Moritz v. Medical Arts Clinic, P. C. , 1982 N.D. LEXIS 224 ( 1982 )

WILLIAM F. HODNY, District Judge.

Plaintiff appeals from a summary judgment dismissing her complaint and from an order allowing attorney’s fees.

In August of 1979, plaintiff compromised and settled a suit she had brought for compensatory and punitive damage against a hospital and against a doctor who was a stockholder and employee of defendant Clinic.

Sometime later, plaintiff received the following letter dated December 6, 1979, written by the manager of the defendant Clinic.

“This letter is written to inform you that the Medical Arts Clinic, P.C. and all of the physicians associated with the clinic wish to withdraw from further treatment and attention of your medical problems and also those of any member of your immediate family.

“The reason for this withdrawal should be obvious to you. The physicians are extremely uncomfortable treating you and do not find that they can do so in the physician-patient relationship that they would want to offer. Your past actions have made it difficult for them to accept you as a patient.

“The Medical Arts Clinic, P.C. and the physicians associated with the group respectfully ask you to place yourself and other members of your family in the care of some other physician in this community. The Medical Arts Clinic physicians will continue to care for you until you have placed yourself under the care of that other doctor, but not exceeding ten days from the date of this letter. This should give you ample time to select a physician of your choice from the many competent practitioners in the city. With your ápproval, the Medical Arts Clinic will make available to your physician your case histories and information regarding the diagnosis and treatment which have been received at the Medical Arts Clinic.”

Plaintiff then brought an action against Medical Arts Clinic, the Clinic manager, and 23 of the physicians associated with the Clinic alleging that the letter is defamatory and was published.

The Clinic and the doctors brought a motion before Judge Berning to dismiss the action. The court treated it as a motion for summary judgment under Rule 12(b)(5) North Dakota Rules of Civil Procedure, and pursuant to Rule 21 and 56 thereof dismissed the action against all 23 of the doctors named in the complaint but otherwise denied the motion to dismiss allowing the action against the Clinic and its manager to continue. No appeal has been taken from this dismissal. Subsequently Judge Bern-ing found cause to recuse himself, and as a result Judge Beede was assigned to the case.

After discovery proceedings, the Clinic made a motion before Judge Beede for summary judgment of dismissal, which was granted.¹ The Court also found Plaintiff’s claim for relief to be frivolous and granted a motion allowing attorney’s fees to the Clinic in the amount of $7,611.00. Judgment was entered and plaintiff has appealed. This Court is required to determine if granting the motion for summary judgment was appropriate and whether the granting of attorney fees under Section 28-26-01 was proper.

We shall first deal with the motion and the matter of the alleged defamation.

Section 4 of Article I of the North Dakota Constitution provides as follows:

“Every man may freely write, speak and publish his opinion on all subjects, being responsible for the abuse of that privilege. In all civil and criminal trials for libel the truth may be given in evidence, and shall be a sufficient defense when the matter is published with good motives and for justifiable ends; and the jury shall have the same power of giving a general verdict as in other cases; and in all indictments or informations for libels the jury shall have the right to determine the law and the facts under the direction of the court as in other cases.” ²

North Dakota Century Code Section 14-02-01 provides that every person has the right of protection from defamation. This court in McCue v. Equity Cooperative Publishing Co. of Fargo, 39 N.D. 190, 167 N.W. 225 (1918), said that every man may freely write, speak and publish his opinions on all subjects but is responsible for an abuse of that privilege to any person injured by such abuse.

North Dakota Century Code Ch. 14-02, Personal Rights, classifies defamation as being either libel or slander.

Civil libel is defined in NDCC § 14-02-03, as follows:

“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

Lauder v. Jones, 13 N.D. 525, 101 N.W. 907 (1904) rules that in order to render words defamatory the defamation need not be in direct terms. Defamation may be made indirectly by insinuation, by sarcasm, or by mere questions as well as by direct assertion in positive terms and it is not less actionable because made indirectly; and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory.

The court observed:

“The decisive question upon the objection that the complaint does not state a cause of action is this: Is the language of the affidavit, standing alone, fairly susceptible of a defamatory meaning? If it is, then the complaint states a cause of action and the case was properly submitted to the jury, for it is well settled that where the language of an alleged libel is fairly susceptible of a construction which renders it defamatory, and therefore actionable, even though it is also susceptible of a construction which would render it innocent, the complaint states a cause of action, good as against demurrer, and it is for the jury to determine whether the words were used in an innocent or defamatory sense.”

This principle of law was affirmed in Syllabus ¶ 2 in Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.2d 247 (1946). There is no question that summary judgment is not warranted if the letter is capable of two meanings — one defamatory and the other innocent. McCue v. Equity Coop Pub. Co. of Fargo, supra.

If an innuendo is involved, the question of whether the alleged defamation is fairly warranted by the writing is one of law for the court to decide. Upon finding a reasonable possibility that the ascribed libelous meaning can be given to the material alleged to be defamatory, it is for the jury to determine if the libelous meaning was intended or conveyed. Ellsworth v. Martindale-Hubbell Law Dictionary, 69 N.D. 610, 289 N.W. 101 (1940).

In Restatement Second, Torts ¶ 614, the function of the court and jury is discussed. We quote:

“(1) The court determines

“(a) whether a communication is capable of bearing a particular meaning, and

“(b) whether that meaning is defamatory.

“(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient.”

In comment (b) to this section it is said:

“Under the rule stated in this Section, the determination of the first two of these questions is for the court and that of the third for the jury. The court determines whether the communication is capable of bearing the meaning ascribed to it by the plaintiff and whether the meaning so ascribed is defamatory in character. If the court decides against the plaintiff upon either of these questions, there is no further question for the jury to determine and the case is ended.”

This is also the holding in Luthey v. Kronschnabl, 239 Wis. 375, 1 N.W.2d 799 (1942) Accord 50 AmJur2d, Libel and Slander, § 22. Normally these authorities contemplate the court making its determination after hearing evidence such as a motion for directed verdict. Likewise on a motion for summary judgment if there is no genuine issue of material fact, the court must determine whether the statement is capable of a defamatory meaning.

The meaning plaintiff has ascribed to the letter in this ease is stated in Paragraphs V and XII of the Complaint as follows:

“V That said letter openly and flagrantly accuses the plaintiff of wrongful acts or behavior, whether of a direct criminal nature or of a socially immoral or distasteful conduct.”

“XII That said publication was intended to convey and did convey, to the community at large, the impression that the plaintiff had committed a crime, or some social or immoral activity with respect to the defendants, and their profession, and it was calculated to, and did, hold the plaintiff up to public scorn, hatred, contempt, ridicule and obloquy, and by such publication, defendants meant, and intended to mean said wrongdoings and was so understood by the readers of said publication.”

In determining whether words are libelous and actionable, the entire letter should be construed for the purpose of determining the meaning of that portion complained of. Dvorak v. Kuhn, 175 N.W.2d 697 (N.D.1970). The sense or meaning of the document is determined according to its natural and popular construction. State v. Haider, 150 N.W.2d 71 (N.D.1967); Waldo v. Journal Co., 45 Wis.2d 203, 172 N.W.2d 680 (1969); Silence v. Journal Star Printing Co., 201 Neb. 159, 266 N.W.2d 533 (1978).

“The general rule concerning the construction of words is that (in the absence of extrinsic circumstances which convert innocent words into defamatory words) the words must be construed in their natural and ordinary meaning which reasonable men of ordinary intelligence would give them, they must be construed as persons generally understand them and according to their ordinary meaning.” L. H. Eldredge, The Law of Defamation, § 9 (1978).

Applying these principles to the letter, can it be fairly said that the letter is capable of bearing the meaning ascribed by Plaintiff? Does the letter accuse the Plaintiff “of wrongful acts or behavior, whether of a direct criminal nature or of a socially immoral or distasteful conduct” as is alleged in Paragraph V of the complaint? Does the letter convey “the impression that the Plaintiff had committed a crime, or some social or immoral activity with respect to the Defendants” as alleged in Paragraph XII of the complaint? It is certainly susceptible of an innocent meaning, but is it also susceptible of a defamatory meaning so as to expose plaintiff to hatred, contempt, ridicule or obloquy or cause her to be shunned or avoided, or which has a tendency to injure her in her occupation? Section 14-02-03.

It is our opinion that only a tortured construction of the words of the letter could support such a meaning and even then the reader would have to be predisposed to imagine activities far beyond the ordinary import of the words used. In State v. Haider, supra, this court mentioned a classification of words in determining defamation. We quote from that case and conclude that the words used in this case were “obviously innocent: words which cannot properly be construed so as to convey any imputation on the plaintiff.” No imagined innuendo can alter the sense or supply a meaning to a document which is not there. Luthey v. Kronschnabl, supra. A court will not put a forced construction on words which may fairly be deemed harmless. Silence v. Journal Star Printing Co., supra. The fact that plaintiff places a defamatory connotation on the statement does not make it actionable. Bistline v. Eberle, 88 Idaho 473, 401 P.2d 555 (1965). The facts of this case raise no issue of material fact and the determination of the letter as defamatory or innocent is one for the court since the letter is not in any manner ambiguous. Giving the entire letter a reading in accordance with all of the above authorities leaves us convinced that it cannot support the meaning ascribed by plaintiff nor is it libel as defined in Section 14-02-03.

We agree with Chief Justice Erickstad’s opinion that the only recipient of the letter, Linda Creighton, did not understand it in a defamatory sense, and thus there is no issue of genuine issue of material fact. However, since we have determined the letter was not defamatory it was not necessary to go one step further as he has done.

We cannot agree with Justice Sand in his conclusion that whenever extrinsic evidence is needed to determine whether a statement is defamatory or innocent, the statement is ambiguous and should be submitted to a jury. Extrinsic evidence is normally submitted along with a summary judgment motion and if it raises no genuine issue of material fact, summary judgment is appropriate. Nor can the submission and consideration of matters submitted on a summary judgment motion absolve a court of its duty to determine whether the statement can be defamatory, as we have done. In fact, comment (d) to Restatement Second, Torts ¶ 614 states that both the judge and jury in performing their respective functions, take into account all the circumstances surrounding the communication of the matter complained of as defamatory. Rule 56 of the North Dakota Rules of Civil Procedure allows the submission of all sorts of documents on a motion for summary judgment all of which the court is obligated to consider. Evidence in these documents, along with inferences drawn, must be considered in the light most favorable to plaintiff. Pioneer State Bank v. Johnsrud, 284 N.W.2d 292 (N.D.1979).

However, the mandatory consideration of such materials should not be determinative of whether the statement is ambiguous and possibly defamatory. This reasoning would make summary judgment unavailable in defamation cases. Only when the extrinsic evidence raises a genuine issue of material fact as to whether the statement is defamatory or innocent should summary judgment be precluded. There is no such genuine issue of material fact in this case. Nor can we agree with him that in ruling on a summary judgment motion the court should consider that “. .. paragraph two of the letter in question can easily trigger the imagination of the reader with uncomplimentary thoughts of the addressee and may create various impressions and suspicions why the termination notice was given.” Rather the court must determine the meaning of the words used according to natural and popular construction giving the words their natural and ordinary meaning. Imagination and suspicion are not determinative — the meaning of the words is what counts.

Plaintiff has also appealed from an award of attorney fees to defendant made under Section 28-26-01(2) upon a finding that plaintiff’s claim for relief was frivolous.

The pertinent part of that statute provides:

“In civil actions the court may, in its discretion, upon a finding that a claim for relief was frivolous, award reasonable actual or statutory costs, or both, including reasonable attorney’s fees to the prevailing party. Such costs may be awarded regardless of the good faith of the attorney or client making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in their favor, providing the prevailing party has in responsive pleadings alleged the frivolous nature of the claim.”

We cannot agree that plaintiff’s claim for relief is subject to a finding that there is such a complete absence of actual fact or law that a reasonable person could not have thought a court would render judgment in their favor. In the last analysis a case of this type becomes a question of judgment frequently determined by a court. Restatement Second, Torts § 614, Comment d. That question of judgment has divided this court. Under the facts of this case an award of fees is an abuse of discretion and is reversed.³ Plaintiff did not appeal from the award of statutory costs.

We affirm the granting of summary judgment, but reverse the order allowing attorney’s fees. Neither party shall be awarded costs on this appeal.

LARRY M. HATCH and JOHN 0. GA-RAAS, District Judges, concur. HODNY, HATCH, GARASS, District Judges, sitting in place of PAULSON, PEDERSON, VANDE WALLE, JJ., disqualified.

1 . Judge Beede did not issue a memorandum opinion, but his order contained a statement “. .. that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law.”

2 . Even though this constitutional provision provides that the jury shall have the right to determine the law, the court still retains its function to determine whether the element can be defamatory. Restatement Second, Torts, § 614, Comment C.

3 . Perhaps plaintiffs action against the 23 defendants as dismissed by Judge Berning earlier in the case could support a finding under 28-26-01(2) justifying attorney fees. However, his memorandum opinion specifically stated that no costs are awarded to either party and thus we view Judge Beede’s order allowing attorney fees as based on that part of the case remaining after Judge Berning’s order. There has been no appeal from Judge Berning’s order.