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Boyle v. Dwyer

Supreme Court of New Hampshire, Rockingham

August 16, 2019

JAMES G. BOYLE, INDIVIDUALLY AND AS TRUSTEE & a.
v.
MARY CHRISTINE DWYER

          Argued: April 18, 2019

          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.

          LYNN, C.J.

         The plaintiffs, James G. Boyle, individually and as trustee of 150 Greenleaf Avenue Realty Trust, and Minato Auto, LLC, appeal an order of the Superior Court (Schulman, J.) dismissing their defamation claim against the defendant, Mary Christine Dwyer. They challenge the trial court's application of the pertinent law in assessing their claim, and assert that they pled sufficient facts in their complaint to survive a motion to dismiss. We affirm.

         I

         The following facts are drawn from the plaintiffs' complaint[1] or are otherwise undisputed by the parties. Boyle is the majority owner and manager of Minato Auto, LLC, which operates a Toyota dealership at 150 Greenleaf Avenue in Portsmouth (the property). The State of New Hampshire sold the property to Boyle, who later discovered that it contained a sewer line owned by the City of Portsmouth (the City). The presence of the municipal sewer line was not clearly indicated on the deed, and has impacted Boyle's plans for developing the property.

         Since approximately 2003, Boyle has been involved in numerous disputes with the City. Relevant here is a lawsuit Boyle filed against the City for trespass and nuisance based on the presence of the sewer line on the property. Following a two-week trial, a jury found the City liable to Boyle for damages in excess of $3.5 million. This dispute remains ongoing, as Boyle, alleging errors at trial, maintains that the damages award should have exceeded $10 million. Also relevant to this appeal is a notice of taking, filed in December 2016, in which the City seeks to take by eminent domain approximately one-third of the property, including the portion that contains the sewer line.

         In the fall of 2017, the defendant was running for re-election to the Portsmouth city council. During her campaign, she responded to a written questionnaire, captioned "Candidate Survey," which was subsequently published on the website PortsmouthNH.com as part of a "voter's guide." The questionnaire was sent to all of the 18 candidates running for city council that fall. The following question (Question Seven) regarding the dispute between Boyle and the City over the sewer line, along with the defendant's response, was included in the publication:

Q7: The council is attempting to take 4.6 acres of land containing a city sewer line from Toyota of Portsmouth owner James Boyle. In March, Boyle said he was seeking about $10 million in a settlement offer, but no settlement was reached.
A) Should the council have settled with Boyle at the amount he requested?
Certainly not. Mr. Boyle purchased a building on wetlands, which had been sold to him by the N.H. Department of Education; the building was sold because it was sinking. The wetland and the sewer line are clearly marked on the deed to the property. Ever since then, he has been trying to get the taxpayers of the city of Portsmouth to pay for his apparent mistake through filing various lawsuits. The city has repeatedly defended taxpayers against these lawsuits. Why would we give Mr. Boyle $10 million of taxpayer money simply to mollify him?
B) Should the city proceed with efforts to take the land by eminent domain?
Yes. In a ruling from one of Mr. Boyle's lawsuit attempts to pry money out of Portsmouth taxpayers, the presiding judge suggested the eminent domain remedy to the city, apparently believing that it might end the controversy and stop clogging up the courts. The judge's advice seemed like a feasible direction. The city can then manage that portion of the property, monitor the sewer pipe that runs under a corner of the property, and deal appropriately with the wetlands.

         Following the publication of the questionnaire, Boyle sent the defendant a letter alleging that the defendant's response to Question Seven "constitute[s] libel and slander." The letter included a demand that the defendant "issue an immediate retraction indicating that [her] statements were false." The defendant did not respond.

         The plaintiffs then filed a complaint against the defendant in the trial court, alleging claims of defamation and interference with existing and prospective contractual relations. In support of their defamation claim, the plaintiffs asserted, as relevant here, that the defendant's response to Question Seven was "false and defamatory," and that it had the effect of "directly injur[ing]" Boyle and his business activities. The defendant filed a motion to dismiss, arguing, among other things, that her statements in response to Question Seven were not actionable for defamation, as they were either statements of fact that were substantially true or did not convey a defamatory meaning, or statements of opinion.

         The trial court granted the defendant's motion to dismiss, basing its decision primarily on the protections afforded allegedly defamatory speech under the First Amendment to the United States Constitution. The court also concluded, however, that the plaintiffs' claim would likewise fail under New Hampshire common law, given that the defendant's statements "were limited to (a) statements of uncontested facts, (b) statements of non-defamatory facts and (c) statements ...


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