Friday, January 27, 2023

The Subject Was Roses Roses

The Nebraska Supreme Court affirmed the grant of summary judgment against a lawyer who had sued for an allegedly defamatory Google review

An attorney filed two separate lawsuits alleging that he and his law firm were defamed by a negative review posted on the law firm’s Google business page. The district court granted summary judgment in favor of the defendants and dismissed both lawsuits. On appeal, the attorney assigns multiple errors, including that the district court erred in relying on the single publication rule to determine when the defamation claim accrued. We moved these appeals to our docket primarily to address that issue.

We conclude the district court properly applied the single publication rule, and we find no merit to the remaining assignments of error. We therefore affirm the judgments of the district court.

The underlying representation involved two accident claims

In November 2018, Ashford emailed Antonio and Andrea to inform them he was ending his representation. At that point, none of the claims arising from the collisions had been resolved. Ashford provided Antonio and Andrea with notice of attorney liens totaling approximately $5,900.

A bar complaint followed

Counsel for Discipline sent a copy of the grievance to Ashford and requested a response. Our appellate record does not disclose the current status of this grievance.

The review

On March 20, 2019, Roses Roses posted a review on Ashford’s Google business page that stated, in its entirety, “If you’re looking for a disheveled, unorganized, unreliable attorney with questionable ethics he’s your man . . . .”

On May 9, 2019, Ashford sent a letter to Andrea demanding that she “immediately remove the unsubstantiated review posted by Roses Roses aka Andrea Tate to the Timothy Ashford Google Business Review.” Ashford’s letter included a draft complaint and indicated he would file the complaint and “seek damages for the defamatory statement” if the post was not immediately removed.

Andrea responded that 

she had not posted a Google review of either Ashford or his business.

The attorney filed two lawsuits

Roses Roses filed an answer alleging her actual name is Rose Thompson, and she is a resident of Texas. For ease of reference, this opinion will use “Thompson” when referring collectively to Roses Roses and Rose Thompson. Thompson’s answer denied liability for the various claims and alleged several affirmative defenses, including that the complaint failed to state a claim upon which relief can be granted and the claims were barred by the statute of limitations.

Thompson is Andrea's aunt.

At the District Court

the court found that publication of the unfavorable Google review occurred on the date it was originally posted to the internet—March 20, 2019. Because Ashford’s defamation action against Thompson was not filed until August 2020, the court concluded it was time barred.

The court also entered summary judgment on Ashford’s claim of intentional infliction of emotional distress. On the evidence adduced, it found the undisputed facts were not sufficient, as a matter of law, to support recovery on such a claim because Thompson’s conduct in posting the Google review was not sufficiently extreme or outrageous.  The court therefore entered an order granting summary judgment in favor of Thompson in the 2020 lawsuit and dismissing it with prejudice. In the same order, the court overruled Ashford’s motion  for summary judgment, and any other pending motions.

On appeal, the attorney contended that the trial judge should have granted recusal

On this record, Ashford has not overcome the presumption of judicial impartiality. As we read the district court’s order, the only ground Ashford asserted for recusal was that he had previously sued the trial judge in a federal lawsuit challenging the appointment process for criminal defense counsel in Douglas County. Because that lawsuit had been resolved several years earlier on procedural grounds and was no longer pending, the judge found there was no reason to recuse himself. On this record, we cannot find the judge abused his discretion. Ashford does not direct us to any evidence suggesting the trial judge was biased against him as a result of the prior litigation,  and we see nothing that would cause a reasonable person who knew the circumstances of the federal lawsuit to question the judge’s impartiality to preside over an unrelated matter involving Ashford several years later.

As a matter of first impression, the court adopted the single publication rule and applied the rule to Internet postings

Ashford’s single cause of action accrued on March 20, 2019, the date Roses Roses first posted the Google review. Thus, by the time Ashford filed the defamation action against Roses Roses in August 2020, it was time barred. The district court properly dismissed it on that basis.

The court rejected the attorney's other contentions

Ashford’s “civil extortion” claim sought to recover damages based on Andrea’s letter expressing her intent to report alleged attorney misconduct to the Counsel for Discipline. Because reports of alleged attorney misconduct and grievances are absolutely privileged and no lawsuit may be predicated on such a report, it was not error for the district court to dismiss Ashford’s extortion claim for failure to state a claim on which relief can be granted. This assignment of error is meritless.

The case is TIMOTHY L. ASHFORD, PC LLO V. ROSES Cite as 313 Neb. 302 (Mike Frisch)

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