LaMon v. Butler

• Decision Date: 10 March 1988
• Docket Number: No. 53196-0,53196-0
• Citation: 110 Wn.2d 216,751 P.2d 842
• Parties: , 15 Media L. Rep. 1191 Edward LaMON and Lorraine LaMon, husband and wife, Petitioners, v. Betty BUTLER, and The Daily World, a corporation, Respondents.
• Court: Washington Supreme Court

Page 216

110 Wn.2d 216

751 P.2d 842, 15 Media L. Rep. 1191

Edward LaMON and Lorraine LaMon, husband and wife, Petitioners, v. Betty BUTLER, and The Daily World, a corporation, Respondents.

No. 53196-0.

Supreme Court of Washington En Banc.

March 10, 1988.

[751 P.2d 843] Jack L. Burtch, Aberdeen, for petitioners.

Charette, Brown, Edwards, Lewis & Janhunen, Curtis M. Janhunen, Aberdeen, for respondents.

Davis, Wright & Jones, P. Cameron DeVore, Marshall J. Nelson, Stuart R. Dunwoody, Seattle, amicus curiae for respondents Allied Daily Newspapers.

DURHAM, Justice.

The plaintiffs in this case sued a newspaper and one of its reporters for allegedly defamatory statements appearing in its news articles. The trial judge dismissed the plaintiffs' cause of action by summary judgment. The Court of Appeals affirmed, 44 Wash.App. 654, 722 P.2d 1373, holding that the plaintiffs had failed to make a prima facie showing of the defendants' fault. Although our analysis differs somewhat from that of the Court of Appeals, we also affirm the trial court's decision.

On July 2, 1972, an altercation took place between Lorraine LaMon and John Peterson. Both Lorraine LaMon and her husband, Edward, were charged with assault. Edward LaMon's count was dismissed at trial, but Lorraine LaMon was convicted in the Westport Municipal Court. Lorraine LaMon appealed to the Grays Harbor County Superior Court. That appeal was dismissed by stipulation of the parties on November 10, 1972. The order of dismissal states that the superior court action was dismissed with prejudice, but it does not expressly state what effect the dismissal would have on the lower court conviction. For purposes of this opinion, however, we assume that the lower court conviction was indeed negated.

At that time, Betty Butler was responsible for reporting news in the Westport area for The Daily World, a newspaper of general circulation in Grays Harbor County. Butler learned of the superior court's dismissal of Lorraine LaMon's appeal by calling the county clerk's office. A clerk there read the order to Butler over the telephone. Butler discussed the effect of that order with the Westport city attorney involved in Lorraine LaMon's appeal. The city attorney told her that the dismissal did not negate the municipal court conviction.

Based on her understanding of these events, Butler wrote at least five articles between 1974 and 1980 in which she mentioned Lorraine LaMon's municipal court conviction without also mentioning the superior court dismissal. ¹ Those articles did not focus primarily on Lorraine LaMon's assault conviction, but instead concerned the status of related litigation. In that related litigation, the LaMons sued the Westport police chief, John Regan, for false arrest arising out of the assault incident and for a failure to provide proper police protection to the LaMons over a number of years. ² Butler's references to the assault conviction were used as background material in explaining the LaMon-Regan litigation.

The LaMons filed a complaint for defamation against Butler and The Daily World in Grays Harbor County Superior Court on September 24, 1981. The LaMons alleged that Butler's articles were defamatory by implying that Lorraine LaMon remained convicted of assault. Prior to trial, the LaMons unsuccessfully attempted to disqualify two Superior Court judges by filing affidavits of prejudice. Ultimately, Judge Kirkwood entered a summary judgment in favor of the defendants on December 22, 1983, dismissing the LaMons' cause of action. The Court of Appeals affirmed the dismissal, holding that the LaMons had failed to make a sufficient prima facie showing of the defendants' fault. ³ We granted the LaMons' petition for review.

SUMMARY JUDGMENT

Washington case law has set out certain principles to be applied in defamation cases. A defamation plaintiff must prove the following elements: a defamatory and false statement, an unprivileged communication, fault, and damages. Mark v. Seattle Times, 96 Wash.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982); Sims v. KIRO, Inc., 20 Wash.App. 229, 233, 580 P.2d 642, review denied, 91 Wash.2d 1007 (1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2164, 60 L.Ed.2d 1047 (1979); Restatement (Second) of Torts § 558 (1977). If the plaintiff is a public figure or public official, then the level of fault that he must show is actual malice. If, on the other hand, the plaintiff is a private figure, then he need show only negligence. Taskett v. KING Broadcasting Co., 86 Wash.2d 439, 445, 546 P.2d 81 (1976). Finally, this court has recently held that a defamation plaintiff's standard of proof depends on the status of the defendant. The standard of proof is "clear and convincing evidence" against a media defendant, and "a preponderance of the evidence" against a nonmedia defendant regarding private affairs. See Guntheroth v. Rodaway, 107 Wash.2d 170, 175-76, 727 P.2d 982 (1986); Dunlap v. Wayne, 105 Wash.2d 529, 534-35, 716 P.2d 842 (1986); Mark, 96 Wash.2d at 486-87, 635 P.2d 1081.

The parties have presented numerous arguments as to the proper application of these principles. The LaMons have argued they are private figures, while The Daily World has argued they are public figures. The LaMons challenged the media/nonmedia distinction as violating First Amendment principles. An amicus curiae brief filed on behalf of Allied Daily Newspapers has proposed that this court apply the higher standard of proof to issues of public concern and the lower standard to issues of private concern. However, because our holding does not require resolution of these questions, we decline to address them. Even if we were to agree with the LaMons' position on all these issues, they would still have the burden at summary judgment of showing by a preponderance of the evidence that Butler and The Daily World acted negligently. This they have failed to do.

When a defendant in a defamation action moves for summary judgment, the plaintiff has the burden of establishing a prima facie case on all four elements of defamation. See Guntheroth, 107 Wash.2d at 175, 727 P.2d 982; Dunlap, 105 Wash.2d at 542, 716 P.2d 842; Mark, 96 Wash.2d at 486, 635 P.2d 1081. The prima facie case must consist of specific, material facts, rather than conclusory statements, that would allow a jury to find that each element of defamation exists. Herron v. Tribune Pub'g Co., 108 Wash.2d 162, 170, 736 P.2d 249 (1987); Guntheroth, 107 Wash.2d at 175, 727 P.2d 982. The nonmoving party is entitled to have the evidence viewed in a light most favorable to him and against the moving party. Herron, 108 Wash.2d at 170, 736 P.2d 249.

The only evidence the LaMons have submitted to show the defendants' negligence is Lorraine LaMon's affidavit, in which she concludes that Butler knew that the statements were false because the order of dismissal was read to her over the telephone. Lorraine LaMon implies that Butler should be charged with knowledge of the order's contents, and we agree. However, the order of dismissal does not on its face give any indication of its effect on the municipal court conviction. The order indicates only that the superior court action is dismissed. The most that can be said is that reading the order would put one on notice to inquire further. The record shows, however, that Butler did, in fact, inquire further. She discussed the order with the city attorney involved in the case. According to Butler's deposition, the city attorney told her that the superior court dismissal did not affect Lorraine LaMon's conviction. Accordingly, Butler had no way of knowing that her statements were incorrect.

These facts do not constitute a prima facie case of negligence, even if we consider all the evidence and all the reasonable inferences from the evidence in favor of the LaMons. The LaMons are not entitled to an inference that the city attorney might have told Butler something other than what Butler now remembers. The LaMons did not present any evidentiary material to controvert Butler's version of the city attorney's statements. When a nonmoving party fails to controvert the facts supporting a summary judgment motion, those facts are accepted as true. See Washington Osteopathic Med. Ass'n v. King Cy. Med. Serv. Corp., 78 Wash.2d 577, 579, 478 P.2d 228 (1970); see also Zurita v. Virgin Islands Daily News, 578 F.Supp. 306, 309 (D.V.I.1984); Hideout Records & Distribs. v. El Jay Dee, Inc., 601 F.Supp. 1048, 1053 (D.Del.1984) (and cases cited therein). A reasonable trier of fact could reach but one conclusion from this evidence: the defendants did not act negligently. Accordingly, the LaMons did not present a prima facie case on the issue of fault, and summary judgment was properly entered against them. ⁴

SCOPE OF ISSUES ON APPEAL

The LaMons have argued that it would be unfair for their case on appeal to be decided on the issue of fault. They contend that they did not have notice that the summary judgment hearing would include the issue of fault, because neither the trial judge nor the defendants addressed it below. They conclude that it would be unfair for this court to decide the appeal on the fault issue when it was not argued below.

We find this argument to be without merit. First, the LaMons were furnished with notice that they had to present a prima facie case on the issue of fault in order to survive the defendants' summary judgment motion. The defendants' memorandum in support of summary judgment quoted the following language from Mark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982):

Under our cases, a defamation plaintiff must show four essential elements: falsity, an unprivileged communication, fault, and damages. To make out a prima facie case for purposes of avoiding a summary judgment in favor of respondents, Mark would have to allege...