Moats v. Republican Party of Neb.

• Decision Date: 28 April 2011
• Docket Number: No. S–09–929.,S–09–929.
• Citation: 281 Neb. 411,796 N.W.2d 584
• Parties: Rex J. MOATS, appellant,v.REPUBLICAN PARTY OF NEBRASKA, also known as the Nebraska Republican Party, appellee.
• Court: Nebraska Supreme Court

281 Neb. 411

796 N.W.2d 584

Rex J. MOATS, appellant,

v.REPUBLICAN PARTY OF NEBRASKA, also known as the Nebraska Republican Party, appellee.

No. S–09–929.

Supreme Court of Nebraska.

April 28, 2011.

Syllabus by the Court

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.

3. Statutes: Appeal and Error. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

4. Libel and Slander: Negligence. A claim of defamation requires (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

5. Libel and Slander: Proof: Words and Phrases. When the plaintiff in a libel action is a public figure and the speech is a matter of public concern, the plaintiff must demonstrate actual malice, which means knowledge of falsity or reckless disregard for the truth, by clear and convincing evidence.

6. Libel and Slander: Proof. The plaintiff in a public-libel action must establish by clear and convincing evidence that the alleged statement is false.

7. Libel and Slander: Words and Phrases. There are two types of libel: Words may be actionable per se, that is, in themselves, or they may be actionable per quod, that is, only on allegation and proof of the defamatory meaning of the words used and of special damages.

8. Libel and Slander. Whether a communication is libelous per se is a threshold question of law for the court.

9. Libel and Slander. A communication is defamatory if it tends so to harm the reputation of another as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her.

10. Libel and Slander. Trial courts initially determine whether a statement is capable of defamatory meaning, and then the jury decides whether the words were so understood.

11. Constitutional Law: Libel and Slander. In the context of a defamation claim, the First Amendment protects the publication of statements which cannot be interpreted as stating actual facts, but, rather, is the opinion of the author.

12. Constitutional Law: Libel and Slander. In assessing whether a statement implies a false assertion of fact or a protected opinion, a court looks at the nature and content of the communication and to the knowledge and understanding of the audience to whom the publication was directed.

13. Constitutional Law: Libel and Slander. Courts applying the totality of the circumstances test in a defamation claim look to factors such as whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, whether the defendant used figurative or hyperbolic language that negates the impression, and whether the statement in question is susceptible of being proved true or false.

14. Constitutional Law: Libel and Slander. Publications that are alleged to constitute a false light invasion of privacy merit the same constitutional protections as publications alleged to be defamatory.

David A. Domina, of Domina Law Group, P.C., L.L.O., and, on brief, Mark D. Raffety, Omaha, for appellant.L. Steven Grasz, of Husch, Blackwell & Sanders, L.L.P., Omaha, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.PER CURIAM.

INTRODUCTION

The appellant, Rex J. Moats, a former candidate for the Nebraska Legislature, filed a complaint in the district court for Douglas County against the appellee, the Republican Party of Nebraska, also known as the Nebraska Republican Party (Republican Party). In his complaint, Moats identified 11 numbered publications issued by the Republican Party which he alleges were actionable under various theories. With respect to each publication, except publication No. 10, Moats alleged that the publication violated his rights under Nebraska's Consumer Protection Act (CPA), see Neb.Rev.Stat. § 59–1601 et seq. (Reissue 2010); defamed him; and amounted to an invasion of privacy by putting him in a false light in violation of Neb.Rev.Stat. § 20–204 (Reissue 2007). Moats also alleged that publication No. 10, although not defamatory, violated his rights under the CPA and amounted to an invasion of privacy by putting him in a false light.

The Republican Party filed a motion to dismiss the complaint. The district court for Douglas County dismissed Moats' complaint in its entirety under Neb. Ct. R. Pldg. § 6–1112(b)(6) for failing to state a claim upon which relief could be granted. Moats appeals. We affirm.

FACTUAL BACKGROUND

In 2008, Moats became a candidate for the Nebraska Legislature in District 39. During the course of the election, the Republican Party paid for and distributed publications in opposition to Moats' candidacy. Moats filed a complaint in Douglas County District Court in which he identified 11 numbered publications that he alleged were actionable. Moats claimed that 10 of these publications were actionable under three theories: violation of the CPA, defamation, and the tort of invasion of privacy by false light. In his complaint, Moats claimed that publication No. 10 was actionable only under the theories of violation of the CPA and the tort of invasion of privacy by false light. The content of publication No. 10 is not quoted in the complaint.

The relevant portions of the 11 publications are described in Moats' complaint as follows:

Publication No. 1: On or about April 20, 2008, a publication designated “NE GOP 39–001” asserted: “ ‘ Trial attorney Rex Moats is a registered Democratic [sic] and the Democrat [sic] Party is supporting him! ’ ”

Publication No. 2: On May 7, 2008, an 8 1/2– by 11–inch folder designated “NE GOP 39–003” asserted: “ ‘ Moats received a $50,000 trust fund from the director of National Warranty.’ ”

Publication No. 3: On May 5, 2008, a publication stated: “ ‘ Would you put a shady insurance company based in the Cayman Islands ahead of Nebraska's consumers? You wouldn't. But trial attorney Rex Moats would ....’ ” This publication further stated: “ ‘ How did Rex Moats mislead creditors and the public? Rex Moats claimed in an affidavit that National Warranty was doing financially well.’ ”

Publication No. 4: This publication was an illustrated letter purportedly sent by Moats from the Cayman Islands to Nebraskans. On the front, it stated: “ ‘ Greetings from the Cayman Islands. From insurance company trial lawyer extraordinaire Rex Moats.’ ” On the back of the letter, it stated in relevant part:

Dear Nebraskan,

Hello from the Cayman Islands! I have really enjoyed my time over here. The weather is great, the food is great, and most importantly— I have a fantastic job working for a shady insurance company that is incorporated right here in the Cayman Islands. The tax benefits sure are great out here!

Unfortunately my company, National Warranty, has gone bankrupt and is unable to pay off numerous claims for thousands of Nebraskans. Also, it looks like I have made misleading statements in an affidavit. Evidently, I claimed that my company is doing “just fine,” but then declared bankruptcy two weeks later.

Publication No. 5: On October 2, 2008, a brochure publication designated “NE GOP 0004” asserted: “ ‘ Rex Moats and National Warranty went down as a result of the same irresponsibility we see on Wall Street.’ ”

Publication No. 6: On October 8, 2008, a publication designated “NE GOP 002” asserted: “ ‘ Rex Moats cannot be trusted with your money.’ ” The publication further stated that Moats was a “ ‘ trial attorney ’ ” and that “ ‘ National Warranty's directors set aside $50,000 for Rex Moats.’ ”

Publication No. 7: An October 20, 2008, publication asserted that Moats was sued as a defendant in litigation. According to the complaint, the publication failed to disclose that the litigation against Moats was dismissed without a trial and had no merit. The publication also asserted: “ ‘ Rex Moats took a $50,000 golden parachute just as National Warranty cost 150 Nebraskans their jobs and left unpaid promises to hundreds of thousands of vehicle buyers.’ ”

Publication No. 8: On October 30, 2008, a publication designated “NE GOP 009” asserted: “ ‘ Rex Moats received a $50,000 golden parachute even though 150 Nebraskans lost their jobs.’ ” On October 31, the Republican Party issued a publication which stated: “ ‘ Rex Moats misled creditors and the public about the solvency of National Warranty. Even worse, right before the company folded, Moats received $50,000 from the directors of National Warranty.’ ”

Publication No. 9: On November 1, 2008, a publication designated “NEB 023,” exhibiting a newborn baby, asserted: “ ‘[ A ] ccording to his own letter to the editor of a local newspaper, Rex Moats supports using your tax dollars to fund abortions.’ ”

Publication No. 10: On November 1, 2008, the Republican Party issued a publication designated “NEB–015” which, according to the complaint, asserted ...