Davis Adv. Sh. No. 31
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
William Gary White, III,
and John T. McMillan, Appellants,
v.
Avery B. Wilkerson, Jr.,
individually and in his
official capacity as mayor
of the City of Cayce; E.H.
Heustess, Jr., individually
and in his official
capacity as city manager
of the City of Cayce; and
Columbia Bible College
Broadcasting Co., Inc.,
d/b/a WMHK Radio
Station, Respondents.
Appeal From Richland County
L. Henry McKellar, Judge
Opinion No. 24711
Heard February 21, 1996 - Filed November 10, 1997
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Lex. A. Rogerson, Jr., of Lexington, for appellants.
Susan P. McWilliams and J. Michelle Childs, of Nexsen Pruet
Jacobs & Pollard, LLP, of Columbia, for respondent Avery B.
Wilkerson Jr.
William L. Pope and Roy F. Laney, of Pope & Rogers, of
Columbia, for respondent Columbia Bible College
Broadcasting Co., Inc., d/b/a WMHK Radio Station.
WALLER, A.J.: Appellants sued respondents alleging certain
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WILLIAM GARY WHITE, III, et al. v. AVERY B. WILKERSON, JR., etc., et al.
statements broadcast in a radio interview had defamed them. The trial court
granted summary judgment for respondents, finding the statements complained of'
were incapable of having a defamatory meaning and the radio station was
qualifiedly privileged. Appellants have appealed.
FACTS
In 1990 Appellants, who are attorneys, represented two former police officers
in a lawsuit alleging civil rights violations against the City of Cayce. The officers
claimed they were fired for exposing corruption in the police department. This
lawsuit was settled in January 1991 for $65,000. The State newspaper reported
the settlement on January 24, 1991, naming appellants as the officers' attorneys.
Beginning Sunday, February 10, 1991, The State published a week-long series of
articles on the subject of alleged police brutality and official cover-ups of illegal
activity involving the City of Cayce police department. In one, appellant White was
quoted as saying, "It's like the 'Dukes of Hazzard' over there." The article stated
White was an expert on the Cayce police's pattern of abuse, having brought nine
of fifteen lawsuits in eight years against the city for police brutality, civil rights
violations and false arrests. In that same article, Cayce Public Safety Director
Lavern Jumper stated he blamed the number of brutality complaints on White,
characterizing him as a "headline hungry lawyer."
In response to these articles, the City of Cayce issued a news release at a
press conference held Thursday, February 14, 1991. While appellants were not
specifically named in this release, several statements referred to an attorney who
had brought a majority of lawsuits against the police department and "who
attempts to garner whatever media coverage he can in an attempt to discredit our
Police Department."
Subsequent to this press conference, respondent Wilkerson, the mayor of
Cayce, appeared with other city officials on a radio show entitled "Vantage Point"
aired by respondent Columbia Bible College Broadcasting Co., Inc. d/b/a WMHK
Radio Station ("WMHK"). In answering a question posed by the show's host
Wilkerson stated, "the last settlement that was made was a $65,000 settlement
back in January. Okay? That settlement itself was total court costs. Okay? That
was settled before the case actually got before the jury and that $65,000 [was] for
court costs. What's interesting about that $65,000 is at least $60,000 of that were
attorney fees."
On March 6, 1991, Wilkerson appeared live on a WIS-TV news program
called "The Carolina Report." When the show's host asked about Cayce's
investigation into the facts surrounding the settled lawsuit, Wilkerson's reply was
something to the effect that "approximately $60,000 of that money was for legal
costs only." Both statements made by Wilkerson were false; the attorneys' fees
from the settled lawsuit amounted to $27,500.
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WILLIAM GARY WHITE, III, et al. v. AVERY B. WILKERSON, JR., etc., et al.
Appellants brought a defamation action against respondents for injury to
their reputation caused by Wilkerson's statement that $60,000 of the $65,000
settlement was attorneys' fees. The trial judge found this statement had no
defamatory meaning and that WMHK had a qualified privilege to air it. He thus
granted summary judgment in favor of respondents.
ISSUES
I. Are the statements capable of having a defamatory meaning?
II. Was WMHK privileged to air the statements.?
DISCUSSION
I. Defamatory Meaning
In order to succeed on a defamation claim, the plaintiff must show that the
challenged statement is both defamatory (tending to impeach the plaintiffs
reputation) and actionable (injuring the plaintiff). Austin v. Torrington Co., 810
F.2d 416 (4th Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489, 98 L. Ed. 2d 487
(1987). The trial judge's order focused on this first requirement in that he ruled
Wilkerson's statements could not tend to impeach appellants' reputation. We
disagree.
It is the trial court's function to determine initially whether a statement is
susceptible of having a defamatory meaning. Pierce v. Northwestern Mut. Life Ins.
Co., 444 F. Supp. 1098 (D.S.C. 1978). A motion for summary judgment should be
granted only if the court determines the publication is incapable of any reasonable
construction which will render the words defamatory. Adams v. Daily Telegraph
Printing Co., 292 S.C. 273, 356 S.E.2d 118 (Ct. App. 1986), aff'd as modified, 295
S.C. 218, 367 S.E.2d 702 (1988). It is enough "if the words used to express the
charge. are such, in the sense in which they would naturally be understood, as to
convey to the minds of those to whom they are addressed ... the impression that
the plaintiff has [done wrong]. It is only necessary that the words should ... be
capable of the offensive meaning attributed to them." Flowers v. Price, 192 S.C.
373, 377, 6 S.E.2d 750, 751 (1940) (per curiam). "[A]ll of the parts of the
publication must be considered in order to ascertain the true meaning, and words
are not to be given a meaning other than that which the context would show them
to have." Jones v. Garner, 250 S.C. 479, 485, 158 S.E.2d 909, 912 (1968) (citation
omitted).
Appellants alleged Wilkerson's statements imputed unfitness in their
profession. When viewing the evidence and inferences in the light most favorable
to the non-moving party, we agree that the statements could reasonably be
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WILLIAM GARY WHITE, III, et al. v. AVERY B. WILKERSON, JR., etc., et al.
construed in such a manner. In making this determination, it is essential to keep
in mind the profession involved. See Nash v. Sharper, 229 S.C. 451, 457, 93 S.E,.2d
457, 460 (1956) ("Words, not [defamatory] in the case of a common person, may
become so, when spoken of another, in relation to the office he fills or the trade or
profession which he carries on.") (internal quotations omitted). When attorneys
bring civil lawsuits on behalf of injured clients, it is well understood that the
remedy sought is monetary damages. To state that an attorney took all (or nearly
all - ninety-two per cent) of a settlement award, and thus the clients, on whose
behalf the lawsuit was brought, got nothing, could impute a derogation from the
ethical responsibilities of that attorney. Such a comment could tend to injure an
attorney in his profession because it implies that his interests are more important
than those of his client. Moreover, it implies that the attorney did not do his job,
which is to get compensatory relief for the client.
This analysis is not altered merely because Wilkerson did not accuse
appellants outright of unethical or unprofessional behavior. In Nash, an attorney
brought an action for libel based on statements made which he argued suggested
he dishonestly worded retractions released in the course of his representation of
certain school districts. The court stated, "While the defamatory language does not
in express terms charge the plaintiff with a breach of his professional honor, yet,
when aided by the inneundo [sic], operating within the scope of its legitimate
functions, it does impute conduct tending to injure him in his profession." Id. at
458, 93 S.E.2d at 460 (internal citations omitted).
The facts of Handelman v. Hustler Magazine, Inc., 469 F. Supp. 1048
(S.D.N.Y. 1978), are very similar to the instant case. There, the plaintiff was the
attorney for the executor of an estate. In an article written in the defendant
magazine regarding the estate, the following sentence appeared: "Loeb [deceased's
son] ... fought the will for about six years, letting high-priced New York lawyers
eat up over $800,000. [sic] before withdrawing his complaint, leaving his daughter
to pay taxes on the rest." Id. at 1049 (emphasis added). According to the plaintiff,
$800,000 represented eighty per cent of the estate. The trial court found this
statement could be read to imply that the plaintiff charged an excessive or
exorbitant fee, imputing to plaintiff "conduct which is incompatible with the
standards of an ethical lawyer." Id. at 1051.
At the summary judgment hearing, appellants presented the deposition of the
Cayce resident who informed appellant White of the broadcast. Regarding the
contents of the broadcast, the resident stated, "Well, if I'm remembering correctly,
it had something on the tape about the lawyer involved kept all of the money from
one particular settlement. And usually lawyers keep a portion, but they give some
to the client."
We find the trial judge erred in finding Wilkerson's statements incapable of
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WILLIAM GARY WHITE, III, et al. v. AVERY B. WILKERSON, JR., etc., et al.
having a defamatory meaning.1
II. Qualified Privilege
Appellants argue the trial judge erred in finding WMHK was protected by
1The state of defamation law in South Carolina is not entirely clear or settled.
The issues addressed in this footnote are based on the law as suggested by current
cases.
With that in mind, we do agree with the trial judge's finding that the
statements were not defamatory per se. A statement is defamatory per se, or on
its face, if its defamatory meaning is apparent from the language itself. It must
be susceptible of only one meaning, that being a defamatory one. If an innocent
construction can fairly be made of the statement, it cannot be defamatory per se.
Renwick v. News & Observer Pub. Co., 312 S.E.2d 405 (N.C.), cert. denied, 469
U.S. 858, 105 S. Ct. 187, 83 L. Ed. 2d 121 (1984). See also Sandifer v. Electrolux
Corp., 172 F.2d 548 (4th Cir. 1949) (when words are clear and unambiguous, their
character as defamatory is a question of law for the judge; however, when language
is susceptible of two meanings, one slanderous and the other innocent, it must be
left to the jury to determine from all of the circumstances attending the publication
in what sense the defendant used them): Wardlaw v. Peck, 282 S.C. 199, 318
S.E.2d 270 (1984). Conversely, if it is necessary to refer to facts or circumstances
beyond the language itself in order to make the defamatory meaning of the
statement clear, it is defamatory per quod. We find that the statements at issue
could be innocently construed and thus were defamatory per quod.
Finally, we disagree with respondents' arguments that the complaint only
alleged the statements were defamatory on their face. While the complaint does
use the term "defamation per se," appellants maintain they intended the phrase to
allege the statements were actionable per se (meaning that if defamatory, the
statements are presumed injurious without proof of malice or special damages).
The significance of this is that if a statement is actionable per se, its defamatory
meaning may be proven by the language itself or by reference to extrinsic facts (i.e.
it may be defamatory per se or per quod) . Noting the confusion in our case law
regarding proper terminology in defamation cases, we accept appellants' contention
and find they properly have alleged the statements are actionable per se. See S.C.
Juris. Libel and Slander 3 (1993) (acknowledging that the phrase "defamation per
se" has been used in two different ways in South Carolina case law: one to mean
a statement defamatory on its face; the other to mean a statement actionable
without proof of malice and damages). See also Pierce v. Northwestern Mut. Life
Ins. Co., 444 F. Supp. 1098 (D.S.C. 1978) (allegedly slanderous statement, in older
to be actionable per se, must impute (1) commission of crime of moral turpitude,
(2) contraction of loathsome disease, (3) adultery, (4) unchastity, or (5) unfitness in
one's business or profession).
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WILLIAM GARY WHITE, III, et al. v. AVERY B. WILKERSON, JR., etc., et al.
a qualified privilege because WMHK exceeded any privilege it may have had. The
"fair report" privilege protects fair and accurate reports of "judicial records and
proceedings and other official acts, reports, and records." S.C. Jur. Libel and
Slander 61 (1993) (footnote omitted).2 See also Jones v. Garner, 250 S.C. 479,
158 S.E.2d 909 (1968). We affirm this issue pursuant to Rule 220(b)(1), SCACR.3
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
2 Appellants did not appeal the issue of whether Wilkerson's statements
constitute an official act of the nature necessary to give rise to this privilege.
3 Regarding WMHK's assertion it is entitled to other privileges under the First
Amendment, and its argument concerning the issue of fault, we decline to address
these because they were not ruled on by the trial court. Pamplico Bank and Trust
Co. v. Prosser, 259 S.C. 621, 193 S.E.2d 539 (1972).
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