{ "id": 1575583, "name": "MAUCK, STASTNY & RASSAM, P. A., a New Mexico Professional Corporation and Keith W. Mauck, Frederick J. Stastny and Hormuzd Y. Rassam, Plaintiffs-Appellees, v. Bruce BICKNELL, Defendant-Appellant", "name_abbreviation": "Mauck, Stastny & Rassam, P. A. v. Bicknell", "decision_date": "1980-06-24", "docket_number": "No. 3847", "first_page": "702", "last_page": "706", "citations": [ { "type": "official", "cite": "95 N.M. 702" }, { "type": "parallel", "cite": "625 P.2d 1219" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "87 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "parenthetical": "excessive public expenditure to acquire a \"shabby lot.\"" } ], "opinion_index": 0 }, { "cite": "242 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612350 ], "year": 1955, "pin_cites": [ { "parenthetical": "excessive public expenditure to acquire a \"shabby lot.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0227-01" ] }, { "cite": "27 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "parenthetical": "criticism of excess public spending in purchase of bridge by state" } ], "opinion_index": 0 }, { "cite": "126 W.Va. 292", "category": "reporters:state", "reporter": "W. 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Rptr.", "year": 1962, "opinion_index": 0 }, { "cite": "206 Cal.App.2d 594", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2313054 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/cal-app-2d/206/0594-01" ] }, { "cite": "75 N.M. 672", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5372643 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "679-680" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0672-01" ] }, { "cite": "75 N.M. 144", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5373021 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nm/75/0144-01" ] }, { "cite": "390 U.S. 727", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178083 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/390/0727-01" ] }, { "cite": "380 U.S. 356", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524777 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/380/0356-01" ] }, { "cite": "84 S.Ct. 725", "category": "reporters:federal", "reporter": "S. 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A., a New Mexico Professional Corporation and Keith W. Mauck, Frederick J. Stastny and Hormuzd Y. Rassam, Plaintiffs-Appellees, v. Bruce BICKNELL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nANDREWS, Judge.\nThis appeal arises out of an action brought by Keith Mauck, Frederick Stastny, and Hormuzd Rassam, in both their individual capacities and in the name of their professional corporation (MSR) against Bruce Bicknell for libel. The trial court, sitting without a jury, awarded $37,-500.00 in actual damages and a like amount in punitive damages to each of the individual plaintiffs.\nThe factual background of this case is undisputed. On July 11,1973, MSR entered into a contract with San Juan County to perform architectural services in connection with an addition to San Juan County Hospital. While two of the three principals in the professional corporation are architects registered to practice in New Mexico, neither were residents of the state. The third principal, Dr. Rassam, was a resident of New Mexico but was licensed as a professional engineer, rather than as an architect. It is required in New Mexico, with certain exceptions which are not applicable in the instant case, that all architectural services performed on public works projects be supplied by architects who are New Mexico residents. Section 61-15-9(A), N.M.S.A. 1978 (Supp.1979). Consequently, the eligibility of MSR for the hospital project became a subject of discussion by the New Mexico Board of Examiners for Architects and the subject of an article which appeared on the front page of the Farmington Daily Times.\nBicknell wrote a letter highly critical of MSR\u2019s objections to an inquiry into the legality of its contract with the county, and went on to make statements which the trial court reasonably interpreted as casting aspersions on the honesty and professional competence of the members of MSR. The letter was printed and mailed to some 230 civil leaders, commercial leaders, and present prospective clients of MSR.\nDefendant asserts five points of error, seeking to reverse the judgment below: (1) that the trial court applied the incorrect constitutional standard; (2) that the trial court abused its discretion in refusing to permit the defendant to amend his answer; (3) that the plaintiffs are barred from prosecuting any claim to collect damages because their business is in violation of state law; (4) defendant\u2019s letter constituted opinion and not fact and, therefore, could not be the subject of a libel action; and (5) that the letter was true and, therefore, not libelous.\nAlthough much of the discussion in the briefs centers around the constitutional issues, defendant\u2019s claim that the trial court abused its discretion in refusing to allow amendment is dispositive. Defendant initially filed his motion to amend his answer on April 7,1978, where he sought to add the affirmative defenses of truth, privilege, and fair comment. Prior to ruling on defendant\u2019s motion, the trial court granted a continuance of the trial until August 7, 1978. On July 31, 1978, the trial court allowed the defendant to add the affirmative defense of truth but not those of privilege and fair comment. No reasons are stated by the trial court for its disparate treatment of the affirmative defenses raised. However, since the trial court did not see timeliness as a bar to the addition of the truth defense, it would appear that the trial court felt that the other two affirmative defenses were not applicable to the facts herein.\nBy pleading the affirmative defense of privilege, it appears that the defendant refers to the qualified privilege recognized in Ward v. Ares, 29 N.M. 418, 223 P. 766 (1924). In Mahona-Jojanto, Inc., N. S. L. v. Bank of New Mexico, 79 N.M. 293, 295-296, 442 P.2d 783 (1968), the Supreme Court defined this qualified privilege as follows:\nAn occasion giving rise to the privilege is one consisting of a good faith publication in the discharge of a public or private duty when the same is legally or morally motivated.\nTherefore, this privilege has the requirement of good faith. The trial court specifically found that the letter in question was \u201ccalculated to and did in fact hold the plaintiffs in public ridicule, hatred and contempt\u201d, and \u201cpublished in willful disregard of the rights of the parties.\u201d Therefore, the good-faith based defense of privilege defense was unavailable to the defendant.\nThe common law privilege of fair comment has long been recognized by the courts and commentators. The privilege generally is stated to apply to all discussion and communication involving matters of public or general concern. Prosser, The Law of Torts, pp. 822-823 (1971). When the comment is directed to public officials or public figures, the United States Supreme Court has elevated this common law privilege to constitutional proportions. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Times, supra, at 376 U.S. 269-270, 84 S.Ct. 720-721, the Supreme Court discussed the rationale and policy underlying the privilege of fair comment:\nThe general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, \u201cwas fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.\u201d Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498. \u201cThe maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.\u201d Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117. \u201c[I]t is a prized American privilege to speak one\u2019s mind, although not always with perfect good taste, on all public institutions,\u201d Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192, and this opportunity is to be afforded for \u201cvigorous advocacy\u201d no less than \u201cabstract discussion.\u201d N. A. A. C. P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328 [335], 9 L.Ed.2d 405.\nAlthough it is clear that the constitutional privilege has not been extended beyond eases in which public figures or public officials are involved, Gertz, supra, and that the plaintiffs herein are neither public figures nor public officials, Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), the common law privilege has been applied to cases where the communication relates to work being paid for out of public funds. In Bishop v. Wometco Enterprises, Inc., 235 So.2d 759 (Fla.App.1970) the court stated that where one brings himself into the public arena, regardless of whether he is a public official, a public figure or in-, volved in a matter of public interest, a qualified privilege is created in the communicator. We agree; the common law privilege is available to one who comments and communicates regarding a matter of public interest where the subject of that commentary has voluntarily sought and acquired a government contract. S\u00e9e Mr. Justice Brennan\u2019s plurality opinion, for the Court, in Rosenbloom v. Metro Media, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).\nAs the Florida court, in Bishop, pointed out, this is but a qualified privilege and will only isolate the defendant from liability so long as there is no proof. of actual malice, as defined in New York Times v. Sullivan, supra. Professor Prosser in his treatise on Torts states that the malice standard as defined in the Times case is the appropriate standard to qualify the common law privilege. Prosser, supra, at 821-823. Prosser explains that the \u201cmalice\u201d standard developed in New York Times, supra, and its prodigy is not a bad faith or malice standard at all, but actually only involves scienter. It is not the defendant\u2019s desire to injure the plaintiff that destroys the privilege, but rather that the defendant makes his statement \u201cwith knowledge that it was false or with reckless disregard of whether it was false or not.\u201d 376 U.S. 279-280, 84 S.Ct. 725-726. Professor Prosser, supra, at 821, states:\nTwo subsequent decisions of the Supreme Court [Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892, and St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262] reiterated the new requirement and definition of \u201cmalice,\u201d holding that actual ill will and a desire to do harm was not sufficient to defeat the privilege, nor was mere negligence in publishing the defamation without verification; and that it could be defeated only by the plaintiff\u2019s proof of knowledge of falsity or reckless disregard of the truth.\nIt is certainly highly unfortunate that the Court chose to cling to the discredited term \u201cmalice,\u201d which has meant all things to all men, and is here highly misleading. A much better word would have been \u201cscienter,\u201d since the state of mind required is obviously the same as in deceit actions for intentional misrepresentation. -Where this is proved, there is no doubt that there can still be liability.\nTherefore, the trial court\u2019s finding of defendant\u2019s bad faith and ill will toward the plaintiffs does not preclude this defense.\nThe Rules of Civil Procedure should not be a means of denying parties their right to reach the substance of their claims or defenses. The purpose of the Rules of Civil Procedure is to allow cases to be disposed of on the merits and not on technicalities. Hambaugh v. Peoples, 75 N.M. 144, 149, 401 P.2d 777 (1965). In Martinez v. Research Park, Inc., 75 N.M. 672, 679-680, 410 P.2d 200 (1965), the New Mexico Supreme Court stated: \u201cThe law has long recognized the principle that amendments to pleadings are favored and that the right thereto should be liberally permitted in the furtherance of justice.\u201d In the instant case, the essence of defendant\u2019s argument is that he was attempting to inform certain key members of the public of what he thought to be a transgression of New Mexico law regarding a project to be funded by the public. To deny the defendant the right to amend his answer to add the defense of fair comment served to deny his right to present an effective defense. In Fairfield v. Hamilton, 206 Cal.App.2d 594, 24 Cal.Rptr. 73 (1962) the court discussed a similar situation and stated:\nSince a defendant in a libel action can neither defend on the ground of truth, nor offer proof thereof by way of mitigation, unless he had affirmatively pleaded such matter [citation omitted] depriving the defendant of the opportunity so to do in an appropriate case would undoubtedly prevent him from having a fair trial.\nAdditionally, it is clear to us from the fact that the trial court allowed the amendment of the defense of truth but not that of fair comment, that the trial court did not fully comprehend the full import to be accorded the defense of fair comment, as that was the heart of defendant\u2019s case. That being the case, we find that the trial court\u2019s actions in failing to allow the defendant to amend his answer to add the affirmative defense of fair comment was, under the facts of this case, an abuse of discretion. We therefore reverse the trial court. Vernon Company v. Reed, 78 N.M. 554, 555, 434 P.2d 376 (1967).\nThe judgment below is reversed and a new trial ordered.\nIT IS SO ORDERED.\nHENDLEY and WALTERS, JJ., concur.\n. Bishop v. Wometco Enterprises, Inc., 235 So.2d 759 (Fla.App.1970) (preferential tax treatment); Grell v. Hoard, 206 Wis. 187, 239 N.W. 428 (1931) (ineffective and wasteful-expenditure of public money in the building of highways); Holway v. World Publishing Company, 171 Okl. 306, 444 P.2d 881 (1935) (excessive public spending in compensation of con-suiting engineer); Bailey v. Charleston Mail Association, 126 W.Va. 292, 27 S.E.2d 837 (1943) (criticism of excess public spending in purchase of bridge by state); and Yancey v. Gillespie, 242 N.C. 227, 87 S.E.2d 210 (1955) (excessive public expenditure to acquire a \u201cshabby lot.\u201d)", "type": "majority", "author": "ANDREWS, Judge." } ], "attorneys": [ "Michael Campbell, Campbell & Black, Santa Fe, for defendant-appellant.", "Briones, Harrell & Wills, P.A., Farming-ton, for plaintiffs-appellees." ], "corrections": "", "head_matter": "625 P.2d 1219\nMAUCK, STASTNY & RASSAM, P. A., a New Mexico Professional Corporation and Keith W. Mauck, Frederick J. Stastny and Hormuzd Y. Rassam, Plaintiffs-Appellees, v. Bruce BICKNELL, Defendant-Appellant.\nNo. 3847.\nCourt of Appeals of New Mexico.\nJune 24, 1980.\nMichael Campbell, Campbell & Black, Santa Fe, for defendant-appellant.\nBriones, Harrell & Wills, P.A., Farming-ton, for plaintiffs-appellees." }, "file_name": "0702-01", "first_page_order": 734, "last_page_order": 738 }