larue/tucker v. Brown

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MINDI LARUE and JEREMY TUCKER, husband and wife,
Plaintiffs/Appellees,
v.
DAVID BROWN and SARAH BROWN, husband and wife,
Defendants/Appellants.
No. 1 CA-CV 13-0138
FILED 08-19-2014
Appeal from the Superior Court in Maricopa County
No. CV2009-039582
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Curry Pearson & Wooten PLLC, Phoenix
By Michael W. Pearson and Kyle B. Sherman
Counsel for Plaintiffs/Appellees
Jaburg & Wilk PC, Phoenix
By Kraig J. Marton and Laura Rogal
Counsel for Defendants/Appellants
OPINION
Presiding Judge Andrew W. Gould delivered the opinion of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.
LARUE/TUCKER v. BROWN
Opinion of the Court
G O U L D, Judge:
¶1 David and Sarah Brown (“Defendants”) appeal from a
judgment entered against them after a jury found them liable for defaming
Mindi Larue and Jeremy Tucker (“Plaintiffs”) on the Internet. Defendants
argue Plaintiffs’ defamation claim was barred by the statute of limitations
because they filed it more than one year after the defamatory statements
were published. We conclude, however, that Plaintiffs’ defamation action
was not time-barred because Defendants republished the statements less
than one year before Plaintiffs filed their claim. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 David Brown and Mindi Larue are former spouses who
divorced in 2006. During the marriage, David and Mindi had two children.
After the divorce, David married Sarah, and Mindi married Jeremy Tucker.
¶3 David and Mindi’s divorce was very contentious, and
resulted in a protracted custody battle over the children. In mid-2007
Defendants initiated a criminal investigation based on allegations Jeremy
had abused one of the children. Defendants also filed an emergency
petition to modify custody and parenting time in the family court. In March
2008, after a hearing on the petition to modify, the family court determined
the allegations of abuse were not proven by a preponderance of the
evidence.
¶4 On November 20 and 22, 2008, Sarah posted two articles on
the website www.ripoffreport.com in which she accused Plaintiffs of sexual
and criminal misconduct. Both articles revealed Plaintiffs’ names, phone
numbers, and address. The November 20 article is entitled, “Mindi Larue
[f]. n. a. Mindi Brown allowed physical abuse of daughter and protected
boyfriend when daughter reported sexual abuse Phoenix Arizona.” The
article stated that “Mindi Larue is a despicable ‘mother,’” and that “her live
in boyfriend, Jeremy Tucker, molested and tortured her 4 year old
daughter.” The article notes that despite the child’s statement to the police
in Wisconsin about the abuse, no charges were filed, and as a result the
child is “once again back in the home of the same man who tortured her”
and sexually abused her. The article lists Jeremy Tucker‘s employer, and
warns the reader that he “could be working at your business or company,
or on nearby building projects. BEWARE.”
¶5 The November 22 article is entitled, “Jeremy Tucker Child
Molestor (sic), also tortures children with Tobasco sauce Phoenix Arizona.”
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It alleged that “Jeremy Tucker is a sick sick pedophile who molested and
tortured his girl friends (sic) 4 year old daughter,” “touched her privates,”
and put “tobasco sauce in her panties.” The article stated that charges were
not filed and “this poor child is once again back in the home of the same
man who tortured her with Tabasco sauce and touched her privates.”
¶6 The website provided for interaction between readers and
authors through a report and rebuttal forum which allowed interested
readers to post questions and comments. On February 1, 2009, a reader
posted a comment on the November 22 article entitled, “Where is the Little
Girl’s Biological Father? Where are her grandparents?” The reader then
posed a series of questions, including, “Why hasn’t the little girl said
something to her father,” and “Why hasn’t someone called the child abuse
hotline and reported this?”
¶7 On March 9, 2009, in response to the reader’s comment, Sarah
posted a statement on the November 20 article entitled “Answer to the
WHY’s.” In this article, Sarah noted that the child did report the abuse to
her biological father and the incident was reported to the police. Sarah then
recited additional details of the child’s interview with the police, and
discussed the subsequent investigations conducted by CPS and the Arizona
Ombudsman’s Office. Sarah also stated that Jeremy Tucker “REFUSED
(sic) to take a polygraph test on this matter.” Sarah concluded that the case
had been mishandled by CPS, “and as a result the child is now back in the
home of the same man she was brave enough to speak against.”
¶8 On June 1, 2009, a reader posted a comment on the November
22 article entitled, “What proof do you have?” In this comment, the reader
stated “This is a 100% fake! I know this family very well and I also know
the person who mailed this story to my whole neighborhood…He is just
trying to get back at his ex-wife.”
¶9 Later, on June 5, 2009, Defendants posted a response to a
reader’s comment and a “reply to everyone” on the November 22 article.
In the response Defendants allege, “If you want proof of the fact that this
man refused to take a polygraph test then look up PUBLIC records case
[police report number].” Defendants then state “There is a substantial
amount of proof,” “do your research on child sexual abuse before you pipe
off at the mouth while not having any evidence in front of you…” Then, on
June 7, Defendants posted another comment on the November 22 article
entitled, “reply to everyone.” The reply stated, in part, “I am the biological
father,” and “I read the reply accusing me of seeking retribution. Who ever
(sic) wrote that is a liar.”
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Opinion of the Court
¶10 On December 23, 2009, Plaintiffs sued Defendants alleging the
articles published by Defendants on the Internet were defamatory.
¶11 Defendants filed several motions to dismiss Plaintiffs’
complaint on the grounds it was barred by the statute of limitations. The
court denied all of Defendants’ motions, and the case went to trial.
¶12 At the close of the evidence, Defendants asked the court to
instruct the jury on their statute of limitations defense. Defendants sought
language instructing the jury that it could not consider statements “made
before December 23, 2008.” The court did not include the requested
language; instead, the court gave the following instruction:
The statute of limitations for a defamation claim is one (1)
year from the date the alleged defamatory statement was
published to a third person. If a statement is re-published at
a later date, the statute of limitations starts to run from the
date of the republication. The lawsuit in this case was filed
December 23, 2009. A statement is republished if it is
published in a modified form.
¶13 The jury found Defendants liable for defamation. The jury
awarded Plaintiffs $150,000.00 in compensatory damages against both
Defendants and $50,000.00 in punitive damages against Sarah Brown.
DISCUSSION
¶14 The only issue on appeal is whether the court erred in
refusing to grant Defendants relief on their statute of limitations defense.
The parties list a number of standards of review applicable to the various
procedural mechanisms employed by Defendants to raise their statute of
limitations defense. However, all of the issues raised on appeal concern
questions of law. “We review de novo questions of law concerning the
statute of limitations, including ‘when a particular cause of action accrues’”
regardless of the means by which the issue was put before the court. Cook
v. Town of Pinetop-Lakeside, 232 Ariz. 173, 175, ¶ 10, 303 P.3d 67, 69 (App.
2013).
¶15 Generally, Arizona provides that the statute of limitations for
a defamation action begins to run upon publication of the defamatory
statement. Boatman v. Samaritan Health Servs., Inc., 168 Ariz. 207, 213, 812
P.2d 1025, 1031 (App. 1990) (citing Lim v. Superior Court in and for Pima Cnty.,
126 Ariz. 481, 482, 616 P.2d 941, 942 (App. 1980)). A plaintiff has one year
after a defamation action accrues to commence and prosecute his claim.
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Arizona Revised Statutes (“A.R.S.”) § 12-541(1) (West 2014); Glaze v. Marcus,
151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986). This appeal raises two
issues of first impression in Arizona regarding the accrual date of a cause
of action for defamation: (1) whether the single publication rule applies to
defamatory statements published on the Internet, and (2) what constitutes
a republication of a statement posted on the Internet.
I. Discovery Rule
¶16 Plaintiffs assert that the statute of limitations does not bar
their defamation claim because they did not know who wrote the articles
when they were posted in November 2008. Plaintiffs contend they did not
learn that Defendants posted the articles until sometime later in 2009. Thus,
based on the “discovery rule,” Plaintiffs argue their cause of action did not
accrue until they learned that Defendants authored the articles. See Wyckoff
v. Mogollon Health Ins., 232 Ariz. 588, 591, ¶ 9, 307 P.3d 1015, 1018 (App.
2013) (stating that the “discovery rule” allows a cause of action to accrue
“when the plaintiff knew or by the exercise of reasonable diligence should
have known of the defendants’ conduct,” rather than at the time of the
injury).
¶17 The discovery rule does not apply to this case. The record
shows that Plaintiffs were aware of the articles, and were convinced
Defendants had published them, as early as November 24, 2008. They
cannot now assert the statements, or their author, were concealed from
them. See Phillips v. World Publ’g Co., 822 F. Supp. 2d 1114, 1122 (W.D. Wash.
2011) (stating that a plaintiff cannot seek application of the discovery rule
where pleadings indicate his knowledge of the statements).
II. The Single Publication Rule and Republication
¶18 Plaintiffs argue that Defendants’ posts in March and June of
2009 were substantive modifications of the original articles posted in
November 2008. As a result, Plaintiffs contend the later posts were
republications that fell outside the single publication rule, thereby starting
the accrual date for their defamation action anew.
A. Single Publication Rule
¶19 The single publication rule controls the point from which a
defamation action accrues and when the statute of limitations begins to run.
Under this rule, a cause of action for defamation arises at the time the
statement is first published; later circulation of the original publication does
not start the statute of limitations anew, nor does it give rise to a new cause
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of action. Phillips, 822 F. Supp. 2d at 1122 (holding that under the single
publication rule, any one edition of a book or newspaper or similar
aggregate publication is treated as a single publication and “can give rise to
only one cause of action” (citing Oja v. U.S. Army Corps of Eng’rs, 440 F.3d
1122, 1130 (9th Cir. 2006))); Firth v. State, 775 N.E.2d 463, 464-65 (N.Y. 2002)
(stating that under the single publication rule, even though many copies of
a defamatory publication may be widely distributed, the publication is
given the legal effect of one act and gives rise to one cause of action).
¶20 Arizona has enacted the single publication rule by adopting
the Uniform Single Publication Act, which provides:
No person shall have more than one cause of action for
damages for libel, slander, invasion of privacy or any other
tort founded upon a single publication, exhibition or
utterance, such as any one edition of a newspaper, book or
magazine, any one presentation to an audience, any one
broadcast over radio or television or any one exhibition of a
motion picture. Recovery in any action shall include all
damages for any such tort suffered by the plaintiff in all
jurisdictions.
A.R.S. § 12-651(A).
¶21 The single publication rule protects defendants from being
sued separately for each copy of a book or newspaper containing the
allegedly defamatory statement. Oja, 440 F.3d at 1130-32 (“The single
publication rule is designed to protect defendants from harassment through
multiple suits and to reduce the drain of libel cases on judicial resources.”
(citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777 (1984))). It also
prevents the statute of limitations from being reset each time a copy of a
publication is purchased or read. See Traditional Cat Ass’n, Inc. v. Gilbreath,
13 Cal. Rptr. 3d 353, 354-55 (Cal. Ct. App. 2004) (applying Uniform Single
Publication Act).
¶22 The policy concerns behind the single publication rule apply
with equal or more force to Internet publication.
Given that “[c]ommunications posted on Web sites may be
viewed by thousands, if not millions, over an expansive
geographic area for an indefinite period of time,” allowing
Internet publications to be subject to a multiple publication
rule “would implicate an even greater potential for endless
retriggering of the statute of limitations, multiplicity of suits
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and harassment of defendants. Inevitably, there would be a
serious inhibitory effect on the open, pervasive dissemination
of information and ideas over the Internet, which is, of course,
its greatest beneficial promise.”
Oja, 440 F.3d at 1131-32 (internal citations omitted). Recognizing these
policy concerns, federal and state courts have uniformly applied the single
publication rule to the Internet. Pippen v. NBCUniversal Media, LLC, 734 F.3d
610, 615 (7th Cir. 2013) (recognizing that “[e]very state court that has
considered the question applies the single-publication rule to information
online”); Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 1051-52 & n.3 (D.N.D.
2006) (stating that “other jurisdictions are nearly unanimous in holding that
the single publication rule applies in defamation actions arising out of
[I]nternet publications”).
¶23 We agree with this reasoning from these other jurisdictions
and conclude the single publication rule applies to Internet publications.
Thus, in the case of Internet publications, the statute of limitations begins
to run when the allegedly defamatory material is first made available to the
public by posting it on a website.
¶24 In this case, Defendants published the defamatory statements
on the website on November 20, 2008 and November 22, 2008, which is
more than one year before Plaintiffs filed their complaint on December 23,
2009. As a result, unless Defendants republished the statements after
December 23, 2008, Plaintiffs’ claims are barred by the statute of limitations.
B. Republication
¶25 Generally, republishing material in a new edition, editing and
republishing it, or placing it in a new form is a separate publication giving
rise to a separate cause of action. Restatement (Second) of Torts § 577(A)
cmt. d (1977). Republication “occurs when a defamatory article is placed in
a new form (paperback as opposed to hardcover) or edited in a new form.”
Mitan v. Davis, 243 F. Supp. 2d 719, 722 (W.D. Ky. 2003); see also Gilbreath, 13
Cal. Rptr. 3d at 359 (stating that “a new edition of a book or newspaper
constitutes a new publication”) (emphasis in original). A plaintiff has a new
cause of action when “the defendant edits and retransmits the defamatory
material, or distributes the defamatory material for a second time with the
goal of reaching a new audience.” In re Davis, 347 B.R. 607, 611 (W.D. Ky.
2006) (“Davis II”).
¶26 Because websites are subject to updates or modifications at
any time that can be completely unrelated to their substantive content, the
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question of republication in the context of Internet publication focuses on
whether the update or modification affects the substance of the allegedly
defamatory material. Atkinson, 462 F. Supp. 2d at 1054-55; In re Davis, 334
B.R. 874, 883 (Bankr. W.D. Ky. 2005) (“Davis I”); see also Firth, 98 N.Y.2d at
371 (stating that posting of an unrelated report to a website hosting the
allegedly defamatory statement did not constitute republication). “[M]ere
modifications to the way information is accessed, as opposed to changes in
the nature of the information itself, does not constitute republication.”
Davis I, 334 B.R. at 883; see also Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir.
2012) (holding that “a statement on a website is not republished unless the
statement itself is substantively altered or added to, or the website is
directed to a new audience”).
¶27 Thus, republication does not occur every time a defendant
adds to or revises the content of the website if the changes are unrelated to
the alleged defamatory material. In Churchill v. State, 378 N.J. Super. 471,
876 A.2d 311 (App. Div. 2005), the New Jersey appellate court concluded
that changes to a website hosting a defamatory statement, such as moving
and highlighting the website menu bar, did not constitute republications of
the statement. Churchill, id. at 315, 319. Rather, the court concluded that the
changes were technical, altering the means by which readers accessed the
defamatory report, but not altering the substance or form of the report.
Churchill, id. at 319. Similarly, in Atkinson, the court concluded a website
modification adding information unrelated to the defamatory statement
was not a republication; the “modification did not change the content or
substance of the website” and the update “did not reasonably result in
communicating the alleged defamatory information to a new audience.”
Atkinson, 462 F. Supp. 2d at 1055. And in Firth, the court recognized that
although websites constantly change through the addition of new material,
the changes are not republications unless they relate to and substantively
modify the allegedly defamatory material. Firth, 98 N.Y.2d at 371-72.
¶28 In contrast, the updates to the defamatory material in this case
were not simply technical changes to the website or the addition of new,
unrelated material. The facts before us more closely resemble those of Davis
I. 334 B.R. at 884. In Davis I, the website was created by the defendants to
document the purportedly criminal and unethical activities of the plaintiff.
Id. After the initial posting, the defendants made changes to the website by
“adding ‘Breaking News!’ and ‘Update!’ sections and other sections
containing additional substantive information and links to other websites
containing substantive information.” Id. The court concluded that the
changes to the website were republications because they “relate[d] to the
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original allegedly defamatory material” and they “altered both the
substance and the form of the original material.” Id.
¶29 Here, in March and June 2009, Defendants replied to readers’
comments made in response to their original defamatory articles.
Defendants’ “updates and rebuttals” were posted immediately below the
text of the original articles, and the content of Defendants’ replies referred
to and re-alleged the substance of the original articles. Defendants’ later
comments also added to and altered the substance of the original material
by providing additional information in response to a reader’s questions,
and re-urging the truth of the original articles in response to another
reader’s criticism. The Defendants’ comments also altered the form of the
original articles. The comments were displayed directly beneath the
original articles, thereby implying they were supplements to the original
articles. In addition, the submission dates of the new comments reflect the
date the comments were added (March and June 2009), again implying they
were updating the original articles.
¶30 Thus, Defendants republished the defamatory statements
originally posted in November 2008 by replying to readers’ comments in
March and June of 2009. Accordingly, Plaintiffs’ cause of action for
defamation was not barred by the statute of limitations.
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CONCLUSION
¶31 For the reasons discussed above, we affirm the judgment.
Additionally, because Defendants have not prevailed in this appeal we
decline Defendants’ request that we asses fees against Plaintiffs pursuant to
Arizona Rule of Civil Procedure 11 and A.R.S. § 12-349.
:gsh
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