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24711 - William Gary White, III, et al. v. Avery B. Wilkerson, Jr., etc, et al.

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).

p. 14