McNamara v. Koehler

• Citation: 429 P.3d 6
• Decision Date: 06 August 2018
• Docket Number: No. 77157-4-I,77157-4-I
• Court: Court of Appeals of Washington
• Parties: Tracy S. MCNAMARA, an individual, Appellant, v. Karen KOEHLER ; aka "The Velvet Hammer;" John Doe Koehler; John Doe "Hammer"; Stritmatter Kessler Whelan Koehler Moore Kahler, a Washington professional corporation, Respondents.

429 P.3d 6

Tracy S. MCNAMARA, an individual, Appellant,

v.Karen KOEHLER ; aka "The Velvet Hammer;" John Doe Koehler; John Doe "Hammer"; Stritmatter Kessler Whelan Koehler Moore Kahler, a Washington professional corporation, Respondents.

No. 77157-4-I

Court of Appeals of Washington, Division 1.

FILED: August 6, 2018

Publication Ordered October 16, 2018

John Henry Browne, Law Offices of John Henry Browne PS, 801 2nd Ave. Ste. 800, Seattle, WA, 98104-1573, for Appellant.

Bruce Edward Humble Johnson, Davis Wright Tremaine LLP, 1201 3rd Ave. Ste. 2200, Seattle, WA, 98101-3045, for Respondent.

Mann, A.C.J.

¶ 1 The fair report privilege is a conditional privilege that protects from liability for defamation a republisher of a statement made in the course of an official public proceeding, including judicial proceedings. Tracy McNamara appeals a trial court order dismissing her defamation and Consumer Protection Act (CPA)¹ claims against attorneys Karen Koehler and Stritmatter Kessler Whelan Koehler Moore and Kahler (collectively SKW). McNamara alleged that SKW defamed her by posting false information on SKW’s website about a pending wrongful death action that SKW filed against McNamara. Because the fair report privilege protects the statements made on the SKW website and McNamara failed to demonstrate a violation of the CPA, we affirm.

FACTS

¶ 2 Karen Koehler, a partner at SKW, represents Jennifer Ralston and Caleb McNamara in a wrongful death lawsuit against Tracy McNamara for the alleged murder of Ralston and Caleb McNamara’s father, Timothy McNamara. The complaint alleged that McNamara financially exploited and then murdered Timothy McNamara, her biological uncle, on December 25, 2014, in Belize.

¶ 3 SKW maintains a webpage dedicated to the Ralston v. Nessl. a.k.a. McNamara wrongful death lawsuit on the firm’s website. This page features a picture of McNamara above the words "INTERPOL WARRANT." Next to the picture is a statement that Tracy Shannon Nessl [McNamara] "is wanted by the judicial authorities of Belize for prosecution to serve a sentence."² Beneath the picture of McNamara the webpage states, "Murder & incest in Belize with ties to WA State: Defendant Tracy Nessl a.k.a. McNamara is a Grant County resident with a warrant out for her arrest/prosecution." SKW’s website also includes a webpage titled "Sample Cases." After describing the firm’s personal injury and wrongful death practice, the page states "Below is a small sample of just a few of our over 150 cases resulting in at least seven and eight figures for our client." The page then provides a summary of SKW’s ongoing litigation on behalf of plaintiffs involved in the 2015 Ride the Ducks crash on Aurora Avenue, links to several settled injury actions, and then two ongoing wrongful death actions including the action against McNamara.³ Following that are multiple pages containing description of cases handled by SKW lawyers; some list settlement amounts and some do not.

¶ 4 In July 2016, McNamara sued Koehler and SKW for defamation and for violating the CPA. The complaint alleged that SKW’s website was defamatory due to false statements about McNamara. The complaint identified the following false statements: (1) An Interpol Warrant exists for McNamara’s arrest, (2) McNamara has been found guilty of murder, (3) McNamara had been found guilty of Incest, (4) SKW is responsible for obtaining at least a $10 million dollar settlement for its clients against McNamara, and (5) that Tim McNamara’s assets at the time of his death included assets owned by McNamara.

¶ 5 SKW moved to dismiss McNamara’s complaint under CR 12(c). SKW asserted that the information on the website was absolutely privileged under the litigation privilege and conditionally privileged under the fair report privilege, and that McNamara’s CPA claim failed as a matter of law. Because the pleadings included multiple attachments, the trial court converted the CR 12(b) motion to a motion for summary judgment. The trial court granted summary judgment in favor of SKW and dismissed McNamara’s case with prejudice.⁴

¶ 6 McNamara sought direct review by the Washington Supreme Court under RAP 4.2(a)(4). The Supreme Court transferred the case to this court.

ANALYSIS

Conversion to Summary Judgment

¶ 7 As a preliminary matter, McNamara claims that the trial court erred by converting the CR 12(b)(6) motion to dismiss into a CR 56 motion for summary judgment. We disagree.

¶ 8 Where a court hearing a motion for judgment on the pleadings considers matters outside of the pleadings, then that motion must be treated as a summary judgment motion. CR 12(c). McNamara recognized the trial court’s duty under CR 12(c) and in its opposition to the motion to dismiss, asked that the trial court either strike the attachments to SKW’s motion or convert the motion into a motion for summary judgment. This is precisely what the trial court did. As the court explained, the "motion contains a great deal of evidence, and therefore the Court converts the Motion into one for summary judgment under CR 56. All submitted evidence is admitted and was considered."

¶ 9 While McNamara argues on appeal that she should have been afforded additional time and an opportunity to present additional materials under CR 12(c), she ignores that the parties stipulated to a briefing schedule on the motion to dismiss that allowed more time for the response and reply briefs than ordinarily allowed under CR 56(c).⁵ Moreover, McNamara fails to identify any additional evidence that would have been relevant to the court’s consideration beyond the wrongful death complaint, the SKW website, and McNamara’s complaint—all of which were before the trial court and attached to McNamara’s appellate brief. Where, as here, there is no dispute of the underlying facts, and the questions presented are question of law, "[c]ompliance with the formalities of CR 56 was not necessary." Loger v. Washington Timber Prods., 8 Wash. App. 921, 926, 509 P.2d 1009 (1973). This matter is properly considered under CR 56.

¶ 10 Summary judgment is proper if the pleadings, depositions, and answers on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The moving party bears the burden of showing that there is no genuine dispute of material fact. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998). All reasonable inferences from the evidence are resolved against the moving party. Folsom, 135 Wash.2d at 663, 958 P.2d 301.

¶ 11 In a defamation action, summary judgment serves as an early test of the plaintiff’s evidence. Mark v. Seattle Times, 96 Wash.2d 473, 486-87, 635 P.2d 1081 (1981). To defeat a defendant's motion for summary judgment, the plaintiff "must establish a prima facie case by evidence of convincing clarity." Mark, 96 Wash.2d at 487, 635 P.2d 1081.

Defamation

¶ 12 A defamation plaintiff must establish four elements: falsity, damages, fault, and an unprivileged communication. Mark, 96 Wash.2d at 486, 635 P.2d 1081 (citing RESTATEMENT (SECOND) OF TORTS § 558 (1977) ). There are absolute and conditional privileges that may shield a "defendant from liability for uttering an otherwise defamatory statement." Alpine Indus. Computers, Inc. v. Cowles Publ’g Co., 114 Wash. App. 371, 381, 57 P.3d 1178 (2002). An absolute privilege absolves the defendant from all liability for defamatory statements. A conditional or qualified privilege "may be lost if it can be shown that the privilege has been abused." Bender v. City of Seattle, 99 Wash.2d 582, 600, 664 P.2d 492 (1983).

1. The Fair Report Privilege ⁶

¶ 13 Washington recognizes the fair report privilege—a conditional privilege that protects a republisher of a statement "when the original defamatory statement was made in the course of an official public proceeding or contained in an official public record." Herron v. Tribune Publ’g Co., 108 Wash.2d 162, 179, 736 P.2d 249 (1987). The purpose of the fair report privilege "is to serve the public’s interest ‘in having information made available to it as to what occurs in official proceedings and public meetings.’ " Herron, 108 Wash.2d at 179, 736 P.2d 249 (quoting RESTATEMENT (SECOND) OF TORTS § 611 ). The fair report privilege extends to both civil and criminal judicial proceedings. Herron, 108 Wash.2d at 179, 736 P.2d 249"Because the filing of a pleading is a public and official act in the course of judicial proceedings, the fair reporting privilege attaches to pleadings even if the court has yet to action them." Clapp v. Olympic View Publ’g Co., 137 Wash. App. 470, 476, 154 P.3d 230 (2007). See also WASH. CONST. art. I, § 10 ("Justice in all cases shall be administered openly, and without unnecessary delay.").

¶ 14 The fair report privilege protects the reporting of official proceedings if (1) the report is attributable to an official proceeding and (2) the report is an accurate or a fair abridgement. Clapp, 137 Wash. App. at 477, 154 P.3d 230. See also Herron, 108 Wash.2d at 179, 736 P.2d 249 ; Mark, 96 Wash.2d at 487, 635 P.2d 1081 ; Alpine, 114 Wash. App. at 383, 57 P.3d 1178 ; (all quoting RESTATEMENT (SECOND) OF TORTS § 611 ).

2. Application to SKW’s Webpages

¶ 15 McNamara contends first that SKW cannot invoke the fair report privilege because it only applies to members of the news media. We disagree.

¶ 16 Washington courts have not expressly decided whether the fair report privilege is applicable to parties other than traditional news media. However, as we discuss above, Washington has long recognized a strong public interest in having access to public proceedings, including a constitutional mandate for the open administration of justice. As such, neither the type of media nor entity republishing reports of official public proceedings is relevant to determining whether the fair report privilege applies. We hold that the fair report privilege applies to news media and other types of media, including websites,...