Hickey v. Settlemier

• Decision Date: 16 July 1996
• Citation: 917 P.2d 44,141 Or.App. 103
• Parties: James Joseph HICKEY, Respondent, v. Merthal SETTLEMIER, Appellant. 90-1082; CA A85719.
• Court: Oregon Court of Appeals

Page 44

917 P.2d 44

141 Or.App. 103

James Joseph HICKEY, Respondent, v. Merthal SETTLEMIER, Appellant.

90-1082; CA A85719.

Court of Appeals of Oregon.

Argued and Submitted Nov. 9, 1995.

Decided May 15, 1996.

Review Denied July 16, 1996.

Thomas M. Christ, Portland, argued the cause for appellant. With him on the briefs was Mitchell, Lang & Smith.

Andrew P. Ositis, Salem, argued the cause and filed the brief for respondent.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

HASELTON, Judge.

Defendant Merthal Settlemier appeals from a judgment for plaintiff, James Hickey, following a jury trial in a "public figure" defamation action. We conclude that plaintiff failed to prove that defendant's statements were false. Accordingly, we reverse.

Plaintiff sold animals, under a license from the United States Agriculture Department, to hospitals and laboratories for use in medical research. He acquired the business in 1988 from his father, James Hickey, Sr., who owned and operated it until the USDA suspended his license. The business was the subject of USDA investigation, ¹ nuisance actions, zoning variance opposition, and protest by animal welfare activists who charged that the kennel mistreated animals and bought and sold stolen pets. The controversy moved from local media to national television in 1990 when the ABC television news program "20/20" broadcast a segment entitled "Pet Bandits." The program pertained, in part, to plaintiff's business and included an interview with defendant, plaintiff's neighbor.

In that interview, conducted by reporter Stone Phillips, defendant made the statements that are the subject of this defamation action:

"[Reporter]: * * * Meet Joseph Hickey [plaintiff]. His animal supply operation in Lebanon, Oregon, started by his father, is believed to be the biggest on the West Coast. Hickey is what's known as a 'Class B' or 'random source' dealer. He doesn't raise animals for research, he buys them from pounds, animal shelters and private owners. He'll pay $20 for cats, $50 for dogs, then sell them to research facilities for five to ten times that much.

" * * * [M]ore than 300 people in central Oregon have complained that their pets were stolen and delivered to the Hickeys' operation. Many want it closed down, including Joseph Hickey's own godmother, Merthal Settlemier, who lives next door.

"[Defendant]: And it was very disturbing to think that things were going on over there that I saw that would happen in this day and age to animals. Even though they're being used for research, it still is, to me, very inhuman.

"[Reporter]: How would you describe the conditions over there for the animals?

"[Defendant]: Well, the time I was over there, was three or four animals in a cage where there should be two. There was feces on the floor. Very warm day, no shade, no water. The food bowls were empty and the dogs were fighting each other.

"[Reporter]: Have you heard gunshots?

"[Defendant]: Yes, I have. Sometimes, it's once a week. Sometimes, it's maybe two times a week. Just this month, there was three gunshots early in the morning about nine o'clock. And we saw pools of blood where dogs could have died and .22 shells." (Emphasis supplied.)

Plaintiff filed suit, ² alleging that defendant's statements were false and defamatory. After the trial court's entry of summary judgment for defendant was reversed on appeal, ³ the case went to trial in July 1994. At the close of plaintiff's evidence, defendant moved for a directed verdict and renewed that motion at the close of all evidence. The court denied those motions but, immediately preceding closing arguments, ruled that plaintiff was a public figure and that plaintiff was, therefore, required to prove "actual malice" by clear and convincing evidence. Defendant asked that the jury be instructed that plaintiff was required to prove actual malice-- i.e., that plaintiff must prove by clear and convincing evidence that defendant knew that her statements were false or had reckless disregard for their falsity. ⁴ However the court failed to instruct the jury on actual malice. Thereafter, the jury rendered a verdict for plaintiff, awarding compensatory damages of $100,000.

Defendant moved for judgment n.o.v. and alternatively for a new trial, arguing, inter alia, that the trial court erred in failing to give defendant's requested jury instruction on actual malice. The trial court explained that it had intended to give the instruction and that its failure to do so was inadvertent, not intentional. Nevertheless, the court denied the motions and entered judgment for plaintiff.

On appeal, defendant raises two assignments of error: (1) The court erred in denying her motion for a directed verdict because plaintiff failed to prove either falsity or actual malice, both of which were essential elements of his "public figure" defamation claim. ⁵ (2) The court erred in failing to give defendant's requested instruction on actual malice.

Defendant moved for directed verdict as follows:

"I would first say that as to those things which refer to the reference to feces, three or four animals in a cage, no shade, no water, food bowls empty and dogs were fighting, that there's been ample evidence of, that all of those matters are true, they are in fact true.

"As to the statements about inhuman conditions, when we look at that particular word and the specific words that are used, it says, 'it is still to me very inhuman,' that clearly expresses that she was giving her opinion about what she had seen based upon these other facts and based upon her observations when she in fact was over there. We combine that with the fact that her observations were in fact true, and what we have is nothing that's actionable based upon those statements.

"The other thing that I would move on the, for a directed verdict on is the, if the Court has heard enough evidence on this issue for the public figure, a matter that Mr. Hickey is a public figure and that assuming that there will be an amendment to the complaint to properly allege, which I have no objection to, an amendment to allege all of the necessary elements of actual malice, there has been no proof of actual malice in this case[.]" ⁶

In reviewing the denial of that motion, we must first address the appropriate standard of review. In general, denials of directed verdict motions are tested against the "any evidence" standard summarized in Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984):

"Because plaintiff had verdict, we cannot set it aside unless we can affirmatively say that there is no evidence from which the jury could have found the facts necessary to establish the elements of plaintiff's cause of action. Or Const Art VII (Amend), § 3. We do not weigh the evidence; we consider the evidence, including inferences, in the light most favorable to plaintiff." ⁷

Plaintiff contends that that "any evidence" standard governs our assessment of the sufficiency of his proof of both falsity and actual malice. Defendant does not dispute that the "any evidence" standard may be applied to the jury's determination that her statements were false, ⁸ but asserts that we must test plaintiff's proof of actual malice against a more rigorous de novo standard of review:

"[I]n a public figure defamation case, the appellate court 'must "make an independent examination of the whole record" * * * so as to assure [itself] the judgment does not constitute a forbidden intrusion on the field of free expression.' [New York Times Co. v. Sullivan, 376 US 254, 285, 84 SCt 710, 729, 11 LEd2d 686 (1964) ], quoting Edwards v. South Carolina, 372 US 229, 235, 83 SCt 680, 9 LEd2d 697 (1963). Later, in Rosenbloom v. Metromedia, 403 US 29, 54, 91 SCt 1811, 29 LEd2d 296 (1971), the Court reaffirmed its commitment to heightened appellate review in this type of case: 'The simple fact is that First Amendment questions of "constitutional fact" compel this court's de novo review.' "

We do not reach defendant's argument regarding the appropriate standard of judicial review of a jury's determination of actual malice because we conclude that plaintiff's proof of falsity was legally insufficient.

Defendant's allegedly false statements were, again, as follows:

"And it was very disturbing to think that things were going on over there that I saw that would happen in this day and age to animals. Even though they're being used for research, it still is, to me, very inhuman."

"Well, the time I was over there, was three or four animals in a cage where there should be two. There was feces on the floor. Very warm day, no shade, no water. The food bowls were empty and the dogs were fighting each other."

"Sometimes [I hear gunshots] once a week. Sometimes, it's maybe two times a week. Just this month, there was three gunshots early in the morning about nine o'clock. And we saw pools of blood where dogs could have died and .22 shells."

Defendant challenges the sufficiency of plaintiff's proof on two grounds: (1) Her first statement that "it still is, to me, very inhuman" was merely an expression of opinion and not a statement of fact and, thus, was not actionable as demonstrably true or false. (2) Although the latter two statements were statements of fact, there was no evidence that they were false.

We agree with defendant that her first statement was a nonactionable expression of opinion. Opinions, as "statements that cannot reasonably be interpreted as stating actual facts," are constitutionally protected. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990) (citation omitted); see also Haas v. Painter, 62 Or.App. 719, 725, 662 P.2d 768, rev. den. 295 Or. 297, 668 P.2d 381 (1983). Nevertheless, when an "opinion" implies the existence of undisclosed defamatory facts, it is actionable. See Cushman v. Day, 43 Or.App. 123, 126, 602 P.2d 327 (1979), rev. den. 288 Or. 571 (1980); accord Restatement (Second) Torts §...