IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01131-COA JONATHAN GRIFFITH APPELLANT

v. MERLENE WALL APPELLEE
DATE OF JUDGMENT: 06/23/2016 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM W HICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALEXANDER IGNATIEV ATTORNEY FOR APPELLEE: W I LLIAM L. DUCKER NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE DISPOSITION: REVERSED AND RENDERED - 08/29/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ. ISHEE, J., FOR THE COURT: ¶1. Merlene W all sued Jonathan Grif f ith f or libel and slander, and sought an injunction in t he County Court of Lam ar County

. Af ter a trial o n t h e f

a c t s , the county court ruled in f avor o f Grif

f ith and dism issed the case. W all appealed t h e decision to the Lam ar County Circuit Court. Wa l l s u b m i tted a brief

— raising a new argum ent not previously asserted at trial; Grif f ith d id not r espond t o the appeal with a brief

. The circuit court held that Grif f ith’s f ailure to a nswer and f

ile a brief was a conf

e ssion o f e r

ror. And so, the circuit c ourt reversed the decision of the county court a n d r u l e d i n f avor of W all. Grif

f ith now appeals to this Court, arguing t hat W all f ailed to m ake out a case f or error, an d t h e r e f

o re, he w as entitledt o a s u m

m ary af f irm ance. W e agree, and accordingly , reverse and render the judgm ent o f the circuit court. The judgm e nt of the county

court is reinstated. FACTS AND PROCEDURAL HISTORY ¶2. Wa l l w a s t h e mu n i c i p a l c lerk of Lum berton. Grif

f ith r u n s t h e “ L u mb e r t o n Inf orm er”—a blog which reports on politics and news i n Lum berton. Grif

f ith has of ten been critical of W all in his posts on the blog. Additionally , the blog allows any one to publish a

com m ent f

ollowing a blog entry

. These com m ents m ay be posted anony m ously

. In various instances, anony

m o us com m ents—addressing W all—posted t o t h e blog were vulgar and

crass. ¶3. Wa ll s u ed Grif

f ith in the county court f o r libel a n d s l a n d e r , a n d t o e n j o i n h i s publication. On June 7, 2015, the county court entered an i njunction ordering Grif f ith, as the publisher of the “ Lum

berton Inf orm er,” to cease and desist f rom writing def

a m atory m aterial about W all in his publication. A trial was h eld o n O ctober 1 9 , 2 0 1 5 , a n d a judgm ent was entered in f

avor o f Grif

f ith. At trial, W all and Melissa Nighti n g a le—a deputy city clerk—testif

ied that they believed that Grif f ith was responsib l e fo r t

h e anony m o us com m ents posted to his blog. Grif

f ith testif ied that the com m ents posted on the blog were m oderated by a third party

— a nd thus he was not responsible. ¶4. Af ter the trial, the county c ourt i ssued a written f inal judgm e n t r u l i n g i n Grif f ith’s f avor. First, the county court f ound that W all was a public f igure, and so Grif

f ith possessed

a First Am endm ent right t o criticize W all so long as the com m ents were n ot f alse, and not

m ade with m alice. S econd, t he county court f ound that there w as no evidence of def am atory

2com m ents—m ade by Grif f ith—in any of his blog posts placed i nto evidence. Specif ically , the county court f

ou n d t h a t t h e re w as no proof that t hese com m ents were f actually f alse—m ost were just opinions. Likewise, the county co u r t f o u n d that there was no proof of m alice. And third, t he county c ourt f ound that t here was insuf f icient proof in t he record
to f ind that G rif

f ith had c ontrol o v er the posting of anony m o us com m ents in his blog—and thus was not responsible f o r their content. T heref

ore, the county court f

ound i t unnecessary to determ ine if

the anony

m ous com m ents were def am atory

. ¶5. Wa l l t h e n appealed to the circuit c o urt. W all f iled a brief

, arguing that f

e deral la w placed on Grif

f ith an af f irm ative o bligation to screen of f ensive m aterial. 1 G rif

f ith f ailed to

answer and did n ot f

ile a brief with the c ircuit c ourt. The circuit court then ruled in f avor of
W a ll—f inding that Grif

f ith’s f ailure to participate i n the appeal am o unted to conf ession of

error. Consequently , the c ircuit court reversed the county court and f ound that G rif

f ith did def am e W all. Grif

f ith now appeals. DISCUSSION ¶6. On appeal, Gr i f

f i t h a rgues that t he circuit court erred by taking his f a ilure to f ile a brief as a conf

ession of error, rather than s u mma r i l y a f f irm ing the county c ourt. Grif f ith supports this assertion by arguing that W all f

a iled to m ake out a case of error. W e agree. ¶7. At the outset, we m ust note that this i s a rare case where the f a i l u r e t o f

i le a brief occurred not on appeal to this C ourt, but on appeal to a lower court. That said, the a pplicable rule at the tim e, Unif

orm Circuit and County Court Rule 12.03(D), w hich a ddressed appeals

1 C o m m u n icatio n s D e cen c y

A ct, 4 7 U .S .C . § 2 3 0 (c) (2 0 1 2 )

. 3to the circuit court f rom the county court, provided: “The consequences of f ailure to tim ely f ile a brief [ in the circuit court] shall be the sam e as in the Suprem e Court.” 2 ¶8. W h enever the appellee has f ailed to f ile a brief , a reviewing court i s presented with
two options: “The f

irst ‘is to take the appellee[ ’s] f ailure to f ile a b rief as a conf

ession of

error and reverse.’” M

cGrew v. McGrew , 184 So. 3d 302, 306 (¶10) (Miss. Ct. App. 2015) (quoting Miller v. Pannell , 815 S o. 2d 1117, 1 119 ( ¶7) (Miss. 2002)). “This should be done when the record is c om

plicated o r volum i nous, and the appellant has presented an apparent

case of error.” Id. The second is to disregard the appellee’s f ailure t o f ile a brief and af

f irm the [ judgm ent].” Id. “This option is reserved f or situat i o n s w h e r e t here is a sound and

u n mi s t akable basis upon which the judgm ent m a y b e saf ely af f irm ed.” Id. (interna l quotations om itted). ¶9. Af ter reviewing the r ecord, we f ind tha t t h e c i r c u i t court erred i n t aking Grif f ith’s f ailure to f

ile a brief as a conf

e ssion of error. F i rst, we f ind that the record on appeal is neither com

plicated nor volum inous. And even i f it were, we f ind that W all—the appellant
at the circ u i t c o u r t level—f ailed to present a n a

p parent case of e rror. In f act, the record shows that in her brief to the c ircuit court, W all relied solely o n a f ederal statute i n a n attem

pt
to som ehow tie the anony m ous com m ents m ade on G rif f ith’s blog to Grif

f ith him self

. The f ederal s tatute W a ll r elies on—titled “[ p]rotect i o n f or private blocking and screening of of f ensive m aterial”—states in part:

2 E f f ectiv e Ju ly 1 , 2 0 1 7 , th e U n if o rm C ircu it a n d C o u n ty C o u rt R u les w ere am en d ed an d r en am ed th e U n if

o rm C iv il R u les o f C ircu it an d C o u n t y C o u r t. T h is s u b stan tiv ely u n ch an g ed p ro v isio n is n o w f o u n d in R u le 5 .0 6

. S

ee U C R C C C 5 .0 6

. 4No provider or user of an interactive com puter service shall be held liable on account o f

. . . any action v o l u n t a r ily taken in good f aith to restrict access to or availability of m aterial that the provider or user considers to b e obscene, lewd, lascivious, f

ilthy , e x c e ssively violent, h arassing, or o therwise objectionable, whether or n ot such m aterial is constitutionally protected

. . . . 47 U.S.C. § 230(c)(2)(A). ¶10. W a ll contends that t his s tatute placed an obligation on Grif f ith to rem ove of

f ending

m aterial published—by anony m ous posters—on his blog. A quick g lance at the statute’s text suggests otherwise. For one thing, section 230(c)(1) explicitly protects a user of an interactive com

puter s er v i c e f

rom being “treated as the publisher or speaker of any inf orm ation provided by another inf orm ation c o ntent provider.” 3 Indeed, nowhere in the text of either section 230(c)(1) or (c)(2)(A) does the statute place any obligation on a provider or

a user to screen of

f e nsive m aterial. W hat is m o re, the title of the statute clearly previews a statutory p rotection, not a m a ndate. By i ts very t erm s, the title denotes protection f or private blocking and screening of of f ensive m aterials. One m ay chose to b lock or screen of f ensive

m aterial; he, however, is under no obligation to do so. ¶11. W a ll’s other argum ent s eem s to be that even i f the s tatute does not directly place such

an o bligation o n Grif

f ith—to screen of

f ensive m aterial—it does provide h im with protection
to do s o . A n d s o, W all contends that his f ailure to utilize this protection u ltim ately

e n c o u r a g e s the dissem ination of of f ensive m aterial. W hile we have m ade clear that this

s t atute operates as a protection, we do not agree with this assertion. Again, just bec a u s e

3 “In f o r ma t i o n c o n ten t p ro v id e r” is d e f i n e d as “an y p erso n o r e n tity th at is resp o n s ib le, in w h o le o r i n p art, f o r th e creatio n o r d ev elo p m en t o f in f o rm atio n p ro v id ed th ro u g h th e In tern et o r an y o th e r in teractiv e serv ice.” 4 7 U

. S

. C . § 2 3 0 (f ) (3 ). 5Grif

f ith would have been protected if he h ad voluntarily screened the m aterial, does not m ean he had t o. The r ecord ref

lects that on appeal t o the circuit court, W all did not c ontest any of the m erits of the actual def a m a tion claim tried in t he c o u n t y c o u r t. Indeed, W all—af ter having not raised i t at the actual trial—relies on the f ederal statute to attach ownership of the
anony m ous com m ents t o Grif

f ith. And having d eterm ined that such statute does not operate in this m anner, that leaves W all with no case of error on appeal. ¶12. Because the record was neither c o m p l i c a t e d nor volum inous, coupled with W all’s f ailure to m ake out a n apparent c ase of error, we f ind that the circu i t c o u r t s h o uld have disregarded Grif

f ith’s f ailure to f i le a brief and af

f irm ed the judgm e n t o f the county court. For here there was a “sound and unm istakable b asis” upon which t he c ircuit court could have saf ely af f irm ed the judgm ent of

the county

court. See McGrew , 184 So. 3d at 306 (¶10). ¶13. It is undisputed that W all—as city clerk—was a public f

igure; indeed, she adm itted

as m uch in her brief to t he c ircuit court. And so, to prevail on a def am ation claim , W all had
to s how evidence that Grif f ith m ade a f

alse statem ent of f

act (not opinion). N

.Y

. T i m es v. Sullivan , 376 U.S. 254, 281 (1964). Additionally , W all had to show that G rif f ith acted with actual m a l ice—knowledge t hat s u ch statem ents were f alse or m ade with reckless disregard of their truth or f

a lsi t y . S e e i d

. Af ter a trial and consideration of the f acts presented, the county court f

ound that W all f

ailed to carry

her burden as to any

of these elem ents. ¶14. In h er brief to the circuit court, and even be f o r e u s, W all’s only c laim of error was based on the control o f the anony m ous com m ents. W all did not, f or exam p le, claim that the county court erred in f

inding that she was a public f igure, t hat it erred in determ ining that she

6f

ailed to prove t h a t Grif

f ith’s p ost contained f

alse statem ents o f f

act, or t hat i t erred in f inding that she f

ailed to prove actual m alice. Indeed, W all’s o nly hope was t o attem pt to

use a n inapplicable f

ederal statute as a vehicle to attach ownership of these anony m ous

com m ents to Grif

f ith. The county court f

ound that there w as insuf

f icient proof in the record
to f ind that G rif

f ith had c ontrol o v er the posting of anony m o us com m ents in his blog—and

was thus n ot responsible f or their content. W a ll’s use of the f ederal statute does not change
t h a t c onclusion. W ith a ll this in m ind, we f ind that the circuit c ourt could ha v e s a f e l y af f irm ed the judgm ent of

the county

court. ¶15. In conclusion, we f in d t h a t b e c a u s e t h e r e c o r d w a s n e i t h er com plicated nor volum inous, coupled with the f a ct that W all f

ailed to m ake out an apparent case of error, the circuit court should have af f irm e d the judgm e nt of

the county court—even though Grif f ith f ailed to f ile a brief . In reaching this end, it is not our intent to condone a litigant’s f ailure
to f i l e a brief

. Nor do we encourage f

uture litigants to approach the appellate process in a careless m anner; f

or when a lit i g a n t does so, he d oes so at his o wn peril. Yet w e f ind that in this s pecif

ic case, with these specif

ic f acts, a case of e rror was n ot m ade. Theref ore, we

reverse and render t he judgm ent of the c ircuit court. The judgm ent of t h e c ounty court is reinstated. ¶16. REVERSED AND RENDERED. LEE, C.J., I RVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. CAR L T O N , J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

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