LINCOLN, Neb. (Legal Newsline) - A lawyer who accused a former client of engaging in “Michael Avennati style” extortion and posting a review on his Google business page describing him as a “disheveled, unorganized, unreliable attorney” can’t revive his lawsuits even though it took more than a year to discover the true author of the review, the Nebraska Supreme Court ruled.
The state high court affirmed the so-called first publication rule for internet content, under which Nebraska’s one-year statute of limitations for libel suits is triggered on the date an item is posted.
Omaha attorney Timothy L. Ashford was hired by Antonio and Andrea Tate to represent them in lawsuits over auto accidents in 2016 and 2017. In November 2018, Ashford emailed the Tates to tell them he was no longer representing them and he had placed attorney liens of $5,900 on their cases.
Andrea Tate responded with a Dec. 13, 2018, letter saying they were “in complete agreement” to pay his billable hours but only if he sent them their case files and detailed time sheets. She warned Ashford they would file grievances with the Nebraska State Bar and other authorities if they didn’t hear back by Jan. 10, 2019. She also warned she would send “reviews and comments to all other relevant sites regarding our experience with you.”
In March 2019 the Nebraska Supreme Court Counsel for Discipline received a grievance letter signed Andrea D. Tate that had been emailed from an account with the username “Roses Roses.” Also that month someone named Roses Roses posted a review on Ashford’s Google business page saying “If you’re looking for a disheveled, unorganized, unreliable attorney with questionable ethics he’s your man . . . .”
Ashford sent a letter to Andrea Tate on May 9, 2019 telling her to immediately remove the review or he would sue her for damages. She denied posting the review, so Ashford filed lawsuits against Andrea Tate, Roses Roses and other unidentified defendants in 2019 and 2020.
After a year of litigation, Ashford identified “Roses Roses” as Andrea’s aunt, Rose Thompson, who lived in Texas. Thompson admitted she had helped draft the grievance letter and posted the review, but said she had never given Andrea access to her email account, permission to post anything on the internet or consulted with Andrea before posting the review.
The court dismissed the 2019 lawsuit against Andrea Tate after determining she hadn’t posted the review. The judge dismissed the second lawsuit as barred by the one-year statute of limitations, since Ashford didn’t name Roses Roses/Thompson as a defendant until August 2020.
Ashford appealed with several arguments, but the Nebraska Supreme Court rejected them all in a Jan. 27 decision.
First, Ashford argued Judge W. Russell Bowie should have recused himself because Ashford had sued the judge in federal court in 2017 over racial discrimination. The case was dismissed for lack of jurisdiction in 2018, however, and the Supreme Court agreed the judge was correct to reject the recusal motion.
Ashford also argued the 2019 suit shouldn’t have been dismissed because Andrea had changed her testimony, from warning him she would post a review in her December 2018 letter to testifying she hadn’t done so. But the letter wasn’t “testimony of any sort,” the Supreme Court ruled, so it didn’t contradict her later statements under oath.
The court also rejected Ashford’s claim Andrea had engaged in “a Michael Avenatti style attempt to extort an attorney” by threatening to file grievance claims against him. But grievance claims are absolutely privileged, the court ruled, and can’t form the basis for a lawsuit.
Finally, the court agreed with the trial judge that the lawsuit against Roses Roses, who turned out to be Thompson, was barred by the statute of limitations. Ashford had argued the deadline shouldn’t apply since the harsh review was effectively republished each time someone looked at his website.
“Ashford’s single cause of action accrued on March 20, 2019, the date Roses Roses first posted the Google review,” the court ruled. “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.”