Opinion
No. 2-156 / 01-1129.
Filed June 19, 2002.
Appeal from the Iowa District Court for Ida County, RICHARD VIPOND, Judge.
Plaintiffs appeal from an order granting the defendant newspaper's motion for summary judgment on plaintiffs' libel claim. AFFIRMED.
Robert Kohorst of Kohorst, Early, Gross Louis, Harlan, for appellants.
Paul Lundberg of Hellige, Lundberg, Meis, Erickson Frey, Sioux City, and Phil Redenbaugh, Storm Lake, for appellees.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Vernus and Jacquelyn Wunschel, d/b/a Wunschel Oil Company (Wunschels), appeal from the order granting summary judgment to the Ida Grove Courier on the Wunschels' libel action. We affirm.
I. Background Facts and Proceedings.
On May 15, 2000, the Wunschels filed a petition against the City of Ida Grove and the Ida County Courier alleging the Courier libeled them by its publication of untrue statements. Later, in answers to interrogatories, the Wunschels identified thirteen separate newspaper articles to support their libel claim. The articles all relate generally to the presence of benzene in the City of Ida Grove's water supply and the Wunschels' fuel tanks as a potential source of the pollutant.
On September 28, 2000, the Courier filed a motion for summary judgment. The district court examined each of the thirteen articles alleged by the Wunschels to be libelous. It concluded the articles identified as exhibit numbers 5, 6, 7, 11, 12, and 13 were published more than two years prior to the commencement of the action and therefore claims arising from them were barred by the statute of limitations in Iowa Code section 614.1(2) (1999). The court also concluded exhibits 2 and 8 contained no statement concerning the Wunschels, and also granted summary judgment as to those articles. The court further found that neither exhibit 9 nor 10 contained any statement a fact finder could reasonably find to be defamatory. Finally, the court rejected the Courier's "absolute privilege" claim regarding exhibits 1, 3, and 4, and denied summary judgment regarding those articles. However, the court noted that portion of its ruling was "without prejudice" to the rights of [the Courier] to file for summary judgment on other grounds.
In a second motion for summary judgment, the Courier asserted summary judgment was appropriate on the remaining articles in that the Wunschels had failed to plead or offer any admissible evidence of a negligent breach of the professional standard of care and because the articles were substantially true. The court granted the motion and consequently dismissed the action against the Courier in its entirety. The Wunschels appeal.
II. Scope and Standard of Review.
The scope of our review on the plaintiffs' appeal from the grant of summary judgment in favor of the defendant newspaper is on error. Iowa R. App. P. 6.4. In Behr v. Meredith Corp., 414 N.W.2d 339, 341 (Iowa 1987), our supreme court articulated the well-established standards for determining whether summary judgment is appropriate in a defamation case.
Summary judgment is proper when there is no genuine issue of fact and the moving party is entitled to the judgment as a matter of law. The burden of showing the nonexistence of a material fact is upon the moving party. While an adverse party generally cannot rest upon his pleadings when the moving party has supported his motion, summary judgment is still not proper if reasonable minds could draw different inferences and conclusions from the undisputed facts. In this respect, summary judgment is functionally akin to a directed verdict; every legitimate inference that reasonably can be deduced from the evidence should be afforded the nonmoving party, and a fact question is generated if reasonable minds can differ on how the issue should be resolved.
Behr, 414 N.W.2d at 341. Moreover, summary judgment is afforded a unique role in defamation cases. Jones v. Palmer Communications Inc., 440 N.W.2d 884, 889 (Iowa 1989). Judges have a responsibility to determine whether "allowing a case to go to a jury would, in the totality of the circumstances, endanger first amendment freedoms." Id.
III. Summary Judgment.
To establish a prima facie defamation action against a media defendant, a private figure plaintiff must prove: (1) publication (2) of a defamatory statement (3) concerning the plaintiff (4) in negligent breach of the professional standard of care (5) that resulted in demonstrable injury. Johnson v. Nickerson, 542 N.W.2d 506, 511 (Iowa 1996). The professional standard of care is that degree of care which ordinarily prudent persons in the same profession exercise under similar conditions. Jones, 440 N.W.2d at 898.
In their appellate brief, the Wunschels make no argument regarding the district court's first summary judgment order in which it dismissed the Wunschels' claim with regard to exhibits 2 and 5 through 13. We therefore deem any issue with regard to these articles waived. Iowa R. App. P. 6.14(1)(c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."). We affirm the district court's first summary judgment ruling.
The Wunschels' primary contention on appeal deals with a ground relied upon by the district in its second summary judgment ruling, namely that the Wunschels' claim failed due to their failure to produce any expert who would testify as to the professional standard of care to be applied to the Courier. See Jones, 440 at 898. The Wunschels however ignore the alternate ground relied upon by the district court in granting the second summary judgment motion. In its second summary judgment ruling, the court concluded the Courier was entitled to judgment because the information contained in exhibits 1, 3, and 4 was substantially true.
Substantial truth is a defense in a defamation action. Hovey v. Iowa State Daily Publication Bd., Inc., 372 N.W.2d 253, 256 (Iowa 1985). Exhibit 1 is an article that reports on three separate district court filings. Exhibit 3 is an article that reports about the Wunschels' response to a petition filed by the State Fire Marshall's office. Exhibit 4 is an article reporting on a petition filed by the State Fire Marshall and the Department of Public Safety. These articles all essentially report the contents of judicial filings. The Wunschels provided no evidence these articles contained any false information. We therefore affirm the district court order granting the Courier's motion for summary judgment on this ground.
In their reply brief, the Wunschels seem to assert an alternative theory of recovery based more generally upon the Courier's allegedly "biased reporting" and its failure to print "newsworthy items that reflected well on the Wunschels." However, they offer no authority supporting this theory of recovery and we therefore deem it waived.
IV. Attorney Fees.
The Courier asserts the Wunschels' appeal is frivolous and requests an award of appellate attorney fees. We deny the Courier's request for appellate attorney fees.
AFFIRMED.