Warner v. Davis, A-1-CA-38628

Case DateSeptember 27, 2022
CourtCourt of Appeals of New Mexico

KAITLIN WARNER, Plaintiff-Appellee/Cross-Appellant,

ANDREW DAVIS and CARLY MONTGOMERY, Defendants-Appellants/Cross-Appellees.

No. A-1-CA-38628

Court of Appeals of New Mexico

September 27, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.


Law Offices of Joseph CampBell Joseph E. CampBell Edgewood, NM for Appellee

Boyle & Freudenheim Gary W. Boyle Mark D. Freudenheim Santa Fe, NM for Appellants



{¶1}A jury found Defendants Andrew Davis and Carly Montgomery defamed and intentionally inflicted emotional distress on Plaintiff Kaitlin Warner, and awarded her damages in the sum of $64,000, including punitive damages. Defendants appeal, arguing (1) that the verdict and the award of punitive damages were not supported


by substantial evidence, and (2) that the district court erred by allowing Warner to file an untimely notice of appeal. Warner cross-appeals the district court's decision denying admission of a request for admission addressing sexual intercourse as an exhibit. We hold that the jury's verdict against Defendants and the award for punitive damages are supported by substantial evidence. We also hold that the district court did not abuse its discretion by (1) allowing Warner to file an untimely notice of appeal, and (2) not admitting Defendants' request for admission addressing sexual intercourse as an exhibit at trial as requested by Warner. We therefore affirm.


I. Defendants' Appeal

A. The Jury's Verdict and Award of Punitive Damages

{¶2} "To determine if a verdict is supported by substantial evidence, the proper approach is to examine the plaintiff's evidence related to damages and determine whether that evidence could justify the amount of the verdict." Morga v. FedEx Ground Package Sys., Inc., 2022-NMSC-013, ¶ 21, 512 P.3d 774 (alterations, internal quotation marks, and citation omitted). "The question is not whether substantial evidence exists to support the opposite result, but rather whether such evidence supports the result reached." N.M. Tax'n & Revenue Dep't v. Casias Trucking, 2014-NMCA-099, ¶ 20, 336 P.3d 436 (internal quotation marks and citation omitted). "We resolve all factual issues in the light most favorable to the


jury verdict, disregarding inferences to the contrary." Valley Bank of Com. v. Hilburn, 2005-NMCA-004, ¶ 21, 136 N.M. 741, 105 P.3d 294. "We will not reweigh the evidence nor substitute our judgment for that of the fact[-]finder." Casias Trucking, 2014-NMCA-099, ¶ 20 (alteration, internal quotation marks, and citation omitted). "It is a fundamental function of a jury to determine damages" and "its verdict is presumed to be correct." Allsup's Convenience Stores, Inc. v. N. River Ins. Co., 1999-NMSC-006, ¶ 16, 127 N.M. 1, 976 P.2d 1 (internal quotation marks and citation omitted).

{¶3}Viewing the record in the light most favorable to the jury's findings, we determine that the verdict was supported by substantial evidence, and we explain.

1. Defamation

{¶ 4} Regarding defamation, Defendants assert that (1) Warner did not present evidence of publication by Davis; (2) Warner did not present evidence of actual damages such as lost educational, employment, business opportunities, or medical costs; and (3) Warner did not present evidence that Montgomery caused any damages.

{¶5} "Generally, the elements of a defamation action include: a defamatory communication, published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff." Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 16, 108 N.M. 424, 773 P.2d


1231. "In New Mexico, publication is defined as 'an intentional or negligent communication to one other than the person defamed.'" Hagebak v. Stone, 2003-NMCA-007, ¶ 5, 133 N.M. 75, 61 P.3d 201 (internal quotation marks and citation omitted).

{¶6}Evidence was presented that Montgomery posted the statements at issue under the Facebook handle for the business co-owned by both Defendants, that Davis accepted the statements, and Davis took no steps to have the posts removed despite knowing that they contained false information. While Montgomery, not Davis, made the posts, the jury could have found publication by Davis based on the posts originating from the business page co-owned by Defendants and Davis' agreement with the posts. Warner testified about how others questioned her about the posts and how they contributed to her feelings of fear that led her to move out of New Mexico. Warner also spoke to the ongoing emotional distress that she experienced due to the posts still being publicly available to view. Per the jury instructions, Warner was not required to show evidence of lost employment or other opportunities to receive damages for defamation, but rather "[h]arm to [her] good standing in the community . . . [p]ersonal humiliation . . . [m]ental anguish and suffering . . . [or] [h]arm to [her] [g]ood name and character among her friends, neighbors, and acquaintances." See Muncey v. Eyeglass World, LLC, 2012-NMCA-120, ¶ 21, 289 P.3d 1255 ("Jury instructions become the law of the case against which the sufficiency of the evidence


is to be measured." (internal quotation marks and citation omitted)). We therefore hold that the jury's verdict on defamation was supported by substantial evidence.

2. Intentional Infliction of Emotional Distress.

{¶7}Regarding intentional infliction of emotional distress, Defendants argue that their conduct was not extreme and outrageous as a matter of law, arguing that the statements Montgomery posted were insulting but not beyond all possible bounds of decency. Defendants also argue that Warner's claimed distress was not severe.

{¶ 8} "One of the requirements in a suit for intentional infliction of emotional distress is that the conduct of the defendant be extreme and outrageous." Stieber v. Journal Pub. Co., 1995-NMCA-068, ¶ 15, 120 N.M. 270, 901 P.2d 201. "Extreme and outrageous conduct . . . is that which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (internal quotation marks and citation omitted).

{¶9} Evidence was presented that Montgomery posted that Warner was a juvenile felon and had committed perjury under a news story on a publicly...

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