Mohr v. Grant

• Citation: 117 Wn. App. 75,117 Wash. App. 75,68 P.3d 1159
• Decision Date: 20 May 2003
• Docket Number: No. 21033-2-III.,21033-2-III.
• Court: Washington Court of Appeals
• Parties: Eliot B. MOHR, individually; Mohr & Company, Inc., d/b/a Kitchen Interior Showcase, Appellants, v. Tom GRANT and "Jane Doe" Grant, husband and wife, individually, and the marital community composed thereof; and Spokane Television, Inc., a Washington corporation d/b/a KXLY-TV, Respondents.

68 P.3d 1159

117 Wn. App. 75

117 Wash. App. 75

Eliot B. MOHR, individually; Mohr & Company, Inc., d/b/a Kitchen Interior Showcase, Appellants, v. Tom GRANT and "Jane Doe" Grant, husband and wife, individually, and the marital community composed thereof; and Spokane Television, Inc., a Washington corporation d/b/a KXLY-TV, Respondents.

No. 21033-2-III.

Court of Appeals of Washington, Division 3, Panel Eight.

May 20, 2003.

Ryan M. Beaudoin, Witherspoon, Kelley, Davenport & Toole PS, Spokane, WA, for Appellants.

Laurel H. Siddoway, Spokane, WA, for Respondents.

SWEENEY, J.

This is a defamation case. KXLY-TV broadcast a series of news stories about the criminal prosecution of a mentally disabled man. Eliot Mohr and Mohr & Company, Inc., doing business as Kitchen Interior Showcase (hereafter Mr. Mohr) alleged that the broadcasts damaged his business and reputation. The question before us is whether Mr. Mohr established a prima facie defamation case sufficient to defeat a motion for summary judgment. We conclude that he made a sufficient showing of defamatory falsehood, negligence, and damages. And so we reverse the order dismissing his suit.

FACTS

KXLY-TV reporter Tom Grant was at the county courthouse working on a story when he was told about the ongoing criminal prosecution of a developmentally disabled man. The defendant was Glen Burson. Mr. Burson is 40 years old and afflicted with Down's syndrome. He has the mental capacity of a five-year-old and, Mr. Grant was told, did not seem to understand the proceedings.

Mr. Grant obtained the court file and copied two police reports and an incident history. These showed that Eliot and Louise Mohr had requested police assistance with Mr. Burson several times over the previous year. First, they called the police and reported disorderly conduct by Mr. Burson at their place of business, Kitchen Interior Showcase. Police responded. Police again responded to a subsequent second degree criminal trespass complaint. Neither contact resulted in charges against Mr. Burson. But the officers told him he was trespassing and would be arrested if he came back.

The final police incident report was for April 30, 1998. According to that report, when Mr. Burson refused to leave the store Mr. Mohr physically escorted him from the premises. Mr. Burson then threatened the Mohrs, making slashing motions across his throat and saying he would shoot them. The Mohrs called the police out of concern for their safety. Mr. Burson was arrested and charged with trespassing and harassment.

Mr. Grant interviewed Mr. Burson and members of the Burson family. He interviewed public defender, Bill Norton, and Sandie Shepard, an advocate with Arc of Spokane (a service and support organization for people with disabilities). Mr. Grant contacted the prosecutor's office, but it declined to comment. Mr. Mohr did not respond to a request for an interview.

Mr. Grant found no record of any criminal history in Mr. Burson's court files and was told that Mr. Burson had no history of threatening or committing violence. Paula Clark, Mr. Burson's sister, told Mr. Grant that the prosecution had frequently been delayed, causing Mr. Burson considerable anguish, and even weight loss. She said that a 14-day hospitalization for a competency evaluation might be required, which was causing great consternation as Mr. Burson had never before been separated from his mother. The family confirmed that Mr. Burson did not understand what was happening to him.

In the broadcast, Mr. Burson described the incident that culminated in his arrest. He acted out being grabbed by the arm. He said Mr. Mohr hit him and told him to "go away." The tape also showed Homer Burson, Mr. Burson's brother, and defense attorney, Gloria Porter, both of whom portrayed Mr. Burson as gentle and childlike. Another neighborhood business owner for whom Mr. Burson had done odd jobs said that Mr. Burson was harmless "if you deal with him correctly" and do not "antagonize" or "confront" him. Clerk's Papers (CP) at 123.

The story aired as a series on November 16, 17, and 18, and again on December 31, 1998. The Mohrs were not mentioned by name. But in each segment of the series the storefront of Kitchen Interior Showcase was prominently displayed. And the audio liberally repeated the name "Kitchen Interior Showcase."

After the first segment aired, Mr. Mohr called Mr. Grant and complained about the one-sided coverage. In a later segment, Mr. Mohr is shown explaining his past dealings with Mr. Burson and distancing himself from the criminal charges. He said he had not wished to press charges but was told that only the police could abandon the prosecution. Meanwhile, over 30 viewers called Kitchen Interior Showcase to register their disapproval and to announce their intention to boycott the store.

Mr. Burson was eventually found to be incompetent to face trial. And the charges against him were dismissed.

PROCEDURE

Mr. Mohr and Kitchen Interior Showcase sued Tom Grant and KXLY-TV for defamation. Mr. Mohr alleged that KXLY's statement that Mr. Burson had no criminal history created a false impression of the Mohrs, because it omitted the earlier police reports about their prior contacts with Mr. Burson, including previous threats of violence. Mr. Mohr also alleged that the telecasts falsely portrayed him as a bully who had physically assaulted Mr. Burson and callously subjected him to prosecution. Mr. Mohr alleged damage to his business and to his personal reputation, all resulting in emotional distress. KXLY moved for summary dismissal, asserting the report was true.

In addition to his own affidavit in support of his prima facie case, Mr. Mohr offered the declaration of Greta Boyer, a KXLY viewer with no relationship to the Mohrs. Incensed by the broadcast, Ms. Boyer had driven to Kitchen Interior Showcase the next morning to confront the owner. When she heard Mr. Mohr's side of the story, however, she concluded that the telecasts had created a false impression in her mind:

I was surprised to learn that the Mohrs had contacted the sheriff's department with regard to Mr. Burson's threats on two prior occasions in 1997 and 1998.... I was surprised to learn that Mr. Burson was trespassed from the business property by the sheriff's department, but that he returned on April 30, 1998, nonetheless. KXLY and Tom Grant's omission of these facts created a false impression in my mind. Had I been privy to the actual history between Glen Burson and the Mohrs I would not have been so upset with Eliot Mohr.

CP at 158.

Mr. Mohr also produced a public statement issued by the prosecuting attorney's office on November 17, the day after the first broadcast:

[The] charges stemmed from an incident on April 30th, 1998 in which Mr. Burson made threats against the lives of the business owners after refusing to leave the business as requested.

. . . .

There were three prior reports to the Sheriff's office [concerning] Mr. Burson's trespass at the business and his threats before the incident which led to the arrest of 4/30/98. In a report from Jan. 8, 1998, Mr. Burson was contacted by Deputy Lawson regarding his repeated trespassing and threats. Deputy Lawson asked Mr. Burson if he knew he wasn't supposed to go to the business. According to the officer's report, "He told me he understood. He said he understood that he could go to jail."

. . . .

It is unfortunate that this case, ... has become distorted by a news report which can only be characterized as one-sided. Had the report accurately noted the underlying facts of the charge, including the death threats involving the use of a gun, perhaps the fears of the victims and the concerns of the prosecutor's office about public safety would have been better shown. This is particularly unfortunate given that all of the facts set forth above were in the court file available to the public, and could have been accessed prior to the news report being aired which omitted them.

CP at 174-77.

As a preliminary matter, the court ruled that Mr. Mohr was a private individual, not a public figure, for defamation purposes. The court found Mr. Mohr had failed to show with convincing clarity that any statement in the report was false, and found no genuine issue of material fact as to whether the broadcasts were substantially true. The court granted KXLY's motion for summary judgment and dismissed the complaint.

DISCUSSION

Mr. Mohr contends that certain statements in the broadcasts were false. He also contends that Mr. Grant chose to omit important material facts. And the inclusion of these facts would have created an entirely different impression of him and his business in the minds of viewers. KXLY responds that each individual statement was literally true. And that the gist of its report was true when considered as a whole.

STANDARD OF REVIEW

On motion for summary judgment, the moving party has the burden of showing that there is no disputed issue of material fact. Morales v. Westinghouse Hanford Co., 73 Wash.App. 367, 869 P.2d 120 (1994). On review, we answer the same question that was before the trial court: could a reasonable jury find in favor of the nonmoving party, viewing the evidence in the light most favorable to it. "If the answer is yes, the motion for summary judgment should be denied and the question should go to the jury." Herron v. KING Broad. Co., 112 Wash.2d 762, 767-68, 776 P.2d 98 (1989).

PRIMA FACIE CASE

A defamation plaintiff must show (1) that the defendant made a false statement, (2) without privilege, (3) with the necessary degree of fault, and (4) that he thereby suffered damages. Wood v. Battle Ground Sch. Dist., 107 Wash.App. 550, 567, 27 P.3d 1208 (2001). KXLY asserts no privilege.

BURDEN OF PROOF

On a defense motion for summary judgment in a defamation case, the court must evaluate the prima facie showing by the evidentiary standard the plaintiff must meet at trial. Haueter v. Cowles Publ'g Co., 61...