SMITH v. DURDEN

• Decision Date: 23 August 2010
• Docket Number: Certiorari Granted,No. 28,896.,Oct. 18,2010,594.,No. 32,28,32
• Citation: 241 P.3d 1119,2010 NMCA 097,148 N.M. 679
• Parties: Walter F. SMITH, III, Plaintiff-Appellant, v. Will DURDEN, Denise Durden, William A. DeVries, and Marion DeVries, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

148 N.M. 679

241 P.3d 1119

2010 NMCA 097

Walter F. SMITH, III, Plaintiff-Appellant,

v.Will DURDEN, Denise Durden, William A. DeVries, and Marion DeVries, Defendants-Appellees.

No. 28,896.

Court of Appeals of New Mexico.

Aug. 23, 2010.

Certiorari Granted, Oct. 18, 2010, No. 32,594.

Law Offices of Daymon B. Ely, Daymon B. Ely, William G. Gilstrap, P.C., William G. Gilstrap, Albuquerque, NM, for Appellants.

Butt, Thornton & Baehr, P.C., Jane A. Laflin, Emily A. Franke, Albuquerque, NM, for Appellees.

OPINION

GARCIA, Judge.

{1} The issue in this case is whether evidence of humiliation and mental anguish is sufficient to establish actual injury for liability purposes in a defamation action. Plaintiff, Rev. Walter F. Smith, III, appeals from the district court's order granting summary judgment in favor of Defendants regarding his claim for defamation. We reverse.

BACKGROUND

{2} This defamation action stems from the soured relationship between Plaintiff, who was the reverend at St. Francis Episcopal Church in Rio Rancho, New Mexico, and Defendants, two of whom were members of the church's vestry. A few members of the vestry had concerns about Plaintiff's ability to lead the church, and they met with the Standing Committee of the Diocese of the Rio Grande. As part of its evidence against Plaintiff, the vestry presented the committee with a packet of documents. The packet contained an anonymous letter stating that Plaintiff had engaged in inappropriate acts with minor members of the congregation. Defendants later published the packet of documents to an unknown number of members of the congregation, and Plaintiff's claims stem from this later publication of the anonymous letter.

{3} Defendants moved for summary judgment on Plaintiff's claim for defamation. The district court granted Defendants' motion for summary judgment. This appeal followed.

DISCUSSION Standard of Review

[1] [2] {4} We apply a de novo standard of review when reviewing summary judgment decisions. Fikes v. Furst, 2003-NMSC-033, ¶ 11, 134 N.M. 602, 81 P.3d 545. Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA. The moving party has the burden to demonstrate that summary judgment is appropriate. See Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 231, 836 P.2d 1249, 1252 (Ct.App.1992). Once the moving party “makes a prima facie case that summary judgment should be granted, the burden shifts to the opponent to show at least a reasonable doubt, rather than a slight doubt, as to the existence of a genuine issue of fact.” Fikes, 2003-NMSC-033, ¶ 11, 134 N.M. 602, 81 P.3d 545 (internal quotation marks and citation omitted).

Actual Injury

[3] {5} For purposes of summary judgment, Defendants argued that Plaintiff failed to prove liability because he did not present evidence to prove actual injury to his reputation. See UJI 13-1002(B)(8) NMRA. The district court concluded that Plaintiff's evidence of mental anguish and suffering were insufficient to prove the prima facie element-actual injury to his reputation. Plaintiff argues the district court erred in concluding that Defendants met their burden of establishing a prima facie case for summary judgment. Plaintiff specifically asserts that Defendants did not put forth prima facie evidence to establish that he did not suffer actual injury based on his feelings of humiliation and anxiety. We agree.

{6} This case requires us to clarify the standard in New Mexico for establishing the prima facie element of actual injury in defamation cases involving private plaintiffs and private matters. Defamation law dramatically changed for private plaintiffs after the United States Supreme Court case Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Prior to Gertz, common law defamation allowed for recovery of compensation without presenting evidence of any loss because injury was presumed based on the fact of publication. Id. at 349, 94 S.Ct. 2997; see Reed v. Melnick, 81 N.M. 608, 612, 471 P.2d 178, 182 (1970) (discussing the four categories of slander per se and abolishing, with an exception, “the requirement of proof of actual damage in a latent libel action”), overruled by Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982). In response to this perceived unfairness and in an effort to balance constitutional concerns, Gertz explained it was “necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury.” 418 U.S. at 349, 94 S.Ct. 2997. The Court went on to explain that evidence of actual injury was not limited to out-of-pocket loss but could include “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Id. at 350, 94 S.Ct. 2997. As a result of the holding in Gertz, “liability is [now] limited to recovery of actual damages” in defamation actions. Marchiondo, 98 N.M. at 402, 649 P.2d at 470 (emphasizing that there needs to be evidence of an actual injury, but no evidence of an actual dollar value for the injury is required); see Poorbaugh v. Mullen, 99 N.M. 11, 20, 653 P.2d 511, 520 (Ct.App.1982) (“ Gertz requires proof of actual damages.”).

{7} After Gertz, a split developed between the jurisdictions regarding the proof of injury needed to establish liability. Some jurisdictions determined that “proof of injury to reputation is a prerequisite to recovery, apparently feeling that injury to reputation is, as one court put it, ‘the essence and gravamen’ of the action” of defamation. Earl L. Kellett, Annotation, Proof of Injury to Reputation as Prerequisite to Recovery of Damages in Defamation Action-Post-Gertz Cases, 36 A.L.R.4th 807, 811 at § 2[b] (1985). However, other jurisdictions “reached the conclusion that injury to reputation need not be shown in defamation actions, usually holding that plaintiffs in such actions may base damage claims on [personal] humiliation and mental anguish and suffering.” Id. In response to this split in interpretations of Gertz, the United States Supreme Court clarified in Time, Inc. v. Firestone, 424 U.S. 448, 460, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), that a plaintiff could recover in a defamation action for injuries even without an injury to reputation.

{8} In Marchiondo, 98 N.M. at 402, 649 P.2d at 470, New Mexico adopted the Gertz requirement of proof of damages and its explanation of actual injuries. Marchiondo did not limit proof of actual injury to evidence regarding one's reputation. Id. (explaining that proof of actual injury included evidence of damage to reputation and standing in the community along with evidence of personal humiliation and mental anguish and suffering); see Newberry v. Allied Stores, Inc., 108 N.M. 424, 430, 773 P.2d 1231, 1237 (1989) (stating that the “plaintiff had the burden of proving one or more of the following injuries: harm to [the] plaintiff's good name and character among friends, neighbors and acquaintances; harm to [the] plaintiff's good standing in the community; personal humiliation; and mental anguish and suffering”). Subsequent to Gertz and Marchiondo, the general elements of defamation in New Mexico became “a defamatory communication, published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff.” Newberry, 108 N.M. at 429, 773 P.2d at 1236; see Cory v. Allstate Ins., 583 F.3d 1240, 1243 (10th Cir.2009) (applying the elements of defamation set forth in Newberry ).

{9} Although New Mexico cases did not require that actual injury to a plaintiff's reputation be demonstrated to prove actual injury, see Newberry, 108 N.M. at 429, 773 P.2d at 1236, the “injury to the plaintiff's reputation” language was incorporated into our Uniform Jury Instructions on defamation in 1986. UJI 13-1002(B)(8) (1986 Recomp.). UJI 13-1002 lists the elements in a defamation claim and states that one of the elements is that the defamatory “communication caused actual injury to the plaintiff's reputation ” in order to prove liability. (Emphasis added.) Thus, according to UJI 13-1002(B)(8), an injury specific to the plaintiff's reputation appears to be a required element to establish liability. The jury instructions, however, were intended to comply with the holdings in Gertz, Marchiondo, and Poorbaugh. UJI 13-1002 comm. cmt. (“The current instructions comply with the clear import of the language in Marchiondo.”); UJI 13-1002 use note. According to the UJI 13-1002 use note for Section (B)(8), the drafters relied on Poorbaugh, 99 N.M. at 20, 653 P.2d at 520, and added the element of actual injury because “New Mexico no longer allow[ed] presumed damages in defamation actions.” See Marchiondo, 98 N.M. at 402, 649 P.2d at 470 (noting that “[t]he standard of strict liability no longer applies”). Poorbaugh, a case decided by this Court only months after Marchiondo, applied the holding in Marchiondo and stated that damages had to be proved to establish liability and that damages could be proved with evidence of humiliation and mental anguish. Poorbaugh, 99 N.M. at 19-20, 653 P.2d at 519-20.

{10} Neither Marchiondo nor Poorbaugh limited actual injury to harm a person's reputation. The qualifying language “to the plaintiff's reputation” added in 1986 to UJI 13-1002(B)(8) did not have any basis that was founded upon the common law tort of defamation that existed in New Mexico when the instructions in question were adopted. See Marchiondo, 98 N.M. at 402, 649 P.2d at 470 (noting that “as to the law of defamation ... [t]he ordinary common law negligence standard of proof shall apply to private defamation plaintiffs to establish liability, and liability is limited to recovery of actual damages”); Poorbaugh, 99 N.M. at 19-20, 653 P.2d at 519-20; see also Reed, 81...