Fountain View Manor, Inc. v. Sheward

455 P.3d 9

FOUNTAIN VIEW MANOR, INC., an Oklahoma Corporation, Plaintiff/Appellant,

v.Howard SHEWARD, Jr., Defendant/Appellee.

Case No. 116,693

Court of Civil Appeals of Oklahoma, Division No. 1.

Decided: April 5, 2019

Mandate Issued: December 11, 2019

Rehearing Denied: May 21, 2019

Joel L. Wohlgemuth, Barrett L. Powers, Tulsa, Oklahoma, for Appellant,

Thomas Mortensen, James Sicking and Katrina Lucas, Tulsa, Oklahoma, for Appellee.

Opinion by Larry Joplin, Presiding Judge:

¶1 Appellant/Plaintiff, Fountain View Manor, Inc. (FVM), seeks review of the district court's order granting summary judgment in favor of the Appellee/Defendant, Howard Sheward, Jr., upon Appellant/Plaintiff's remaining claims for defamation relating to written materials Sheward disseminated about alleged improper use of city resources to correct sewage issues at Fountain View Manor, a private property in Henryetta, Oklahoma.

¶2 Appellant/FVM filed a motion for partial summary judgment on March 3, 2017. Appellee/Sheward filed a motion for summary judgment on July 24, 2017. A hearing on the competing motions was held on November 29, 2017, at the conclusion of which the district court ruled in favor of Sheward's motion for summary judgment on the remaining libel and damages claims of FVM/Appellant.¹ FVM/Appellant's partial motion for summary judgment was denied.

¶3 In December 2014, after becoming concerned with raw sewage leaking into the street from under a manhole cover and observing the continued presence of city trucks at FVM's property, Sheward sent an open records request to the city clerk in an effort to obtain information about the use of the city resources at FVM. Sheward said his open records request was ignored.

¶4 In 2015, FVM began work to repair a sewer main line under part of the FVM building facility. According to both parties the repair was costly, in excess of $100,000. Sheward, who lived across the street from FVM, testified the project took approximately a month to complete and city vehicles were constantly at the FVM site, using vacuum trucks to vacuum sewage during the course of the sewer line repair. Sheward believed FVM was wrongly taking advantage of city vacuum trucks and other resources in order to repair the sewer line on the private property. Sheward believed the Mayor of Henryetta, who was also the administrator of FVM, used her connections with the city to improperly procure the use of city resources, costing the taxpayers significantly for work the public should not be responsible for, given that FVM is a privately owned entity on privately owned property.

¶5 FVM's petition² alleges Sheward went onto FVM property on a number of occasions, taking photos, speaking with FVM employees and with employees of the plumbing company hired to do the sewer line work. FVM was granted a Temporary Restraining Order (TRO) in October 2015, ordering Sheward to refrain from entering the FVM property, taking photos or videos or communicating with FVM employees. In late 2015 to early 2016, an agreement was reached between FVM and Sheward wherein Sheward would agree to cease his activities criticizing FVM and FVM would dismiss its then-pending action against Sheward and vacate the TRO. Sheward agreed and the action was dismissed without prejudice in January 2016. The TRO was vacated. FVM alleged Sheward violated the agreement when he continued his critical commentary and contacted the paper and distributed materials (flyers and emails) saying FVM had sued him for a million dollars in an effort to cover up the misuse of city resources. At the end of January 2016, FVM sent Sheward a letter demanding he cease his actions in violation of the agreement; no response from Sheward was forthcoming. FVM filed another libel and slander petition on February 10, 2016 and an amended petition on June 13, 2016.

¶6 FVM filed a notice of tort claim against the City of Henryetta stating that a "city sewer main running under part of our building ... collapsed" and claimed $102,953.96 was spent to fix the sewer line issue. At a September 2015 city counsel meeting, FVM co-owner asked the city to pay $39,500 toward the cost of the repair. At the city counsel meeting, the co-owner described the damage as a "break" in the line, not a collapse. After the city counsel meeting, Sheward prepared a flyer addressed to the taxpayers and voters and called upon them to contact city hall and ask the city officials to vote against FVM's tort notice payment request.

¶7 On November 29, 2017, a summary judgment hearing was scheduled to address Sheward's request to dismiss the libel claims made by FVM, the slander claims having already been dismissed by FVM prior to the hearing.

Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.

12 O.S. 2011 § 1441. "A writing is libelous per se ‘when the language used therein is susceptible of but one meaning, and that an opprobrious one, and the publication on its face shows that the derogatory statements, taken as a whole, refer to the plaintiff.’ Fite v. Oklahoma Pub. Co. , 146 Okla. 150, 293 P. 1073 (1930) (syllabus by the court)." Sturgeon v. Retherford Publ'ns, Inc. , 1999 OK CIV APP 78, 987 P.2d 1218, 1223.

¶8 Sheward's various attempts to distribute and gather information concerning FVM, the mayor and the misuse of city resources included the following. First, Sheward sent an open records request to the city clerk on December 23, 2014 asking for information regarding city services provided to address sewer and sanitation efforts at FVM. On March 1, 2015, Sheward sent an email to the city manager and others complaining that city services responding to FVM and assisting in the sewer repair or cleanup were improper; and Sheward indicated he had photos and other information regarding possible misuse of the city's resources. On May 11, 2015, Sheward sent an email to the mayor and others regarding the mayor's improper use of city resources in aid of FVM, and accusing the mayor of "struggling with censorship of your illegal activities." On August 2, 2015, Sheward made another open records act request, seeking information about the city services provided to assist FVM with its sewage cleanup issue. Shortly after a September 18, 2015 city counsel meeting at which FVM requested reimbursement from the city for part of the sewer repair costs, Sheward distributed a flyer among the "taxpayers and registered voters" of Henryetta, informing the public of the raw sewage problems, the use of city resources and the high cost of the repair. In the flyer, Sheward asked the citizens to contact their councilmen and stop FVM's effort to force the city to pay for any part of the repair and ask the city to instead file suit against FVM for recovery of funds used in the past to maintain the line, as well as demand removal of the portion of the building that was improperly built over the city easement where the sewer line was located. On October 1, 2015, Sheward sent another email to the mayor, city manager and others regarding a complaint and EPA investigation of the sewage matter. Sheward also said FVM made improper threats against the city, Sheward represented that FVM claimed it would file a tort claim against the city if the city did not help pay for the repair. In the October 1, 2015 email, Sheward said the city attorney "should be filing a civil and criminal law suit against the owners of Fountain View Manor." On January 27, 2016, Sheward sent an email to the local paper asking to be given "an equal voice on a Free Lance editorial [ ] of a September 2015 city council topic." Sheward also said FVM had sought a million dollar suit against him in order to keep him quiet about his concerns with the mayor's abuse of city resources. Shortly thereafter, on February 10, 2016, FVM filed its petition marking a second suit against Sheward due to his failure to honor the earlier agreement to keep quiet about his allegations of misuse of city resources.

¶9 Sheward's motion for summary judgment was premised on his assertion that he had the right to seek and disseminate information regarding his allegations of misuse of city resources for the benefit of a private business with which the mayor had a close relationship.³ Sheward asserted FVM engaged in a SLAPP litigation lawsuit in an effort to silence him from exposing the mayor's wrongdoing and the city's misuse of labor, trucks, supplies and other resources for the benefit of FVM, a facility for which the mayor was administrator.⁴

¶10 The appealed from order of the district court granted Sheward's summary judgment motion. First the court granted Sheward's summary judgment motion with respect to claims Nos. 1, 2, 6, and 8. In its findings of fact and conclusions of law the court stated Sheward,

... presented substantial evidence that Plaintiff [FVM] engaged in "Strategic Litigation Against Public Participation" - or "SLAPP" litigation - when it filed this lawsuit, which is prohibited under Oklahoma law,... Plaintiff [FVM] filed the above-captioned matter primarily as its purpose to silence the Defendant [Sheward] from being critical of "public figures" about "matters of public concern." Plaintiff's alleged injuries, if any, were the result of Defendant's [Sheward] privileged communications involving the "right to petition" and/or "right to free speech" that are protected by the First Amendment to the United States Constitution[.]

The court further found Sheward's alleged defamatory remarks were directed at a "public figure" about a "matter of public concern" and were not actually directed at the corporate entity (FVM...