Brocato v. Mississippi Publishers Corp.

• Decision Date: 18 February 1987
• Docket Number: No. 55847,55847
• Parties: 13 Media L. Rep. 2080 James V. BROCATO v. MISSISSIPPI PUBLISHERS CORPORATION, d/b/a the Clarion-Ledger/Jackson Daily News, Don Hoffman and Joe Doe and/or XYZ Corporation.
• Court: Mississippi Supreme Court

Page 241

503 So.2d 241

13 Media L. Rep. 2080

James V. BROCATO v. MISSISSIPPI PUBLISHERS CORPORATION, d/b/a the Clarion-Ledger/Jackson Daily News, Don Hoffman and Joe Doe and/or XYZ Corporation.

No. 55847.

Supreme Court of Mississippi.

Feb. 18, 1987.

Frank D. Barber, Jackson, for appellant.

W. Scott Welch, III, Luther T. Munford, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for appellees.

En Banc.

PRATHER, Justice, for the Court:

I.

James V. Brocato filed suit in Hinds County Circuit Court on April 4, 1983, against the appellees alleging libel, invasion of privacy, and negligence per se. Brocato's claims were based on a newspaper article that appeared in the Sunday, April 4, 1982 edition of the Clarion Ledger/Jackson Daily News.

After extensive discovery, appellees filed a motion for summary judgment pursuant to Rule 56, Mississippi Rules of Civil Procedure. Following a hearing on the motion, the trial judge granted summary judgment reasoning that Brocato failed to satisfy the statute of limitations, Miss.Code Ann. Sec. 15-1-35 (1972). ¹

Brocato appeals the dismissal of his libel action ² assigning as error the following:

(1) The circuit judge erred in finding that the appellant failed to satisfy the requirements of the statute of limitations, Miss.Code Ann. Sec. 15-1-35 (1972).

(2) The circuit judge erred in granting appellees' motion for summary judgment.

We affirm, but on a ground other than the statute of limitations.

II.

Did Brocato satisfy the requirements of Miss.Code Ann. Sec. 15-1-35 (1972), the statute of limitations?

This assignment of error requires an analysis of the interaction between Miss.Code Ann. Sec. 15-1-35 (1972) and Miss.Code Ann. Sec. 95-1-5 (1972). Section 15-1-35 provides:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, and for libels, shall be commenced within one year next after the cause of such action accrued, and not after.

Section 95-1-5 provides in part:

Before any civil action is brought for publication, in a newspaper domiciled and published in this state or authorized to do business in Mississippi so as to be subject to the jurisdiction of the courts of this state, of a libel, or against any radio or television station domiciled in this state, the plaintiff shall, at least ten (10) days before instituting any such action, serve notice in writing on the defendant at its regular place of business, specifying the article, broadcast or telecast, and the statements therein, which he alleges to be false and defamatory.

Section 15-1-35 requires a libel action be filed within one year after the cause of action accrues. Section 95-1-5 requires the plaintiff to give ten days notice to the defendant before a libel action is brought.

In the instant case, the cause of action arose on April 4, 1982, the date of publication of the alleged libelous newspaper article. The libel action was filed exactly one year later, April 4, 1983. ³ The trial judge found Brocato did not comply with the one year statute of limitations because only an eight day notice was given to the appellees prior to the filing of the suit.

On appeal, Brocato argues it was never the intent of the Legislature for Sec. 95-1-5 to be a condition precedent to the proper filing of a suit under Sec. 15-1-35.

Notwithstanding appellant's argument, the language of Sec. 95-1-15 is clear and unambiguous. "Before any civil action is brought for publication ... of a libel ... the plaintiff shall, at least ten (10) days before instituting any such action, serve notice in writing on the defendant...." When the language of a statute is clear and unambiguous, the statute should be given its plain and obvious meaning. Pinkton v. State, 481 So.2d 306, 309 (Miss.1985); MISS CAL 204, Ltd. v. Upchurch, 465 So.2d 326, 329 (Miss.1986).

The Court finds the ten day notice required in Sec. 95-1-5 is clearly a necessary preliminary step to the proper filing of a libel action and that the preliminary step must be satisfied within the statutory limitation period. The Court follows Grenada County v. Nason, 174 Miss. 725, 732, 165 So. 811, 813 (1936) in which we held that a preliminary step must be taken within the statutory period, and likewise also the action must be brought within the statutory period, or else the bar of the statute of limitations is complete. ⁴ See also, Ross v. Gore, 48 So.2d 412, 415 (Fla.1950), which treated a similar requirement in a Florida statute as a necessary preliminary step to the proper filing of a libel suit. See generally, B. Sanford, Libel And Privacy Sec. 12.3.3 (1985).

III.

Did the trial judge err in granting appellees' motion for summary judgment?

Rule 56(b) of the Mississippi Rules of Civil Procedure provides, "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof."

Rule 56 allows summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Modling v. Bailey Homes & Insurance, 490 So.2d 887, 891 (Miss.1986); Brown v. Credit Center Inc., 444 So.2d 358, 362 (Miss.1983).

Brocato, on appeal, argues the summary judgment was improper because there was a genuine issue of material fact regarding whether ten days notice was given to appellees pursuant to Miss.Code Ann. Sec. 95-1-5 (1972).

Because of the peculiar factual situation involved in this case, it is essential for the Court to determine what action constitutes the serving of notice under Sec. 95-1-5, which is silent regarding how notice is to be served.

Rule 5 of the Mississippi Rules of Civil Procedure is generally utilized after a suit has been filed. The official comments to Rule 5 state in part, "This rule presupposes that the court has already gained jurisdiction over the parties." However, this Court finds the mechanics of Rule 5 may also be used in a situation such as the one at bar in which notice is required as a preliminary step to filing a lawsuit. Therefore, this Court holds that the notice requirements of Sec. 95-1-5 should follow the Rule 5 outlines.

M.R.C.P. 5(b) states in part:

Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon such attorney unless service upon party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court.... Service by mail is complete upon mailing. (Emphasis added).

Turning our attention back to the motion for summary judgment, we observe that the trial judge granted the motion for summary judgment on the strength of the affidavit of Charles L. Overby, Executive Editor of the Clarion Ledger/Jackson Daily News. In his sworn affidavit, Overby stated, "The letter to me which is attached as Exhibit 'A' to this affidavit was served on me Monday, March 28, 1983, by delivery in the United States mail."

The affidavit is clear that Overby received notice on Monday, March 28, 1983. The affidavit is silent, however, regarding when the notice was mailed. If the notice was mailed on or before Friday, March 25, 1983, it would have been timely. If the notice was mailed Saturday, March 26, 1983 or Sunday, March 27, 1983, it would have been too late.

The silence of Overby's affidavit as to the date of the postmark evidencing mailing raises a genuine issue of material fact on the face of the affidavit. For that reason the Court finds the granting of appellees' motion for summary judgment on this ground was improper.

IV.

Defendants moved in the trial court for summary judgment on several alternative grounds, including the official proceedings privilege. The trial court reached only the notice requirement previously discussed in Section III in dismissing the case. Defendants on appeal are, however, entitled to raise any alternative ground based on the pleadings in the court below which would support the judgment here.

As this Court noted in Lee v. Memphis Publishing Company, 195 Miss. 264, 14 So.2d 351, 353 (1943):

[I]f the judgment of dismissal was correct on any ground raised by the plea, the same will be affirmed.

See also, Briggs v. Benjamin, 467 So.2d 932, 934 (Miss.1985); Huffman v. Griffin, 337 So.2d 715, 723 (Miss.1976).

More recently in Hickox v. Holleman, 502 So.2d 626 (Miss.1987) this Court held, "An appellee is entitled to argue and rely upon any ground sufficient to sustain the judgment below." Id., slip op. at 635.

This practice is also recognized by federal courts in their application of the Federal Rules of Civil Procedure. As noted in Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d Sec. 2716, p. 658 (1983):

The appellate court does not have to affirm a decision on a Rule 56 motion for the same reasons that persuaded the court below to grant the motion. On the contrary, it can find another ground for concluding that the movant is entitled to judgment as a matter of law and ignore any erroneous basis that the district court may have employed.

In addition, no cross-appeal is required. Wright, Miller & Kane, supra.

The official proceedings privilege is stated in Restatement (Second) of Torts Sec. 611 (1977) as follows:

The publication of defamatory matter concerning another in a report of an official action or proceedings or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported. (Emphasis added).

See also 50 Am.Jur.2d Libel and Slander, Sec. 263 (1970).

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