Ryan M. Borden An associate with Ford & McPartlin in Portsmouth, NH

Civil Law

No. 2017-0682
January 15, 2019
Affirmed.

  • Whether the trial court erred in failing to declare a mistrial, on multiple rulings regarding elements of plaintiffs’ defamation claims and in issuing an injunction excluding defendant from her family’s vacation home and plaintiffs’ home town.

 

In 2012, the plaintiffs, Lorraine and Peter MacDonald, bought a vacation home in Fitzwilliam, abutting the defendant’s, Lisa Jacobs, family’s property. The defendant subsequently began letter-writing campaigns falsely accusing the MacDonalds of various illegal activities, among other things. In 2016, the plaintiffs sued for defamation. Upon finding the statements to be defamatory and made with malice, the trial court awarded plaintiffs special damages and issued a permanent injunction, prohibiting the defendant from going within a five-mile radius of the plaintiffs’ home in Fitzwilliam and from entering their hometown of Sterling, Massachusetts. Defendant appealed.

On appeal, the defendant argued the trial court erred in denying a mistrial when the plaintiffs’ counsel presented a “golden rule” argument to the jury. Plaintiffs’ counsel’s closing argument consisted of telling the jury to consider the feelings of the plaintiffs in their home. The defendant objected, which the trial court overruled. Defendant conceded that this alone did not warrant an automatic mistrial; rather, the trial court’s failure to provide a curative instruction following the counsel’s objection required a mistrial. The court found that the trial court had not erred, and dismissed defendant’s characterization of the closing argument as a “golden rule” argument, instead finding it was a comment on the evidence.

The defendant next argued that in denying her motion for summary judgment, the trial court erred by holding that defamation per se does not require proof of actual damages. The court found that, in New Hampshire, no proof of specific damages is required when the jury can find that the plaintiff committed acts of libel that would tend to injure the person’s business or trade.

The defendant also argued that the trial court erred by instructing the jury that enhanced compensatory damages could be awarded without proving actual malice. The court found no error as proof of actual malice is only required when the plaintiff is a public official or figure. The plaintiffs were private persons. Rather, the plaintiffs need only prove that defendant’s conduct was more probably than not, wanton, malicious, or oppressive. The court found no issues with the trial court’s instruction to the jury.

The defendant also argued the trial court erred in finding the defendant’s speech was not of “public concern.” Defendant argued that her speech consisted of dangers to public safety, suspected criminal activity and corruption in law enforcement, constituting speech of “public concern,” and therefore requiring heightened judicial review and a finding of actual malice. Upon reviewing the content, form and context of the defendant’s letters, the court found only matters of private concern. The speech, in its private arena, was clearly false and damaging to the plaintiffs’ reputation.

The defendant also argued the trial court erred in admitting prejudicial evidence of defendant’s conduct in Massachusetts where she threatened the plaintiffs’ acquaintance. The court agreed with the trial court that the evidence was admissible under NH Rule of Evidence 404(b) because it was highly relevant to proving aggravating circumstances necessary to support an award of compensatory damages.

The defendant’s final argument was that the trial court erred in enjoining her from going within five miles of the plaintiffs’ home in Fitzwilliam and from entering the plaintiffs’ hometown of Sterling, Massachusetts. The court found that the defendant posed a serious threat and both geographical restrictions were made with a compelling interest and in a narrowly tailored fashion.

 

Joseph S. Hoppock, Law Offices of Joseph S. Hoppock, Keene, for the plaintiffs. Kelly E. Dowd, Law Offices of Kelly E. Dowd, Keene, for the defendant