M & R Inv. Co., Inc. v. Mandarino
| Decision Date | 31 December 1987 |
| Docket Number | No. 15652,15652 |
| Citation | 748 P.2d 488,103 Nev. 711 |
| Parties | M & R INVESTMENT COMPANY, INC., Charles Cooper, J. Dilly, Alvin Englett, Appellants and Cross-Respondents, v. Daniel Mark MANDARINO, Respondent and Cross-Appellant. |
| Court | Nevada Supreme Court |
Thorndahl, Backus & Maupin, Las Vegas, for appellant and cross-respondent M & R Inv. Co., Inc.
Johnson & Rosenberger, Las Vegas, for appellants and cross-respondents Charles Cooper, J. Dilly, Alvin Englett.
E. Leslie Combs, Jr., Las Vegas, for respondent and cross-appellant, Mandarino.
At 9:00 p.m., on September 15, 1982, respondent and cross-appellant Daniel Mark Mandarino, an admitted "card counter," 1 entered the Oasis Casino of the Dunes Hotel and began playing blackjack. Mandarino wore dark glasses and a false mustache, and he had slicked back his hair in an effort to conceal his true identity. Because Mandarino was employed by another casino, he was aware of the fact that casinos ban card counters from their property and distribute the photographs of known card counters to other gaming establishments.
A number of casino employees became suspicious of Mandarino after they observed his irregular betting, his nervous demeanor and his obvious disguise. They suspected that he was either counting cards or cheating. When Mandarino saw that he was being watched, he left the table to cash in his winnings and to avoid Mandarino subsequently filed suit against appellant and cross-respondent M & R Investment Company, Inc. (M & R), which owns the Dunes Hotel. The suit also named Dunes Hotel security guards Charles Cooper, J. Dilly, and Alvin Englett as defendants. In his complaint, Mandarino alleged that, when employees of M & R discovered that he was a card counter, they called him a "thief" and a "trespasser," pursued him through the casino and into the street, tackled him in the entryway to another casino, transported him to the Dunes Hotel security office, confiscated $2,650 in chips that he had won playing blackjack, photographed him, beat him up, had him arrested, and had his photograph distributed to other casinos. The complaint asserted twelve claims for relief, including claims for conversion, invasion of privacy, defamation, malicious prosecution, assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, and outrage.
the risk of being identified and banned from the casino. [103 Nev. 714] When casino security guards approached him and asked for identification at the cashier's cage, Mandarino gave a false name, falsely stated that his wife had his identification and indicated that she was at a slot machine near the front door. As the guards and Mandarino approached the door, Mandarino bolted and ran. A guard chased Mandarino across Las Vegas Boulevard and into the entryway of the MGM Grand Hotel, where the guard tackled Mandarino, handcuffed him and returned him to a security office at the Dunes.
Prior to trial, the district court granted Mandarino's motion for partial summary judgment on his conversion claim and ordered M & R to pay Mandarino $2,650. M & R did so. Following the presentation of his case-in-chief, the district court dismissed Mandarino's claims for conversion and invasion of privacy pursuant to NRCP 41(b). The defamation claim against Cooper, Dilly, and Englett was also dismissed. Subsequently, the district court granted appellants' motion for a directed verdict pursuant to NRCP 50(a) and dismissed Mandarino's claim for malicious prosecution. The remaining claims for assault and battery, outrage and intentional infliction of emotional distress, false imprisonment and false arrest, and defamation (against M & R) were submitted to the jury.
The jury returned a verdict against M & R on Mandarino's claim for defamation. The jury, however, found in favor of the defendants on the remaining claims. Thereafter, M & R, as well as Mandarino, filed timely motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. 2
The district court denied M & R's motion for judgment notwithstanding the verdict (JNOV) respecting the claim for defamation, but granted M & R's alternative motion for new trial on the defamation issue. Similarly, the district court denied Mandarino's motion for JNOV, but granted his motion for a new trial on the claims alleging assault and battery, false arrest and false imprisonment, and intentional infliction of emotional distress and outrage. This appeal followed.
On appeal, M & R asserts that the district court erred in denying its motion for JNOV. All the appellants assert that the district court erred in granting Mandarino's motion for new trial. Mandarino cross-appeals and maintains that the district court erred in dismissing his claims for conversion and invasion of privacy pursuant to NRCP 41(b). Further, Mandarino challenges the district court's order directing a verdict in favor of appellants on his claim for malicious prosecution.
M & R contends that, because the record is devoid of evidence that M & R published a defamatory statement about Mandarino, the district court erred in denying Publication is generally proven by direct evidence of the communication of the defamatory statement to a third person, that is, by the testimony of a third person that he heard the defamatory statement. Publication may also be proven, however, by circumstantial evidence of the communication of the defamatory statement to a third person, that is, by evidence that the defamatory statement was comprehensible to and uttered in the presence and hearing of a third person. Lombardi v. Flaming Fountain, Inc., 327 So.2d 39 (Fla.App.1976); Duckworth v. First National Bank, 254 S.C. 563, 176 S.E.2d 297 (1970); Gaudette v. Carter, 100 R.I. 259, 214 A.2d 197 (1965).
its motion for JNOV on Mandarino's defamation claim for relief. We agree. A defamatory statement is actionable only if it has been published. Jones v. Golden Spike Corp., 97 Nev. 24, 623 P.2d 970 (1981); Prosser And Keeton On Torts § 113 (5th Ed. 1984). "Publication ... is the communication of the defamatory matter to some third person...." Jones, 97 Nev. at 26, 623 P.2d at 971 quoting Prins v. Holland-North American Mortgage Co., 107 Wash. 206, 181 P. 680 (1919). The communication of a defamatory statement between agents or employees of a corporation, however, is not publication. Jones, 97 Nev. at 26, 623 P.2d at 971
We must allow Mandarino "the benefit of every reasonable inference in support of the verdict," in reviewing the district court's denial of M & R's motion for JNOV. Hernandez v. City of Salt Lake, 100 Nev. 504, 686 P.2d 251 (1984). Nonetheless, the record before us is devoid of any evidence that M & R published a defamatory statement about Mandarino. The record indicates that, at 9:00 a.m. on September 15, 1982, on the floor of the Oasis Casino, Cooper asked Mandarino for identification, Mandarino bolted, and Roger Mennie, another Dunes Hotel employee said to Cooper, "[C]atch him, he's a thief and [he is] trespassing also." The communication of the allegedly defamatory statement between Mennie and Cooper, both employees of M & R, is not publication. Jones, supra. The record contains no direct or circumstantial evidence of the communication of the defamatory statement to a third person. Evidence that one employee of M & R said something defamatory about Mandarino to another employee of the corporation, without more, that is, without evidence regarding the tone in which the defamatory statement was made or the proximity of third parties, does not establish that the defamatory statement was published. Id. Because the record is devoid of any evidence of the requisite element of publication, Mandarino, as a matter of law, failed to establish a sufficient claim for relief. Jones, supra. The district court, therefore, erred in denying M & R's motion for JNOV, and in granting M & R's motion for a new trial on Mandarino's defamation claim for relief. Accordingly, on remand, the district court shall vacate its order granting a new trial and enter a judgment notwithstanding the verdict in favor of M & R on the defamation claim.
ASSAULT AND BATTERY, FALSE ARREST AND FALSE IMPRISONMENT,
AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND OUTRAGE
Appellants argue that the district court erred in granting Mandarino's motion for a new trial on the claims for assault and battery, false arrest and false imprisonment, and intentional infliction of emotional distress and outrage. We agree. The district court may grant a new trial if it finds that the jury has shown manifest disregard for the instructions of the court. NRCP 59(a)(5). "In determining the propriety of the granting of a new trial under NRCP 59(a)(5), the question is whether we are able to declare that, had the jurors properly applied the instructions of the court, it would have been impossible for them to reach the verdict which they reached." Weaver Brothers, Ltd. v. Misskelley Our review of the record reveals that appellants presented substantial evidence under which the jury, in properly applying the instructions of the court, could have reasonably found in appellants' favor. For example, in light of the testimony presented, the jury could have properly found that appellants had reasonable cause to believe that Mandarino had committed a crime, and that appellants used reasonable force to detain him until the police arrived. Accordingly, we conclude that the district court erred in granting Mandarino's motion for a new trial respecting these claims, and we direct the district court to reinstate the jury's verdict in favor of appellants.
[103 Nev. 717] 98 Nev. 232, 234, 645 P.2d 438, 439 (1982); see also Jaramillo v. Blackstone, 101 Nev. 316, 704 P.2d 1084 (1985)
CONVERSION
On August 11, 1983, following a hearing, the district court entered a written order granting Mandarino's motion for...
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