Lence v. Hagadone Inv. Co.

• Decision Date: 27 May 1993
• Docket Number: No. 92-152,92-152
• Citation: 853 P.2d 1230,258 Mont. 433
• Parties: , 21 Media L. Rep. 1641 John A. LENCE and John A. Lence, P.C. a Montana professional corporation, Plaintiffs and Appellants, v. HAGADONE INVESTMENT CO., a Nevada Corporation, d/b/a Inter Lake Publishing Co., Daniel Black, Jacqueline L. Adams, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 1230

853 P.2d 1230

258 Mont. 433, 21 Media L. Rep. 1641

John A. LENCE and John A. Lence, P.C. a Montana professional corporation, Plaintiffs and Appellants, v. HAGADONE INVESTMENT CO., a Nevada Corporation, d/b/a Inter Lake Publishing Co., Daniel Black, Jacqueline L Adams, et al., Defendants and Respondents.

No. 92-152.

Supreme Court of Montana.

Submitted Dec. 10, 1992.

Decided May 27, 1993.

Alan J. Lerner, Kalispell, Larry M. Elison (argued), Missoula, for plaintiffs and appellants.

Gary R. Christiansen, Warden, Christiansen, Johnson & Berg, Kalispell, Robert C. Bernius (argued), Nixon, Hargrave, Devans & Doyle, Washington, DC, for defendants and respondents.

HARRISON, Justice.

This is an appeal from summary judgment granted by the District Court of the Eleventh Judicial District, County of Flathead, the Honorable Michael H. Keedy presiding. Appellant John A. Lence (Lence) sued the respondents (collectively, Inter Lake) in June 1989 for damages arising from libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligence. Inter Lake answered Lence's complaint in July 1989, and in July 1990 filed a motion for summary judgment. In January 1992 the court issued a memorandum and order granting the motion, and Lence appealed. We affirm.

Lence's claims are based on three articles published in the Daily Inter Lake in November 1988 and April 1989, on two unrelated matters. Lence included all three articles in his complaint, and all three are considered here.

The 1988 Article

On November 30, 1988, the Daily Inter Lake published an article, under the heading "Lawyer-client dispute probed," reporting that the Montana Supreme Court's Commission on Practice was looking into "allegations of fraud and professional misconduct on the part of Kalispell attorney John A. Lence." The article stated that local building contractor L. Craig Semenza (Semenza) had filed a complaint against Lence with the "high court," alleging fraud, professional misconduct, and failure to pay $67,511 for Semenza's work remodelling Lence's office.

The article also stated that Semenza had been charged in September 1988 with criminal mischief after someone flooded Lence's offices with a garden hose inserted through a hole drilled in the ceiling; that the county attorney was dropping this charge against Semenza because of insufficient evidence; that Lence had handled legal matters for Semenza's contracting business; and that Semenza had fired Lence and wanted to bring a theft charge against him because he had refused to give Semenza access to his corporate records.

Lence's attorney, Alan Lerner, wrote to the Daily Inter Lake demanding a retraction. Mr. Lerner's letter identified the portions of the article that Lence considered defamatory and included statements describing the "true facts." Inter Lake published these statements on December 11, 1988, under the heading "Attorney takes exception to DIL [Daily Inter Lake ] story."

Lence objected particularly to the second paragraph of the article, which stated that Semenza had filed his complaint with "the high court." In reality, of course, Semenza had filed his complaint with the Commission on Practice (Commission). Under the Montana Supreme Court Rules for Lawyer Disciplinary Enforcement, only the Commission may file a formal complaint against a lawyer.

When the author of the 1988 article, respondent Jacqueline Adams (Adams), spoke with Semenza, the proceedings before the Commission were confidential, pursuant to Rule 13 of the Rules for Lawyer Disciplinary Enforcement, because no formal complaint had been filed. But because Semenza approached Adams with the information and gave her a copy of this complaint, he, not she, violated the rule of confidentiality. The 1988 article was defamatory, Lence argues, because:

The Daily Inter Lake's use of the words "high court" falsely informed all other attorneys reading the story that there was credible evidence to support the conclusion that [Lence] had committed fraud and was guilty of professional misconduct.

Lence complained that Adams had published the story without giving Lence an opportunity to comment and without investigating Semenza's allegations. Adams acknowledged these omissions in her deposition and stated:

The story was based on the complaint filed with the Commission on Practice. And just as I would not contact people named in a civil suit about their part in it, I would not contact those named in a complaint to the Commission on Practice. It's not my job to determine who's calling who names and who's right.

Lence also objected to the article's failure to state that charges against Semenza, for flooding Lence's office, were to be dropped without prejudice. According to Lence, this omission implied that the county attorney had found no evidence against Semenza. In reality, he says, the county attorney "was not convinced of Semenza's innocence but needed time to obtain more evidence."

Adams admitted in her deposition that she knew before the article was published that charges against Semenza had been dropped without prejudice, and she agreed that the article would have been slightly less favorable to Semenza had she included and explained the phrase "without prejudice." She did not do that, she said, because "the deadline was at hand" when she learned of the dismissal, and because she expected to write another story later, "when the actual matter came into court."

On April 3, 1989 the Commission notified Semenza, with a copy to Lence, that it had reviewed his complaint against Lence and found no ethical violation or breach of the Rules of Professional Conduct.

The 1989 Articles

On April 4, 1989 Inter Lake published a short article about a Kalispell Board of Appeals hearing on a building permit for "the Main Street offices of attorney John Lence." The article stated that the city judge had issued a summons to Lence, "who is charged with violating city codes by constructing openings in walls where they were prohibited." Lence had installed windows in the north side of the building, which was on the property line, after city officials had informed him that placing windows on the property line would violate the Uniform Building Code.

On April 9, 1989, the newspaper reported that Lence had pleaded innocent to the misdemeanor charge of violating the city building code and that the Kalispell Board of Appeals had approved a no-construction easement from the adjoining property owner, which satisfied the building code's open space requirement for buildings with windows.

At Lence's request, the newspaper printed an item in its "Corrections" column on April 20, 1989, stating that "GKL," a Montana corporation, not Lence, had been charged with a building code violation and explaining that Lence was the president of GKL and his wife, Gwendolyn K. Lence, was the secretary.

Lence argues that the "sting" of these stories was "not that a violation had been alleged, but rather that [Lence], an attorney, had personally violated the law," and that Inter Lake should have known that the court files on the building code violation showed that GKL, not Lence, was the defendant.

In his deposition, however, Lence stated that GKL Corporation was merely a holding company created for the purpose of holding title to the building and that his wife was the sole stockholder. Lence appeared before the city judge on behalf of the corporation, and in their correspondence on this matter, both Lence and the city officials referred to the building as Lence's building.

The following issues are presented for review.

1. Whether, in light of Article II, section 7 of the Montana Constitution, the District Court erred in granting summary judgment.

2. Whether the First Amendment protects newspaper articles about a preliminary investigation of alleged attorney misconduct and an alleged violation of a city building code.

3. Whether the articles are privileged, under § 27-1-804(4), MCA, as fair and true reports, without malice, of official proceedings.

4. Whether the District Court erred in dismissing Lence's claim for false light invasion of privacy.

5. Whether Lence's emotional distress claim duplicates his defamation claim.

6. Whether Lence's negligence claim is barred as a restatement of the fault element of his defamation claim.

I

Did the District Court err in granting summary judgment?

Lence contends that in granting summary judgment the District Court erred by deciding genuine issues of material fact; by failing to view the evidence in a light most favorable to the opposing party; and by failing to consider Article II, section 7 of the Montana Constitution, which provides, in part, that:

In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.

Lence's "genuine issues of material fact" are discussed below in the context of the remaining issues. The procedural issue--jury determination of law and facts in a libel case--was disposed of by this Court in Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580, which held that it is for the court and not the jury to pass on motions for nonsuit, directed verdict, new trial, and so on, and in Williams v. Pasma (1982), 202 Mont. 66 72, 656 P.2d 212, 215, which cited Griffin to support the proposition that "there is no absolute prohibition against granting summary judgment in libel cases." In libel cases as in other civil cases, summary judgment is appropriate when there are no material issues of fact and the evidence supports the judgment as a matter of law. Kurth v. Great Falls Tribune Co. (1991), 246 Mont. 407, 804 P.2d 393; Rule 56(c), M.R.Civ.P.

As we decide here that there are no material issues of fact and that Inter Lake is entitled to judgment as a matter of law, we conclude that the District Court did not err...