No. 2018-0517
August 16, 2019

  • Whether the trial court properly dismissed the plaintiff’s claims for defamation at the motion to dismiss stage.

The plaintiff alleged the defendant, who was running for re-election to the Portsmouth City Council, made defamatory statements about the plaintiff in response to a candidate survey that was subsequently published on a website. The survey questions, and responses thereto, pertained to ongoing litigation between the plaintiff and the City of Portsmouth arising out of the City’s sale of land to the plaintiff. The defendant moved to dismiss, arguing that the statements made in response to the questionnaire were not actionable defamation as they were either statements of fact that were substantially true, did not convey a defamatory meaning, or were statements of opinion.

The Supreme Court held that whether a statement is a verifiable fact or an opinion is a question of law to be determined by the trial court in the first instance. Furthermore, the Court held that whether a statement of fact is substantially true may be determined as a matter of law when the underlying facts as to the “gist or sting” of a statement are undisputed. Lastly, whether statements are capable of communicating a defamatory meaning are questions of law for the court.

The Supreme Court found that the trial court did not err in determining that the alleged defamatory statements were not actionable. The defendant’s statements pertaining to the ongoing litigation between the plaintiff and the City, as well as the subject of disputed property, were not capable of bearing a defamatory meaning because they did not subject the plaintiff to contempt, hatred, scorn, or ridicule. The Supreme Court also concluded that the defendant’s statement that the plaintiff made a “mistake” with regard to the purchase of the subject property from the City and was “wrongfully” suing the City were opinions based on fully disclosed facts and not otherwise objectively verifiable because it did not imply the existence of undisclosed defamatory facts concerning a sufficiently objective standard of conduct. The Court reasoned that when the facts underlying a statement of opinion are disclosed, readers will understand that they are getting the author’s interpretation of the facts presented and therefore are unlikely to construe the statement as insinuating the existence of additional undisclosed facts. The Supreme Court also held that the defendant’s statements that the plaintiff had been trying to get the City taxpayers to pay for his apparent mistakes by filing various lawsuits were not actionable for defamation because the “gist or sting” of the facts asserted were undisputed by the plaintiffs and, therefore, were substantially true. In sum, the Supreme Court affirmed the trial court’s order because the plaintiff failed to allege facts that would show that the defendant’s statements were actionable for defamation.


Law Offices of John Kuzinevich, of Duxbury, Massachusetts (John Kuzinevich on the brief and orally), for the plaintiffs. Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and Weston R. Sager on the brief, and Mr. Bauer orally), for the defendant.