Opinion
No. 1-745 / 00-0568
Filed November 15, 2002
Appeal from the Iowa District Court for Black Hawk County, STEPHEN C. CLARKE, Judge.
Susan and Alan Brase appeal from an adverse jury verdict and judgment in their defamation action against Leon Mosley. AFFIRMED.
Larry J. Thorson of Ackley, Kopecky Kingery, L.L.P., Cedar Rapids, for appellants.
Obie Saddler, Jr., and Max E. Kirk of Ball, Kirk Holm, P.C., Waterloo, for appellee.
Heard by SACKETT, C.J., and HUITINK and EISENHAUER, JJ.
Susan and Alan Brase appeal from an adverse jury verdict and judgment in their defamation action against Leon Mosley.
I. Background Facts and Proceedings
Susan and her husband Alan Brase sued Leon Mosley for common law libel and slander based on statements Mosley made to Waterloo television and newspaper reporters concerning drug dealing in several Waterloo homes owned by the Brases. The record includes the following series of relevant events and statements.
On August 15, 1996, the Iowa Citizens for Community Improvement organized a march to protest "drug houses" in Waterloo. Mosley participated in the march and was interviewed by a local television station that covered the event. The resulting news story aired by the television station showed a picture of the Daisy Wilton House, an older home used as a bed and breakfast owned and restored by the Brases, along with the following statements:
REPORTER: More than two dozen eastern Iowans march for their neighborhoods. Black Hawk County Supervisor Leon Mosley says the owner of this house is also the landlord of three alleged drug houses in Waterloo.
MOSLEY: And we want the neighborhoods I mean the landlords to work with the neighbors to get some accountability into what's going on. All night long drug dealing, all night long boom boom.
The second of Mosley's statements followed an October 1, 1997, incident during which Susan Brase stood in front of a bulldozer to prevent the demolition of a house she and her husband recently purchased. The following day the Waterloo Courier published an article and a picture of Susan. The article included the following statements by Mosley:
"Here she is stopping a neighborhood from getting the area cleaned up," said Black Hawk County Supervisor Leon Mosley.
. . . .
"She's an impediment to progress," Mosley said. "She needs to deal with the drug dealers in her houses and go to Cherry Street and clean up that property before she can claim she's saving a house."
Because Brases claimed Mosley's statements were malicious, they sought both actual and punitive damages from Mosley. Mosley admitted making the statements but denied that they were defamatory. Mosley also raised several affirmative defenses including the substantial truth of his statements, that the statements were made concerning a public figure, the statements were limited to his opinion, and the statements were conditionally privileged.
Mosley's public figure defense was limited to statements made after August 15.
At trial Mosley moved for a directed verdict following the Brases' case in chief. Mosley argued that there was no evidence that either his August 15 or October 1 statements were false and that the evidence also indicated Mosley had a reasonable basis for making those statements. Concerning the August 15 statements, Mosley argued there was nothing in his statement identifying the Brases by name, nor did his statement indicate they were the owners of the house depicted or that it was their residence or place of business. Any depictions linking the Brases to the house depicted in the television story, Mosley argued, were solely attributable to the reporter or editor responsible for broadcasting the story.
In support of his motion for directed verdict concerning statements made to the newspaper on October 1, Mosley argued:
Concerning the October 2d 1997, Courier article, my comments here are equally applicable as to the KWWL article. Plaintiff Al Brase is not even referenced at all. There's no comment to Al Brase directly or indirectly. That was clearly established by his testimony today.
At the time of the Courier article, October 2d 1997, the record shows plaintiff Susan Brase is a candidate for political office. She's running for the city council for the city of Waterloo on the "Save the Paramount" ticket and by running for political office she injected herself concerning the matter of renovation of older homes and saving older homes that was directly related to her folly and purpose by running on a need to advance the agenda of saving older homes versus destroying them by injecting herself into such an arena as a public official. The law acknowledges that plaintiff Susan Brase invites comments on her activities, and to prevail on anything with regard to the October 2, 1997, Courier article she must prove actual malice on the part of defendant Mosley or intent, reckless intent to injure by making such statements.
The court granted Mosley's motion for directed verdict concerning the October 1 statements after determining as a matter of law that Susan Brase was a public figure and that the Brases failed to establish Mosley's actual malice in making those statements. Mosley's motion for directed verdict concerning the August 15 statements was summarily overruled.
Over Brases' objection the court submitted the following instruction to the jury concerning Mosley's August 15 statements:
Plaintiffs must prove all of the following propositions:
1. The defendant made statements.
2. The defendant communicated the statements to someone other than the plaintiffs.
3. The statements would reasonably be understood to be an expression which would expose the person to public hatred, contempt or ridicule, or deprive the person of the benefits of public confidence and social dealings, or injure the plaintiffs in the maintenance of his/her business.
If the plaintiffs have failed to prove any of these propositions, the plaintiffs are not entitled to damages. If the plaintiffs have proven all of the propositions, then the plaintiffs are entitled to damages in some amount, unless defendant has proven the defense of truth, as explained in Instruction No. 10.
The Brases objected to this instruction for the following reasons:
MR. THORSON: Plaintiff objects to Instruction No. 9. Plaintiff would urge the court to give the [Uniform Civil Jury] Instruction 2100.1 [libel/slander per se]. The plaintiff would urge that the statements made, three drug houses, would have no other meaning and would be understood as a libelous and slanderous attack per se on the plaintiffs and their character. There could be no other meaning given to those orders [sic] besides a libelous per se attack upon the plaintiff and upon their business.
The court also declined to submit the Brases' claim for punitive damages citing the absence of sufficient proof that Mosley's August 15 statements were made with actual malice.
The jury subsequently returned a general verdict for Mosley. The Brases' posttrial motions were overruled resulting in this appeal. On appeal the Brases contend the court erred by deciding as a matter of law that Susan Brase was a public figure and in directing a verdict for Mosley concerning his October 1 statements. The Brases also claim the court erroneously instructed the jury on the law by declining to submit the proposed instruction on libel/slander per se and failing to submit the punitive damage issue for the jury's consideration.
II. Directed Verdict Concerning Mosley's October 1, 1997, Statement
As noted earlier, the court's directed verdict in Mosley's favor on this count was premised on Brase's public figure status and her failure to offer sufficient proof Mosley's statements were made with actual malice. Whether Brase was a public figure at the time Mosley made the offending statement was a matter of law for the court to decide. Jones v. Palmer, Inc., 440 N.W.2d 884, 894-95 (Iowa 1995). Because this determination implicates federal constitutional law, our review on this issue is de novo. Anderson v. Low Rent Housing Comm'n of Muscatine, 304 N.W.2d 239, 246 (Iowa 1981) (citations omitted).
Generally, the law of defamation embraces the "twin torts" of libel and slander, which refer to the publication of statements that tend to injure a person's reputation and good name. Theisen v. Covenant Med. Ctr., Inc., 636 N.W.2d 74, 83 (Iowa 2001). Libel refers to written statements and slander to oral statements. Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa 1996).
Individuals who inject themselves or are drawn into a particular public controversy, and thereby become public figures for a limited range of issues are considered limited purpose public figures. Anderson, 304 N.W.2d at 245 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789, 808 (1974)). Public figures assume special prominence in the resolution of public questions, and they invite attention and comment. Id. The reputations of public figures are not entitled to the same protection as that of private parties "because public figures have access to channels of effective communication, have a reasonable opportunity to counteract false statements, and are not as vulnerable to injury as private individuals." Id. at 245-46. Therefore, a public official or figure cannot recover damages for a defamatory statement except upon proof that the statement was made with actual malice. Bitner v. Ottumwa Comty. Sch. Dist., 549 N.W.2d 295, 300 (Iowa 1996).
At the time of the newspaper article on October 2, 1997, Susan was running for city council. She testified that she wanted to raise awareness about saving old buildings. Her campaign slogan was, "Remember the Paramount," referring to an old building in Waterloo. She had previously granted an interview in which she expressed her opinions on these issues. Susan gained additional publicity by standing in front of a bulldozer in an effort to save an older home. We, like the trial court, find this evidence sufficient to establish Susan was a limited purpose public figure at the time Mosley made statements to the newspaper. Accordingly, Susan's recovery for defamation from Mosley based on these statements required proof of actual malice. Id.
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964), the United States Supreme Court defined actual malice as a statement made with knowledge that it is false or made with reckless disregard for its truth or falsity. This definition has been adopted in Iowa. See Caveman Adventures UN, Ltd. v. Press-Citizen Co., Inc., 633 N.W.2d 757, 762 (Iowa 2001). Actual malice must be established by clear and convincing evidence. Bitner, 549 N.W.2d at 300.
In Caveman Adventures, our supreme court stated:
[T]he cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.Caveman Adventures, 633 N.W.2d at 762 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968)). Under an actual malice standard, a high degree of awareness of probable falsity is required. Id. Although this definition of malice is most commonly applied to media defendants, we believe it is applicable to nonmedia defendants such as Mosley, in cases involving defamation claims made by public officials or public figures. Cf. Anderson, 304 N.W.2d at 247; Blessum v. Howard County Bd. of Supervisors, 295 N.W.2d 836, 842 (Iowa 1980) ( New York Times malice standard applies to both media and nonmedia defendants).
We concur in the district court's conclusion there was insufficient evidence to show Mosley acted with actual malice. There is evidence that Mosley believed his statements were true, and thus, his statements were not made with the knowledge they were false. Moreover, his statements were not made with a reckless disregard to whether they were true or not. He testified to the reasons he felt some of the Brases' tenants may have been drug dealers. Based on these findings, we determine the district court properly granted Mosley a directed verdict in regard to his statements about Susan Brasely made October 1, which were published in the newspaper on October 2.
Alan Brase claims the trial court's ruling on Mosley's motion for a directed verdict did not dispose of his claims based on the October 1 statements, and his claim should have been submitted to the jury. As indicated earlier, Mosley's motion expressly addressed Alan's claim based on the October 1 statements. By failing to call the trial judge's attention to his failure to rule on Alan's motion for a directed verdict or otherwise object to the court's failure to submit this issue to the jury, Alan has failed to preserve error on this issue. See Meier v. Senecaut III, 641 N.W.2d 532, 540 (Iowa 2002).
III. Jury Instructions
We review jury instructions to decide if they are a correct statement of the law and are substantially supported by the evidence. Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). Error in giving or refusing to give a particular instruction does not warrant reversal unless the error is prejudicial to the party. Sonek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994).
A. Slander Per Se
In Kerndt v. Rolling Hills National Bank, 558 N.W.2d 410 (Iowa 1997), the supreme court summarized the law controlling disposition of this issue. The court stated:
A plaintiff alleging defamation ordinarily must prove that the statements at issue were made with malice, were false, and caused damage. However, some statements are defamatory per se; that is, they are of such a nature that the court can presume as a matter of law that their publication will have a defamatory effect, even without a showing by the plaintiff of malice, falsity, or damage. In such cases, malice is presumed. Defamatory statements affecting a person in his or her business, trade, profession, or office fall into this category, as do attacks on a person's integrity and moral character.
A statement is not defamatory per se if it is susceptible to two reasonable constructions or meanings, one not defamatory. In that case, the jury must decide if the statement is defamatory. The focus of this analysis is on the meaning of the statement or how it will be understood by a reasonable person.
. . . .
If a statement can have two reasonable constructions, the jury may then reach one of three possible conclusions: (1) the statement was reasonably understood as defamatory per se; (2) the statement was understood as defamatory, but not defamatory per se (the jury must then determine whether the plaintiff has shown malice, falsity, and damage); or (3) the statement was not understood to be defamatory.Kerndt, 558 N.W.2d at 418 (citations omitted).
According to Brases, the only reasonable interpretation that can be given to Mosley's statement was that "they [the Brases] are encouraging criminal activity or even actively supporting it." We disagree.
Like the district court, we find Mosley's use of the cautionary word "alleged" sufficient to make his statements susceptible to an innocent interpretation. Moreover, under a literal construction of Mosley's statement, the words used did no more than implicate the Brases as innocent owners of a house where someone used or sold drugs. Under these circumstances, the issue of whether Mosley's statements were defamatory per se was properly not submitted to the jury.
B. Punitive Damages
The Brases claim the district court should have submitted the issue of punitive damages to the jury. They assert Mosley's statements were made with reckless disregard for the truth.
In a defamation case, some actual damages must be shown to support a claim for punitive damages. Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 226 (Iowa 1998). Here, no actual damages were awarded to the Brases, and we have found no reason to overturn the district court's rulings in this case.
We affirm the judgment of the district court.