Mohr v. Grant

• Decision Date: 24 March 2005
• Docket Number: No. 74208-1.,74208-1.
• Citation: 153 Wash.2d 812,108 P.3d 768
• Court: Washington Supreme Court
• Parties: Eliot B. MOHR, individually; Mohr & Company, Inc. d/b/a Kitchen Interior Showcase, Respondents, 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, Petitioners.

108 P.3d 768

153 Wash.2d 812

Eliot B. MOHR, individually; Mohr & Company, Inc. d/b/a Kitchen Interior Showcase, Respondents, 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, Petitioners.

No. 74208-1.

Supreme Court of Washington, En Banc.

Argued May 13, 2004.

Decided March 24, 2005.

Laurel Hobbs Siddoway, Spokane, for Petitioners.

Ryan Marshall Beaudoin, Witherspoon Kelley Davenport & Toole PS, Spokane, for Respondents.

Bruce Edward Humble Johnson, Michele Lynn Earl-Hubbard, Alison Page Howard, Eric B. Martin, Davis Wright Tremaine LLP, Seattle, for Amicus Curiae Allied Daily Newspaper of Wash. Inc., Fisher Communications Inc., Gannett Co. Inc., Kittitas County Pub. LLC, Puget Sound Business Journal, Reporters Committee for Freedom of the Press, Skagit Valley Pub. Co., Society of Professional Journalists, The Columbian, The Daily World, The McClatchy Co., The Seattle Times, The Yakima Herald-Republic, Wash. Newspaper Publishers Ass'n, Wash. State Ass'n of Broadcasters.

FAIRHURST, J.

¶ 1 Respondents, Eliot B. Mohr and Mohr & Company, Inc., d/b/a Kitchen Interior Showcase (hereinafter Mohr or KIS), filed a defamation suit alleging that a series of newscasts aired by petitioners, KXLY-TV and reporter Tom Grant (hereinafter KXLY and Grant), were defamatory because they contained false statements and omitted material facts. The trial court granted KXLY and Grant's motion for summary judgment, holding that Mohr failed to establish falsity with convincing clarity because the newscasts did not contain false statements and the newscasts were substantially true. The Court of Appeals reversed, holding that Mohr presented sufficient evidence as to whether material omissions rendered the newscasts defamatory. We reverse and grant KXLY and Grant's motion for summary judgment.

I. FACTS

¶ 2 A lawyer informed Grant that the Spokane County Prosecutor's Office was prosecuting a developmentally disabled man who appeared incapable of understanding the proceedings against him. Grant learned that the man was Glen Burson, a 40 year old with Down's syndrome who possessed the mental capacity of a 5 year old. Grant reviewed Burson's court file and photocopied the incident history and incident reports contained therein.¹ He used on-line resources to check for pending cases involving Burson, but found none. He spoke with the defense attorney and the disability advocate working on the case. He interviewed Burson as well as his mother, brother, and sister. He contacted the prosecutor working on the case, her supervisor, and Mohr, but they all refused to discuss the case.

¶ 3 On November 16, 1998, KXLY aired an initial newscast. It opened with references to equal protection and Burson's having Down's syndrome. It then turned to the events leading to Burson's arrest and the negative effects of the prosecution on Burson:

MR. GRANT: Glen walked up to Kitchen Interiors Showcase last April. He had washed windows here before for free, but the owner complained that Glen smudged the glass and told Glen to stay away. Here's Glen's account of what happened when he returned in April.

MR. GLEN BURSON: He did my arm, okay. He did that, (indicating). Then he started to hit me. "Go away." I am not like that.

MR. GRANT: This is the account from the police report. The store owner says that Glen came in wanting candy and he refused to leave. When the store owner finally got him to go outside Glen was angry and he crossed his throat like this. That scared the owner so they called [the] police. And the police charged him with criminal trespass and harassment, charges that Glen really doesn't understand.

MR. HOMER BURSON: It kind of bewilders him. He knows that he is in trouble, he is not sure for what. But he knows he can't go back up there and he won't ever go back up there.

MR. GLEN BURSON: No, I won't go there anymore.

MR. GRANT: Yet even through Burson has no previous criminal history the courts won't let him go. At one point prosecutors wanted this boy, who has never been away from his mother, locked up for a 14 day evaluation at Eastern State Hospital. As eight months of court dragged by, the usually pudgy Glen lost more than 20 pounds, and he lost all sense of worth.

MR. GLEN BURSON: I try to help. I can't no more, (crying).

Clerk's Papers (CP) at 116-18. In the closing segments of the newscast, a former defense attorney commented on the prosecutor's office and its pursuit of cases that should not be prosecuted. Burson explained that he did not understand the role of a judge. Although the newscast did not identify Mohr by name, it identified KIS and displayed its storefront. ¶ 4 The day after the initial newscast, Mohr went to work and found three voice mail messages from KXLY viewers who were very upset about his treatment of Burson. Upon receiving approximately 30 similar calls, Mohr scheduled an interview with Grant for that afternoon. During the interview, which lasted about 30 minutes, Mohr explained that Burson had attempted to wash the KIS windows numerous times in the past year and one-half; he asked Burson to stop because he already had a window cleaner, and Burson's efforts smeared the windows; Burson made many threats of violence against Mohr and his wife; and he was very concerned for the safety of his wife, his customers, and himself. Mohr also explained that he did not have anything against Burson or people with Down's syndrome and that he tried to drop the charges against Burson.

¶ 5 KXLY aired a follow-up broadcast on November 17, 1998. It began with a description of the events leading to Burson's arrest:

MS. MISHIMA: As news 4 reported last night Glen Burson went to Kitchen Interiors Showcase in the Spokane Valley last April. Burson says he simply asked for some candy but it ended up with some pushing and shoving, leading to Burson's arrest. Burson who had the mental ability, has the mental ability of a 5 year old describes what happened.

MR. GLEN BURSON: He got my arm. Okay. He did that. Then he started to hit me. "Go away." I am not like that.

CP at 120. It then discussed Mohr's side of the story:

MS. MISHIMA: Eliot Mohr, owner of kitchen [sic] Interiors Showcase, declined to discuss the matter prior to the story but since it aired last night he has changed his mind. And he says that Glen came to the store on several occasions and threatened to "Put a bullet in his head," and he says he was afraid for his wife's safety.

MR. MOHR: All I've been trying through all of this is to please have him restrained from being on this property because I was in fear that he could come in when I am not here, and if he had access to a gun or knife or something, that he might be able to do harm to my wife or, Heaven forbid, kill her.

CP at 120-21. In the final segment of the newscast, the newscaster noted that Mohr asked the prosecutor's office whether he could drop the charges against Burson, but was told it was not possible. The newscast identified Mohr and KIS by name and displayed the KIS storefront.

¶ 6 KXLY ran a third newscast on November 18, 1998. Burson's employer commented on Burson's nonviolent nature. Mohr explained that he attempted to drop the charges against Burson. The newscast identified Mohr and KIS by name and displayed the KIS storefront.

¶ 7 KXLY ran a final newscast on December 31, 1998. The newscaster explained that the court found Burson incompetent to stand trial and dismissed all charges. The newscast did not identify Mohr or KIS by name but it displayed the KIS storefront.

II. PROCEDURAL HISTORY

¶ 8 Mohr filed a defamation claim² against KXLY and Grant, alleging that the November 16, 1998, November 17, 1998, and December 31, 1998, newscasts were defamatory because they contained false statements and omitted material facts. The complaint alleged:

Grant, while acting in the course and scope of his employment as a KXLY employee and KXLY were negligent and acted recklessly when they failed to describe as part of these telecasts the previous incidents and threats that had been made by Burson. Said negligence and reckless conduct constitute defamation, the omission of material facts and is libel by implication by KXLY and Grant regarding the reason Glen Burson was arrested.

CP at 11 (emphasis added).

¶ 9 KXLY and Grant sought summary judgment because the newscasts were substantially true, and they did not act negligently or with actual malice. Mohr responded that the sting of the newscasts was false and that KXLY and Grant acted with negligence.

¶ 10 Mohr also sought partial summary judgment that the newscasts contained false statements and Mohr is a private person. KXLY and Grant responded that the newscasts contained no false statements. In addition to his own affidavit, Mohr filed a statement by the Spokane County Prosecutor's Office³ and the declaration of Greta Boyer, a KXLY viewer.⁴

¶ 11 The trial court granted Mohr's cross motion for summary judgment in part, finding that Mohr was "neither a public nor a vortex public figure." CP at 188. It denied Mohr's motion in part, finding that KXLY and Grant did not publish false statements. However, the trial court granted KXLY and Grant's motion for summary judgment, finding that the newscasts did not contain false statements and were substantially true. Mohr appealed. Mohr v. Grant, 117 Wash.App. 75, 68 P.3d 1159 (2003).

¶ 12 The Court of Appeals affirmed that the newscasts did not contain false statements but reversed because, "Mr. Mohr presented sufficient evidence to defeat summary judgment on the issue of whether material omissions rendered the otherwise true story false and defamatory with respect to Mr. Mohr." Id. at 88, 68 P.3d 1159. We accepted discretionary review. Mohr v. Grant, noted at 150 Wash.2d 1032, 84 P.3d 1229 (2004).

III. ISSUE

¶ 13 Whether otherwise true statements created a false impression by...