Moore v. Sun Pub. Corp.
| Decision Date | 01 August 1994 |
| Docket Number | No. 14758,14758 |
| Citation | 1994 NMCA 104,118 N.M. 375,881 P.2d 735 |
| Parties | , 23 Media L. Rep. 1072 George W. MOORE, Plaintiff-Appellant, v. SUN PUBLISHING CORPORATION, Shearman Corporation, Paul E. Carter, and Maynard Woodhatch, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff George W. Moore (Moore) appeals from the district court's decision granting Defendants summary judgment on his complaint for defamation, invasion of privacy, and intentional infliction of emotional distress arising out of a notice sent by Defendant Paul E. Carter (Carter) to all Lea County attorneys on June 7, 1990, and a Publishers' Auxiliary article based on an interview with Defendant Maynard Woodhatch (Woodhatch). We understand the district court to have determined that, based on the undisputed facts, Moore was not going to be able to establish one or more of the elements of a prima facie case for defamation. This case raises issues of first impression regarding defamation by implication and the tort of invasion of privacy. We affirm the district court's decision granting Defendants summary judgment on the claim of defamation based on the June 7 notice. However, we agree with Moore that there are genuine issues of material fact regarding his claim for invasion of privacy based on the June 7 notice and his claim for defamation based on the Publishers' Auxiliary article. Therefore, Defendants Sun Publishing Corporation (Sun), Carter, and Shearman Corporation (Shearman) were not entitled to summary judgment on the invasion of privacy claim based on the June 7 notice, and Woodhatch was not entitled to summary judgment based on the Publishers' Auxiliary article. We affirm in part, reverse in part, and remand for further proceedings.
Moore was employed as publisher of the Hobbs Daily News-Sun for eighteen months. One of Moore's duties as publisher was to increase the newspaper's revenues. To that end, Moore wrote to the owners of the newspaper, Defendants Shearman and Sun, and informed them that he planned to institute a fee of $25.00 for preparation of each affidavit of publication furnished for legal notices placed in the newspaper, a service which had previously been free of charge. Moore received no comment from either Shearman or Sun regarding the proposed fee, and the newspaper's legal advertisers were notified of the fee, which was implemented on October 1, 1989.
On March 12, 1990, Shearman and Sun fired Moore. Later that month Carter, the newspaper's advertising director, sent out an announcement to those who typically placed legal advertising in the newspaper retracting the affidavit fee. On June 7, 1990, Carter sent out a second notice addressed to all Lea County attorneys.
The June 7 notice reads as follows:
A couple of months ago the News-Sun changed publishers, and when that happened, a very unpopular decision was reversed. It so happened, as you may well remember, former News-Sun employee George Moore established a $25 affidavit fee for all Legal advertisements in the News-Sun.
No sooner than this announcement was made than Lea County attorneys switched much of their Legal advertising into a competing weekly newspaper. With good fortune, enough attorneys and others complained to the owners of the News-Sun that all was not well with their Hobbs' property and the then publisher was discharged. That leaves the rest of us to pick up the pieces and to restore the News-Sun to be the No. 1 Legal newspaper in Lea County.
We encourage you to place your Legal advertising in the News-Sun. Our rates are the same as for all Legal publications in the State as set down by the Legislature. There is not an affidavit fee of any sort. We supplied you with affidavits at no charge for fifty years or more, and that is our practice today.
This letter is going to every attorney we can name. If you have already switched back to the News-Sun, let me say we certainly appreciate that consideration. Just by chance we are reaching a few who have not heard the dropping-the-affidavit-fee story, we will certainly appreciate your cooperation in taking another look at the News-Sun.
It's a somewhat sticky situation, isn't it! It was most unfortunate George made that decision, and we apologize for that action many months ago. Please join with us in making the Legal pages of the News-Sun the centerplace for legal advertising in Lea County.
Thanks for your consideration.
Sincerely,
/s
Paul E. Carter
Moore filed a complaint claiming defamation and invasion of privacy against Carter, Shearman, and Sun based on the content of the June 7 notice. On December 10, 1990, Publishers' Auxiliary, a trade publication of the National Newspaper Association, published an article regarding Moore's lawsuit; the article, which was based on an interview with Woodhatch, a Sun publisher, contained several statements about Moore. Moore amended his complaint to add a count for defamation by Woodhatch.
The district court concluded at the close of the hearing on Defendants' motion for summary judgment that neither the June 7 notice nor the Publishers' Auxiliary article were actionable. On appeal Moore claims that the district court erred in granting summary judgment on his claims for defamation and on his claim for invasion of privacy because there are genuine issues of material fact, and Defendants were not entitled to judgment as a matter of law. Moore also claims that the district court granted summary judgment prematurely because Defendants failed to comply fully with the court's order compelling discovery.
Moore argues that the district court granted summary judgment prematurely because (1) he had not yet deposed Carter and Woodhatch, and (2) he was still in the process of obtaining documents he had sought through a motion to compel production. See Sun Country Sav. Bank v. McDowell, 108 N.M. 528, 534, 775 P.2d 730, 736 (1989). Discovery issues occupied the parties until the time of the summary judgment hearing. However, Moore had sought and obtained a continuance of the hearing on Defendants' motion for summary judgment because of problems he had experienced in obtaining discovery. At the close of the January 15, 1993 hearing on the motion to compel, Moore's counsel indicated that the procedure and time frame proposed by the district court in resolution of the discovery dispute were "perfectly acceptable." The court entered an order on February 10 detailing its prior decision at the close of the hearing on each disputed item with respect to each Defendant. The record contains certificates of service for supplemental responses to Moore's request for production mailed by Sun and Carter on January 22 and by Shearman and Woodhatch on January 21. Given the procedural history revealed by the record, we do not construe the reference to discovery issues as a request for a continuance or as sufficient to preserve a claim that it was premature to grant summary judgment for lack of discovery. Thus, we conclude that this issue was not preserved. See SCRA 1986, 12-216(A) (Repl.1992).
In his docketing statement, Moore also contended that the district court erred in granting summary judgment on his claim for intentional infliction of emotional distress. That issue has not been briefed. Issues raised in the docketing statement and not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 777, 701 P.2d 374, 376 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). This issue is deemed abandoned.
As the parties note, our Supreme Court has adopted new Uniform Jury Instructions covering the law of libel and slander. See SCRA 1986, 13-1001 to -1014 (Repl.1991) (effective January 1, 1987). The parties based their arguments on the new Uniform Jury Instructions, and in ruling on the motion for summary judgment the district court relied on those instructions.
Resolution of the issues on appeal regarding the June 7 notice requires an analysis of the following requirements of defamation: (1) a false statement of fact, and (2) that the communication tended to expose Moore to contempt, to harm his reputation, or to discourage others from associating or dealing with him. See generally SCRA 13-1002 (); see also SCRA 13-1007 (defamatory communication defined).
Moore argues that the June 7 notice contains statements that are defamatory as a matter of law. Cf. Marchiondo v. New Mexico State Tribune Co., 98 N.M. 282, 287-88, 648 P.2d 321, 326-27 (Ct.App.1981) (), cert. quashed, 98 N.M. 336, 648 P.2d 794 (1982), overruled on other grounds by Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982). In the alternative, Moore argues that a jury must decide whether the notice is defamatory.
Defendants argue that the district court correctly determined they were entitled to summary judgment as a matter of law, because the notice contained no defamatory statements of fact and, in the alternative, that they have demonstrated the truth of the only statements of fact the notice included. As Moore notes, in moving for summary judgment on the claim of defamation based on the June 7 notic...
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