Treff v. Kearns-Tribune Corporation et al

Treff v. Kearns-Tribune Corporation et al, No. 981053-CA, Filed October 22, 1998  
IN THE UTAH COURT OF APPEALS
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MEMORANDUM DECISION
(Not For Official Publication)

Robert Treff,
Plaintiff and Appellant,

v.

Kearns-Tribune Corporation, Dominic Welch, Thomas McCarthey, Ted Cilwick, Sheila McCann, and Sean Means,
Defendants and Appellees.

Case No. 981053-CA

F I L E D
October 22, 1998
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Third District, Salt Lake Department
The Honorable Frank G. Noel
 

Attorneys:
Robert Treff, Draper, Appellant Pro Se
Michael P. O'Brien and Sharon E. Sonnenreich, Salt Lake City, for Appellees

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Before Judges Davis, Wilkins, and Orme.

PER CURIAM:

Appellant Robert Treff appeals an order dismissing his complaint for defamation resulting from articles that appeared in The Salt Lake Tribune (The Tribune).(1)

The trial court correctly ruled the statute of limitations for libel barred all causes of action relating to articles published in The Tribune on December 27, 1986, February 6, 1987, April 18, 1988, and July 6, 1989. Utah Code Ann. 78-12-29(4)(1996) requires an action for libel or slander to be brought within one year. "[T]he one-year period of section 78-12-29(4) does not begin to run until the libel is known or is reasonably discoverable by the plaintiff." Allen v. Ortez, 802 P.2d 1307, 1314 (Utah 1990). "[A]n alleged defamation is reasonably discoverable, as a matter of law, at the time it is first published and disseminated in a newspaper which is widely available to the public." Russell v. Standard Corp., 898 P.2d 263, 264 (Utah 1995)(Emphasis added). We will not consider the claim Treff's inmate status restricted access to The Tribune because it is asserted for the first time on appeal. The ruling that any claims related to articles published prior to February of 1996 are barred by the statute of limitation is correct as a matter of law.

Although claims as to the March 31, 1996 and July 1, 1996 articles were not time-barred, those claims were also correctly dismissed. "Whether a statement is capable of sustaining a defamatory meaning is a question of law" reviewed for correctness. West v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court "cannot determine whether a statement is capable of sustaining a defamatory meaning by viewing individual words in isolation; rather, it must carefully examine the context in which the statement was made, giving the words their most common and accepted meaning." Id. at 1009. It is undisputed the March 31, 1996, article correctly reported that Treff's name appeared on a list of plaintiffs whose filings received special screening by the federal court. The report was accurate and any alleged defamatory content was attenuated and speculative. The trial court correctly ruled as a matter of law that the article was "accurate and non-defamatory," which we interpret as a conclusion it was not capable of sustaining a defamatory meaning.

The trial court ruled the "wire service defense" justified the dismissal of claims related to the July 1, 1996, article. However, we decline to reach the issue of whether the defense should be adopted in Utah because it is unnecessary to our disposition of this appeal. The article contained no reference to Treff. The names on the federal court's list were not republished; thus, it would be necessary for a reader to link this article with the article published three months earlier to find any conceivable application to Treff. Accordingly, the statements in the July 1, 1996, article were not capable of sustaining a defamatory meaning. An appellate court may affirm the trial court's decision "on any proper ground(s), despite the trial court's having assigned another reason for its ruling." Beuhner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 1988).

Based upon undisputed facts, the trial court did not err in dismissing the complaint for failure to state any claim for relief. We affirm the judgment dismissing the complaint.
 

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James Z. Davis, Presiding Judge
 

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Michael J. Wilkins, Associate Presiding Judge
 

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Gregory K. Orme, Judge

1. This case is again before the court pursuant to an order granting a petition for rehearing, based upon the voluntary recusal of Judge Judith M. Billings.