Parker v. Evening Post Pub. Co.

• Decision Date: 01 November 1994
• Docket Number: No. 2277,2277
• Citation: 317 S.C. 236,452 S.E.2d 640
• Court: South Carolina Court of Appeals
• Parties: John R. PARKER, Appellant, v. EVENING POST PUBLISHING CO., and Jim Parker, Respondents. . Heard

Page 640

452 S.E.2d 640

317 S.C. 236

John R. PARKER, Appellant, v. EVENING POST PUBLISHING CO., and Jim Parker, Respondents.

No. 2277.

Court of Appeals of South Carolina.

Heard Nov. 1, 1994.

Decided Dec. 19, 1994.

Rehearing Denied Jan. 26, 1995.

Certiorari Denied Oct. 5, 1995.

Walter Bilbro, Charleston, and A. Camden Lewis, of Lewis, Babcock & Hawkins, Columbia, for appellant.

Jay Bender and Charles E. Baker, Columbia, and D.A. Brockington, Jr., Charleston, for respondents.

HOWELL, Chief Judge:

John Parker brought libel and invasion of privacy actions against the Evening Post and Jim Parker, one of its reporters (Defendants). The trial court granted a directed verdict to the Defendants on the privacy claim at the close of Parker's evidence , and the jury returned a defense verdict on the libel claim. Parker appeals. We affirm.

In December 1988, Parker contracted to purchase the assets of Classic Lincoln-Mercury, Inc. (Classic), an automobile dealership then doing business in Charleston under the name of Heritage Lincoln-Mercury (Heritage). At the same time, Parker contracted to become the manager of Classic pending the closing of the assets sale. Parker had formerly been an automobile dealer in Charleston from 1982-1988 and, after assuming management of Classic, he ran newspaper and radio ads announcing that he was back in the car business at Heritage.

In March 1989, Parker formed Parker Lincoln-Mercury, Inc. to operate the In June 1989, Adams submitted a pre-trial brief pursuant to Rule 16(c), SCRCP, in her action against Classic. This brief stated in pertinent part:

                dealership after the closing of the sale in May 1989.   The closing memorandum prepared in connection with the sale provided that "in lieu of [Classic's] compliance with the South Carolina Bulk Sales Act," Classic would pay all creditors when due and would indemnify Parker. 1  At the time of the sales agreement and the closing, Yulonda Adams had a lawsuit pending against Classic for fraud, conversion, and violations of the car dealer's unfair trade practices act (S.C.Code Ann. §§ 56-15-30 to -40 (1976))
                

UNUSUAL MATTERS

The only unusual matter in this case involves the identity of the Defendant. Apparently, the dealership was sold, and the name was changed to Heritage Lincoln Mercury, Inc. Subsequently, the dealership was again sold to John Parker, and it is now John Parker Lincoln-Mercury, Inc. However, the Defendant [Classic] made no attempt to comply with the Bulk Sales Act, and Heritage has filed an affidavit with the South Carolina Department of Highways and Public Transportation swearing that Classic and Heritage are one and the same dealership. Therefore, if the Defendant's [Classic's] attorney believes that his client can sit back and let Mrs. Adams obtain a judgment against Classic without risk to Heritage or John Parker, he may be mistaken.

This part of the brief would later be referred to and quoted from in the newspaper article, and it is the principal matter giving rise to the present lawsuit.

In July 1989, a jury returned a verdict for Adams against Classic, resulting in a judgment of $716,000.50 for actual damages, punitive damages, attorney's fees, and costs. On August 3, 1989, the Evening Post ran an article authored by the reporter and entitled "Car buyer awarded $700,000 in dispute." This article appeared on the first page of the Region section and continued on the third page.

The article opened: "A former Charleston car dealership has been ordered to pay nearly $700,000 to a local woman." (emphasis added). The remainder of the first page of the article cites the attorneys for both sides and Adams' pretrial brief as sources for its summary of the allegations, referring to the defendant as Classic Lincoln-Mercury, Inc. or Classic six times. The brief was the major source for the factual information in the article regarding Adams' claim against Classic, and the article repeatedly identified the brief as a source. The article also noted that, according to its attorney, Classic had appealed the case.

The article continued on page 3-B of the newspaper, identifying the same three sources of information--the two attorneys and the brief. The two paragraphs giving rise to the present lawsuit state in full:

It's unclear who is liable in this case. Classic since has been sold, first becoming Heritage Lincoln Mercury, Inc. and now John Parker Lincoln-Mercury, Inc. In the brief, Buckley [Adams' attorney] argues that if the lawyer for Classic lets Mrs. Adams obtain a judgment against Classic without risk to Heritage or John Parker, "he may be mistaken." Gowder [Classic's attorney] said since the case is on appeal, there's no reason to speculate on liability. (Emphasis added).

The article continues to report the matter, but the remainder is not in the record except for a few sentences of the paragraph following the above-quoted paragraphs. The article did not mention the Bulk Sales Act, the brief's basis for the liability of Parker's dealership.

On August 9, 1989, Adams filed an amended complaint against Parker and his dealership for recovery of her judgment against Classic from the assets bought by Parker alleging that Parker had actual notice of Adams' pending claim at the time of the assets sale and did not give her notice prior to the assets transfer, thus violating the Bulk Sales Act. Adams ultimately settled this lawsuit against Parker and his dealership for $30,000 "paid by or on behalf of" them whereby Adams, inter alia, agreed to apply the $30,000 to the judgment against Classic. Parker apparently did not personally provide any of these monies--it appears that Classic paid pursuant to the indemnification clause in the closing Memorandum acknowledging non-compliance with the Bulk Sales Act.

On appeal, Parker argues (1) the trial court improperly charged the jury on his libel claim; (2) the trial court improperly directed a verdict against his privacy claim; and (3) the trial court improperly denied his new trial motions based on the "thirteenth juror" doctrine and juror misconduct.

I.

The jury returned a verdict in favor of the Defendants on Parker's libel claim. On appeal, Parker challenges the jury charge on his libel claim, arguing that the trial court improperly placed on him the burden of proving falsity of the statements in the article. Parker contends he is a private figure and the subject matter of the article was of purely private concern, thus placing his libel claim outside the realm of constitutional defamation created by New York Times Co. v. Sullivan ² and its progeny. We disagree.

At common law, a plaintiff can recover damages for a false spoken or written statement which damages his reputation if he can show that the statement (1) had a defamatory meaning; (2) was published with actual or implied malice; (3) was false; (4) was published by the defendant; (5) concerned the plaintiff; and (6) resulted in presumed damages or in special damages to the plaintiff. F.P. Hubbard & R.L. Felix, The South Carolina Law of Torts 390-91 (1990). However, the common law presumed a defamatory statement to be false, and it was considered error to instruct the jury that the plaintiff must prove falsity. Id. at 398.

In Sullivan, however, the United States Supreme Court recognized that the First Amendment's guarantees of freedom of speech and of the press place certain limits on the right of the states to award damages in a libel action. 376 U.S. at 256, 84 S.Ct. at 713. These limitations are necessary to ensure free and unfettered discussion of matters of public concern, because "[t]he protection of the public requires not merely discussion, but information.... Whatever is added to the field of libel is taken from the field of public debate." Id. at 272, 84 S.Ct. at 722. Thus, a public official may recover damages for defamatory statements relating to his official conduct only if he proves that the statements were made with actual malice. Id. at 279-80, 84 S.Ct. at 725-26. The Sullivan rule also applies to libel actions brought by public figures. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The same First Amendment concerns likewise invalidate some of the common law defamation requirements in cases involving private figures and matters of public concern. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); see also Hubbard & Felix, supra, at 415-16. Thus, in private figure cases involving matters of public concern, the common law presumption of falsity is invalid--the plaintiff must prove the statement was false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). Therefore, as Parker conceded at oral argument, the dispositive issue here is whether the article involved a matter of public concern. If so, then Parker's claim is governed by Hepps, and the jury was properly charged. ³

The article Parker challenges discussed Classic's use of a "straw purchase" in the sale of a car to Adams, and Classic's subsequent repossession of the car. The article focused primarily on Classic and its actions, and clearly attributed the actions giving rise to the Adams lawsuit to Classic. While lawsuits and other items of public record are generally of concern to the public, the Adams lawsuit was of particular importance to the public in that it involved allegations of fraud and unfair trade practices. Given the nature of Classic's conduct, the public certainly had a valid interest in the Adams lawsuit. The article informed the public of the pitfalls of some consumer credit transactions, and served to warn the public about certain unfair credit practices. That the new owner of the dealership, for whatever reason, might bear some responsibility for the damages awarded in the lawsuit is likewise of public interest. The public has a legitimate interest in being informed of potential methods for...