Paster v . Glazier CV-03-484-PB 02/17/05
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Mark Paster, et a l .
v. Civil N o . 03-484-PB
2005 DNH 028
Philip Glazier, et a l .
O R D E R
For the reasons set forth below, I deny plaintiffs’ motion
for partial summary judgment (Doc. N o . 24) with respect to both
plaintiffs’ claim for the return of their security deposit and
defendant Glazier’s counterclaim for defamation. I grant the
motion with respect to defendant Glazier’s third party
beneficiary counterclaim.
1. Security Deposit Claim
Plaintiffs seek summary judgment with respect to their claim
for the return of their security deposit. They base their motion
on the premise that defendants failed to abide by a condition in
the sales agreement stating that plaintiffs’ obligation to
complete the purchase is
contingent on buyer being shown the actual
corner pins of the land and seeing the view
from same. Buyer is actually to view this
property within seven days of notification
from sellers that pins are visible. Buyer is
to notify seller’s agent as to acceptability
on viewing date. If unacceptable to buyer,
all deposit money is to be refunded in full
and this contract shall be deemed void.
I reject plaintiffs’ argument because facts material to the
resolution of this issue remain in genuine dispute. In
particular, factual disputes exist as t o : (1) whether defendants
fulfilled their obligations under the condition by notifying
plaintiffs that the pins were visible and making reasonable
efforts to facilitate a viewing; (2) whether plaintiffs waived
the condition; and (3) whether defendants detrimentally relied on
plaintiffs’ waiver.
2. Defamation Counterclaim
Plaintiffs rely on Section 563 of the Restatement (Second)
of Torts to support their motion for summary judgment with
respect to defendant Glazier’s defamation counterclaim. Comment
b to Section 563 provides that
[i]f the maker of the communication intends
to defame the other and if the person to whom
it is made so understands i t , the meaning so
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understood is to be attached to i t . This is
true although . . . the ordinary person would
not recognize i t . On the other hand,
although the person making the communication
intends it to convey a defamatory meaning,
there is no defamation if the recipient does
not so understand i t . This is true although
the defamatory meaning is so clear that an
ordinary person would immediately recognize
it.
See also Thomson v . Cash,
119 N.H. 3
7 1 , 375 (1979)(citing
comment). Plaintiffs rely on this comment in arguing that the
statement on which the defamation claim is based cannot be
defamatory because the recipient of the statement did not believe
the statement to be true.
I reject this argument because Section 563 does not support
plaintiffs’ contention that a statement cannot be defamatory
unless the recipient of the statement believes it to be true.
Section 563 describes the way in which a statement’s meaning is
determined. Whether a statement whose meaning is determined in
accordance with Section 563 is defamatory presents a different
question that is governed by Restatement Section 559. See
Restatement (Second) Torts § 563 Cmt. a. Section 559 provides
that a statement is defamatory if it has a tendency to harm,
regardless of whether it produces actual harm. See, e.g.,
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Restatement (Second) Torts § 559 Cmt. d (“[t]o be defamatory, it
is not necessary that the communication actually cause harm to
another’s reputation . . . . ” ) . Thus, Section 563 does not
support the proposition for which it has been cited.
Accordingly, I reject plaintiffs’ motion for summary judgment
with respect to Glazier’s defamation claim.1
3. Third Party Beneficiary Counterclaim
Plaintiffs rely on Section 372(2) of the Restatement
(Second) of Agency to support their request for summary judgment
with respect to defendant Glazier’s third-party beneficiary
counterclaim. Comment d. to Section 372(2) provides in pertinent
1
Courts in other jurisdictions have relied on a treatise
on defamation law for the proposition that “[t]here can be no
defamation unless the recipient of the communication believes it
to be defamatory.” See, e.g., Forster v . W . Dakota Veterinary
Clinic, Inc.,
(N.D. 2004) (quoting L .
Eldredge, The Law of Defamation, 44 (1978)). Plaintiffs do not
discuss either these cases or the treatise they cite. Moreover,
I question whether the New Hampshire Supreme Court would endorse
this principle. New Hampshire law recognizes that slander per se
can be proved even if the plaintiff has not suffered identifiable
damage. See Jones v . Walsh,
(1966).
Accordingly, a statement that qualifies as slander per se should
be actionable even though the recipient does not believe that the
statement is true. Since the issue has not been properly
briefed, however, I simply decline to consider it further. All
that I need to say to resolve the current motion is that Section
563 does not entitle plaintiffs to summary judgment.
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part that
[a]n agent entitled to receive a commission
from his principal upon the performance of a
contract which he has made on his principal’s
account does not, from this fact alone, have
any claim against the other party for breach
of the contract, either in an action on the
contract or otherwise.
Defendant Glazier does not present a persuasive argument to
support his position that the New Hampshire Supreme Court would
not follow the Restatement on this point. Nor does he offer any
other reason why Section 372(2) should not apply in this case.
As defendant points to no other evidence to support his third
party beneficiary claim, other than evidence that he was due a
commission from the sellers if plaintiffs purchased the property,
he is not entitled to maintain a third party beneficiary claim.
Plaintiffs’ motion for summary judgment with respect to this
claim is granted.
SO ORDERED.
Paul Barbadoro
United States District Judge
February 1 7 , 2005
cc: James P. Bassett, Esq.
R. Matthew Cairns, Esq.
Michael C . Harvell, Esq.
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