McIntyre v. Jones

Decision Date04 September 2008
Docket NumberNo. 07CA0226.,07CA0226.
Citation194 P.3d 519
PartiesDebbie J. McINTYRE, d/b/a A Personal Touch Bookkeeping Services, Plaintiff-Appellee, v. George D. JONES, Defendant-Appellant.
CourtColorado Court of Appeals

Debbie J. McIntyre, Pro Se.

Dufford, Waldeck, Milburn & Krohn, LLP, Nathan A. Keever, Wm. S. DeFord, Grand Junction, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.

Defendant, George D. Jones, appeals the judgment entered against him following a trial to the court on plaintiff Debbie J. McIntyre's claim for defamation. We affirm.

I. Background

At all relevant times, McIntyre and Jones were residents of a twenty-five-unit condominium complex in the Town of Mountain Village, Colorado. In 1996, the residents formed North Star B Condominium Association, Inc. (the Association), a nonprofit corporation, pursuant to the Colorado Common Interest Ownership Act, sections 38-33.3-101 to -319, C.R.S.2007, to regulate their rights and obligations vis-à-vis each other as unit owners.

In 2000, McIntyre was the manager of the Association, and was paid $200 per month to provide managerial services. She was also the bookkeeper for the Association, and was paid an additional $200 per month to provide bookkeeping services. At that time, the Association was governed by a three-member board of directors, consisting of Jones, Donn Wagner, and Heather George.

Sometime in mid to late 2000, Jones (and perhaps Wagner) became concerned whether McIntyre was adequately and competently fulfilling her responsibilities as manager and bookkeeper. The board members requested that McIntyre provide them with the financial records she kept on behalf of the Association; however, McIntyre, erroneously believing she could be supervised only by the Association president or treasurer, refused to provide the requested documents to the board. McIntyre similarly refused a second request for the documents made by the board.

In February 2001, Jones and Wagner met and discussed matters pertaining to McIntyre's performance. (George was not present at the meeting.) On February 27, 2001, Wagner sent McIntyre a letter informing her that "[e]ffective immediately we will no longer require your services as manager." The letter also demanded that McIntyre turn over to Wagner all "corporate records." The letter did not say why McIntyre was being terminated as manager, nor did it say anything about McIntyre's status as the Association's bookkeeper.

On March 14, 2001, McIntyre was given a letter of that date signed by Jones and Wagner (but not George) purporting to terminate her as "Accountant," and once again demanding that she turn over "all books and records of the Association" by the following day. However, there is conflicting evidence in the record as to whether the board actually terminated McIntyre as bookkeeper. For example, shortly after the date of the letter, Wagner instructed McIntyre to pay Association bills, a bookkeeping function, and George testified that the board did not vote to terminate McIntyre as bookkeeper. The trial court did not make a finding on that question. For our purposes, it is sufficient to note that the March 14, 2001 letter refers only to McIntyre's "unresponsiveness and insubordination" in refusing to turn over documents as a reason for purporting to terminate her as "Accountant."

McIntyre turned over records to Wagner on March 15 and 24, 2001.

On April 1, 2001, the annual meeting of the Association's members was held, at which the members elected George, Steve Schneider, and Tami Huntsman as board members; Jones and Wagner did not thereafter serve on the board. The new board met that same day, and unanimously voted to retain McIntyre as bookkeeper, so long as she became "bonded" by May 1, 2001. In addition, the board voted to require two signatures on all Association checks.

In a letter dated July 3, 2001, addressed to Huntsman, Jones requested that the board not use McIntyre as the Association's "accountant" "pending a full audit." Therein, Jones complained about a variety of matters, including the following:

• the Association had been required to pay $1,460.87 in bank service fees;

• McIntyre had not provided the board with an accounting of spending and reserves, as the board had been requesting for several months;

• certain "management" expenses for which McIntyre had sought reimbursement from the Association were "unreasonable," including amounts for water removal, lawn care, and work "expected of a manager" totaling $207.50 (which should have been covered by the $200 per month paid to McIntyre as manager) • McIntyre had failed to change trash removal companies as instructed;

• McIntyre had failed to produce the Association books for review;

• McIntyre cashed a check in the amount of $857.50, drawn on the Association's account, that was made payable to her but not signed; and

• McIntyre failed to follow "normal procedures and safeguards" concerning bookkeeping matters (relating to unspecified incidents of "bypass[ing] the checking account signatories by giving herself credit against monthly dues and signing other checks").

McIntyre responded to Jones's allegations by providing information to the board. The board reviewed the Association's financial records, and concluded that while some of the overdraft charges were attributable to McIntyre's failure to timely transfer funds from the Association's savings account to its checking account, McIntyre had satisfactorily refuted Jones's other allegations. McIntyre and the board agreed that she would reimburse the Association for $350 in bank service charges. The board further concluded that it had "not seen evidence of fraud in any way." The board included its conclusions in the official minutes for its September 30, 2001 meeting, copies of which were sent to all Association members.

In the fall of 2001, McIntyre attempted to give Jones a letter demanding that he stop making false statements about her and her professional abilities, but was unsuccessful in doing so until January 27, 2002. Jones read the letter quickly, then handed it back to McIntyre, saying he did not want it.

McIntyre resigned as the Association's bookkeeper in June 2002. In November 2004, however, the board decided to look into hiring a different bookkeeper than the one it was using. McIntyre was one of the two applicants, and the board hired her. When Jones learned of that decision he sent a letter to the board, dated December 30, 2004. With respect to the board's decision to rehire McIntyre as bookkeeper, the letter stated:

Dave [Doemland] also said Debbie McIntyre has been hired to do the accounting for the HOA. Three years ago the Board of Directors discharged Debbie McIntyre as Manager and Bookkeeper for incompetence, insubordination and withholding Condominium records and books from review. Upon review of the books we found she had inappropriately enriched herself from HOA funds. This is disturbing.

Nevertheless, the board decided to retain McIntyre as bookkeeper.

McIntyre subsequently filed this lawsuit against Jones, asserting a single claim for defamation based on the above-quoted portion of Jones's December 30, 2004 letter to the board. As relevant here, Jones denied that the statements were false and, as an affirmative defense, asserted that he had a qualified privilege to publish the statements. Jones later asserted that his statements involved a matter of public concern and that McIntyre was a limited purpose public figure, either of which, if true, would require McIntyre to meet a heightened burden of proof.

The case was tried to the court, which ruled in McIntyre's favor on her defamation claim, but awarded her only nominal damages of one dollar. In rendering its ruling, the court concluded: (1) the above-referenced statements in Jones's December 30, 2004 letter were false and defamatory; (2) the statements did not involve a matter of public concern; (3) McIntyre was not a limited purpose public figure when Jones published the statements; (4) Jones had a qualified privilege to make the statements but lost it because he published them with reckless disregard for their veracity; and (5) though McIntyre had not proved any actual damages, she was entitled to nominal damages because the statements were defamatory per se.

Jones appeals.

II. Discussion

"In Colorado, the elements of a cause of action for defamation are: (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication." Williams v. Dist. Court, 866 P.2d 908, 911 n. 4 (Colo. 1993).

A common law cause of action for defamation exists to compensate individuals who have suffered harm to their reputations due to the careless or malicious communications of others. Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo.1994); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 107, 538 P.2d 450, 462 (1975), overruled on other grounds by Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo.1982); Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39, 41 (Colo.App.1996). Protection of a person's reputation "`reflects no more than our basic concept of the essential dignity and worth of every human being,'" and recognizes that once an individual's reputation is damaged, it is extremely difficult to restore. Keohane, 882 P.2d at 1297-98 (quoting Rosenblatt v. Baer, 383 U.S. 75, 92-93, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) (Stewart, J., concurring)); see also Walker, 188 Colo. at 107, 538 P.2d at 462.

The interest in protecting an individual's reputation is not paramount in all circumstances. It must be weighed against society's interest in encouraging and fostering vigorous public debate, an interest protected by the First Amendment to the...

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