Steidley v. Cmty. Newspaper Holdings, Inc.

• Decision Date: 29 January 2016
• Docket Number: Case No. 114,207
• Citation: 383 P.3d 780,2016 OK CIV APP 63
• Parties: Janice Steidley, David Iski, and Sean McConnell, Plaintiffs/appellees, v. Community Newspaper Holdings, Inc., Newspaper Holdings, Inc., Bailey Dabney, Randy Cowling, and Salesha Wilken, Defendants/appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

383 P.3d 780

2016 OK CIV APP 63

Janice Steidley, David Iski, and Sean McConnell, Plaintiffs/appellees,

v.Community Newspaper Holdings, Inc., Newspaper Holdings, Inc., Bailey Dabney, Randy Cowling, and Salesha Wilken, Defendants/appellants.

Case No. 114,207

Court of Civil Appeals of Oklahoma, Division No. 1.

Decided: January 29, 2016

Mandate Issued: October 20, 2016

Gary L. Richardson, Charles L. Richardson, Mbilike Mwafulirwa, Tulsa, Oklahoma, for Plaintiff/Appellee, Janice Steidley,

Mark D. Antinoro, Christopher Garner, Pryor, Oklahoma, for Plaintiffs/Appellees, David Iski and Sean McConnell,

Michael Minnis, S. Douglas Dodd, DOERNER, SAUNDERS, DANIEL & ANDERSON, LLP, Tulsa, Oklahoma, for Defendants/Appellants.

Opinion by Bay Mitchell

, Judge:

¶ 1 Plaintiff/Appellee Janice Steidley, who was then serving as the District Attorney for Rogers, Mayes, and Craig counties, along with two of her Assistant District Attorneys, Plaintiffs/Appellees David Iski and Sean McConnell (collectively, “Plaintiffs”) filed suit against Defendants/Appellants, the publisher of the Claremore Daily Progress, Bailey Dabney, the owner of the newspaper, Community Newspaper Holdings, Inc. (“CNHI”), one of its reporters, Salesha Wilken, and an editorial writer, Randy Cowling (collectively, “Defendants”). Plaintiffs alleged that articles and editorials appearing in the Claremore Daily Progress, which were authored or edited by the various individual Defendants, constituted libel per se against Plaintiffs because such articles contained materially false statements, including allegations of criminal conduct, regarding Plaintiffs' actions as District Attorney and Assistant District Attorneys. Plaintiffs asked for actual damages in excess of $10,000 and further alleged that such statements were made in bad faith, with reckless disregard for the truth, and with malice such that Defendants were liable for punitive damages under both Category I and Category II as set forth in 23 O.S. § 9.1

.

¶ 2 Plaintiffs filed their original Petition March 3, 2013 followed by the filing of their First Amended Petition August 8, 2013.¹ On September 26, 2013, each of the Defendants filed separate answers in response to the First Amended Petition. Litigation between the parties continued for over one year. On December 29, 2014, some nineteen months after the filing of the original Petition and fourteen months after the filing of the First Amended Petition, Defendants filed a Motion to Dismiss pursuant to the Oklahoma Citizens Participation Act (“OCPA Motion to Dismiss”), 12 O.S. Supp. 2015 §§ 1430

–1440.² The trial court denied this motion, and Defendants appealed pursuant to 12 O.S. Supp. 2015 § 1437, which provides a specific right to appeal the denial of a motion to dismiss brought pursuant to the Oklahoma Citizens Participation Act (“OCPA” or “Act”).³

BACKGROUND

¶ 3 The OCPA requires dismissal of an action “if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to or is in response to the party's exercise of: 1. The right of free speech; 2. The right to petition; or 3. The right of association.” 12 O.S. Supp. 2015 § 1434(B)

. If the movant makes this showing, the burden shifts to the claimant to “establish[ ] by clear and specific evidence a prima facie case for each essential element of the claim in question.” Id. § 1434(C). However, even if the claimant meets this burden, the trial court must dismiss the legal action if the moving party “establishes by a preponderance of the evidence each essential element of a valid defense to the [claimant's] claim.” Id. § 1434(D). In the event the motion to dismiss is granted, the law directs that the court shall award to the movant court costs, reasonable attorney fees, other expenses, and sanctions “as the court determines sufficient to deter the party who brought the legal action from bringing similar actions....” Id. § 1438(A) (emphasis added). Conversely, if a moving party uses the special motion to dismiss in a manner that is “frivolous or solely intended to delay, the court may award court costs and reasonable attorney fees to the responding party.” Id. § 1438(B) (emphasis added).

¶ 4 The OCPA requires the special motion to dismiss to be filed within sixty (60) days of the date of service of the legal action, but “[t]he court may extend the time to file a motion ... on a showing of good cause.” Id. § 1432(B). Discovery is suspended until the court rules on the motion. Id. § 1432(C). Additionally, a hearing on a motion to dismiss filed pursuant to the OCPA must be set within sixty (60) days of the date of service of the motion, but the court may extend the deadline to ninety (90) days after the date of service if docket conditions warrant an extension or to one hundred twenty (120) days in the event the court allows limited discovery. Id. § 1433.

¶ 5 In their OCPA Motion to Dismiss, Defendants argued that Plaintiffs' claims must be dismissed because the lawsuit was filed in response to Defendants' exercise of the right of free speech and that Plaintiffs' could not meet their burden to show a prima facie case of libel per se because (1) Plaintiffs did not have a cognizable claim for libel per se ; (2) Plaintiffs could not prove that Defendants' speech accused them of indictable crimes; (3) there was no evidence of actual malice;⁴ and (4) Defendants' publications were privileged.

¶ 6 On January 20, 2015, Plaintiffs filed their Response in Opposition to Defendants' OCPA Motion to Dismiss. Plaintiffs set forth their argument, including evidentiary material, that they could establish a prima facie case of libel per se and also argued that the OCPA did not apply to this case and was otherwise unconstitutional. Specifically, Plaintiffs argued that the OCPA, which had an effective date of November 1, 2014, could not apply retroactively because it affected substantive rights and that the law violated various provisions of the Oklahoma Constitution: Okla. Const. art. 5, § 46 (prohibition on special laws); Okla. Const. art. 2, § 6 (constitutional guarantee of equal and open access to the courts); and Okla. Const. art. 2, § 19 (right to trial by jury).

¶ 7 On February 5, 2015, the trial judge presiding over the matter at that time, Hon. Linda G. Morrissey, granted Plaintiffs' request for recusal pursuant to District Court Rule 15. On February 6, 2015, the State of Oklahoma, through the Attorney General's office, filed notice with the trial court that it planned to intervene in the case and file a brief supporting the constitutionality of the OCPA in response to Plaintiffs raising the issue in their Response to Defendants' OCPA Motion to Dismiss. The Attorney General filed his brief February 9, 2015. On February 20, 2015, this matter was assigned to Hon. Daman H. Cantrell. Defendants filed their Reply in Support of their OCPA Motion to Dismiss March 2, 2015. During this time, no hearing on the OCPA Motion to Dismiss was scheduled or conducted. On March 10, 2015, the trial court entered a minute order noting that, because no hearing had been held within sixty (60) days of the date of service of the motion, there was no action for the court to take.⁵ This minute order was ultimately followed by a written order entered July 15, 2015 stating that, because no hearing had been scheduled or conducted on Defendants' OCPA Motion to Dismiss within sixty (60) days of the date of service of the motion and because docket conditions did not warrant an extension to allow for a hearing within ninety (90) days of service, the OCPA Motion to Dismiss was “deemed denied by operation of law.”⁶

¶ 8 Defendants filed their appeal to the July 15, 2015 order pursuant to 12 O.S. Supp. 2015 § 1437

, which specifically provides for an appeal from a trial court's denial of a motion to dismiss based on the OCPA. Defendants raise several issues on appeal: whether the OCPA may be applied retroactively; whether the OCPA violates the Oklahoma Constitution as argued below by Plaintiffs; and whether Plaintiffs met their evidentiary burden as set forth in the OCPA.

¶ 9 After the appeal was filed, Plaintiffs filed a motion to dismiss the appeal, or, alternatively, to limit the scope of the appeal to exclude the constitutional and evidentiary issues raised in the Petition in Error. A ruling on the motion was deferred to the decisional stage. Specifically, Plaintiffs argued that we do not have appellate jurisdiction over the matter because the OCPA requires the special motion to dismiss to be filed within sixty (60) days of the date of service of the legal action. See 12 O.S. Supp. 2015 § 1432(B)

. It is Plaintiffs' position that, because Defendants' OCPA Motion to Dismiss was not filed within that sixty (60) day window, the OCPA does not apply to the case, and, thus, Defendants have no avenue to appeal the denial of a motion to dismiss.

¶ 10 As Plaintiffs conceded in their motion to dismiss the appeal, the OCPA grants the trial court the power to “extend the time to file [a motion to dismiss pursuant to the OCPA] ... under a showing of good cause.” 12 O.S. Supp. 2015 § 1432(B)

. When Defendants filed their OCPA Motion to Dismiss, they argued “good cause” existed for the late filing due, in part, to the fact that the OCPA became effective after the commencement of the litigation. Thus, it would have been impossible for Defendants to file their OCPA Motion to Dismiss within sixty (60) days of service.⁷ Notably, Plaintiffs did not present any argument to the trial court that Defendants failed to demonstrate “good cause” to extend the sixty (60) day filing deadline. Error not raised before the trial court may not be considered for the first time on appeal. 12 O.S. § 992 ; Arkansas Louisiana Gas Co. v. Cable , 1978 OK 133, ¶ 16, 585 P.2d 1113. Accordingly, this portion of Plaintiffs' motion to dismiss the appeal is denied.⁸ As to Plaintiffs' alternative request for relief in their motion to dismiss the appeal, because we find that the OCPA...