MacDonald v. Jacobs

• Decision Date: 15 January 2019
• Docket Number: No. 2017-0682,2017-0682
• Citation: 171 N.H. 668,201 A.3d 1253
• Parties: Lorraine MACDONALD & a. v. Lisa JACOBS
• Court: New Hampshire Supreme Court

171 N.H. 668

201 A.3d 1253

Lorraine MACDONALD & a.

v.Lisa JACOBS

No. 2017-0682

Supreme Court of New Hampshire.

Argued: October 11, 2018

Opinion Issued: January 15, 2019

Law Offices of Joseph S. Hoppock, P.L.L.C., of Keene (Joseph S. Hoppock on the brief and orally), for the plaintiffs.

Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd on the brief and orally), for the defendant.

BASSETT, J.

The defendant, Lisa Jacobs, appeals both a jury verdict in the Superior Court(Ruoff, J.) for the plaintiffs, Lorraine and Peter MacDonald, on their defamation claim, and a permanent injunction issued by the trial court.We affirm.

The record supports the following facts.The defendant seasonally resides in Fitzwilliam.According to the plaintiffs, in 2012they purchased a vacation home that abuts or is near the defendant's family's property.Thereafter, the defendant began letter-writing campaigns in which she falsely accused the plaintiffs of, among other things, a variety of illegal activities.In 2016, the plaintiffs sued the defendant for defamation.Following a trial, the jury found that the defendant's statements were defamatory and that they were made with malice, thereby warranting the award of special damages.In addition, the trial court, finding the defendant's statements "vast and disturbing," issued a permanent injunction prohibiting the defendant from, interalia, going within a five-mile radius of the plaintiffs' home in Fitzwilliam and from entering the plaintiffs' hometown in Sterling, Massachusetts.

On appeal, the defendant contends that the trial court erred by: (1) denying a mistrial when the plaintiffs' counsel made a "golden rule" argument to the jury; (2) denying her motion for summary judgment because New Hampshire requires proof of "actual damages" for defamation; (3) applying an incorrect standard to the plaintiffs' claim for enhanced compensatory damages; (4) determining that the defendant's speech was not of "public concern"; (5) admitting prejudicial other bad act evidence; and (6)"ordering [her] physical removal ... from her family's vacation property" in Fitzwilliam and "banishing" her from Sterling.We address these issues in turn.

I. Golden RuleArgument

The defendant first argues that the trial court erred in denying her motion for a mistrial when the plaintiffs' counsel made a "golden rule" argument to the jury.During closing argument the plaintiffs' counsel stated:

You heard about their anxiety, that when a car comes down the road.Can you imagine that?You know, you're sitting in this rural area on a lake.It's idyllic.It's, you know, your perfect summer home.And you're on vacation.You want to relax.You don't need that kind of nonsense.

The defendant objected, and the trial court overruled her objection.The plaintiffs' counsel then continued, "You're in this environment where you want to get away from it all.And you have ... the neighbor from hell who wants to drive you away.What is that worth?What -- how do you value what she has done to these people?"

On appeal, the defendant argues that this was a "text-book golden rule argument."Although the defendant concedes that "New Hampshire has never ruled that an impermissible closing argument ... warrants automatic mistrial,"she asserts that given the lack of a curative instruction following counsel's objection, "the only possible legal result can be a declaration of a mistrial."(Quotation omitted.)Absent an unsustainable exercise of discretion, we will affirm a trial court's decision on whether a mistrial or other remedial action was necessary.State v. Kuchman, 168 N.H. 779, 787, 138 A.3d 1264(2016);seeState v. Lambert, 147 N.H. 295, 296, 787 A.2d 175(2001)(explaining that to show that the trial court's decision is not sustainable, "the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case"(quotation omitted)).

"A ‘golden rule’ argument is made when counsel urges jurors to put themselves in a particular party's place, or into a particular party's shoes."Walton v. City of Manchester, 140 N.H. 403, 406, 666 A.2d 978(1995)(citation omitted);seeCaudle v. District of Columbia, 707 F.3d 354, 359(D.C. Cir.2013)(noting that it is impermissible, for example, "to ask jurors how much the loss of the use of their legs would mean to them," to tell jurors "do unto others as you would have them do unto you," or to tell jurors, "in a reverse golden rule argument, ‘I don't want to ask you to place yourself in the plaintiff's position’ "(citations and brackets omitted))."Courts generally condemn these arguments because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence."Walton, 140 N.H. at 406, 666 A.2d 978(quotation omitted).

However, we need not address the propriety of "golden rule" arguments because we disagree with the defendant's contention that the plaintiffs' counsel asked the jurors to put themselves in the shoes of the plaintiffs or to base their verdict on something other than the evidence at trial.Id.Rather, the plaintiffs' counsel asked the jurors to consider, based on the trial testimony, the effect that the defendant's actions had on the plaintiffs, and to take that into account when considering damages.Lorraine testified that she fears for her life and for the safety of her family, that she has "become anxious about even being in [her] yard," that she"physically gets knots in [her] stomach and [her] heart races" when she goes home "wondering who is going to be waiting in [her] driveway," and that she is "not comfortable anymore being alone at [her] house in Fitzwilliam."In addition, she testified that she is worried "about where [the defendant is] taking these letter campaigns next and how they're going to impact [her] life."Peter testified that the defamatory remarks made by the defendant have resulted in him having "an I'm-always-looking-over-my-shoulder feeling," and a feeling of "what's-going-to-happen-next."In addition, he testified that he"always [has] a knot in [his] stomach," that he does not sleep well at night, and that when he"hear[s] a car coming down the road in Fitzwilliam, we jump out of our chairs."

We agree with the plaintiffs that the contested argument was not an "appeal to passion, prejudice or sympathies," but was, rather, a "fair comment on the evidence."(Quotation omitted.)Notably, the trial court correctly instructed the jury prior to its deliberations that, "[i]n determining the amount of damages to allow the Plaintiffs, you may draw such inferences as are justified by your common experiences and observations of human events, from the evidence of the nature of the injuries and the results thereof."Because the closing remarks made by the plaintiffs' counsel were not "calculated ... to encourage the jury to make a decision based on personal interest and bias rather than reason and the presented evidence,"Walton, 140 N.H. at 408, 666 A.2d 978, we conclude that the trial court's denial of the defendant's motion for a mistrial was not an unsustainable exercise of discretion.

II.Defamation

Next, we turn to the defendant's contention that the trial court erred in several respects with regard to the plaintiffs' defamation claim.The defendant challenges the trial court's determinations that: (1) a claim of defamation perse does not require proof of "actual damages"; (2) enhanced damages in connection with an action for defamation perse does not require proof of "actual malice"; and (3) her speech did not constitute matters of "public concern."

A.Actual Damages

Prior to trial, the defendant moved for summary judgment, arguing that the plaintiffs could not "establish damages, either general or specific," and that the defamation claim should be dismissed "due to lack of evidence of proof of actual harm to reputation as a result of [her] communications."She acknowledged that "[b]ecause in an action for perse defamation, a plaintiff may recover for both general damages and special damages relating to the tort, the plaintiff is not required to plead damages."Nonetheless, the defendant contended that the plaintiffs could not identify any individual "who took any of [her] utterances in a defamatory sense, e.g. believed the allegations and formed a negative opinion of the [plaintiffs] on that basis."The trial court denied the motion, noting that the plaintiffs"are not required to offer proof that anyone ... believed what [the defendant] was saying (i.e. actual harm)," and that "the focus of the tort in this defamation per se case is on the conveyance of the false statement, not the effect on the listener."On appeal, the defendant argues that there was not "a scintilla of evidence that any individual took any of [her] utterances in a defamatory sense."Therefore, she contends, "because the [plaintiffs] failed to establish actual damages of reputational harm,"the trial court erred in denying her motion for summary judgment and when it ruled on motions made at various junctures during and after trial.We are not persuaded.

It is well established in New Hampshire that no proof of specific damages is required "[w]hen ... the jury could find that the defamatory publication charged the plaintiff with a crime or with activities which would tend to injure him in his trade or business, commonly called libel perse."Chagnon v. Union Leader Co., 103 N.H. 426, 441, 174 A.2d 825(1961);seeRestatement (Second) of Torts§ 570(1977)(stating that "[o]ne who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other ... a criminal offense ..., or ... matter incompatible with his business, trade, profession, or office");seealsoLassonde v. Stanton, 157 N.H. 582, 592-93, 956 A.2d 332(2008...