Defamation

Elements

In order to establish a prima facie case of defamation, a plaintiff must prove:

• a false and defamatory statement by defendant concerning the plaintiff;
• an unprivileged publication to a third person;
• fault, amounting to at least negligence; and
• actual or presumed damages.

Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459 (1993)(citing Restatement (Second) of Torts, § 558 (1977)).

If the defamation tends to injure the plaintiff in his or her business or profession, it is deemed defamation per se, and damages will be presumed.

Chowdhry v. NLVH, Inc., 109 Nev. 478, 483-84, 851 P.2d 459 (1993).

Example Cases

Proof

• Whether a statement could be construed as defamatory is a question of law

Whether a statement is capable of a defamatory construction is a question of law. Branda v. Sanford, 97 Nev. 643, 646, 637 P.2d 1223, 1225 (1981). A jury question arises when the statement is susceptible of different meanings, one of which is defamatory. Id.

Chowdhry v. NLVH, Inc., 109 Nev. 478, 483-84, 851 P.2d 459 (1993).

• Whether a statement is true/false is a question of fact

Damages

Defenses

Misc

Business Disparagement

[Note by TruCounsel editor: The tort of "business disparagement" is essentially defamation per se directed at a business and where the plaintiff is a business.  The primary controlling case in Nevada is Clark County School Dist. v. Virtual Educ. Software, Inc., 125 Nev. 374, 213 P.3d 496, 504 (Nev. 2009).]

Elements

[Interpreted by TruCounsel editor - not an exact quote]

• False and disparaging statement (also called injurious falsehood),
• That interferes with the plaintiff's business and is aimed at the business's goods or services, and is
• Conveyed by the unprivileged publication by the defendant, with
• Malice, and causing
• Special damages, which are presumed.

[It is probable that the special damages element is unecessary and presumed as it is in defamation per se cases.]

Clark County School Dist. v. Virtual Educ. Software, Inc., 125 Nev. 374, 213 P.3d 496, 504 (Nev. 2009).

Example Cases

Proof

Notably, the principal differences between defamation per se and business disparagement concern the elements of intent and damages. As opposed to defamation, which merely requires some evidence of fault amounting to at least negligence, business disparagement requires something more, namely, malice. Malice is proven when the plaintiff can show either that the defendant published the disparaging statement with the intent to cause harm to the plaintiffs pecuniary interests, or the defendant published a disparaging remark knowing its falsity or with reckless disregard for its truth.Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 722, 57 P.3d 82, 92-93 (2002); Hurlbut, 749 S.W.2d at 766; Restatement (Second) of Torts § 623A (1977).
Clark County Sch. Dist. v. Virtual Educ. Software, Inc., ___ Nev. ___, 213 P.3d 496, 504-05 (Nev.2009).

Damages

Defenses

Misc

A claim for defamation per se primarily serves to protect the personal reputation of an individual. 53 C.J.S. Libel and Slander; Injurious Falsehood § 312 (2005); Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987). But where communications concern the goods or services provided by a business entity, a plaintiff generally seeks to redress injury to economic interests. 53 C.J.S. Libel and Slander; Injurious Falsehood § 312 (2005). This distinction is the basis for the difference between an action for defamation per se and an action for business disparagement. Id. Unlike defamation per se, communications constituting business disparagement are not directed at an individual's personal reputation; rather, they are injurious falsehoods that interfere with the plaintiff's business and are aimed at the business's goods or services. Aetna Cas. & Sur. Co. v. Centennial Ins. Co., 838 F.2d 346, 351 (9th Cir.1988). Thus, if a statement accuses an individual of personal misconduct in his or her business or attacks the individual's business reputation, the claim may be one for defamation per se; however, if the statement is directed towards the quality of the individual's product or *386 services, the claim is one for business disparagement. 53 C.J.S. Libel and Slander; Injurious Falsehood § 312 (2005).

Clark County Sch. Dist. v. Virtual Educ. Software, Inc., 125 Nev. 374, 385-86, 213 P.3d 496, 504 (2009)

Deceptive Trade Practices

Elements

Refer to NRS 598 for the elements of deceptive trade practices. Refer to NRS 41.600 for a private right of action for a deceptive trade practice as defined in NRS 598.0915 to 598.0925, inclusive.

Example Cases

Proof

Damages

Defenses

Misc

Conversion

Elements

"Conversion " is

• a distinct act of dominion wrongfully exerted over another's personal property
• in denial of, or inconsistent with his title or rights therein or
• in derogation, exclusion, or defiance of such title or rights.

Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043, 1048 (2000).

Example Cases

Proof

• Wrongful Intent Is Not Needed

Further, conversion is an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge. See id.; Bader v. Cerri, 96 Nev. 352, 357 n. 1, 609 P.2d 314, 317 n. 1 (1980). Whether a conversion has occurred is generally a question of fact for the jury. See Bader, 96 Nev. at 356, 609 P.2d at 317.FN7.
Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 5 P.3d 1043 (Nev.,2000).

Damages

• Returned and unreturned property

Nevada case law does not suggest that the measure of damages is a part of the definition of conversion. Neither does Nevada case law declare the full value of the property converted to be the sole measure of damages. Of course, the full value of the property at the time of conversion may be one measure of the damage sustained. Dixon v. Southern Pacific Co., 42 Nev. 73, 172 P. 368, 177 P. 14, 179 P. 382 (1918). This measure is appropriate when the defendant keeps possession of the property he has converted. This measure of damage, however, is not appropriate when the property is returned by the converter to the injured party. That is what happened in the case at hand.
Bader v. Cerri, 96 Nev. 352, 356, 609 P.2d 314, 317 (Nev., 1980).

• Recovery of full value of chattel.

The importance of the distinction between trespass to chattels and conversion, which has justified its survival long after the forms of action of trespass and trover have become obsolete, lies in the measure of damages. In trespass the plaintiff may recover for the diminished value of his chattel because of any damage to it, or for the damage to his interest in its possession or use. Usually, although not necessarily, such damages are less than the full value of the chattel itself. In conversion the measure of damages is the full value of the chattel, at the time and place of the tort. When the defendant satisfies the judgment in the action for conversion, title to the chattel passes to him, so that he is in effect required to buy it at a forced judicial sale. Conversion is therefore properly limited, and has been limited by the courts, to those serious, major, and important interferences with the right to control the chattel which justify requiring the defendant to pay its full value.
REST 2d TORTS § 222A, comment c.

• • Comment by TruCounsel editor

When comparing the selections from , 96 Nev. 352, 356, 609 P.2d 314, 317 (Nev., 1980) to the REST 2d TORTS § 222A, comment c. listed in this Damages subheading, it seems possible that Nevada's tort of conversion completely encompasses the traditional trespass to chattels tort because Nevada's conversion tort envisions the possible return of the chattel.

Defenses

Intangible Property

• Intangible Property Can Be Converted/Rejection of archaic trend

In so doing, we note a trend toward recognizing intangible property as personal property that can be converted and expressly reject the rigid limitation that personal property must be tangible in order to be the subject of a conversion claim.
M.C. Multi-Family Development, L.L.C. v. Crestdale Associates, Ltd., 193 P.3d 536, 543 (Nev., 2008).

• Adoption of 9th Circuit test for intanglibe property

By way of example, in Kremen v. Cohen, the United States Court of Appeals for the Ninth Circuit, applying California law in a diversity action, set forth a three-part test for determining whether a property right exists. According to that court, a property right exists when
(1) there is an interest capable of precise definition,
(2) the interest is capable of exclusive possession or control, and
(3) the putative owner has established a legitimate claim to exclusivity.
Applying this test, the court in Kremen explained that property is a broad concept encompassing " ‘every intangible benefit and prerogative susceptible of possession r disposition.’ " Under Kremen, such rights included the right to use of an Internet website domain name. Because we conclude that the Ninth Circuit's formulation for determining whether a property right exists is consistent with Evans, we now apply to the intangible property at issue here-the contractor's license issued to Walter Homes.
M.C. Multi-Family Development, L.L.C. v. Crestdale Associates, Ltd., 193 P.3d 536, 543 (Nev., 2008).

• Intangible rights merged with documents/Adoption of Rest. 2d.

In addition, the Restatement (Second) of Torts Section 242 outlines when intangible personal property can be converted. It states that "[w]here there is conversion of a document in which intangible rights are merged, the damages include the value of such rights."
M.C. Multi-Family Development, L.L.C. v. Crestdale Associates, Ltd., 193 P.3d 536, 543 (Nev., 2008).

Misc

A conversion is defined as a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights. 53 Am.Jur. 819. ‘Moreover, an act, to be a conversion, must be essentially tortious; a conversion imports an unlawful act, or an act which cannot be justified or excused in law.’ Ibid. at page 820.
Wantz v. Redfield, 74 Nev. 196, 326 P.2d 413 (Nev. 1958).

Constructive Fraud

Elements

• Constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or to violate confidence.
• Constructive fraud is characterized by a breach of duty arising out of a fiduciary or confidential relationship.
• A "confidential or fiduciary relationship" exists when one reposes a special confidence in another so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.

Long v. Towne, 98 Nev. 11, 13, 639 P.2d 528, 529-30 (Nev. 1982).

Example Cases

Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 963 P. 2d 465 (Nev. 1998).

Proof

Damages

Defenses

Misc

• Fiduciary duty not necessary for constructive fraud - Can have "confidencial relationship" instead

In its reply brief, Executive seems to concede the point that there is no fiduciary relationship between a buyer and seller of real property, but maintains that the absence of such a relationship is not fatal to its cause of action for constructive fraud. We agree and conclude that although Executive's breach of fiduciary duty claim will not lie against Palmall/Shipkey, there are factual questions concerning the issue of "special confidence" yet to be resolved, and thus a claim for constructive fraud may be viable. SeeMullen, 643 N.E.2d at 401 (holding that existence of a fiduciary relationship is not the only basis for a claim of constructive fraud and that such a claim may arise between buyers and sellers). Accordingly, we affirm that portion of the district court's judgment dismissing Executive's breach of fiduciary duty claim against Palmall/Shipkey, but we reverse the dismissal of all remaining claims against Palmall/Shipkey and remand this case for further proceedings thereon.

Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823, 841, 963 P. 2d 465, 477 (Nev. 1998).

• Examples of confidential relationships

Persuasive authority suggests that a confidential relationship may arise by reason of kinship or professional, business, or social relationships between the parties. See **338 In re Guardianship of Chandos, 18 Ariz.App. 583, 585, 504 P.2d 524, 526 (1972). Such a relationship "exists when one party gains the confidence of the other and purports to act or advise with the other's interests in mind; it may exist although there is no fiduciary relationship; it is particularly likely to exist when there is a family relationship or one of friendship." Kudokas v. Balkus, 26 Cal.App.3d 744, 103 Cal.Rptr. 318, 321 (1972). When a confidential relationship exists, the person in whom the special trust is placed owes a duty to the other party similar to the duty of a fiduciary, requiring the person to act in good faith and with due regard to the interests of the other party. See Hamberg v. Barsky, 355 Pa. 462, 50 A.2d 345, 347 (1947). We conclude that the record contains ample evidence of the existence and breach of just such a relationship between Perry and Jordan.
Perry v. Jordan, 111 Nev. 943, 900 P.2d 335 (Nev. 1995).

• Mere trust does not create a confidential relationship

The mere fact that one reposes trust and confidence in another does not create a confidential relationship. In the majority of business dealings, opposite parties have trust and confidence in each other's integrity, but there is no confidential relationship by this alone.
Yerington Ford, Inc. v. General Motors Acceptance Corp., 359 F.Supp.2d 1075, 1092 (D. Nev. 2004), reversed on other grounds byGiles v. General Motors Acceptance Corp., 494 F.3d 865 (9th Cir. (Nev.) 2007).

Constructive Eviction

Elements

A constructive eviction results from an active interference with, or disturbance of, a tenant's possession by the act of the landlord when all or a substantial part of the premises is rendered unfit for occupancy for the purpose for which it was demised.

Baley & Selover v. All Am. Van & Storage, 97 Nev. 370, 373 (Nev. 1981)

Example Cases

Proof

Damages

Defenses

Misc

• Breach of quiet enjoyment

Winchell contends that the district court erred in granting judgment as a matter of law on his cause of action for breach of the covenant of quiet enjoyment. HN8The purpose of the covenant of quiet enjoyment is to secure tenants against the acts or hindrances of landlords. n15 Therefore, to prove a sufficient issue for breach of the covenant of quiet enjoyment, the tenant need only provide evidence demonstrating constructive eviction; actual eviction is not required. n16 We conclude that actual eviction is not a prerequisite to a claim for breach of a covenant of quiet enjoyment because such a prerequisite would increase the tenant's suffering by requiring him [**14] to await the landlord's eviction before asserting breach of the covenant.

Winchell v. Schiff, 193 P.3d 946, 952 (Nev. 2008)

Constructive eviction is a well-established concept in this state. We have held that constructive eviction occurs when, through the actions or inaction of the landlord, the whole or a substantial part of the premises is rendered unfit for occupancy for the purpose for which it was leased. Las Vegas Oriental v. Sabella's of Nev., 97 Nev. 311, 313, 630 P.2d 255, 256 (1981) (failure to provide adequate heating and air conditioning to restaurant and lounge area was constructive eviction when those areas were an integral portion of the business). When constructive eviction occurs, the tenant must treat the landlord's interference as an eviction and vacate the premises within a reasonable time. Portal Enterprises, Inc. v. Cahoon, 102 Nev. 107, 109, 715 P.2d 1324, 1326 (1986) (approximately three months considered reasonable). No constructive eviction results if the tenant continues in possession even though disturbed in the beneficial enjoyment of the premises. Baley & Selover v. All Amer. Van, 97 Nev. 370, 373, 632 P.2d 723, 724 (1981) (retaining premises for two years after an inconvenient situation resulted due to other tenants' use of parking lot negated possibility of constructive eviction).

Yee v. Weiss, 110 Nev. 657, 661 (Nev. 1994).

• Constructive eviction of a business

In order to show constructive eviction of a business, it is necessary to provide more persuasive evidence than simply verbal complaints. The tenant must show that the landlord's actions or inactions caused the premises to be entirely unfit for the use for which the tenant leased them. Las Vegas Oriental, 97 Nev. at 313, 630 P.2d at 256. We cannot conclude from the evidence presented that such was the case here. Accordingly, we hold that the district court erred in concluding that the Yees constructively evicted Weiss.

Yee v. Weiss, 110 Nev. 657, 661 (Nev. 1994)

• Tenant must elect to vacate

When a constructive eviction occurs, the tenant must elect to treat such interference as an eviction, and surrender the premises within a reasonable time. Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963). The lessee terminated its lease and vacated the premises within a reasonable time. The County issued its order in the fall of 1980. The lessee vacated the premises and terminated its lease on December 31, 1980. On January 1, 1981, the County ordered the Theatre to cease operations until the water quality was brought up to standard. Thus, the lessee in the instant case acted promptly and did not waive its right to claim constructive eviction.

Portal Enters. v. Cahoon, 102 Nev. 107, 109-110 (Nev. 1986).

• Landlord has the duty to pay for government mandated repairs
  

If repairs ordered by a public authority are substantial, or structural in nature, such that they could not have been contemplated by the parties when the lease was executed, the lessor, not the lessee, is responsible for making them. Polk v. Armstrong, 91 Nev. 557, 540 P.2d 96 (1975). The reason for the rule is that any alteration or repair ordered by a public authority would ordinarily be outside the tenant's common law duty to repair, and the expenses of compliance would more properly be regarded either as capital expenditures or as necessary carrying charges to be paid out of rent. Id.For a lessee to make structural repairs that would revert to the benefit of the lessor would be inequitable. Id. The Theatre's sole source of water was a water well located in the basement of the leased premises. Possible methods to correct the water quality included installation of a reverse osmosis plant, connection with the water district, or sinking a deeper well. The cost of any of these methods was substantial. The lease was for a short duration, five years. At the time of the Theatre's closure only nineteen months of the lease remained. The improvements were necessary to the continued operation of the Theatre. The benefit of the expenditure reverted to the lessor. We conclude that the repairs were substantial and not within the contemplation of the parties. See, Polk at p. 561. The lessor had the duty to make the necessary improvements pursuant to the County's order. Failure of the landlord to perform the government-ordered alterations constituted a constructive eviction. See,Polk at p. 562; Scott v. Prazma, 555 P.2d 571 (Wyo. 1976); Magnolia Warehouses v. Morton Realty Co., 117 S.E.2d 552 (Ga. 1960).

Portal Enters. v. Cahoon, 102 Nev. 107, 109 (Nev. 1986)

• Must vacate for constructive eviction, but not for breach of lease

Tenants' complaint stated a cause of action for breach of the covenant to repair the roof. This is a separate cause of action from constructive eviction. Although a tenant must abandon the leased premises in order to maintain constructive eviction as a cause of action or as a defense to the landlord's action for rent, Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979), a tenant may nevertheless remain in possession and sue the landlord for breach of the lease. Guntert v. City of Stockton, 126 Cal.Rptr. 690 (Ct.App. 1976); Perry Properties v. Servico Protective Covers, Inc., 399 N.Y.S.2d 744 (App.Div. 1977). To hold otherwise would deprive the tenant of his right to retain his leasehold and enforce the lease covenants. For this reason it was error for the court to grant summary judgment against tenants on their claim for damages for breach of covenant to repair the roof.

Hosmer v. Avayu, 97 Nev. 584, 586 (Nev. 1981).

• Definition

A constructive eviction results from an active interference with, or disturbance of, a tenant's possession by the act of the landlord when all or a substantial part of the premises is rendered unfit for occupancy for the purpose for which it was demised. Medical Multiphasic v. Linnecke, 95 Nev. 752, 755, 602 P.2d 182, 184 (1979).

Baley & Selover v. All Am. Van & Storage, 97 Nev. 370, 373 (Nev. 1981).

Furthermore, appellant [***5] operated under the conditions it complains of until vacating the premises in July, 1976. As an additional requirement for constructive eviction the tenant must treat the interference as an eviction and surrender the premises within a reasonable time. No constructive eviction results if the tenant continues in possession even though disturbed in the beneficial enjoyment of the premises. Medical Multiphasic v. Linnecke, supra; Baker v. Siminds, 79 Nev. 434, 386 P.2d 86 (1963).

Baley & Selover v. All Am. Van & Storage, 97 Nev. 370, 373 (Nev. 1981)

As we held in Baker v. Simonds, 79 Nev. 434, 437, 386 P.2d 86, 88 (1963), HN1a constructive eviction occurs when through the landlord's actions or inaction "the whole, or a substantial part, of the premises is rendered unfit for occupancy for the purpose for which it was demised." Accord, Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). In the instant case, evidence was adduced that the lounge and bar area were integral portions of the business of the supper club and that loss of the use of this portion of the premises was a significant detriment to respondent. The record reveals substantial evidence from which the trial court could properly determine that the failure to provide heating and cooling to the lounge and bar area constituted a constructive eviction.

Las Vegas Oriental v. Sabella's of Nevada, 97 Nev. 311, 313 (Nev. 1981)

Constructive eviction results from an active interference with, or disturbance of, the tenant's possession by an act of the landlord which renders the whole, or a substantial part of the premises, unfit for occupancy for the purpose for which it was demised. Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). Whether constructive eviction has occurred is a factual determination to be made by the trier of fact. Clifmar, Inc. v. Lee, 94 Nev. 594, 584 P.2d 157 (1978). Where the trial court, sitting without a jury, makes a finding upon conflicting evidence that constructive eviction has occurred, that [***3] finding will not be disturbed on appeal where it is supported by substantial evidence. Id.

Krieger v. Elkins, 96 Nev. 839, 841 (Nev. 1980)

Constructive eviction and abandonment are factual determinations to be made by the trier of fact.

Clifmar, Inc. v. Lee, 94 Nev. 594, 596 (Nev. 1978)

A landlord is not guilty of constructive eviction by commencing an unlawful detainer action against a tenant who has not paid rent as agreed.

Medical Multiphasic Testing v. Linnecke, 95 Nev. 752, 755 (Nev. 1979)

Construction Deficiencies Arising From Willful Misconduct or Fraudulent Concealment

Elements

Example Cases

Proof

Damages

Defenses

Misc

Chilling Foreclosure Sale

Generally – Activity that tends to suppress bidding at a foreclosure sale, thereby depriving the owner of full value and increasing the risk of a deficiency.

SeeCollins v. Union Federal Sav. & Loan Ass'n, 99 Nev. 284, 662 P.2d 610 Nev.,1983.

Example Cases

Golden v. Tomiyasu, 79 Nev. 503, 387 P.2d 989 (Nev. 1964).

Collins v. Union Federal Sav. & Loan Ass'n, 99 Nev. 284, 662 P.2d 610 Nev.,1983.

Nevada State Bank v. Jamison Family Partnership, 106 Nev. 792, 801 P.2d 1377 (Nev. 1990).

Proof

Damages

Defenses

Misc

Breach of Implied Warranty of Fitness For a Particular Purpose

Elements

Where:the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

NRS 104.2315

Example Cases

Proof

Damages

Defenses

Misc

Breach of the Implied Warranty of Merchantability

Elements

NRS 104.2314 Implied warranty: Merchantability; usage of trade.

1. Unless excluded or modified (NRS 104.2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
2. Goods to be merchantable must be at least such as:

(a) Pass without objection in the trade under the contract description; and

(b) In the case of fungible goods, are of fair average quality within the description; and

(c) Are fit for the ordinary purposes for which such goods are used; and

(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and

(e) Are adequately contained, packaged and labeled as the agreement may require; and

(f) Conform to the promises or affirmations of fact made on the container or label if any.

1. Unless excluded or modified (NRS 104.2316) other implied warranties may arise from course of dealing or usage of trade.

(Added to NRS by 1965, 793)

Example Cases

Supreme Judicial Court of Massachusetts, Suffolk.

Priscilla D. WEBSTER v. BLUE SHIP TEA ROOM, INC.

Proof

Damages

Defenses

Misc

• "[L]ack of privity between the buyer and manufacturer does not preclude an action against the manufacturer for the recovery of economic losses caused by breach of warranties." Hiles Co. v. Johnston Pump Co., 93 Nev. 73, 79, 560 P.2d 154, 157 (1977) (citations omitted).