2008 VT 22


Russin
v. Wesson (2006-445)
 
2008 VT 22
 
[Filed 07-Mar-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.

 
 

2008 VT 22 

 

No. 2006-445

 

Robert L. Russin


Supreme Court


 


 


 


On Appeal from


     v.


Lamoille Superior Court


 


 


 


 


Heather Wesson, Meredith
  Manning, Jesse Hanley, 
Randy Wesson, Scott Wesson, Lisa Fuller and 


September Term, 2007


Tamara Blaisdell


 


 


 


 


 


Dennis
  R. Pearson, J.


 

James A. Dumont, Bristol, for Plaintiff-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
REIBER, C.J.   Plaintiff Robert Russin
appeals from a trial court order finding defendant, his ex-girlfriend, liable
for tortiously converting $45,000 worth of his
property but also finding plaintiff liable for $35,000 in defamation damages
for telling third parties that defendant was “a thief” and that she had
“stolen” from him and “ripped [him] off.”  We reverse.
¶ 2.            
The pertinent facts may be briefly recounted.  Plaintiff and
defendant lived together in a house in Cambridge, Vermont from 1998 until
2005.  The house was on the same property as plaintiff’s auto-repair
business.  Their cohabitation ended when defendant obtained an
abuse-prevention order against plaintiff in April 2005.  Under the terms
of the order, plaintiff was required to move out of the house, not come within
500 feet of defendant, and have no contact with defendant or their
children.  In late April, pursuant to a court order, plaintiff was granted
daytime access to the garage on the property, in which his auto-repair business
was located.  Between April 29 and May 1, plaintiff twice came within 500
feet of defendant in unsuccessful attempts to regain possession of a 2004 Dodge
pickup truck.  Plaintiff was charged with two counts of violating the
abuse-prevention order (VAPO), 13 V.S.A. § 1030, and ultimately pled no contest
to one count; the other count was dismissed.
¶ 3.            
While the VAPO charges were pending, the parties reached a stipulation,
which was approved by the family court.  Among other things, the
stipulation provided that defendant would vacate the house by May 30, 2005 in
exchange for $10,000 from plaintiff.  Defendant vacated the premises, and
plaintiff regained possession of the home before May 30.  Upon reentering
the house, plaintiff discovered “that the home, as well as the garage and work
premises, had been totally cleaned out, down to the bare walls in the house
itself,” and that “[m]uch
of the personal property . . . was also missing.”  Plaintiff then
filed this action in superior court, alleging that defendant had tortiously converted thousands of dollars worth of his
personal property when she vacated the home.  Defendant counterclaimed for
slander, based on her allegation that plaintiff had called her a thief to
dozens of townspeople.*
¶ 4.            
The claims were tried to the court over four days, after which the court
issued a twenty-four-page decision entering judgment for $45,000 on plaintiff’s
conversion claim, but also entering judgment for defendant for $35,000 on her
slander claim and $10,000 on her claim for reimbursement of certain
contributions she had made to plaintiff’s real property.  Defendant was
also ordered to return four named vehicles and associated parts to plaintiff,
and to make reasonable efforts to allow third parties to retrieve personal
property she had allegedly stored in a family member’s barn.  Plaintiff
appeals from the slander judgment only; defendant did not file a brief in this
Court.  We review the trial court’s legal conclusions under a nondeferential and plenary standard, and its findings of
fact for clear error.  Clayton v. Clayton Invs.,
Inc., 2007 VT 38A, ¶ 9, ___ Vt. ___, 929 A.2d 713.
¶ 5.            
We articulated the familiar elements of defamation, which comprises
libel and slander, in Lent v. Huntoon:
(1) a false and defamatory statement concerning another;
(2) some negligence, or greater fault, in publishing the statement;
(3) publication to at least one third person; (4) lack of privilege in the
publication; (5) special damages, unless actionable per se; and (6) some actual
harm so as to warrant compensatory damages.
 
143 Vt. 539,
546-47, 470 A.2d 1162, 1168 (1983) (footnote omitted).  Truth is a
complete defense to defamation.  Id. at 548, 470 A.2d at 1169; Lancour v. Herald & Globe Ass’n,
111 Vt. 371, 379, 17 A.2d 253, 256 (1941).  
¶ 6.            
Plaintiff contends that the trial court erred in finding that his
statements about defendant were not true.  On this point, the trial court
found as follows:
  While Plaintiff has established that Defendant tortiously converted at least some items of his business
and personal property, . . . it is quite a different matter to charge her with
being “a thief” and committing the crime of unlawfully stealing his
property.  Inasmuch as [plaintiff] has not, and cannot establish that
Defendant acted with the necessary mens rea—i.e., some guilty knowledge or intent . . .—he
cannot prove the absolute defense of truth as to those statements he did
repeatedly make.  Additionally, he admitted that he essentially had “no
basis” for the stealing charges . . . and that he wanted others in the
community to think that she was “a thief.” 
 
Based on these
findings, the court concluded that defendant had proven that plaintiff’s
statements were in fact false.
¶ 7.            
The slander judgment was premised on the legal conclusion that
plaintiff’s statement that defendant was “a thief” was false unless plaintiff
could show that defendant’s actions met all of the legal requirements of
criminal larceny.  See 13 V.S.A. §§ 2501-2502.  In particular, as
reflected in the language quoted above, the court concluded that plaintiff’s
defense of truth failed because he could not show that defendant acted with the
requisite criminal intent.  See State v. Reed, 127 Vt. 532, 538, 253
A.2d 227, 231 (1969) (conviction for larceny requires proof of wrongful taking
with intent to keep).  The trial court cited no authority for this
proposition, and none of our defamation cases support it, although there are
cases from other jurisdictions that do. See, e.g., Auto West, Inc. v. Baggs, 678 P.2d 286, 291 (Utah 1984). The Baggs court concluded that a statement that a
business associate had stolen or embezzled from a car dealership was not
substantially true because there was some evidence to support a conclusion that
the defamed party intended to return the money.  Id.  We do
not believe that the Baggs approach adequately
accounts, in a private-party case like this, for the important free-speech
interests at stake.  Instead, we believe that statements such as
plaintiff’s—which did not state that defendant had been convicted of a crime,
but only that, in his opinion, she had wrongfully taken his property—should be
judged using the common-sense “substantial truth” standard from our prior
defamation cases.
¶ 8.            
Under that standard, “[f]or the defense of truth to apply, ‘it is now
generally agreed that it is not necessary to prove the literal truth of the
accusation in every detail, and that it is sufficient to show that the imputation
is substantially true.’ “  Weisburgh
v. Mahady, 147 Vt. 70, 73, 511 A.2d 304, 306
(1986) (quoting W. Prosser & W. Keeton, The Law of Torts § 116, at 842
(1984) (footnotes omitted)).  Put another way, “ ‘it is sufficient if the
substance, the gist, the sting, of the matter is true.’ “  J.D. Lee &
B.A. Lindahl, Modern Tort Law: Liability &
Litigation § 36:23, at 36-37 (quoting Gamba
v. McLaughlin, 504 P.2d 337, 339 (Colo. 1972)).   The inquiry is
“whether the [alleged defamatory] statement produces a different effect upon
the reader than that which would be produced by the literal truth of the
matter.”  Id.  
¶ 9.            
A common factual predicate in defamation cases is a legally mistaken but
substantially accurate statement.  “For example, where the defendant
newspaper reported that the plaintiff was convicted of stalking, rather than
[the actual conviction for] harassment, the report was held to be substantially
true.”  Id. at 36-38 (citing Barnett v. Denver Pub. Co., 36
P.3d 145, 148-49 (Colo. Ct. App. 2001)).  Similarly, a leading treatise
has this to say: “Statements about crimes are often technically incorrect but
substantially true.  To laypersons, ‘theft’ may mean any wrongful taking,
including such distinct crimes as embezzlement.”  2 D.B. Dobbs, The Law of
Torts § 410, at 1148 (2001).  The common thread in these examples is that
the mistaken statement has the same effect as a perfectly accurate statement of
the true facts.  
¶ 10.         Although
among legal practitioners the terms “steal,” “thief,” and “theft” have
unambiguously criminal connotations, they are more broadly defined in lay
usage.  Compare Black’s Law Dictionary 1453, 1516, 1517  (8th ed.
2004), with Webster’s New University Dictionary 1134, 1202 (2d ed. 1984) (defining
“steal” as “to take (the property of another) without right or permission” and
“thief” as “[o]ne who steals”).  Webster’s also
defines “rip-off” as a “theft.”  Id. at 1013.  These lay
definitions are quite similar to the definition of tortious
conversion employed by the trial court: “that [a party] has appropriated . . .
property to that party’s own use and beneficial enjoyment, has exercised
dominion over it in exclusion and defiance of the owner’s right, or has
withheld possession from the owner under a claim of title inconsistent with the
owner’s title.”   
¶ 11.         Under
similar circumstances, other courts have concluded that the “sting” of an
imputation of a crime was no worse than the sting of the civil truth. 
See, e.g., Sivulich v. Howard Publ’ns, Inc., 466 N.E.2d 1218, 1220 (Ill. App. Ct.
1984) (statement in newspaper that “[c]harges of
aggravated battery have been filed” was substantially true although in fact
only a civil suit had been instituted); see also Zerangue
v. TSP Newspapers, Inc., 814 F.2d 1066, 1073-74 (5th Cir. 1987) (collecting
cases).  Similarly, some courts have simply applied the generic
substantial-truth rule to statements imputing one crime, when the truth was
that a different but similar crime was committed or charged.  See, e.g., Barnett,
36 P.3d at 148 (“Although there is a distinction between harassment, which is a
misdemeanor, and stalking, which is now a felony, both terms describe similar
repeated, unsolicited behavior.”).
¶ 12.         Here,
the trial court explicitly found that defendant had tortiously
converted more than $45,000 of plaintiff’s property.  See P.F. Jurgs & Co. v. O’Brien, 160 Vt. 294, 299-301, 629
A.2d 325, 328-30 (1993) (defining conversion and explaining that intent is not
a prerequisite for liability).  As noted supra, ¶ 10, the everyday
definitions of the terms plaintiff used to describe defendant’s actions are
substantially the same as the legal definition of tortious
conversion.  Certainly, they are similar enough that the “sting” of the tortious truth would not have been any less than the
off-the-cuff accusations of “theft” or “stealing.”  It cannot be the law
that a private party is liable in defamation to a converter for calling her a
“thief” or stating that she “ripped [him] off” or “stole” his property. 
Such statements were substantially true under Weisburgh. 
The trial court’s finding that they were not was clearly erroneous and must be
reversed.
The slander judgment is reversed, and the slander award is vacated.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





* 
Defendant also claimed that she had an equitable interest in the real property,
in plaintiff’s auto-repair business, and in various other assets.  Those
claims are not at issue in this appeal.



