May 21, 2019

Colorado Court of Appeals: Art Dealer Not “Public Figure” so Defamatory Statements Not Matter of Public Concern

The Colorado Court of Appeals issued its opinion in Zueger v. Goss on Thursday, May 8, 2014.

Discovery Sanction—Defamatory Per Se—Public Concern—Public Figure—Damages—Speculation—Outrageous Conduct—Extortion.

Plaintiff Zueger is an art dealer, and the other plaintiffs are entities through which he purchases, sells, publishes, promotes, preserves, and exhibits artwork by Earl V. Biss, Jr. and other artists. Goss and Zueger had a dispute stemming from Goss’s contention that plaintiffs were making and selling unauthorized reproductions of Biss’s artwork. Goss made disparaging statements about plaintiffs on the Internet. The trial court’s decision was affirmed in part and reversed in part, and the case was remanded for further proceedings.

On appeal, although she conceded that her trial counsel failed to timely submit her list of trial witnesses, Goss argued that the trial court erred by entering as a discovery sanction an order precluding Biss’s former attorney from testifying. The Court of Appeals determined that the trial court did not abuse its discretion in precluding the former attorney from testifying.

Goss also argued that the trial court erred by concluding that one of Goss’s statements about plaintiffs was defamatory per se. The Court concluded that none of the circumstances surrounding the publication of the statement, “The company is comparable to the ‘Man in Black’ for Mozart,” suggested that it was intended as an assertion of fact rather than an expression of a subjective judgment. Thus, the statement was not defamatory per se. Because this statement was one of fifteen submitted to the jury, and the record does not indicate which of the statements the jury relied on in finding liability, the defamation verdict was reversed and the case remanded for a new trial.

Goss further argued that the court erred by concluding that plaintiffs were not public figures and that the statements by Goss were not matters of “public concern” for the purpose of plaintiffs’ defamation claim. Here, Goss’s statements about plaintiffs’ business activities do not involve a matter of public concern, nor do her allegations make plaintiffs public figures. Therefore, on retrial, plaintiffs should not be deemed public figures, nor should the statements be treated as matters of public concern.

Goss also contended that the evidence of plaintiffs’ damages was too speculative as a matter of law. Here, through their expert witnesses, plaintiffs presented ample testimony to support their contention that sales by plaintiffs of Biss’s work declined as a result of Goss disparaging them online. Therefore, there was a sufficient evidentiary basis for the amount awarded by the jury.

Plaintiffs contended on cross-appeal that the trial court erred by dismissing their claims for outrageous conduct and extortion at the close of evidence. Goss’s conduct was not sufficiently egregious to establish that it was extreme and outrageous. Further, Colorado does not have a civil extortion statute, and there is no evidence in the record that Goss threatened to cause economic injury to plaintiffs, with the intent to induce them, against their will, to do an act. Therefore, the trial court did not err in dismissing these claims.

Summary and full case available here.

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