘‘The facts
at issue [in the context of summary judgment] are
those alleged in the pleadings. . . . The purpose of the
complaint is to limit the issues to be decided at the
trial of a case and is calculated to prevent surprise.
. . . Our review of the trial court’s decision to grant
the defendant’s motion for summary judgment is ple-
nary. . . . On appeal, we must determine whether the
legal conclusions reached by the trial court are legally
and logically correct and whether they find support in
the facts set out in the memorandum of decision of
the trial court.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Arnone v. Connecti-
cut Light & Power Co., supra, 90 Conn. App. 193–94.
We conclude that the court did not err in declining
to consider the plaintiff’s claim regarding the one to
five year allegation. In ruling on the defendants’ motion
for summary judgment, the court could consider only
the facts alleged in the pleadings. The complaint alleged
only that the 99 percent comment and allegations in
the proof of claim were defamatory. The plaintiff did
not plead the one to five year allegation in the com-
plaint, and only later attempted to raise it in his surreply
to the defendants’ motion for summary judgment. Thus,
the statement regarding the one to five year allegation
was not before the trial court for its consideration
because it was not alleged in the complaint.
On appeal, the plaintiff argues that a broad reading
of the complaint encompasses the one to five year alle-
gation, noting that ‘‘[t]he modern trend, which is fol-
lowed in Connecticut, is to construe pleadings broadly
and realistically, rather than narrowly and technically.
. . . Although essential allegations may not be supplied
by conjecture or remote implication . . . the com-
plaint must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded . . . . As long as the
pleadings provide sufficient notice of the facts claimed
and the issues to be tried and do not surprise or preju-
dice the opposing party, [the court] will not conclude
that the complaint is insufficient . . . .’’ (Internal quo-
tation marks omitted.) Witczak v. Gerald, 69 Conn. App.
106, 108, 793 A.2d 1193 (2002). This trend though, is
not a panacea for every instance where a party fails to
adhere to the basic procedural requirements of plead-
ing, especially in the context of a defamation com-
plaint.3
In the present case, the plaintiff alleged only that the
99 percent comment and allegations in the proof of
claim before the bankruptcy court were defamatory.
The trial court, in ruling on the defendants’ motion for
summary judgment, was limited to the facts alleged in
the complaint standing alone, which cannot fairly be
read to encapsulate the one to five year allegation.4
Simple fairness requires that a defendant not be forced
to defend against facts that are not clearly pleaded in
a complaint. Thus, we conclude that the court did not
err in declining to consider the plaintiff’s claim as to
the one to five year allegation.5
The judgment is affirmed.
In this opinion the other judges concurred.
1
Throughout the opinion, where appropriate, we refer to Helming individu-
ally by name, as he made the allegedly defamatory statements raised in the
complaint, and to Helming and his company, collectively, as the defendants.
2
The special defenses raised were that the alleged defamatory statements
were: (1) substantially true; (2) opinions; (3) privileged; (4) republished by
the plaintiff; and (5) constitutionally protected speech as fair comment on
a matter of public interest.
3
Although this court has not addressed the issue, we find persuasive the
reasoning of various Superior Courts in requiring specificity in pleading
defamation. ‘‘A claim of [defamation] must be pl[eaded] with specificity, as
the precise meaning and choice of words employed is a crucial factor in any
evaluation of falsity. The allegations should set forth facts . . . sufficient to
apprise the defendant of the claim made against him . . . . [A] complaint for
defamation must, on its face, specifically identify what allegedly defamatory
statements were made, by whom, and to whom . . . .’’ Chertkova v. Con-
necticut General Life Ins. Co., Superior Court, judicial district of New
Britain, Docket No. CV-98-0486346-S (July 12, 2002), aff’d, 76 Conn. App.
907, 822 A.2d 372 (2003); see also Weissman v. Koskoff, Koskoff, & Bieder,
P.C., Superior Court, judicial district of Hartford, Docket No. CV-10-6012922-
S (January 19, 2011), aff’d, 136 Conn. App. 557, 46 A.3d 943 (2012); Crosby
v. HSBC North American Holdings, Inc., Superior Court, judicial district
of Ansonia-Milford, Docket No. CV-06-5000378-S (May 16, 2007). ‘‘[I]mprecise
pleading is not permitted in the context of alleged [defamation], and the
court will confine itself to allegations specifically pl[eaded] in the operative
complaint. The court agrees . . . that only the allegations of the operative
complaint can be considered in deciding [a] motion for summary judgment.’’
Hauer v. ECHN Community Healthcare Foundation, Inc., Superior Court,
judicial district of Hartford, Docket No. CV-09-4046119-S (February 16,
2012).
4
The plaintiff cites to Lyons v. Nichols, 63 Conn. App. 761, 778 A.2d 246,
cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001), in support of his assertion
that the complaint was sufficient for the trial court to consider the one to
five year allegation. In Lyons, this court held that the trial court did not err
in admitting into evidence an allegedly defamatory letter that was published
in a newspaper after the filing of the complaint because the variance between
the allegations in the complaint and proof was not material. Id.,765–66.
The present case is distinguishable because the allegedly defamatory one
to five year allegation had been published at the time of the complaint, and
the plaintiff failed to plead it. ‘‘Other actionable words not pleaded, although
published at the same time, may not be made the basis of recovery.’’ 53
C.J.S. 316, Libel and Slander; Injurious Falsehood § 238 (2005).
5
Because we conclude that the trial court did not err in declining to
consider the one to five year allegation, we need not address the defendants’
cross appeal or proposed alternative ground for affirmance. The defendants
claim that the trial court erred in ruling that they were not entitled to
summary judgment under the absolute litigation privilege as to the 99 percent
comment. They assert that the one to five year allegation, if considered,
would have been protected by the absolute litigation privilege. They also
propose as an alternative ground for affirmance that they would have been
entitled to summary judgment if the court considered the one to five year
allegation because it was a true statement repeating facts alleged in the
privileged proof of claim filed in the bankruptcy court.