Cause of Action: Libel Per Se (Flint v. Marx, COA, NPO, 8/10/2012)

From Flint v. Marx, COA, NPO, 8/10/2012 (pro se appeal):

“Four elements are necessary to establish a defamation action, whether for slander or libel, to wit: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation.” McBrearty v. Kentucky Cmty. & Technical Coll. Sys., 262 S.W.3d 205, 213 (Ky. App. 2008). The standard for determining whether a written publication is libelous per se is long-standing:

FOOTNOTE: Defamation communicated orally is slander.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004), quoting 2 DAN B. DOBBS, THE LAW OF TORTS, § 401 at 1120 (2001).

The general proposition is that words, written or printed, are libelous and actionable per se, justifying a recovery without allegations of special damages, if they tend to degrade and disgrace the person about whom they are written or printed, or tend to expose him to public hatred, ridicule, contempt, aversion, or disgrace, or to induce an evil opinion of him in the minds of right-thinking persons and to deprive him of their friendly intercourse and society.

In order to be libelous per se, it is not essential that the words involve an imputation of crime, or otherwise impute the violation of laws, involving moral turpitude, or immoral conduct. But defamatory words, to be libelous per se, must be of such a nature that the court can presume as a matter of law that they do tend to disgrace and degrade the person, or to hold him up to public hatred, contempt, or ridicule, or to cause him to be shunned and avoided.

Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677, 681 (1931) (Internal citations omitted). Whether a written publication is defamatory and actionable per se is generally an issue of law to be determined by the court. See Yancey v. Hamilton, 786 S.W.2d 854 (Ky. 1989); Digest Pub. Co. v. Perry Pub. Co., 284 S.W.2d 832 (Ky. 1955); Deitchman v. Bowles, 166 Ky. 285, 179 S.W. 249 (1915).

As an initial matter, we note that the order of summary judgment entered by the trial court suggests that a written publication may be libelous per se only if it imputes unfitness to perform the duties of an office, occupation, or employment or if it has a tendency to prejudice a person in his/her trade, calling, or profession. However, this is an incorrect statement of the law. See Courier Journal Co. v. Noble, 251 Ky. 527, 65 S.W.2d 703, 703 (1933) (holding that spoken words are slanderous per se only if they impute crime, infectious disease, or unfitness to perform duties of office, or prejudice one in profession or trade, or tend to disinherit him and written or printed publications, which are false and tend to injure one in his reputation or to expose him to public hatred, contempt, scorn, obloquy, or shame, are libelous per se.); see also Stringer, 151 S.W.3d at 794-95; Shields, 238 Ky. 673, 38 S.W.2d at 680-81. However, while the trial court’s reasoning was wrong in this instance, “we, as an appellate court, may affirm the trial court for any reason sustainable by the record.” Kentucky Farm Bureau Mut. Ins. Co. v. Gray, 814 S.W.2d 928, 930 (Ky. App. 1991); see also Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803, 805 n.3 (Ky. 2010).

Our review of this case has proven difficult because appellant’s brief fails to directly identify which aspects of the subject letter he believes are defamatory in nature. Instead, appellant offers only a general assertion that the letter was libelous as a matter of law without explaining why that is, in fact, the case. Moreover, appellant has cited to no useful legal authority that would support his position. This lack of specificity and articulation was also a problem below.

For instance, appellant’s complaint is replete with vague accusations such as that “the letter made statements that are not true and [are] taken out [of] context” or that the letter was part of the condominium association’s “personal vendetta to turn owners against” him. The complaint’s only direct reference to the specific content of the letter is in appellant’s allegation that the “words in [appellee’s] letter show that he has no feelings for other people and has no concern for the truth and or the Association’s by-laws.” This lack of specificity would notbe an issue if the remainder of the record gave a better sense of the basis of appellant’s claims, but this is not the case. Instead, the only allusion to the content of appellee’s letter in the record6 is in a letter written in response by appellant to association members that was filed as an exhibit below. However, none of the statements referenced in appellant’s letter can be reasonably viewed as defamatory in nature. At most, they arise to the level of mere insult, name-calling, or hyperbole.

Thus, we are left to speculate at the actual basis for appellant’s claim, which we simply will not do. While we are generally willing to overlook inartful pleading by a pro se litigant, we are not willing to create his arguments or to conduct his legal research for him. See Grant v. Lynn, 268 S.W.3d 382, 391 (Ky. App. 2008). Appellant’s brief provides no assistance in ascertaining exactly what content in appellee’s letter merits legal recourse. Consequently, in light of appellant’s failures in this regard, we are compelled to conclude that the trial court did not err in granting summary judgment as to appellant’s claim of libel per se