A. George Mertz & a. v. Town of Piermont & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0257, A. George Mertz & a. v. Town of
Piermont & a., the court on April 29, 2021, issued the following
order:

The defendants’ motion to strike embedded image in reply brief is
granted. The plaintiffs concede that the embedded image was not presented to
the trial court. On appeal, we consider only evidence and documents
presented to the trial court. Flaherty v. Dixey, 158 N.H. 385, 387 (2009); see
Sup. Ct. R. 13; see also In the Matter of Birmingham & Birmingham, 154 N.H.
51, 56 (2006) (self-represented litigants are bound by the same procedural
rules that govern parties represented by counsel).

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
The plaintiffs, A. George Mertz and Teran Mertz, appeal the order of the
Superior Court (Tucker, J.) dismissing their claim against the defendants, the
Town of Piermont and a number of town officials and personnel, for
defamation. The plaintiffs argue that the trial court erred in ruling that the
allegations in their amended complaint fail to state a claim for which relief may
be granted. We affirm.

The plaintiffs, husband and wife, are present or former town office
holders. In their amended complaint, they allege that the defendants defamed
them during an October 11, 2016 board meeting following an incident that
occurred in the town administrative offices earlier that day. The plaintiffs also
allege that the defendants defamed them at other town meetings, in a
newspaper article, on a Facebook page, and in other publications. The
allegations involve the plaintiffs’ behavior toward the defendants and their use
of government privileges and services.

To survive a motion to dismiss, the plaintiffs must allege facts to show
that the defendants failed to exercise reasonable care in publishing a false and
defamatory statement of fact about the plaintiffs to a third party. Cluff-Landry
v. Roman Catholic Bishop of Manchester, 169 N.H. 670, 678 (2017). The
defamatory statement must be communicated to and understood by an
individual. Waterfield v. Meredith Corp., 161 N.H. 707, 711 (2011). A
statement of opinion is not actionable unless it may reasonably be understood
to imply the existence of a defamatory fact as the basis for the opinion.
Thomas v. Telegraph Publ’g Co., 155 N.H. 314, 338 (2007). Whether a given
statement can be read as being or implying an actionable statement of fact
presents a question of law to be determined by the trial court in the first
instance. Id. at 338-39.

The plaintiffs concede that they were elected public officials for the
purposes of their defamation allegations. Thus, they have the burden of
proving not only that the defendants published defamatory statements about
them, but also that the defendants acted with actual malice. Nash v. Keene
Publishing Corp., 127 N.H. 214, 222 (1985). To prove actual malice, the
plaintiffs must show, by clear and convincing evidence, that the defendants
acted either with knowledge of the falsity of their statements or with a reckless
disregard for truth or falsity. Id. “[M]ere negligence in failing to verify
statements and discover falsity does not rise to the level of reckless disregard
for truth or falsity.” Id. at 223.

The trial court found, upon review of the plaintiffs’ complaint, that many
of the defendants’ allegedly defamatory statements were not assertions of fact,
but rather statements of opinion that did not imply the existence of a
defamatory fact. See Thomas, 155 N.H. at 338. The court found that other
statements that might qualify as statements of fact lacked sufficient context
from which to find that the statements pertained to either plaintiff. With
respect to one statement that the court found might otherwise satisfy the
actual malice standard, it found that the plaintiffs did not allege sufficient facts
to show that the statement was communicated to and understood by an
individual to be defamatory. See Waterfield, 161 N.H. at 711. As for the
remaining statements, the court found that, even if any of them were
defamatory, the plaintiffs failed to allege sufficient facts to show actual malice,
that is, that the defendants acted either with knowledge of the falsity of the
statement or with a reckless disregard for its truth or falsity. See Nash, 127
N.H. at 222.

As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the plaintiffs’ challenges to it, the
relevant law, and the record submitted on appeal, we conclude that the
plaintiffs have not demonstrated reversible error. See id.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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