Barraco v. Robinson

JOSEPH BARRACO, AN INDIVIDUAL;AND JERRY PALUHA, AN INDIVIDUAL, Appellants, v. KENYATTA ROBINSON, AN INDIVIDUAL, Respondent.

No. 72566-COA

COURT OF APPEALS OF THE STATE OF NEVADA

April 26, 2019

ORDER OF AFFIRMANCE

Joseph Barraco and Jerry Paluha appeal from final judgment following a bench trial in a tort action. Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.

Kenyatta Robinson asserted multiple claims against appellants Barraco and Paluha—including defamation and intentional interference with contractual relations—in connection with false statements appellants allegedly made about her, as well as appellants' supposed efforts to get her fired from her job as a Community Association Manager with the homeowners' association (HOA) at Allure Las Vegas, a high-rise residential complex.¹ The case proceeded to a bench trial, after which the district court entered judgment in favor of Robinson on her defamation and intentional-interference claims.

In its written decision and order, the district court listed what it considered to be 14 separate defamatory statements made by Paluha and 8 separate defamatory statements made by Barraco. Generally, the statements identified impugned Robinson's chastity by accusing her of engaging in polygamy and having an affair and a child with an HOA board member, and otherwise accused her of stealing and abusing her position with Allure HOA for her own personal gain. The district court concluded that the statements amounted to defamation per se, and it awarded Robinson $50,000 in presumed damages and $100,000 in punitive damages against each of the appellants individually. The district court additionally awarded $31,500 in compensatory damages against both appellants on the intentional-interference claim, resulting in a total award of $331,500.

On appeal, appellants argue that the theory of defamation per se relied upon by the district court to presume and award compensatory damages—imputing unchastity to a woman—violates equal protection. Appellants additionally argue that reversal is warranted on grounds that Robinson failed to prove any actual damage to her reputation, that some of their allegedly defamatory statements constituted mere opinion or hyperbole, and that substantial evidence did not support the district court's verdict on the intentional-interference claim.²

We first consider appellants' contention that the doctrine of defamation per se applied by the district court violates equal protection because it is an impermissible gender-based classification.³ Robinson correctly argues that appellants have waived the issue because they failed to raise it below. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal."). Moreover, a question exists as to whether the appellants possess legal standing to make this challenge when the rule at issue is one that targets the unchastity of women, while the appellants are men, and overturning the rule to the extent that it applies only to women would not entitle the appellants to any relief. See Elley v. Stephens, 104 Nev. 413, 416, 760 P.2d 768, 770 (1988) (noting that "a requirement of standing is that the litigant personally suffer injury that can be fairly traced to the allegedly unconstitutional [law] and which would be redressed by invalidating the [law]").

That said, we note that the Supreme Court of Nevada has reformulated the unchastity category of defamation per se as statements "imputing serious sexual misconduct." K-Mart Corp. v. Washington, 109 Nev. 1180, 1192, 866 P.2d 274, 282 (1993) (citing Carey v. Piphus, 435 U.S. 247, 262 n.18 (1978)), receded from on other grounds by Pope v. Motel 6, 121 Nev. 307, 114 P.3d 277 (2005). Because imputations of unchastity to both men and women can satisfy the new standard, appellants' argument on this point is without merit. See City of Fairbanks v. Rice, 20 P.3d 1097, 1107 (Alaska 2000) (affirming lower court's determination that "allegations of marital infidelity [against a man] were allegations of serious sexual misconduct" amounting to defamation per se); Irving v. Austin, 741 N.E.2d 931, 935 (Ohio Ct. App. 2000) (noting that an accusation against a man that he fathered a child with a woman out of wedlock would constitute "such serious sexual misconduct" as "would be defamatory without proof of special damage").

Next, we consider appellants' contention that Robinson failed to prove any actual damage to her reputation and that she was required to show that appellants' statements were actually believed by others before she could recover presumed damages. Robinson counters that she only had to prove that appellants' statements tended to affect her professional reputation, not that they actually did. We agree with Robinson.

A plaintiff asserting defamation must show "(1) a false and defamatory statement of fact by the defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages."⁴ Pope, 121 Nev. at 315, 114 P.3d at 282. "A statement is defamatory when, under any reasonable definition, such charges would tend to lower the subject in the estimation of the community and to excite derogatory opinions against him and to hold him up to contempt." PETA v. Bobby Berosini, Ltd., 111 Nev. 615, 619 n.2, 895 P.2d 1269, 1272 n.2 (1995) (emphasis added) (internal quotation marks and citation omitted), overruled on other grounds by City of Las Vegas Downtown Redev. Agency v. Hecht, 113 Nev. 644, 940 P.2d 134 (1997). Moreover, "[g]eneral damages are presumed upon proof of the defamation alone" when the statements at issue "would tend to injure the plaintiff" in such a manner traditionally categorized as defamation per se. See Bongiovi, 122 Nev. at 577, 138 P.3d at 448 (internal quotation marks omitted). This is so "because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff's reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain." Id. (internal quotation marks omitted). Nevertheless, awards of presumed damages "must still be supported by competent evidence but not necessarily of the kind that assigns an actual dollar value to the injury." Id. (internal quotation marks omitted). When determining whether such awards are excessive, this court "look[s] to how offensive the slanderous remark was, whether it was believed, how widely it was disseminated, and the plaintiff's prominence and professional standing in the community." Id. at 577-78, 138 P.3d at 448.

Here, Robinson did not have to prove that anyone believed appellants' statements or that they actually lowered her reputation in order to recover presumed damages. Nevada caselaw makes clear that statements must only tend to have a particular type of impact to constitute defamation per se, and to the extent there is any ambiguity in that inquiry, it becomes a question a fact on which this court defers to the district court. See Branda, 97 Nev. at 646, 637 P.2d at 1225-26. Moreover, even though the question of whether the statements were believed is relevant to determining whether the damages awarded were excessive, appellants do not actually argue that the damages were excessive; instead, they argue only that Robinson was required to show that someone actually believed appellants' statements in order to recover any damages at all. Appellants fail to address any of the other excessiveness factors from Bongiovi, including how offensive the statements were, how widely they were disseminated, or Robinson's professional standing in the community. Accordingly, we decline to conduct an excessiveness analysis. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an appellant's opening brief are deemed waived."); Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38 (noting that this court need not consider claims that are not cogently argued or supported by relevant authority).

Next, we consider whether appellants' statements constituted mere opinion or rhetorical hyperbole. Appellants broadly contend that multiple statements the district court recited in its decision were nonactionable on this ground, but they specifically challenge only their statements that Robinson did not know what she was doing in her job.

Only statements of fact—not those of opinion—are actionable under a theory of defamation. Nev. Indep. Broad. Corp., 99 Nev. at 410, 664 P.2d at 341. In determining whether a statement constitutes one of fact or opinion, this court looks to "whether a reasonable person would be likely to understand the remark as an expression of the source's opinion or as a statement of existing fact." Id. at 410, 664 P.2d at 342. Generally, this inquiry constitutes a question of law, but if the statement is ambiguous, "the issue must be left to the [fact-finder]'s determination." Id. Similar to statements of opinion, exaggerated or generalized statements amounting to "mere rhetorical hyperbole," as well as true statements, do not constitute actionable defamation. Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 715, 57 P.3d 82, 88 (2002) (quoting Wellman v. Fox, 108 Nev. 83, 88, 825 P.2d 208, 211 (1992)).

Here, we agree with appellants that a reasonable person would understand their statements regarding Robinson not knowing what she was doing were generalized, subjective opinions about her job performance incapable of objective verification, and thus those statements did not constitute actionable defamation. See Perfect Choice Exteriors, LLC v. Better Bus. Bureau of Central Ill., Inc., 99 N.E.3d 541, 550 (Ill. App. Ct. 2018) ("A general opinion that someone's job performance is unsatisfactory is not...