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01/15/93 ERIC A. FORETICH v. CBS

January 15, 1993

ERIC A. FORETICH, APPELLANT
v.
CBS, INC., ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. Von Kann, Trial Judge)

Before Rogers, Chief Judge, Terry, Associate Judge and Kern, Senior Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: This is an appeal from the grant of judgment on the pleadings under Super. Ct. Civ. R. 12 (c) and the denial of a motion to alter and amend the judgment. Appellant contends that the trial Judge erred in (1) dismissing the complaint for defamation and intentional infliction of emotional distress pursuant to Rule 12 when the Judge considered material outside of the pleadings, (2) not viewing the television program videotape before ruling on the meaning of the alleged defamatory statements, (3) finding that fifteen statements could not be defamatory as a matter of law, and (4) not viewing a second videotape that was discovered shortly after judgment was granted to appellees. Finding these contentions unpersuasive, we affirm.

I

This appeal relates to the custody visitation dispute between appellant Eric Foretich and his ex-wife, appellee Jean Elizabeth Morgan, who has alleged that appellant sexually abused their daughter Hilary and his daughter Heather by his former wife appellee Sharon Sullivan. *fn2 Appellant sued appellees C.B.S. Inc., Bristol-Myers Company, CTP, Inc., Reese Schonfeld, Bree Walker, Morgan and Sullivan seeking compensatory and punitive damages for defamation, invasion of privacy, false light, and intentional infliction of emotional distress, as a resultof a television program, "People Magazine on TV," which aired nationally and was seen in Washington, D.C., on August 16, 1989. *fn3 He alleged that appellees had "cooperated in airing" this television program concerning his alleged sexual abuse of his daughters, and, as a result of the false and defamatory statements in it, he had suffered personal and professional injuries. Pursuant to the trial court's order of July 27, 1990, directing appellant to identify, by full quotation, every statement in the television program which he alleged was false and defamatory, appellant filed a supplement to the complaint listing fifteen statements. *fn4 The parties stipulated that appellant and appellee Morgan and Sharon Sullivan were public figures for the purpose of this litigation, see New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), and that the legal standards applicable to appellant's action against the media appellees are also applicable to his action against appellees Morgan and Sullivan.

Appellee Morgan filed a motion pursuant to Super. Ct. Civ. R. 12 (b)(6) to dismiss the complaint as failing to state a claim upon which relief can be granted because the two statements uttered by her were not defamatory as a matter of law and, regarding appellant's claim for intentional infliction of emotional distress, appellee Morgan's "utterance of those statements, (supra) note 22, was not outrageous as a matter of law." The media appellees moved for judgment on the pleadings pursuant to Super. Ct. Civ. R. 12 (c) on the grounds that the statements "are not 'of and concerning' him, . . . do not injure him beyond the harm caused by the unchallenged portion of the program." *fn5 Attached to the motion was a transcript of the television program preparedby one of the employees of the media appellees. *fn6 Appellant filed oppositions to both motions, arguing that appellee Morgan misapplied the incremental harm doctrine, that the trial Judge would have to examine the entire content of the television program and that Morgan's statements were outrageous and sufficient to show intentional infliction of emotional harm. In addition, appellant argued that by attaching the transcript and relying on information outside of the pleadings, the media appellees had converted their motion under Rule 12 (c) to a motion for summary judgment under Super. Ct. Civ. R. 56, but had failed to set out a statement of material facts as to which there is no genuine dispute. Appellant asserted that there were material disputed facts and, therefore, the media appellees' motion for judgment should be denied.

One month later, on November 2, 1990, appellant filed, in response to the trial court order of October 15, 1990, a Memorandum on Meaning of Statements. In his memorandum, appellant stated that he "does not plan in this action to prove the falsity of the allegation that he sexually abused his two daughters." He "submitted that he has never abused his daughters, sexually or in any other fashion," and explained that "his decision to limit the litigation is . . . in no sense an admission that the accusations of sexualabuse are true." He further stated that he thought appellees acted with malice and that the television broadcast was presented without "any reliance on his version of the facts, and in a sensationalist style that contributed to the ratings." He further claimed that:

the style and presentation of the broadcast, as well as the acts of the participants, including their facial expressions, intonation, and the placing of Sharon Sullivan in a shadow, contribute to the false and defamatory nature of the statements. These impressions cannot be understood or conveyed simply by reading the statements.

Appellant then reviewed why he claimed that the fifteen statements are false and defamatory. Appellee Morgan filed a response that the two statements uttered by her could not form the basis of a libel action since appellant had elected not to litigate the child abuse issue and the statements were not "of and concerning" him.

The trial Judge granted appellees' motions for judgment on the pleadings, *fn7 treating appellee Morgan's motion to dismiss as a motion for judgment on the pleadings in view of appellant's supplement to his complaint. *fn8 Applying Virginia law, because appellant livedin Virginia at the time of the broadcast, *fn9 the trial Judge found, in light of appellant's refusal to litigate the underlying allegedly defamatory statements of his sexual abuse, that the fifteen statements were not defamatory and did not constitute intentional infliction of emotional distress. The trial Judge concluded:

If the statements listed in the supplement to the complaint can only be considered defamatory in conjunction with the assertion that sexually abused one or both of his daughters, then well-settled law regarding public figures, stipulations entered in this case, and [appellant's] statement that he will not prove the falsity of the allegation that he sexually abused his two daughters, would require the Court to conclude, as a matter of law, that these statements are not capable of carrying a defamatory meaning.

Appellant's motion to alter or amend the judgment under Super. Ct. Civ. R. 59 (e) -- on the grounds that the trial Judge erred by not viewing the television program videotape, treating appellees' motions as motions under Rule 56, and viewing a videotape of a program aired on November 28, 1988, and by applying Virginia law where defamation arises from the words and the inducement, citing Wilder v. Johnson Pub. Co., 551 F. Supp. 622, 625 (E.D.Va. 1982) -- was denied.

II

Appellant contends that the trial Judge erred in dismissing the complaint under Rule 12 (c) because the Judge considered material that was outside of the pleadings, an affidavit of J. Leib Dodell and a ten page transcript of the television program. *fn10 The affidavit is that of an attorney at the law firm representing appellee CBS, Inc., and states that he had viewed the videotape segment of "People Magazine on TV" and that "the transcript attached . . . is a fair and accurate representation of all statements made on the segment of the 'People Magazine on TV' episode at issue in this action." The affidavit also refers to certain deletions of names during the program and states that the transcript "presents the broadcast as it sounded to the viewer, after the deletions and dubs were made." Appellant maintains that the Judge should have required full briefing, including a statement of facts at issue, before he made any determination which relied on an affidavit. Appellant ...


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