155 So. 3d 920
Miss. Ct. App.2014Background
- Philip H. Neilson (former FBI Supervisory Special Agent) sued Tom Dawson and others for libel over passages in the book Kings of Tort that said Dawson and federal prosecutors lost confidence in Neilson and moved to remove him from an investigation.
- Kings of Tort was published Dec. 2009; local news previews/reviews mentioning the book and an investigation into Neilson appeared shortly before publication.
- Dawson moved to dismiss; the trial court treated it as a motion for summary judgment, gave notice to submit evidence, held a hearing, and granted summary judgment for Dawson.
- Neilson claimed the book’s statements were false and not protected opinion, relying on a DOJ document he referenced but did not file with the court (he offered to submit it in camera). The trial court declined to consider the untimely emailed submission.
- Dawson submitted affidavits from himself and supervising prosecutors describing reasons they distrusted Neilson; Neilson produced no admissible evidence to create a factual dispute.
- The trial court denied Dawson’s Rule 11 sanctions motion; Dawson cross-appealed that denial but the appellate court found no abuse of discretion and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements in Kings of Tort are actionable defamation (fact vs. protected opinion) | Statements implied factual assertions (Neilson was untrustworthy/removed) and thus are not protected opinion under Milkovich | Statements described authors’ impressions/judgments about investigative choices and were either true or constitutionally protected opinion | Court held Neilson failed to produce evidence of falsity; summary judgment for Dawson affirmed |
| Whether Neilson produced sufficient evidence to defeat summary judgment | Neilson pointed to a DOJ document allegedly showing falsity (offered but not filed) | Dawson presented affidavits supporting the book’s statements and showed absence of genuine factual dispute | Court held Neilson failed to meet Rule 56(e) production burden; no genuine issue of material fact |
| Admissibility/consideration of Neilson’s DOJ material not filed timely with the clerk | Neilson argued the document (sensitive) supported his claim and could be submitted in camera | Dawson argued the document was not properly filed/was not before the court | Trial court refused to consider the untimely/email submission; appellate court accepted that refusal and relied on the existing record |
| Whether sanctions under Rule 11 were warranted for Neilson’s suit | Dawson argued the suit was frivolous and sought fees | Neilson contended his claim was a viable legal theory | Court found no abuse of discretion in denying sanctions; trial court reasonably determined the complaint was not frivolous |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion vs. fact test for First Amendment protection of allegedly defamatory statements)
- Roussel v. Robbins, 688 So. 2d 714 (Miss. 1996) (statements framed as opinion lose protection if they imply false factual assertions)
- Keohane v. Wilkerson, 859 P.2d 291 (Colo. Ct. App. 1994) (similar discussion on opinion v. factual assertion)
- City of Jackson v. Sutton, 797 So. 2d 977 (Miss. 2001) (de novo review and items to consider on summary judgment)
- Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84 (Miss. 2013) (movant’s burden on summary judgment and burden-of-production clarification)
- Franklin v. Thompson, 722 So. 2d 688 (Miss. 1998) (elements of defamation)
- Blake v. Gannett Co., 529 So. 2d 595 (Miss. 1988) (truth as complete defense to libel)
- Fulton v. Miss. Publishers Corp., 498 So. 2d 1215 (Miss. 1986) (truth principle in defamation)
- Eatman v. City of Moss Point, 809 So. 2d 591 (Miss. 2000) (abuse-of-discretion standard and Rule 11 sanctions framework)
- Brown v. Hartford Ins. Co., 606 So. 2d 122 (Miss. 1992) (sanctions inappropriate when a viable legal theory is espoused)