Bates v. P.C.

• Decision Date: 05 December 2013
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,No. 111739.,111739.
• Parties: Erin BATES, Plaintiff/Appellant, v. P.C. CAST, a/k/a Phyllis Cast, an individual, Kristin Cast, an individual, and St. Martin's Press, a Foreign Limited Liability Company, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

316 P.3d 246

Erin BATES, Plaintiff/Appellant,

v.P.C. CAST, a/k/a Phyllis Cast, an individual, Kristin Cast, an individual, and St. Martin's Press, a Foreign Limited Liability Company, Defendants/Appellees.

No. 111739.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

Dec. 5, 2013.

Appeal from the District Court of Tulsa County, Oklahoma; Honorable Jefferson D. Sellers, Judge.

AFFIRMED.

Daniel E. Smolen, Smolen, Smolen & Roytman, P.L.L.C., Tulsa, Oklahoma, for Appellant.

Robert D. Nelon, Jon Epstein, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, for Appellees.

LARRY JOPLIN, Chief Judge.

¶ 1 Plaintiff/Appellant Erin Bates (Plaintiff) seeks review of the trial court's order granting the motion to dismiss of Defendants/Appellees P.C. Cast, a/k/a Phyllis Cast, an individual, Kristin Cast, an individual, and St. Martin's Press, a Foreign Limited Liability Company (individually, by name, or, collectively, Defendants) on Plaintiffs claims to actual and punitive damages for defamation, invasion of privacy—appropriation of likeness—false light, and intentional infliction of emotional distress. In this appeal, Plaintiff asserts the trial court erred as a matter of both law and fact in dismissing her claims.

¶ 2 Plaintiff filed her Petition October 31, 2012. She alleged that she met Defendant Phyllis Cast while a high school student where Ms. Cast was a teacher, that they developed a friendship, and that she worked for Ms. Cast after she graduated as a personal assistant for a period of time. Plaintiff further alleged that Defendants Phyllis Cast and her daughter, Kristin Cast, were authors of the House of Night series of books about “vampyres,” published by Defendant St. Martin's Press, that Defendants, without her consent, named a character Erin Bates in their latest book, Hidden, A House of Night Novel, and that Defendants described Erin Bates disparagingly in the book. Plaintiff further alleged that Defendant Phyllis Cast, during a live promotion of the book, identified Plaintiff Erin Bates as a real person living in Tulsa.

¶ 3 Plaintiff alleged the Defendants' descriptions of the Erin Bates character in their book were of and concerning her, were defamatory, and injured her professional and personal reputation. Plaintiff further alleged that Defendants wrongfully appropriated her name, without her knowledge and consent, for their personal gain, that Defendants' description of her depicted her in a false light and invaded her privacy, and that Defendants' acts were outrageous and intentional, causing her severe emotional distress. Plaintiff consequently sought the recovery of actual and punitive damages.

¶ 4 Defendants filed a motion to dismiss. To the motion to dismiss, Defendants appended a copy of their book, Hidden, A House of Night Novel, authored by Defendants Phyllis Cast and Kristin Cast, and published by Defendant St. Martin's Press. As to the defamation claim, Defendants argued the book was a work of fiction about a school for “vampyres” attended by the fictional character named Erin Bates, and the descriptions of the fictional character, Erin Bates, could not be shown to refer to Plaintiff, or proven true or false, and were not defamatory as a matter of law. Defendants further argued that, because the statements could not be proven true or false, the claim for false light—invasion of privacy likewise failed. As to the name-appropriation claim, Defendants asserted Plaintiff did not allege, and could not prove, an essential element of that claim, i.e., that the name, Erin Bates, had any inherent, intrinsic or commercial value. Defendants also argued that, as a matter of law, their use of Plaintiff's name for a fictional character in their book was not so extreme and outrageous as to support a claim for intentional infliction of emotional distress.

¶ 5 Plaintiff objected to Defendants' motion to dismiss. To her response, Plaintiff attached a recording of the promotional event where Defendant identified Plaintiff Erin Bates as a real person, and admitted she based many of her characters on her former students. Plaintiff also attached copies of internet comments by fans of the House of Night series, describing the Erin Bates character as less than admirable.

¶ 6 Plaintiff first asserted the recording of the promotional event, identifying her as Erin Bates, a real person, demonstrated Defendants' description of the book character as of and concerning her, and the internet comments proved the defamatory sting of the descriptions, sufficiently supporting the claims for defamation and false light invasion of privacy. Plaintiff further asserted she sufficiently alleged a claim for misappropriation of name, and that an allegation of her name's intrinsic or inherent value was not required to survive a motion to dismiss. Plaintiff also asserted the descriptions of her in the book were so extreme and outrageous as to support an emotional distress claim.

¶ 7 On consideration of the pleadings and submissions, the trial court granted Defendants' motion, and dismissed all of Plaintiffs claims. Plaintiff appeals, and the matter stands submitted on the trial court record.¹

¶ 8 “When reviewing a trial court's dismissal of an action an appellate court examines the issues de novo.” Kirby v. Jean's Plumbing Heat & Air, 2009 OK 65, ¶ 5, 222 P.3d 21, 23–24. (Footnote omitted.) (Emphasis original.) “A motion to dismiss for failure to state a claim upon which relief may be granted will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief.” Id. “A petition can generally be dismissed only for lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory.” Id. “A motion to dismiss should be denied ii relief is possible under any set of facts which can be established and is consistent with the allegations.” Id.

¶ 9 However, “[i]f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment.” 12 O.S.2011 § 2012(B). Because the parties offered, and the trial court did not exclude, the tendered evidentiary materials outside the pleadings in support of and opposition to the motion to dismiss, we must treat the motion to dismiss as one for summary judgment. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶ 17, 987 P.2d 1185, 1192.

¶ 10 In this respect, “[s]ummary judgment is appropriate only where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.” Wathor v. Mutual Assur. Adm'rs, Inc., 2004 OK 2, ¶ 4, 87 P.3d 559, 561. “Summary judgment settles only questions of law,” and “[t]he standard of review of the questions of law is de novo.” Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 11, 160 P.3d 959, 963. (Emphasis original.) “Where a controversy is resolved by summary judgment, the appellate courts review the entire summary judgment record independently and without deference to a lower court.” Id. “Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id. “Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts.” Id.

¶ 11 “Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation,....” 12 O.S.2011 § 1441. In an action for defamation, a private figure must prove (1) a false and defamatory statement of and concerning him or her, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, that is, libel per se, or the existence of special damage, libel per quod. Restatement of Laws, Second, Torts 2d, § 558 (1977); White v. City of Del City, 2012 OK CIV APP 5, ¶ 21, 270 P.3d 205, 213–214;Springer v. Richardson Law Firm, 2010 OK CIV APP 72, ¶ 7, 239 P.3d 473, 475;Trice v. Burress, 2006 OK CIV APP 79, ¶ 10, 137 P.3d 1253, 1257. “It is well settled that ‘The language used must, however, be such that persons reading or hearing it will, in the light of surrounding circumstances, be able to understand that it refers to the person complaining, and it must have been so understood by at least one other person ...’ ” Layman v. Readers Digest Ass'n, 1965 OK 162, ¶ 16, 412 P.2d 192, 195. (Citations omitted.) That is to say, “ ‘[i]n order to entitle one to maintain an action for an alleged defamatory statement, it must appear that he is the person with reference to whom the statement is made.’ ” Layman, 1965 OK 162, ¶ 21, 412 P.2d at 196. (Citation omitted.)

¶ 12 In the present case, Plaintiff introduced evidence showing Defendants named a character, Erin Bates, in their book, and that, at a promotional event for the upcoming book, Defendant Phyllis Cast identified Plaintiff Erin Bates as a “real” person. At first blush, then, it might be said that, when the evidence is viewed in the light most favorable to Plaintiff, the disparaging characterizations of the fictitious Erin Bates character contained in Defendants' book arguably refer to the “real” Erin Bates identified by the author.

¶ 13 The inquiry...