Opinion
C.A. PC-2019-1798
03-09-2022
WAYNE S. FARING, Trustee of the Wayne S. Faring Trust dated March 12, 2007 and SHERRIE G. FARING, Trustee of the Sherrie G. Faring Trust dated March 12, 2007, Plaintiffs, v. JEFFREY RUNEY and JEANETTE RUNEY, Defendants.
For Plaintiffs: David M. D'Agostino, Esq.; Sarah F. Malley, Esq. For Defendants Pro Se:: Zachary W. Berk, Esq.; Paige V. Schroeder, Esq.
For Plaintiffs: David M. D'Agostino, Esq.; Sarah F. Malley, Esq.
For Defendants Pro Se:: Zachary W. Berk, Esq.; Paige V. Schroeder, Esq.
DECISION
LANPHEAR, J.
After resolving the plaintiffs' claims in previous orders, this matter came on for a nonjury trial before the Court on defendants' counterclaims.
Travel
The plaintiffs commenced this action in February of 2019 claiming ownership of a strip of land which lies between their property and the defendants' property on East Wallum Lake Road in Burrillville, Rhode Island. The relationship between the various neighbors quickly became contentious and protracted, requiring police intervention.
Requests for equitable relief were heard in December 2019. In August 2020, this case proceeded to a jury waived trial. After two surveyors testified, plaintiffs sought to amend the complaint. After the amendment, the Court considered cross-motions for summary judgment. In September 2021, the Court ruled on the pending summary judgment motions, essentially finding that Mr. and Mrs. Runey were the owners of the disputed parcel. Partial judgment was entered in favor of Mr. and Mrs. Runey on all claims in the amended complaint on February 3, 2022.
Three counterclaims then remained before the Court. See amendment to Defendants Motion for Counterclaim to Plaintiffs' Second Amended Complaint of May 2, 2020. On February 11, 2022, the nonjury trial continued to resolve the counterclaims.
During the trial, Mr. and Mrs. Runey indicated that they were not proceeding on and wished to withdraw Count III, determination of the boundary line, as it was no longer in question. Without objection, the Count was voluntarily dismissed. The trial then proceeded.
Findings of Fact
After trial, the Court makes the following findings of fact:
Wayne and Sherrie Faring (plaintiffs) own certain property at 860 East Wallum Lake Road in Burrillville for many years either directly, or as trustees of the Wayne S. Faring Trust and the Sherrie G. Faring Trust. Jeffrey and Jeanette Runey own property directly to the south of the Faring property, also on East Wallum Lake Road. The Farings' property also extends to property to the south of the Runeys' property, which the Farings hoped to develop into smaller residential lots. The Farings' and the Runeys' residences each border on a private driveway. As the dispute over the intended development grew more tense, so did the relationship between the parties.
In 2019, Karly Faring, the plaintiffs' daughter, and Jesse Howard began to reside on the Farings' property. After this case proceeded to a failed mediation and to a summary judgment hearing, the relationship of Mr. Howard and the Farings toward the Runeys became hostile. In May 2019, this Court issued a restraining order against Mr. Howard (PC-2019-5152).
During one heated argument in 2019, Mr. Howard threatened to kill Mr. Runey. In February of 2020, when Mr. Runey was driving home from work, Mr. Howard blocked the driveway. During this quarrel, Mr. Howard verbally threatened to harm the Runeys' children and challenged Mr. Runey to a fight. Mr. Faring then drove home from work after several police vehicles were already near his home. He did not encourage Mr. Howard to take these actions on that day, nor did he condone his behavior. Mr. Faring acknowledged that Mr. Howard was the father of his grandchild but indicated that he moved off the property in 2020.
In October 2019, before this Court had made any findings, Mr. Faring filed a complaint with the Rhode Island Board of Registration for Professional Land Surveyors against the surveyor who testified for the Runeys as an expert witness. See complaint, Exhibit 10.
Although the complaint is not directed at Mrs. Runey, it mentions her at length, indicating that she perpetuated a lie, committed collusion with the surveyor and was a part of a fraudulent scheme regarding the properties' borders.
Mrs. Runey is not presently employed in the legal or real estate fields as she works part-time near home to be near her children. Previously, she worked in real estate law as a transaction coordinator, and she intends to return to the field after her children are older. She is concerned that the complaint will prevent her from obtaining employment in this field.
Mr. Faring readily admitted that he filed the complaint against the surveyor. He claimed that it was not filed out of spite or ill will but because he believed (and continues to believe) that the surveyor was incorrect in his findings.
The Supreme Court has encouraged this Court to determine and note the credibility of witnesses in contested hearings. Only two witnesses testified at the trial on the counterclaim: Mrs. Runey and Mr. Faring. The Court found Mrs. Runey to be intelligent and well-organized and quite credible. Of course, she had little direct knowledge of the arguments between her husband and Mr. Howard, until she came to the scene. However, none of her testimony was disputed. She openly acknowledged when she was nearby and when she was not, that she is not currently employed in real estate or actively seeking such a position at present. The Court found her forthright and consistent.
The only witnesses on the abbreviated trial on plaintiffs' original claims were the two opposing surveyors, but those claims have been amended and dismissed.
Mr. Faring was also credible. He was straightforward, even politely acknowledging that he believed the surveyor's findings (and to some extent this court's rulings) were incorrect. He appears to continue to believe he was cheated but denies that he filed the complaint spitefully against Mrs. Runey, or that he encouraged Mr. Howard to be physically aggressive.
Analysis
A
Intimidation
After presentation of all evidence, the parties and the Court addressed Count II in open court. While the record speaks for itself, the Court noted that "intimidation" has not been recognized as a separate cause of action in Rhode Island law, and Rhode Island General Laws ch. 34-37 regarded claims of discrimination in housing cases. As no discrimination could be identified, the Court dismissed Count II.
Count I, the defamation count, remained and the Court reserved its ruling thereon.
1
The Elements of Defamation
The elements of a defamation action were recently described by our high court:
'"To prevail in a defamation action, a plaintiff must prove: '(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher'; and (d) damages, unless the statement is actionable irrespective of special harm." Marcil v. Kells, 936 A.2d 208, 212 (R.I. 2007) (quoting Lyons v. Rhode Island Public Employees Council 94, 516 A.2d 1339, 1342 (R.I. 1986)).
"With respect to the first element of defamation, a plaintiff must show that the statement is 'false and malicious, imputing conduct which injuriously affects a man[']s reputation, or which tends to degrade him in society or bring him into public hatred and contempt . . . .'" Id. (quoting Reid v. Providence Journal Co., 20 R.I. 120, 37 A. 637, 638 (1897)). '"[T]he decisive question is what the person or persons to whom the communication was published reasonably understood as the meaning intended to be expressed."' Id. at 213 (quoting Restatement (Second) Torts § 563 cmt. e. (1977)).
It is well settled that whether a particular communication is defamatory or not is a question of law for the court to decide, and not an issue of fact for a jury. See Marcil, 936 A.2d at 213; Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 750 (R.I. 2004); Elias v. Youngken, 493 A.2d 158, 161 (R.I. 1985). Furthermore, we have held that in making this determination, the court must consider the allegedly defamatory words "in the context of the publication in which they appear," rather than read them in isolation. Marcil, 936 A.2d at 213. "The suspect verbiage is to be construed in its 'plain and ordinary sense and 'presumed to have [been used] in [its] ordinary import in the community in which [it is] uttered or published.'" Id. (quoting Reid, 20 R.I. at 120, 37 A. at 637). See also Burke v. Gregg, 55 A.3d 212, 218 (R.I. 2012).2
Mr. Howard's Threats
Obviously, it is the responsibility of the counterclaim-plaintiffs to establish that the counterclaim-defendants uttered a false and defamatory statement about them. Mrs. Runey testified that Mr. Howard threatened to harm Mr. Runey, ordered him to stay off the property in question, and even threatened the Runeys' children. Mr. Howard was staying on Mr. and Mrs. Farings' property and had a relationship with their daughter and grandchild. The Court cannot infer, from that, that Mr. or Mrs. Faring made any statement or caused the statements by Mr. Howard to be uttered.
The words uttered by Mr. Howard appear to have been designed to provoke violence and instill fear. The Court finds the words to be abhorrent and totally unnecessary. However, they were not made to "defame" the Runeys or their reputations. There was no statement made to others (except to the parties who were involved in the argument), and no false or defamatory statement was being communicated to a third party. Moreover, there was no evidence to establish that the Farings were working in concert with Mr. Howard. Mr. Faring's testimony leads the Court to reasonably infer that Mr. Howard and the Farings were not acting in concert on that day. Accordingly, these actions do not constitute defamation by Mr. or Mrs. Faring.
3 The Complaint to the Registration Board
Mrs. Runey then alleges that a complaint to the Rhode Island Board of Registration for Professional Land Surveyors in October 2019 defamed her (see Exhibit 10). The complaint was filed by Mr. Faring against Christopher Palmer, the surveyor and expert witness for the Runeys. The complaint alleges that Mrs. Runey lied and, with Mr. Palmer, perpetuated a "fraudulent Runey-Palmer survey," Ex. 10, at 3, and made "a fraudulent attempt to continue the Jeanette Runey lie about the boundary line . . ." Ex. 10, at 3. The complaint further claims "The Runeys knowingly, fraudulently and criminally recorded . . . the fraudulent survey." Exhibit 10, at 4.
During the trial it was established that Mrs. Runey was employed by assisting real estate attorneys with legal work through 2010. She was a transactional coordinator for several firms in Rhode Island and Massachusetts. Now staying at home with her children, she does not maintain certification as a paralegal. Mrs. Runey testified that she may return to real estate work full-time when her children are older. She has applied for several positions but was unsuccessful as she continues to care for her children for some of the day. She is in fear that this complaint may have harmed or will harm her reputation in the profession. On cross, she testified that she did not know if she lost business or employment because of the complaint, but she believed her reputation was harmed.
Proof of Mrs. Runey's damages is scant and speculative. The Farings failed to show that any potential employer saw the complaint or would be likely to discover it. Moreover, the complaint is not against her, but the surveyor. It is unclear how a potential employer or client would be likely to see the document, particularly when it is not being acted upon.
Mr. Faring's counsel stresses that the communication to the board was a privileged communication by Mr. Faring, referencing the following case:
Preliminarily, we examine the qualified privilege concept. It permits a person to escape liability for a false and defamatory statement made about another if the occasion for the publication is such that the publisher acting in good faith correctly or reasonably believes that he has a legal, moral or social duty to speak out, or that to speak out is necessary to protect either his own interests, or those of third persons, or certain interests of the public. The occasion, of course, must not be abused. Underlying the principle is the public policy consideration that unless such an occasion is privileged, persons would not speak, even though the interests of the community at large required that they do so, lest they be exposed to a suit for defamation for what they might say. Correlatively, of course, there must be a reciprocity of duty between the publisher and the person to whom the publication is addressed, and the circumstances should reasonably demonstrate that the recipients have an interest in receiving it corresponding to that of the publisher
in making it. Hayden v. Hasbrouck, 34 R.I. 556, 560, 84 A. 1087, 1089 (1912); 3 Restatement, Torts, Topic 3, Conditional Privilege, Scope Note at 240-41 (1938); Gately on Libel and Slander § 443 at 202-03 (6th ed. 1967). . . .
Without need of examining further into the authorities or attempting to distinguish them, it is obvious that the question of whether or not a communication by an employer to his employees concerning a fellow employee's misconduct is qualifiedly privileged will turn on the particular fact situation of each case. The determination of whether on those facts the privilege exists is exclusively legal and is for the court, and not for the jury. 3 Restatement, Torts § 619; Mason H. Newell, The Law of Slander and Libel § 345 and § 395 (4th ed. 1924); People's Life Insurance Co. of Washington, D.C v. Talley, 186 S.E. 42, 44 (Va. Ct. App. 1936); Combes v. Montgomery Ward & Co., 228 P.2d 272, 276 (Utah 1951). And the test is whether in order to protect a common interest an employer either correctly or reasonably believes that a plaintiffs co-workers are entitled to be advised of the nature of his misconduct. 3 Restatement, Torts § 596. . . .
There remains the further problem of whether defendant unreasonably exercised the privilege. Clearly, of course, an occasion otherwise conditionally privileged cannot be sustained if the defamatory statements have been induced by malice. Tillinghast v. McLeod, 17 R.I. 208, 21 A. 345 (1891). The word "malice" as we use it "does not mean malice in law, or the absence of legal excuse, but malice in the popular sense, the motive of personal spite or ill will. This is sometimes called express or actual malice." Hayden, supra, 34 R.I. at 562, 84 A. at 1089-1090.
Ordinarily malice in this sense is presumed from the defamatory nature of the publication, and a defamed person may rely upon that presumption without the necessity of offering proof. Where, however, the communication is privileged, the presumption disappears and is replaced by one of good faith. It then becomes the defamed person's obligation to prove express malice. Hayden, supra. To support his burden, he [or she] must show that the primary motivating force for the communication was the publisher's ill will or spite toward him [or her]. Where, however, the causative factor was the common interest, a publisher's resentment toward the person defamed is immaterial and any incidental gratification is without legal significance. Boston Mutual Life Insurance Co. v. Varone, 303 F.2d 155, 159 (1st Cir. 1962); Coleman v. Newark Morning Ledger Co.,
149 A.2d 193, 202 (N.J. 1959); William L. Prosser, The Law of Torts § 110 at 821-22 (3d ed. 1964).
Whether ill will or spite is the incentive for a publication is ordinarily for the jury to decide unless, of course, on the facts the only reasonable conclusion that can be reached is that the ill will or spite, if indeed they existed, were merely incidental rather than motivating in which event a verdict should be directed for the defendant. 3 Restatement, Torts § 619(2). See Sylvester v. D'Ambra, 73 R.I. 203, 54 A.2d 418 (R.I. 1947); Ponticelli v Mine Safety Appliance Co., 104 R.I. 549, 247 A.2d 303, 305-07 (1968) (footnotes deleted).
This count is a closer call. Although Mrs. Runey's efforts were admirable in presenting a case pro se, she failed to present concrete damages. Moreover, the Court finds that at the time Mr. Faring filed the complaint he believed he was being wrongfully cheated out of his own land, a position he unfortunately continues to hold. The comments he made and the complaint itself were therefore privileged as described above. Accordingly, the defamation count must fail.
Accordingly, even if the Court reached damages, it could award only nominal damages.
Conclusion
Judgment shall enter for Mr. and Mrs. Faring on each count of the Counterclaim. Final judgment may therefore enter.