LaMon v. Butler

770 P.2d 1027, 112 Wash. 2d 193

• Court: Washington Supreme Court
• Decided: March 30, 1989
• Docket: 53196-0
• Status: Published

Opinions

Durham, J.

The plaintiffs in this case brought a defamation action against a newspaper and one of its reporters. The trial court 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. We affirm.¹

On July 2, 1972, an altercation took place between Lorraine LaMon and John Peterson, a summer intern reporter for The Daily World. 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 reads as follows: "It is ordered that the above action be dismissed with prejudice. It is further ordered, adjudged and decreed that the defendants pay all costs in the matter. " A copy of this order is included as an appendix.

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 LaMon's appeal by calling the county clerk's office. A clerk read the order to Butler over the telephone. Butler's understanding of the order was that it "was not the type of dismissal that negated the judgment." Butler also discussed the effect of that order with the Westport City Attorney involved in Lorraine LaMon's appeal. According to Butler's deposition, the city attorney in large part confirmed her interpretation. Butler indicated that the city attorney told her that the dismissal in superior court "had very little to do with the [municipal court] verdict per se".

The assault incident described above provided, in part, the basis of a lawsuit filed in 1974 by the LaMons against Peterson and the Westport Chief of Police, John Regan. The LaMons alleged that Peterson executed a false complaint and that Regan falsely caused them to be arrested. They also alleged that Regan violated their civil rights by failing to provide equal police protection to them over a number of years. The LaMons later dismissed Peterson from the case. They eventually recovered a $27,500 judgment against Regan on the civil rights claim in 1978. The judgment was affirmed on appeal in 1980.

Regan was not covered by Westport's liability insurance due to a temporary lapse in the policy's coverage. At a meeting of the Westport City Council on September 24, 1979, several citizens proposed that the City help Regan post a bond and pay his legal costs. Butler attended this meeting and wrote an article about it the next day. In that article, she included as background material the fact that Lorraine LaMon had been convicted of assault in municipal court, but she did not mention the superior court dismissal or its effect on the municipal court conviction. Butler made similar statements in other articles that she wrote between 1974 and 1980 concerning this litigation.²

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. They also attempted, unsuccessfully, to disqualify the county's two Superior Court Judges by filing separate affidavits of prejudice. The trial court entered a summary judgment in favor of the defendant 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 LaMon v. Butler, 44 Wn. App. 654, 722 P.2d 1373 (1986). We granted the LaMons' petition for review.

Summary Judgment

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: falsity, an unprivileged communication, fault, and damages. See Guntheroth v. Rodaway, 107 Wn.2d 170, 175, 727 P.2d 982 (1986); Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982). 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.

It is well settled that the standard of fault in defamation cases depends on the nature of the plaintiff. If the plaintiff is a public figure or public official, he must show actual malice. If, on the other hand, the plaintiff is a private figure, he need show only negligence. Bender v. Seattle, 99 Wn.2d 582, 599, 664 P.2d 492 (1983). Not surprisingly, the LaMons characterize themselves as private figures, while The Daily World argues that they are public figures.

A second issue has been raised concerning the appropriate standard of proof by which fault must be shown. Citing Dunlap v. Wayne, 105 Wn.2d 529, 533-35, 716 P.2d 842 (1986), the Court of Appeals concluded that the LaMons had to prove their case by clear and convincing evidence because Butler and The Daily World were media defendants. LaMon, 44 Wn. App. at 657-58. The LaMons claim that providing greater protection to media defendants in this manner violates the First Amendment. They contend that they should only be required to show fault by a preponderance of the evidence. The Daily World has not expressed any position on this issue. An amicus group, the Allied Daily Newspapers, proposes that instead of focusing on a media/nonmedia distinction, this court should apply the higher standard of proof to issues of public concern and the lower standard to issues of private concern.

Resolution of this case, however, does not require us to address either of these questions. Even if the LaMons were entitled to the more lenient standards of proof and fault, 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.

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, and it can be read in two ways. It could be interpreted to mean that the entire prosecution is dismissed, thereby negating the municipal court conviction. Alternatively, the order can be interpreted to mean that only the appeal in superior court is dismissed, leaving the lower conviction intact. That the defendants were ordered to pay costs only adds to the confusion. The most that can be said is that reading the order would put one on notice to inquire further. And that is precisely what Butler did. 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.

These facts do not constitute a prima facie case of negligence, even when we draw all reasonable inferences from the evidence in favor of the LaMons. The LaMons did not present any evidentiary material at summary judgment to controvert Butler's version of her conversation with the city attorney.⁴ Thus, 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). This principle takes on added weight in the context of defamation cases, where the plaintiff has the burden of making a prima facie case.

A reasonable trier of fact in this case could reach but one conclusion from the 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.⁵

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, 486, 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.) 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.⁶ We conclude that the fault issue is 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.⁷ 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).⁸ 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 Cyc[lopedia 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.

URen, 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. of the Northwest, Inc. 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.⁹

The trial court's decision is affirmed.

Callow, C.J., and Brachtenbach, Dolliver, Andersen, and Smith, JJ., concur.

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1 This court originally issued an opinion which affirmed the lower court decisions. LaMon v. Butler, 110 Wn.2d 216, 751 P.2d 842 (1988). We granted the LaMons¹ motion for reconsideration and the case was re-argued. Today's opinion supersedes our earlier opinion, although the analysis remains largely unchanged.

2 The parties have focused their attention primarily on the September 1979 article. The other articles written in whole or part by Butler were dated July 10, 1974, August 13, 1974, September 15, 1975, October 20, 1978, September 11,1979, and April 17, 1980. Because the first five 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 April 1980 article contains the same misstatement that appeared in the September 1979 article.

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 In their motion for reconsideration to this court, the LaMons for the first time submitted an affidavit from the city attorney disputing Butler's account of their conversation. Because this was not presented to nor considered by the trial court on summary judgment, we cannot consider it now on appeal. Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 390, 715 P.2d 1133 (1986). Additionally, we deny the LaMons' motion to supplement the record with this evidence pursuant to RAP 9.11, there being no excuse for their failure to present the evidence to the trial court below. See RAP 9.11(a)(3) and the discussion below in the section entitled, "Scope of Issues on Appeal".

5 The LaMons argue that this conclusion violates their 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 factfinder 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).

6 We note also that the LaMons argued the issue of fault in their briefs, both at summary judgment and in the Court of Appeals.

7 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.

8 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.

9 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.