Starobin v. Northridge Lakes Development Co.

Decision Date07 February 1980
Docket NumberNo. 77-190,77-190
Citation94 Wis.2d 1,287 N.W.2d 747
PartiesMark STAROBIN, Appellant, v. NORTHRIDGE LAKES DEVELOPMENT COMPANY, a partnership, Wisconsin Condominium Sales, Inc., a Wisconsin Corporation, Sidney A. Kohl, Herbert Kohl, Leo Solocheck, Mike Muente, Donald Zbinden, and Larry Novak and John Doe and Jane Doe, Respondents.
CourtWisconsin Supreme Court

Gary M. Luck, Joel Rosenthal and Luck & Rosenthal, S. C., Milwaukee, for appellant.

James G. Doyle, James A. Baxter and Schellinger & Doyle, S. C., Milwaukee, for respondents; Herz, Levin, Chernof & Sumner, S. C., Milwaukee, of counsel.

ABRAHAMSON, Justice.

This appeal is from an order granting defendants' motion to dismiss four claims of a complaint for libel and slander on the ground that each of the claims failed to state a claim upon which relief can be granted. 1 There are two issues presented on appeal: are the defendants' alleged communications capable of a defamatory meaning; and is the claim for slander insufficient because there is no allegation of special damages. We conclude that the complaint states claims for libel and slander, and we reverse the order of the circuit court.

I.

Because this is an appeal from an order granting a motion to dismiss the complaint, the only facts of record are those in the complaint.

On March 3, 1977, Mark Starobin, the plaintiff, filed a complaint which denominated seven claims against the defendants; (1) conspiracy; (2) libel; (3) libel; (4) slander; (5) libel; (6) tortious breach of contract; and (7) fraudulent misrepresentation. The defendants moved to dismiss the first six claims on the grounds that each failed to state a claim upon which relief can be granted. The circuit court granted defendants' motion to dismiss and granted plaintiff leave to amend the first and sixth claims only. Plaintiff appealed to this court from that part of the order dismissing the second through fifth claims without granting plaintiff leave to amend.

The following allegations in the complaint are applicable to the claims of the complaint in issue here: Plaintiff claims to be a member of the Northridge Club because he purchased a condominium at Northridge Lakes. The defendants are the Northridge Lakes Development Company (Development Company), Wisconsin Condominium Sales, Inc., and partners and employees of the Development Company and of Wisconsin Condominium Sales, Inc.

Plaintiff, a real estate broker, alleges that on numerous occasions prior to August 1, 1976, he acted as a real estate broker for owners, purchasers and renters of condominiums at Northridge Lakes and that on August 1, 1976, he had a reasonable expectation of continuing as a real estate broker for them. He alleges that at all times material to the complaint, he used his membership in the Northridge Club to, "Inter alia, socialize, entertain and show the Clubhouse facilities to prospective purchasers and renters of condominiums at Northridge Lakes."

Plaintiff alleges that several defendants "conspired for the purpose of wilfully and maliciously injuring the plaintiff in his reputation, trade and profession, with the intent of hindering and preventing the plaintiff from competing with the defendants . . . in the sale of condominiums at Northridge Lakes." The plaintiff also alleges that several defendants "conspired for the purpose of wilfully and maliciously hindering and preventing the plaintiff from performing a lawful act, to wit: from using and enjoying the Northridge Lakes Clubhouse facilities to which . . . he was and is entitled as a member of the Northridge Club."

Plaintiff alleges that the defendants committed the following acts:

On August 1, 1976 and at times thereafter, "without proper cause, unlawfully and maliciously caused the plaintiff to be refused service at the Northridge Lakes Clubhouse bar during regular hours and in the presence of other patrons."

On August 1, 1976 and at times thereafter, unlawfully and maliciously caused the plaintiff to be removed from the Northridge Lakes Clubhouse by a security guard employed by the Development Company during the regular hours of the Clubhouse and in the presence of other patrons.

On or about August 2, 1976, a defendant employee of the Development Company falsely and maliciously stated "to City of Milwaukee Police Officers that the plaintiff was not a member of the Northridge Club, that the plaintiff was not entitled to use the Clubhouse facilities, and that he was then and there creating a disturbance at the Northridge Lakes Clubhouse."

On August 2 and 3, 1976, several defendants did, without proper cause, unlawfully and maliciously cause uniformed City of Milwaukee Police officers to confront and question the plaintiff regarding, Inter alia, his right to be present in the Clubhouse, and to remove the plaintiff from the Clubhouse during regular hours of the club and in the presence and full view of club patrons.

On or about August 3, 1976, a defendant employee of the Development Company did knowingly, falsely and maliciously speak the following defamatory words to Milwaukee Police officers, to wit: that the plaintiff was "not entitled to use the Clubhouse facilities", that he was then and there "creating a disturbance at the Northridge Lakes Clubhouse" and that the plaintiff "had on a prior occasion incited a disturbance outside of the Clubhouse", thereby meaning and intending to have the plaintiff wrongfully charged with trespass and disorderly conduct.

Additional allegations applicable to the second "claim" labeled libel, are: that on August 1, 1976, several defendants "did knowingly, falsely, and maliciously, for the purpose of bringing the plaintiff into disrepute, defame and libel the plaintiff by causing the plaintiff to be removed, without proper cause, from the Northridge Lakes Clubhouse by a security guard of the . . . (Development) Company during regular hours of the Clubhouse and in the presence and full view of other patrons, and to be prevented from reentering; thereby intending to create the impression among said patrons and others that the plaintiff was engaging in disorderly conduct and trespassing," and that the defendants "knew that the plaintiff was not trespassing, not engaging in disorderly conduct and was not committing any crime or unlawful act." In this claim and in the other two libel claims, plaintiff alleges that as a direct and proximate result of the acts, he "suffered public ridicule, embarrassment and humiliation, and suffered permanent damage to his personal and professional reputation."

Additional allegations applicable to the third "claim", labeled libel, are: that on August 2, 1976, several defendants "did knowingly, falsely, and maliciously, and without proper cause, for the purpose of bringing the plaintiff into disrepute, defame and libel the plaintiff by causing uniformed City of Milwaukee Police officers to approach the plaintiff while he was seated in the Northridge Lakes Clubhouse bar during regular hours and in the presence and full view of other patrons, and question the plaintiff in the Clubhouse bar, regarding, Inter alia, his right to be present in the Clubhouse, and remove the plaintiff from the Clubhouse bar, all without proper cause; thereby intending to create the impression among said patrons and others that the plaintiff was engaging in disorderly conduct and trespassing," and that the defendants "knew that the plaintiff was not trespassing, was not engaging in disorderly conduct and was not committing any crime or unlawful act."

Additional allegations applicable to the fourth "claim", labeled slander, are: that on or about August 3, 1976, a defendant employee of the Development Company, "knowingly, falsely, maliciously and without just cause and for the purpose of bringing the plaintiff into disrepute and subjecting the plaintiff to criminal prosecution spoke the following defamatory and slanderous words to City of Milwaukee police officers, to wit: that the plaintiff was 'not a member of the Northridge Club', that the plaintiff was 'not entitled to use the Clubhouse facilities', that he was then and there 'creating a disturbance at the Northridge Lakes Clubhouse' and that the plaintiff 'had on a prior occasion incited a disturbance outside of the Clubhouse', thereby meaning and intending to have the plaintiff wrongfully charged with the offense of trespassing and disorderly conduct", that the words set forth above "tended to blacken and injure the honor, and integrity, morality and reputation of the plaintiff and to thereby expose him to public ridicule and contempt," and that the statement made by the defendant employee was known by him and by another defendant to be false and defamatory, and that "(a)s a direct and proximate result of said unlawful act, the plaintiff suffered public ridicule, embarrassment and humiliation, and suffered permanent damage to his personal and professional reputation and has been required to expend monies to consult and retain legal counsel."

Additional allegations applicable to the fifth "claim," labeled libel, are: that on August 3, 1976, some of the defendants "did knowingly, falsely and maliciously, and without proper cause, for the purpose of bringing the plaintiff into disrepute, defame and libel the plaintiff by causing uniformed City of Milwaukee Police officers to confront the plaintiff while he was seated in the Northridge Lakes Clubhouse bar during regular hours and in the presence and full view of other patrons, confront and question the plaintiff regarding, Inter alia, his right to be present in said Clubhouse all without proper cause; for the purpose of bringing the plaintiff into disrepute," and, that the defendants "knew that the plaintiff was not trespassing, engaging in disorderly conduct and was not committing any crime or unlawful act."

The motion to dismiss for failure to state a claim, like the previously used demurrer,...

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26 cases
  • Donohoo v. Action Wisconsin Inc.
    • United States
    • Wisconsin Supreme Court
    • June 5, 2008
    ...(1992). ¶ 102 Whether a communication can reasonably be understood as defamatory, is a question of law. Starobin v. Northridge Lakes Dev. Co., 94 Wis.2d 1, 10, 287 N.W.2d 747 (1980) (citing Martin v. Outboard Marine Corp., 15 Wis.2d 452, 461, 113 N.W.2d 135 (1962)). We review questions of l......
  • Lassa v. Rongstad
    • United States
    • Wisconsin Supreme Court
    • July 13, 2006
    ...motion to dismiss, the court must determine whether a communication is "capable of a defamatory meaning." Starobin v. Northridge Lakes Dev. Co., 94 Wis.2d 1, 10, 287 N.W.2d 747 (1980). This means that if the communication cannot reasonably be understood as defamatory, then the plaintiff has......
  • Lassa v. Rongstad, 2006 WI 105 (Wis. 7/13/2006)
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    • Wisconsin Supreme Court
    • July 13, 2006
    ...motion to dismiss, the court must determine whether a communication is "capable of a defamatory meaning." Starobin v. Northridge Lakes Dev. Co., 94 Wis. 2d 1, 10, 287 N.W.2d 747 (1980). This means that if the communication cannot reasonably be understood as defamatory, then the plaintiff ha......
  • Bauer v. Murphy
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    • Wisconsin Court of Appeals
    • February 2, 1995
    ...of some damages so that the jury may, without other evidence, estimate the amount of damages." Starobin v. Northridge Lakes Dev. Co., 94 Wis.2d 1, 13, 287 N.W.2d 747, 752 (1980) (citing WILLIAM L. PROSSER, THE LAW OF TORTS § 112, at 754-56 (4th ed. In her Second Amended Complaint, Bauer bas......
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2 books & journal articles
  • Protecting Online Anonymity and Preserving Reputation Through Due Process
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 27-4, June 2011
    • Invalid date
    ...the court must determine whether a communication is 'capable of a defamatory meaning.'" (quoting Starobin v. Northridge Lakes Dev. Co., 287 N.W.2d 747 (Wisc. 1980))). 62. Cahill, 884 A.2d 451, 462-63. 63. See, e.g., America Online, 52 Va. Cir. at 37. 64. Generally, to survive a motion to di......
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    • Wisconsin Law Journal No. 2004, December 2004
    • September 29, 2004
    ...of damages."' Bauer v. Murphy, 191 Wis. 2d 517, 525-26, 530 N.W.2d 1 (Ct. App. 1995) (quoting Starobin v. Northridge Lakes Dev. Co., 94 Wis. 2d 1, 13, 287 N.W.2d 747 (1980)). That being the justification, it seems odd to permit a defamation per se claim in a case where it appears undisputed......

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