Vigil v. Taintor

• Decision Date: 11 December 2019
• Docket Number: No. A-1-CA-36634,A-1-CA-36634
• Citation: 472 P.3d 1220
• Parties: Veronica VIGIL, Plaintiff-Appellant, v. Anne TAINTOR and Anne Taintor, Inc., Defendants-Appellees, and Doodlet's Ltd. ; Jane Doe; Talin Enterprises ; La Montanita Food Coop; Cost Plus, Inc.; and Now We're Cooking, Defendants.
• Court: Court of Appeals of New Mexico

472 P.3d 1220

Veronica VIGIL, Plaintiff-Appellant,

v. Anne TAINTOR and Anne Taintor, Inc., Defendants-Appellees,andDoodlet's Ltd. ; Jane Doe; Talin Enterprises ; La Montanita Food Coop; Cost Plus, Inc.; and Now We're Cooking, Defendants.

No. A-1-CA-36634

Court of Appeals of New Mexico.

Filing Date: December 11, 2019

Certiorari Denied, May 11, 2020, No. S-1-SC-38158

Western Agriculture, Resource and Business Advocates, LLP, A. Blair Dunn, Dori E. Richards, Albuquerque, NM, for Appellant

Allen, Shepherd, Lewis & Syra, P.A., Christopher P. Winters, Courtney A. Schumacher, Albuquerque, NM, for Appellees

MEDINA, Judge.

{1} Plaintiff Veronica Vigil appeals the district court's decision granting summary judgment in favor of Defendants Anne Taintor and Anne Taintor, Inc. (collectively, Defendants) with respect to Plaintiff's claims for defamation, false light, and appropriation, as well as her claim under the Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967, as amended through 2019). We hold that the district court properly granted summary judgment.

BACKGROUND

{2} Sometime in 2010, Anne Taintor, Inc., a corporation owned by Taintor, began manufacturing and selling several products—including magnets, flasks, and cards—bearing Plaintiff's image with the caption "I'm going to be the most popular girl in rehab!" Defendants did not have Plaintiff's permission to use her image, and this went unnoticed by Plaintiff until 2013, when her daughter purchased a flask bearing Plaintiff's image and gave it to Plaintiff. Plaintiff filed the instant action on November 18, 2014.

{3} After extensive discovery, Defendants moved for summary judgment on Plaintiff's defamation, false light, and appropriation claims, arguing that the statute of limitations had expired by operation of New Mexico's single publication rule. See NMSA 1978, § 41-7-1 (1955). Additionally, Defendants argued summary judgment was proper on Plaintiff's UPA claim based on the unauthorized use of her image because Plaintiff never purchased any products that Defendants sold, and therefore, did not have standing. In response, Plaintiff argued that the single publication rule was not applicable to her claims, and if it was, Defendants triggered a new statute of limitations period under the republication exception to the single publication rule by manufacturing and selling additional products containing Plaintiff's image. Plaintiff also argued that she had standing to bring the UPA claim, despite not purchasing anything, because "[s]he is within the chain of purchasing relationship sufficient to bring a UPA claim." After holding a hearing, the district court granted summary judgment in favor of Defendants. In its order granting summary judgment, the district court held that the single publication rule was applicable to Plaintiff's claims and further held that the republication exception did not apply. The district court also held that Defendants established a prima facie case for summary judgment on Plaintiff's UPA claim, which Plaintiff failed to rebut. This appeal followed.

DISCUSSION

Standard of Review

{4} An appeal from the grant of a motion for summary judgment presents a question of law, which we review de novo. Montgomery v. Lomos Altos, Inc. , 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971. "Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Waterfall Cmty. Water Users Ass'n v. N.M. State Eng'r , 2009-NMCA-101, ¶ 11, 147 N.M. 20, 216 P.3d 270 (internal quotation marks and citation omitted). When the moving party makes a prima facie showing that summary judgment is proper, "the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Romero v. Philip Morris Inc. , 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). This burden cannot be met with allegations or speculation, but only with admissible evidence demonstrating a genuine fact issue requiring trial. Rule 1-056(E) NMRA. Claimed disputed facts "cannot serve as a basis for denying summary judgment" if the evidence adduced is insufficient to support "reasonable inferences." Romero , 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280. Reasonable inferences are not supposition or conjecture; they are logical deductions from proven facts. Id. In our review, "[w]e resolve all reasonable inferences in favor of the party opposing summary judgment, and we view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits." Madrid v. Brinker Rest. Corp. , 2016-NMSC-003, ¶ 16, 363 P.3d 1197 (internal quotation marks and citation omitted).

I. The District Court Properly Granted Summary Judgment on Plaintiff's Defamation/Invasion of Privacy Claims Under the Single Publication Rule

{5} Claims based on injuries to a person's reputation fall under a three-year statute of limitations.¹ See NMSA 1978, § 37-1-8 (1976). New Mexico follows the single publication rule, which provides:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.

Section 41-7-1. "Under this rule, multiple disseminations of the same content give rise to only one cause of action, and the statute of limitations runs from the point at which the original dissemination occurred." Woodhull v. Meinel , 2009-NMCA-015, ¶ 9, 145 N.M. 533, 202 P.3d 126. "The single publication rule is designed to protect the defendants and the courts from a multiplicity of suits, an almost endless tolling of the statute of limitations, and diversity in applicable substantive law." Id. ¶ 11 (alteration, internal quotation marks, and citation omitted).

{6} Defendants argue that Plaintiff's claims for defamation, false light, and appropriation are barred by the statute of limitations under the single publication rule. While Defendants do not dispute that some merchandise with Plaintiff's picture was sold within the three-year period prior to the filing of this lawsuit, Defendants argue, and the district court agreed, that the single publication rule is applicable to Plaintiff's claims, and therefore, her claims began accruing when Defendants initially offered the offending merchandise for sale to the public. Plaintiff, in turn, argues that the single publication rule does not apply to her claims, and if it does, the republication exception applies.² We hold that the district court properly applied the single publication rule to Plaintiff's claims. We further hold that Plaintiff failed to present sufficient evidence to raise a genuine issue of material fact that would warrant the application of the republication exception.

A. Scope of Review

{7} As an initial matter, we address Defendants’ contention that Plaintiff failed to preserve her arguments surrounding the applicability of the single publication rule.³ In her response to Defendants’ motion for summary judgment, Plaintiff argued that the single publication rule should not apply to her claims. However, at the hearing on the motion, she did not challenge the single publication rule's applicability, but instead argued that the republication exception to the rule should apply. In the midst of her argument, the district court sought clarification of Plaintiff's position and asked, "I think I am understanding you to say that the single-publication rule is the law of the case here, because you are definitely arguing [an] exception to that, am I correct?" Plaintiff's counsel replied, "We are arguing that [the] republication exception applies here, yes." After argument on the motion ended, the district court ruled that the single publication rule applied stating, "It is clear and certainly undisputed that the ... rule is applicable to this case." Defendants point to this exchange, claiming that Plaintiff conceded that the single publication rule was applicable at the motion hearing, and therefore waived any objection she had to its application. We disagree.

{8} "We will not review arguments that were not preserved in the district court." Vill. of Angel Fire v. Bd. of Cty. Comm'rs of Colfax Cty. , 2010-NMCA-038, ¶ 15, 148 N.M. 804, 242 P.3d 371. Nor will we consider as preserved arguments that are waived below. See, e.g. , Papatheofanis v. Allen , 2010-NMCA-036, ¶¶ 29-31, 148 N.M. 791, 242 P.3d 358 (holding that the appellant failed to preserve an argument when she withdrew her motion). "To preserve an issue for review on appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court. " Benz v. Town Ctr. Land, LLC , 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks and citation omitted); see Rule 12-321(A) NMRA. The preservation rule serves three primary purposes: "(1) to specifically alert the district court to a claim of error so that any mistake can be corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error and to show why the court should rule against that claim, and (3) to create a record sufficient to allow this Court to make an informed decision regarding the contested issue." Sandoval v. Baker Hughes Oilfield Operations, Inc. , 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791. "When these purposes are not served, the preservation requirement should not be applied in an unduly technical manner." McLelland v. United Wis. Life Ins. Co. , 1999-NMCA-055, ¶ 24, 127 N.M. 303, 980 P.2d 86 (alterations, omission, internal quotation marks, and citation omitted).

{9} While the exchange between the district court and...