Zueger v. Goss

• Decision Date: 08 May 2014
• Docket Number: Court of Appeals No. 12CA2000
• Citation: 2014 COA 61,343 P.3d 1028
• Parties: Paul J. ZUEGER; American Design Limited, a Colorado corporation; Red Lodge Publishers, Inc., a Colorado corporation; and Singleton–Biss Museum of Fine Art, Inc., a New Mexico non-profit corporation, Plaintiffs–Appellees and Cross–Appellants, v. Lou Lou GOSS, individually and d/b/a The Estate of Earl V. Biss, Jr., Defendant–Appellant and Cross–Appellee.
• Court: Colorado Court of Appeals

343 P.3d 1028

2014 COA 61

Paul J. ZUEGER; American Design Limited, a Colorado corporation; Red Lodge Publishers, Inc., a Colorado corporation; and Singleton–Biss Museum of Fine Art, Inc., a New Mexico non-profit corporation, Plaintiffs–Appellees and Cross–Appellants

v.Lou Lou GOSS, individually and d/b/a The Estate of Earl V. Biss, Jr., Defendant–Appellant and Cross–Appellee.

Court of Appeals No. 12CA2000

Colorado Court of Appeals, Div. II.

Announced May 8, 2014

G.W. Merrick & Associates, LLC, Glenn W. Merrick, Joseph T. Bernstein, Greenwood Village, Colorado, for Plaintiffs–Appellees and Cross–Appellants

John H. Case, Aspen, Colorado, for Defendant–Appellant and Cross–Appellee

Opinion

Opinion by JUDGE RICHMAN

¶ 1 Defendant, Lou Lou Goss, individually and d/b/a The Estate of Earl V. Biss, Jr., appeals the judgment entered on jury verdicts in favor of plaintiffs, Paul J. Zueger, American Design Limited, Red Lodge Publishers, Inc., and Singleton–Biss Museum of Fine Art, Inc., on their claims for intentional interference with prospective business advantage and defamation. Plaintiffs cross-appeal the district court's dismissal of their claims for outrageous conduct and civil extortion. We affirm in part, reverse in part, and remand for further proceedings.

I. Background

¶ 2 Goss is the widow and personal representative of the estate of Earl Biss, a renowned Native American artist who died in 1998. Plaintiff Zueger is an art dealer, and the other plaintiffs are entities through which he purchases, sells, publishes, promotes, preserves, and exhibits artwork by Biss and other artists. Goss and Zueger had a dispute stemming from Goss's contention that plaintiffs were making and selling unauthorized reproductions of Biss's artwork, prompting Goss to make disparaging statements about plaintiffs on the Internet. Plaintiffs filed suit against Goss, asserting several claims for relief, only two of which went to the jury—intentional interference with prospective business advantage and defamation. The jury found in plaintiffs' favor on both claims, awarding $86,601 in damages on the interference claim and $10,000 in damages on the defamation claim. At the close of evidence, the trial court dismissed two other claims asserted by plaintiffs—outrageous conduct and civil extortion.

II. Issues on Appeal

¶ 3 Goss argues that the trial court erred by (1) entering as a discovery sanction an order precluding Biss's former attorney from testifying; (2) concluding that one of Goss's statements about plaintiffs was defamatory per se and so instructing the jury; (3) concluding that plaintiffs were not public figures and that Goss's online statements did not relate to a matter of public concern; and (4) awarding damages that were uncertain.

¶ 4 Plaintiffs argue on cross-appeal that the trial court erred by dismissing their claims for outrageous conduct and extortion.

A. Discovery Sanction

¶ 5 Goss concedes that her trial counsel failed to submit her list of trial witnesses by the C.R.C.P. 16(f)(2)(B) deadline. A week after the missed deadline, plaintiffs moved to bar Goss from calling any undisclosed witnesses at trial. A week later, Goss filed her witness list, which included Biss's former attorney.

¶ 6 The court postponed ruling on plaintiffs' motion until the fourth day of trial, when it prohibited only the former attorney from testifying. In support of its ruling, the court determined that the delay was not harmless as to plaintiffs, who stated they were not prepared to respond to the former attorney's testimony, and that Goss had a history of failing to comply with procedural rules. It also noted that the testimony raised potential attorney-client privilege waiver issues, that relevant documents from the former attorney's file may not have been disclosed to plaintiffs, and that to the extent either side would suffer prejudice, it should fall on Goss.

¶ 7 Goss contends that the court erred by precluding the former attorney from testifying. We are not persuaded.

We review the trial court's imposition of a discovery sanction for an abuse of discretion. See Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698, 702 (Colo.2009). “A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair.” Id.

¶ 9 The purpose of the disclosure requirements of C.R.C.P. 16 “is to provide parties with adequate time to prepare by obtaining relevant evidence to prevent trial by ambush and surprise.” Keith v. Valdez, 934 P.2d 897, 899 (Colo.App.1997). Moreover, “under C.R.C.P. 37(c), a trial court has a duty to sanction a party for failure to comply with certain discovery deadlines by precluding evidence or witnesses, unless the party's failure to comply is either substantially justified or harmless.” Todd v. Bear Valley Vill. Apartments, 980 P.2d 973, 975 (Colo.1999) (emphasis in original); see also City of Aurora in Interest of Util. Enter. v. Colo. State Eng'r, 105 P.3d 595, 610 (Colo.2005) (“A party offering late-disclosed evidence bears the burden of showing that the failure to disclose was harmless.”).

¶ 10 The following factors may be relevant to determining whether a late disclosure was substantially justified or harmless:

(1) the importance of the witness's testimony;

(2) the explanation of the party for its failure to comply with the required disclosure;

(3) the potential prejudice or surprise to the party against whom the testimony is offered that would arise from allowing the testimony;

(4) the availability of a continuance to cure such prejudice;

(5) the extent to which introducing such evidence would disrupt trial; and

(6) the non-disclosing party's bad faith or willfulness.

Todd, 980 P.2d at 978.

¶ 11 Here, Goss makes no showing, nor did she at trial, as to the importance of the former attorney's testimony. Her counsel conceded that the failure to submit the witness list on time was not substantially justified by acknowledging to the trial court that it “fell through the cracks.” Plaintiffs stated that they were unprepared to respond to the former attorney's testimony and that they were not given copies of some of the documents about which he would likely testify. Goss did not request a continuance, and because the trial was already in its fourth day, this is not a case where one was feasible. In addition, permitting the testimony was likely to disrupt the trial, raising attorney-client privilege waiver issues and possibly allowing “the side show [to take] over the circus,” as the court noted. Further, the court noted that Goss had a history of not complying with discovery procedures. Under these circumstances, we are not persuaded that the sanction of witness preclusion was disproportionate, and therefore we discern no abuse of the trial court's discretion.

B. Defamation Per Se

¶ 12 Over Goss's objection, the trial court determined that fifteen “complained of” statements she allegedly made in reference to plaintiffs were defamatory per se as a matter of law, and so instructed the jury in Instruction No. 8. All fifteen statements were listed in Instruction No. 9, including the following: “The company is comparable to the ‘Man in Black’ for Mozart.” The jury was instructed to determine only if Goss published the statements and, if so, whether the statements caused plaintiffs actual damages, subject to the affirmative defense of “absolute truth.” Goss contends that the above statement is not defamatory per se and that the trial court erred in so instructing the jury. We agree.

1. Standard of Review and Applicable Law

¶ 13 Defamation is a communication that holds an individual up to contempt or ridicule thereby causing him or her to incur injury or damage. Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo.1994). “[D]efamatory statements are so egregious and intolerable because the statement destroys an individual's reputation: a characteristic which cannot be bought, and one that, once lost, is extremely difficult to restore.” Id. at 1298.

Whether a statement is defamatory is a question of law we review de novo. Gordon v. Boyles, 99 P.3d 75, 79 (Colo.App.2004) ; see also NBC Subsidiary (KCNC–TV), Inc. v. Living Will Ctr., 879 P.2d 6, 11 (Colo.1994).

¶ 15 Whether a statement is one of fact or opinion does not necessarily determine whether it is defamatory. See NBC Subsidiary (KCNC–TV), Inc., 879 P.2d at 9–10 ; see also Burns v. McGraw–Hill Broad. Co., Inc., 659 P.2d 1351, 1360 (Colo.1983) (“Even if the statement could be characterized as an opinion, it will support a defamation action if the language is defamatory and the underlying defamatory facts which provide a basis for the opinion are false and are not disclosed in the context of the broadcast.”); Sall v. Barber, 782 P.2d 1216, 1218 (Colo.App.1989) (“Because pure opinion by its nature cannot be proven false and, therefore, cannot be defamatory, it is equally protected regardless of whether the addressee is public or private or whether the issue is of public or only private concern.”).

¶ 16 Rather, to determine whether a statement is defamatory, we employ a two-part test: “[A] court must determine whether the statement contains or implies a verifiable fact about the plaintiff and second, whether the statement reasonably is susceptible to being understood as an assertion of actual fact.” NBC Subsidiary (KCNC–TV), Inc., 879 P.2d at 10 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ); see also Keohane v. Wilkerson, 859 P.2d 291, 296 (Colo.App.1993), aff'd sub nom. Keohane v. Stewart, 882 P.2d 1293. We also consider factors such as the phrasing of the statement, the context in which it appears, and the circumstances surrounding its publication. Keohane, 859 P.2d at 296. A reviewing court must review the record de novo to ensure that the trial court's judgment does not constitute a forbidden intrusion on the field of free expression. Sky Fun 1, Inc. v. Schuttloffel, 8 P.3d 570, 574 (Colo.App.2000) (citing NBC Subsidiary (KCNC–TV), Inc., 879...