Kemmerly v. Wichita Eagle

Decision Date06 May 2022
Docket Number124,220
Citation508 P.3d 876 (Table)
Parties Christopher Daniel KEMMERLY, Appellant, v. The WICHITA EAGLE, Chance Swaim, Amy Renee Leiker, Captain Brent Allred (Wichita P.D.), Officer Paul Cruz (Wichita P.D.), KAKE News (Channel 10), Fox Kansas News (Channel 4), KWCH12 News (Channel 12), KSCW News (Channel 5), KSN News (Channel 3), Appellees.
CourtKansas Court of Appeals

Christopher Daniel Kemmerly, appellant pro se.

Bernard J. Rhodes, of Lathrop GPM LLP, of Kansas City, Missouri, for appellees KSN News and Fox Kansas News.

Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellees The Wichita Eagle, Chance Swaim, Amy Renee Leiker, KAKE News, KWCH 12 News, and KSCW News.

Erik S. Houghton, deputy city attorney, for appellees Brent Allred and Paul Cruz.

Before Malone, P.J., Schroeder and Hurst, JJ.

MEMORANDUM OPINION

Per Curiam:

Seven months after a jury convicted Christopher Daniel Kemmerly of first-degree murder, he brought a pro se defamation action against several Wichita media outlets, two reporters, and two Wichita police officers. Kemmerly claimed The Wichita Eagle, Chance Swaim, Amy Renee Leiker, KAKE News Channel 10, Fox Kansas News Channel 4, KWCH12 News Channel 12, KSCW News Channel 5, and KSN News Channel 3 (the Media) defamed him by reporting on his arrest and conviction based on law enforcement reports from Captain Brent Allred and Officer Paul Cruz (Officers). The Media and Officers moved to strike Kemmerly's lawsuit under the Kansas Public Speech Protection Act (KPSPA), K.S.A. 2020 Supp. 60-5320. The district court granted the motions to strike and awarded attorney fees to the Media. After thoroughly reviewing the record, we find no error and affirm the district court's judgment. We also grant the two motions filed by the appellees for reasonable attorney fees incurred in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On February 18, 2019, Wichita Police arrested and booked Kemmerly into the Sedgwick County Detention Facility on first-degree murder charges. The following morning, Officers conducted a media briefing identifying Kemmerly as a suspect in the shooting death of Justin Gaston. The Media picked up the story and reported on Kemmerly's arrest based on public records and the information provided by the Officers in the briefing. The news reports also included information about Kemmerly's past convictions, obtained from the Kansas Department of Corrections.

The next day the Sedgwick County District Attorney filed a criminal complaint, charging Kemmerly with the first-degree murder of Gaston and other crimes. The complaint alleged that Kemmerly unlawfully killed Gaston "while in the commission of, attempt to commit, or flight from an inherently dangerous felony, to wit: Distribution of Methamphetamine." The Media reported on the charges against Kemmerly over the following days.

On March 7, 2019, the Officers issued a media advisory identifying Reyna Wallace as the other person responsible for Gaston's murder. The Media reported this new information and repeated previous reports about Kemmerly.

On November 22, 2019, Kemmerly was convicted of first-degree murder and other crimes. On January 3, 2020, the Media reported on Wallace's guilty plea and sentence and again included information about Kemmerly's verdict.

Kemmerly filed a defamation action against the Officers and the Media on June 26, 2020. They responded by moving to strike under the KPSPA and filing briefs with affidavits and exhibits to support their claims. Kemmerly responded to the motions and included an affidavit of Linda Rangel-Veal, Gaston's mother, who expressed personal doubts about the evidence presented at Kemmerly's trial. The district court held a hearing on October 9, 2020, but the transcript is not included in the record on appeal.

On November 10, 2020, the district court granted the motions to strike and dismissed Kemmerly's claims with prejudice. The district court also ordered Kemmerly to pay the Media's attorney fees and costs. In granting the motions to strike, the district court found that the Officers and the Media "demonstrated that the claim against them involve[d] their exercise of the right of free speech" and the burden shifted to Kemmerly to " ‘establish a likelihood of prevailing on the claim by presenting substantial competent evidence to support a prima facie case.’ " The district court found that Kemmerly did not present substantial competent evidence that (1) the information published was false; (2) he could "overcome the fair report privilege"; (3) "his defamation claims [were] timely and that he could overcome a statute of limitations defense"; or (4) "his reputation was damaged as a result of [the Officers’ and the Media's] statements."

A few weeks later, on December 7, 2020, the district court entered a separate order awarding attorney fees and costs incurred in district court to the Media. Kemmerly timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR IN GRANTING THE MOTIONS TO STRIKE ?

On appeal, Kemmerly claims the district court erred in granting the Media's and the Officers’ motions to strike under the KPSPA. More specifically, Kemmerly asserts that (1) false and defamatory words were proven in district court; (2) the fair report privilege does not apply here; (3) the statute of limitations did not expire; and (4) the damages standard cannot realistically be met when the plaintiff is incarcerated. The Officers and the Media respond to these arguments as the arguments apply to them.

Before reviewing the district court's decision, a summary of KPSPA is helpful. In 2016, Kansas adopted K.S.A. 60-5320, the Public Speech Protection Act. L. 2016, ch. 58, § 1. It is known as an anti-SLAPP statutestatutes intended to prevent meritless lawsuits that chill free speech, known as SLAPPs, or " ‘strategic lawsuits against public participation.’ " T & T Financial of Kansas City, LLC v. Taylor , No. 117,624, 2017 WL 6546634, at *3 (Kan. App. 2017) (unpublished opinion).

The stated purpose of the KPSPA is

"to encourage and safeguard the constitutional rights of a person to petition, and speak freely and associate freely, in connection with a public issue or issue of public interest to the maximum extent permitted by law while, at the same time, protecting the rights of a person to file meritorious lawsuits for demonstrable injury." K.S.A. 2020 Supp. 60-5320(b).

KPSPA "provides a procedural remedy early in the litigation for those parties claiming to be harassed by a SLAPP lawsuit." 2017 WL 6546634, at *4. It allows a party to move to strike a claim if the claim "is based on, relates to or is in response to [that] party's exercise of the right of free speech, right to petition or right of association." K.S.A. 2020 Supp. 60-5320(d). If the movant makes a prima facie case showing that a claim concerns the party's exercise of one of these rights, the burden shifts to the other party to establish a likelihood of prevailing on their claim by presenting substantial competent evidence to support a prima facie case. K.S.A. 2020 Supp. 60-5320(d).

To prove defamation, Kemmerly must show that the Media and Officers knowingly communicated false and defamatory words to someone else and those false statements injured his reputation. See Hall v. Kansas Farm Bureau , 274 Kan. 263, 276, 50 P.3d 495 (2002) ("The elements of defamation include false and defamatory words, communicated to a third person, which result in harm to the reputation of the person defamed."). Truth and privilege are affirmative defenses to defamation. Turner v. Halliburton Co. , 240 Kan. 1, 7, 722 P.2d 1106 (1986).

The district court found that the Media and Officers met their burden of showing that the claims against them concerned their exercise of free speech and, thus, the burden shifted to Kemmerly to present substantial competent evidence showing a likelihood he could prevail on his claim. K.S.A. 2020 Supp. 60-5320(d). On appeal, Kemmerly does not challenge this finding, he only argues that he presented substantial competent evidence that the statements were false, the fair report privilege did not apply, and he showed damages and so the district court erred in granting the motions.

The Officers argue that Kemmerly did not produce substantial competent evidence establishing the elements of his defamation claim, noting that because he was convicted of Gaston's murder, the Officers’ statements were true. The Media argues that the statements were true and that their reports came from official law enforcement sources and therefore "are covered by the qualified privilege to report on matters of public concern."

An appellate court exercises unlimited review of a district court's order granting a motion to strike under the KPSPA. Doe v. Kansas State University , 61 Kan. App. 2d 128, 137, 499 P.3d 1136 (2021). Similarly, to the extent our analysis requires interpretation of K.S.A. 2020 Supp. 60-5320, the interpretation of a statute is a question of law subject to unlimited review. Nauheim v. City of Topeka , 309 Kan. 145, 149, 432 P.3d 647 (2019).

As stated before, to avoid the motions to strike after the defendants met their initial burden of showing the claims concerned their exercise of free speech, Kemmerly needed to present to the district court substantial competent evidence that he would prevail on his defamation claim. To prove defamation, Kemmerly needed to show that the Officers and the Media knowingly communicated false and defamatory words to someone else and those false statements injured his reputation. Hall , 274 Kan. at 276. Based on the record, the district court did not err in granting the motions to strike because (1) Kemmerly failed to show the statements made by the Officers and the Media were false; (2) Kemmerly failed to show he sustained damages based on the statements; and (3) Kemmerly failed to show that the fair report privilege did not apply to the Media.

The statements were true.

Kemmerly...

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