Victor M. Metsch in Legal/Financial on February 21, 2019
In these contentious times, politics at all levels – even at the level of co-op and condo board elections – tend to get ugly. Charges and counter-charges circulate with lightning speed. One recent condo board election led to a lawsuit over the truth of charges emailed by one of the candidates. The case turned on the definition of the D-word: defamation.
Sandra Peterson, a unit-owner at Edgemont at Tarrytown Condominium and a former president of the board of managers, was running for election against fellow unit-owner Mary Ellen Maun. During the election process, Maun sent emails to other unit-owners which, Peterson claimed, were false and defamatory and sent with the specific intent to damage Peterson’s good name and reputation in the community.
Maun’s emails accused Peterson of inappropriate use of the condominium’s money and labor for her own personal gain. They also accused Peterson of deliberately reducing the number of board meetings and severely restricting unit-owners’ communication with the board. Peterson claimed that Maun also repeated false, defamatory and misleading statements to unit-owners during face-to-face encounters.
Peterson sued. Maun moved to dismiss the claim, arguing that her charges were backed up by board minutes and other documents that conclusively substantiated the truth of most of the statements contained in the emails. She argued that the remaining statements were either legally protected expressions of opinion or statements of fact that lacked defamatory meaning.
The court was required to determine whether Peterson had a claim if she could prove those facts. However, the court was not required to accept as true mere legal conclusions lacking factual support, or factual claims that were contradicted by documents.
As to Peterson’s first claim for defamation, Maun submitted sufficient documentary evidence to conclusively establish, to the court’s satisfaction, the truth of the facts asserted in her emails. The parties were engaged in a contested election for president of the board of managers. In that context and surrounding circumstances in which the challenged statements were made, the court found that a reasonable reader would understand that much of the emails were likely opinion and not facts.
The unit-owners in a condominium share the common interest of protecting and preserving their homes and financial investments. Unit-owners are “conditionally privileged” to communicate among themselves matters that concern their common interests. Such privilege extends to a communication made by one person to another upon a subject in which both have an interest, such as a board election. Privileged statements are not actionable, although the protection provided by a qualified privilege may be lost if it is shown that words were spoken or sent with malice – that is, with knowledge that the statement was false or with reckless disregard as to whether or not it was false.
The court found that there was no evidence of malice by Maun that would nullify the common interest privilege because her emails were sent to owners in the condominium with the dual purpose of trying to discredit Peterson’s ability to be president, while, in the bargain, winning the presidency for herself. The court also summarily dismissed Peterson's claim against Maun for intentional infliction of emotional distress. In this case, the court concluded that none of the emails sent by Maun could be described as being outrageous, atrocious or utterly intolerable in a civilized community, as required to establish such a claim.
Lesson learned: Contentious elections may lead to claims of defamation, and such claims may lead to litigation. But “truth” or “opinion” are the best defenses. So election contestants should stick to the facts, or label their statements as opinion.
Victor M. Metsch is of counsel at the law firm of Smith, Gambrell & Russell.
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