Jay Folse v. Suzanne Elliott ( 2021 )


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  •                                                                                 FILED
    October 13, 2021
    EDYTHE NASH GAISER, CLERK
    STATE OF WEST VIRGINIA                           SUPREME COURT OF APPEALS
    SUPREME COURT OF APPEALS                               OF WEST VIRGINIA
    Jay Folse,
    Plaintiff Below, Petitioner
    vs.) No. 20-1012 (Mercer County 20-C-164-DS)
    Suzanne Elliott; West Virginia Newspaper
    Publishing Company, dba Dominion Post; and
    West Virginia Radio Corporation, dba Metro News,
    Defendants Below, Respondents
    MEMORANDUM DECISION
    Self-represented petitioner Jay Folse appeals the December 11, 2020, order of the Circuit
    Court of Mercer County granting respondents’ motion to dismiss petitioner’s complaint in his
    defamation action against them. Respondents Suzanne Elliott; West Virginia Newspaper
    Publishing Company, dba Dominion Post; and West Virginia Radio Corporation, dba Metro News
    (collectively “respondents”), by counsel David Allen Barnette and Chelsea A. Creta, filed a
    response. Petitioner filed a reply.
    The Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the briefs, and the record
    presented, the Court finds no substantial question of law and no prejudicial error. For these
    reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
    of the Rules of Appellate Procedure.
    On July 31, 2020, petitioner filed a complaint against respondents in the Circuit Court of
    Mercer County. In the complaint, petitioner alleged that respondents defamed him in an article
    published in The Dominion Post and on wvmetronews.com on July 31, 2019, and he attached the
    article as an exhibit. The article was headlined “Man removed from WVU BOG meeting after
    violating ‘no trespass’ order” and stated as follows:
    MORGANTOWN, W.Va.—A Bluefield man, who is suing West Virginia
    University for failing to provide him with documents explaining why he was not
    1
    admitted to the law school, was forcibly removed from a Board of Governor’s
    meeting Wednesday morning.
    Jay Folse is under a “no trespass order” from the university.
    The no trespass order was issued by University Police on July 8 for all university
    property after Folse threatened and harassed several university officials and
    representatives. Additionally, he previously refused to leave an executive session
    portion of a BOG committee during a meeting at the Summit Bechtel Reserve in
    Beckley in June.
    Folse, 25, was sitting in the audience before the meeting began. He ignored several
    verbal requests from university officials to leave, saying that the meeting was
    public.
    Before the start of the meeting, the university provided Folse a telephone number to
    call in to listen to the public meeting, but he declined to accept the offer. When he
    was asked to leave and comply with the no trespass order, he refused and briefly
    struggled with a police officer before being handcuffed and led from the room.
    Folse was arrested and charged with trespassing, disorderly conduct[,] and
    obstructing an officer and is currently awaiting arraignment, university officials
    said.
    The only statement in the article that petitioner identified as defamatory in his complaint
    was “Folse threatened and harassed several university officials.” Petitioner alleged that the
    statement was false and implied that he committed the offense of making a terroristic threat.
    Petitioner sought unspecified compensatory and punitive damages from respondents.
    On September 3, 2020, respondents filed a motion to dismiss the complaint pursuant to
    Rule 12(b)(6) of the West Virginia Rules of Civil Procedure for a failure to state a claim upon
    which relief can be granted. Respondents argued that their publication of the article was a
    privileged communication pursuant to the public meeting reporting privilege. Following a hearing,
    by order entered December 11, 2020, the circuit court granted respondents’ motion to dismiss the
    complaint. 1
    Petitioner now appeals the circuit court’s December 11, 2020, order dismissing the
    complaint. We have stated that “[t]he purpose of a motion under Rule 12(b)(6) is to test the formal
    sufficiency of the complaint.” Collia v. McJunkin, 
    178 W. Va. 158
    , 159, 
    358 S.E.2d 242
    , 243
    (1987). “Dismissal for failure to state a claim is proper where it is clear that no relief could be
    1
    The circuit court also based its dismissal of the complaint on the fair comment privilege.
    Finding that the circuit court properly dismissed the complaint due to the public meeting reporting
    privilege, see infra, we do not address its application of the fair comment privilege to this case.
    2
    granted under any set of facts that could be proved consistent with the allegations.” Zsigray v.
    Langman, 
    243 W. Va. 163
    , 169, 
    842 S.E.2d 716
    , 722 (2020) (quoting Murphy v. Smallridge, 
    196 W. Va. 35
    , 36, 
    468 S.E.2d 167
    , 168 (1996)) (internal quotations omitted). “Appellate review of a
    circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel.
    McGraw v. Scott Runyan Pontiac-Buick, 
    194 W. Va. 770
    , 
    461 S.E.2d 516
     (1995).
    In this case, the complaint “is deemed to include” the article because petitioner attached it
    to the complaint. Forshey v. Jackson, 
    222 W. Va. 743
    , 748, 
    671 S.E.2d 748
    , 753 (2008) (quoting
    Chambers v. Time Warner, Inc., 
    282 F.3d 147
    , 152 (2nd Cir. 2002)) (emphasis omitted). As we
    held in Syllabus Point 1 of Forshey, “[a] circuit court ruling on a motion to dismiss under Rule
    12(b)(6) of the West Virginia Rules of Civil Procedure may properly consider exhibits attached to
    the complaint without converting the motion to a Rule 56 motion for summary judgment.” 222 W.
    Va. at 744, 671 S.E.2d at 749.
    On appeal, petitioner initially argues that, because there was publication in a newspaper
    and on a website, he was defamed in two different articles. Respondents counter that there was
    only one article published in two formats. For purposes of respondents’ motion to dismiss, “the
    circuit court was required to construe the complaint in the light most favorable to [petitioner], and
    its allegations are to be taken as true.” Zsigray, 243 W. Va. at 173, 842 S.E.2d at 726
    (quoting Lodge Distrib. Co., Inc. v. Texaco, Inc., 
    161 W. Va. 603
    , 605, 
    245 S.E.2d 157
    , 158
    (1978)). According to the complaint, Respondent Elliott “wrote an article which was published in
    the Dominion Post newspaper and on wvmetronews.com[.]” (emphasis added). Therefore, based
    upon our review of the allegations set forth in the complaint, we concur in the circuit court’s
    finding that “the article attached to the . . . complaint” formed the basis of petitioner’s claim
    against respondents.
    With regard to that claim, we held in Syllabus Point 5 of Zsigray that, in contrast to a public
    official or figure who alleges defamation, a private person must allege “(1) defamatory statements;
    (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at
    least negligence on the part of the publisher; and (6) resulting injury.” 243 W. Va. at 165, 842
    S.E.2d at 718. (quoting Syl. Pt. 1, Crump v. Beckley Newspapers, Inc., 
    173 W. Va. 699
    , 
    320 S.E.2d 70
     (1983)). “The existence or nonexistence of a qualifiedly privileged occasion . . . in the absence
    of controversy as to the facts, [is a] question [ ] of law for the court.” Zsigray, 243 W. Va. at 166,
    842 S.E.2d at 719, syl. pt. 9. (quoting Crump, 173 W. Va. at 703, 320 S.E.2d at 74, syl. pt. 6)
    (additional citation omitted).
    Petitioner argues that the circuit court erred in granting respondents’ motion to dismiss.
    Petitioner further argues that factual disputes preclude the application of the public meeting
    reporting privilege from being a question of law in this case. Respondents counter that petitioner
    “strains” to create factual disputes where none exist on the face of the complaint, the allegations of
    which are taken as true. See Zsigray, 243 W. Va. at 173, 842 S.E.2d at 726; Lodge Distrib. Co., 161
    W. Va. at 605, 
    245 S.E.2d at 158
    . Here, based upon our review of the complaint’s allegations, we
    concur in the circuit court’s finding that petitioner alleges only one statement to be defamatory,
    which is that “Folse threatened and harassed several university officials.”
    3
    Respondents argue that, even if that statement is defamatory, pursuant to the public
    meeting reporting privilege, the complaint fails to allege the second element of a private
    defamation action: a nonprivileged communication. We agree as we have found that privilege is
    one of two defenses that “allow a defendant to avoid all liability once established.” Crump, 173 W.
    Va. at 706, 320 S.E.2d at 77. 2
    In Syllabus Point 6 of Hinerman v. Daily Gazette Co., Inc., 
    188 W. Va. 157
    , 
    423 S.E.2d 560
     (1992), we set forth the public meeting reporting privilege:
    [t]he publication of defamatory matter concerning another in a report of an official
    action or proceeding or of a meeting open to the public that deals with a matter of
    public concern is privileged if the report is accurate and complete or a fair
    abridgement of the occurrence reported. However, not only must the report be
    accurate but it must be fair. Even a report that is accurate so far as it goes may be so
    edited and deleted as to misrepresent the proceeding and thus be misleading. Thus,
    although it is unnecessary that the report be exhaustive and complete, it is
    necessary that nothing be omitted or misplaced in such a manner as to convey an
    erroneous impression to those who hear or read it. An example would be a report of
    the discreditable testimony in a judicial proceeding and a failure to publish the
    exculpatory evidence or the use of a defamatory headline in a newspaper report, the
    qualification of which is found only in the text of the article. The reporter is not
    privileged to make additions of his own that would convey a defamatory
    impression nor to impute corrupt motives to anyone, nor to indict expressly or by
    innuendo the veracity or integrity of any of the parties.
    Relying upon Syllabus Point 6 of Hinerman, petitioner raises a legal argument that he
    mistakenly believes to be a factual one. Petitioner argues that the public meeting reporting
    privilege does not apply where there is no allegation of an official report of the meeting. While
    petitioner’s argument is unclear, we interpret his argument to mean “a report made at the meeting”
    because he states that “[p]etitioner was never discussed during the meeting[,] and no report
    whatsoever was made about him.” We reject such an argument as a mischaracterization of
    Syllabus Point 6 of Hinerman where this Court used “report” to mean an article written by a news
    reporter who must be accurate and fair in her “report . . . of a meeting open to the public that deals
    with a matter of public concern”; may not edit or delete from the report “as to misrepresent the
    proceeding”; and “is not privileged to make additions of [her] own that would convey a
    defamatory impression nor to impute corrupt motives . . . , nor to indict . . . .” Id. at 161, 
    423 S.E.2d at 564
    .
    Next, petitioner makes two arguments contrary to the complaint’s allegations despite the
    fact that its allegations are taken to be true. Petitioner first argues that the source of information for
    the article at issue is disputed by the parties. We find that the complaint alleges that Respondent
    2
    Truth is the other defense that allows a defendant to avoid all liability in a defamation
    action. See Crump, 173 W. Va. at 706, 320 S.E.2d at 77.
    4
    Elliott, the news reporter, was sitting in the audience “at a public meeting of the West Virginia
    University Board of Governors” in front of where petitioner was sitting and that, “[a]s the meeting
    was starting,” the university’s general counsel approached petitioner to inform him that he “was
    not allowed at the meeting because he had threatened people.” Therefore, while petitioner argues
    that the parties dispute the source of information for Respondent Elliott’s report, petitioner’s
    complaint identifies the university’s general counsel as the source. Petitioner further argues that
    the public meeting reporting privilege does not apply because his confrontation with the general
    counsel occurred prior to the meeting; however, according to the complaint, the confrontation took
    place in the audience at the meeting “[a]s the meeting was starting.” Accordingly, we reject both of
    these arguments as contradicted by the allegations set forth in petitioner’s own complaint.
    In reliance on Zsigray, petitioner makes one final argument that we find is contradicted by
    the allegations set forth in his own complaint. In Zsigray, we reversed the dismissal of one of two
    defamation claims, finding that qualified privileges like the public meeting reporting privilege can
    be defeated by a bad motive and that the complaint in that case alleged that the defendant acted
    maliciously. 243 W. Va. at 173-74, 842 S.E.2d at 726-27. This Court in Zsigray further noted that
    another instance in which a qualified privilege may be defeated is where there is reckless disregard
    for a statement’s truth or falsity. Id. at 173 n.11, 842 S.E.2d at 726 n.11 (citing Crump, 173 W. Va.
    at 707, 320 S.E.2d at 78). Here, petitioner argues that respondents acted with reckless disregard;
    however, the compliant alleges that respondents were “negligent” in reporting the allegedly
    defamatory statement. Therefore, we reject petitioner’s argument as he may not make an allegation
    on appeal that is not found in his complaint.
    Having determined that there are no factual disputes, we now examine the applicability of
    the public meeting reporting privilege as set forth in Syllabus Point 6 of Hinerman. See 188 W. Va.
    at 161, 
    423 S.E.2d at 564
    . As found above, petitioner alleges only one statement in the article at
    issue to be defamatory, which is that “Folse threatened and harassed several university officials.”
    Respondents argue that the article was a privileged communication. Based on our review of the
    complaint and the article attached to it, we concur with the circuit court’s findings that “the article
    reports on the events that transpired at a public meeting” where Respondent Elliott, the news
    reporter, “by [petitioner]’s admission, was seated in front of [petitioner] when [petitioner] was
    asked to leave because he had threatened other [university] employees/representatives.”
    Accordingly, we conclude that the circuit court properly dismissed the complaint as the article
    constituted a privileged communication. See Crump, 173 W. Va. at 706, 320 S.E.2d at 77 (finding
    that privilege is a defense that allows a defendant in a defamation action that to avoid all liability).
    For the foregoing reasons, we affirm the circuit court’s December 11, 2020, order granting
    respondents’ motion to dismiss petitioner’s complaint in his defamation action against them. 3
    3
    We have discerned petitioner’s arguments to the best of our understanding given their
    imprecise and confusing nature. We note that Rule 10(c)(7) of the Rules of Appellate Procedure
    provides that “[t]he argument must contain appropriate and specific citations to the record on
    appeal, including citations that pinpoint when and how the issues in the assignments of error were
    presented to the lower tribunal,” and that “[t]he Court may disregard errors that are not adequately
    (continued . . .)
    5
    Affirmed.
    ISSUED: October 13, 2021
    CONCURRED IN BY:
    Chief Justice Evan H. Jenkins
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    Justice John A. Hutchison
    Justice William R. Wooton
    supported by specific references to the record on appeal.” “Although we liberally construe briefs in
    determining issues presented for review, issues which are not raised, and those mentioned only in
    passing but are not supported with pertinent authority, are not considered on appeal.” State v.
    LaRock, 
    196 W. Va. 294
    , 302, 
    470 S.E.2d 613
    , 621 (1996); State v. Lilly, 
    194 W. Va. 595
    , 605
    n.16, 
    461 S.E.2d 101
    , 111 n.16 (1995) (finding that cursory treatment of an issue is insufficient to
    raise it on appeal).
    6