IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA CURTIS RAY, Plaintiff, v. GENE ROBINSON, Defendant.
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CIVIL ACTION NO. CV-2009-900048
PLAINTIFF’S SUPPLEMENTAL RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Introduction The purpose of this supplement is to show a genuine issue of material fact as to whether Defendant made the statement attributed to him in the subject article and to respond to the “actual malice” argument of Defendant. The purpose is also to show that per se slander is applicable to this case. Defendant’s Statements Attached hereto as Exhibit “A” is the affidavit of Megan Nichols, the reporter who interviewed Defendant Robinson and wrote the article in question. Ms. Nichols states without any equivocation that she accurately quoted the Defendant Robinson in the article. A genuine issue of material fact thus exists precluding summary judgment on this issue. Defendant’s Actual Malice Claims Defendant contends that Plaintiff was a “limited-purpose public figure” and Plaintiff must show by clear and convincing evidence that the alleged defamatory statements were made with „actual malice.‟” (MSJ at 10)
Defendant relies on Cottrell v. NCAA, et al., 975 So. 2d 306 (Ala. 2007). Yet, the following rule stated in Cottrell clearly excludes Plaintiff from the category of “limited public figure:”
“A private individual, however, is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.” Wolston, 443 U.S. at 167, 99 S.Ct. 2701. “In general, to be a limited purpose public figure, the plaintiff must voluntarily thrust himself into the vortex of the dispute. From the voluntary act is derived the notice of assumption of the risk and the consequent fairness in labeling the person a public figure.” (Id at _____)
Curtis Ray worked in Defendant‟s 2008 political race for election as Mayor of Anniston, Alabama by performing perfectly legal activities. Defendant admits he does not know of anything Plaintiff did that was illegal. (Def. Aff. At _____) Defendant claims that he did not even make the allegedly defamatory statement to the newspaper reporter. What possible basis is there for this Court to find as a matter of law that Plaintiff “thrust himself into the vortex of the dispute?” Defendant‟s story to this Court is that there is no dispute. Defendant says now that Plaintiff did nothing wrong. Defendant says now that he did not say Plaintiff did anything wrong. Defendant says now that the newspaper reporter made up the whole thing. Defendant tells this Court that he hired Plaintiff to perform ordinary election services and that is all he did. Plaintiff agrees. There is no thrusting into the vortex of a dispute by Plaintiff because, as Defendant tells it, there is no dispute. According to Defendant, there was no public dispute, just an irresponsible newspaper story. He says under oath that the newspaper reporter just made up the 2
whole thing. The only “dispute” is whether Defendant made the statements attributed to him by the newspaper. The Defendant fails to show that Plaintiff has done anything but tell the newspaper reporter in response to her inquiry that the work he did for Defendant was perfectly legal. This could not reach the level of “thrusting” himself into a public dispute contemplated by Cottrell. In White v. Mobile Press Register, Inc., 514 So. 2d 902, 904 (Ala. 1987), the court held that a former regional administrator for the EPA and a “high level corporate executive in an industry that is the subject of much public interest and concern” was a limited purpose public figure. The court held that the plaintiff in White showed “a voluntary decision to place himself in a situation where there was a likelihood of public controversy” and his actions that were at issue “invited attention and comment.” (Id.) Curtis Ray handed out campaign literature and drove people to the polls in a local election. No one except the Defendant got him involved and Defendant paid him to be involved. Defendant cannot validly claim that such a person is a limited purpose public figure. But, in addition to all of that, Defendant, in order to make the “actual malice” argument, must be understood as saying that if the trier of fact finds he is lying about not making the slanderous statements, he wants to claim that he still wins because he did not make them with the required “actual malice.”
These are not alternative
defenses. They are completely contradictory defenses. It will be necessary to find
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Defendant is lying about the first defense to reach the second defense. He could not be merely mistaken about what he said. In short, the “limited public figure-actual malice” defense is “without substantial justification.” Or, put differently, if the Defendant has a “substantial justification” for his defense that he did not make the statements at issue, he cannot have a “substantial justification” for putting forward the defense that he did not make the statements with actual malice. Lawyers and parties are prohibited from asserting a defense without substantial justification in the particular case in which it is plead just because it is a textbook defense to the cause of action asserted. The “determination of malice in defamation cases is particularly within the province of the jury.” Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1095 (Ala. 1988). Section 12-19-272(a), Ala.Code 1975 states: “Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or in part.” (Emphasis supplied.) Ala.Code §12-19-271(1), 1975 states:
“The phrase „without substantial
justification,‟ when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that such action, claim, defense or appeal (including any motion) is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary 4
delay or needless increase in the cost of litigation, as determined by the court.” The clear terms of § 12-19-271(1) require that for an action, claim, or defense to be “without substantial justification” it must be either “frivolous,” “groundless in fact,” “groundless in law,” “vexatious,” or “interposed for any improper purpose.” We conclude that the terms or phrases “frivolous,” “groundless in fact,” “vexatious,” and “interposed for any improper purpose” require factual determinations that will be entitled to deference on appeal. See, Smith v. Smith, 551 So.2d 1024 (Ala.1989). Thus, if a trial court determines that a party's action, claim, or defense is “without substantial justification,” based on the applicability of any one of these terms or phrases, that determination will not be disturbed on appeal “unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.” Cove Creek Development Corp. v. APAC-Alabama, Inc., 588 So.2d 458, 461 (Ala.1991).
/s/ William E. Rutledge (RUT001) Attorney for the Plaintiff OF COUNSEL: RUTLEDGE & YAGHMAI 3800 Colonnade Parkway, Suite 490 Birmingham, AL 35243 T: (205) 969-2868 williamerutledge@aol.com
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CERTIFICATE OF SERVICE I hereby certify that on November 12, 2010, I electronically filed the foregoing with the Clerk of Court using the AlaFile System which will send notification of such filing to the following: W. Taylor Stewart, Esq. Donald W. Stewart, Esq. Donald W. Stewart, P.C. P. O. Box 2274 Anniston, AL 36202 /s/William E. Rutledge OF COUNSEL
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