Crain v. Lightner

• Decision Date: 17 June 1987
• Docket Number: No. 16573,16573
• Citation: 364 S.E.2d 778,178 W.Va. 765
• Court: West Virginia Supreme Court
• Parties: Richard E. CRAIN v. Robert L. LIGHTNER, Roy E. Barker, Joseph C. Hummel, David R. Gold, James D. Elson, Robert L. Elson, Marilyn Joan Elson, David Sedore and The Ogden Newspapers, Inc., A Corporation.

Page 778

364 S.E.2d 778

178 W.Va. 765

Richard E. CRAIN v. Robert L. LIGHTNER, Roy E. Barker, Joseph C. Hummel, David

R. Gold, James D. Elson, Robert L. Elson, Marilyn

Joan Elson, David Sedore and The Ogden

Newspapers, Inc., A Corporation.

No. 16573.

Supreme Court of Appeals of

West Virginia.

Decided June 17, 1987.

Rehearing Denied Nov. 10, 1987.

Syllabus by the Court

1. " 'Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure, when the moving party presents depositions, interrogatories, affidavits or otherwise indicates there is no genuine issue as to any material fact, the resisting party to avoid summary judgment must present some evidence that the facts are in dispute.' Syl. pt. 2, Guthrie v. Northwestern Mutual Life Insurance Co., 158 W.Va. 1, 208 S.E.2d 60 (1974)." Syl. pt. 5, McCullough Oil, Inc. v. Rezek, --- W.Va. ----, 346 S.E.2d 788 (1986).

2. " 'This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.' Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)." Syl. pt. 2, Duquesne Light Co. v. State Tax Dept., --- W.Va. ---, 327 S.E.2d 683 (1984), cert. denied, 471 U.S. 1029, 105 S.Ct. 2040, 85 L.Ed.2d 322 (1985).

3. Where a party is unable to resist a motion for summary judgment because of an inadequate opportunity to conduct discovery, that party should file an affidavit pursuant to W.Va.R.Civ.P. 56(f) and obtain a ruling thereon by the trial court. Such affidavit and ruling thereon, or other evidence that the question of a premature summary judgment motion was presented to and decided by the trial court, must be included in the appellate record to preserve the error for review by this Court.

4. In a libel action by a private individual against persons who are alleged to have procured or assisted other persons in publishing the alleged libel, the alleged procurers or assistants are not responsible as publishers of libel absent a showing of their participation or involvement in the publication.

William R. Metzner, Wheeling, for Crain.

William E. Watson, Wellsburg, for Lightner, Barker, & Hummel.

Ernest Simon, Pittsburgh, Pa., for Gold.

J.K. Chase, Jr., Moundsville, for Elson's.

James F. Companion, Wheeling, for Gold.

Herbert G. Underwood, Clarksburg, for Sedore & Ogden Newspapers.

McHUGH, Justice:

This civil action involving alleged libel is before this Court upon an appeal from a final order of the Circuit Court of Ohio County, West Virginia, granting the defendants'/appellees' motion for summary judgment. The plaintiff/appellant is Richard E. Crain, a bail bondsman. The defendants/appellees are Robert L. Lightner, at all relevant times the Sheriff of Marshall County, West Virginia, Roy E. Barker, at all relevant times a deputy sheriff of Marshall County, and Joseph C. Hummel, during part of the relevant period a police officer with the City of Moundsville and during the remainder of the relevant period the chief deputy sheriff of Marshall County. Based upon our review of the record, the petition for appeal and the briefs and oral argument of counsel, we affirm.

I

The appellant is a bail bondsman and is the principal owner of American Bonding Company, Inc. The latter on several occasions furnished bail bonds for James Elson. James Elson's parents, Robert and Marilyn Elson, entered into contracts with American Bonding Company, Inc., in which contracts the Elsons promised to pay bail-bond fees to American Bonding Company, Inc. The Elsons also executed and delivered deeds of trust to their real estate to secure the promised payment of bail-bond fees.

The Elsons later filed an action against the appellant and American Bonding Company, Inc., seeking to invalidate the bail-bond fee-payment contracts and to compel a release of the deeds of trust. The Elsons alleged in their complaint that the appellant had solicited James Elson to commit crimes (such as burglaries) as part of the consideration for furnishing the bail bond. There were newspaper accounts of the Elsons' complaint, with headlines reading, "bail bondsman accused of arranging for crimes."

The appellant subsequently brought this action for libel against the Elsons; their attorney; the newspaper company and the news reporter who had published the newspaper accounts of the Elsons' complaint against the appellant; and the appellees herein, the Sheriff of Marshall County and two of his deputies (hereinafter "the law enforcement defendants").

The appellant alleged in his libel complaint that the law enforcement defendants had harbored ill will against him for "bonding out" several criminal defendants whom the law enforcement defendants herein did not want released from jail. The appellant also alleged that the law enforcement defendants had promised several jail inmates leniency if the jail inmates would fabricate stories about the appellant's soliciting them (the jail inmates) to commit crimes as part of the consideration for furnishing them bail bonds on prior occasions. The appellant further alleged that the law enforcement defendants informed the Elsons' attorney, prior to the Elsons' action against the appellant, that these jail inmates would corroborate the Elsons' allegation that the appellant had solicited the commission of crimes as part of his bail-bond business.

About four months after the Elsons filed their action against the appellant to invalidate their bail-bond fee-payment contracts and to compel a release of the deeds of trust, the Elsons' attorney, as part of their action, took the deposition of a jail inmate named Steven Headley. Headley testified that the appellant, prior to the Elsons' action, had solicited him to commit a burglary at a certain physician's office as a part of the consideration for furnishing bail for Headley. Several months after this deposition, however, Headley, during a second deposition, admitted that he had lied about the appellant's soliciting him to commit a burglary and testified that the law enforcement defendants, a few weeks before the first deposition (and after the Elsons' complaint had been filed), had insinuated that another pending criminal charge against Headley would be "dropped" if he would "talk to" the Elsons' attorney, apparently about the appellant's alleged procurement-of-crimes activities.

The trial court granted the motion to dismiss (for failure to state a claim) which had been filed by the newspaper company and the news reporter in the appellant's libel action. The trial court also granted the motion for summary judgment filed by the Elsons' attorney. The trial court held that the so-called "media defendants" were protected by the "fair reporting" privilege and that the Elsons' attorney was protected by the absolute privilege for statements in pleadings.

The law enforcement defendants filed a motion for summary judgment, and the same was granted by the trial court after hearing oral argument of counsel and reviewing the parties' affidavits and briefs. The trial court held, inter alia, that there was no libel by the law enforcement defendants because they had not contributed to a nonprivileged publication of the alleged libelous statements.

II

A.

In syllabus point 5 of McCullough Oil, Inc. v. Rezek, --- W.Va. ---, 346 S.E.2d 788 (1986), this Court held:

'Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure, when the moving party presents depositions, interrogatories, affidavits or otherwise indicates there is no genuine issue as to any material fact, the resisting party to avoid summary judgment must present some evidence that the facts are in dispute.' Syl. pt. 2, Guthrie v. Northwestern Mutual Life Insurance Co., 158 W.Va. 1, 208 S.E.2d 60 (1974).

Accord, syl. pt. 1, Thomas v. Raleigh General Hospital, 358 S.E.2d 222 (W.Va.1987); syl. pt. 3, Hicks v. Chevy, 358 S.E.2d 202 (W.Va.1987); syl. pt. 7, Haddox v. Suburban Lanes, Inc., --- W.Va. ---, 349 S.E.2d 910 (1986); syl. pt. 2, Hamon v. Akers, 159 W.Va. 396, 222 S.E.2d 822 (1976); syl. pt. 4, Burns v. Cities Service Co., 158 W.Va. 1059, 217 S.E.2d 56 (1975). A summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W.Va.R.Civ.P. 56(c). W.Va.R.Civ.P. 56(e) provides that a party is not entitled to resist a motion for summary judgment by relying only upon the pleadings:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The party resisting a motion for summary judgment, by affidavit or as otherwise provided by Rule 56, does not, however, have to show that his case is developed to the point that he would prevail at trial:

The question on a motion for summary judgment is not ... whether the plaintiff has met the burden of proof on material aspects of his claim. It is, rather, whether a material issue of fact exists on the basis of the factual record developed to that date. The burden on a motion for summary judgment is not upon the non-moving party to show that he has developed facts which would allow him to prevail if his case was submitted to a jury. The burden [of persuasion] is on the moving party to show that there is no genuine issue as to any material fact in the case.

Lengyel v. Lint, 167 W.Va. 272, 280, 280 S.E.2d 66, 71 (1981). ¹

If there is any evidence in the record from any source from which a reasonable inference in the nonmovant's favor may be drawn as to a material...