LaMon v. Butler, 53196-0

CourtUnited States State Supreme Court of Washington
Citation770 P.2d 1027,112 Wn.2d 193
Docket NumberNo. 53196-0,53196-0
PartiesEdward LaMON and Lorraine LaMon, husband and wife, Petitioners, v. Betty BUTLER, and The Daily World, a corporation, Respondents.
Decision Date30 March 1989

Page 193

112 Wn.2d 193
770 P.2d 1027
Edward LaMON and Lorraine LaMon, husband and wife, Petitioners,
Betty BUTLER, and The Daily World, a corporation, Respondents.
No. 53196-0.
Supreme Court of Washington,
En Banc.
March 30, 1989.

Page 194

[770 P.2d 1028] Jack L. Burtch, Aberdeen, for petitioners.

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

Page 195

P. Cameron DeVore, Marshall J. Nelson, and Stuart R. Dunwoody on behalf of Allied Daily Newspapers, amici curiae for respondents.

DURHAM, Justice.

The plaintiffs in this case brought a defamation action against a newspaper and one of its reporters. The trial court dismissed the plaintiffs' cause of action by summary judgment. The Court of Appeals affirmed, holding that the plaintiffs had failed to make a prima facie showing of the defendants' fault. We affirm. 1

On July 2, 1972, an altercation took place between Lorraine LaMon and John Peterson, a summer intern reporter for The Daily World. 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 reads as follows: "It is ordered that the above action be dismissed with prejudice. It is further ordered, adjudged and decreed that the defendants pay all costs in the matter." A copy of this order is attached as appendix A.

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 read the order to Butler over the telephone. Butler's understanding of the order was that it "was not the type of dismissal that negated the judgment." Butler also discussed the effect of that order with the Westport City Attorney involved in Lorraine LaMon's appeal. According to Butler's deposition, the city attorney in large part confirmed her

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interpretation. Butler indicated that the city attorney told her that the dismissal in Superior Court "had [770 P.2d 1029] very little to do with the [Municipal Court] verdict per se".

The assault incident described above provided, in part, the basis of a lawsuit filed in 1974 by the LaMons against Peterson and the Westport Chief of Police, John Regan. The LaMons alleged that Peterson executed a false complaint and that Regan falsely caused them to be arrested. They also alleged that Regan violated their civil rights by failing to provide equal police protection to them over a number of years. The LaMons later dismissed Peterson from the case. They eventually recovered a $27,500 judgment against Regan on the civil rights claim in 1978. The judgment was affirmed on appeal in 1980.

Regan was not covered by Westport's liability insurance due to a temporary lapse in the policy's coverage. At a meeting of the Westport City Council on September 24, 1979, several citizens proposed that the City help Regan post a bond and pay his legal costs. Butler attended this meeting and wrote an article about it the next day. In that article, she included as background material the fact that Lorraine LaMon had been convicted of assault in Municipal Court, but she did not mention the Superior Court dismissal or its effect on the Municipal Court conviction. Butler made similar statements in other articles that she wrote between 1974 and 1980 concerning this litigation. 2

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. They

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also attempted, unsuccessfully, to disqualify the county's two Superior Court judges by filing separate affidavits of prejudice. The trial court entered a summary judgment in favor of the defendant 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 LaMon v. Butler, 44 Wash.App. 654, 722 P.2d 1373 (1986). We granted the LaMons' petition for review.

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: falsity, an unprivileged communication, fault, and damages. See Guntheroth v. Rodaway, 107 Wash.2d 170, 175, 727 P.2d 982 (1986); 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). 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.

It is well settled that the standard of fault in defamation cases depends on the nature of the plaintiff. If the plaintiff is a public figure or public official, he must show actual malice. If, on the other hand, the plaintiff is a private figure, he need show only negligence. Bender v. Seattle, [770 P.2d 1030] 99 Wash.2d 582, 599, 664 P.2d 492 (1983). Not surprisingly, the LaMons characterize themselves as private figures, while The Daily World argues that they are public figures.

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A second issue has been raised concerning the appropriate standard of proof by which fault must be shown. Citing Dunlap v. Wayne, 105 Wash.2d 529, 533-35, 716 P.2d 842 (1986), the Court of Appeals concluded that the LaMons had to prove their case by clear and convincing evidence because Butler and The Daily World were media defendants. LaMon, 44 Wash.App. at 657-58, 722 P.2d 1373. The LaMons claim that providing greater protection to media defendants in this manner violates the First Amendment. They contend that they should only be required to show fault by a preponderance of the evidence. The Daily World has not expressed any position on this issue. An amicus group, the Allied Daily Newspapers, proposes that instead of focusing on a media/nonmedia distinction, this court should apply the higher standard of proof to issues of public concern and the lower standard to issues of private concern.

Resolution of this case, however, does not require us to address either of these questions. Even if the LaMons were entitled to the more lenient standards of proof and fault, 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.

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, and it can be read in two ways. It could be interpreted to mean that the entire prosecution is dismissed, thereby negating the Municipal Court conviction. Alternatively, the order can be interpreted to mean that only the appeal in Superior Court is dismissed, leaving the lower conviction intact. That the defendants were ordered to pay costs only adds to the confusion. The most that can

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be said is that reading the order would put one on notice to inquire further. And that is precisely what Butler did. 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.

These facts do not constitute a prima facie case of negligence, even when we draw all reasonable inferences from the evidence in favor of the LaMons. The LaMons did not present any evidentiary material at summary judgment to controvert Butler's version of her conversation with the city attorney. 4 Thus, 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). This principle takes on added weight in the context of defamation cases, where the plaintiff has the burden of making a prima facie case.

A reasonable trier of fact in this case could reach but one conclusion from the evidence: the defendants did not act negligently. Accordingly, the LaMons did [770 P.2d 1031] not present a prima facie case on the issue of fault, and summary judgment was properly entered against them. 5

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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...

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