West v. Morehead

• Decision Date: 12 December 2011
• Docket Number: No. 4887.,4887.
• Citation: West v. Morehead, 396 S.C. 1, 720 S.E.2d 495 (S.C. App. 2011)
• Court: South Carolina Court of Appeals
• Parties: Rebecca WEST, Respondent, v. Todd MOREHEAD, Columbia City Paper, LLC, and Paul Blake, Appellants.

396 S.C. 1

720 S.E.2d 495

Rebecca WEST, Respondent,

v.Todd MOREHEAD, Columbia City Paper, LLC, and Paul Blake, Appellants.

No. 4887.

Court of Appeals of South Carolina.

Submitted June 8, 2011.Decided Sept. 7, 2011.Rehearing Denied Dec. 12, 2011.

Kirby D. Shealy, III and Evan Brook Bristow, both of Columbia, for Appellants.

S. Jahue Moore, Sr., of West Columbia, for Respondent.

FEW, C.J.

In this appeal from a jury verdict in favor of Rebecca West for actual and punitive damages on a defamation claim, we address the “fair report privilege” and whether West introduced sufficient evidence of Appellants' fault.We find the trial court properly handled the fair report privilege and properly submitted to the jury the question of whether West presented sufficient evidence of fault as to actual damages.We also find the trial court acted within its discretion in ruling on issues regarding a “clarification” published by Appellants.We therefore affirm the jury's award of actual damages.As to punitive damages, however, we find as a matter of law that the evidence was insufficient to support a finding of actual malice, and we reverse the award of punitive damages.I.Facts and Procedural History

On October 24, 2007, the Columbia City Paper published an article entitled “Adieu M'Armoire: ¹Whit–Ash Co. linked to bizarre divorce case, other prominent figures implicated.”The subject of the article was the divorce of Stella and Whit Black and a lawsuit Stella Black filed against Whit's divorce attorney, Rebecca West.In particular, the article addressed allegations Black ² made in an affidavit and motion filed in the divorce case, and in the complaint filed in the civil lawsuit, to support Black's claim that West should not be permitted to represent Whit.In the civil lawsuit against West, Black alleged causes of action for civil conspiracy, breach of fiduciary duty, fraud, negligent misrepresentation, and malpractice.Paul Blake, a reporter for City Paper, reviewed the public record of Black's civil suit against West, which included Black's affidavit and motion in the divorce case.Todd Morehead, another City Paper reporter, wrote the article based on Blake's review of the public record and interviews Blake conducted.Neither Blake nor Morehead attempted to speak with West before publishing the article.

West sued City Paper, Blake, and Morehead for defamation.West, who was mentioned by name in the article, alleged the following two statements in the article defamed her: (1)“[I]t had all the ingredients of a cheap detective novel: ... two-bit lawyers who'll even turn on their own clients if the retainer is juicy enough”; and (2)“[W]hen they think back to the tense days of the Black divorce many won't care about the corruptible attorneys or ETV property.”At trial, Morehead admitted the statements refer to West.He also admitted he chose “adjectives” to describe West that do not appear in the public documents.However, both he and Blake testified the article was based exclusively on allegations Black made in the public documents.Morehead testified the article was written in “narrative literary style” and did not reflect his or City Paper's opinion of West.

The jury found in favor of West and awarded her $10,000.00 in actual damages and $30,000.00 in punitive damages.

II.Legal Background

The law of defamation permits a plaintiff to recover “for injury to her reputation as the result of the defendant's communication to others of a false message about the plaintiff.”Holtzscheiter v. Thomson Newspapers, Inc.,332 S.C. 502, 508, 506 S.E.2d 497, 501(1998).To establish a defamation claim, a plaintiff must prove: (1) a false and defamatory statement was made; (2) the unprivileged statement was published to a third party; (3) the publisher was at fault; and (4) either the statement was actionable regardless of harm or the publication of the statement caused special harm.Erickson v. Jones St. Publishers, LLC,368 S.C. 444, 465, 629 S.E.2d 653, 664(2006);Fleming v. Rose,350 S.C. 488, 494, 567 S.E.2d 857, 860(2002).Under the law of defamation, however, certain communications give rise to qualified privileges, including the privilege to publish fair and substantially accurate reports of judicial and other governmental proceedings without incurring liability.See generallyPadgett v. Sun News,278 S.C. 26, 292 S.E.2d 30(1982)(discussing fair report privilege);Jones v. Garner,250 S.C. 479, 158 S.E.2d 909(1968)(same);see also2 Rodney A. Smolla, Law of Defamation§ 8:3 (2d ed.2010).The applicability of this “fair report privilege” and the sufficiency of proof on the fault element, both as to actual and punitive damages, are the primary issues in this appeal.We discuss each in turn.

III.The Fair Report Privilege

“Fair and impartial reports in newspapers of matters of public interest are qualifiedly privileged.”Jones,250 S.C. at 487, 158 S.E.2d at 913.Appellants contend they were entitled to a directed verdict on the basis that the fair report privilege immunized them from liability.We disagree.“Under this defense [of qualified privilege], one who publishes defamatory matter concerning another is not liable for the publication if (1) the matter is published upon an occasion that makes it [qualifiedly or] conditionally privileged, and (2) the privilege is not abused.”Swinton Creek Nursery v. Edisto Farm Credit,334 S.C. 469, 484, 514 S.E.2d 126, 134(1999)(citingRestatement (Second) of Torts§ 593(1977)).Whether the occasion is one which gives rise to a qualified privilege is a question of law.334 S.C. at 485, 514 S.E.2d at 134.Because the article relates to the content of public files on judicial proceedings, the trial court correctly ruled that the publication of the article is subject to the fair report privilege.However, “[t]he privilege extends only to a report of the contents of the public record and any matter added to the report by the publisher, which is defamatory of the person named in the public records, is not privileged.”Jones,250 S.C. at 487, 158 S.E.2d at 913.Where there is conflicting evidence,³“the question whether [a qualified] privilege has been abused is one for the jury.”Swinton Creek,334 S.C. at 485, 514 S.E.2d at 134.In this case, the evidence is subject to more than one inference as to whether the privilege was abused.In particular, there is conflicting evidence as to whether the article is a “fair and substantially true account” of allegations Black made in family and circuit courts.SeePadgett,278 S.C. at 31, 292 S.E.2d at 33(stating the “[fair report] privilege consists of making a fair and substantially true account of the particular proceeding or record”).Thus, the trial court properly submitted to the jury the question of whether Appellants' use of narrative journalism and their choice of words other than those used in court documents was an abuse of the privilege.

IV.Proof of Fault

Appellants also contend the trial court erred in not granting them a directed verdict on the element of fault, as to both actual and punitive damages.

a. Actual Damages

The trial judge charged the jury that the standard for proving fault in order to recover actual damages is common law malice.Neither party objected.A plaintiff may prove common law malice by showing “the defendant acted with ill will toward the plaintiff, or acted ... with conscious indifference of the plaintiff's rights.”Erickson,368 S.C. at 466, 629 S.E.2d at 665.Our standard of review as to the factual finding of common law malice allows us only to correct errors of law.368 S.C. at 464, 629 S.E.2d at 663–64(citingTownes Assocs., Ltd. v. City of Greenville,266 S.C. 81, 85, 221 S.E.2d 773, 775(1976)).“[A] factual finding by the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury's findings.”Id.In making this review, we must view the evidence and the inferences that can be drawn from it in the light most favorable to the prevailing party.Swinton Creek,334 S.C. at 476, 514 S.E.2d at 130;see alsoErickson,368 S.C. at 463, 629 S.E.2d at 663(“The appellate court must determine whether a verdict for a party opposing the motion would be reasonably possible under the facts as liberally construed in his favor....If the evidence is susceptible to more than one reasonable inference, the case should be submitted to the jury.”).

There is conflicting evidence in this case as to whether West met her burden of proving Appellants acted with common law malice.In particular, we find some evidence exists as to whether the use of the phrases “two-bit lawyers” and “corruptible attorneys” to characterize the allegations contained in the public record amounted to conscious indifference to West's rights, and thus to common law malice.The trial court properly submitted this question of fact to the jury.

b. Punitive Damages

Appellants contend the trial court should have granted a directed verdict on the question of punitive damages.We agree.“[I]n order to recover punitive damages from a media defendant, a private-figure plaintiff⁴ must prove by clear and convincing evidence that the defendant acted with constitutional actual malice.”Erickson,368 S.C. at 466–67, 629 S.E.2d at 665.A plaintiff may meet this burden in either of two ways: (1) by proving “the defendant published the statement with knowledge it was false,” or (2) by proving “the defendant published the statement ... with reckless disregard of whether it was false.”Id.In this case there was no evidence Appellants knew any of the statements were false.We therefore focus on whether there is sufficient evidence in the record that Appellants acted with reckless disregard of the falsity of the statements.Our supreme court has stated:

A “reckless disregard” for the truth ... requires more than a departure from reasonably prudent conduct.“There must be...