Cite as: Miller v. Jones, 114 Nev. Adv. Op. No. 136, December 29, 1998
IN THE SUPREME COURT OF THE STATE OF NEVADA No. 29391 STEVE MILLER, Appellant,
vs. JAN LAVERTY JONES, Respondent. Appeal from an order of the district
court granting summary judgment in favor of respondent Jan Laverty
Jones ("Jones") in a defamation action. Eighth Judicial District Court,
Clark County; A. William Maupin, Judge. Affirmed in part, reversed in part,
and remanded. Shearing, J., dissented in part. Springer, C.J., dissented.
Bourgault & Harding, Las Vegas, for Appellant. Carelli & Miller,
Las Vegas; Kummer Kaempfer Bonner & Renshaw, Las Vegas, for Respondent.
O P I N I O N By the Court, YOUNG, J.: Appellant Steve Miller ("Miller")
and respondent Jones were candidates in the May 7, 1991 Las Vegas mayoral
election. On May 3 and 4, 1991, the Thursday and Friday before the election,
Jones' campaign staff distributed a flier which contained reproductions
of newspaper articles unfavorable to Miller. Next to each article was a
brief sentence, drafted by Jones' campaign staff, which purported to summarize
the contents of the article. Jones reviewed the flier and approved it for
distribution.
One of the items reproduced in the flier was from the August 30, 1988
Las Vegas Sun. This article reported that Miller had informed the police
that a small amount of what appeared to be cocaine had been discovered
in an automobile which Miller had purchased for a family member. A body
shop had discovered the substance while repairing the car. Miller told
the police that he had instructed the body shop owner not to touch anything
until the police arrived. However, when the police arrived to examine the
automobile, they were told that a member of Miller's family had instructed
the body shop to destroy the purported drugs.1 The article quoted the report
of Detective Ken Wellington ("Wellington"), a Las Vegas Metro police officer,
as stating that "it is this officer's opinion that Councilman Steve Miller
was dishonest . . . by giving this officer false information about advising
the owner . . . not to touch the items." The article also reported that
Wellington's superior had stated, "I think [Wellington] read too much into
the conversation." However,this last statement was deleted from the reproduction
of the article containedin the flier.
The summary of this article printed in the campaign flier stated, "A
police detective accuses Miller of giving false information in a report
concerning cocaine found in a car Miller was driving." On May 3,
1991, Miller's attorney sent Jones a letter demanding a retraction of the
allegation that Miller had driven an automobile in which cocaine was discovered.
The letter asserted that "this allegation is made without any justification
and is absolutely false in nature." On May 6, 1991, Miller's attorney wrote
Jones another letter, sent by facsimile, which stated that if Jones did
not publicly retract the statement at issue by 1 p.m. on that date, Miller
would file suit against Jones.
On May 6, 1991, Jones' attorney sent a reply to this letter in which
he stated that [t]o the extent that the typewritten descriptive which accompanied
the reprint of the article may be read to infer that cocaine was found
in the vehicle at a time when the Councilman was driving the Porsche, you
are correct that the statement could be misconstrued and our client did
not, and does not intend to imply that such was the case. . . . Please
consider the foregoing as complying with your retraction demand and convey
the apologies of Ms. Jones and her campaign staff for any misunderstanding.
In separate correspondence that same day, Jones agreed to make this letter
of retraction public.
Nonetheless, on May 6, 1991, Miller filed an action in the district
court against Jones for defamation, intentional infliction of emotional
distress ("IIED"), and negligent infliction of emotional distress. On May
24, 1991, Jones filed her answer and counterclaim for abuse of process.
On March 5, 1993, Jones moved for summary judgment, with respect
to Miller's complaint only, on the grounds that the allegedly defamatory
statement was either true or made without actual malice. Jones argued that
the statement was true based upon Miller's testimony, during his deposition,
that he had driven the car around the block before his daughter purchased
it.2 On April 19, 1993, the district court granted Jones' motion for
summary judgment and ordered Miller to pay Jones $1,164.80 in costs and
$20,000.00 in attorney's fees. The court also filed thorough findings
of fact and conclusions of law in support of its order granting summary
judgment. However, these findings did not make any mention of facts supporting
the award of attorney's fees and costs. On April 26, 1993, the district
court filed supplemental findings of fact which stated that attorney's
fees were awarded because Miller's complaint "was brought without reasonable
grounds."
On May 20, 1993, Miller filed a notice of appeal from the district
court's order of summary judgment. On January 18, 1994, this court dismissed
the appeal without prejudice on the grounds that the district court's
order did not constitute a final judgment because Jones' counterclaim had
not been resolved. Furthermore, the district court had not certified its
judgment as final pursuant to NRCP 54(b).
On March 14, 1994, Miller filed a motion to reconsider the order
granting summary judgment in light of this court's decision in Posadas
v. City of Reno, 109 Nev. 448, 851 P.2d 438 (1993), which had been published
shortly after the district court granted Jones' motion for summary judgment.
In addition, each party moved for partial summary judgment in his or her
favor with respect to Jones' counterclaim. On August 26, 1994, the district
court filed an order denying Miller's motion to reconsider and denying
both Miller's and Jones' motions for summary judgment. This order also
purported to certify the judgment as final pursuant to NRCP 54(b).
On September 16, 1994, Miller filed a notice of appeal from the district
court's order of August 23, 1994. On May 26, 1995, this court again
filed an order dismissing the appeal without prejudice on the grounds that
unresolved issues remained with respect to Jones' counterclaim.
On May 31, 1995, the district court filed an order dismissing Jones'
counterclaim pursuant to a stipulation between the parties. On July 2,
1996, Miller filed his timely notice of appeal from this order and from
the underlying orders granting summary judgment in Jones' favor and denying
Miller's motion to reconsider.
DISCUSSION Miller first contends that because genuine issues of material
fact remain as to whether the statement at issue was false and made with
actual malice, the district court erred by granting Jones' motion for summary
judgment. We agree. It is well settled
that summary judgment should be granted only when, based upon the pleadings
and discovery on file, no genuine issue of material fact exists for trial.
NRCP 56(c). A genuine issue of material fact exists when a reasonable
jury could return a verdict for the non-moving party. Posadas v. City of
Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993). While we construe
the pleadings and proof in the light most favorable to the non-moving party,
that party is not entitled to build its case on "gossamer threads of whimsy,
speculation, and conjecture." Id. We review orders granting summary judgment
de novo. Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588,
591 (1992).
In order to prevail on his defamation claim, Miller must prove, inter
alia, that the statement published in Jones' campaign flier was a false
statement of fact, as opposed to a statement of opinion. Wellman v. Fox,
108 Nev. 83, 87, 825 P.2d 208, 210 (1992). Ordinarily, the question of
whether a statement is defamatory is one of law. However, where a statement
is susceptible of multiple interpretations, one of which is defamatory,
the resolution of this ambiguity is left to the finder of fact. Posadas,
109 Nev. at 453, 851 P.2d at 442. Furthermore, it is left to the factfinder
to determine whether the statement, if defamatory, is false. Id.
In this case, Jones argues that because the statement at issue was published
in the context of a political campaign, it would have been read as a statement
of opinion. The district court determined that "[t]he written material
concerning the Plaintiff and published by the Defendant consists, in part,
of statements of fact that are true and, in part, the expression of opinion,
or political hyperbole, published in the course of a campaign for public
office." However, we conclude that both the text of the statement and the
context of the flier in which it appeared indicate that as a matter of
law, the statement was intended as a factual assertion. We
further conclude that genuine issues of material fact remain as to whether
the statement was false. The allegedly
defamatory statement purported to summarize the contents of the newspaper
report by stating that "[a] police detective accuses Miller of giving false
information in a report concerning cocaine found in a car Miller was driving."
This statement contains no language which would alert the reader that the
statement is merely one of opinion. Furthermore, the truth or falsity of
the matter asserted by this statement is, at least in principle,objectively
verifiable; the statement that "cocaine was found in a car Miller was driving"
is either true or not true. In addition, the statement was contained in
a flier which juxtaposed newspaper articles about Miller with statements
summarizing the contents of each article. The effect
of the reproductions of newspaper reports in the flier is to lend the contents
of the flier an air of accuracy; the reports seem designed to indicate
to the reader that the points made by the flier are not merely Jones' opinion,
they are independently reported and verified facts. Therefore,
we conclude that as a matter of law, the statement at issue here is an
unequivocally factual assertion which, if untrue, is defamatory.3
The United States Supreme Court has held that an allegedly defamatory
statement "is not considered false unless it 'would have a different effect
on the mind of the reader from that which the pleaded truth would have
produced.'" Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1990)
(quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)).
In Posadas, the plaintiff was a police officer under investigation for
improperly attempting to influence a traffic court proceeding. During the
course of this investigation, the plaintiff, while under oath, admitted
that he had lied earlier in the investigation. An officer of the defendant
municipality issued a press release stating that the plaintiff "admitted
he lied under oath." We agreed that this statement could be construed to
mean either that the plaintiff perjured himself or that the plaintiff had
admitted under oath to lying on a prior occasion. Because one of these
constructions was defamatory and one was not, we held that the jury should
determine whether the statement was defamatory. Posadas, 109 Nev. at 451-53,
851 P.2d at 440-42. We conclude that Posadas is directly analogous to the
present case. The phrase "cocaine found in a car Miller was driving" lends
itself most naturally to the construction that Miller either drove the
car as a matter of course during the relevant time frame, or was driving
it at or near the time when cocaine was found in the car. There is no
evidence in the record which suggests that this was the case. Miller
stated in his deposition that he had driven the car a short distance prior
to purchase. Although the statement at issue could be interpreted as stating
that cocaine was found in a car which Miller had once driven, this is a
strained reading; the verb "was driving" signifies something quite different
than the verb "had driven." Therefore, we conclude that this statement
was at least susceptible to a construction which made untrue factual assertions.
At oral argument, Jones asserted that the flier could accurately have
stated: "cocaine found in a car Miller owned," or "cocaine found in a car
Miller had driven." Miller argues that these phrases would have had the
same effect on a reader as the statement which was printed; Miller would
have been subject to the same degree of ridicule or obloquy in either case.
Therefore, Jones concludes, the flier was not defamatory under Masson.
We conclude that Jones reads Masson too broadly. Jones seems to assume
that the above-quoted language from Masson states a test for determining
whether a statement is defamatory. However, the court clearly states that
this is a test which applies only to the determination of whether a statement
is false. Thus, Jones' unsupported assertion that the statement as published
would have subjected Miller to no more ridicule than the truth would have
is simply not relevant. The
statement at issue seems likely to have created in the mind of the reader
a factual scenario at odds with the truth. Therefore,
we conclude that under Posadas as well as Masson, genuine issues of material
fact exist as to whether the statement at issue here was defamatory.
Miller
next asserts that a genuine issue of fact exists as to whether Jones
acted with actual malice in publishing the flier at issue. Jones
counters that the district court correctly determined that Miller "failed
to present any evidence that the written material concerning the plaintiff
was published by the defendant with actual malice." We
conclude that Miller's argument has merit.
It is well settled that the First Amendment to
the United States Constitution prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless
he proves that the statement was made with "actual malice"--that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not.
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1963). In Curtis
Publishing v. Butts, 388 U.S. 130 (1967), the Supreme Court extended these
constitutional limitations to cases involving plaintiffs who are "public
figures." Because Miller was an elected official
in Las Vegas and a candidate in the Las Vegas mayoral race, he was a public
figure at the relevant time and, therefore, must show that Jones published
the flier at issue with either knowledge of its falsity or reckless disregard
as to whether the statement was true or not.
4 We have previously held that a reckless disregard for the truth
may be found where "the defendant entertained serious doubts as to the
truth of the statement, but published it anyway." Posadas, 109 Nev. at
454, 851 P.2d at 443. Recklessness may be established through evidence
of negligence, motive, and intent. Id. In Posadas, we held that the totality
of the circumstances provided sufficient evidence for a jury to find actual
malice. We relied on the fact that the defendant knew or should have known
that the allegedly defamatory statement was capable of a misleading and
false construction and on evidence of animosity which the defendant
had demonstrated toward the plaintiff.
In the present case, we conclude that the evidence
Miller presented to the district court is sufficient to support a jury
finding that Jones acted with actual malice in publishing the flier.
No mention was made in the article of Miller ever having driven the automobile
in question; the article stated only that Miller had purchased the car
for a family member. Therefore, Jones had no reason to believe that Miller
was driving the car at the time the alleged cocaine was found. Furthermore,
the
reproduction of the article contained in the flier was cropped in such
a manner as to delete certain information favorable to Miller.We
conclude that based upon this evidence, a jury could reasonably find that
Jones acted with a reckless disregard for the truth in publishing
the statement at issue.
Accordingly,
we
conclude that the district court erred in granting Jones' motion for summary
judgment on the defamation cause of action.
Miller next argues that the district court erred by granting summary
judgment in Jones' favor on Miller's IIED claim. Jones argues that Miller
failed to present any evidence showing that he suffered severe or extreme
emotional distress. We conclude that Miller's argument is meritless.
In order to prevail in an IIED claim, a plaintiff must show (1) extreme
and outrageous conduct on the part of the defendant; (2) intent to cause
emotional distress or reckless disregard for causing emotional distress;
(3) that the plaintiff actually suffered extreme or severe emotional distress;
and (4) causation. Posadas, 109 Nev. at 456, 851 P.2d at 444 (citing Star
v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981)).
After a thorough review of the record and the briefs, we conclude that
Miller fails to point to any evidence which demonstrates that he suffered
from severe or extreme emotional distress. Although Miller stated in his
deposition that he was depressed for some time, he did not seek any medical
or psychiatric assistance. He presented no objectively verifiable indicia
of the severity of his emotional distress. We conclude that Miller's brief
depositional testimony regarding depression was insufficient to raise a
genuine issue of material fact as to whether he suffered severe emotional
distress. Accordingly, we conclude that the district court did not err
in granting summary judgment on the IIED claim.
Miller next argues that the district court abused its discretion
in awarding attorney's fees to Jones. We agree.
NRS 18.010(2)(a) provides that the district court may award attorney's
fees to a prevailing party when "the court finds that the claim . . . was
brought without reasonable ground or to harass the prevailing party." It
is well settled that we will not set aside a trial court's decision to
award attorney's fees absent an abuse of the district court's discretion.
Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40
(1994). In the present case, the district court issued supplemental
findings of fact which stated only that Miller's complaint "was brought
without reasonable grounds." We conclude that this finding is not supported
by the record. For the reasons set forth above, Miller's complaint
and the evidence in the case are sufficient to survive Jones' motion for
summary judgment. Miller's complaint stated a prima facie defamation
case. The key factual allegations of the complaint are supported by the
record. Jones presented no evidence which suggests that Miller filed his
complaint for an improper purpose. Therefore, we conclude that Miller
had reasonable grounds to bring the complaint. Accordingly,
we
conclude that the district court abused its discretion by awarding attorney's
fees to Jones. For these reasons, we reverse the order of the district
court granting summary judgment in Jones' favor with respect to the defamation
claim, affirm with respect to the IIED claim, vacate the district court's
award of attorney's fees, and remand the case to the district court for
further proceedings consistent with this opinion.5 Rose, J., and Wagner,
D.J., concur. **********FOOTNOTES********** 1 It was never established
whether the substance found in the car was cocaine. Miller testified
in his deposition that he told the police that the substance was a narcotic
because he suspected that the previous owner of the car had a drug problem.
2 It is not clear when the purported cocaine was discovered in relation
to the time Miller test drove the Porsche. However, Miller did testify
that his daughter sold the automobile three to four months after purchasing
it. Therefore, he drove the car within a few months or weeks of the discovery
of the possible narcotics. 3 Our dissenting colleague seems to argue
that because the campaign flyer included a reproduction of the newspaper
article, which was admittedly not defamatory, the flyer as a whole was
not defamatory. However, for the reasons set forth herein, we conclude
that questions of fact remain as to whether the statement was defamatory.
4 Justice Springer's dissent argues that the circumstances of this case,
including Jones' offer to make a public apology, demonstrate that Jones
did not act with malice. This argument seems to substitute a broad, general
notion of malice for the concept of "actual malice," as defined in New
York Times v. Sullivan. We conclude that Jones'
offer to make an apology is simply one factor in the determination of whether
the statement was published "with knowledge that it was false or with reckless
disregard of whether it was false or not." New York Times
v. Sullivan, 367 U.S. at 279-80.
5 The Honorable Richard Wagner, Judge of the Sixth Judicial District
Court, was designated by the Governor to sit in place of the Honorable
A. William Maupin, Justice. Nev. Const. art. 6, § 4. *****************************
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