       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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DONALD CANFIELD,
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                                               No. 72869-5-I                 c5
                     Appellant,                                              PO
                                               DIVISION ONE
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              v.

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MICHELLE CLARK,                                                               en
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                     Respondent,               UNPUBLISHED OPINION


"JOHN DOE1" and "JANE DOE1," and               FILED: August 22,    2016
their marital community, and
"JOHN DOE2" and "JANE DOE2," and
their marital community,

                     Defendants.



       Becker, J. — The verdict form used in this defamation case did not hinder

the plaintiff's presentation of his theory of defamation per se. The trial court did

not err in refusing to order a new trial when the jury returned a verdict of zero

damages. We affirm.

       This is appellant Donald Canfield's second appeal. As the result of his

first appeal, he was allowed to bring to trial a defamation claim against Michelle

Clark.1 Canfield supervised Clark when both were employed in the electrical

shop of the Seattle Public Schools. Clark reported that Canfield carried a gun



        Canfield v. Clark, noted at 175 Wn. App. 1003 (2013).
No. 72869-5-1/2



while on school property. Carrying a gun on school property is a crime, and

Clark's statements prompted an investigation of Canfield. The investigation led

to Canfield being demoted, but not for carrying a gun on school property. That

allegation was never substantiated. The demotion was for harassing other shop

employees and creating a hostile work environment. Through a grievance

arbitration, Canfield was reinstated, won back wages, and had the discipline

reduced to an oral reprimand.

       Canfield believed that Clark's accusation had damaged his health,

financial condition, and reputation. He sued her for defamation. The case went

to trial in October 2014. The jury found on a special verdict form that Clark

(1) made defamatory statements against Canfield and (2) did so with actual

malice, but (3) did not cause damage to Canfield. Canfield appeals.

                       DENIAL OF SUMMARY JUDGMENT

       We first address Canfield's claim that the trial court erred by denying his

motion for summary judgment. The trial court determined that summary

judgment was precluded by the following factual issues: (1) whether Clark's

statements about Canfield were false and (2) whether Clark's statements injured

Canfield.

       "A summary judgment denial cannot be appealed following a trial ifthe

denial was based upon a determination that material facts are disputed and must

be resolved by the fact finder." Brothers v. Pub. Sch. Emps. of Wash., 88 Wn.

App. 398, 409, 945 P.2d 208 (1997). Because the trial court found there were

disputed issues of fact, this assignment of error is unreviewable.
No. 72869-5-1/3



                   VERDICT FORM AND DEFAMATION PER SE

       Canfield's primary assignment of error concerns the form of the verdict.

He contends that improper wording prevented the jury from considering his

theory of defamation per se and giving him at least a nominal award of damages.

       Although Canfield does not assign error to the instructions, a review of the

instructional framework for the defamation claim helps to put the argument about

the verdict form in context.


       Instruction 4 defined "defamatory statement."

              A statement is defamatory if it tends so to harm the
       reputation of another so as to lower him in the estimation of the
       community or to deter third persons from associating or dealing
       with him.


       Instruction 5 summarized Canfield's defamation claim and correctly stated

the elements, including the element of proximate cause. Schmalenberg v.

Tacoma News. Inc., 87 Wn. App. 579, 601-02, 943 P.2d 350 (1997), review

denied, 134 Wn.2d 1013 (1998).

              In this case, the Plaintiff claims that the Defendant made a
       defamatory statement that Plaintiff had a gun on school district
       property to Mr. Auki Piffath and Ms. Jeanette Bliss and that the
       Plaintiff suffered damages as a result.
               For the Plaintiff to recover on his claims for defamation, you
       must decide by a preponderance of the evidence that each of the
       following elements are met:
              (1) that the Defendant communicated the statement, either
                  orally or in writing, to a person other than the Plaintiff;
              (2) that the statement was false;
              (3) that the statement was not privileged, and;
              (4) that the statement was a "proximate cause" of damage to
                   Plaintiff. "Proximate cause" is explained in instruction
                   No. 8. Damages are explained in instruction No. 10.
No. 72869-5-1/4



       Instruction 6 required Canfield to prove that Clark made the defamatory

statements with actual malice.

              The Court has determined that Plaintiff is a "public figure" for
      purposes of his defamation claim. Consequently, Plaintiff must
      prove a higher degree of fault by Defendant.
              For the Plaintiff to recover on his claims of defamation, you
      must also decide by a standard of clear and convincing evidence
      that Defendant made the alleged defamatory statements to Auki
      Piffath and Jeanette Bliss with actual malice, meaning knowing the
      statement was false or with reckless disregard for the truth or falsity
       of the statement.
              "Reckless disregard" means (1) a high degree of awareness
       of probable falsity or (2) the defendant in fact entertained serious
       doubts about the truth of the statement.

       Instruction 7 explained that the alleged statements were subject to a

qualified privilege that Clark could lose if Canfield showed that she abused it.

               The Court has determined as a matter of law that the alleged
       defamatory statements made by Defendant were subject to a
       qualified privilege. A qualified privilege exists between parties who
       have a common interest such as communications between
       employees in a corporation or business.
               The privilege may be lost if Plaintiff can show it was abused.
       The defendant abuses a qualified privilege if any one of the
       following applies:
                1) She knows the statement to be false or makes the
       allegedly defamatory statements in reckless disregard for the truth
       or falsity of the statement; or
               2) She does not act for the purpose of protecting the interest
       that is the reason for the existence of the privilege; or
              3) She knowingly publishes the matter to a person to whom
       its publication is not otherwise privileged; or
              4) She does not reasonably believe the matter to be
       necessary to accomplish the purpose for which the privilege is
       given.

       Instruction 8 was a standard definition of proximate cause.

              The term "proximate cause" means a cause which in a direct
       sequence produces the injury complained of and without which
       such injury would not have happened.
No. 72869-5-1/5



      Instruction 9 instructed the jury on the law of defamation per se.

             Generally, a plaintiff may recover only the actual damages
      caused by defamation. However, a plaintiff is not required to prove
      actual damages if a communication is "defamatory per se." A
      defamatory statement is defamatory per se if it exposes a person to
      hatred, contempt, ridicule or obloquy, to deprive him of the benefit
      of public confidence or social intercourse, or injures him in his
      business, trade, profession or office.

      Instruction 10 stated the measure of damages.

             It is the duty of the court to instruct you as to the measure of
      damages. By instructing you on damages the court does not mean
      to suggest for which party your verdict should be rendered.
             If your verdict is for the plaintiff, Donald Canfield, then you
      must determine the amount of money that will reasonably and fairly
      compensate the plaintiff for such damages as you find were
      proximately caused by Defendant Clark's defamatory statements.
             If you find for the plaintiff, you should consider the following
      elements:
             (1) The physical harm to the plaintiff;
             (2) The emotional harm to the plaintiff caused by the
             defendant's defamatory statements, including emotional
             distress, loss of enjoyment of life, humiliation, pain and
             suffering, personal indignity, embarrassment, fear, anxiety,
              loss of reputation and/or anguish experienced and with
              reasonable probability has been experienced by plaintiff in
             the past, the present and in the future.
             The burden of proving damages rests upon the party
      claiming them, and it is for you to determine, based upon the
      evidence, whether any particular element has been proved by a
      preponderance of the evidence.
             Any award of damages must be based upon evidence and
      not upon speculation, guess, or conjecture. The law has not
      furnished us with any fixed standards by which to measure
      emotional distress, loss of enjoyment of life, humiliation, pain and
      suffering, personal indignity, embarrassment, fear, anxiety, and/or
      anguish. With reference to these matters you must be governed by
      your own judgment, by evidence in the case, and by these
      instructions.


      The verdict form posed four questions to the jury.

             We, the jury answer the questions submitted by the court as
      follows:
No. 72869-5-1/6



      QUESTION NO. 1: Do you find that the Defendant Clark made
      defamatory statements about Plaintiff Canfield?
      ANSWER:                     Yes          No
      (DIRECTION: if you answered "no" to Question 1, STOP and sign
      and date this verdict form. Ifyou answered "yes," answer Question
      No. 2).

      QUESTION NO. 2: Do you find that Defendant Clark made the
      defamatory statements with actual malice, knowledge of the
      statements' falsity or reckless disregard for the truth?

      ANSWER:                     Yes          No
      (DIRECTION: if you answered "no" to Question 2, STOP, sign this
      verdict form. Ifyou answered "yes"to Question 2, answer Question
      No. 3).

      QUESTION NO. 3: Do you find that the defamatory statement
      made by Ms. Clark was a proximate cause of damages to Mr.
      Canfield?


      ANSWER:                     Yes          No
      (DIRECTION: if you answered "no" to Question 3, STOP and sign
      and date this verdict form. Ifyou answered "yes," answer Question
      No. 4).

      QUESTION NO. 4: What do you find to be Mr. Canfield's total
      amount of damages proximately caused by the defamatory
      statements made by Defendant Clark?
      ANSWER: $
      (DIRECTION: STOP and sign and date this verdict form.)

      The jury answered yes to the first two questions, finding that Clark made

defamatory statements about Canfield with actual malice. The jury answered no

to question 3, finding that the defamatory statement did not proximately cause

damage to Canfield. Accordingly, the jury did not answer question 4 about the

amount of damages.

      Canfield contends question 3 was misleading and legally erroneous

because the question prevented the jury from presuming damages as permitted

by the doctrine of defamation per se. His argument is consistent with the
No. 72869-5-1/7



objection he raised to the verdict form during the final instructions colloquy.2 We

will regard the issue as preserved even though Canfield does not argue that it

would have been acceptable to substitute any of the versions of the verdict form

he proposed to the trial court.3 See Crossen v. Skagit County, 100 Wn.2d 355,

358-61, 669 P.2d 1244 (1983). The court had several extensive discussions with

the parties regarding the instructions, and the court was aware of Canfield's

position that question 3 should have stated that damages are presumed if the

plaintiff proves defamation per se. The trial court reasoned, however, that the

wording of the verdict form "flows naturally given the general instructions we've

given."

          We review a trial court's decision regarding a special verdict form under

the same standard we apply to decisions regarding jury instructions. State v.

Fehr, 185 Wn. App. 505, 514, 341 P.3d 363 (2015). Jury instructions are not

erroneous if they permit each party to argue their theory of the case, are not

misleading, and when read as a whole, properly inform the trier of fact of the




          2 Compare Verbatim Report of Proceedings (Nov. 5, 2014) at 1145-46 with
Brief of Appellant at 34.
          3 See Clerk's Papers at 920, 995, 1667-68 (plaintiffs' proposed special
verdict forms). The special verdict form in Canfield's third set of proposed
instructions read as follows:
          QUESTION 1: Do you find that the defendant defamed plaintiff?
       ANSWER:                       Yes            No
          If you answer no, please sign the verdict form.

       QUESTION 2: If you find that defendant defamed plaintiff, what do
       you find to be plaintiff's damages?
       ANSWER: $
Clerk's Papers at 1667-68.
No. 72869-5-1/8



applicable law. Caruso v. Local Union No. 690. 107 Wn.2d 524, 529, 730 P.2d

1299, cert, denied. 484 U.S. 815 (1987).

       When a statement is defamatory per se, "'damage to the plaintiff is said to

be "presumed," and the jury, without any further data, is at liberty to assess

substantial damages, upon the assumption that the plaintiff's reputation has been

injured and his feelings wounded.'" Arnold v. Nat'l Union of Marine Cooks &

Stewards, 44 Wn.2d 183, 187, 265 P.3d 1051 (1954), quoting Charles T.

McCormick, Handbook on the Law of Damages 423, §116(1935). Consistent

with that statement of law, instruction 9 properly informed the jury that a plaintiff

who can prove defamation per se does not need to put on proof of "actual

damages."

       According to Canfield, the defamatory statement that he carried a gun on

school grounds was necessarily defamatory per se because that conduct is

criminal. Yet the jury failed to assess any damages at all, and in Canfield's

opinion that failure must have occurred because of the wording of question 3.

       "Where a defamation is actionable per se, and neither truth nor
       privilege is established as a defense, the defamed person is
       entitled to substantial damages
               Special Verdict Form, Question No. 3 is misleading in that it
       could lead the jury to conclude that it was required to find Plaintiff
       was damaged even if the jury were to find the statements made by
       Defendant Clark to be defamatory per se.

Appellant's Brief, at 34 (citations omitted). Canfield argues that question 3

required him "to prove damages even if the statements made were defamatory

per se." Appellant's Brief, at 35. "Question No. 3 forced the jury to find actual




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No. 72869-5-1/9



damages and if it did not find damages, the inquiry ended." Appellant's Reply

Brief, at 12.

       We disagree. The jury was not obliged to find defamation per se.

Instruction 9 required Canfield to prove that a defamatory statement exposed him

to a set of circumstances from which damages may be presumed: "A defamatory

statement is defamatory per se if it exposes a person to hatred, contempt,

ridicule or obloquy, to deprive him of the benefit of public confidence or social

intercourse, or injures him in his business, trade, profession or office." The jury

may have found that Clark's statement, while defamatory, did not have the effect

of exposing him to ridicule, depriving him of public confidence, or injuring him in

his job and therefore did not cause him any damage.

       Ifthe jury did find that Clark's statement about the gun was defamatory

per se, question 3 did not force the jury to find actual damages. The jury knew

from instruction 9, the instruction on defamation per se, that Canfield was not

required to prove actual damages if the communication was defamatory per se.4

When read as a whole with the instructions, the special verdict form properly

informed the jury of the applicable law.

       Nor did the verdict form prevent Canfield from arguing his theory of the

case. Canfield was able to, and did, argue his theory of defamation per se under

instruction 9. He argued to the jurors that if Clark's statements amounted to




      4 Instruction 9, to which Canfield does not assign error, is consistent with
the somewhat wordier instruction approved in Miller v. Argus Publ'q Co., 79
Wn.2d 816, 820-21 n.3, 490 P.2d 101 (1971). overruled on other grounds by
Taskett v. KING Broad. Co.. 86 Wn.2d 439, 546 P.2d 81 (1976).
No. 72869-5-1/10



defamation per se, damages could be presumed so long as they were the

proximate result of Clark's statements.

       So in this case, defamation per se is a principle that says that if
       somebody says something within—that covers a particular context,
       something that tends to harm somebody in their business, for
       example—that's what applies in this case most directly—then you
       can automatically—we don't have to prove actual damages. You
       can presume damages. And what you do is you presume damages
       that would naturally flow from that type of statement. So you need
       to keep this in mind when you're determining the damage portion
       as well. They still need to be damages that would be proximately
       caused by the statement, but you can presume that they exist. It's
       a form of what they call strict liability. It applies because
       statements such as the defamatory statements made by Ms. Clark
       are statements such that they cause particular harm to a party.
                So in this case, a defamatory statement is defamatory per se
       if it exposes a person to hatred, contempt, ridicule or—I can't say
       that word [obloquy]—to deprive him of the benefit of public
       confidence or social intercourse or injures him in his business,
       trade, or profession. I don't believe that there is any doubt that a
       statement that an employee has a gun on them at a school district
       would injure them in their business. So I believe both of the
       statements made clearly fall under defamation per se, and that's
       the way that you should treat the evidence in this case.
And in rebuttal, Canfield argued again, "ifwe show defamatory per se, you can

presume damages."

       In related assignments of error, Canfield contends Clark's defamatory

statement that she saw Canfield carrying a gun on school grounds was

defamatory per se as a matter of law. He claims no reasonable juror could have

found otherwise and therefore contends that the trial court erred by denying his

motion for a directed verdict and his motion for judgment as a matter of law.

Canfield also alleges that he was prejudiced when counsel for Clark was allowed

to argue, over objection, that the plaintiff's case failed for lack of proof that the

statements caused harm.


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No. 72869-5-1/11



      These arguments, like Canfield's challenge to the verdict form, assume an

award of damages is obligatory once it is proved that the defendant made a

defamatory statement—one that, in the words of instruction 4, "tends" to harm

reputation. For damages to be presumed under instruction 9, it is not enough

merely to prove a statement that "tends" to harm reputation. Clark's defense

theory was that her statement, even if defamatory, was not a "but for" factual

cause of damage to Canfield. Clark submitted evidence that Canfield had a poor

reputation in the electrical shop before her statements, that his reputation

remained equally poor thereafter, and that to the extent he was injured in his

career by the investigation, he caused it himself by creating a hostile work

environment. Clark's closing argument focused on the theme that "there has

been no evidence from any witness that the alleged statement made by my client

caused any harm to Mr. Canfield, to his reputation, or deterred any third persons

from dealing with him." Clark's argument continued, "You know, there was not

any harm to Mr. Canfield's reputation. He has not produced, as I mentioned, a

witness that has come in and said: Because of the alleged statement, I treated

Don differently. There hasn't been a single witness that has said: Because of

the alleged statement, I avoided him."

       Under instruction 9, the jury could have found that Clark's statements

were defamatory per se, but the jury was not obligated to make that finding.

Reasonable jurors could have adopted Clark's view of the evidence. Clark's

closing argument was consistent with the instructions and not improper.




                                         11
No. 72869-5-1/12



       In summary, question three on the verdict form did not misstate the law, it

was not misleading, and it did not prevent the jury from considering Canfield's

theory of defamation per se. The trial court did not err in refusing to find

defamation per se as a matter of law and did not err in overruling Canfield's

objection to closing argument.

                      ADMISSION OF DEFENSE EXHIBITS

       Canfield contends certain defense exhibits should have been excluded

because they contained inadmissible hearsay.

       The exhibits in question are handwritten notes taken by the school district

employee whose investigation led to Canfield's demotion. The notes include

unflattering comments made about Canfield by his coworkers, including

assertions that he discriminated against employees who were not white males.

The trial court admitted the notes as a business record over Canfield's hearsay

objection. The investigator summarized that she had found a pattern of

"harassment, bullying, [and] intimidating" behavior that she thought warranted

termination. Canfield contends the notes were "highly prejudicial" and should

have been excluded under ER 403.

       Assuming the notes should have been excluded as hearsay, we

nevertheless do not find reversible error. The unflattering statements about

Canfield contained in the notes came into evidence in various other ways.

Canfield's own testimony and testimony he elicited from other witnesses brought

up the fact that he had been accused of creating a hostile work environment.

Most significantly, Canfield himself moved to admit exhibit 63, the arbitrator's


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No. 72869-5-1/13



opinion and award. The award was favorable to Canfield in that it supported the

view that the entire investigation was a trumped up affair caused by Clark's

unsubstantiated allegation that Canfield carried a gun on school property. But

the award also quoted in full a district letter describing Canfield's alleged

misconduct. The letter quoted virtually everything that was said in the

investigator's notes. Under these circumstances, we conclude any error in

admitting the notes was harmless.

                              EXCLUSION OF LETTER

       Canfield assigns error to the trial court's refusal to admit plaintiff's exhibit

75, a letter authored by Jessie Logan. Logan was one of three people (the other

two were the district's investigator and one of Clark's coworkers) who heard

Clark say she saw Canfield carrying a gun at school. Canfield thought Logan

would testify at trial, but Logan apparently was not subpoenaed and was not

present. Canfield tried to get the substance of her testimony before the jury by

way of the letter. Logan's letter states that Clark told her Canfield always carried

a gun even in the electrical shop. The letter says: "From the way she was talking

about him, I really believed he was a potential mass killer."

       Logan allegedly sent the letter to Canfield's union representative, Nancy

Mason. Mason testified that she found the letter in her file. Canfield moved to

have it admitted as a business record of the union. The court denied the motion.

Mason was allowed to testify that Logan came to see her about Clark and that

Mason interviewed Logan in connection with the allegations raised against

Canfield. But when Canfield asked Mason what Logan said, the court sustained


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No. 72869-5-1/14



Clark's hearsay objection and rejected Canfield's argument that the question

went to "Mason's state of mind and her evaluation of the case."

       On appeal, Canfield argues that the letter was admissible under ER

803(a)(3) as a statement of Jessie Logan's state of mind. Under that rule, a

statement of "the declarant's then existing state of mind" is not excluded by the

prohibition against hearsay. This is not the issue Canfield raised at trial, where

the only discussion of the state of mind exception pertained to Mason's state of

mind, not Logan's. And in any event, the trial court properly rejected Canfield's

attempt to have Mason testify about what Logan said in the letter. Canfield cites

no authority that would permit Logan's letter to be admitted as evidence of her

state of mind. The court correctly described the letter and Mason's testimony

about its contents as classic hearsay.

                      EXCLUSION OF EVIDENCE OF BIAS

       The trial court granted Clark's motion in limine to exclude evidence that

the school district was paying for Clark's attorney fees. The judge said, "I mean,

the school district is not a defendant in the case." Canfield contends the court's

ruling improperly prevented him from presenting evidence that witnesses

employed by the school district were biased in favor of Clark.

       Canfield raised this issue in his motion for a new trial. The trial court's

ruling on that motion explains: "The Court rejected such evidence because it was

not relevant to the specific subject matter of this case, and was potentially

confusing the issues the jury was to resolve."




                                          14
No. 72869-5-1/15



      A trial court's exclusion of evidence based on its potential to confuse the

jury is entitled to great deference. Degroot v. Berkley Const., Inc., 83 Wn. App.

125, 128, 920 P.2d 619 (1996). Canfield does not persuasively explain how the

district's payment of Clark's attorney fees would demonstrate that school

employee witnesses were motivated to give testimony unfavorable to Canfield.

We conclude the court acted within its discretion.

      Affirmed.




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WE CONCUR:




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