Finnegan v. Squire Publishers, Inc.

• Decision Date: 21 February 1989
• Docket Number: No. WD,WD
• Citation: 765 S.W.2d 703
• Parties: 16 Media L. Rep. 1326 Jeremiah D. FINNEGAN, Appellant, v. The SQUIRE PUBLISHERS, INC., Respondent. 40862.
• Court: Missouri Court of Appeals

Page 703

765 S.W.2d 703

16 Media L. Rep. 1326

Jeremiah D. FINNEGAN, Appellant, v. The SQUIRE PUBLISHERS, INC., Respondent.

No. WD 40862.

Missouri Court of Appeals Western District.

Feb. 21, 1989.

Jeremiah D. Finnegan, Thomas B. Sullivan III, Kansas City, for appellant.

Sam L. Colville, Joe Rebein, Kansas City, for respondent.

Before MANFORD, P.J., and TURNAGE and LOWENSTEIN, JJ.

MANFORD, Presiding Judge.

Jeremiah Finnegan was allegedly libeled by an advertisement in the January 22, 1987 issue of The Squire's Other Paper, which referred to him in his profession of attorney at law. Approximately fifteen months after the publication, on April 14, 1988, Finnegan brought this action in a Missouri state court against The Squire Publishers, Inc., the newspaper publishing company, for libel per se. The publishing company moved to dismiss the petition or for summary judgment on the basis that the Missouri borrowing statute, § 516.190, RSMo 1986, required application of the Kansas one-year statute of limitations rather than Missouri's two-year statute of limitations. The circuit court granted the motion to dismiss, determining that the claim was barred by the Kansas statute of limitations and, therefore, the court lacked jurisdiction. This appeal followed. The judgment is affirmed.

Finnegan is a resident of Kansas. The principal place of business of The Squire Publishers, Inc. is in the state of Kansas. The January 22, 1987 issue of The Squire's Other Paper was published in Kansas and first made available for free pick-up by the public in Kansas. The Squire's Other Paper was distributed in the Kansas City metropolitan area, which extends into both the state of Kansas and the state of Missouri. Finnegan is an attorney licensed to practice law in Missouri, but not in Kansas.

Finnegan's sole point on appeal contends that the trial court erred in dismissing his petition for libel per se because the cause of action for damages to Finnegan's reputation as an attorney did not accrue in Kansas where the newspaper containing the defamatory statements was first published, but rather in Missouri where Finnegan is licensed to practice law and where damages to his professional reputation were sustained. There is no question that had Finnegan filed his libel per se suit in Kansas on April 14, 1988, it would have been barred by the Kansas one-year statute of limitations for libel, § 60-514, K.S.A. (1983). Missouri's statute of limitations allows two years to bring a libel action. § 516.140, RSMo 1986. When a cause of action originates in a state other than Missouri, however, Missouri courts apply the foreign state's statute of limitations through the borrowing statute. Missouri's borrowing statute, § 516.190, RSMo 1986, reads, "Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state." "Originated", as used in the borrowing statute, means "accrued." Dorris v. McClanahan, 725 S.W.2d 870, 871 (Mo. banc 1987); Schnabel v. Taft Broadcasting Co., Inc., 525 S.W.2d 819 (Mo.App.1975). The issue to be determined is in which state a cause of action for libel per se accrues, for the purpose of Missouri's borrowing statute, when a nonresident publishing company circulates in a multistate publication allegedly defamatory statements about a nonresident attorney who is licensed to practice law only in Missouri. This issue is one of first impression in Missouri. This court holds that, for the purpose of Missouri's borrowing statute, a cause of action for libel per se "originates" in the state where the allegedly libelous statement is first published. In so holding, this court relies heavily on the anti-forum shopping policy of Missouri's borrowing statute as discussed by the Court of Appeals for the Eighth Circuit in Patch v. Playboy Enterprises, Inc., 652 F.2d 754 (8th Cir.1981). The plaintiff in Patch was a Missouri resident who brought a libel action in Missouri state court against the nonresident publisher which circulated allegedly defamatory statements about the plaintiff in a nationwide publication. The allegedly defamatory material was first published in Illinois. Illinois law provided for a one-year statute of limitation for libel; Missouri law provided for a two-year statute of limitation for such an action. Plaintiff filed his libel suit in Missouri twenty-three months after publication. The court determined that Missouri's borrowing statute required the application of the Illinois one-year limitation period because the cause of action "originated" in Illinois where the issue of Playboy was first published. The anti-forum shopping policy of Missouri's borrowing statute was central to the holding in Patch. The Patch court explained that the purpose of a borrowing statute is primarily to prevent a plaintiff from forum shopping for a statute of limitations. Patch, 652 F.2d at 756. The borrowing statute prevents a plaintiff from gaining more time to bring an action merely by suing in a forum other than where the cause of action accrued. Id. Acknowledged in Patch was the Missouri case Trzecki v. Gruenewald, 532 S.W.2d 209 (Mo. banc 1976), which holds that residents and nonresidents are to be treated the same under the Missouri borrowing statute. Consequently, under the borrowing statute, the location where the cause of action accrues rather than the plaintiff's residency is the key factor.

In order to avoid the forum shopping consequences which the borrowing statute was designed to eliminate, Finnegan, like Patch, must be prevented from gaining more time to bring a libel per se action merely by filing suit in Missouri instead of the forum where the cause of action accrued. The allegedly libelous advertisement in The Squire's Other Paper was first published in Kansas, therefore, Finnegan's cause of action accrued in Kansas. The trial court did not err in ruling that the Kansas one-year statute of limitations, as applied through Missouri's borrowing statute, bars Finnegan's cause of action.

The respondent publishing company in the instant case directs this court's attention to a long line of Missouri cases which hold that in an action for defamation, the cause of action accrues in the county in which the defamation was first published. See State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo. banc 1979); Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81, 84 (Mo.1962), cert. denied, 374 U.S. 831, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963). These cases, however, are not directly on point because they address the issue of the location where a cause of action accrues for venue purposes. ¹ Missouri cases, which hold that for venue purposes an action for defamation accrues in the county in which the defamation was first published, do not form the basis of this court's holding regarding accrual of a libel per se cause of action for borrowing statute purposes. Missouri's borrowing statute and venue statutes serve different policies. The borrowing statute is primarily designed to prevent a plaintiff from forum shopping to gain more time to initiate a cause of action. Patch, 652 F.2d at 756. A purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. Id. at 757. Additionally, Missouri's venue statute prevents a plaintiff seeking damages for libel in a widely distributed publication from gaining privileges of venue not allowed by law to a plaintiff in tort actions other than libel, in which the cause of action could accrue only in one county. See Litzinger v. Pulitzer Publishing Co., 356 S.W.2d at 85.

This court rejects Finnegan's contention that a cause of libel per se to an attorney's professional reputation accrues, for purposes of the borrowing statute, only in the state where...