Armistead v. Minor, 2000-CA-01914-SCT.

• Decision Date: 09 May 2002
• Docket Number: No. 2000-CA-01914-SCT.,2000-CA-01914-SCT.
• Citation: 815 So.2d 1189
• Parties: Rex P. ARMISTEAD v. Bill MINOR.
• Court: Mississippi Supreme Court

815 So.2d 1189

Rex P. ARMISTEAD v. Bill MINOR.

No. 2000-CA-01914-SCT.

Supreme Court of Mississippi.

May 9, 2002.

William E. Spell, Clinton, attorney for appellant.

Luther T. Munford, Mark David Fijman, Jackson, attorneys for appellee.

Before SMITH, P.J., DIAZ and EASLEY, JJ.

SMITH, P.J., for the Court.

¶ 1. On April 12, 1999, Rex P. Armistead ("Armistead") filed this defamation suit for damages in the Circuit Court of the First Judicial District of Hinds County against newspaper columnist, Bill Minor ("Minor"), and several Mississippi newspapers. Armistead claimed that he was defamed by an April 1998 newspaper column authored by Minor. The defendants moved for summary judgment. On April 18, 2000, the circuit court granted the defendant newspapers' motion for summary judgment. Armistead then voluntarily dropped the newspapers from the case. On September 11, 2000, the circuit court granted defendant Minor's motion for summary judgment. Aggrieved by this ruling, Armistead now seeks review in this Court.

¶ 2. We hold that summary judgment was proper because the gist or substance of the article was substantially true and because Armistead, a public figure, offered no evidence of actual malice by Minor. We, therefore, affirm the trial court.

FACTS

¶ 3. Bill Minor writes a column entitled "Eyes on Mississippi," which is regularly published in newspapers around the State. In April of 1998, Minor devoted his column to a discussion of Armistead's history of being involved in scandals and investigations. This column was sparked by a report in The Commercial Appeal (a Memphis newspaper) discussing Armistead's involvement in "The Arkansas Project."¹ The article had noted that Armistead had been paid $250,000 to act as an investigator for the Project. Armistead claims that Minor's column contained false statements that damaged his reputation.

STANDARD OF REVIEW

¶ 4. This Court applies a de novo standard of review of a trial court's grant or denial of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss.2001); Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Heigle v. Heigle, 771 So.2d 341, 345 (Miss. 2000). Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure, which states that summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact ..." Hudson, 794 So.2d at 1002; Jenkins, 794 So.2d at 232; Heigle, 771 So.2d at 345. The burden of demonstrating that no genuine issue of fact exists is on the moving party. Id. "The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense... [T]he existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact." Hudson, 794 So.2d at 1002 (quoting Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994)). Cases that deal with first amendment issues, such as libel cases call for closer scrutiny upon review. As this Court has observed,

In cases of this constitutional character, the Court employs a heightened standard of review. In determining the sufficiency of the evidence to pass constitutional muster, the appellate court must make an independent review of the evidence. "We must `make an independent examination of the whole record,' ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression." Gulf Publ'g Co., Inc. v. Lee, 434 So.2d 687, 696 (Miss.1983) (quoting New York Times v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). See also Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971)

; Greenbelt Coop. Publ'g Ass'n, Inc. v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); Long v. Arcell, 618 F.2d 1145, 1147 (5th Cir. 1980) ("our duty is to make an independent examination of the evidence and determine whether there was a clear and convincing showing of actual malice"); Meridian Star, Inc. v. Williams, 549 So.2d 1332, 1335 (Miss.1989),

overruled on other grounds, Roussel v. Robbins, 688 So.2d 714 (Miss.1996).

Journal Publ'g. Co. v. McCullough 743 So.2d 352, 359 (Miss.1999)

.

DISCUSSION

¶ 5. Armistead designates three issues on appeal. First, he argues that there was a genuine issue of material fact, and thus summary judgment was inappropriate. Second, he contends that the trial court made findings of fact and invaded the province of the jury. Third, he asserts that the trial court abused its discretion. Minor contends that summary judgment was appropriate. First, he asserts that Armistead presented no evidence of actual malice to the trial court. Second, he avers that the statements qualify as substantially true. Finally, Minor argues that Armistead was not defamed by these statements. Armistead's issues can all be summarily discussed within the general topic of whether summary judgment was appropriate.

¶ 6. Armistead cites the following statements, which appeared in Minor's column, as being libelous:²

Armistead's odoriferous background in Mississippi, ranging all the way from head-bashing of black civil rights workers to concocting a bizarre homosexual scandal in an attempt to defeat a gubernatorial candidate.

He gained notoriety around 1960 by leading a posse of heavily armed officers who riddled the farm house of a holed-up black farmer alleged to have earlier waved his shotgun to chase a deputy off his land.

Armistead was banished from the patrol headquarters by new Gov. Bill Waller in 1972 and put on the road in north Mississippi.

There, Armistead was involved in an ugly incident in which some black civil rights workers in the Marshall County area were beaten up at a highway roadblock.

What was not said, however, was that Armistead as a paid private eye, had dredged up the transvestites and had them relate their story of having had sex with Allain.

¶ 7. To establish a claim for defamation, a plaintiff must prove the following elements:

(1) a false and defamatory statement concerning plaintiff;

(2) unprivileged publication to third party;

(3) fault amounting at least to negligence on part of publisher;

(4) and either actionability of statement irrespective of special harm or existence of special harm caused by publication.

Franklin v. Thompson, 722 So.2d 688, 692 (Miss.1998) (citations omitted). Due to his status as a public figure, Armistead is faced with the challenge of proving the additional burden of proving actual malice by clear and convincing evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 2428, 115 L.Ed.2d 447 (1991); Franklin, 722 So.2d at 692. As he does not contest this status, there is no need for this Court to question it. "Actual malice is defined as a statement made `with knowledge that it was false or with reckless disregard of whether it was false or not.'" Id. (citations omitted). The circuit court made various findings in granting Minor's summary judgment motion. This Court agrees that the trial court invaded the province of the jury, in some of these findings. This, however, was harmless as the right result was reached based on other findings.

¶ 8. In applying the libel-proof doctrine to Armistead, the trial court inappropriately stepped into the role of the jury. "The libel-proof plaintiff doctrine reasons that when a particular plaintiffs reputation for a particular trait is sufficiently bad, further statements regarding that trait even if false and made with malice, are not actionable because, as a matter of law, the plaintiff cannot be damaged in his reputation as to that trait." Church of Scientology Int'l v. Time Warner, Inc., 932 F.Supp. 589 (S.D.N.Y.1996) (citing Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir.1986); Cardillo v. Doubleday & Co., 518 F.2d 638, 639-40 (2d Cir.1975), aff'd sub nom. Church of Scientology v. Behar, 238 F.3d 168 (2d Cir.2001)

). As the trial court noted, some courts have found that granting summary judgment based on the libel-proof doctrine is appropriate. See Kevorkian v. American Med. Assoc., 237 Mich. App. 1, 602 N.W.2d 233 (1999). Other courts, however, have found that such action is not appropriate because "it requires the Court to make factual findings regarding plaintiffs reputation for a particular trait." Time Warner, 932 F.Supp. at 594. This Court adopts the latter approach, as the libel-proof doctrine requires a look at the plaintiffs current reputation. While it may be said that some reputations are easily assessed, it still requires consideration of credibility issues, and this is not something the trial judge should undertake. Stegall v. WTWV, Inc., 609 So.2d 348, 352-53 (Miss.1992),

See also Zerangue v. TSP Newspapers, 814 F.2d 1066, 1074 (5th Cir.1987) ("[S]ummary judgment is not an appropriate stage at which to resolve credibility questions."). Thus, the trial court's finding that Armistead was libel-proof was an abuse of its discretion.

¶ 9. While the finding that Armistead was libel-proof was inappropriate, the ultimate conclusion reached by the trial court is still correct. Summary judgment was appropriate under Mississippi's law regarding libel. This Court has defined a defamatory statement as "[a]ny written or printed language which tends to injure one's reputation, and thereby expose him to public hatred, contempt or ridicule, degrade him in society, lessen him in public esteem or lower him in the confidence of the community." Id. (quoting Fulton v. Mississippi...