Vigil v. TaintorVigil v. Taintor
VERONICA VIGIL,
Plaintiff-Appellant,
v.
ANNE TAINTOR and ANNE
TAINTOR, INC.,
Defendants-Appellees,
and
DOODLET’S LTD.; JANE DOE;
TALIN ENTERPRISES; LA
MONTANITA FOOD COOP;
COST PLUS, INC.; and NOW
WE‘RE COOKING,
Defendants.
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Francis J. Mathew, District Judge
Certiorari Denied, May 11, 2020, No. S-1-SC-38158. Released for Publication October 6, 2020.
Western Agriculture, Resource and
Business Advocates, LLP
A. Blair Dunn
Dori E. Richards
Albuquerque, NM
for Appellant
Allen, Shepherd, Lewis & Syra, P.A.
Christopher P. Winters
Courtney A. Schumacher
Albuquerque, NM
for Appellees
MEDINA, Judge.
{1} Plaintiff Veronica Vigil appeals the district court’s decision granting summary judgment in favor of Defendants Anne Taintor and Anne Taintor, Inc. (collectively, Defendants) with respect to Plaintiff’s claims for defamation, false light, and appropriation, as well as her claim under the Unfair Practices Act (UPA),
BACKGROUND
{2} Sometime in 2010, Anne Taintor, Inc., a corporation owned by Taintor, began manufacturing and selling several products—including magnets, flasks, and cards—bearing Plaintiff’s image with the caption “I’m going to be the most popular girl in rehab!” Defendants did not have Plaintiff’s permission to use her image, and this went unnoticed by Plaintiff until 2013, when her daughter purchased a flask bearing Plaintiff’s image and
{3} After extensive discovery, Defendants moved for summary judgment on Plaintiff’s defamation, false light, and appropriation claims, arguing that the statute of limitations had expired by operation of New Mexico’s single publication rule. See
DISCUSSION
Standard of Review
{4} An appeal from the grant of a motion for summary judgment presents a question of law, which we review de novo. Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971. “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Waterfall Cmty. Water Users Ass’n v. N.M. State Eng’r, 2009-NMCA-101, ¶ 11, 147 N.M. 20, 216 P.3d 270 (internal quotation marks and citation omitted). When the moving party makes a prima facie showing that summary judgment is proper, “the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 10, 148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). This burden cannot be met with allegations or speculation, but only with admissible evidence demonstrating a genuine fact issue requiring trial. Rule 1-056(E) NMRA. Claimed disputed facts “cannot serve as a basis for denying summary judgment” if the evidence adduced is insufficient to support “reasonable inferences.” Romero, 2010-NMSC-035, ¶ 10. Reasonable inferences are not supposition or conjecture; they are logical deductions from proven facts. Id. In our review, “[w]e resolve all reasonable inferences in favor of the party opposing summary judgment, and we view the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits.” Madrid v. Brinker Rest. Corp., 2016-NMSC-003, ¶ 16, 363 P.3d 1197 (internal quotation marks and citation omitted).
I. The District Court Properly Granted Summary Judgment on Plaintiff’s Defamation/Invasion of Privacy Claims Under the Single Publication Rule
{5} Claims based on injuries to a person’s reputation fall under a three-year statute of limitations.1 See
No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.
{6} Defendants argue that Plaintiff’s claims for defamation, false light, and appropriation are barred by the statute of limitations under the single publication rule. While Defendants do not dispute that some merchandise with Plaintiff’s picture was sold within the three-year period prior to the filing of this lawsuit, Defendants argue, and the district court agreed, that the single publication rule is applicable to Plaintiff’s claims, and therefore, her claims began accruing when Defendants initially offered the offending merchandise for sale to the public. Plaintiff, in turn, argues that the single publication rule does not apply to her claims, and if it does, the republication exception applies.2 We hold that the district court properly applied the single publication rule to Plaintiff’s claims. We further hold that Plaintiff failed to present sufficient evidence to raise a genuine issue of material fact that would warrant the application of the republication exception.
A. Scope of Review
{7} As an initial matter, we address Defendants’ contention that Plaintiff failed to preserve her arguments surrounding the applicability of the single publication rule.3 In her response to Defendants’ motion for summary judgment, Plaintiff argued that the single publication rule should not apply to her claims. However, at the hearing on the motion, she did not challenge the single publication rule’s applicability, but instead argued that the republication exception to the rule should apply. In the midst of her argument, the district court sought clarification of Plaintiff’s position and asked, “I think I
am understanding you to say that the single-publication rule is the law of the case here, because
{8} “We will not review arguments that were not preserved in the district court.” Vill. of Angel Fire v. Bd. of Cty. Comm’rs of Colfax Cty., 2010-NMCA-038, ¶ 15, 148 N.M. 804, 242 P.3d 371. Nor will we consider as preserved arguments that are waived below. See, e.g., Papatheofanis v. Allen, 2010-NMCA-036, ¶¶ 29-31, 148 N.M. 791, 242 P.3d 358 (holding that the appellant failed to preserve an argument when she withdrew her motion). “To preserve an issue for review on appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court.” Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks and citation omitted); see Rule 12-321(A) NMRA. The preservation rule serves three primary purposes: “(1) to specifically alert the district court to a claim of error so that any mistake can be corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error and to show why the court should rule against that claim, and (3) to create a record sufficient to allow this Court to make an informed decision regarding the contested issue.” Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791. “When these purposes are not served, the preservation requirement should not be applied in an unduly technical manner.” McLelland v. United Wis. Life Ins. Co., 1999-NMCA-055, ¶ 24, 127 N.M. 303, 980 P.2d 86 (alterations, omission, internal quotation marks, and citation omitted).
{9} While the exchange between the district court and Plaintiff may give the impression that Plaintiff waived her objection to the application of the single publication rule, it is also possible that Plaintiff simply misunderstood the court’s question. Plaintiff’s answer to the district court’s initial query does not appear to be entirely responsive to the object of the question. Rather than agreeing that Plaintiff was no longer challenging the applicability of the single publication rule, Plaintiff’s response appeared to clarify only what she was arguing before the question was asked (i.e., that the republication exception applied). Unlike other cases where we have found waiver, Plaintiff did not unambiguously disclaim her objection to the application of the single publication rule. See, e.g., Papatheofanis, 2010-NMCA-036, ¶¶ 29-31. Additionally, by arguing an exception, it appears Plaintiff was implicitly objecting to the application of the general rule. Under these circumstances, we are hesitant to say that Plaintiff waived her argument surrounding the single publication rule’s applicability. As Plaintiff challenged the application of the single publication rule in her written response to Defendants’ motion for summary judgment, which gave Defendants the opportunity to address the argument—and gave the district court the opportunity to consider and issue a ruling on the issue—we conclude that Plaintiff sufficiently preserved this issue for our review. See
Gracia v. Bittner, 1995-NMCA-064, ¶ 18, 120 N.M. 191, 900 P.2d 351 (stating that the preservation requirement “should be applied with its purposes in mind, and not in an unduly technical manner”).
B. The Single Publication Rule
{10} Plaintiff does not challenge that Defendants established a prima facie case for summary judgment under the single publication rule. Rather, Plaintiff raises several legal arguments against the application of the rule to this case. Specifically, Plaintiff calls into question whether the single publication rule should be applied to her claims based on appropriation and false light, and whether the rule applies to cases involving manufactured goods, as opposed to traditional types of mass media. Additionally, Plaintiff contends that the point of publication at which
{11} With respect to Plaintiff’s first argument, other than pointing out that our courts have not yet applied the single publication rule to appropriation and false light claims, Plaintiff fails to demonstrate, and we fail to see, how the district court erred in applying the single publication rule to her claims.
{12} Plaintiff also fails to develop her argument that the single publication rule should not apply to cases involving manufactured goods. Again, Plaintiff simply points out that our courts have not yet applied the single publication rule to a similar case. While we acknowledge that we have had little opportunity to apply the single publication rule, we conclude that the district court did not err in applying the single publication rule here. We explain.
{13}
any one exhibition of a motion picture.” (emphasis added)); State v. Martinez, 1999-NMSC-018, ¶ 27, 127 N.M. 207, 979 P.2d 718 (noting that a list beginning with “such as” was “intended to be illustrative rather than exhaustive”). While
{14} Although we were concerned with internet publications in Woodhull, we believe the same logic applies to this case. Similar to traditional forms of mass media, manufactured goods can be mass-produced for public consumption, and retailers may sell them to consumers across broad geographic areas. Likewise, these goods may be bought and viewed by countless individuals for an indefinite amount of time after they were originally manufactured and sold to the public. Without the single publication rule, the
{15} Lastly, Plaintiff contends that the point at which the statute of limitations begins accruing under the single publication rule should not always be the initial publication, but rather a more fact intensive inquiry. However, Plaintiff does not define the scope of the fact intensive inquiry she advocates and does not cite any authority in support of her argument, and we, therefore, assume none exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that when a party fails to cite authority for an argument, we may assume none exists). Instead, Plaintiff relies on a purported lack of authority for the proposition that the initial publication triggers the limitations period. We disagree. Our Court stated in Woodhull that “[u]nder [the single publication] rule, multiple disseminations of the same content give rise to only one cause of action, and the statute of limitations runs from the point at which the original dissemination occurred.” Woodhull, 2009-NMCA-015, ¶ 9 (emphasis added). Holding that the triggering event is something other than the original publication would defeat one of the
primary purposes of the single publication rule: to protect against “an almost endless tolling of the statute of limitations.” Id. ¶ 11 (internal quotation marks and citation omitted). Accordingly, we hold that the district court properly applied the single publication rule. Consequently, the three-year statute of limitations for Plaintiff’s claims began running from the time Defendants first sold the products bearing Plaintiff’s image to the public in 2010, unless the republication exception applies, as we discuss below.
C. Republication
{16} One exception to the single publication rule is republication, which allows for a new cause of action that restarts the statute of limitations. See id. ¶ 12. “The justification for the [republication] exception is to allow redress when the republished material is intended to expand the scope of the original distribution.” Id. “Republication occurs upon a separate aggregate publication from the original, on a different occasion, which is not merely a delayed circulation of the original edition.” Id. (internal quotation marks and citation omitted). The point at which republication occurs depends heavily on the facts of each case and turns on the content of the second publication as it relates to the first. Id. ¶¶ 12, 16. “[M]ere technical modifications, as opposed to changes in the nature of the information itself, are insufficient to constitute republication.” Id. ¶ 14. However, “[w]hen a second publication goes beyond mere editing or adds content, it may properly be considered a republication if the effect is more than a delayed circulation of the original edition.” Id. ¶ 16 (internal quotation marks and citation omitted). Plaintiff argues her claims are not barred by the statute of limitations under operation of the single publication rule because Defendants’ “printing [of Plaintiff’s] same image with the defamatory statement[] on different runs throughout the year, for multiple years, and also on different merchandise” constituted republication. Although we agree that these circumstances may give rise to republication, we fail to see how Plaintiff supported these assertions with admissible evidence. We explain.
{17} As a preliminary matter, we note that Plaintiff fails to cite specific portions of the record that support her assertions. Instead, Plaintiff’s brief in chief includes one general citation to her response in opposition to Defendants’ motion for summary judgment, which consists of over one hundred pages. It is the duty of the parties to cite to specific portions on the record supporting their arguments, see Rule 12-318(A)(4) NMRA, and this
{18} In support of Defendants’ summary judgment motion, Taintor submitted an unsworn affirmation4 affirming that she never personally manufactured or sold any
products with Plaintiff’s image. She also affirmed that Anne Taintor, Inc. first manufactured and offered for sale magnets, flasks, and cards with Plaintiff’s image in 2010. Additionally, Taintor affirmed that Anne Taintor, Inc. did not manufacture or offer for sale any other products with Plaintiff’s image, and that it never modified any magnet, flask, or card with Plaintiff’s image. Plaintiff filed a response arguing, among other things, that there was a genuine issue of material fact regarding whether the republication exception applies because Defendants reprinted Plaintiff’s image over the course of several years and on other products such as shot glasses, napkins, and calendars. In support of her response, Plaintiff cited Defendants’ answers to her interrogatories stating that “Anne Taintor, Inc. had manufactured a product containing Plaintiff’s image [from 2010 to 2013.]” However, Defendants’ answer, by itself, does not demonstrate that Defendants manufactured additional editions of the products or reprinted Plaintiff’s image on other products during that time period. Other than pointing to Defendants’ answer, Plaintiff cannot direct us to any evidence demonstrating that Defendants manufactured additional editions of the magnets, flasks, and cards after they initially manufactured them in 2010. Nor can Plaintiff point to any evidence demonstrating that Defendants altered Plaintiff’s image or the text on any of these products after their initial manufacture.
{19} Of particular relevance to Plaintiff’s contentions, Plaintiff did not come forward with any evidence demonstrating that Defendants manufactured and sold other products with Plaintiff’s image. While Plaintiff attached an exhibit showing shot glasses with the caption “I’m going to be most popular girl in rehab!” the glasses did not contain Plaintiff’s image, but that of another woman.5 Additionally, although Plaintiff attached exhibits of napkins and mugs with Plaintiff’s image, Plaintiff failed to produce evidence demonstrating that Defendants manufactured and sold these items.6 Nor did Plaintiff
conclude Plaintiff did not demonstrate the existence of specific admissible evidentiary facts disputing whether Defendants altered their products in any way that would suggest republication, rather than a “delayed circulation of the original edition.” Woodhull, 2009-NMCA-015, ¶ 16 (internal quotation marks and citation omitted); see Romero, 2010-NMSC-035, ¶ 10 (“[Once the moving party has met its initial burden of establishing a prima facie case for summary judgment], the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” (internal quotation marks and citation omitted)).
{20} Plaintiff does not address the lack of evidentiary facts in the record. Instead, Plaintiff attempts to analogize this case to Rinaldi v. Viking Penguin, Inc., 420 N.E.2d 377 (N.Y. 1981). Plaintiff’s reliance is misplaced. In Rinaldi the Court of Appeals of New York held that republication occurred when a publisher released a hard-cover edition of a book to the public and, approximately one year later, marketed a paperback edition of the book using unbound and hardbound copies it had on hand from the original issue. Id. at 378-80, 382. However, unlike the instant case, there were undisputed facts in Rinaldi demonstrating republication. The publisher added new covers, changed the publisher name, revised the title page to include an updated publication date, changed the copyright page to include a new identifying number, and added new information indicating that the book would be simultaneously published in foreign countries. See id. In contrast, here, Plaintiff does not point to, and we cannot find, any evidence indicating that Defendants republished Plaintiff’s image. Therefore, we conclude that the district court properly granted Defendant’s motion for summary judgment on Plaintiff’s claims for defamation, false light, and appropriation.
II. The District Court Properly Granted Summary Judgment on Plaintiff’s UPA Claim
{21} Defendants argue that the district court properly granted summary judgment because Plaintiff did not have standing to bring a UPA claim for the unauthorized use of her image, as she did not purchase anything. Plaintiff does not dispute that she did not purchase any products made or sold by Defendants. Rather, she argues that her daughter’s act of purchasing a flask manufactured by Defendants and giving the flask to Plaintiff was sufficient to grant Plaintiff standing under the UPA, which should be interpreted broadly. While we agree that the UPA should be interpreted liberally to protect innocent consumers, Plaintiff fails to demonstrate how her claims as a non-buyer fall within the scope of the UPA’s protection.
{22} In enacting the UPA, the Legislature created a private cause of action for “any person who suffers any loss of money or property . . . as a result of any employment by another person of a method, act or practice declared unlawful by the [UPA, to] bring an action to recover actual damages.”
may, tends to or does deceive or mislead any person . . . .”
(1) the defendant made an oral or written statement, a visual description or a representation of any kind that was either false or misleading; (2) the false or misleading representation was knowingly made in connection with the sale . . . of goods or services in the regular course of the defendant’s business; and (3) the representation
was of the type that may, tends to, or does deceive or mislead any person.
Lohman v. Daimler-Chrysler Corp., 2007-NMCA-100, ¶ 5, 142 N.M. 437, 166 P.3d 1091 (emphasis added). “Since the UPA constitutes remedial legislation, we interpret [its] provisions . . . liberally to facilitate and accomplish its purposes and intent [to protect innocent consumers].” State ex rel. King v. B & B Inv. Grp., Inc., 2014-NMSC-024, ¶ 48, 329 P.3d 658 (internal quotation marks and citation omitted).
{23} Plaintiff first relies on Lohman to support her contention that the UPA should be construed broadly to include her claims, focusing on its language noting that the “conjunctive phrase ‘in connection with’ seems designed to encompass a broad array of commercial relationships.” Lohman, 2007-NMCA-100, ¶ 21 (quoting
{24} Plaintiff’s reliance on Maese v. Garrett, 2014-NMCA-072, 329 P.3d 713, is similarly misplaced. In Maese, the plaintiff brought a UPA claim against his financial advisors for erroneously telling him he could withdraw money tax-free from an annuity that the defendants recommended he purchase. Id. ¶¶ 3-7. The defendants argued that the plaintiff’s claim did not fall under the UPA because he did not pay them for the incorrect financial advice or for the withdrawal from the annuity. Id. ¶ 16. Nonetheless,
citing our liberal construction of the UPA, we found it “immaterial that [the p]laintiff did not specifically compensate [the d]efendants for financial advising services where [the d]efendants received compensation from third parties (e.g., from [the annuity company] for the annuity in question) for investment advice that led to [the p]laintiff’s purchase of their products.” Id. ¶ 19 (emphasis added). Maese is therefore distinguishable, as the plaintiff in that case purchased something (i.e., the annuity).
{25} Nor does Plaintiff find support in Hicks v. Eller, 2012-NMCA-061, 280 P.3d 304. In Hicks, the plaintiff brought a UPA claim against an art appraiser who purchased two paintings from the plaintiff after the plaintiff declined to retain the appraiser’s services to value the art. Id. ¶¶ 4-9, 20. Relying on Lohman and emphasizing the UPA’s purpose as a consumer protection statute, we concluded that the UPA requires that “somewhere along the purchasing chain, the claimant did purchase an item that was at some point sold by the defendant.” Hicks, 2012-NMCA-061, ¶¶ 19-20 (emphasis added). Accordingly, we concluded that the plaintiff, who did not purchase the defendant’s services and acted as the seller of the art, had no standing to bring a UPA claim against the appraiser. Id. ¶ 20. (“Consistent with its purpose as consumer protection legislation, the UPA gives standing only to buyers of goods and services.” (emphasis added)).
CONCLUSION
{27} For the foregoing reasons, we affirm the district court’s grant of summary judgment.
{28} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
M. MONICA ZAMORA, Judge
JULIE J. VARGAS, Judge