Thomas v. Tel. Publ'g Co.

• Decision Date: 01 May 2007
• Docket Number: No. 2005–751.,2005–751.
• Citation: 929 A.2d 993,155 N.H. 314
• Court: New Hampshire Supreme Court
• Parties: Terry T. THOMAS v. TELEGRAPH PUBLISHING CO. and another.

155 N.H. 314

929 A.2d 993

Terry T. THOMAS

v.TELEGRAPH PUBLISHING CO. and another.

No. 2005–751.

Supreme Court of New Hampshire.

Submitted: Jan. 11, 2007.

Opinion Issued: May 1, 2007.

As Modified on Denial of Reconsideration Aug. 29, 2007.

Terry T. Thomas, by brief, pro se.

Gagliuso & Gagliuso, P.A., of Merrimack (Richard C. Gagliuso and Corey N. Giroux by brief), for defendants Telegraph Publishing Company, Terence L. Williams and Joshua Trudell.

Devine, Millimet & Branch, P.A., of Manchester (Brian J.S. Cullen by brief), for defendants Town of Hudson and Michael Gosselin.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (John A. Curran and Elizabeth L. Hurley by brief), for defendants Roland Anderson, Albert Droney and Gene Bousquet.

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (Christopher D. Hawkins by brief), for defendant Edith Flynn.

DUGGAN, J.

The plaintiff, Terry T. Thomas, appeals, and the defendants, Telegraph Publishing Company (Telegraph), Terrence L. Williams, Joshua Trudell, Town of Hudson (Town), Michael Gosselin, Roland Anderson, Albert Droney, Gene Bousquet, and Edith Flynn, cross-appeal an order of the Trial Court (Groff, J.) granting summary judgment in favor of the defendants. We affirm in part, reverse in part, vacate in part and remand.

I. Background

This case was the subject of a previous opinion of this court. See Thomas v. Telegraph Publ'g Co., 151 N.H. 435, 436, 859 A.2d 1166 (2004). In December 2002, the plaintiff filed a civil action alleging defamation against the defendants based upon the publication of an article in the Nashua Telegraph on December 22, 1999. Id. It was entitled, "Police Say Burglar's Luck Has Run Out After 25 Years." The lengthy article states that Thomas "is now being held in the Hillsborough County House of Corrections on $25,000 bail while facing charges of receiving stolen property in Hudson." The article also contains statements about the plaintiff's past criminal behavior and indicates that he "is suspected in more than 1,000 home burglaries in Massachusetts and New Hampshire since the mid–1970's, according to police and court records." The article, in its entirety, is in an appendix to this opinion, as are the fifty-eight statements that the plaintiff challenges as defamatory.

The article was written by Trudell, and contained quotes or statements attributed to defendants Gosselin, Anderson, Droney, Bousquet and Flynn. At the time the article was written, Gosselin was a detective in Hudson, Anderson was the deputy police chief in Weston, Massachusetts, Droney was a detective in Needham, Massachusetts, and Bousquet was a detective in Foxborough, Massachusetts. Flynn was a professor of criminal justice at Northeastern University. Williams was the publisher of the Telegraph. In the remainder of this opinion, we reference Trudell, Williams and the Telegraph as "the Telegraph defendants." We reference Gosselin, Anderson, Bousquet, Droney and the Town as "the police defendants."

Over the course of litigating this case, the parties filed a number of motions with the trial court. The plaintiff moved to amend his writ to name the police officers in their individual—rather than just official—capacities. The trial court denied the motion, and the plaintiff appeals that decision.

Each of the defendants also moved for summary judgment. Over the plaintiff's objection, the trial court granted summary judgment for all of the defendants on all of the allegedly defamatory statements, ruling that the plaintiff is libel-proof. In addition, the trial court ruled that: (1) certain statements in the article are covered by the fair report privilege; (2) certain of the statements are protected as substantially true; (3) Flynn's statement was an opinion, but the statements of the police defendants were not statements of opinion; (4) Flynn's statements were "of and concerning" the plaintiff; (5) the plaintiff is not a limited purpose public figure and therefore did not need to demonstrate actual malice; and (6) the police defendants do not enjoy a qualified privilege for their statements. The plaintiff then appealed, and the defendants cross-appealed, placing each of these rulings in dispute.

II. Motion to Amend

Arguing that his motion to amend was "a direct response" to discovery issues between the parties and an attempt to cure a technical defect, the plaintiff contends that the trial court erred in denying it. The decision of the trial court to deny a motion to amend will not be overturned absent an unsustainable exercise of discretion. Thomas, 151 N.H. at 439, 859 A.2d 1166. Generally, a court should allow amendments to pleadings to correct technical defects, but need only allow substantive amendments when necessary to prevent injustice. Id. A substantive amendment that introduces an entirely new cause of action, or calls for substantially different evidence, may be properly denied. Id.

In response to the plaintiff's motion to amend, the trial court made the following ruling:

The plaintiff filed this action over two years ago.... His motion seeks to do more than cure a technical defect. He essentially seeks to add a number of new parties by suing the defendants in their individual capacities, as well as, their official capacities. The plaintiff previously represented to this Court that he would not be seeking any further amendments to the original Writ.... Given the delay in bringing this motion and the surprise to the defendants, the Court finds and rules that the amendment is not necessary for the prevention of injustice.

We agree with the trial court's reasoning. By seeking to name the defendants in their individual capacities, the plaintiff essentially sought to add parties who would be personally liable for damages in the event of a verdict unfavorable to them. Further, defendants named in their individual capacities in this type of case might need to maintain defenses that would differ from those adopted by defendants named in their official capacities. These two considerations, among others, support the trial court's conclusion that the defendants would suffer surprise from the proposed amendment. Clinical Lab Prod's, Inc. v. Martina, 121 N.H. 989, 991, 437 A.2d 285 (1981) (surprise to opposing side is grounds to deny motion to amend). Indeed, the plaintiff filed the motion at issue some two years after he initiated the suit, after having previously amended his writ, and after having assured the trial court that no further amendments would be sought. Under these circumstances, we cannot conclude that the trial court unsustainably exercised its discretion in denying the plaintiff's motion to amend.

III. Summary Judgment: Legal Standard

In acting upon a motion for summary judgment, the trial court is required to construe the pleadings, discovery and affidavits in the light most favorable to the non-moving party to determine whether the proponent has established the absence of a dispute over any material fact and the right to judgment as a matter of law. Porter v. Coco, 154 N.H. 353, 356, 910 A.2d 1187 (2006). An issue of fact is material if it affects the outcome of the litigation. Id. We review de novo a trial court's grant of summary judgment. Tech–Built 153 v. Va. Surety Co., 153 N.H. 371, 373, 898 A.2d 1007 (2006). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Id.

IV. Libel–Proof Plaintiff Doctrine

The trial court granted summary judgment as to all defendants, ruling that the plaintiff is libel-proof. The plaintiff appeals that ruling.

Typically, "[a] plaintiff proves defamation by showing that the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a third party, assuming no valid privilege applies to the communication." Pierson v. Hubbard, 147 N.H. 760, 763, 802 A.2d 1162 (2002). If defamation is established and no privilege applies, the plaintiff may seek damages for harm to his or her reputation. See Thomson v. Cash, 119 N.H. 371, 376, 402 A.2d 651 (1979). However, in some jurisdictions a very narrow class of plaintiffs is prohibited from seeking libel damages by operation of a doctrine known as the libel-proof plaintiff doctrine. See generally

Annotation, Defamation: Who Is " Libel–Proof", 50 A.L.R.4th 1257 (1986 & Supp.2006). Whether to adopt the libel-proof plaintiff doctrine in this state is a question of first impression.

One of the earliest formulations of the libel-proof plaintiff doctrine was announced by the United States Court of Appeals for the Second Circuit in Cardillo v. Doubleday & Co., Inc., 518 F.2d 638 (2d Cir.1975) ; see also Note, The Libel–Proof Plaintiff Doctrine, 98 Harv. L.Rev. 1909, 1909–10 (1985). There, the court held that a prison inmate, who brought a civil libel action against the publisher of a book that referenced his involvement in various criminal organizations and activities, was libel-proof. Cardillo, 518 F.2d at 639–40. The court explained that the inmate was libel-proof because he was "so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case...." Id. at 639.

A. Incremental Harm Doctrine

Since Cardillo, two versions of the libel-proof plaintiff doctrine have developed. See Note, supra at 1910. One version is the incremental harm doctrine, which

involves an examination of the challenged communication rather than a finding of a previously damaged reputation. The judge evaluates the defendant's communication in its entirety and considers the effects of the challenged statements on the plaintiff's reputation in the context of the full communication. If the challenged statement harms a plaintiff's reputation far less than unchallenged statements in the same article or broadcast, the plaintiff may be held libel-proof. Finding

...