Sturgeon v. Retherford Publications, Inc.

• Decision Date: 15 June 1999
• Docket Number: No. 92,209.,92,209.
• Citation: 987 P.2d 1218,1999 OK CIV APP 78
• Parties: Roy Dean STURGEON and Charlene Edith Sturgeon, Appellants, v. RETHERFORD PUBLICATIONS, INC., an Oklahoma corporation; and Bill Retherford, individually and as owner of Retherford Publications, Inc., jointly and severally, Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

987 P.2d 1218

1999 OK CIV APP 78

Roy Dean STURGEON and Charlene Edith Sturgeon, Appellants, v. RETHERFORD PUBLICATIONS, INC., an Oklahoma corporation; and Bill Retherford, individually and as owner of Retherford Publications, Inc., jointly and severally, Appellees.

No. 92,209.

Court of Civil Appeals of Oklahoma, Division No. 4.

June 15, 1999.

Brad Smith, Brad Smith, P.C., Jenks, Oklahoma, Murray L. Bristol, Bristol Law Firm, Dallas, Texas, Chadwick R. Richardson, Richardson and Ward, Tulsa, Oklahoma, For Appellants.

Jack L. Brown, James E. Weger, Thomas H. Dobbs, Marc R. Stimpert, Jones, Givens, Gotcher & Bogan, P.C., Tulsa, Oklahoma, R. James Unruh, Tulsa, Oklahoma, Michael Minnis, Michael Minnis & Associates, Oklahoma City, Oklahoma, For Appellees.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

OPINION

TAYLOR, J.

¶ 1 Plaintiffs, Roy Dean and Charlene Edith Sturgeon, appeal the trial court's grant of a motion to dismiss by Defendants, Retherford Publications, Inc. (RPI), and Bill Retherford (Retherford), for failure to state a claim for which relief may be granted. Based on our review of the record and the applicable law, we reverse and remand.

STANDARD OF REVIEW

¶ 2 The issue on review is whether Plaintiffs have pleaded a cognizable claim against a newspaper and its owner, based on alleged publication of false and defamatory statements about Plaintiffs and their involvement in a neighborhood property dispute, during the course of Defendants' campaign encouraging local authorities to take action. We conduct a de novo examination of Plaintiffs' petition to determine whether relief is possible "under any set of facts that could be proved consistent with the pleadings' allegations." Lockhart v. Loosen, 1997 OK 103, ¶ 4, 943 P.2d 1074, 1077. All allegations are presumed to be true and are construed favorably to the pleader. Wilson v. Still, 1991 OK 108, 819 P.2d 714. The motion should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief. 12 O.S. 1991 § 2012, committee comment; Brock v. Thompson, 1997 OK 127, ¶ 7, 948 P.2d 279, 284. "Under most circumstances a plaintiff's petition is only dismissible (1) for want of a cognizable legal theory of liability or (2) for insufficient facts under the advanced theory." Lockhart, 1997 OK 103 at ¶ 5, 943 P.2d at 1078(footnote omitted). A petition "must not be dismissed . . . unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." Frazier v. Bryan Memorial Hosp. Auth., 1989 OK 73, ¶ 13, 775 P.2d 281, 287. The trial court "should not ask whether the petition points to an appropriate statute or legal theory, but whether relief is possible under any set of facts that could be established consistent with the allegations." Indiana Nat'l Bank v. State ex rel. Dept. of Human Serv., 1994 OK 98, ¶ 4, 880 P.2d 371, 375-76 (emphasis added).

¶ 3 Motions to dismiss generally are looked upon with disfavor. Thus, the burden of demonstrating a petition's insufficiency is not a light one, and is on the party moving for dismissal.

BACKGROUND FACTS

¶ 4 Plaintiffs' petition alleges this dispute concerns a cul-de-sac once located on the street where Plaintiffs and Retherford live in Broken Arrow. Retherford is the owner of RPI, publisher of The Broken Arrow Ledger, a local newspaper. The cul-de-sac originally was located on Plaintiffs' property, but at some point, Plaintiffs apparently built a wall where the cul-de-sac had been. Some time later, the Ledger published an editorial, entitled "The Rape of a Neighborhood," a copy of which is attached to the petition. The editorial complains about the lack of a cul-desac on the street, the danger posed to neighborhood safety, and the City's failure to correct the situation.

¶ 5 Plaintiffs' petition lists theories of recovery entitled intentional infliction of emotional distress; negligent infliction of emotional distress (a theory later dropped); abuse of process; gross negligence; fraudulent misrepresentation; slander and libel; false light invasion of privacy; and negligent hiring, supervision and retention. The petition's allegations include the following:

Retherford, in his individual capacity and as President of RPI used improper and severe pressure on the City of Broken Arrow in order to pursue [Retherford's] personal vendetta against the Plaintiffs . . . threatened to sue the City of Broken Arrow unless it sued [Plaintiffs] . . . told other people that [Plaintiffs] were at fault for a cul-de-sac not being built in their neighborhood. . . went on an offensive attack by omitting material facts that placed [Plaintiffs] in a false light to the public . . . held neighborhood meetings wherein he misrepresented the truth regarding the property dispute between the City and the Plaintiffs [and] used these meetings in order to disparage and intentionally harm [Plaintiffs'] reputation . . . pressured the City to act in a manner to harm [Plaintiffs] and protect his small portion of land that could be affected if the lawsuit ended in [Plaintiffs'] favor. RPI . . . printed articles that tried to pressure the City to continue its lawsuit. . . place [Plaintiffs] in a false light before the community . . . reported on the lawsuit in a manner to falsely represent that the Plaintiffs were intentionally prolonging the lawsuit in order to continue the inconvenience and danger to the people in the neighborhood . . . and maintain the hostile environment created against the Plaintiffs.

Retherford intentionally misrepresented the truth regarding the lawsuit . . . based on his omission of the material fact that there never would have had to be a lawsuit if he would have agreed to give a small portion of his land, as the Plaintiffs and the other neighbor agreed to.

¶ 6 The petition further alleges that after the City lost the referenced lawsuit to establish an easement:

[Retherford], [i]nstead of accepting a jury's verdict . . . once again, refused to accept a compromise proposed by the City and the Plaintiffs . . . [and began] pressuring the City to condemn [Plaintiffs'] property and interfering in anything that could affect Retherford's ability to continue his plan to ruin [Plaintiffs] within the community. . . used undue pressure and intimidation against individuals at the City and the Broken Arrow School District to try to get them to assist him in his private effort to have the [Plaintiffs'] property destroyed and continue the reputation Retherford started that the Plaintiffs are the bad guys in the neighbor-hood regarding the property dispute.

¶ 7 The petition accused Retherford, RPI, or both, of publishing the "Rape of a Neighborhood" editorial about the dispute "in order to defame and place the Plaintiffs in a false light and invade their privacy." Though neither the City nor the school district would become involved in the dispute, the petition claims Plaintiffs nonetheless have suffered damage to their reputation, "financial loss, pain and suffering, severe mental anguish and emotional distress" as a result of Defendants' "wanton and reckless" acts.

¶ 8 The copy of the editorial attached to the petition is considered part of the petition for purposes of our analysis. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, n. 10, 958 P.2d 128, 136 n. 10. The author of the editorial criticizes the City for failing to obtain an easement to create the cul-de-sac, discusses the hazards presented to the neighborhood from the lack of a turn-around on the otherwise dead-end street, and encourages the City to bring condemnation proceedings.

¶ 9 Defendants moved to dismiss, claiming Plaintiffs had not alleged, and could not allege, any set of facts entitling them to relief. Based solely on the petition and the attached editorial, the trial court sustained the motion. Plaintiffs sought leave to amend, but the court, finding the petition's defects could not be remedied by amendment, denied their motion. Plaintiffs have appealed.

ANALYSIS

Plaintiffs' Libel and Slander Theories of Recovery

¶ 10 To impose liability for defamatory falsehoods, a plaintiff generally must plead and prove (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication. Restatement (Second) of Torts § 558 (1977). A plaintiff who is a public figure who complains of defamation must prove the further element of malice in the publication; here, however, there is no contention that Plaintiffs were public figures, and proof of malice therefore is not required. See Colbert v. World Publ. Co., 1987 OK 116, 747 P.2d 286.

¶ 11 One form of defamation, libel, is statutorily defined as an unprivileged publication, by written or printed words, of false or malicious matter that "exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation." 12 O.S.1991 § 1441. A writing is libelous per se "when the language used therein is susceptible of but one meaning, and that an opprobrious one, and the publication on its face shows that the derogatory statements, taken as a whole, refer to the plaintiff." Fite v. Oklahoma Pub. Co., 146 Okla. 150, 293 P. 1073 (1930) (syllabus by the court). In contrast, a false publication "is deemed libelous per quod if the words are reasonably susceptible of both a defamatory and an innocent meaning." Brock v. Thompson, 1997 OK 127, ¶ 27, 948 P.2d 279, 292. Whether a writing is libelous per se is always a question of law for the court; libel per quod requires proof of extrinsic facts to show a defamatory meaning, and thus presents a...