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Richard H. v. Rachel B.

Supreme Court of West Virginia

May 18, 2018

Richard H., Plaintiff Below, Petitioner
v.
Rachel B., Defendant Below, Respondent

          Berkeley County 16-C-121

          MEMORANDUM DECISION

         Petitioner Richard H., [1] pro se, appeals three orders of the Circuit Court of Berkeley County. In the first order, entered November 9, 2016, the circuit court granted Respondent Rachel B.'s motion for judgment as a matter of law at the close of petitioner's evidence at a September 28, 2016, bench trial. In subsequent orders, entered January 4, 2017, and January 11, 2017, the circuit court denied petitioner's motions to alter or amend the judgment. Respondent, by counsel Kirk H. Bottner, filed a corrected summary response. Petitioner filed a reply and a supplemental reply.[2]

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is affirmed, in part, and reversed, in part, and this case is remanded to the circuit court for detailed findings of fact and conclusions of law regarding (1) whether petitioner is a private person or a public figure; (2) whether the review that respondent posted of petitioner's business touched on a matter of legitimate public interest; and (3) whether respondent acted with knowledge that certain of her assertions were false or with reckless disregard as to their falsity.

         Petitioner, who has a criminal record, does business as a handyman, offering services such as carpentry, painting, and landscaping. In 2015, petitioner testified as a witness against respondent's father in a criminal case. Respondent's father consequently obtained information regarding petitioner's prior convictions for impeachment purposes. On September 3, 2015, respondent posted a review of petitioner's business on the Facebook, Google Plus, and Yelp websites. The review stated:

Rick [H.] is a 5 time convicted felon over the past 20 years. He is a thief, drug dealer, arsonist, and murderer. If you don't believe me, pull his record. Is this really who you want in your home and around your kids? Do some research before hiring him!

         On March 14, 2016, petitioner filed a civil action against respondent alleging defamation per se and invasion of privacy.[3] A bench trial was held on September 28, 2016. Following the close of petitioner's evidence, respondent made a motion for a judgment as a matter of law, which was granted. In its November 9, 2016, order, the circuit court first awarded respondent judgment with regard to the defamation claim on the ground that petitioner failed to prove any injury. The circuit court found that respondent defamed petitioner. The circuit court noted that petitioner was "not a five[-]time felon, but a three[-]time felon, "[4] and that respondent's assertion that petitioner had been convicted of murder "turned out not to be true." Furthermore, the circuit court treated petitioner as a private person who only needs to show negligence on part of the statement's publisher. However, it appears that the circuit court treated petitioner's status as a three-time felon as a matter of legitimate public interest, ruling that "whether accusing someone who is a three[-]time convicted felon of being a five[-]time convicted felon would require some evidence to sustain the element of harm." Therefore, the circuit court found that, although petitioner proved that respondent defamed him, he failed to show that he suffered any damages.

         With regard to petitioner's invasion of privacy claim, the circuit court awarded respondent judgment on the issue of liability. The circuit court treated petitioner as a public figure for purposes of this claim, finding that he held himself out to the public through the operation of a business. The circuit court found that petitioner's commercial activity meant that he could not show "an unreasonable intrusion into his private life." In support of its conclusion that petitioner could not show an invasion of his privacy, the circuit court further found that his convictions were "a matter of public record and thus do not intrude upon a private matter." Therefore, while the circuit court rejected petitioner's defamation claim based only on a failure to prove damages, the court rejected his invasion of privacy claim based on a failure to establish liability. Subsequently, the circuit court denied separate motions to alter or amend its November 9, 2016, order on January 4, 2017, and January 11, 2017. Petitioner now appeals the circuit court's orders entered on November 9, 2016, January 4, 2017, and January 11, 2017.

         Because the circuit court granted respondent's motion for judgment as a matter of law at the close of petitioner's evidence at the parties' bench trial, the standard of review is de novo. As we held in syllabus point one of Waddy v. Riggleman, 216 W.Va. 250, 606 S.E.2d 222 (2004):

The appellate standard of review for a circuit court order either granting or denying a motion for judgment as a matter of law in a bench trial, made pursuant to Rule 52 of the West Virginia Rules of Civil Procedure, is de novo. On appeal, this Court, after considering the evidence in the light most favorable to the non[-]movant party, will sustain the granting of a judgment as a matter of law when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed.

         We have further held, in syllabus point one of Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998), that a denial of a motion to alter or amend judgment is reviewed under the same standard as the underlying judgment.

         The circuit court's findings of fact and conclusions of law are insufficient to allow meaningful review of the circuit court's ruling.

         Although our standard for reviewing the November 9, 2016, order is de novo, the circuit court was required to "set out factual findings sufficient to permit meaningful appellate review." Syl. Pt. 1, P.T.P., IV by P.T.P, III v. Board of Educ. of the County of Jefferson, 200 W.Va. 61, 488 S .E.2d 61 (1997); Syl. Pt. 3, Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997), overruled on other grounds, Sostaric v. Marshall, 234 W.Va. 449, 766 S.E.2d 396 (2014). In this case, we find that the circuit court failed to set forth findings sufficient to permit meaningful review. As we explained in Lilly, "[t]his Court's function, as a reviewing court is to determine whether the stated reasons for the granting of [the] judgment by the lower court are supported by the record." 199 W.Va. at 353, 484 S.E.2d at 236.

         In its November 9, 2016, order, the circuit court made contradictory determinations as to whether petitioner is a private person or a public figure and an unclear determination as to whether respondent's review of petitioner's business touched on a matter of legitimate public interest. Under defamation law, whether the plaintiff is a private person or a public figure is critically important because "public officials or public figures must prove by clear and convincing evidence that the defendants made their defamatory statement" with actual malice which is "knowledge that it was false or [a] reckless disregard of whether it was false." Syl. Pt. 2, State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 480 S.E.2d 548 (1996). In contrast, private persons "need only show that the defendants were negligent in publishing the false and defamatory statement." Id. With regard to privacy law, whether the plaintiff is a public figure determines whether he or she is a "newsworthy subject"; if so, the invasion of privacy claim is defeated. Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 712, 320 S.E.2d 70, 83 (1983).[5]

         In syllabus point nine of Crump, we held that "[t]he 'right of privacy' does not extend to communications which are privileged under the law of defamation[, ] which concern public figures or matters of legitimate public interest." Id. at 703, 320 S.E.2d at 74 (emphasis added). Whether a topic is a matter of legitimate public interest affects both defamation and privacy law "because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest." Snyder v. Phelps, 562 U.S. 443, 452 (2011); see Crump, 173 W.Va. at 712, 320 S.E.2d at 83 (noting that a matter of legitimate public interest is the other "newsworthy subject, " the presence of which will defeat an invasion of privacy claim); Havalunch, Inc. v. Mazza, 170 W.Va. 268, 270, 294 S.E.2d 70, 73 (1981) (noting that, since the Supreme Court's decision in New York Times v. Sullivan, 376 U.S. 254 (1964), there has been a "free speech gloss" put on defamation law). Given the circuit court's rejection of petitioner's defamation claim based only on a failure to prove damages, we note that a wider array of damages is permitted without a showing of actual malice where the statement does not involve a matter of legitimate public interest. See Long v. ...


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