Certiorari Granted, October 18, 2010, No. 32,594

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-097

Filing Date: August 23, 2010

Docket No. 28,896

WALTER F. SMITH, III,

       Plaintiff-Appellant,

v.

WILL DURDEN, DENISE DURDEN,
WILLIAM A. DeVRIES, and
MARION DeVRIES,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Law Offices of Daymon B. Ely
Daymon B. Ely
Albuquerque, NM

William G. Gilstrap, P.C.
William G. Gilstrap
Albuquerque, NM

for Appellants

Butt, Thornton & Baehr, P.C.
Jane A. Laflin
Emily A. Franke
Albuquerque, NM

for Appellees

                                    OPINION


                                        1
GARCIA, Judge.

{1}     The issue in this case is whether evidence of humiliation and mental anguish is
sufficient to establish actual injury for liability purposes in a defamation action. Plaintiff,
Rev. Walter F. Smith, III, appeals from the district court’s order granting summary judgment
in favor of Defendants regarding his claim for defamation. We reverse.

BACKGROUND

{2}     This defamation action stems from the soured relationship between Plaintiff, who
was the reverend at St. Francis Episcopal Church in Rio Rancho, New Mexico, and
Defendants, two of whom were members of the church’s vestry. A few members of the
vestry had concerns about Plaintiff’s ability to lead the church, and they met with the
Standing Committee of the Diocese of the Rio Grande. As part of its evidence against
Plaintiff, the vestry presented the committee with a packet of documents. The packet
contained an anonymous letter stating that Plaintiff had engaged in inappropriate acts with
minor members of the congregation. Defendants later published the packet of documents
to an unknown number of members of the congregation, and Plaintiff’s claims stem from this
later publication of the anonymous letter.

{3}      Defendants moved for summary judgment on Plaintiff’s claim for defamation. The
district court granted Defendants’ motion for summary judgment. This appeal followed.

DISCUSSION

Standard of Review

{4}     We apply a de novo standard of review when reviewing summary judgment
decisions. Fikes v. Furst, 2003-NMSC-033, ¶ 11, 134 N.M. 602, 81 P.3d 545. Summary
judgment is appropriate if “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Rule 1-056(C) NMRA. The
moving party has the burden to demonstrate that summary judgment is appropriate. See
Blauwkamp v. Univ. of N.M. Hosp., 114 N.M. 228, 231, 836 P.2d 1249, 1252 (Ct. App.
1992). Once the moving party “makes a prima facie case that summary judgment should be
granted, the burden shifts to the opponent to show at least a reasonable doubt, rather than a
slight doubt, as to the existence of a genuine issue of fact.” Fikes, 2003-NMSC-033, ¶ 11
(internal quotation marks and citation omitted).

Actual Injury

{5}      For purposes of summary judgment, Defendants argued that Plaintiff failed to prove
liability because he did not present evidence to prove actual injury to his reputation. See UJI
13-1002(B)(8) NMRA. The district court concluded that Plaintiff’s evidence of mental
anguish and suffering were insufficient to prove the prima facie element—actual injury to

                                              2
his reputation. Plaintiff argues the district court erred in concluding that Defendants met
their burden of establishing a prima facie case for summary judgment. Plaintiff specifically
asserts that Defendants did not put forth prima facie evidence to establish that he did not
suffer actual injury based on his feelings of humiliation and anxiety. We agree.

{6}      This case requires us to clarify the standard in New Mexico for establishing the prima
facie element of actual injury in defamation cases involving private plaintiffs and private
matters. Defamation law dramatically changed for private plaintiffs after the United States
Supreme Court case Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Prior to Gertz,
common law defamation allowed for recovery of compensation without presenting evidence
of any loss because injury was presumed based on the fact of publication. Id. at 349; see
Reed v. Melnick, 81 N.M. 608, 612, 471 P.2d 178, 182 (1970) (discussing the four categories
of slander per se and abolishing, with an exception, “the requirement of proof of actual
damage in a latent libel action”), overruled by Marchiondo v. Brown, 98 N.M. 394, 649 P.2d
462 (1982). In response to this perceived unfairness and in an effort to balance constitutional
concerns, Gertz explained it was “necessary to restrict defamation plaintiffs who do not
prove knowledge of falsity or reckless disregard for the truth to compensation for actual
injury.” 418 U.S. at 349. The Court went on to explain that evidence of actual injury was
not limited to out-of-pocket loss but could include “impairment of reputation and standing
in the community, personal humiliation, and mental anguish and suffering.” Id. at 350. As
a result of the holding in Gertz, “liability is [now] limited to recovery of actual damages” in
defamation actions. Marchiondo, 98 N.M. at 402, 649 P.2d at 470 (emphasizing that there
needs to be evidence of an actual injury, but no evidence of an actual dollar value for the
injury is required); see Poorbaugh v. Mullen, 99 N.M. 11, 20, 653 P.2d 511, 520 (Ct. App.
1982) (“Gertz requires proof of actual damages.”).

{7}     After Gertz, a split developed between the jurisdictions regarding the proof of injury
needed to establish liability. Some jurisdictions determined that “proof of injury to
reputation is a prerequisite to recovery, apparently feeling that injury to reputation is, as one
court put it, ‘the essence and gravamen’ of the action” of defamation. Earl L. Kellett,
Annotation, Proof of Injury to Reputation as Prerequisite to Recovery of Damages in
Defamation Action–Post-Gertz Cases, 36 A.L.R. 4th 811 at § 2[b] (1985). However, other
jurisdictions “reached the conclusion that injury to reputation need not be shown in
defamation actions, usually holding that plaintiffs in such actions may base damage claims
on [personal] humiliation and mental anguish and suffering.” Id. In response to this split
in interpretations of Gertz, the United States Supreme Court clarified in Time, Inc. v.
Firestone, 424 U.S. 448, 460 (1976), that a plaintiff could recover in a defamation action for
injuries even without an injury to reputation.

{8}     In Marchiondo, 98 N.M. at 402, 649 P.2d at 470, New Mexico adopted the Gertz
requirement of proof of damages and its explanation of actual injuries. Marchiondo did not
limit proof of actual injury to evidence regarding one’s reputation. Id. (explaining that proof
of actual injury included evidence of damage to reputation and standing in the community
along with evidence of personal humiliation and mental anguish and suffering); see
Newberry v. Allied Stores, Inc., 108 N.M. 424, 430, 773 P.2d 1231, 1237 (1989) (stating that
the “plaintiff had the burden of proving one or more of the following injuries: harm to [the]
plaintiff’s good name and character among friends, neighbors and acquaintances; harm to

                                               3
[the] plaintiff’s good standing in the community; personal humiliation; and mental anguish
and suffering”). Subsequent to Gertz and Marchiondo, the general elements of defamation
in New Mexico became “a defamatory communication, published by the defendant, to a third
person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual
injury to the plaintiff.” Newberry, 108 N.M. at 429, 773 P.2d at 1236; see Cory v. Allstate
Ins., 583 F.3d 1240, 1243 (10th Cir. 2009) (applying the elements of defamation set forth
in Newberry).

{9}      Although New Mexico cases did not require that actual injury to a plaintiff’s
reputation be demonstrated to prove actual injury, see Newberry, 108 N.M. at 429, 773 P.2d
at 1236, the “injury to the plaintiff’s reputation” language was incorporated into our Uniform
Jury Instructions on defamation in 1986. UJI 13-1002(B)(8) (1986 Recomp.). UJI 13-1002
lists the elements in a defamation claim and states that one of the elements is that the
defamatory “communication caused actual injury to the plaintiff’s reputation” in order to
prove liability. (Emphasis added.) Thus, according to UJI 13-1002(B)(8), an injury specific
to the plaintiff’s reputation appears to be a required element to establish liability. The jury
instructions, however, were intended to comply with the holdings in Gertz, Marchiondo, and
Poorbaugh. UJI 13-1002 comm. cmt. (“The current instructions comply with the clear
import of the language in Marchiondo.”); UJI 13-1002 use note. According to the UJI 13-
1002 use note for Section (B)(8), the drafters relied on Poorbaugh, 99 N.M. at 20, 653 P.2d
at 520, and added the element of actual injury because “New Mexico no longer allow[ed]
presumed damages in defamation actions.” See Marchiondo, 98 N.M. at 402, 649 P.2d at
470 (noting that “[t]he standard of strict liability no longer applies”). Poorbaugh, a case
decided by this Court only months after Marchiondo, applied the holding in Marchiondo and
stated that damages had to be proved to establish liability and that damages could be proved
with evidence of humiliation and mental anguish. Poorbaugh, 99 N.M. at 19-20, 653 P.2d
at 519-20.

{10} Neither Marchiondo nor Poorbaugh limited actual injury to harm a person’s
reputation. The qualifying language “to the plaintiff’s reputation” added in 1986 to UJI 13-
1002(B)(8) did not have any basis that was founded upon the common law tort of defamation
that existed in New Mexico when the instructions in question were adopted. See
Marchiondo, 98 N.M. at 402, 649 P.2d at 470 (noting that “as to the law of defamation . .
. [t]he ordinary common law negligence standard of proof shall apply to private defamation
plaintiffs to establish liability, and liability is limited to recovery of actual damages”);
Poorbaugh, 99 N.M. at 19-20, 653 P.2d at 519-20; see also Reed, 81 N.M. at 609-12, 471
P.2d at 179-82 (recognizing the pre-Gertz debate regarding the development and amendment
of the common law rule embodied in Section 569 of the Restatement of Torts as to libel, and
further recognizing New Mexico’s retention of the common law rule in the Restatement
(Second)). As a result, the addition of the language “to plaintiff’s reputation” included in
Section (B)(8) of UJI 13-1002 was erroneous.

{11} When revising the UJI, the drafters also added UJI 13-1010 NMRA (1986 Recomp.),
which is a damages instruction for defamation claims. UJI 13-1010 provides a non-
exclusive list for proving actual injury for damages purposes that includes many of the
examples in Marchiondo. UJI 13-1002(B) in essence created a much narrower standard for


                                              4
proving actual injury for liability purposes than the broader common law standard for
proving actual injury when compensation and damages are determined under UJI 13-1010.
Prior to the adoption of UJI 13-1002(B)(8) and UJI 13-1010, no distinction existed for the
establishment of actual injury for liability purposes versus actual injury for damages
purposes. Consistent with Reed, Marchiondo, Poorbaugh, and Newberry, the list set forth
in UJI 13-1010 for establishing actual injury for damages purposes should also apply for
establishing actual injury for liability purposes under UJI 13-1002(B)(8). See Cowan v.
Powell, 115 N.M. 603, 605, 856 P.2d 251, 253 (Ct. App. 1993) (stating the “well-established
New Mexico law that jury instructions are to be considered as a whole”). However, UJI 13-
1002(B) in essence created a much narrower standard for proving actual injury for liability
purposes than the broader common law standard for proving actual injury when
compensation and damages are determined under UJI 13-1010. Consistent with our
established common law definition of defamation, evidence of humiliation and mental
anguish are actual injuries that are compensable if proved by a plaintiff even when that
plaintiff does not prove harm to his or her reputation. Marchiondo, 98 N.M. at 402, 649 P.2d
at 470.

{12} It is the mistaken language included in UJI 13-1002(B)(8) that has caused the error
in this case since the district court and Defendants relied on this actual injury to “reputation”
language to conclude that Plaintiff had to prove actual injuries to his reputation as a specific
element of liability before he could try to prove any damages. See State v. Wilson, 116 N.M.
793, 796, 867 P.2d 1175, 1178 (1994) (stating that uniform jury instructions are presumed
to be correct statements of the law). We suggest correcting the language in UJI 13-
1002(B)(8) to more clearly state the common law elements of proving actual injury to a
plaintiff as the proper basis to establish liability. See Wilson, 116 N.M. at 795-96, 867 P.2d
at 1177-78 (allowing the Court of Appeals to amend, modify, or abolish uniform jury
instructions that have not been specifically addressed by the Supreme Court). Changing the
element of UJI 13-1002(B)(8) to read, “The communication caused actual injury to the
plaintiff; and” would eliminate the present error and reflect the proper statement of the law
regarding the tort of defamation in New Mexico.

{13} Defendants have argued that this Court must rely upon Fikes, for the proposition that
New Mexico now requires proof of actual harm to one’s reputation as the correct definition
of the actual injury element for defamation in New Mexico. We disagree. Although Fikes
recited some compelling and direct language discussing the principles of injury to reputation
as the “primary basis of an action [in] libel or defamation,” it did not exclude the other
established basis for such a defamation claim and did not analyze either of the actual injury
provisions that are at issue in this case. 2003-NMSC-033, ¶¶ 12-19. Fikes addressed the
question, “What does it mean for a statement to be defamatory[,]” not what is necessary to
establish the actual injury element for liability purposes in a defamation claim. Id. ¶ 12.
The Supreme Court’s analysis was limited to whether the communication at issue was
defamatory and whether the recipient of the communication thought the communication was
defamatory. Id. Justice Minzner generally explained that a plaintiff must prove the nine
elements set forth in UJI 13-1002(B) to prove a defamation action, including the eighth
element that the communication caused injury to reputation. Fikes, 2003-NMSC-033, ¶ 12.
The Court then specifically analyzed two of the other elements of defamation, UJI 13-


                                               5
1002(B)(5) and (7). Fikes, 2003-NMSC-033, ¶¶ 12-19. The language that Defendants rely
upon from Fikes was background information on defamation and was not an analysis of the
common law principle of “actual injury” included in UJI 13-1002(B)(8). See Fernandez v.
Farmers Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (“The general rule is
that cases are not authority for propositions not considered.” (internal quotation marks and
citation omitted)). Fikes did not alter the common law requirements for defamation after
Gertz or redefine actual injury to eliminate evidence of humiliation and mental anguish for
establishing liability in a defamation claim under Reed, Marchiondo, Poorbaugh, and
Newberry.

{14} In his complaint, Plaintiff alleged harm to his reputation along with personal
humiliation and mental anguish. Defendants in their motion for summary judgment put forth
evidence that Plaintiff’s reputation had not been injured. Regarding Plaintiff’s claims for
personal humiliation and mental anguish, Defendants in their motion for summary judgment
stated, “[T]hough no evidence of such exists, any personal humiliation, mental anguish, or
suffering by [Rev.] Smith was caused by the existence of the [l]etter, not the Defendants’
distribution of the [letter].” Beyond this unsubstantiated allegation in the motion,
Defendants did not put forth any evidence negating Plaintiff’s original claims that he
suffered personal humiliation and mental anguish as a result of the publication of the
anonymous letter. See Blauwkamp, 114 N.M. at 231, 836 P.2d at 1252 (explaining that the
movant has the initial burden to put forth evidence refuting the plaintiff’s claims in order to
establish the movant’s prima facie case for summary judgment). We agree with Plaintiff that
Defendants did not meet their initial burden of making a prima facie showing to refute
Plaintiff’s claim that he suffered actual injury in the form of personal humiliation and mental
anguish. See, e.g., Solorzano v. Bristow, 2004-NMCA-136, ¶¶ 15-18, 136 N.M. 658, 103
P.3d 582 (holding that the defendant did not meet her burden of proving a prima facie case
for summary judgment). Plaintiff is entitled to proceed with his defamation claim against
Defendants by proving actual injury and damages.

CONCLUSION

{15} We therefore hold that our current UJI 13-1002(B)(8) is an inaccurate statement of
the law and reverse the district court’s grant of summary judgment in Defendants’ favor. We
also remand for further proceedings consistent with this opinion.

{16}   IT IS SO ORDERED.

                                               ____________________________________
                                               TIMOTHY L. GARCIA, Judge

JONATHAN B. SUTIN, Judge (specially concurring).

RODERICK T. KENNEDY, Judge (dissenting).

SUTIN, Judge (specially concurring).



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{17} I agree that entry of summary judgment was improper and that we should remand for
further proceedings. I describe here how I analyze the issue.

{18} To establish liability in defamation, a plaintiff must prove the existence of a
defamatory communication that was published proximately causing actual injury to the
plaintiff. See Newberry v. Allied Stores, Inc., 108 N.M. 424, 429, 773 P.2d 1231, 1236
(1989); see also Poorbaugh v. Mullen, 99 N.M. 11, 21, 653 P.2d 511, 521 (Ct. App. 1982)
(“Liability for defamation is based upon both publication, i.e., communication to a third
person, and proof of actual damages.”). Defamatory communications are “those which tend
to expose a person to contempt, to harm the person’s reputation, or to discourage others from
associating or dealing with [him or her].” UJI 13-1007 NMRA. I see no reason why, once
publication of a defamatory communication as defined in UJI 13-1007 is proved, the actual
injury element must in every case be actual injury to reputation.

{19} The actual injury that must be proved is actual damage caused by publication of the
defamatory communication. Once a plaintiff proves publication of a defamatory
communication, the plaintiff need prove only one type of actual injury among those listed
in UJI 13-1010 NMRA. For a defendant to prevail on summary judgment, the defendant
must negate the particular actual injury that the plaintiff asserts he suffered as a result of
publication of the defamatory communication. Here, Defendant failed to negate the actual
injury of humiliation and anxiety asserted by Plaintiff.

{20} I have two observations. One, if in New Mexico to establish liability in defamation
a plaintiff must not only prove the existence of a defamatory communication that was
published but must also prove that the actual injury element consisted of actual injury to the
plaintiff’s reputation, our Supreme Court needs to refine the law as it is stated in Newberry.
Two, if Newberry is to remain unchanged, UJI 13-1002(B)(8) NMRA and UJI 13-1010,
which appear to be facially irreconcilable, need to be changed so that the actual injury
element can be satisfied on a showing of damage other than damage to reputation. One way
to accomplish that change is as suggested in the main opinion, namely, by changing UJI 13-
1002(B)(8) to read, “The communication caused actual injury to the plaintiff.”

                                               ______________________________________
                                               JONATHAN B. SUTIN, Judge

KENNEDY, Judge (dissenting).

{21} I do not concur with the majority’s opinion in this case because I conclude that in
every case the tort of defamation requires proof of actual injury to the plaintiff’s reputation.
That the existence of other damages that might accrue as a result of an injury are a different
thing than what might establish the injury itself. Damages are not injuries, but result from
injuries. For that reason, Plaintiff’s failure to specifically prove an injury to his reputation
cannot be assuaged by his proving that the defamatory publication caused him humiliation
and anguish. There are other torts available that can provide compensation to a plaintiff for
being humiliated.



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{22} I believe this opinion confuses establishing an entitlement to receive damages that
result from an injury with establishment of a cause of action. Hence, I do not believe that
UJI 13-1002(B)(8) is misguided, nor do I believe UJI 13-1010 establishes elements of the
cause of action. I think the former sets out the elements of the cause of action, including
requiring proof of “actual injury,” and that the latter sets out those things that might be
proven as “actual damages.” Injury is not damages, either under the UJI or, more
importantly, the case law, and I do not believe that any particular type of damages (in this
case, humiliation and agony) can drive the calculation of whether an “actual injury” gave
rise to the “actual damage.”

{23} I reached this conclusion while again reading the discussion of Gertz in Marchiondo,
98 N.M. at 403, 639 P.2d at 471. Although “actual injury” may include humiliation and the
like, causing anguish, humiliation, and other injuries to reputation can be accomplished in
other ways and by other torts than defamation. I conclude then that the inclusion of actual
injury to reputation as an element of the tort of defamation is the sine qua non of defamation.
Otherwise, there is nothing defamatory to distinguish a tort producing mental anguish and
humiliation from, for instance, the tort of outrage or prima facie tort, if those “feelings”
injuries can stand alone. Hence, I believe that the circulated opinion misreads Marchiondo’s
discussion of Gertz. I also believe that Poorbaugh doesn’t establish any principle relating
to “actual injury to reputation,” save by saying that publication only to a spouse was not
publication sufficient to support an action. 99 N.M. at 21, 635 P.2d at 521. I agree the jury
instructions were adopted pursuant to the invitation in Marchiondo, and think both the UJI’s
can stand for each part of the equation in defamation cases. See Marchiondo, 98 N.M. at
403, 639 P.2d at 471. I conclude that New Mexico’s inclusion of UJI 13-1002(B)(8) is quite
intentional and meaningful. I also conclude that this is the basis for Fikes’ language insisting
on proof of the injury to reputation element contained in UJI 13-1002(B)(8). Fikes, 134
N.M. at 606, 81 P.3d at 549. Hence, I regretfully cannot tread the path scouted by the
majority opinion and respectfully dissent.

                                               ______________________________________
                                               RODERICK T. KENNEDY, Judge


Topic Index for Smith v. Durden, Docket No. 28,896

AE                     APPEAL AND ERROR
AE-SR                  Standard of Review

CP                     CIVIL PROCEDURE
CP-SJ                  Summary Judgment

JI                     JURY INSTRUCTIONS
JI-CI                  Civil Jury Instructions
JI-IJ                  Improper Jury Instructions

RE                     REMEDIES


                                               8
RE-DG   Damages, General
RE-PD   Proof of Damages

TR      TORTS
TR-DF   Defamation




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