Hudson v. WLOX, Inc.
| Docket Number: | 2010-CA-00743-COA Linked Case(s): 2010-CA-00743-COA2010-CT-00743-SCT |
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| Oral Argument: | 12-15-2011 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-08-2012 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Defamation - Pre-suit notice - Section 95-1-5(1) - Substantial compliance Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Roberts and Fair, JJ. Dissenting Author : Carlton, J. Dissent Joined By : Irving, P.J., and Russell, J. Concurs in Result Only: Barnes, J., Concurs in Result Only Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 10-20-2009 Appealed from: Harrison County Circuit Court Judge: John C. Gargiulo Disposition: VERDICT FOR DEFENDANT Case Number: A-2402-06-212 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Gerald Heath Hudson and Arthur Gerald Hudson |
JIM WAIDE |
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| Appellee: | WLOX, Inc. | HENRY LAIRD SAMUEL TRENT FAVRE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Defamation - Pre-suit notice - Section 95-1-5(1) - Substantial compliance |
| Summary of the Facts: | Heath and Gerald Hudson, who are father and son, own H & H Construction. In 2005, they were framing a house for a relative, Wayne Fairley, when they got into a dispute with Fairley over nonpayment. They did not finish the framing job and filed a construction lien on the house. A year later, when the Hudsons tried to foreclose on the lien, Fairley contacted a reporter for WLOX, a Mississippi television station, and claimed the Hudsons walked off the job after doing poor work. The reporter then called Heath, who told her Fairley’s story was false. WLOX ran a story about Fairley’s dispute with the Hudsons. The report was part of a series exposing the questionable actions by contractors in the aftermath of Hurricane Katrina. After the report, Heath’s wife called the reporter who covered the story, insisting H & H was licensed. On August 30, 2006, the Hudsons’ attorney sent WLOX a letter “concerning defamatory information, which you telecast . . . approximately June 1 [sic], 2006.” WLOX did not respond to this letter. On October 17, 2006, the Hudsons filed a complaint against WLOX for defamation. The complaint made the same allegations as the pre-suit notice letter. WLOX filed a motion for summary judgment which the court denied. The jury returned a verdict in favor of WLOX. The Hudsons appeal. |
| Summary of Opinion Analysis: | The Hudsons argue that section 95-1-5(1), correctly interpreted, was intended to bar only the recovery of punitive damages—and not a suit for actual damages—if pre-suit notice is not given. In Brocato v. Mississippi Publishers Corp., 503 So. 2d 241, 243 (Miss. 1987), the Supreme Court rejected the plaintiff’s argument that the Legislature did not intend section 95-1-5 to be a prerequisite to filing suit and found “the ten day notice required in § 95-1-5 is clearly a necessary preliminary step to the proper filing of a libel action . . . .” The Hudsons rely on the substantial-compliance approach, adopted by the Mississippi Supreme Court in Lee v. Memorial Hospital at Gulfport, 999 So. 2d 1263, 1266-67 (¶¶9-13) (Miss. 2008) to argue their pre-suit notice letter was sufficient to enable them to bring a defamation suit against WLOX based on the overall tenor of the two telecasts by WLOX relating to this matter. For notice to be sufficient it must specify the statements allegedly to be false and defamatory. And, in order to specify the statements, the notice must identify the alleged false and defamatory statements with sufficient particularity to enable the broadcaster to investigate the allegations and issue a retraction, if necessary. Under Lee’s substantial-compliance approach, a statutorily required element can be missing from a pre-suit notice only when (1) the missing element is not a “critical issue,” and (2) the notice fulfilled the purpose of the statute. Section 95-1-5 has only two elements that must be provided in the notice—“[(1)] the article, broadcast or telecast, and [(2)] the statements therein . . . allege[d] to be false and defamatory.” According to the Hudsons, only the first element is necessary for substantial compliance. Under this view, as long as the telecast is merely identified, a plaintiff may bring a defamation suit based on any content and inferences from that telecast. However, the second explicit element of section 95-1-5 touches on a critical issue and is necessary to fulfill the purpose of the statute. The allegedly false and defamatory statements are a critical issue because they comprise an essential element of a defamation claim. To have the broadcaster correct errors in order to mitigate damages and/or avoid suit—the notice has to communicate what information was erroneous. The Hudsons assert their pre-suit notice letter sufficiently notified WLOX to make a reasonable investigation about the veracity of the “overall tenor” of both telecasts. But that is not what the Hudsons’ letter stated. Nor is it what section 95-1-5(1) requires. The Hudsons’ letter to WLOX specified the stories were untrue because the stories indicated the Hudsons were not licensed and had been sued for defective work. WLOX was not on notice to correct any other errors in the stories. The Hudsons’ notice letter did not have to specify the allegedly false and defamatory statements verbatim. But best possible notice under section 95-1-5(1) did require the Hudsons to identify the substance of the spoken statements with sufficient particularity to enable WLOX to determine whether the publication was defamatory. The Hudsons’ pre-suit letter specified the false and defamatory substance of the broadcast was that the Hudsons were not and had never been licensed contractors in Mississippi and that they had been sued for defective work. Thus, the trial court correctly held the pre-suit notice was sufficient for the Hudsons to bring their defamation claim against WLOX based on these statements. The trial court also correctly held the pre-suit notice letter was insufficient for the Hudsons to sue based upon “any allegations or innuendos or intimations” from the telecasts that were not substantially similar to those provided in their pre-suit notice letter. |
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