Wiggins v. Mallard

• Decision Date: 22 October 2004
• Citation: 905 So.2d 776
• Parties: John Raymond WIGGINS and John Raymond Wiggins II v. Wilson MALLARD et al.
• Court: Alabama Supreme Court

905 So.2d 776

John Raymond WIGGINS and John Raymond Wiggins II v. Wilson MALLARD et al.

1030937.

Supreme Court of Alabama.

October 22, 2004.

Rehearing Denied January 7, 2005.

Nicholas S. Hare, Jr., and Dawn Wiggins Hare of Hare & Hare, Monroeville, for appellants.

M. Kathryn Knight of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellees Wilson Mallard and City of East Brewton.

Christopher Lyle McIlwain of Hubbard, Smith, McIlwain, Brakefield & Browder, P.C., Tuscaloosa, for appellees Brewton Newspapers, Inc., d/b/a The Brewton Standard, and John Wallace.

WOODALL, Justice.

John Raymond Wiggins ("Raymond") and his son, John Raymond Wiggins II ("John"), appeal from an order denying their motion to vacate, alter, or amend a summary judgment entered against them in their defamation action against the Town of East Brewton, East Brewton Police Chief Wilson Mallard, Brewton Newspapers, Inc., d/b/a The Brewton Standard ("the Standard"), and John Wallace, the managing editor of the Standard. We reverse and remand.

This case arises out of the publication of the August 9, 2000, issue of the Standard. On that date, Raymond and John resided at their home at 2474 Bradley Road, on the outskirts of East Brewton. Raymond was personally acquainted with Wallace and Chief Mallard. Chief Mallard had known Raymond for three or four years, and Wallace became acquainted with Raymond during a 2000 political campaign in which Raymond unsuccessfully sought the office of Escambia County commissioner. More specifically, Wallace's acquaintance with Raymond grew out of Raymond's numerous visits to the office of the Standard to purchase newspaper space for his campaign advertisements and to distribute his campaign literature.

In a telephone conversation with Wallace on August 8, 2000, Chief Mallard, reading from a police report, informed Wallace that three individuals had been arrested the previous weekend for "possession of drug paraphernalia and possession of marijuana." The particulars of that conversation are sharply disputed. By all accounts, however, Chief Mallard told Wallace that one of the arrestees was an individual named "Wiggins." According to Chief Mallard, he told Wallace that the arrestee's name was Clinton Keith Wiggins. According to Wallace, Chief Mallard said that the arrestee's name was Raymond Wiggins and that his address was 2474 Bradley Road.

On the day following that conversation, an article was published on the front page of the Standard. The article stated that "Raymond Wiggins of 2724¹ Bradley Road" was one of three individuals arrested on "drug charges." It is undisputed that no one named "Raymond Wiggins" had, in fact, been arrested.

On August 9, 2000, the day the article appeared in the Standard, Raymond personally contacted both Wallace and Chief Mallard. Wallace told Raymond that he had printed the information just as Chief Mallard had given it to him, and Chief Mallard denied that he had given Wallace the information that was published in the article. That same day, in a special edition, the Standard printed a correction.

On April 13, 2001, John and Raymond filed a two-count complaint against Chief Mallard, East Brewton, Wallace, and the Standard. The count against Chief Mallard and East Brewton averred that Chief Mallard had "wrongfully conveyed to [Wallace] the name of Raymond Wiggins" as an individual who had been arrested on drug charges, which statement it alleged was "knowingly false" and made "intentionally... for the purpose of humiliating and defaming either or both of the plaintiffs." The count against Wallace and the Standard averred that Wallace and the Standard published the article "with knowledge of the falsity of the statement that Raymond Wiggins was arrested or with a reckless disregard of whether the statement was true or false." The complaint sought compensatory and punitive damages.

On August 21, 2002, Wallace and the Standard filed a motion for a summary judgment. They argued that "under Alabama law, publications regarding arrests are qualifiedly privileged." For that proposition, they cited Wilson v. Birmingham Post Co., 482 So.2d 1209 (Ala.1986). The existence of this qualified privilege, they insisted, cast upon John and Raymond "`the burden of proving defamation with actual malice.'" (Quoting Ex parte Blue Cross & Blue Shield of Alabama, 773 So.2d 475, 478 (Ala.2000).) The Wigginses responded to that motion, contending that "the defense of qualified privilege is not applicable" to Wallace and the Standard.

On December 11, 2002, Chief Mallard and East Brewton filed a motion for a summary judgment. They argued, among other things, that Chief Mallard's statement to Wallace was privileged and, consequently, that the Wigginses "have not established, and cannot establish, malice." On January 30, 2003, the Wigginses filed a response to Chief Mallard and East Brewton's motion. They argued, in pertinent part:

"The only logical conclusion of what happened, assuming that the finder of fact believes the testimony of John Wallace, is that Wilson Mallard lied to him when he identified Raymond Wiggins of Bradley Road as being one of the persons arrested on drug charges. Such a misstatement by a police office[r] creates a genuine issue of material fact as to whether the municipal police officer acted in bad faith, with malice or wilfulness. . . . Of course, Mallard knew that Raymond Wiggins had not been arrested. Therefore, he acted with knowledge of this falsity, according to John Wallace. Substantial evidence of publication with knowledge of falsity creates a triable issue as to malice."

The trial court granted the defendants' motions, stating:

"The defendants have asserted the defense of [qualified] privilege and the court finds that the complained-of communication qualifies for the privilege because it was prompted by a duty owed to the public and involved matters of public concern. The court finds that the plaintiffs are private persons [within the context of New York Times Co. v. Sullivan, 376 U.S. 254 (1964)]. Having determined that the plaintiffs are private persons and the defense of qualified privilege applies, the plaintiffs bear the burden of proving defamation with actual malice to prevail against a defense of qualified privilege. Ex parte Blue Cross and Blue Shield of Alabama, 773 So.2d 475 (Ala.2000). Even though the Brewton Standard reported that a person named Raymond Wiggins had been arrested for drug possession, the record does not contain substantial evidence that the defendants acted with actual or common law malice. Neither plaintiff knew of any evidence of previous ill will or spite, hostility, threats, other actions, or former libels or slanders committed by the defendants toward either of the plaintiffs. Also, there is no substantial evidence of malice as a result of the defendants' language or the mode and extent of publication."

(Emphasis added.)

The Wigginses moved to alter, amend, or vacate the summary judgment. That motion was denied by operation of law after it had been pending for 90 days, Rule 59.1, Ala. R. Civ. P., and they appealed.

On appeal, the Wigginses do not challenge the trial court's finding that they are neither public officials nor public persons. They also concede that Chief Mallard and East Brewton are entitled to a qualified privilege, and that, as to them, the Wigginses "bear the burden of proving defamation with actual malice." Ex parte Blue Cross, 773 So.2d at 478. As to Chief Mallard and East Brewton, they contend that the trial court erred in concluding that they failed to produce substantial evidence creating a genuine issue of material fact as to whether Chief Mallard's action constituted common-law malice.

As for Wallace and the Standard, however, the Wigginses contend that "the defense of qualified privilege is not applicable." Wigginses' brief, at 27. This is so because, they argue, the qualified privilege discussed in Wilson applies only "when the news report at issue constitutes a fair and accurate report of the official investigation." Wigginses' brief, at 27. They contend that the testimony of Chief Mallard, namely, that he gave Wallace the correct information regarding the identity of the arrestee, if believed by a jury, would establish that the publication by the Standard was not a "fair and accurate report" of the information provided by Chief Mallard. We first consider whether Wallace and the Standard are entitled to a qualified privilege as a matter of law.

I. Wallace and the Standard

The standard by which this Court reviews a summary judgment is well settled:

"Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. Once the movant shows that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. In determining the propriety of a summary judgment, this Court reviews the evidence that was before the trial court when it entered the judgment and views that evidence in a light most favorable to the nonmovant."

Childersburg Bancorporation, Inc. v. Alabama Dep't of Envtl. Mgmt., 893 So.2d 1142, 1145 (Ala.2004). "In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact." George v. Raine, 895 So.2d 258, 261 (Ala.2004).

"Statements made subject to a qualified privilege are not actionable unless the plaintiff can prove that the defendant acted with [actual] malice." Atkins Ford Sales, Inc. v. Royster, 560 So.2d 197, 200 (Ala.1990). If the plaintiff in a defamation action is a private person and the publication is not privileged, then "the plaintiff must prove by a preponderance of the evidence that the defendant was negligent in making the statement." Mead Corp. v. Hicks, 448 So.2d...