Posadas v. City of Reno

• Decision Date: 07 May 1993
• Docket Number: No. 23034,23034
• Citation: 851 P.2d 438,109 Nev. 448
• Parties: Richard POSADAS, Appellant, v. The CITY OF RENO, Hal Schilling, Robert Bradshaw, Richard Kirkland and Thomas W. Robinson, Respondents.
• Court: Nevada Supreme Court

Page 438

851 P.2d 438

109 Nev. 448

Richard POSADAS, Appellant, v. The CITY OF RENO, Hal Schilling, Robert Bradshaw, Richard Kirkland and Thomas W. Robinson, Respondents.

No. 23034.

Supreme Court of Nevada.

May 7, 1993.

James Andres Boles, Reno, for appellant.

Patricia A. Lynch, Reno City Atty., and Stephen F. Volek and William A. Baker, Deputy City Attys., Reno, for respondents.

OPINION

PER CURIAM:

Appellant Richard Posadas (Posadas), an officer with the Reno Police Department (RPD), was accused of attempting to use his status as a peace officer to influence a traffic court proceeding. A subsequent investigation resulted in Posadas's termination, which was reduced to a suspension after Posadas appealed to an arbitration panel. During the controversy, the RPD issued a press release stating that Posadas had lied under oath. Posadas brought suit, alleging numerous causes of action, including claims for defamation, intentional infliction of emotional distress, and abuse of process. The district court entered summary judgment in favor of each respondent on every claim. We conclude that: (1) with regard to the defamation claim, the press release was capable of a defamatory construction, and genuine issues of material fact remained as to the truth or falsity of the statement and whether it was made with "actual malice"; (2) with regard to the intentional infliction of emotional distress claim, genuine issues of material fact remained as to whether the issuance of the press release constituted extreme and outrageous conduct, whether it was done with the intent of, or reckless disregard for, causing emotional distress, and whether Posadas suffered severe emotional distress as a result; and (3) with regard to the abuse of process claim, a genuine issue of material fact remained as to whether the RPD brought charges against Posadas for the improper purpose of forcing his resignation. Accordingly, we reverse and remand for trial on Posadas's claims for defamation, intentional infliction of emotional distress, and abuse of process. We affirm the judgment of the district court in all other respects.

Facts

Posadas has been an officer with the RPD for nearly twenty years. He has held the rank of sergeant for more than ten years. In November, 1988, Posadas became aware of a traffic citation pending against Pam Drum (Drum), a local news personality. Posadas knew Drum socially and professionally.

On November 22, 1988, Posadas accompanied Drum to Reno Municipal Court. Prior to the hearing, Assistant City Attorney Mike Halley (Halley) and Posadas discussed the case. Although Posadas was dressed in civilian clothing, Halley's impression was that Posadas was speaking as a representative of the RPD. After the matter was heard in the Reno Municipal Court, the judge dismissed the charges against Drum.

An officer reported to Assistant Chief of Police Richard Kirkland (Kirkland) that Posadas had allegedly improperly attempted to obtain dismissal of the traffic citation. Kirkland referred the matter to Chief Robert Bradshaw (Bradshaw), who ordered the Investigative Services Bureau of RPD to conduct a criminal investigation. RPD referred the results of the investigation to a specially appointed deputy city attorney to determine whether to prosecute Posadas under the Reno Municipal Code. The special deputy city attorney elected to prosecute, and on May 24, 1989, she obtained a conviction in Reno Municipal Court on the charge of obstructing a peace officer. Posadas appealed de novo to the district court. On August 3, 1989, after a two-day trial, the district court acquitted Posadas.

When Bradshaw ordered the criminal investigation, he also ordered that an internal personnel investigation be conducted to determine whether Posadas had violated any of RPD's rules of conduct. Lieutenant Pennington (Pennington), the police lieutenant assigned to conduct such investigations, was in charge. Pennington determined that sufficient evidence existed to discipline Posadas. After intermediate review, Bradshaw concurred and recommended that Posadas be discharged from his job. On March 17, 1989, Hal Schilling (Schilling), the Reno City Manager, terminated Posadas.

After hearings on August 16 and 17, 1989, labor arbitrators, in a 2-1 decision, reduced Posadas's termination to a forty-five day suspension and ordered his reinstatement with back pay and benefits. The dissenting arbitrator concurred in the decision to reduce Posadas's discharge to a suspension, but he would have also demoted Posadas from sergeant to police officer.

After the hearing, Bradshaw prepared a press release ¹ which stated that Posadas had "admitted he lied under oath." In fact, Posadas did not admit lying under oath in any hearing or document. Posadas admitted under oath, however, that he had lied during an investigation. Specifically, Posadas had acknowledged during his sworn testimony that he had been untruthful to two police officers who had questioned him the morning of November 22, 1988, about the reason for his presence outside the Reno Municipal Court with Drum.

On August 21, 1989, Posadas returned to work. On April 6, 1990, Posadas filed a complaint stating numerous causes of action against the respondents, City of Reno (City), Schilling, Bradshaw, Kirkland, and Thomas Robinson (Robinson), including claims for defamation, intentional infliction of emotional distress, and abuse of process. On December 31, 1991, the district court granted respondents' motion for summary judgment on all issues except for defamation, stating: "All of plaintiff's claims lack a presentation of any evidence which would support the claim." The district court ordered the parties to file supplemental briefs with respect to the defamation claim, and in an order filed on January 31, 1992, it extended the order granting summary judgment to the defamation claim as well. On February 6, 1992, the district court entered judgment in favor of the respondents and against Posadas.

Discussion

Standard of Review

Under NRCP 56(c), the district court may only grant summary judgment when there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). A genuine issue of material fact is one where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Valley Bank v. Marble, 105 Nev. 366, 367, 775 P.2d 1278, 1282 (1989). The pleadings and proof offered below are construed in the light most favorable to the non-moving party. Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986). However, the non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine issue for trial or have summary judgment entered against him. Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 294, 662 P.2d 610, 618-19 (1983). The non-moving party's documentation must be admissible evidence, and he or she "is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture." Id. at 302, 662 P.2d at 621 (quoting Hahn v. Sargent, 523 F.2d 461, 467 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976)). Trial judges are to exercise great caution in granting summary judgment, which is not to be granted if there is the slightest doubt as to the operative facts. Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).

Defamation

Posadas contends Bradshaw defamed him when Bradshaw accused Posadas in a press release of having "lied under oath." Although Posadas admitted, under oath, that he had lied to two police officers during an investigation, he never admitted to lying under oath. We find the wording of the press release to be ambiguous and susceptible to the false impression that Posadas had perjured himself.

To prevail on a defamation claim, a party must show publication of a false statement of fact. Wellman v. Fox, 108 Nev. 83, 86, 825 P.2d 208, 210 (1992), cert. denied, 506 U.S. 820, 113 S.Ct. 68, 121 L.Ed.2d 34 (1992). In Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223 (1981), we stated:

It is generally accepted that for both libel and slander it is a question of law and, therefore, within the province of the court, to determine if a statement is capable of a defamatory construction. If susceptible of different constructions, one of which is defamatory, resolution of the ambiguity is a question of fact for the jury.

Id. at 646, 637 P.2d at 1225-26 (citations omitted); see Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 410, 664 P.2d 337, 342 (1983). A statement is defamatory when, "[u]nder any reasonable definition[,] such charges would tend to lower the subject in the estimation of the community and to excite derogatory opinions against him and to hold him up to contempt." Las Vegas Sun v. Franklin, 74 Nev. 282, 287, 329 P.2d 867, 869 (1958).

The statement made in the press release that Posadas "admitted he lied under oath" makes a factual assertion relating to Posadas's integrity and his ability to perform his job of enforcing the law. We conclude, as a matter of law, that the statement is capable of a defamatory construction in that it imputes dishonest and possibly unlawful conduct to Posadas. Accordingly, a jury must be allowed to determine whether the statement has any "basis in truth," Wellman, 108 Nev. at 88, 825 P.2d at 211, since the truth or falsity of an allegedly defamatory statement is an issue of fact properly left to the jury for resolution. ² Nevada Ind. Broadcasting v. Allen, 99 Nev. 404, 413, 664 P.2d 337, 343 (1983).

Review of an action involving libel "must examine the context in which the statements are made to determine 'whether they are of a character which the First Amendment protects.' " Wellman, 108 Nev. at 87, 825 P.2d at 210 (quoting Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678,...