Little v. Consol. Publ'g Co.

• Decision Date: 13 May 2011
• Docket Number: 2090705.
• Parties: Benjamin L. LITTLE v. CONSOLIDATED PUBLISHING COMPANY and Megan Nichols.
• Court: Alabama Court of Civil Appeals

83 So.3d 517

Benjamin L. LITTLE

v.CONSOLIDATED PUBLISHING COMPANY and Megan Nichols.

2090705.

Court of Civil Appeals of Alabama.

May 13, 2011.

Rehearing Denied July 8, 2011.

Certiorari Denied Nov. 10, 2011

Alabama Supreme Court 1101210.

William E. Rutledge of Rutledge & Yaghmai, Birmingham, for appellant.

Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.

On Application for Rehearing

PER CURIAM.

This court's opinion of December 3, 2010, is withdrawn, and the following is substituted therefor.

Benjamin L. Little appeals from a summary judgment entered by the Calhoun Circuit Court ("the trial court") in favor of Consolidated Publishing Company ("CPC") and Megan Nichols.

The evidence the parties submitted in support of, and in opposition to, Nichols and CPC's motion for a summary judgment tended to show the following. Little, a Christian minister, has been an Anniston city councilman since his election in 2000. In early 2007, Little, acting on the recommendation of Phillip White, then mayor of Uniontown, contacted Yolanda Jackson, a human-resource-management consultant, about possibly addressing what Little considered to be the substandard human-resources practices of the City of Anniston ("the city"). On February 10, 2007, Little drove to Uniontown to pick up Jackson, and the two of them went to Demopolis for dinner, all at the expense of the city. Little and Jackson talked for between 90 minutes and 2 hours, and then Little drove Jackson back to Uniontown, dropped her at the city hall, and returned to Anniston. The next day, Jackson sent her résumé to Little, indicating her willingness to assist in developing new human-resources policies and procedures for the city. Little recommended Jackson to the other city-council members, but, at that time, they apparently showed little interest in having Jackson perform an audit of the city's human-resources practices.

A year later, however, the city council renewed its interest in the matter and Little, after meeting again with Jackson in Uniontown, arranged for Mayor White and her to attend a city-council meeting in April 2008. At that meeting, Jackson informed the council of her qualifications and Mayor White related the success of Jackson's efforts in helping Uniontown with its human-resources problems. The city council voted 5–0 to pay Jackson $2,500 to perform an audit of the city's human-resources practices. Following the council meeting, Little took Jackson and Mayor White to dinner in Anniston.

Jackson performed the audit. During the auditing process, Jackson did not meet personally with Little, but she did talk with him on the telephone several times. After the audit was completed, Little drove to Uniontown and talked with Jackson about the audit for about 20 minutes. The record does not indicate any other interaction between Little and Jackson.

In November 2008, John Spain was elected to the Anniston city council. At a city-council meeting conducted at some point in February 2009, Spain questioned the usefulness of the audit conducted by Jackson and stated his intention to investigate the matter. Nichols, a reporter for The Anniston Star, a newspaper owned and published by CPC, interviewed Spain and Little after the meeting. Based on her notes from the meeting and her interviews, Nichols wrote an article that appeared on the front page of The Anniston Star on February 19, 2009, under the headline: "Spain wants investigation into HR audit ordered by Little." In that article, Nichols related some facts and the opinions of certain city officials, including Spain, that indicated that the audit had been conducted poorly and had yielded nothing productive. In addition, the article stated:

"Spain also said there is a buzz in the city that Little had or has a personal relationship with Jackson and that's why he pushed for her hiring last year.

" ‘If this is not the case, it's very unfair to Councilman Little,’ Spain said. ‘If there is substance to it, it needs to be disclosed.’

"Little, who is not married, said he is not involved personally with Jackson.

" ‘I know a lot of people,’ he said. ‘But I've never had a relationship with that girl. And if I did have a relationship with her, that wouldn't relate to the city anyway.’

"Several attempts to reach Jackson this week failed."

Nichols submitted an affidavit in support of the motion for a summary judgment in which she stated that, in her interview with Spain, he made the statements that were attributed to him in the article. Nichols stated that it had been her understanding from statements made by Spain during that interview that "there were rumors in the community that Council member Little may have been dating a consultant hired by the City." In her deposition, Nichols clarified that Spain had also indicated to her that there was a "buzz" that Little had based his decision to "push" for Jackson's hiring because of their rumored personal relationship. In both her affidavit and her deposition testimony, Nichols attested that she had quoted Spain and Little accurately in the article. Bob Davis, the editor of The Anniston Star, testified in his deposition that he had contributed to the article by noting that Little was not a married man, in order to give the article "greater context."

Nichols stated in her affidavit that she did not write the article out of ill will, spite, or malice toward anyone. She stated that she was simply reporting the words of Spain as told to her as part of her job as a reporter, which included covering the meetings of the city council. Nichols further attested in her affidavit that she had no concerns or doubts about the accuracy of the information quoted in the story. She stated that she had not investigated whether, in fact, a rumor was circulating about Little and Jackson; she could verify only that Spain had asserted as much. As for checking the factual basis of the alleged rumor, Nichols testified that she had asked Little about the rumor and had attempted to contact Jackson. Nichols and Davis both testified that they had no reason to doubt the veracity of Little's denial. Although Nichols had not been able to reach Jackson, the article was published. Harry Brandt Ayers, the publisher of The Anniston Star, testified that he knew Spain did not like Little but that no editor or other person employed by the newspaper had attempted to ascertain the factual basis of Spain's statements.

On February 20, 2009, The Anniston Star published an editorial that Davis had written titled: "Ben's greatest hits: A litany of crumbling plans." In that editorial, Davis wrote:

"Most recently we've learned more details about Councilman Ben Little's sweetheart HR audit deal. At Little's urging, Anniston paid Yolanda Jackson of Uniontown $2,500 to examine the city's human resources practices. Working for what city officials say is a few hours and she claims was several days, Jackson produced a report that is virtually useless. Not one recommendation has been implemented."

Davis then recounted several other endeavors Little had undertaken while he was a councilman that Davis considered to have been unsuccessful.

On February 24, 2009, counsel for Little wrote a letter to Ayers, requesting that the newspaper retract certain statements contained in the article and the entire editorial, both of which Little considered to be false and malicious. Specifically, Little's counsel maintained that Little had not ordered the audit or hired Jackson; rather, he said, the city council had voted 5–0 to hire Jackson to conduct the audit. The evidence, construed in a light most favorable to Little, shows that Nichols attended the meeting at which the city council voted to hire Jackson and that Nichols knew that Little had not "ordered" the audit, as stated in the headline above the initial article reporting that Spain wished to investigate the circumstances surrounding the audit. Little's counsel also asserted that the article had repeated false gossip provided by Spain, who was described in the letter as "a well known opponent of Mr. Little on the city council," to the effect that Little had "pushed" for Jackson's hiring because Little had a personal relationship with Jackson. Little's counsel further objected to the characterization of the audit in the editorial as a "sweetheart" deal that Little had "urged" the council to make.

On February 26, 2009, Little's counsel sent a proposed retraction to counsel for CPC. On February 27, 2009, in an article titled "For the Records" that was printed on page two of that day's edition of The Anniston Star, the following appeared:

"A headline for a Feb. 19 article in The Anniston Star mischaracterized Anniston City Councilman Ben Little's role in hiring a contractor to audit the city's human resources practices. In fact, the council as a whole ordered the audit. The Star apologizes to Councilman Little for this error.

"Furthermore, the article quoted another city councilman concerning the existence of rumors circulating that Little had some type of personal relationship with the contractor hired by the entire council. In context, it was clear that the person quoted was not stating whether or not the rumors were true and the person was expressly quoted as saying that if the rumors were untrue, those spreading the rumors would be unfair to both Little and the contractor. The Anniston Star wishes to make absolutely clear that it has not and is not alleging that such a relationship exists or that such rumors have a factual basis. In fact, Little has vehemently denied such a relationship exists."

Later that day, Little's counsel wrote CPC's counsel, objecting because he had not reviewed or approved the foregoing article before it was published and demanding that different wording appear on the front page of the newspaper. No further correction appeared in the pages of The Anniston Star.

On March 24, 2009, another editorial appeared in The Anniston Star in which it was recounted...