2009-828 Dean J. Waterfield v. Meredith Corporation & a.

No. 2009-828

Hillsborough-southern judicial district

Sheehan Phinney Bass + Green, P.A.

Supreme Court under Rule 33(2), on the brief, for the plaintiff. Randy A. Britton, non-lawyer representative appearing by approval of the

On-Site Reporter. We affirm in part, reverse in part, and remand. defendants, Meredith Corporation, John Doe Anchorperson(s), and John Doe

and Daniel K. Fink on the brief), for the defendants.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as choice-of-law factors set forth in Clark v. Clark p. 2 broadcast’s television signal did not reach New Hampshire. Applying the that the plaintiff’s cause of action did not arise in this state because the limitations had expired in the other potential jurisdictions.” Further, it found Hampshire address for the sole purpose of filing this suit because the statute of Hampshire at the time he filed suit and had in fact “maintained the New The trial court concluded that the plaintiff was not a resident of New

limitations is controlling. and that the action is timely because New Hampshire’s three-year statute of not a final, valid judgment for purposes of res judicata or collateral estoppel, The plaintiff, in response, argued that the Connecticut probate court’s ruling is the plaintiff’s action is barred by Connecticut’s two-year statute of limitations. court found the contents of the news story to be substantially true; and (2) that the plaintiff’s defamation claim is foreclosed because a Connecticut probate The defendants moved for summary judgment on two grounds: (1) that

depositions, answers to interrogatories, and admissions on file, together with A moving party is entitled to summary judgment “if the pleadings,

properly applied Keeton essentially rephrasings of the central question of whether the trial court The plaintiff raises sixteen issues in his notice of appeal. Many are 2

he filed suit and that the television signal did not reach New Hampshire. court erred in finding that he was not domiciled in New Hampshire at the time limitations barred his claim. On this issue, the plaintiff argues that the trial

judicata or collateral estoppel. things, that the story defamed him. did not reach the issue of whether the defamation action was barred by res was untimely and granted the defendants’ motion for summary judgment. It August 21, 2006, the plaintiff filed suit in superior court alleging, among other plaintiff was again incarcerated in Connecticut. Nearly three years later, on (2011), should apply. Accordingly, the trial court ruled that the plaintiff’s claim a news story about the plaintiff’s handling of his wife’s estate. At that time, the determined that Connecticut’s limitations period, Conn. Gen. Stat. § 52-597 television station owned by the Meredith Corporation, an Iowa corporation, ran and Keeton v. Hustler Magazine, Inc., 131 N.H. 6, 13 (1988), the trial court extradited to Connecticut. On August 24, 2003, WSFB-TV, a Connecticut, 107 N.H. 351, 353-55 (1966), On August 8, 2003, the plaintiff was arrested in Nashua and soon after

removed as administrator and charged with various crimes. a consequence of his management of the estate, however, he was subsequently appointed administrator of his wife’s estate by a Connecticut probate court. As time, the plaintiff was incarcerated in Connecticut. After his release, he was own law. Keeton p. 3 of-law influencing considerations; if it is procedural, we generally apply our interested state and, if so, we then conduct an analysis based upon five choicesubstantive, we determine whether it actually conflicts with the laws of another first decide whether a relevant law is substantive or procedural; if it is states also have an interest, we treat potential conflicts of law as follows: we When New Hampshire is the forum for a suit in which one or more other

analysis in the appropriate case”). limitations question could be analyzed with reference to . . . choice-of-law In Keeton New Hampshire Supreme Court left open the possibility that the statute of Smith v. Morbark Industries, Inc., 733 F. Supp. 484, 486 (D.N.H. 1990) (“the resident and the cause of action did not arise in this state. Id. at 14; see also without a choice-of-law analysis, where none of the parties is a New Hampshire rules,” and did not address whether we would apply our limitations period, also recognized that “statutes of limitations do differ from other procedural “without appeal to our choice-influencing considerations.” Id. at 15. But we or the cause of action arose in this State,” our limitations period applies explained that “in any case in which either party is a New Hampshire resident barred as untimely. procedural statutes and accordingly apply our own law. Id. at 14. We broadcast, if Connecticut’s two-year statute of limitations applies, the suit is, we noted that we generally treat statutes of limitations as filed almost three years after the airing of the allegedly defamatory television cause of action accrued.” RSA 508:4, II (2010). As the writ in this case was, 131 N.H. at 13-14. otherwise provided by law, may be brought only within 3 years of the time the In New Hampshire, “[p]ersonal actions for slander or libel, unless

League Entm’t, 149 N.H. at 482. We review the trial court’s application of the law to the facts de novo. Big facts showing that there is a genuine issue for trial.” RSA 491:8-a, IV (2010). depositions, answers to interrogatories, or admissions, must set forth specific denials of his pleadings, but his response, by affidavits or by reference to judgment. Id. “[T]he adverse party may not rest upon mere allegations or entitled to judgment as a matter of law, we will affirm the grant of summary evidence discloses no genuine issue of material fact, and if the moving party is League Entm’t v. Brox Indus., 149 N.H. 480, 482 (2003). If our review of that drawn from them, in the light most favorable to the non-moving party. Big we consider the affidavits and other evidence, and all inferences properly 491:8-a, III (2010). In reviewing the trial court’s grant of summary judgment, and that the moving party is entitled to judgment as a matter of law.” RSA the affidavits filed, show that there is no genuine issue as to any material fact embarrassment” in this state. This argument was not raised in his notice of

p. 4 See “scientific proof,” expert witness testimony would be required on the subject. representative contained in his motions for reconsideration constitute Further, to the extent the plaintiff alleges that the assertions of his 4

he suffered “emotional distress, mental anguish, and continued The plaintiff also argues that the case arose in New Hampshire because

491:8-a, IV. regarding the publication of the alleged defamation in New Hampshire. RSA plaintiff has not carried his burden to show that there is a genuine issue of fact requirements for admissible expert testimony. Therefore, we conclude that the representative is qualified as an expert or that his assertions satisfy the There is no evidence in the record to support a conclusion that the plaintiff’s circumstances of this case, we decline to do so now. has applied the principles and methods reliably to the facts of the case.”). testimony is the product of reliable principles and methods; and (c) The witness court finds: (a) Such testimony is based upon sufficient facts or data; (b) Such a (2007) (“A witness shall not be allowed to offer expert testimony unless the or occupation as to be beyond the ken of the average layperson.”); RSA 516:29when the subject presented is so distinctly related to some science, profession that the alleged defamation must be communicated to and understood Laramie v. Stone, 160 N.H. 419, 427 (2010) (“Expert testimony is required transmitted. Publication is an essential element of defamation and requires Publication requires more than a showing that a receivable signal was

New Hampshire case recognizing such a presumption, and under the radio, or television. However, he does not cite, and we are not aware of, any issue of publication if the communication was made through newspapers, plaintiff cites several cases that he alleges allow for a presumption as to the individual. p. 4 See 50 Am. Jur. 2d Libel §§ 220, 228 (2006). In his reply brief, the

West Point.” Systems (Mechanical) Engineering from the United States Military Academy at background as “a licensed engineer with a[n] undergraduate degree in Weapons contour lines across the New England [a]rea from the WFSB-TV [s]tation” and “proof” apparently stems from his representative’s “work calculating [signal] signal strength of the defendants’ broadcast reached New Hampshire. This further asserts that he has demonstrated “undeniable scientific proof” that the presumed that someone in New Hampshire saw [the broadcast].” The plaintiff he argues that if he has proved that a receivable signal reached the state, “it is was, in fact, received and understood by any individual in this state. Rather, action arose in New Hampshire, the plaintiff does not allege that the broadcast resident of New Hampshire at the relevant time. As to whether the cause of action arose in New Hampshire and whether at least one of the parties was a We turn first to the threshold questions of whether the plaintiff’s cause of fact, see p. 5 5 We hold first that the issue of domicile is a mixed question of law and consideration is the domiciliary of the plaintiff at the time of the accident.” Roll purpose of determining domiciliary in choice-of-law analyses the relevant the date the cause of action arose. “It is well settled in tort cases that for the opportunity to rule on this issue, we are persuaded that the controlling time is issue, and remand for further proceedings consistent with this opinion. In residency at the time the writ was filed. Although we have not had the Introductory Note, ch. 7, at 414 (1971). Thus, we reverse the trial court on this Cir. 1974). p. 4 See Next we address whether the trial court erred by looking to the plaintiff’s generally Restatement (Second) of Conflict of Laws, enter into resolution of choice-of-law issue), aff’d. per curiam, 497 F.2d 897 (2d 301 (S.D.N.Y. 1973) (post-accident change of domicile by a plaintiff will not Cir. 1972); Wheeler v. Standard Tool & Manufacturing Co., 359 F. Supp. 298, Summers v. Interstate Tractor and Equipment Co., 466 F.2d 42, 48 n.3 (9th v. Tracor, Inc., 140 F. Supp. 2d 1073, 1080 n.5 (D. Nev. 2001); see also

prior to his August 8, 2003 arrest and subsequent extradition. incarcerated in Connecticut, because he lived in New Hampshire immediately New Hampshire resident at the time of the broadcast even though he was instead of his residency at the time of the broadcast. He asserts that he was a court erred in considering his residency at the time of the filing of the writ, not permitted to resolve on summary judgment. He also argues that the trial residency and argues that the issue is a question of fact which a trial court is upon a preliminary section of State v. Company, 49 N.H. 240 (1870)). is a resident of New Hampshire. The plaintiff therefore focuses on his v. Vachon Management, 144 N.H. 660 (2000), which had erroneously relied As to the parties’ residency, it is undisputed that none of the defendants 42, 47 (2009) (calling into question the precedential value of Town of Seabrook and not part of the opinion. See State v. Lake Winnipesaukee Resort, 1 p. 5 59 N.H. plaintiff, “question of domicil[e] is one of fact,” is part of the reporter’s preface fact must be determined at the trial term.” The passage referred to by the can be found, upon the well settled principles applicable to the subject, and the “The circumstances stated in the case are evidence from which the domicil[e] Foss v. Foss, 58 N.H. 283, 284 (1878), cited by the plaintiff, in which we held, F.3d 1039, 1046 (9th Cir. 2003). This is not inconsistent with our decision in summary judgment stage. See Thrifty Oil Co. v. Bank of America Nat., 322 2d 258, 270 (N.D.N.Y. 2008), which may be resolved by the trial court at the v. Moss, 797 F.2d 747, 750 (9th Cir. 1986); Zlotnick v. Hubbard, 572 F. Supp. Meléndez-García v. Sánchez, 629 F.3d 25, 40-41 (1st Cir. 2010); Lew

of action did not arise in New Hampshire. Sup. Ct. R. 16(3)(b). Thus, we affirm the trial court’s conclusion that the cause appeal and is therefore waived. See State v. Belyea, 160 N.H. 298, 309 (2010); preserved below, Quirk v. Town of New Boston

p. 6 deceased wife’s estate. We conclude that these arguments either were not arguments relating to his efforts to litigate entitlement to the assets of his waived their ability to challenge his asserted New Hampshire residence, and claims for negligence and invasion of privacy, arguments that the defendants defamation claim, arguments which recast his cause of action as including summary judgment order, including arguments regarding the merits of his The plaintiff presses several other arguments contesting the trial court’s

argues only that the trial court should not have conducted it at all. 459, 466 (2009), or are, under the circumstances of this case, without merit, the plaintiff does not offer any argument that its analysis was flawed. He developed sufficiently to warrant our review, In the Matter of Aube, 158 N.H. We note that the trial court here did conduct such an analysis and that, 140 N.H. 124, 128 (1995), not

time of the alleged defamation, the issue we left open in Keeton court determine that the plaintiff was not a New Hampshire resident at the Insurance Co. period will apply and no choice-of-law analysis need be made. Should the trial, 122 N.H. 738, 741 (1982). Hampshire resident at the time of the alleged defamation, our limitations Keeton, 131 N.H. at 14; Clark, 107 N.H. at 353-55; LaBounty v. American On remand, should the trial court determine that the plaintiff was a New (5) the court’s preference for what it regards as the sounder rule of law. judicial task; (4) advancement of the governmental interest of the forum; and relationships among the states in the federal system; (3) simplification of the predictability of results; (2) the maintenance of reasonable orderliness and good applies by weighing the five choice-influencing considerations: (1) the applies. Thus, the court should determine which state’s statute of limitations we now hold that under such circumstances, our customary balancing test

courts have adopted such a rule for purposes of diversity jurisdiction. See Connecticut at that time. We have not yet addressed this issue, although other arrest in New Hampshire on August 8, 2003, because he was a fugitive from benefit of his alleged residency in New Hampshire immediately prior to his residency at the time of the filing of the writ, we decline to address this issue. We note that the defendants argue that the plaintiff should not have the only in passing and that the trial court based its decision on plaintiff’s jurisdiction exists.”). Given that, on appeal, the parties addressed this issue domicile before flight is his domicile for determining whether diversity Faretra v. Keith, 2005 WL 1307708, at *1 (D. Mass. 2005) (“A fugitive’s last of the fugitive before he fled should be his domicile for diversity purposes.”); Lloyd v. Loeffler, 694 F.2d 489, 490 (7th Cir. 1982) (“Probably the last domicile

date is the date of the allegedly defamatory broadcast in August 2003. considering the plaintiff’s residence for choice-of-law purposes, the controlling p. 7 7

DALIANIS, C.J.