Fernandes v. Tenbruggencate, 8050

• Citation: 65 Haw. 226,649 P.2d 1144
• Decision Date: 26 August 1982
• Docket Number: No. 8050,8050
• Parties: , 8 Media L. Rep. 2577 William E. FERNANDES, Plaintiff-Appellant, v. Jan TENBRUGGENCATE and the Honolulu Advertiser, Defendants-Appellees.
• Court: Supreme Court of Hawai'i

Page 1144

649 P.2d 1144

65 Haw. 226, 8 Media L. Rep. 2577

William E. FERNANDES, Plaintiff-Appellant, v. Jan TENBRUGGENCATE and the Honolulu Advertiser, Defendants-Appellees.

No. 8050.

Supreme Court of Hawai'i.

Aug. 26, 1982.

Syllabus by the Court

1. Summary judgment is properly granted where it is established from the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

2. Summary judgment is proper where the court finds that the communication is incapable of bearing the defamatory meaning ascribed to it by appellant as a matter of law.

3. The general rule is that headlines are to be construed in conjunction with their accompanying articles in determining whether a publication is defamatory.

4. Where a whole article relates to one subject, all that is said on the subject must be considered in order to determine the sense in which the article would be rationally understood by those reading it.

Michael R. Salling and Lehua Fernandes Salling, Kapaa (Fernandes, Salling & Salling, Kapaa, of counsel) on briefs for plaintiff-appellant.

Jeffrey S. Portnoy, Honolulu (Cades Schutte Fleming & Wright, Honolulu, of counsel) on briefs for defendants-appellees.

Before RICHARDSON, C. J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.

PER CURIAM.

Plaintiff-appellant, Councilman William Fernandes (hereinafter cited as appellant), appeals the trial court's grant of summary judgment in favor of defendants-appellees, Jan Tenbruggencate and the Honolulu Advertiser (hereinafter cited as appellees or Tenbruggencate and Advertiser respectively), in a defamation action. For reasons set forth below, we affirm.

I.

Appellant initiated this action in response to a series of articles published by the Advertiser which allegedly injured appellant's reputation for honesty and integrity, subjecting appellant to the criticism, scorn, and mistrust of his neighbors, colleagues, and business acquaintances. While appellant initially alleged that the series of articles published by the Advertiser were defamatory, it becomes clear from the record that the only article at issue is one entitled "Brother Helps in Kauai Rezoning Request," written by Tenbruggencate.

The article reports on appellant's signing of a resolution seeking the rezoning of land owned in part by appellant's brother; it alludes to a possible conflict of interest problem but concludes that appellant was not in conflict when he signed the resolution.

In its closing paragraphs, reference is made to a previous situation involving appellant and the Kauai County's Board of Ethics. The article states that "(t)he County's Board of Ethics initially called (the previous case) a conflict of interest but after Fernandes appealed, the board reversed its opinion, saying it had been mistaken." (Emphasis added.) In actuality, appellant had written to the board inquiring if he could vote on the matter without violating the county's ethics regulations; the board responded in the affirmative. Later, additional facts concerning appellant's request were brought to the board's attention. At that point, the board stated that had it known of the additional facts, it would have concluded that appellant could not vote on the matter without being in conflict; however, appellant was justified in relying on its previous ruling. Subsequently, the board again reversed itself upon realizing it had misinterpreted the applicable regulations.

II.

Appellant contends that the trial court erred in granting appellees' motion for summary judgment when he had established a prima facie case of defamation by showing that the article defamatorily and falsely implied that appellant acted unethically and that the article was published with knowledge of its falsity or with reckless disregard as to whether it was true or false.

Summary judgment is properly granted where it is established from the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Gealon v. Keala, 60 Haw. 513, 591 P.2d 621 (1979); Technicolor v. Traeger, 57 Haw. 113, 551 P.2d 163 (1976); Gum v. Nakamura, 57 Haw. 39, 549 P.2d 471 (1976); Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970); Ottensmeyer v. Baskin, 2 Haw.App. 86, 625 P.2d 1069 (1981). The standard to be applied by this court in reviewing the validity of a grant of summary judgment is identical to that employed by the trial court. Technicolor, supra, 57 Haw. at 118, 551 P.2d at 168. This means that "the inferences to be drawn from the underlying facts alleged in the materials (such as depositions, answers to interrogatories, admissions and affidavits) considered by the court in making its determination must be viewed in the light most favorable to the party opposing the motion." Gum, supra, 57 Haw. at 42, 549 P.2d at 474.

In the instant case, summary judgment would have been properly granted if the court found that the communication was incapable of bearing the defamatory meaning ascribed to it by the appellant as a matter of law. ¹ A communication is defamatory when it tends to "harm the reputation of another as to lower him in the estimation of the community or deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1976); Kahanamoku v. Advertiser, 25 Haw. 701 (1920). Whether a communication is defamatory " 'depends, among other factors, upon the temper of the times, the current of contemporary public opinion, with the result that words, harmless in one age, in one community, may be highly damaging to reputation at another time or in a different place.' " Schermerhorn v. Rosenberg, 73 A.D.2d 276, 284, 426 N.Y.S.2d 274, 282 (1980). Kahanamoku, supra.

Alternatively, summary judgment would be proper where, although the communication is susceptible to a defamatory interpretation, the moving party showed "through uncontroverted depositions and affidavits that the publication was made without deliberate falsification and without a high degree of awareness of the probable falsity of the statements in the publication; in such instance, there is no genuine issue of 'actual malice' for trial." Tagawa v. Maui Publishing Co., 50 Haw. 648, 652, 448 P.2d 337, 340 (1968).

We believe that summary judgment was properly granted because the article is not defamatory as a matter of law, and, thus, we need not reach the issue of actual malice. Clark v. Allen, 415 Pa. 484, 204 A.2d 42 (1964).

Appellant asserts that the article entitled "Brother Helps in Kauai Rezoning Request" is defamatory because the headline implies that appellant improperly used his influence for family aggrandizement and the statement that the Board of Ethics initially found appellant in conflict when he voted in a previous matter falsely accused appellant of violating the county's ethics regulations. Appellant argues that the implication that he acted unethically in promoting rezoning which could benefit his family was especially damaging to his reputation because:

(i)n recent years Kauai has experienced unlawful, even violent protests and demonstrations against rezoning to allow urbanization and further development. Highly publicized news articles and political speeches have fostered the attitude that politicians who support such legislation are corrupt influence peddlers, traitors on the take from any land owner who is the highest bidder. This attitude is becoming increasingly irrational, often surfacing in the form of racial hatred of all outsiders and anything new or different.

Opening Brief for Appellant at 8-9.

As to the headline, appellant, relying on Sprouse v. Clay Communications, Inc., W.Va., 211 S.E.2d 674 (1974), cert. denied, 423 U.S. 882, 96 S.Ct. 145, 46 L.Ed.2d 107 (1975), contends that it is actionable although the article itself may not be. However, Sprouse does not stand for the proposition that a headline should always be examined separately, without regard to the mitigating material in the body of the attached article in determining whether it is defamatory. While the court did consider the headlines separately in determining whether defamatory falsehoods were published, it repeatedly cautioned that it did so only because "the plaintiff proved that the newspaper abdicated its traditional role of fairly reporting the news and became a participant in a scheme or plan, the object of which was to employ grossly exaggerated and patently untrue assertions, embodied primarily in headlines, to destroy the character of (the plaintiff)." Id. at 691. It further stated that "(g)enerally where the headline is of normal size and does not lead to a conclusion totally unsupported in the body of the story, both headlines and story should be considered together for their total impression." Id. 211 S.E.2d at 686. (Emphasis added.)

While this court recognizes that there are jurisdictions in which a newspaper headline alone may be actionable, ² the majority of jurisdictions support the rule that headlines are generally to be construed in conjunction with their accompanying articles. ³ This court previously stated the rule that:

" 'the law does not dwell on isolated passages, but judges of the publication as a whole.' "

This is undoubtedly the rule where the whole article relates to one subject for all that is said on the subject must be considered in order to determine the sense in which the article would rationally be understood by those reading it.

Kahanamoku, supra, at 714.

Reading the headline and...