                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                 CHRISTA ALEXANDER, Plaintiff/Appellee,

                                        v.

BILL LUKE CHRYSLER, JEEP & DODGE, INC., an Arizona corporation,
                     Defendant/Appellant.

                             No. 1 CA-CV 13-0324
                              FILED 05-27-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-022023
                The Honorable Douglas L. Rayes, Judge

                                  AFFIRMED


                                   COUNSEL

Weisberg & Meyers, LLC, Phoenix
By Russell Snow Thompson, IV
Counsel for Plaintiff/Appellee

Tacker & Associates, PLLC, Goodyear
By George A. Tacker
Counsel for Defendant/Appellant
                       ALEXANDER v. BILL LUKE
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.


G O U L D, Judge:

¶1            Bill Luke Chrysler, Jeep & Dodge, Inc. (“Bill Luke”) appeals
the superior court’s summary judgment granted to Christa Alexander on
its counterclaim for defamation. For the following reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            Alexander purchased a dealer-certified, used 2008 Chrysler
Pacifica from Bill Luke in April 2011. She informed the salesperson that
she wanted a vehicle that had not been in an accident and requested a
CarFax1 report. Despite her requests, Bill Luke did not give Alexander a
CarFax report, but the salesperson assured her the Pacifica would not
have received the dealership’s certification if it had any issues or had been
in an accident.

¶3            Several weeks after the purchase, Bill Luke finally provided
the CarFax report to Alexander which indicated the Pacifica had been
involved in a “T-bone” collision. Bill Luke representatives told Alexander
that the CarFax report must be incorrect because they had inspected the
vehicle and it showed no signs of such damage. Alexander distrusted the
statements from Bill Luke and believed Bill Luke was aware of the
damage prior to the sale and was deliberately evasive when she requested
the CarFax report.




1      Carfax, Inc. is a commercial service that supplies vehicle history
reports to individuals and businesses. Such reports may include title
information, flood damage history, total loss accident history, odometer
readings, lemon history, number of owners, accident indicators, state
emissions inspection results, service records, and commercial vehicle use.
See http://www.carfax.com/about/car_history/hcabout.cfm (last visited
May 8, 2014).



                                     2
                       ALEXANDER v. BILL LUKE
                         Decision of the Court

¶4          She filed the following complaint with the Better Business
Bureau (“BBB”):

      I went to the dealership with specific requirements for my
      purchase. One of them was that the car had not been
      involved in any collisions. I requested the [C]arFax several
      times and each time was told the same thing “the car was
      ‘certified’ and could not receive that status if there had been
      any damage or issues.” It was promised to me on several
      occasions. The last was when the salesman stated he would
      send it to me with his thank you letter. The thank you letter
      arrived but no [C]arFax. I went back to the dealership on
      6/21 and spoke to a manager who finally gave me the
      [C]arFax. Not only had the car been in a collision but was T-
      boned and had major damage. The sales manager then
      proceeded to tell me the [C]arFax was wrong and the car
      had not been in that sort of accident. I would not have
      purchased this vehicle had they given me the information up
      front. I believe I was purposely misinformed in order for the
      sale to happen. I was told several times that because it was
      the end of the month I would get a better deal if I purchased
      the car at the time I was there. I also believe the initial
      salesman was aware of the damage and deliberately gave me
      the run around about the information I requested.

¶5             Thereafter, Bill Luke obtained the repair documents from the
Pacifica’s earlier collision, which indicated the CarFax report was incorrect
and the Pacifica had suffered only minor damage to the left rear end.2

¶6            Alexander filed this action alleging Bill Like committed
fraud in the sale of the Pacifica and sought to revoke her purchase. Bill
Luke asserted a counterclaim for defamation arising out of Alexander’s
statements to the BBB.3 The superior court granted Alexander summary



2      Although the evidence Bill Luke cites as supporting this statement
does not appear in the record, Alexander does not dispute these facts.
Additionally, the record does contain documents evidencing the prior
repairs.

3     Bill Luke originally asserted counterclaims for both defamation and
breach of contract. The superior court granted Alexander’s motion to



                                     3
                        ALEXANDER v. BILL LUKE
                          Decision of the Court

judgment on the defamation claim, ruling Bill Luke had not proffered
sufficient evidence to establish a prima facie case of defamation. The
court also determined Alexander’s statements were protected by a
qualified privilege and Bill Luke had not offered any evidence that
Alexander acted with actual malice. Bill Luke timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1) (2014).4

                               DISCUSSION

¶7              We review the entry of summary judgment de novo, viewing
the evidence and reasonable inferences therefrom in the light most
favorable to the party opposing the motion. Andrews v. Blake, 205 Ariz.
236, 240, ¶ 12, 69 P.3d 7, 11 (2003). Summary judgment is only
appropriate when “there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ.
P. 56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008
(1990) (explaining that summary judgment is proper “if the facts produced
in support of the claim . . . have so little probative value, given the
quantum of evidence required, that reasonable people could not agree
with the conclusion advanced by the proponent of the claim”).

I.     The Superior Court Correctly Determined that Alexander’s
       Statements were not Defamatory as a Matter of Law

¶8           Bill Luke argues it presented sufficient evidence to establish
a prima facie case on its defamation claim by showing that Alexander’s
statements to the BBB were false and impugned its reputation. Alexander
contends her statements were either substantially true or expressions of
opinion and therefore are not actionable as defamation.



dismiss both claims pursuant to Arizona Rule of Civil Procedure 12(b)(6),
but allowed Bill Luke leave to amend the defamation claim.

4      The superior court entered the signed order granting summary
judgment “as a final appealable order.” We construe this language as a
direction for entry of judgment pursuant to Arizona Rule of Civil
Procedure 54(b). See Grand v. Nacchio, 214 Ariz. 9, 16, ¶ 17, 147 P.3d 763,
770 (App. 2006) (holding that the superior court need not specifically
mention Rule 54(b) if the language is clear that it intended to certify the
judgment for appeal).



                                      4
                        ALEXANDER v. BILL LUKE
                          Decision of the Court

¶9                “To be defamatory, a publication must be false and must
bring the defamed person into disrepute, contempt, or ridicule, or must
impeach plaintiff’s honesty, integrity, virtue, or reputation.” Godbehere v.
Phx. Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989).
“Substantial truth is an absolute defense to a defamation action in Arizona
. . . [and] [s]light inaccuracies will not prevent a statement from being true
in substance, as long as the ‘gist’ or ‘sting’ of the publication is justified.”
Read v. Phx. Newspapers, Inc., 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991)
(internal citations omitted). When, as in this case, the underlying facts are
undisputed, the determination of substantial truth is a matter for the
court. Id.

¶10           Only statements that may be reasonably interpreted as
factual assertions, not simply statements of opinion or hyperbole, are
actionable as defamation. Burns v. Davis, 196 Ariz. 155, 165, ¶ 39, 993 P.2d
1119, 1129 (App. 1999). To determine whether a false statement can be
reasonably interpreted as a factual assertion, a court must consider the
“context and all surrounding circumstances, including the impression
created by the words used and the expression’s general tenor.” Id.

       A.     Statement One: “Not only had the car been in a collision
              but was T-boned and had major damage.”

¶11           Bill Luke argues this statement was false because the Pacifica
had only sustained minor damage in the prior accident. Alexander asserts
the police report from the collision and records from the body shop that
repaired the Pacifica show that her statement that the Pacifica had been T-
boned and had major damage was either true or substantially true.

¶12           A T-bone accident is a right-angle or broadside collision, in
which the side of one vehicle is impacted by the front or rear of another
vehicle, forming a “T”. The police report states the Pacifica was struck on
the left rear side by a vehicle that hit it at a right angle. Accordingly,
Alexander’s statement that the Pacifica was “T-boned” is true and not
defamatory. Read, 169 Ariz. at 355, 819 P.2d at 941; Godbehere, 162 Ariz. at
341, 783 P.2d at 787.

¶13          Alexander next argues her statement that the vehicle
suffered major damage was substantially true and therefore, as a matter of




                                       5
                       ALEXANDER v. BILL LUKE
                         Decision of the Court

law, not defamatory.5       Bill Luke maintains the statement was
demonstrably false, as the auto body repair shop records show that the
prior repairs to the Pacifica consisted of a wheel replacement and
alignment, buffing of the rear bumper cover and touch-up painting, and
cost only $872.76.6

¶14           The statement was substantially true. Alexander explained
in her BBB statement that she told Bill Luke she required a vehicle that
had no prior accidents, but after she bought the Pacifica she learned it had
a prior accident.       Reading Alexander’s statement in context and
considering all of the surrounding circumstances, see Burns, 196 Ariz. at
165, ¶ 39, 993 P.2d at 1129, it is immaterial whether the accident was major
or minor – the “gist” of her statement was that Bill Luke was not
forthright regarding the vehicle’s history. Any damage to Bill Luke’s
reputation stems from the fact that Alexander requested a vehicle with no
accident history and received a vehicle that had been in a collision.
Accordingly, “the sting of the two versions is not substantially different,”
and Alexander’s statement “gave a substantially true account” of the
Pacifica’s damage history and an accurate reflection of her transaction
with Bill Luke. Read, 169 Ariz. at 355-56, 819 P.2d at 941-42.


5       We reject Alexander’s alternative argument that her statement that
the Pacifica had suffered “major” damage reflected her opinion and is not
susceptible of being proven false. See Yetman v. English, 168 Ariz. 71, 76,
811 P.2d 323, 328 (1991) (holding that a statement of opinion is protected
only if: (1) it could not reasonably be interpreted as stating actual fact; or
(2) it is not provable as false). Although what one considers “major”
damage certainly might vary from person to person, Alexander’s
statement could reasonably be interpreted as a factual assertion that the
Pacifica had sustained a certain level of damage in the prior collision.
Burns, 196 Ariz. at 165, ¶ 39, 993 P.2d at 1129 (stating that generally the
jury determines whether an ordinary listener would believe a statement to
be a factual assertion or mere opinion).

6      Bill Luke also states that photographs of the Pacifica taken after the
accident and prior to the repair establish the falsity of Alexander’s
statement, but does not provide a citation to the record. Although the
record contains photographs of the Pacifica, there is no foundation to
establish that they were taken after the accident and prior to the repair.
Further, because Bill Luke did not provide a record citation, it is not clear
whether those are the photographs on which it intended to rely.



                                      6
                       ALEXANDER v. BILL LUKE
                         Decision of the Court

      B.     Statement Two: “I requested the CarFax several times and
             each time was told the same thing[,] ‘the car was
             “certified” and cannot receive that status if there had been
             any damage or issues.’”

¶15           Alexander testified that she repeatedly asked Bill Luke
employees for the CarFax report before and even after she purchased the
vehicle and was told that the vehicle would not have received the
dealership’s certification if it had any issues or had been in an accident.
Bill Luke offered no contrary evidence. Accordingly, it did not carry its
burden to show with convincing clarity that there is a triable issue of fact
concerning whether this statement was false. Read, 169 Ariz. at 356, 819
P.2d at 942.

      C.      Statement Three: “I also believe the initial salesman was
             aware of the damage and deliberately gave me the
             runaround about the information I requested.”

¶16           As discussed, to be defamatory, a statement must be one of
fact, not opinion. Burns, 196 Ariz. at 165, ¶ 39, 993 P.2d at 1129.
Alexander’s statement concerns her belief that Bill Luke’s salesperson was
not forthright and evaded her requests for the CarFax report. Because the
statement constitutes an expression of opinion, it does not support Bill
Luke’s defamation claim. Id. Further, even if Alexander’s statement could
reasonably be interpreted as a factual assertion regarding the
salesperson’s knowledge and truthfulness, Bill Luke did not offer any
evidence that it was false (i.e., that the salesperson did not know about the
prior damage and was not evasive). Accordingly, it did not carry its
burden to show with convincing clarity that there is a triable issue of fact
concerning whether this statement was false. Read, 169 Ariz. at 356, 819
P.2d at 942.

      D.     Statement Four: “I believe that I was                purposely
             misinformed in order for the sale to happen.”

¶17            Again, this statement concerns Alexander’s belief about the
knowledge and motives of Bill Luke and its employees and therefore
constitutes a non-actionable expression of opinion. Burns, 196 Ariz. at 165,
¶ 39, 993 P.2d at 1129. To the extent it could be construed as a factual
assertion, Bill Luke did not offer any contrary evidence to show that the
statement was false. Read, 169 Ariz. at 356, 819 P.2d at 942.




                                     7
                      ALEXANDER v. BILL LUKE
                        Decision of the Court

                            CONCLUSION

¶18          Because we resolve this appeal on the basis that the
statements are not defamatory, we need not address the issue of qualified
privilege. The court’s grant of summary judgment is affirmed.




                                :gsh




                                   8
