| 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 Millerwas
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
factualassertion
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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