Ladd v. Uecker

• Decision Date: 27 January 2010
• Docket Number: No. 2009AP596.,2009AP596.
• Citation: 2010 WI App 28,780 N.W.2d 216
• Parties: Ann E. LADD, Plaintiff-Appellant, v. Robert G. UECKER and Milwaukee Brewer Baseball Club, L.P., Defendants-Respondent.
• Court: Wisconsin Court of Appeals

780 N.W.2d 216

2010 WI App 28

Ann E. LADD, Plaintiff-Appellant, v. Robert G. UECKER and Milwaukee Brewer Baseball Club, L.P., Defendants-Respondent.

No. 2009AP596.

Court of Appeals of Wisconsin.

Submitted on Briefs November 13, 2009.

Opinion Filed January 27, 2010.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Ann Ladd, pro se.

On behalf of the defendants-respondents, the cause was submitted on the brief of Katherine M. Longley of Foley & Lardner, LLP, Milwaukee.

Before BROWN, C.J., ANDERSON and SNYDER, JJ.

¶ 1 SNYDER, J

Ann E. Ladd appeals the dismissal of her complaint and amended complaint against Robert G. Uecker and the Milwaukee Brewers Baseball Club, L.P. The court granted Uecker's and the Brewers' motion to dismiss because the court concluded that, as to most of the defamation and invasion of privacy claims, the complaint was filed beyond the statute of limitations, and the remaining allegations failed to state a claim because they involved statements protected by various privileges. We agree and affirm.

¶ 2 Uecker is the radio broadcaster for the Brewers. In June 2006, Uecker petitioned the Milwaukee County Circuit Court for an injunction against Ladd pursuant to WIS. STAT. § 813.125 (2007-08),¹ alleging a six- or seven-year pattern of harassment. Around the same time, Ladd—a self-described "devoted fan"— was charged with felony stalking. The injunction petition hearing was held on July 3 and September 7, 2006. The court commissioner found probable cause and issued an injunction. Ladd did not seek de novo review or file a notice of appeal. Soon after the injunction issued, the prosecutor dismissed the criminal charge.

¶ 3 Without first giving written notice, see WIS. STAT. § 895.05(2), on September 8, 2008,² Ladd filed a sprawling pro se complaint alleging that between June 1 and September 7, 2006, Uecker defamed her in the affidavit supporting the injunction petition; he and/or the Brewers published the allegedly defamatory affidavit to a website called thesmokinggun.com; the Brewers posted on their website a defamatory article regarding her removal from a spring training game in Maryvale, Arizona; and a claim for "false light invasion of privacy" for, among other things, making and republishing false, defamatory statements and photographing her in the stands at various baseball stadiums.

¶ 4 Uecker and the Brewers moved to dismiss Ladd's complaint. They asserted that: (1) the claims relating to Uecker's affidavit are barred because they fall outside the WIS. STAT. § 893.57 two-year statute of limitations; (2) those claims are further barred by the absolute privilege for statements made in the course of judicial proceedings; (3) the sole defamation claim not barred by the statute of limitations, the March 2007 Associated Press (AP) news story appearing on the Brewers' website, is protected by the "wire-service" privilege; and (4) Wisconsin does not recognize "false light invasion of privacy" and Ladd pled no facts showing an invasion of any privacy rights Wisconsin does recognize.

¶ 5 In her response, Ladd acknowledged her "oversight" that Wisconsin does not recognize "false light invasion of privacy," but contended that her complaint nonetheless stated an invasion of privacy cause of action under WIS. STAT. § 995.50. Four days before the hearing on the motion, Ladd filed an amended complaint materially the same as the original complaint except that she renamed the prior "False Light Invasion of Privacy—Distress" to "Emotional Distress and Invasion of Privacy."

¶ 6 After a hearing, the circuit court concluded that the statute of limitations bars Ladd's claims for all matters occurring before September 7, 2006; that statements Uecker made during the September 7, 2006 hearing enjoy absolute judicial immunity; that the AP news story is protected by the wire-service privilege; and that Ladd's invasion of privacy claims lack legal support. Based on Ladd's assertion that the amended complaint essentially mirrored the initial one, the court dismissed them with prejudice. Ladd filed this appeal.

¶ 7 A motion to dismiss tests the legal sufficiency of the complaint. Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 331, 565 N.W.2d 94 (1997). On review, we accept as true the alleged facts and their reasonable inferences, but we draw all legal conclusions independently. Walberg v. St. Francis Home, Inc., 2005 WI 64, ¶ 6, 281 Wis.2d 99, 697 N.W.2d 36. When a plaintiff clearly cannot recover under any conditions, a motion to dismiss should be granted. Meyers v. Bayer AG, 2006 WI App 102, ¶ 7, 293 Wis.2d 770, 718 N.W.2d 251, aff'd, 2007 WI 99, 303 Wis.2d 295, 735 N.W.2d 448.

¶ 8 The elements of a common law action for defamation are: (1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the one defamed; and (3) the communication is unprivileged and tends to harm one's reputation, lowering him or her in the estimation of the community or deterring third persons from associating or dealing with him or her. Torgerson v. Journal/Sentinel, Inc., 210 Wis.2d 524, 534, 563 N.W.2d 472 (1997). If we determine the matter complained of is not defamatory, that generally ends the matter. See Lathan v. Journal Co., 30 Wis.2d 146, 151, 140 N.W.2d 417 (1966).³ If it is defamatory, we must consider the defenses alleged. Id. Truth is a complete defense. Id. Even if false, however, it still may have the benefit of either absolute or conditional privilege. See id. An absolute privilege gives complete protection while a conditional privilege may be forfeited if abused. Vultaggio v. Yasko, 215 Wis.2d 326, 331, 572 N.W.2d 450 (1998).

¶ 9 Ladd's September 8, 2008 complaint alleges that Uecker defamed her: (1) in the affidavit in support of his petition for the harassment injunction; (2) by publishing the affidavit to thesmokinggun.com; (3) during the two-day injunction hearing; and (4) in a media interview after the first day of the hearing. Distilled to its essence, Ladd's claim is that the false depiction of her as a stalker has damaged her personal and professional reputations. Except for the continued injunction hearing on September 7, 2006, however, all of these incidents occurred more than two years before Ladd filed her complaint. An action to recover damages for a defamatory communication is barred if not commenced within two years after the cause of action accrues. WIS. STAT. § 893.57.

¶ 10 Ladd disagrees. She argues that the statute of limitations does not bar her claim because, under Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578 (1983), her defamation claim did not accrue until she discovered or reasonably could have discovered her injury. Neither Ladd's original nor her amended complaint contains any factual allegations implicating the discovery rule, however. This assertion has no merit.

¶ 11 Ladd also argues that, although Uecker and/or the Brewers allegedly posted his affidavit to thesmokinggun.com on June 2, 2006, the purportedly defamatory statements still can be accessed on the Internet today. She contends that the information therefore is republished each time someone visits that website or others to which the material has found its way, thus renewing her cause of action. We disagree. "Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication." RESTATEMENT (SECOND) OF TORTS § 577A(3) (1977). Wisconsin has not yet addressed the multiple- or single-publication rule head-on. See Voit v. Madison Newspapers, Inc., 116 Wis.2d 217, 227, 341 N.W.2d 693 (1984) (Abrahamson, J., concurring); see also id. at 223, 341 N.W.2d 693. The great majority of courts have, however, followed the single-publication rule. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 n. 8, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984); see also RESTATEMENT (SECOND) OF TORTS § 577A, Reporter's Note.

¶ 12 Some courts have applied the single-publication rule specifically to publication on the Internet. See, e.g., Firth v. State, 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463, 465-66 (2002). We do so here. We hold that "republishing" the allegedly defamatory information about Ladd on the Internet is not actionable. Accepting as we must on this review that Uecker or the Brewers were responsible for the initial publication to thesmokinggun.com on June 2, 2006, that act is outside the statute of limitations.⁴ Uecker and the Brewers have no control over other websites' use or dissemination of the same information on the World Wide Web. We reject the notion that each "hit" or viewing of the information should be considered a new publication that retriggers the statute of limitations.

¶ 13 As to Uecker's September 7, 2006 injunction hearing testimony, even if it conceivably could be construed as defamatory, it is not actionable. Statements "pertinent or relevant to the case" that are made in the course of judicial proceedings are absolutely privileged and insulate the speaker from liability. Bergman v. Hupy, 64 Wis.2d 747, 750, 221 N.W.2d 898 (1974). Uecker's written affidavits and courtroom testimony are absolutely privileged.

¶ 14 Ladd asserts, however, that Uecker's statements lost their absolute privilege through "excessive publication" on the Internet, because the "stalker label" "defameedher as a criminal" and because Uecker defamed her to law enforcement officials. See RESTATEMENT (SECOND) OF TORTS § 604 (1977) (addressing loss of privilege through excessive publication of defamatory material); State v. Gilles, 173 Wis.2d 101, 111, 496 N.W.2d 133 (Ct.App. 1992) (stating that a conditional privilege applies to criminal defamation); and Heggy v. Grutzner, 156 Wis.2d 186, 192, 456 N.W.2d 845 (Ct.App.1990) (stating that defamatory statements to law enforcement officers are conditionally privileged). Ladd is mistaken in several respects.

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