Mach v. Allison

Citation2003 WI App 11,259 Wis.2d 686,656 N.W.2d 766
Decision Date05 December 2002
Docket NumberNo. 02-0928.,02-0928.
PartiesAngelina MACH, Plaintiff, v. Frank ALLISON, Defendant-Third-Party Plaintiff-Appellant, v. Kathleen MACH, Third-Party Defendant, NBC-15, Christine Leonard, Benedek Broadcasting and National Casualty Company, Third-Party Defendants-Respondents. Frank ALLISON, Plaintiff, v. NBC-15, Christine Leonard, Benedek Broadcasting and ABC Insurance Company, Defendants.
CourtCourt of Appeals of Wisconsin

On behalf of the defendant-third-party plaintiff-appellant, the cause was submitted on the briefs of John L. Cates, Paul A. Kinne, and Heath P. Straka of Gingras, Cates & Luebke, S.C., Madison.

On behalf of the third-party defendants-respondents, the cause was submitted on the brief of Robert J. Dreps of LaFollette Godfrey & Kahn, Madison.

Before Vergeront, P.J., Roggensack and Deininger, JJ.

¶ 1. VERGERONT, P.J.

This defamation action concerns a Channel 15 television news broadcast on a dog trainer, Frank Allison, and a dog placed with him for training that subsequently died. Allison appeals the trial court's orders dismissing his first amended complaint and third amended complaint on Channel 15's motions for summary judgment. He contends there are disputed factual issues on whether the alleged defamatory implication in the first amended complaint—that he was the dog's killer—was false, and on whether the additional defamatory implications alleged in the third amended complaint were reasonably implied by the broadcast. Therefore, he asserts, he is entitled to a trial on these issues.

¶ 2. We conclude the trial court correctly dismissed the first amended complaint because Channel 15 was entitled to judgment as a matter of law that the implication that Allison was the killer of the dog was not false. We also conclude the trial court erroneously exercised its discretion in allowing further amendment to the complaint after the motion for summary judgment was granted because the court did not apply the correct legal standard. In order to allow the trial court the opportunity to exercise its discretion applying the correct legal standard, we remand for that purpose. In the event the trial court on remand decides to deny leave to amend the first amended complaint, after exercising its discretion based on the correct legal standard, that decision will terminate the action. However, in the event the trial court on remand decides to grant leave to amend, we take up the second issue raised by Allison: whether the trial court correctly granted summary judgment on the third amended complaint. We hold that the trial court was correct with respect to six of the newly alleged defamatory implications, because, we conclude, the broadcast did not fairly and reasonably convey those implications. However, we conclude the broadcast did fairly and reasonably convey the implication that Allison used beating or violence as a means of training the dog. Accordingly, if the trial court decides to allow amendment to the first amended complaint, we affirm in part summary judgment on the third amended complaint, reverse in part, and direct a trial on the alleged defamatory implication that Allison used beating or violence as a means of training the dog.

BACKGROUND

¶ 3. The first amended complaint alleged the following.1 Allison specializes in training aggressive and dangerous dogs that are considered untrainable, and Angelina Mach agreed to have him train her dog, Chance, because the dog was aggressive, out of control, and had bitten several people. Chance attacked Allison when he entered the dog's kennel to put it on a leash, and he "hit Chance with a stick in order to defend himself from serious bodily injury or even death and to exit the kennel." Mach took Chance home the next day, and Chance died within a few days. The autopsy report showed that Chance died from severe thoracic disease, a condition pre-existing the dog's stay with Allison. The complaint asserted that the news report "negligently and falsely portrayed and implied that [he] was [Chance's] killer . . .," and it listed seven specific statements, omissions, and visual images which allegedly conveyed this false portrayal and implication.

¶ 4. Channel 15 moved for summary judgment on the ground that Allison could not prove that the alleged defamatory implication—that he was the dog's killer— was false. In support of its motion, Channel 15 relied on the affidavit of Dr. Howard Steinberg who authored the autopsy report and averred that he held the opinions expressed in the report to a professional degree of probability. The report came to this conclusion: "The immediate cause of death is a result of severe thoracic disease. However, the traumatic injuries and the underlying congenital (most likely) heart problems most likely contributed to this dog's death." In response, Allison argued that even if the trauma in some way contributed to the dog's death, the news report created the inference that Allison "inappropriately killed Chance."2 ¶ 5. The trial court issued a written decision on June 28, 2000, granting Channel 15's motion to dismiss the first amended complaint. The court stated that Allison had the burden of presenting evidence from which a reasonable jury could find that the alleged statement or implication in the news report that he was responsible for Chance's death was false. The court concluded that Allison had not done this, because the only evidence—the autopsy report—showed that Allison had contributed to the dog's death.

¶ 6. On July 5, 2000, Allison moved for reconsideration, or, in the alternative, to amend the first amended complaint. Allison submitted with this motion an affidavit of counsel, which attached three letters from doctors of veterinary medicine that, Allison contended, showed there was a dispute over whether Allison had caused the dog's death.3 Allison also argued that the trial court had construed the alleged defamatory implication too narrowly, and even if he could not prove the falsity of the implication that he killed the dog, he could prove he did not kill the dog without justification and did not perform the functions of a dog trainer in a reckless, dangerous, or unprofessional manner. The proposed second amended complaint added these two additional assertions of falsity.

¶ 7. Channel 15 opposed both requests. In objecting to an amendment to the first amended complaint, it argued that there was no precedent for allowing an amendment after a motion for summary judgment was granted, no new facts had come to Allison's attention, Allison had had nearly two years to decide what statements or implications in the news report he viewed as defamatory,4 and it was unjust to permit him now to start over with different ones after losing on the summary judgment motion.

¶ 8. The trial court denied the motion for reconsideration, rejecting Allison's argument that the court should have considered negative implications from the broadcast that were not specifically pleaded. However, the court decided to grant the motion to amend. The court stated that it had the discretion to grant a motion to amend until and even after judgment if justice so requires, such motions were to be liberally granted unless the other party would be prejudiced, and Channel 15 was not prejudiced because it had notice from the pleadings, briefs, and depositions of the operative facts and allegations giving rise to the defamatory implications of the broadcast that were pleaded in the proposed amended second complaint.

¶ 9. Allison eventually filed a third amended complaint5 that alleged that the broadcast had negligently and falsely portrayed and implied that: (1) he intentionally killed the dog without provocation or justification; (2) he recklessly killed the dog without provocation or justification; (3) he intentionally caused serious bodily injury to the dog without provocation or justification; (4) he recklessly caused serious bodily injury to the dog without provocation or justification; (5) he intentionally caused serious bodily injury to the dog without being attacked by the dog; (6) he recklessly caused serious bodily injury to the dog without being attacked by the dog; and (7) his training method was to beat or use violence as a means of training this dog. For each of these alleged false portrayals and implications, the complaint listed a number of statements, omissions, and images that allegedly conveyed the false portrayal and implication.

¶ 10. Channel 15 moved for summary judgment, asserting that no reasonable jury could construe the news story to convey any of these defamatory implications. In opposition, Allison submitted his affidavit in which he averred the following: (1) the news report showed him training two dogs, neither of which were Chance; (2) he was training for protection work in which dogs are trained to bite only on command of the dog's master; (3) Chance did not receive that type of training, but instead was to receive obedience training, which is designed to be gentle and to help a dog gain trust in people; and (4) Chance attacked him while the dog was still under observation and while he was trying to gain the dog's trust by feeding him and speaking to him. Allison also submitted portions of his deposition, of the reporter's and of the editor's. ¶ 11. The trial court granted Channel 15's motion. With respect to the first six implications, the court concluded the broadcast was not capable of conveying those implications because the reporter stated that Allison said the dog attacked him and other statements convey that Allison did nothing wrong. With respect to the seventh implication, the court concluded that the broadcast was not capable of conveying the meaning that Allison used beating or violence as a means of training Chance. The court reasoned that although the videotape showed Allison in protective clothing with a dog...

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