James G. Boyle, Individually and as Trustee & a. v. Mary Christine Dwyer ( 2019 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2018-0517
JAMES G. BOYLE, INDIVIDUALLY AND AS TRUSTEE & a.
v.
MARY CHRISTINE DWYER
Argued: April 18, 2019
Opinion Issued: August 16, 2019
Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John
Kuzinevich on the brief and orally), for the plaintiffs.
Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and
Weston R. Sager on the brief, and Mr. Bauer orally), for the defendant.
LYNN, C.J. The plaintiffs, James G. Boyle, individually and as trustee of
150 Greenleaf Avenue Realty Trust, and Minato Auto, LLC, appeal an order of
the Superior Court (Schulman, J.) dismissing their defamation claim against
the defendant, Mary Christine Dwyer. They challenge the trial court’s
application of the pertinent law in assessing their claim, and assert that they
pled sufficient facts in their complaint to survive a motion to dismiss. We
affirm.
I
The following facts are drawn from the plaintiffs’ complaint1 or are
otherwise undisputed by the parties. Boyle is the majority owner and manager
of Minato Auto, LLC, which operates a Toyota dealership at 150 Greenleaf
Avenue in Portsmouth (the property). The State of New Hampshire sold the
property to Boyle, who later discovered that it contained a sewer line owned by
the City of Portsmouth (the City). The presence of the municipal sewer line was
not clearly indicated on the deed, and has impacted Boyle’s plans for
developing the property.
Since approximately 2003, Boyle has been involved in numerous disputes
with the City. Relevant here is a lawsuit Boyle filed against the City for trespass
and nuisance based on the presence of the sewer line on the property.
Following a two-week trial, a jury found the City liable to Boyle for damages in
excess of $3.5 million. This dispute remains ongoing, as Boyle, alleging errors
at trial, maintains that the damages award should have exceeded $10 million.
Also relevant to this appeal is a notice of taking, filed in December 2016, in
which the City seeks to take by eminent domain approximately one-third of the
property, including the portion that contains the sewer line.
In the fall of 2017, the defendant was running for re-election to the
Portsmouth city council. During her campaign, she responded to a written
questionnaire, captioned “Candidate Survey,” which was subsequently
published on the website PortsmouthNH.com as part of a “voter’s guide.” The
questionnaire was sent to all of the 18 candidates running for city council that
fall. The following question (Question Seven) regarding the dispute between
Boyle and the City over the sewer line, along with the defendant’s response,
was included in the publication:
Q7: The council is attempting to take 4.6 acres of land
containing a city sewer line from Toyota of Portsmouth owner
James Boyle. In March, Boyle said he was seeking about $10
million in a settlement offer, but no settlement was reached.
A) Should the council have settled with Boyle at the
amount he requested?
Certainly not. Mr. Boyle purchased a building on wetlands, which
had been sold to him by the N.H. Department of Education; the
building was sold because it was sinking. The wetland and the
sewer line are clearly marked on the deed to the property. Ever
1 Because this is an appeal from a ruling on a motion to dismiss, we assume the well-pleaded
allegations of fact in the complaint to be true, and construe all reasonable inferences from them in
the plaintiffs’ favor. Ojo v. Lorenzo, 164 N.H. 717, 721 (2013).
2
since then, he has been trying to get the taxpayers of the city of
Portsmouth to pay for his apparent mistake through filing various
lawsuits. The city has repeatedly defended taxpayers against these
lawsuits. Why would we give Mr. Boyle $10 million of taxpayer
money simply to mollify him?
B) Should the city proceed with efforts to take the land by
eminent domain?
Yes. In a ruling from one of Mr. Boyle’s lawsuit attempts to pry
money out of Portsmouth taxpayers, the presiding judge suggested
the eminent domain remedy to the city, apparently believing that it
might end the controversy and stop clogging up the courts. The
judge’s advice seemed like a feasible direction. The city can then
manage that portion of the property, monitor the sewer pipe that
runs under a corner of the property, and deal appropriately with
the wetlands.
Following the publication of the questionnaire, Boyle sent the defendant
a letter alleging that the defendant’s response to Question Seven “constitute[s]
libel and slander.” The letter included a demand that the defendant “issue an
immediate retraction indicating that [her] statements were false.” The
defendant did not respond.
The plaintiffs then filed a complaint against the defendant in the trial
court, alleging claims of defamation and interference with existing and
prospective contractual relations. In support of their defamation claim, the
plaintiffs asserted, as relevant here, that the defendant’s response to Question
Seven was “false and defamatory,” and that it had the effect of “directly
injur[ing]” Boyle and his business activities. The defendant filed a motion to
dismiss, arguing, among other things, that her statements in response to
Question Seven were not actionable for defamation, as they were either
statements of fact that were substantially true or did not convey a defamatory
meaning, or statements of opinion.
The trial court granted the defendant’s motion to dismiss, basing its
decision primarily on the protections afforded allegedly defamatory speech
under the First Amendment to the United States Constitution. The court also
concluded, however, that the plaintiffs’ claim would likewise fail under New
Hampshire common law, given that the defendant’s statements “were limited to
(a) statements of uncontested facts, (b) statements of non-defamatory facts and
(c) statements of opinion.”2 The plaintiffs filed a motion to reconsider, which
the trial court denied, and this appeal followed.
2 In its order, the trial court also dismissed the plaintiffs’ claim of interference with contractual
relations. The plaintiffs’ appeal does not challenge the trial court’s dismissal of this claim.
3
II
In reviewing a trial court’s ruling on a motion to dismiss, our standard of
review is whether the allegations in the plaintiffs’ pleadings are reasonably
susceptible of a construction that would permit recovery. Sanguedolce v.
Wolfe, 164 N.H. 644, 645 (2013). We assume the plaintiffs’ pleadings to be
true and construe all reasonable inferences therefrom in the light most
favorable to the plaintiffs. Id. We need not, however, assume the truth of
statements in the plaintiffs’ pleadings that are merely conclusions of law. Id.
We then engage in a threshold inquiry that tests the facts in the complaint
against the applicable law, and if the allegations constitute a basis for legal
relief, we must hold that it was improper to grant the motion to dismiss. Id. In
conducting this inquiry, we may also consider documents attached to the
plaintiffs’ pleadings, documents the authenticity of which are not disputed by
the parties, official public records, or documents sufficiently referred to in the
complaint. Ojo, 164 N.H. at 721.
To survive the motion to dismiss, the plaintiffs must have alleged facts in
their complaint that would show “that the defendant failed to exercise
reasonable care in publishing a false and defamatory statement of fact about
the plaintiff[s] to a third party, assuming no valid privilege applies to the
communication.” Sanguedolce, 164 N.H. at 645-46 (quotation omitted).3
Thus, for us to rule that the trial court erred in granting the defendant’s motion
to dismiss, the plaintiffs must have alleged facts in their complaint that would
show that the defendant’s statements in response to Question Seven are
statements of fact that are both false and capable of conveying a defamatory
meaning. See id. Although this requirement describes actionable statements
as statements of “fact,” we have explained that an opinion is also actionable for
defamation when the opinion “may reasonably be understood to imply the
existence of defamatory fact as the basis for the opinion.” Thomas v. Telegraph
Publ’g Co., 155 N.H. 314, 338 (2007). Whether a given statement can be read
as being or implying an actionable statement of fact is a question of law to be
determined by the trial court in the first instance, considering the context of
the publication as a whole. Id. at 338-39; accord Piccone v. Bartels, 785 F.3d
766, 772 (1st Cir. 2015) (“Whether a statement is a verifiable fact or an opinion
can be decided by the court as a matter of law.”).
If a challenged statement is one of fact, but also substantially true, it is
not actionable for defamation. Simpkins v. Snow, 139 N.H. 735, 740 (1995).
3 We decide this appeal under New Hampshire law, rather than the First Amendment. In so
doing, we are cognizant of the limitations placed on the application of state defamation law by the
United States Supreme Court, through its interpretation of the First Amendment. See Milkovich
v. Lorain Journal Co., 497 U.S. 1, 14-23 (1990) (outlining various limitations); Gray v. St. Martin’s
Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000) (“[T]he Supreme Court has read the First
Amendment . . . to impose additional limitations in defamation cases, whether or not they are also
part of state law.”).
4
“In the law of defamation, truth is defined as substantial truth, as it is not
necessary that every detail be accurate.” Thomas, 155 N.H. at 335 (quotation
omitted). “In other words, literal truth of a statement is not required so long as
the imputation is substantially true so as to justify the gist or sting of the
remark.” Id. (quotation omitted). Although the substantial truth of a
statement is normally a question for the jury, see 53 C.J.S. Libel and Slander;
Injurious Falsehood § 276, at 389 (2017), “[w]hen underlying facts as to the
gist or sting [of a statement] are undisputed, substantial truth may be
determined as a matter of law.” Brokers’ Choice of America v. NBC Universal,
Inc., 757 F.3d 1125, 1137 (10th Cir. 2014) (quotation omitted).
Furthermore, to be actionable for defamation, the challenged statement
must be capable of communicating a defamatory meaning. Thomson v. Cash,
119 N.H. 371, 373 (1979). In determining whether a given statement is
capable of communicating a defamatory meaning, the following are questions of
law for the court: (1) “whether the [statement] was reasonably capable of
conveying the particular meaning . . . ascribed to it by the plaintiff”; and (2)
“whether that meaning is defamatory in character.” Restatement (Second) of
Torts § 614 cmt. b at 311 (1977); see also Thomson, 119 N.H. at 374;
Blanchard v. Claremont Eagle, Inc., 95 N.H. 375, 378 (1949); Catalfo v. Jensen,
657 F. Supp. 463, 466 (D.N.H. 1987). “‘Words may be found to be defamatory
if they hold the plaintiff up to contempt, hatred, scorn or ridicule, or tend to
impair [the plaintiff’s] standing in the community.’” Thomas, 155 N.H. at 338
(quoting Burke v. Town of Walpole, 405 F.3d 66, 94-95 (1st Cir. 2005)). “[T]he
complained-of language must tend to lower the plaintiff in the esteem of any
substantial and respectable group, even though it may be quite a small
minority.” Sanguedolce, 164 N.H. at 646 (quotation omitted). In addition, the
defamatory meaning must be one that could be ascribed to the words by
persons of common and reasonable understanding. Thomson, 119 N.H. at
373.
III
We start by addressing the plaintiffs’ claims of error related to the trial
court’s application of the relevant law in assessing the complaint. First, the
plaintiffs assert that the trial court erred by analyzing the actionability of the
defendant’s sentences individually, rather than considering her response to
Question Seven as a whole. We disagree. In Thomas, we were invited by one of
the defendants to analyze the substantial truth of “the aggregate of all
sentences attributable to” him. Thomas, 155 N.H. at 335. We declined the
invitation, concluding instead that the “better view is that the statement giving
rise to liability can be one of an individual’s remarks or many, while the
[publication] as a whole provides important context for evaluating whether the
statement is substantially true or an opinion.” Id. at 335-36 (quotations
omitted). In so doing, we explained that there was “little merit” in adopting a
“rule that would allow a defendant to avoid liability by simply couching
5
injurious and baseless sentences in a longer statement.” Id. at 336 (quotation
omitted). Although Thomas dealt with evaluating the substantial truth of a
statement, we have counseled a similar method of review when determining
whether a challenged communication constitutes an opinion, see Nash v.
Keene Publishing Corp., 127 N.H. 214, 219 (1985) (stating that “[w]hether a
given statement can be read as being or implying an actionable statement of
fact” must be considered in “the context of the publication as a whole”), or is
capable of conveying a defamatory meaning, see Thomson, 119 N.H. at 374
(“Words alleged to be defamatory must be read in the context of the publication
taken as a whole.”). The trial court’s order demonstrates that, although it
separated the defendant’s response to Question Seven into four statements for
the purpose of its analysis, it did so while remaining cognizant of their context
within the defendant’s response as a whole. Accordingly, we discern no error
in the trial court’s method of analysis. See Thomas, 155 N.H. at 336.
Second, the plaintiffs take issue with the trial court’s application of the
requisite standard of review in dismissing their claim. They argue that the trial
court erred by: (1) failing to accept the facts alleged in the complaint as true; (2)
failing to draw all reasonable inferences from those alleged facts in their favor;
and (3) resolving factual disputes in its ruling. We find these contentions
unavailing. As demonstrated by its order, the court did not resolve factual
issues disputed by the parties, but rather determined, as a matter of law, that
the defendant’s statements were not actionable. See Nash, 127 N.H. at 219
(stating that before a jury determines if readers actually understood the
challenged statements as factual, the court must determine “[w]hether a given
statement can be read as being or implying an actionable statement of fact”);
Brokers’ Choice of America, 757 F.3d at 1137 (stating that substantial truth
may be determined as a matter of law when underlying facts as to the “gist or
sting” of a statement are undisputed); Thomas, 155 N.H. at 338 (“Only if the
Court determines that language is [capable of conveying a defamatory meaning]
is there then the question for the jury whether the communication was in fact
understood by its recipient in the defamatory sense.” (quotation omitted)).
Third, the plaintiffs contend that the trial court erred by taking judicial
notice of a fact that was found by another judge in a non-final order —
specifically, that the sewer line on the property is clearly marked on the deed.
The plaintiffs argue that the trial court was prohibited from taking judicial
notice of this fact because it was later rendered moot upon reconsideration of
the issue and the underlying case is currently on appeal. We agree with the
defendant that any error committed by the trial court in taking judicial notice
of this fact was harmless. The trial court’s determination that the second and
third sentences of the defendant’s response, which contained this statement,
were not actionable was based on its conclusion that they were not capable of
communicating a defamatory meaning. Thus, even assuming the court erred,
the error did not affect the outcome. See Appeal of Ann Miles Builder, 150 N.H.
6
315, 317 (2003) (“Where it appears that an error did not affect the outcome
below . . . the judgment will not be disturbed.” (quotation omitted)).
IV
We next consider whether the trial court erred in concluding that the
complaint did not state a cause of action for defamation. We address the
defendant’s response to Question Seven in two parts: her response to Question
7(A) and her response to Question 7(B). The plaintiffs contend that the trial
court erred in dismissing their defamation claim because, when viewed in the
light most favorable to them, their “complaint on its face supports a claim upon
which relief may be granted.” They argue that the defendant’s response to
Question Seven contained false factual allegations that conveyed a defamatory
meaning. They also assert that, to the extent the defendant’s statements
“qualify as opinion,” those statements, too, are actionable, as they are based on
defamatory fact. For the reasons stated below, we disagree.
A
Question 7(A), as well as the defendant’s response thereto, states:
A) Should the council have settled with Boyle at the
amount he requested?
Certainly not. Mr. Boyle purchased a building on wetlands, which
had been sold to him by the N.H. Department of Education; the
building was sold because it was sinking. The wetland and the
sewer line are clearly marked on the deed to the property. Ever
since then, he has been trying to get the taxpayers of the city of
Portsmouth to pay for his apparent mistake through filing various
lawsuits. The city has repeatedly defended taxpayers against these
lawsuits. Why would we give Mr. Boyle $10 million of taxpayer
money simply to mollify him?
The plaintiffs argue that the second and third sentences of the
defendant’s response to Question 7(A) encompass false statements of fact that
are “designed to discredit the soundness of [Boyle’s] action in purchasing the
property.” Although we agree with the plaintiffs that these sentences
encompass statements of fact, we conclude, as did the trial court, that they are
not capable of bearing a defamatory meaning. See Thomson, 119 N.H. at 373
(“In order to be actionable, the language complained of must be defamatory,
that is, it must tend to lower the plaintiff in the esteem of any substantial and
respectable group, even though it may be quite a small minority.” (quotation
omitted)); see also Masson v. New Yorker Magazine, Inc., 832 F. Supp. 1350,
1367 (N.D. Cal. 1993) (“Falsity and defamatory meaning are analytically
7
separate. . . . Not all false statements are defamatory, and not all defamatory
statements are false.”).
Although the second and third sentences of the defendant’s response to
Question 7(A) may be reasonably capable of conveying the meaning ascribed to
them by the plaintiffs, see Thomson, 119 N.H. at 374, we do not find that
meaning to be defamatory, see Thomas, 155 N.H. at 338 (“Whether a
communication is capable of bearing a defamatory meaning is an issue of law
for the Court.” (quotation and brackets omitted)). “Words may be found to be
defamatory if they hold the plaintiff up to contempt, hatred, scorn or ridicule,
or tend to impair [the plaintiff’s] standing in the community.” Id. (quotation
omitted). We believe that the facts asserted in these sentences — Boyle
purchased a building on wetlands from the New Hampshire Department of
Education; the building was sold to him because it was sinking; and the
wetland and sewer line were clearly marked on the deed — are not capable of
subjecting the plaintiffs to contempt, hatred, scorn or ridicule, or of otherwise
impairing their standing in the community. “‘No mere claim of the plaintiff[s]
can add a defamatory meaning where none is apparent from the publication
itself.’” Thomson, 119 N.H. at 373 (quoting W. Prosser, Torts § 111, at 749 (4th
ed. 1971)).
The plaintiffs next contend that these factual assertions “set the stage for
the overall defamation” contained in the defendant’s response. They argue that
the defendant defamed them by claiming, in the fourth sentence of her
response to Question 7(A), that Boyle “made a mistake in buying the property”
and that he has been “wrongfully” suing to recover for that mistake. Turning
first to the defendant’s statement that Boyle made a “mistake,” we conclude
that this word, when read in context, is designed to express an opinion based
on fully disclosed facts. See Phantom Touring, Inc. v. Affiliated Publications,
953 F.2d 724, 730 (1st Cir. 1992). “Where an expressive phrase, though
pejorative and unflattering, cannot be objectively verified, it belongs squarely in
the category of . . . opinion.” Piccone, 785 F.3d at 772 (quotations omitted).
The defendant’s conclusion that Boyle made a “mistake” in purchasing the
property is not objectively verifiable. Unlike the challenged statements in
Berard v. Town of Millville, 113 F. Supp. 2d 197, 199, 202 (D. Mass. 2000)
(determining that statement by police chief that dispatcher made a “mistake”
could “be interpreted to imply that [the dispatcher] failed to follow proper
procedure while performing his job”), and Gould v. Maryland Sound Industries,
Inc., 37 Cal. Rptr. 2d 718, 727-28 (Ct. App. 1995) (concluding that statement
that plaintiff “made a $100,000 error” in the estimation of a bid was “a
statement of fact susceptible to proof or refutation by reference to concrete,
provable data”), the defendant’s use of “mistake” in her response to Question
7(A) did not “imply the existence of undisclosed defamatory facts concerning a
sufficiently objective standard of conduct,” Piccone, 785 F.3d at 772.
8
“A simple expression of opinion based on disclosed . . . nondefamatory
facts is not itself sufficient for an action of defamation, no matter how
unjustified and unreasonable the opinion may be or how derogatory it is.”
Restatement (Second) of Torts § 566 cmt. c at 173. When a “defendant bases
his expression of a derogatory opinion of the plaintiff on his own statement of
facts that are not defamatory, he is not subject to liability for the factual
statement.” Id. at 175. Moreover, he is also not subject to liability “for the
expression of opinion, so long as it does not reasonably indicate an assertion of
the existence of other, defamatory, facts that would justify the forming of the
opinion.” Id.
As shown above, the facts on which the defendant based her opinion that
Boyle made a “mistake” were fully disclosed. The defendant explained that
Boyle purchased a building from the State that was sold because it was
sinking, and that the wetland and the sewer line were clearly marked on the
deed to the property. Furthermore, these statements of fact were not capable
of defaming the plaintiffs. See Thomas, 155 N.H. at 338 (stating that words are
found to be defamatory “if they hold the plaintiff up to contempt, hatred, scorn
or ridicule, or tend to impair [the plaintiff’s] standing in the community”
(quotation omitted)). In addition, there was no implication by the defendant
that her statement was based on other, nondisclosed defamatory facts. See
Restatement (Second) of Torts § 566 cmt. c at 175. “When the facts underlying
a statement of opinion are disclosed, readers will understand they are getting
the author’s interpretation of the facts presented; they are therefore unlikely to
construe the statement as insinuating the existence of additional, undisclosed
facts.” Standing Committee v. Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995).
To the extent the plaintiffs argue that the fourth sentence of the
defendant’s response to Question 7(A) incorrectly implies that they have been
“wrongfully” suing the City to recover for Boyle’s mistake, any such implication,
if present at all, is one of opinion. The defendant’s belief that Boyle has made a
mistake in purchasing the property, and is therefore wrongfully suing the City
to recover for that mistake, is a subjective point of view based on disclosed
facts. As the trial court pointed out, the defendant does not, for example, (1)
allege that the plaintiffs’ lawsuit lacks legal merit, (2) dispute the validity of the
court’s judgment in the plaintiffs’ favor, (3) claim that the plaintiffs were
dishonest or misled the court, or (4) assert litigation misconduct. In other
words, any implication of wrongfulness by the defendant does not accuse the
plaintiffs of violating an “objective standard of conduct.” Piccone, 785 F.3d at
772. Rather, it simply expresses her “personal judgment, which is subjective
in character.” Id. (quotation omitted). Moreover, as with the defendant’s
comment that Boyle made a “mistake,” the facts upon which she based this
judgment are disclosed and do not convey a defamatory meaning; nor does the
statement itself imply the existence of “other, defamatory, facts.” Restatement
(Second) of Torts § 566 cmt. c at 175.
9
The plaintiffs also challenge the facts asserted in sentences four and five
of the defendant’s response to Question 7(A). Specifically, they contend that
the following statements by the defendant are false: (1) Boyle “has been trying
to get the taxpayers of the city of Portsmouth to pay for his apparent mistake
through filing various lawsuits”; and (2) “[t]he city has repeatedly defended
taxpayer[s] against these lawsuits.” Although we agree that these sentences
contain statements of verifiable fact, we conclude that they are not actionable
for defamation because the “gist or sting” of the facts asserted is undisputed by
the plaintiffs. See Brokers’ Choice of America, 757 F.3d at 1137.
As determined above, the defendant’s statement that Boyle made a
“mistake” in purchasing the property is a nonactionable opinion statement.
Thus, the “gist or sting” of the factual statements in the fourth and fifth
sentences of the defendant’s response to Question 7(A) is that the plaintiffs are
involved in ongoing litigation with the City over the sewer line. In their
complaint, the plaintiffs agree that Boyle has been involved in “numerous
disputes” with the City. They further allege that “[o]ne of the largest” of those
disputes has resulted in a jury award in excess of $3.5 million. In addition,
they acknowledge that this lawsuit is ongoing, given Boyle’s allegations “that
there were certain errors in trial and the verdict should have exceeded [$10
million].” In light of the plaintiffs’ own factual assertions in their complaint, we
conclude that the “gist or sting” of the factual allegations in the fourth and fifth
sentences of the defendant’s response to Question 7(A) is undisputed. Based
on this determination, we conclude that the factual statements in these
sentences are substantially true. See Brokers’ Choice of America, 757 F.3d at
1137.
Next, we turn to the last sentence of the defendant’s response to Question
7(A). Although the plaintiffs concede that this sentence is an “opinion
statement,” they argue that, “when read after the false facts” that precede it, the
defendant’s response to Question 7(A) portrays him as an “unscrupulous
rascal,” and results in a “negative picture” that is “detrimental” to his business.
Because the plaintiffs concede that this is an opinion statement, it is actionable
only if it implies the existence of an undisclosed defamatory fact. See Thomas,
155 N.H. at 338; Restatement (Second) of Torts § 566 cmt. c at 175. We
conclude that it does not. The opinion expressed in the final sentence of the
defendant’s response to Question 7(A) is that the City should not settle with
Boyle for $10 million. As with the defendant’s opinion that Boyle made a
“mistake” in purchasing the property, the facts upon which she based this
opinion are fully disclosed in the preceding sentences of her response. See id.
(stating that if the defendant bases his expression of opinion on his own
statement of facts that is either true or does not convey a defamatory meaning,
he is not subject to liability for the factual statement or the expression of
opinion). In addition, there is no implication that the defendant’s opinion is
based on “other, defamatory, facts.” Id.
10
The plaintiffs next contend that the defendant’s statements of fact,
although false, were reasonably perceived by readers as true because, as a
sitting city councilor, the defendant appeared to be in possession of objectively
verifiable facts about the litigation over the sewer line. This argument is
meritless, however, because, as determined above, the defendant’s factual
statements are not actionable for defamation as a matter of law, as they either
were not capable of communicating a defamatory meaning or were
substantially true.
In addition, the context of the defendant’s statements offers further
support for our conclusion that certain statements by the defendant qualified
as nonactionable opinion statements. Partington v. Bugliosi, 56 F.3d 1147,
1154 (9th Cir. 1995) (explaining that defendant’s book was “a forum in which a
reader would be likely to recognize that [his] critiques . . . generally
represent[ed] the highly subjective opinions of the author rather than
assertions of verifiable, objective facts”); Moldea, 22 F.3d at 314 (stating that “it
is in part the settings of the speech in question that . . . helps determine the
way in which the intended audience will receive them”). The defendant’s
responses to the questionnaire were published as part of a series in which
candidates running for election for city council were asked questions,
generated by the staff at PortsmouthNH.com and its readers, on local issues.
According to the webpage on which the defendant’s responses appeared, the
questionnaire was sent to all of the 18 candidates who were running in the Fall
2017 election. Because the questionnaire was compiled as part of a candidate
survey, it is clear that the purpose of the questionnaire was to make readers
aware of the candidates’ stance on certain issues that might affect them, rather
than to report on the facts surrounding those issues.
B
Question 7(B), as well as the defendant’s response thereto, states:
B) Should the city proceed with efforts to take the land by
eminent domain?
Yes. In a ruling from one of Mr. Boyle’s lawsuit attempts to pry
money out of Portsmouth taxpayers, the presiding judge suggested
the eminent domain remedy to the city, apparently believing that it
might end the controversy and stop clogging up the courts. The
judge’s advice seemed like a feasible direction. The city can then
manage that portion of the property, monitor the sewer pipe that
runs under a corner of the property, and deal appropriately with
the wetlands.
On appeal, the plaintiffs challenge the defendant’s response to Question
7(B) as containing false statements of fact. We conclude, however, that the
11
“gist or sting” of the defendant’s factual statements in her response to Question
7(B) is undisputed, and thus substantially true. Brokers’ Choice of America,
757 F.3d at 1137. The “gist or sting” of the factual assertions in the
defendant’s response to Question 7(B) is that the judge presiding over the
sewer line litigation suggested eminent domain as a potential way to end the
dispute. Although the plaintiffs’ complaint quibbles with the scope of the
eminent domain remedy suggested by the judge, the precise number of
lawsuits encompassed in the litigation over the sewer line, and how much of
the sewer line runs under the property, none of these allegations contradict the
“gist or sting” of the defendant’s factual assertions in her response to Question
7(B). See 53 C.J.S. Libel and Slander; Injurious Falsehood § 276, at 389
(stating that the substantial truth of facts deemed undisputed is not affected
by any variance in allegations of fact concerning matters of “secondary
importance”). Indeed, the plaintiffs do not dispute that a judge suggested Boyle
and the City resolve their litigation over the sewer line through eminent
domain.
V
We decline to address the parties’ other arguments on appeal, as we have
already determined that the plaintiffs’ complaint failed to allege facts that
would show that the defendant’s statements were actionable for defamation.
Given this determination, we affirm the trial court’s dismissal of the plaintiffs’
defamation claim.
Affirmed.
HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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