Lubin v. Kunin

• Decision Date: 16 February 2001
• Docket Number: No. 32621.,32621.
• Parties: Tamar LUBIN, Appellant, v. Israel L. KUNIN, Diana L. Moss, Jay Moss, Jeff Stromberg, Dr. Neville Pokroy, Esther Pokroy, and Ronald Winer, Jointly and Severally, Respondents.
• Court: Nevada Supreme Court

17 P.3d 422

117 Nev. 107

Tamar LUBIN, Appellant, v. Israel L. KUNIN, Diana L. Moss, Jay Moss, Jeff Stromberg, Dr. Neville Pokroy, Esther Pokroy, and Ronald Winer, Jointly and Severally, Respondents.

No. 32621.

Supreme Court of Nevada.

February 16, 2001.

Killeen & Associates, P.C., and Layne F. Barney, Las Vegas, for Appellant.

Law Office of V. Andrew Cass and Michael R. Hall, Las Vegas, for Respondent Jeff Stromberg.

Lionel Sawyer & Collins and Mark A. Solomon and Kevin D. Doty, Las Vegas, for Respondents.

Before MAUPIN, C.J., ROSE and BECKER, JJ.

OPINION

PER CURIAM:

SUMMARY

This case presents a defamation issue. A group of concerned parents, whose children attended a private school, allegedly defamed the school's director by distributing a handout that republished excerpts from a judicial complaint and commented upon the validity of the lawsuit. The district court dismissed the director's defamation action pursuant to NRCP 12(b)(5), finding that the handout was not defamatory as a matter of law. The director filed this timely appeal arguing that the statements in question were defamatory. We agree that the statements could be construed as defamatory and therefore conclude that the district court erred in dismissing this matter. Accordingly, we reverse the order of the district court and remand this matter for further proceedings.

STATEMENT OF THE FACTS

Appellant Dr. Tamar Lubin was the director of the Hebrew Academy, a private school in Las Vegas, Nevada. On February 27, 1998, Lubin filed a complaint for defamation and libel against Israel L. Kunin, Diana L. Moss, Jay Moss, Jeff Stromberg, Dr. Neville Pokroy, Esther Pokroy, and Ronald Winer, alleged members of a group called the "Coalition of Parents" (hereinafter collectively "Parents"). According to the Parents' handouts, the group was comprised of "parents, teachers and citizens concerned with the education, safety and care of [the] children in the Hebrew Academy." The Parents believed that Lubin's mismanagement of the school contributed to the following: (1) high turnover of teachers; (2) failure to institute promised foreign language and fine arts classes; (3) an inadequate library system; (4) a less-than-nurturing environment; and (5) denial of parental input in school matters.

In the spring of 1996, the Parents allegedly defamed Lubin when they distributed various letters and handouts to parents, local newspapers, and public officials regarding Lubin and the problems at the Hebrew Academy. The handout at issue in this appeal described an April 1996 lawsuit filed against Lubin, the Hebrew Academy Board of Trustees, and the Northwest Association of Schools and Colleges, which alleged child abuse, assault, battery, negligence, and other causes of action. The handout included the following paragraph:

This is not a frivolous law suit there is an abundance of evidence as well as eye-witnesses. These parents never envisioned that anything of this nature could or would happen to their child. IT DID! It is time to protect our children.

(Emphasis in original.) Notably, the left-hand corner of the handout indicated that the handout was from Rachael Schwartz to Holly Buchanan. According to the Parents' motion to dismiss, Holly Buchanan is an employee of the Nevada Department of Education who was investigating the Hebrew Academy. Apparently, the handout was distributed prior to a June 1996 meeting of the Nevada Department of Education regarding the licensure and accreditation of the Hebrew Academy.

Lubin filed an action against the Parents alleging that the Parents' statements were false and defamatory and that, as a result, she was damaged in her profession. In response to Lubin's complaint alleging libel, the Parents filed a motion to dismiss under NRCP 12(b)(5), arguing that Lubin's complaint failed to state a claim upon which relief could be granted and that the statements made were merely nonactionable opinion or were protected by various privileges.

Following a hearing, the district court granted the Parents' motion to dismiss without prejudice, finding that "Lubin has failed to state a claim upon which relief can be granted because she failed to allege a false and defamatory statement of fact by the Parents concerning Lubin." Lubin then filed this timely appeal.

DISCUSSION

Lubin contends that the district court erred in granting the Parents' motion to dismiss. Particularly, Lubin argues that her complaint alleged, inter alia, that the Parents had published a false and defamatory statement concerning her, and thus, because the district court should have accepted her allegations as true for purposes of the motion to dismiss, dismissal under NRCP 12(b)(5) was improper.¹ After reviewing this matter under the rigorous standard of review for dismissal under NRCP 12(b)(5), we conclude that the district court erred in granting the Parents' motion to dismiss because the statements in question were capable of a defamatory construction.

To create liability for defamation there must be:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm, or the existence of special harm caused by the publication.

PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 619, 895 P.2d 1269, 1272 (1995) (quoting the Restatement (Second) of Torts: Elements Stated § 558 (1977)), modified on other grounds by Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 650, 940 P.2d 134, 138 (1997)

.

Because the district court granted the Parents' motion to dismiss upon finding that Lubin failed to allege a false and defamatory statement of fact, we need only analyze the first element of defamation.

I. A false and defamatory statement

"A statement is defamatory when it would tend to lower the subject in the estimation of the community, excite derogatory opinions about the subject, and hold the subject up to contempt." K-Mart Corporation v. Washington, 109 Nev. 1180, 1191, 866 P.2d 274, 281-82 (1993) (citing Las Vegas Sun v. Franklin, 74 Nev. 282, 287, 329 P.2d 867, 869 (1958)).² In reviewing an allegedly defamatory statement, "[t]he words must be reviewed in their entirety and in context to determine whether they are susceptible of a defamatory meaning." Chowdhry v. NLVH, Inc., 109 Nev. 478, 484, 851 P.2d 459, 463 (1993). Whether a statement is defamatory is generally a question of law; however, where a statement is "`susceptible of different constructions, one of which is defamatory, resolution of the ambiguity is a question of fact for the jury.'" Posadas v. City of Reno, 109 Nev. 448, 453, 851 P.2d 438, 442 (1993) (quoting Branda v. Sanford, 97 Nev. 643, 646, 637 P.2d 1223, 1225-26 (1981)).

In Posadas, we held that the defamatory nature of a statement that a police officer "lied under oath" was a question for the trier of fact because the statement was susceptible of different constructions, one of which was true—that the officer admitted under oath that he had lied to police officers—and another of which was defamatory—that when the officer lied he committed perjury, as he was under oath. 109 Nev. at 452-53, 851 P.2d at 442.

Like the statement in Posadas, the Parents' inclusion of the phrase "IT DID!" in the handout is susceptible of two interpretations: (1) that the child abuse did happen; or (2) that the lawsuit alleging child abuse was filed. Regarding the first possible interpretation, we conclude that it is defamatory because such a statement would clearly lower Lubin in the estimation of the community and excite derogatory and contemptuous opinions against her. This is especially true considering the fact that Lubin is a professional in the field of child education. Regarding the latter interpretation, the district court correctly found that merely publishing the fact that a lawsuit alleging child abuse was filed would not be actionable. We conclude, however, that whether the "IT DID!" language is defamatory is ultimately an issue for the trier of fact because this language is susceptible of two different interpretations, one of which is capable of defamatory construction.

II. Statement of fact or opinion

The Parents next argue that the statement was an evaluative opinion, rather than a defamatory statement of fact, because it merely expressed the Parents' opinion that the underlying lawsuit was not frivolous.

Statements of opinion are protected speech under the First Amendment of the United States Constitution and are not actionable at law. See Nevada Ind. Broadcasting, 99 Nev. at 410, 664 P.2d at 341-42. The test for whether a statement constitutes fact or opinion is: "whether a reasonable person would be likely to understand the remark as an expression of the source's opinion or as a statement of existing fact." Id. at 410, 664 P.2d at 342. So long as it is based on true and public information, an evaluative opinion conveys "the publisher's judgment as to the quality of another's behavior and, as such, it is not a statement of fact." Berosini, 111 Nev. at 624, 895 P.2d at 1275.

In certain contexts, however, a statement may be ambiguous or a "mixed type," which is "an opinion, which gives rise to the inference that the source has based the opinion on underlying, undisclosed defamatory facts." Nevada Ind. Broadcasting, 99 Nev. at 411, 664 P.2d at 342. In Nevada Independent Broadcasting, we offered an example illustrated by the Restatement (Second) of Torts: Expressions of Opinion Section 566 comment b (1977): "it may be actionable to state an opinion that plaintiff is a thief, if the statement is made in such a way as to imply the existence of information which would prove plaintiff to be a thief. In such situations, where a statement is ambiguous, the question of whether it is a fact or evaluative opinion is left to the jury." Id. at 411, 664 P.2d at 342.

Here, the...