Han Ye Lee v. Colorado Times, Inc.

• Citation: 222 P.3d 957
• Decision Date: 29 October 2009
• Docket Number: No. 08CA2233.,08CA2233.
• Parties: HAN YE LEE, Plaintiff-Appellant, v. COLORADO TIMES, INC.; Yeunho Shin; and Kim Chang Kuen, Defendants-Appellees.
• Court: Court of Appeals of Colorado

222 P.3d 957

HAN YE LEE, Plaintiff-Appellant, v. COLORADO TIMES, INC.; Yeunho Shin; and Kim Chang Kuen, Defendants-Appellees.

No. 08CA2233.

Colorado Court of Appeals, Div. I.

October 29, 2009.

Richard C. Whaley, P.C., Richard C. Whaley, Colorado Springs, CO, for Plaintiff-Appellant.

Richard C. Cornish, Englewood, CO, for Defendants-Appellees.

Opinion by Judge TAUBMAN.

Plaintiff, Han Ye Lee, contends the trial court erred in granting partial summary judgments for defendants, Colorado Times, Inc., Yeunho Shin, and Kim Chang Kuen, dismissing her claims of defamation and extreme and outrageous conduct. We reverse both partial summary judgments and remand for further proceedings.

I. Background

This case stems from a column published in the Colorado Times, a Korean language newspaper distributed for free to the Korean community in Colorado. On Memorial Day 2001, Lee witnessed the murder of her husband during an armed robbery of their liquor store in Colorado Springs. The shooter, Robert Hood, was accompanied by another man, identified by police as Thurman Barnes. Hood pled guilty to the murder and was sentenced to life in prison. Barnes pled not guilty but was found guilty at his trial as an "accomplice to the murder." Barnes's conviction was overturned on appeal and Barnes was found not guilty in a second jury trial.

A year after Barnes's second trial, the editor of the Colorado Times, Kuen, wrote a column headlined, "The Grief of Loss of Husband, the Joy of Loss of Husband," published on November 17, 2006. The column recounted a story about the loyalty and bravery of a Korean general's wife. It then described the murder of a Korean liquor store owner in Colorado Springs during an armed robbery that had occurred three or four years previously. The column commented that the murder was a shock to the local Korean community and that many people had donated money to a campaign organized by the local liquor store association to assist the victim's family and help catch the suspects. Kuen then discussed the trials of the two men charged in the murder and opined that Barnes went free because the victim's wife did not testify at or attend his second trial.

As relevant here, the column said, "It's never understandable that the victim's family didn't show up for the trial." Kuen did not mention Lee by name and claimed he was quoting information in an article published by another newspaper, the Colorado Springs Gazette.

After Lee protested that the column was false because she was present and testified at both of Barnes's trials, the Colorado Times published a retraction in its next issue. There, Kuen apologized for the inaccuracies in the column and admitted that the quoted material had never been published by the Colorado Springs Gazette. The retraction column acknowledged that the quotes were actually rumors Kuen had heard from a local Korean man who said he saw an article in the Gazette. However, no such article had been published by the Colorado Springs Gazette. In addition, the retraction column suggested Lee had testified at Barnes's second trial but did not explicitly acknowledge that she testified. The retraction concluded, "We apologize to the victim's wife and the family for causing emotional pain by writing the bogus information."

On April 27, 2007, Lee sued the Colorado Times, its owner, Shin, and Kuen for defamation and extreme and outrageous conduct. She alleged that she suffered emotional stress and humiliation in the Korean community and her reputation was injured.

On July 16, 2008, the trial court granted defendants' motion for partial summary judgment on the defamation claim, holding that Lee's claim failed because she did not allege special damages, a requirement for proving libel per quod rather than libel per se. Because the partial summary judgment was entered two days before Lee's deadline to respond, Lee filed a motion for reconsideration, which the trial court denied.

Two months later, the trial court granted defendants' motion for partial summary judgment on Lee's outrageous conduct claim. This appeal followed.

II. Standard of Review

We review de novo a trial court's summary judgment. West Elk Ranch, L.L.C. v. United States, 65 P.3d 479 (Colo.2002); Wilson v. Prentiss, 140 P.3d 288, 290 (Colo.App.2006).

Summary judgment is appropriate when the pleadings demonstrate there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218 (Colo. 2002). A court must examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, in determining whether to grant a motion for summary judgment. C.R.C.P. 56(c); Bebo Constr. Co. v. Mattox & O'Brien, 990 P.2d 78, 83 (Colo.1999). In determining the existence of an issue of material fact, a court must view the evidence in the light most favorable to the nonmoving party. Gordon v. Boyles, 99 P.3d 75, 78 (Colo.App.2004).

A material fact is one that will affect the outcome of the case. Struble v. Am. Family Ins. Co., 172 P.3d 950, 954-55 (Colo.App. 2007). When the pleadings and affidavits show material facts are in dispute, it is error to grant summary judgment. Id. The moving party must show there is no genuine issue of material fact. Once that burden is met, the burden shifts to the nonmoving party to establish a genuine issue of material fact. Luttgen v. Fischer, 107 P.3d 1152 (Colo.App.2005).

The opposing party cannot rest on allegations in pleadings, but must set forth specific facts by affidavit or otherwise show there is a genuine issue. People in Interest of A.C., 170 P.3d 844 (Colo.App.2007); see C.R.C.P. 56(e).

III. Defamation Claim

Lee contends the trial court erred when it granted partial summary judgment on her defamation claim on the ground that she failed to allege special damages. We agree.

The elements for a cause of action for defamation are (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by publication. McIntyre v. Jones, 194 P.3d 519, 523-24 (Colo.App.2008); see Williams v. Dist. Court, 866 P.2d 908, 911 n. 4 (Colo. 1993).

A. Standard of Review Applied

Lee contends the trial court applied an incorrect standard of review in granting summary judgment on the defamation claim. We agree because the trial court treated all defendants' factual allegations as true rather than viewing the facts in the light most favorable to the nonmoving party, Lee.

The trial court concluded defendants' first motion for summary judgment raised "a matter of law which may be addressed while treating all of Defendants' factual allegations as true." Although possibly unintended, this was error.

B. Libel Per Se or Libel Per Quod Analysis

Lee contends the trial court also erred in concluding defendants' statements were defamatory per quod and granting summary judgment because Lee failed to allege special damages. We agree because the alleged libelous statements are defamatory per se and do not require Lee to plead special damages.

Libelous statements can be either defamatory per se or defamatory per quod. If a libelous statement is defamatory per se, damage is presumed and a plaintiff need not plead special damages. Gordon, 99 P.3d 75. If a statement is defamatory per quod, special damages must be alleged to sustain the claim. Id.

Statements are libelous per se if (1) the defamatory meaning is apparent from the face of the publication without the aid of extrinsic proof; and (2) the statement is specifically directed at a particular person. Lininger v. Knight, 123 Colo. 213, 221, 226 P.2d 809, 813 (1951).

Defendants do not dispute that there was defamatory meaning apparent from the face of the Colorado Times column, and so we will not address this issue.

Rather, Lee contends the trial court incorrectly relied on Lind v. O'Reilly, 636 P.2d 1319 (Colo.App.1981), to find defendants' statements libelous per quod. We agree that the trial court should have followed Gordon and applied a libel per se analysis to the Colorado Times column.

In addition to having defamatory meaning, a statement must be specifically directed at the plaintiff to constitute defamation per se. Gordon, 99 P.3d at 78-79. A division of this court, disagreeing with Lind, held in Gordon that "determination of the identity of the defamed is separate and distinct from the determination of the defamatory character of the statement," and extrinsic evidence may be used to determine identity. Id. at 80. The Gordon division also noted that "[i]f extrinsic proof is required to establish that a communication not specifically referring to the plaintiff was reasonably understood by recipients to refer to him, such evidence will be received by the court; it has no effect on whether special damages need be proved." Id. (quoting Robert D. Sack, Libel, Slander, and Related Problems 101 (1st ed.1980)).

Thus, the Gordon division's conclusion that extrinsic evidence may be admitted to identify the plaintiff when the alleged libelous statement is defamatory per se conflicts with the holding in Lind. There, a division of this court concluded that a defamatory statement cannot constitute libel per se if extrinsic evidence is required to show the statement concerns the plaintiff. 636 P.2d at 1321. Defendants rely on Lind to support their argument that if extrinsic evidence is used to prove plaintiff's identity, the libel is necessarily per quod. Lee relies on Gordon to support her argument that extrinsic evidence can be used to prove identity when the alleged defamatory statement is otherwise libelous per se. We agree with the holding and reasoning in Gordon.

In Gordon, publications about a police...