88 Hawai'i 94, Gold v. Harrison, 20468

• Decision Date: 08 July 1998
• Docket Number: No. 20468,20468
• Parties: 88 Hawai'i 94, 26 Media L. Rep. 2313 Steven Philip GOLD and Scott Howard Whitney, Plaintiffs-Appellants, v. George HARRISON, Gannett Pacific Corporation, dba The Honolulu Advertiser, and Edwin Tanji, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 353

962 P.2d 353

88 Hawai'i 94, 26 Media L. Rep. 2313

Steven Philip GOLD and Scott Howard Whitney, Plaintiffs-Appellants, v. George HARRISON, Gannett Pacific Corporation, dba The Honolulu Advertiser, and Edwin Tanji, Defendants-Appellees.

No. 20468.

Supreme Court of Hawai'i.

July 8, 1998.

Edward D. Magauran, Honolulu, and William H. Pickett, on the briefs, for plaintiffs-appellants.

Paul Alston, Susan Jameson and Marilyn Chung Ushijima of Alston Hunt Floyd & Ing, on the briefs, Honolulu, for defendant-appellee George Harrison.

Jeffrey S. Portnoy and Peter W. Olson of Cades Schutte Fleming & Wright, on the briefs, Honolulu, for defendants-appellees Gannett Pacific Corporation dba The Honolulu Advertiser and Edwin Tanji.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

NAKAYAMA, Justice.

This case arises out of statements made by defendant-appellee George Harrison to defendant-appellee Edwin Tanji, a reporter for defendant-appellee The Honolulu Advertiser (The Advertiser), during a trial involving Harrison's property on Maui that established an easement over Harrison's property in favor of his neighbors, including, inter alia, plaintiffs-appellants Steven Philip Gold and Scott Howard Whitney (collectively, the Plaintiffs).

During trial, an article in The Advertiser quoted Harrison as saying, "Have you ever been raped? I'm being raped by all these people.... My privacy is being violated. The whole issue is my privacy." The Plaintiffs thereafter filed a twelve-count complaint against Harrison, The Advertiser, and Tanji in the Second Circuit Court, alleging oral defamation, false light/invasion of privacy, intentional infliction of emotional distress, written defamation, and negligence.

After Harrison, The Advertiser, and Tanji prevailed on motions for summary judgment, the circuit court entered final judgment against the Plaintiffs. In addition, the circuit court awarded Harrison attorneys' fees pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 11, to be paid by the Plaintiffs' counsel, William H. Pickett. On appeal, the Plaintiffs raise the following as points of error: (1) the circuit court erred when it granted summary judgment in favor of Harrison, The Advertiser, and Tanji because there was a genuine issue of material fact as to whether Harrison's statements were false and defamatory; (2) the circuit court abused its discretion when it imposed HRCP Rule 11 sanctions against Pickett; and (3) the circuit court abused its discretion and denied Pickett due process of law when it failed to hold an evidentiary hearing on the HRCP Rule 11 sanctions.

Harrison contends that the Plaintiffs' appeal is frivolous and that he should be awarded attorneys' fees and costs pursuant to Hawai'i Rules of Appellate Procedure (HRAP) Rule 38.

We affirm: (1) the final judgment; (2) the circuit court order granting The Advertiser and Tanji's motions for summary judgment; and (3) the circuit court order granting Harrison's motion for summary judgment and HRCP Rule 11 sanctions. We also grant Harrison's request for attorneys' fees and costs pursuant to HRAP Rule 38.

I. BACKGROUND

A. THE EVENTS LEADING TO THIS LITIGATION

The Plaintiffs claim that they were defamed in an article entitled "Ex-Beatle says of trial on Maui: Don't rob my privacy, no, no, no," published in The Honolulu Advertiser on July 21, 1993. In the article, Harrison was quoted as saying: "Have you ever been raped? I'm being raped by all these people.... My privacy is being violated. The whole issue is my privacy" (Harrison's Statement).

The article was written by Tanji and concerned litigation in the Second Circuit Court involving Harrison's property in Nahiku, Maui (the Easement Action). In the Easement Action, the Plaintiffs sought to establish that they and other neighboring property owners owned an easement over Harrison's land. Harrison opposed their claim and testified regarding, inter alia, his need for privacy. Harrison's Statement was made after the circuit court ruled that an easement existed over Harrison's land in favor of the Plaintiffs and other neighboring property owners. The trial continued on to determine the exact location of the easement. The Plaintiffs were not named in the article.

B. THE PLAINTIFFS' FEDERAL COURT ACTION

On August 11, 1993, the Plaintiffs filed suit in the United States District Court for the District of Hawai'i, alleging claims of defamation, false light/invasion of privacy, and punitive and exemplary damages against Harrison (the Federal Action). Pickett was lead counsel in the case. ¹

On October 5, 1993, Pickett received a fax from local Hawai'i counsel informing him that, at an interview with other reporters who were present at the time Harrison's Statement was made to the press, the other reporters had suggested that Harrison's Statement was intended to be directed at the press or the media, rather than at the neighboring property owners, including the Plaintiffs, who had prevailed in the Easement Action against Harrison. This raised the possibility of a claim of defamation against The Advertiser and Tanji, which would have destroyed diversity jurisdiction.

On October 6, 1993, the Plaintiffs voluntarily dismissed the Federal Action without prejudice.

C. THE PLAINTIFFS' CIRCUIT COURT ACTION

On July 19, 1995, the Plaintiffs filed a civil complaint in the Second Circuit Court. Two days later, the Plaintiffs filed a first amended complaint. The Plaintiffs alleged claims of oral defamation, false light/invasion of privacy, intentional infliction of emotional distress, written defamation, and negligence. Harrison , The Advertiser, and Tanji were named as defendants. ²

On August 11, 1995, The Advertiser, and Tanji filed a motion to dismiss, arguing that Harrison's Statement was not false and defamatory because, as "rhetorical hyperbole," it was constitutionally protected speech under the first amendment to the United States Constitution. The Advertiser and Tanji's motion to dismiss was based on HRCP Rule 12(b)(6), but because the circuit court considered evidence outside the pleadings, specifically, the full text of the newspaper article, the circuit court treated the motion to dismiss as a motion for summary judgment pursuant to HRCP Rule 56. ³

In response, the Plaintiffs argued that the motion should be denied because the published newspaper article distorted Harrison's actual words. The Plaintiffs argued that Harrison's Statement was actually directed at the media and that the Article distorted Harrison's Statement so that it appeared--falsely--that the Plaintiffs were the "rapists" that Harrison was complaining about. After a hearing, the circuit court granted the motion for summary judgment on October 17, 1995.

On February 6, 1996, the circuit court filed a notice of dismissal, stating that it would dismiss the case because Harrison had not been served with the complaint. The Plaintiffs opposed the notice of dismissal. The circuit court withdrew the notice of dismissal in an order filed February 20, 1996, on the condition that the Plaintiffs serve Harrison with the complaint on or before May 17, 1996.

On May 16, 1996, Harrison was served by a private process server, Jason Tierney, who left the summons and accompanying pleadings with Harrison's adult brother at Harrison's home in Great Britain. ⁴

On July 1, 1996, Harrison filed a motion to dismiss, seeking: (1) to dismiss the Plaintiffs' first amended complaint, contending that Harrison's Statement was not false and defamatory, because as rhetorical hyperbole, it was constitutionally protected speech; and (2) HRCP Rule 11 sanctions and/or attorneys' fees against Pickett. Harrison's motion to dismiss was based on HRCP Rule 12(b)(6), but because the circuit court considered evidence outside the pleadings, specifically, the full text of the newspaper article, the circuit court treated the motion to dismiss as a motion for summary judgment pursuant to HRCP Rule 56. ⁵

On September 11, 1996, after a hearing, the circuit court orally granted Harrison's motion for summary judgment and HRCP Rule 11 sanctions.

On November 12, 1996, Pickett submitted to the circuit court an ex parte motion for an evidentiary hearing to determine whether HRCP Rule 11 sanctions should have been awarded, and whether the amount of sanctions ordered to be paid were just and reasonable. In the affidavit in support of his ex parte motion, Pickett stated that "[a]ll actions with respect to the filing and prosecution of this case ... were taken by me and my firm, as lead counsel for Plaintiffs." The circuit court denied Pickett's ex parte motion for an evidentiary hearing and returned the motion to Pickett unsigned. Pickett filed the unsigned ex parte motion in the circuit court record on November 27, 1996.

On November 14, 1996, the circuit court filed an order granting summary judgment in favor of Harrison and awarding HRCP Rule 11 sanctions in favor of Harrison against Pickett (the Harrison Order).

In the Harrison Order, the circuit court ruled that the first amended complaint should be dismissed for three independent reasons:

First, the allegedly defamatory statements attributed to Defendant Harrison are non-defamatory constitutionally protected rhetorical hyperbole; there is no good faith allegation or contention that the allegation of "rape" was anything more than colorful non-factual figurative speech, regardless of the identity of the persons at whom the remarks were targeted. Second, the Plaintiffs previously sought to validate their claim in this case against Defendants [The Advertiser] and Edwin Tanji on the basis that they distorted Defendant Harrison's statements to make it appear, falsely, that Defendant Harrison was disparaging the Plaintiffs when, in fact, he was disparaging overly zealous members of the news media. Having sought to hold [The Advertiser] and Tanji liable on that factual premise--which is inconsistent with imposing...