LaMon v. Butler

751 P.2d 842, 110 Wash. 2d 216

• Court: Washington Supreme Court
• Decided: March 10, 1988
• Docket: 53196-0
• Status: Published

Opinions

Durham, J.

The plaintiffs in this case sued a newspaper and one of its reporters for allegedly defamatory statements appearing in its news articles. The trial judge dismissed the plaintiffs' cause of action by summary judgment. The Court of Appeals affirmed, holding that the plaintiffs had failed to make a prima facie showing of the defendants' fault. Although our analysis differs somewhat from that of the Court of Appeals, we also affirm the trial court's decision.

On July 2, 1972, an altercation took place between Lorraine LaMon and John Peterson. Both Lorraine LaMon and her husband, Edward, were charged with assault. Edward LaMon's count was dismissed at trial, but Lorraine LaMon was convicted in the Westport Municipal Court. Lorraine LaMon appealed to the Grays Harbor County Superior Court. That appeal was dismissed by stipulation of the parties on November 10, 1972. The order of dismissal states that the superior court action was dismissed with prejudice, but it does not expressly state what effect the dismissal would have on the lower court conviction. For purposes of this opinion, however, we assume that the lower court conviction was indeed negated.

At that time, Betty Butler was responsible for reporting news in the Westport area for The Daily World, a newspaper of general circulation in Grays Harbor County. Butler learned of the superior court's dismissal of Lorraine La-Mon's appeal by calling the county clerk's office. A clerk there read the order to Butler over the telephone. Butler discussed the effect of that order with the Westport city attorney involved in Lorraine LaMon's appeal. The city attorney told her that the dismissal did not negate the municipal court conviction.

Based on her understanding of these events, Butler wrote at least five articles between 1974 and 1980 in which she mentioned Lorraine LaMon's municipal court conviction without also mentioning the superior court dismissal.¹ Those articles did not focus primarily on Lorraine LaMon's assault conviction, but instead concerned the status of related litigation. In that related litigation, the LaMons sued the Westport police chief, John Regan, for false arrest arising out of the assault incident and for a failure to provide proper police protection to the LaMons over a number of years. ² Butler's references to the assault conviction were used as background material in explaining the LaMon-Regan litigation.

The LaMons filed a complaint for defamation against Butler and The Daily World in Grays Harbor County Superior Court on September 24, 1981. The LaMons alleged that Butler's articles were defamatory by implying that Lorraine LaMon remained convicted of assault. Prior to trial, the LaMons unsuccessfully attempted to disqualify two Superior Court judges by filing affidavits of prejudice. Ultimately, Judge Kirkwood entered a summary judgment in favor of the defendants on December 22, 1983, dismissing the LaMons' cause of action. The Court of Appeals affirmed the dismissal, holding that the LaMons had failed to make a sufficient prima facie showing of the defendants' fault.³ We granted the LaMons' petition for review.

Summary Judgment

Washington case law has set out certain principles to be applied in defamation cases. A defamation plaintiff must prove the following elements: a defamatory and false statement, an unprivileged communication, fault, and damages. Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982); Sims v. KIRO, Inc., 20 Wn. App. 229, 233, 580 P.2d 642, review denied, 91 Wn.2d 1007 (1978), cert. denied, 441 U.S. 945 (1979); Restatement (Second) of Torts § 558 (1977). If the plaintiff is a public figure or public official, then the level of fault that he must show is actual malice. If, on the other hand, the plaintiff is a private figure, then he need show only negligence. Taskett v. KING Broadcasting Co., 86 Wn.2d 439, 445, 546 P.2d 81 (1976). Finally, this court has recently held that a defamation plaintiff's standard of proof depends on the status of the defendant. The standard of proof is "clear and convincing evidence" against a media defendant, and "a preponderance of the evidence" against a nonmedia defendant regarding private affairs. See Guntheroth v. Rodaway, 107 Wn.2d 170, 175-76, 727 P.2d 982 (1986); Dunlap v. Wayne, 105 Wn.2d 529, 534-35, 716 P.2d 842 (1986); Mark, at 486-87.

The parties have presented numerous arguments as to the proper application of these principles. The LaMons have argued they are private figures, while The Daily World has argued they are public figures. The LaMons challenged the media/nonmedia distinction as violating First Amendment principles. An amicus curiae brief filed on behalf of Allied Daily Newspapers has proposed that this court apply the higher standard of proof to issues of public concern and the lower standard to issues of private concern. However, because our holding does not require resolution of these questions, we decline to address them. Even if we were to agree with the LaMons' position on all these issues, they would still have the burden at summary judgment of showing by a preponderance of the evidence that Butler and The Daily World acted negligently. This they have failed to do.

When a defendant in a defamation action moves for summary judgment, the plaintiff has the burden of establishing a prima facie case on all four elements of defamation. See Guntheroth, at 175; Dunlap, at 542; Mark, at 486. The prima facie case must consist of specific, material facts, rather than conclusory statements, that would allow a jury to find that each element of defamation exists. Herron v. Tribune Pub'g Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987); Guntheroth, at 175. The nonmoving party is entitled to have the evidence viewed in a light most favorable to him and against the moving party. Herron, at 170.

The only evidence the LaMons have submitted to show the defendants' negligence is Lorraine LaMon's affidavit, in which she concludes that Butler knew that the statements were false because the order of dismissal was read to her over the telephone. Lorraine LaMon implies that Butler should be charged with knowledge of the order's contents, and we agree. However, the order of dismissal does not on its face give any indication of its effect on the municipal court conviction. The order indicates only that the superior court action is dismissed. The most that can be said is that reading the order would put one on notice to inquire further. The record shows, however, that Butler did, in fact, inquire further. She discussed the order with the city attorney involved in the case. According to Butler's deposition, the city attorney told her that the superior court dismissal did not affect Lorraine LaMon's conviction. Accordingly, Butler had no way of knowing that her statements were incorrect.

These facts do not constitute a prima facie case of negligence, even if we consider all the evidence and all the reasonable inferences from the evidence in favor of the LaMons. The LaMons are not entitled to an inference that the city attorney might have told Butler something other than what Butler now remembers. The LaMons did not present any evidentiary material to controvert Butler's version of the city attorney's statements. When a nonmoving party fails to controvert the facts supporting a summary judgment motion, those facts are accepted as true. See Washington Osteopathic Med. Ass'n v. King Cy. Med. Serv. Corp., 78 Wn.2d 577, 579, 478 P.2d 228 (1970); see also Zurita v. Virgin Islands Daily News, 578 F. Supp. 306, 309 (D.V.I. 1984); Hideout Records & Distribs. v. El Jay Dee, Inc., 601 F. Supp. 1048, 1053 (D. Del. 1984) (and cases cited therein). A reasonable trier of fact could reach but one conclusion from this evidence: the defendants did not act negligently. Accordingly, the LaMons did not present a prima facie case on the issue of fault, and summary judgment was properly entered against them.⁴

Scope of Issues on Appeal

The LaMons have argued that it would be unfair for their case on appeal to be decided on the issue of fault. They contend that they did not have notice that the summary judgment hearing would include the issue of fault, because neither the trial judge nor the defendants addressed it below. They conclude that it would be unfair for this court to decide the appeal on the fault issue when it was not argued below.

We find this argument to be without merit. First, the LaMons were furnished with notice that they had to present a prima facie case on the issue of fault in order to survive the defendants' summary judgment motion. The defendants' memorandum in support of summary judgment quoted the following language from Mark v. Seattle Times, 96 Wn.2d 473, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982):

Under our cases, a defamation plaintiff must show four essential elements: falsity, an unprivileged communication, fault, and damages. To make out a prima facie case for purposes of avoiding a summary judgment in favor of respondents, Mark would have to allege as to each element facts which would raise a genuine issue of fact for the jury.

(Citations omitted.) Mark, at 486. By reading this memorandum, the LaMons received notice that if they did not present evidence on the issue of fault, they ran the risk of summary judgment being entered against them.

Second, an appellate court can sustain the trial court's judgment upon any theory established by the pleadings and supported by the proof, even if the trial court did not consider it. Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984). The pleadings establish a defamation cause of action, an essential element of which is the defendants' fault. Therefore, dismissal for a failure to satisfy the burden of proving fault is based on a theory established by the pleadings. Furthermore, this theory is supported by proof in the record, most notably Butler's deposition, which was uncontroverted by the LaMons. We conclude that the fault issue was properly before us.

Affidavits of Prejudice

The final issue in this case concerns affidavits of prejudice. Affidavits of prejudice are the means by which litigants in this state can prevent a judge who they perceive to be biased from hearing their case. Affidavits of prejudice are governed by RCW 4.12.040 and 4.12.050, which provide in relevant part:

No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be established as hereinafter provided that said judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause.

RCW 4.12.040.

Any party to or any attorney appearing in any action or proceeding in a superior court, may establish such prejudice by motion, supported by affidavit that the judge before whom the action is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge . . .

RCW 4.12.050.

We have summarized the effect of these statutes as follows:

Under these statutes and under our decisions a party litigant is entitled, as a matter of right, to a change of judges upon the timely filing of a motion and affidavit of prejudice against a judge about to hear his cause or any substantial portion thereof on the merits. Such a motion and affidavit seasonably filed presents no question of fact or discretion. Prejudice is deemed to be established by the affidavit and the judge to whom it is directed is divested of authority to proceed further into the merits of the action.

State v. Dixon, 74 Wn.2d 700, 702, 446 P.2d 329 (1968).

However, the right to file affidavits of prejudice is not unlimited: "[N]o party or attorney shall be permitted to make more than one such application in any action or proceeding under this section and RCW 4.12.040." RCW 4.12-.050.

In this case, Lorraine LaMon filed an affidavit of prejudice against Judge Kirkwood and Edward LaMon filed an affidavit of prejudice against Judge Schumacher.⁵ The LaMons argue that because they are each parties, they each have independent rights to file affidavits of prejudice under RCW 4.12.050.

Analysis of this issue revolves around the interpretation of "party" in RCW 4.12.050. Are co-plaintiffs each parties to an action, or instead, do they together constitute one party? This is apparently an issue of first impression in this state. The term "party" is not defined in RCW 4.12.050. However, one of the definitions of "party" in Black's Law Dictionary reads as follows:

"Party" is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are persons interested but not parties.

(Italics ours.) Black's Law Dictionary 1010 (5th ed. 1979).⁶ Under this definition, the LaMons together would constitute a single party.

This same result has been reached by the Oregon Supreme Court when interpreting a statute similar to ours. The Oregon statute provided that "no party or attorney shall be permitted to make more than two applications in any action or proceeding under this act." U'Ren v. Bagley, 118 Or. 77, 85, 245 P. 1074, 46 A.L.R. 1173 (1926) (quoting section 45-3, Oregon Laws). The Oregon Supreme Court interpreted the term "party" in this statute in the following manner:

"Party" means either plaintiff or defendant, and includes all persons belonging to the particular class: 40 Cyclopedia of Law and Procedure] 146 [(1912)]. "Party" is used in a collective sense and if there be a plurality of plaintiffs, they are all only one party litigant.

U'Ren, at 85. See also 46 Am. Jur. 2d Judges § 212 (1969).

We find this holding to be persuasive. If we were to hold that each plaintiff and each defendant were entitled to file an affidavit of prejudice, then scores of judges could be disqualified in a single case. The Legislature could not have intended that result. Statutes must be interpreted so as to avoid absurd results. General Tel. Co. v. Utilities & Transp. Comm'n, 104 Wn.2d 460, 471, 706 P.2d 625 (1985). Therefore, we hold that the language of RCW 4.12.050 limits co-plaintiffs or co-defendants to the filing of a single affidavit. The LaMons were only entitled to file a single affidavit of prejudice.⁷

The trial court's decision is affirmed.

Brachtenbach, Andersen, and Callow, JJ., concur.

Dolliver, J., concurs in the result.

1 The five articles were dated August 13, 1974, September 15, 1975, September 11, 1979, September 25, 1979 and April 17, 1980. Because the first three articles were published more than 2 years before the LaMons filed their complaint, the statute of limitations bars any action on them. See RCW 4.16.100(1). The other two articles are the focus of this case.

Additionally, Butler helped to write a story that appeared in The Daily World on October 20, 1978, which stated that Lorraine LaMon's conviction was upheld on appeal. The 2-year statute of limitations prevents any action on this article as well.

2 The LaMons also named John Peterson as a defendant in that action, alleging that he executed an "erroneous and false" assault complaint against them. Peterson was later dismissed from the case on the motion of the LaMons.

3 The Court of Appeals also concluded that the LaMons had succeeded in proving other elements of defamation by clear and convincing evidence, namely, falsity, defamatory meaning, and unprivileged communication. Because we hold that there was no triable issue as to the defendants' fault, we need not address the Court of Appeals discussion of the other elements.

4 Our decision today does not violate the LaMons' constitutional right to a jury trial. Const, art. 1, § 21. We are well aware that summary judgment decisions should not involve the resolution of factual issues. Such is the province of the fact finder at trial. Yet, Washington courts have held many times that summary judgment should be granted when reasonable persons, giving all reasonable inferences to the nonmoving party, could only conclude that the moving party is entitled to judgment. In such cases, there is no genuine issue of material fact. See, e.g., Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982); Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974). When there is no genuine issue of material fact, as in the instant case, summary judgment proceedings do not infringe upon a litigant's constitutional right to a jury trial. See Nave v. Seattle, 68 Wn.2d 721, 725, 415 P.2d 93 (1966), appeal dismissed, 385 U.S. 450 (1967); Diamond Door Co. v. Lane-Stanton Lumber Co., 505 F.2d 1199, 1203 (9th Cir. 1974).

5 The record does not disclose the disposition of the affidavit filed against Judge Schumacher. Since Judge Kirkwood ultimately ruled on the case, he evidently refused to recuse himself.

6 Black's Law Dictionary also provides a less restrictive definition of "party", which reads:

A person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually. A "party" to an action is a person whose name is designated on record as plaintiff or defendant. Term, in general, means one having right to control proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from judgment.

(Citation omitted.) Black's Law Dictionary, at 1010. As we explain later in this opinion, we decline to use such an expansive definition of "party" in construing RCW 4.12.050.

7 The LaMons argue that even if they were entitled to file only one affidavit of prejudice, then Judge Kirkwood should have disqualified himself upon receiving Lorraine LaMon's affidavit of prejudice. The premise underlying this argument is that Judges Schumacher and Kirkwood should have given priority to Lorraine LaMon's affidavit of prejudice, presumably because the cause of action was more hers than Edward's. However, there was no reason for the judges to do so. Both of the LaMons were named as plaintiffs in the case; therefore, either one had the right to file the single affidavit to which they were jointly entitled. Because they each had this right, the judges had no way of knowing which affidavit was controlling. There is no evidence in the record to show that the LaMons indicated that one affidavit had priority over the other. Accordingly, we cannot conclude that Judge Kirkwood erred in hearing this case.