2014 COA 61
Colo. Ct. App.2014Background
- Goss, widow and personal representative of Earl Biss's estate, sues Zueger and related plaintiffs for disparagement and alleged unauthorized reproductions of Biss's work.
- Plaintiffs claim Goss made online statements harming their ability to sell, promote, or display Biss's art.
- Trial on two claims proceeded to jury: intentional interference with prospective business advantage and defamation; other claims dismissed at close of evidence.
- Jury awards: $86,601 for interference and $10,000 for defamation; other claims (outrageous conduct and civil extortion) were dismissed.
- Issue on appeal include discovery sanction, defamation per se instruction, public figure/public concern status, damages, and cross-appeal on dismissed claims.
- Court affirms interference verdict and dismissal of outrageous conduct/extortion, but reverses defamation verdict and remands for retrial on that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discovery sanction abuse | Goss contends preclusion of former attorney was error | Court acted within discretion due to late disclosure and prejudice | No abuse; sanction upheld |
| Defamatory per se instruction | Man in Black statement is defamatory per se | Statement not verifiable fact; opinion; not per se defamatory | Statement not defamatory per se; new trial required due to multi-statement verdict |
| Public figure/public concern | Plaintiffs are public figures or statements involve public concern | Private figures; statements not of public concern | Not public figures; statements not public concern; retrial guidance issued |
| Damages for defamation | Damages supported by evidence of lost sales | Damages speculative | Damages for interference upheld; defamation remanded for retrial |
| Cross-appeal on outrageous conduct/extortion | Claims should not have been dismissed | No civil extortion statute; claims unsupported | Outrageous conduct and extortion claims affirmed as dismissed |
Key Cases Cited
- Pinkstaff v. Black & Decker (U.S.) Inc., 211 P.3d 698 (Colo. 2009) (abuse of discretion standard for discovery sanctions)
- Keith v. Valdes, 94 P.2d 897 (Colo. App. 1997) (disclosure helps prevent trial by ambush; harmless error standard)
- Todd v. Bear Valley Vill. Apartments, 980 P.2d 973 (Colo. 1999) (factors for substantial justification or harmlessness of late disclosure)
- Keohane v. Stewart, 882 P.2d 1298 (Colo. 1994) (defamation: fact vs. opinion; constitutional protection for imaginative expression)
- NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6 (Colo. 1994) (two-part test for defamation: verifiable fact and factual assertion)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (established standard for defamation damages and fact-fact dichotomy)
- Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997) (reversible verdict when defamatory statements in multi-statements case; need clarity on relied-upon statements)
- City of Aurora in Interest of Util. Ent. v. Colo. State Eng'r, 105 P.3d 595 (Colo. 2005) (harmlessness principle in discovery disclosures)
- Gordon v. Boyles, 99 P.3d 75 (Colo. App. 2004) (determine defamation: factual assertion and context)