JAMES G. BOYLE, INDIVIDUALLY AND AS TRUSTEE & a.
MARY CHRISTINE DWYER
Argued: April 18, 2019
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.
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.
following facts are drawn from the plaintiffs'
complaint 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.
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.
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
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
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.
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
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
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 ...