Pro Se Plaintiff Wins $80K in Libel Lawsuit Against Neighbors

From Poimboeuf v. Merritt, decided today by the N.C. Court of Appeals (No. 23-229), in an opinion by Judge John Tyson, joined by Judges Zachary and Flood; some quick and likely not fully reliable Googling suggests that Poimboeuf wasn't trained as a lawyer, though Riselvato had been a paralegal:

Kevin Poimboeuf's … long-term girlfriend, Shelley Welch Riselvato …, owns Wildflower Preschool, a farm and nature preschool …. Wildflower Preschool bordered and shared an access easement with the adjacent Merritt's Gravel Pit, Inc. …. Merritt's Gravel Pit is owned and operated by Defendant Tony [Merritt]. Defendant Ilene [Merritt] is not an employee on the payroll of Merritt's Gravel Pit, but she often helps with the business ….

Katelyn Merritt …, Tony's and Ilene's daughter, is the Vice President of Merritt's Gravel Pit. TIK, LLC … owns the land from where Merritt's Gravel Pit operates. Tony, Ilene, and Katelyn Merritt are each one-third member-owners of TIK.

Riselvato and the Merritts have endured a contentious relationship since Riselvato first visited the property adjacent to Merritt's Gravel Pitt. Shortly after the property was listed for sale, Riselvato's realtor instructed her to review the property. While there, Tony and Katelyn confronted Riselvato, accused her of trespassing, told her the property was not for sale, and reported her to the Orange County Sheriff's Office. Tony's mother owned the property Riselvato eventually purchased, and selling the property was a source of contention amongst members of the Merritt family.

Once Riselvato and Poimboeuf began constructing Wildflower Preschool, Riselvato's and Poimboeuf's relationship with the Merritt family quickly deteriorated. Tony accused Poimboeuf of exposing his penis in the presence of children and reported Poimboeuf to law enforcement officers. Although the Merritts filed a complaint at the magistrate's office to bring criminal charges against Poimboeuf, those charges were later dismissed.

The Merritts also accused Riselvato and Poimboeuf of cutting their telephone line, which ran along the easement between the two properties. Lastly, the Merritts accused Poimboeuf of burning down the barn, where Wildflower Preschool previously held classes, along with burning down a house in Charlotte.

This animosity led to two explosive interactions between the Merritts and Poimboeuf and Riselvato. In April 2020, Riselvato began constructing a wall on her property line to reduce the noise coming from Merritt's Gravel Pit during school hours. Poimboeuf was helping Riselvato with the construction. Tony drove a blue tractor onto Riselvato's side of the easement, and at some point both Ilene and Katelyn joined the confrontation. This encounter quickly became heated, and during the conversation Tony made sexual gestures towards his crotch when accusing Poimboeuf of exposing his penis. The Merritts' "statements were loud, sustained, and contained offensive language." Poimboeuf recorded the interaction.

On another occasion in May 2020, Tony used machinery to uproot a large pine tree separating Merritt's Gravel Pit from Wildflower Preschool. Riselvato leaped in front of the excavator to prevent Tony from removing the remaining trees. Katelyn, Ilene, and Poimboeuf were also present. Tony and Ilene yelled at Riselvato and Poimboeuf for over two hours during this encounter, and, again, the "statements were loud, sustained, and contained offensive language." Poimboeuf recorded this conversation, too.

During the two encounters, Tony made the following statements to Poimboeuf:

• "F--ked with a tractor again, you egg-headed son-of-a-b--ch."
• "Hey, we found out about that house you burnt down in Charlotte, too, big boy. You a barn burning motherf--ker, ain't ya?"
• "You got a tractor down there you f--ked with. You got pictures where you took trespassing. You have placed yourself at the scene. You f--ked with my excavator."
• "Motherf--ker took his thumb and his forefinger and go owa, owa, owa. G--damn, the boys think that's funny as hell, bro."

Ilene directed the following statements to Poimboeuf:

• "Kevin, why don't you tell 'em that they dismissed the charges of you shaking your weenie at us. That is disgusting."
• "He got in trouble, but they dismissed it. Carrboro didn't want y'all to be exposed that y'all do that stuff to children."
• "It's pitiful what you do to children."
• "Don't expose yourself like you did before."
• "What did they tell you they let you off for, huh? When you exposed yourself in front of the preschool? What did they say they dropped the charges for, do you know? Do you know why they dropped the charges? Yes[,] when you exposed yourself. You remember, don't you[,] Kevin?"

Poimboeuf sued for defamation, representing himself; the jury ruled in his favor, and awarded a total of $10,000 in presumed damages against Tony and Ilene plus $70,000 in punitive damages against Tony, Ilene, and Merritt's Gravel Pit. The appellate court affirmed, concluding, among other things:

The trial court heard all of the evidence, watched the videos, and concluded: "Taken in the light most favorable to the Plaintiff and considering the circumstances and the Defendants' words, tones, and gestures, the Defendants imputed crimes of moral turpitude to the Plaintiff and made statements that were actionable per se." The trial did not err as a matter of law when it submitted the evidence to the jury and let the jury's verdict stand.

The trial court did not err by allowing the jury to determine whether Merritt's Gravel Pit was liable for punitive damages [even in the absence of compensatory damages against it], because Tony [an officer of Merritt's] "participated in or condoned the conduct." Punitive damages may be awarded in the absence of nominal damages, as long as nominal damages could have been awarded….

Comments

[John F. Carr]

Sexual accusations against somebody who works at a preschool ought to be worth more money than sexual accusations against an average person.

[Nelson]

Careful. Making unsubstantiated sexual accusations against teachers is a go-to behavior of the paleocons and cultural conservatives here. Don't piss them off. They're very angry people already.

[David Nieporent]

I am not one of the "Why aren't you covering the story I want you to cover?" commenters here, but I am curious why this story was posted. There don't seem to be any interesting factual or legal issues here. It just seems like coverage of a random defamation case, and while I know that defamation is generally within your zone of interests, you obviously are not posting about every defamation decision in the country.

[Bill R]

It's unusual for a _pro se_ plaintiff to win any case.

[TwelveInchPianist]

Let's not jump to conclusions. Everyone's experience is different.

Perhaps in David's experience it's not unusual for pro se plaintiffs to win $80K judgements.

[Eugene Volokh]

Indeed. It's also unusual for libel plaintiffs to take a case to trial, and win -- not unheard of, but unusual. A pro se plaintiff winning is thus unusual squared. Maybe cow bites man bites dog?

[avb]

They won the appeal too. Unusual cubed.

[Nelson]

"It’s unusual for a _pro se_ plaintiff to win any case."

That's what I was thinking. It's the exception that proves the "fool for a client" rule.

[Rossami]

I'm confused. This case made it to the merits. Why was the court still using the "in the light most favorable to the Plaintiff" standard?

[Davy C]

They were using the "light most favorable" standard in determining whether certain evidence should be presented to the jury. (If, even in the light most favorable to the plaintiff, the evidence would not have indicated what the plaintiff said it did, then the evidence would not have been allowed to reach the jury at all.) It was then the jury's job to ultimately decide whether the evidence was convincing.

[Bored Lawyer]

Because this is an appeal of a denial for a motion for JNOV, which stands for judgment non obstante veredicto or judgment notwithstanding the verdict. (Lawyers love Latin, makes them sound smart.)

Jury returns a verdict in the plaintiff's favor. A JNOV allows the trial court to set aside the jury's verdict, but only on a very highly deferential standard -- the same standard used for summary judgment. I.e., whether in the light most favorable to the winning party, and giving the winning party the benefit of all reasonable inferences, the jury verdict can be sustained. A very tough standard -- unless the jury was drunk or acted out of pure passion, the verdict stands.

Here the trial judge denied the motion. That denial was appealed. An appellate court applies the same highly deferential standard in reviewing the denial. Not surprisingly, they affirmed it.

[Bored Lawyer]

BTW, this also illustrates that you can't appeal a jury's verdict, at least not directly. You have to appeal something the trial judge did -- allowed in evidence that should not have been allowed in (or the reverse, excluded evidence that should have been admitted), bad jury instructions, or as in this case, denied a motion for JNOV.
The lawyers have to make effort to preserve these issues, or they are waived.

[Dr. Ed 2]

As to Latin, one of my favorite MASH episodes was when Winchester was defending Klinger in a court martial and at wit's end, said something in Latin that the prosecutor didn't know -- but the chief judge did, it was something along the lines of "take by mouth twice a day."

[Rossami]

Thank you, both. That makes more sense.

[Life of Brian]

To me this feels like a "don't f--k with the kids" verdict. Good riddance.

But here's the wild thing: Merritt's Gravel Pit -- out in the middle of nowhere well southwest of Chapel Hill, where land is not exactly scarce, somehow became immediate neighbors with not one, but two preschools [Google Maps link removed to defeat spam filter - strange]. What are the odds?

An attractive nuisance of a different sort, I guess.

[Dr. Ed 2]

The other side of this, which is not being mentioned, is that the gravel underneath the preschool may be worth considerably more than the preschool is.

Gravel pits aren't as bad as strip mines, but they leave barren moonscapes behind where nothing grows. They also lower the water table -- more of an issue when people relied on dug (rather than drilled) wells, but they tend to dry out adjacent properties.

At least with the ones created by the glaciers, the gravel usually extends down to ledge, and there's nothing that's ever going to grow on that...

[ObviouslyNotSpam]

Based on StreetView, the Merritts are apparently Trumpers.

How surprising.

[Dr. Ed 2]

Not really -- rural North Carolina has conflict between traditional and college-educated folk and that's part of what is at play here.

In North Carolina, 1960 census statistics show that, while 34% of white males had completed high school, only 12% of Negro males had done so. U.S. Bureau of the Census, U.S. Census of Population: 1960, Vol. 1, Characteristics of the Population, pt. 35, Table 47.
--- Griggs v Duke Power Co., 401 U.S. 424 (1971)

[Stephen Goldstein]

What do these 60+ year old census statistics tell us about the several parties to this case?

[Dr. Ed 2]

"F–ked with a tractor again, you egg-headed son-of-a-b–ch." [emphasis added]

Do I really need to say more?
If so, https://en.wikipedia.org/wiki/Egghead

A family gravel pit operation and a woman who has a grad degree from Duke. People with the same last name versus people who don't. In our bifurcated country, can you not see the divide?

[grb]

Stephen Goldstein : "What do these 60+ year old census statistics tell us...."

I expect they tell us more about Ed than North Carolina education or this very singular case. As for the former, the current rates of White and Blacks with a high school diploma is 88.9% and 81.4% respectively. It is interesting to see how the overall education situation has changed since 1960 if the quoted numbers are correct. Also, a racial disparity of almost 3-1 a few years after the Brown vs Board of Education decision has closed to a few percentage points.

https://statisticalatlas.com/state/North-Carolina/Educational-Attainment

[Dr. Ed 2]

What it says is that Ed uses the statistics he has rather than inventing ones more convenient to him.

There IS a co-relationship between parental high school graduation rate and child's college graduation rate, although what were the WHITE graduation rates circa 1980 when Tony & Irene would have been eligible to attend high school? I neither know nor feel like spending a day finding out.

And perish the thought that I include the full quote -- I was and am surprised at how low the WHITE college graduation rate was in 1960 NC.

And who would chose to build a day care center next to an operating gravel pit, where there are not only heavy equipment but gravel embankments which have a bad habit of collapsing and burying children alive. Not like in Mississippi but legitimate accidents -- a child pries a pretty rock out of the bank and 15 feet of gravel come cascading down on top of him -- it happens.

[gormadoc]

Looks like quite a few preschools in the area. I suspect "preschool" just sounds nicer than "daycare." I've seen questionable daycares named "academy" in my area and there's no way they're really learning anything in those.