Fikes v. Furst

• Decision Date: 18 November 2002
• Docket Number: No. 20,717.,20,717.
• Citation: 133 N.M. 146,2003 NMCA 6,61 P.3d 855
• Parties: Jay Courtney FIKES, Ph.D., Plaintiff-Appellant, v. Peter T. FURST, Ph.D., Defendant-Appellee.
• Court: Court of Appeals of New Mexico

61 P.3d 855

133 N.M. 146

2003 NMCA 6

Jay Courtney FIKES, Ph.D., Plaintiff-Appellant, v. Peter T. FURST, Ph.D., Defendant-Appellee.

No. 20,717.

Court of Appeals of New Mexico.

November 18, 2002.

Certiorari granted January 13, 2003.

David M. Overstreet, Overstreet & Associates, P.C., Alamogordo, NM, for Appellant.

Michael W. Brennan, Madison, Harbour, Mroz & Brennan, P.A., Albuquerque, NM, for Appellee.

Certiorari granted, No. 27,824, January 13, 2003.

OPINION

ROBINSON, Judge.

{1} This case concerns a personal feud that began in the 1980s. Plaintiff and Defendant are both professors holding doctorate degrees. Each steadfastly believes that the other is out to destroy his reputation and career. After much contention between the two, Plaintiff brought this defamation action. We affirm in part and reverse in part the district court's grant of summary judgment in Defendant's favor on the defamation counts, and reverse as to the tortious interference with contract count.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} The parties' dispute began when Plaintiff challenged the validity of certain observations Defendant made of the Huichol Indians in Mexico in the 1960s. Defendant and others reportedly observed practices including peyote enemas and waterfall jumping. Plaintiff studied the Huichol Indians in the late 1970s and early 1980s, and questioned the accuracy and legitimacy of Defendant's reports. Eventually, Plaintiff began a crusade, spanning more than a decade, to discredit Defendant's work.

{3} Defendant, sensitive to Plaintiff's academic fraud claims, and responding to the threat he perceived to his long academic career, embarked on a similar quest to discredit Plaintiff. Over the course of a decade or more, Defendant made various derogatory statements about Plaintiff, some of which became the subject of the defamation cause of action in this case.

{4} In addition, Plaintiff had a contract with Madison Books to publish a book he had written, entitled Carlos Castaneda: Academic Opportunism and the Psychedelic Sixties, that criticized Defendant's findings concerning the Huichol Indians. On April 1, 1992, Defendant wrote a letter to Madison Books threatening to sue if it published Plaintiff's book. Madison Books then declined to publish Plaintiff's book, in a letter to Plaintiff dated November 11, 1992. Defendant's letter provides the basis for Plaintiff's claim of tortious interference with contract.

{5} Plaintiff's amended complaint presented seven causes of action. Over the course of the litigation, the district court granted Defendant's motion for summary judgment on all counts. On appeal, Plaintiff challenges only the grant of summary judgment on Counts I and V, the defamation and tortious interference with contract claims. Plaintiff does not appeal the grant of summary judgment on the other counts.

II. DEFAMATION

A. Standard of Review

{6} We review the grant of summary judgment de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id.; Rule 1-056(C) NMRA 2002. We consider the issues in the light most favorable to the nonmoving party. Ruiz v. Garcia, 115 N.M. 269, 271, 850 P.2d 972, 974 (1993).

B. Statute of Limitations

{7} At the outset, we address Defendant's argument that several of the alleged defamatory statements were made outside of the applicable statute of limitations period. The statute of limitations for a defamation claim is three years. NMSA 1978, § 37-1-8 (1976). The statute of limitations runs in a defamation case from the point of publication of the defamatory statement. See Benally v. Hundred Arrows Press, Inc., 614 F.Supp. 969, 981 (D.N.M.1985),

rev'd on other grounds sub nom Benally v. Amon Carter Museum of W. Art, 858 F.2d 618 (10th Cir.1988). It is Defendant's burden to show sufficient facts to establish a statute of limitations defense. See Romero v. Ole Tires, Inc., 101 N.M. 759, 761, 688 P.2d 1263, 1265 (Ct.App.1984).

{8} Here, two limitation periods are applicable. Plaintiff filed his initial complaint on February 15, 1996, alleging that Defendant's statements in a June 22, 1995, letter to Dr. Joseph C. Winter defamed Plaintiff. The statements in this letter are not time-barred because they were made less than three years before Plaintiff filed his complaint. However, on June 25, 1997, Plaintiff filed an amended complaint, which added claims that Defendant defamed Plaintiff in various other statements not included in the June 1995 letter to Winter. Because the amended complaint cited facts, conduct, and injuries not found in the original, it did not relate back to the date the original complaint was filed. See Raven v. Marsh, 94 N.M. 116, 118, 607 P.2d 654, 656 (Ct.App.1980)

. Therefore, to be actionable, these statements had to have been made after June 25, 1994, or within the three years preceding the date Plaintiff filed his amended complaint.

{9} Defendant argues in particular that three allegedly defamatory statements he made to Dr. Earl Joseph Volk were time-barred. We agree. These statements to Volk, a member of the Friends Committee for National Legislation, were that Plaintiff was a "lousy anthropologist"; Plaintiff was "incapable of doing a competent job on the Zingg manuscript"; and Plaintiff was "paranoid." In Volk's March 6, 1997, deposition, which Plaintiff cites for these statements, Volk stated that seven years had passed since his conversation with Defendant. Moreover, Plaintiff does not offer any contrary evidence in his reply brief, instead making only a conclusory assertion that all of the statements were "made within the applicable statute of limitations." See State v. Clifford, 117 N.M. 508, 513, 873 P.2d 254, 259 (1994)

(noting the Court's refusal to address issues unsupported by cited authority and consisting of a mere conclusory reference). We hold that these statements fall outside the limitations period applicable here.

{10} Defendant maintains that his alleged statement that Plaintiff "committed unethical and professional misconduct" is also time-barred. Plaintiff gives two record citations for this statement. The first is to Defendant's deposition where he admitted making the statement, but not within the limitations period, and the other is to a 1989 letter to Plaintiff, copied to others. This is sufficient to make a prima facie case for the statute of limitations defense. Again, Plaintiff offers no contradictory evidence. We therefore hold this statement, too, was made outside of the three-year statute of limitations.

{11} Defendant also claims that his statement to Dr. David Maybury-Lewis that Plaintiff was "paranoid" fell outside the limitations period. Maybury-Lewis, the director of the organization Cultural Survival, stated in his affidavit that Defendant told him this in November 1993. Under Raven, 94 N.M. at 118, 607 P.2d at 656, this statement is also time-barred, as it was made more than three years prior to the filing of the amended complaint and does not relate back.

{12} Defendant also states that Plaintiff's claim that he called Plaintiff a "racist" is time-barred. Plaintiff cites to a letter from 1992 in support of the allegation. To the extent that the claim rests on this letter, it clearly is time-barred.

{13} Defendant also claims that other statements, which he denies having made within the applicable statute of limitations period, should not be considered. Defendant was unable to say whether he had made statements that Plaintiff is "delusional" and "beset by devils," "has little grasp on reality," or "crazy" within the previous three years. As for the statement that Plaintiff "attempted to blackmail" Defendant, Defendant similarly was uncertain, stating that he did not think he had made the statement within three years. This uncertainty is insufficient to make a prima facie case that the statements were not made within the limitations period. Therefore they are not time-barred.

C. The Law of Defamation

{14} In New Mexico, the plaintiff in a defamation case must prove nine elements of the tort. UJI 13-1002(B) NMRA 2002. In this case, the following elements are at issue with respect to some or all of the alleged defamatory statements:

(2) whether the communication was defamatory;

(3) whether the communication contains a statement of fact;

(4) whether the person receiving the communication understood it to be defamatory; and

(5) whether the communication proximately caused actual injury to plaintiff's reputation.

UJI 13-1002(B)(5), (2), (6), (8). As we address the alleged defamatory statements, we discuss only those elements that are argued with respect to each statement.

1. Defamatory Meaning

{15} The Court must first determine whether the communication in question has a defamatory meaning. "At common law, a statement is considered defamatory `if it has a tendency to render the party about whom it is published contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him.'" Andrews v. Stallings, 119 N.M. 478, 482, 892 P.2d 611, 615 (Ct.App.1995) (quoting Bookout v. Griffin, 97 N.M. 336, 339, 639 P.2d 1190, 1193 (1982)). The jury instructions similarly but more accessibly advise that "[d]efamatory communications are those which tend to expose a person to contempt, to harm the person's reputation, or to discourage others from associating or dealing with [him]." UJI 13-1007 NMRA 2002. This is to be determined based on the plain and obvious meaning of the communication. Id.; Moore v. Sun Publ'g Corp., 118 N.M. 375, 380, 881 P.2d 735, 740 (Ct.App.1994).

{16} While sometimes a communication is so obviously defamatory that it is deemed defamatory as a matter of law, often the statement is merely capable of a defamatory meaning. In the latter situation, the...