CONTRERAS, Presiding Judge.
This appeal presents the questions of whether substantial truth is a complete defense in a libel action and whether, under some circumstances, a determination of substantial truth is a question of law for the court. We answer both questions affirmatively, and therefore affirm a summary judgment for appellees on one count of appellant's amended complaint and the dismissal of the remaining counts.
The background chronology of events that transpired prior to the commencement of the present civil action is best understood from the following excerpt of a prior decision of this court.
State v. Fendler, 127 Ariz. 464, 468-69, 622 P.2d 23, 27-28 (App. 1980), rev. denied, December 23, 1980, cert. denied, ___ U.S. ___, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). In 1980, appellant's conviction and sentence on the false book entry count was affirmed, and the conviction on the failure to file count was reversed and remanded for a new trial. Id. The disposition on the criminal appeal is not relevant here since it occurred after the alleged defamation which is the subject of the present civil appeal.
Following appellant's conviction and sentence, and while he was released on bail pending an appeal of his conviction and sentence, an editorial published in the Arizona Republic on September 5, 1978, stated, in pertinent part:
(emphasis added). On September 12, 1978, appellant filed a complaint in the Superior Court of Maricopa County, naming Phoenix Newspapers, Inc. and several of its officers and employees in their individual capacities as defendants and alleging that appellant was defamed by the above statement.
On September 20, 1978, an article in the Arizona Republic stated, in pertinent part:
(emphasis added). That same day, appellant filed an amended complaint identical to the original complaint except for the addition of a seventh count. The new count alleged defamation based upon the above statement.
On October 2, 1978, appellees filed a motion to dismiss counts two through seven on grounds that they failed to state a claim and, further, that they were based upon the same publication as count one and were thereby precluded by A.R.S. § 12-651 which limits a plaintiff to "... one cause of action ..." for a single publication. The trial court dismissed counts two through six by a minute entry dated November 9, 1978.
Appellees filed a second motion to dismiss count seven on November 14, 1978, on grounds that the truth of the September 20, 1978, article constitutes an absolute defense to defamation. The trial court granted the
On September 7, 1979, appellees filed a motion for summary judgment on the remaining count, on the grounds that the September 5, 1978, editorial was substantially true and therefore could not be libelous. Following oral argument, the trial court granted the motion. Formal judgment was entered on November 5, 1979, in favor of Phoenix Newspapers, Inc. An amended judgment was entered on December 17, 1979, granting judgment on the complaint to Phoenix Newspapers, Inc. and the individual defendants. This appeal followed.
The issues raised in this appeal are whether the trial court erred by failing to permit issues of the falsity of the September 5, 1978, editorial or existence of malice to go to the jury; whether the trial court erred by dismissing counts two through seven; and whether the trial judge erred by failing to recuse herself. We affirm the judgment of the trial court.
SUBSTANTIAL TRUTH AS A DEFENSE
Appellant's brief on appeal addresses only the September 5, 1978, editorial. Appellant contends that the editorial is false in stating that he was "doing four-to-five years in prison" because at the time the editorial was published he was free (i.e., released) on bail pending an appeal of his conviction and sentence. Appellees acknowledge the inaccuracy of the statement that appellant was in prison when the editorial was published but argue that the editorial was substantially true and is therefore not actionable.
We consider first the general question of whether substantial truth is a complete defense to defamation. Arizona courts have long held that truth is a complete defense to an action for defamation. However, these cases do not specifically address the question of substantial truth as a defense. See, e.g., Cullison v. City of Peoria, 120 Ariz. 165, 584 P.2d 1156 (1978); Central Arizona Light and Power Co. v. Akers, 45 Ariz. 526, 46 P.2d 126 (1935). In deciding whether substantial truth, like absolute truth, should provide a complete defense to defamation, we look to the Restatement (Second) of Torts, which Arizona will follow in the absence of authority to the contrary. See MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Barnum v. Rural Fire Protection Co., 24 Ariz.App. 233, 537 P.2d 618 (1975).
The Restatement (Second) of Torts, § 558 (1977), sets forth the elements of an action for defamation and provides in part:
The Restatement (Second) of Torts, § 581(A) (1977) provides:
Comment f to § 581(A) provides in part:
Numerous jurisdictions which have considered the issue have adopted the Restatement position that substantial truth is sufficient to defeat an action for defamation. For example, in Kurata v. Los Angeles News Publishing Co., 4 Cal.App.2d 224, 227, 40 P.2d 520, 522 (1935), the California Court of Appeal stated:
This standard has been reaffirmed by the California courts on numerous occasions and similar, if not identical, standards have been adopted in other jurisdictions. See, e.g., Alioto v. Cowles Communications, Inc., 623 F.2d 616 (9th Cir.1980); Maheu v. Hughes Tool Co., 569 F.2d 459 (9th Cir.1977); Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir.1978); Brueggemeyer v. Associated Press, 609 F.2d 825 (5th Cir.1980); Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972); Hein v. Lacy, 228 Kan. 249, 616 P.2d 277 (1980); and Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (App. 1980). See generally Prosser, Law of Torts, ch. 19, § 116 at 798 (4th ed. 1971). We find these decisions persuasive and hold that if an allegedly defamatory statement is substantially true, it provides an absolute defense to an action for defamation.
SUBSTANTIAL TRUTH AS A QUESTION FOR THE COURT
Accordingly, we are left with appellant's assertion that the trial court erred in refusing to allow the issue of the falsity of the editorial statement describing appellant as "doing four-to-five years in prison" to reach the jury. It is appellant's position that the determination of substantial truth is a matter for the trier of fact, while appellees contend that this determination was properly made by the court as a matter of law.
Appellant argues that a jury as a trier of fact could have found that the editorial falsely stated he was "doing four-to-five years in prison" when he was free pending appeal. However, there was no factual dispute over either the contents of the allegedly defamatory editorial or the inferences to be drawn therefrom. All parties agreed that appellant was free pending appeal but that the editorial could have led the public to believe that he was in jail following conviction and sentencing. While it is the function of a jury to determine factually whether an allegedly defamatory statement is true,
Without directly addressing whether such determinations are for judge or jury, courts have made such determinations as a matter of law. See, e.g., Anderson v. Stanco Sports Library, Inc., 542 F.2d 638 (4th Cir.1976); Simonson v. United Press Int'l, Inc., 500 F.Supp. 1261 (E.D.Wis. 1980); Hein v. Lacy, supra; and Prahl v. Brosamle, supra. We find that, where the underlying facts are undisputed, the determination of substantial truth is a matter for the court.
SUBSTANTIAL TRUTH IN THIS CASE
Appellant has also argued that the trial court erred in finding "substantial truth" because the distinction between the editorial and the actual truth was so significant that it could not be characterized as "substantially true." The editorial accurately reflects that appellant had been found guilty of criminal acts and had been sentenced to 4-5 years in prison. While the editorial incorrectly states that appellant had commenced serving his sentence, only appellant's pending appeal and the posting of bond kept him out of prison as of the date the editorial was published. Appellant argues that the editorial misstatement cannot be deemed a "slight inaccuracy." There is little doubt that appellant personally found it highly meaningful that he had been released on bond rather than being incarcerated in prison pending his appeal. However, for purposes of damage to reputation, which is the interest protected by an action for defamation, we believe the inaccuracy in the editorial was not significant.
Damage to reputation flows not from being in a prison facility per se, but from the fact that the person has been adjudged guilty of a crime by a court of law. Cf. Anderson v. Stanco Sports Library, Inc., supra.
Appellant also argues that whether appellees acted with malice in publishing the editorial was a jury issue. However, having correctly held that the editorial was substantially true, it was unnecessary for the trial court to submit this issue to a jury. If the editorial was true, appellees' publication was not actionable even if the statements were made with actual malice. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).
DISMISSAL OF COUNTS 2-6
We turn next to appellant's contention that the trial court erred in dismissing the remaining counts of his complaint. Counts two through six were also based upon the September 5, 1978, editorial. Having determined that the editorial was substantially true and that this provides a
DISMISSAL OF COUNT 7
The dismissal of count seven of appellant's complaint requires different considerations. In count seven, appellant alleged that the September 20, 1978, article was defamatory in stating that appellant had been convicted of fraud stemming from the collapse of two thrift firms. In his pleadings before the trial court, appellant argued that it was false to refer to his "fraud conviction" because he had not been convicted under Arizona's fraud statutes, A.R.S. §§ 13-311 et seq. (now A.R.S. §§ 13-2310 and 13-2311).
There is no indication in the September 20, 1978, article that the term "fraud conviction" was intended to refer specifically to a conviction pursuant to a particular statute. Further, the jury instructions relative to the charge of false book entry required a finding of "intent to defraud" for conviction. Under these circumstances, we find the newspaper's characterization of appellant's conviction for "fraud", used in its popular sense, to be substantially true. Cf. Orr v. Argus-Press Co., supra, 586 F.2d at 1112. Therefore, the trial court correctly dismissed count seven of the complaint and properly granted judgment to defendants.
Finally, we address appellant's argument that the trial judge should have recused herself "when asked to do so." The record reflects no notice for change of judge either as a matter of right pursuant to Rule 42(f)(1) or for cause pursuant to Rule 42(f)(2), Arizona Rules of Civil Procedure. The right to apply for a change of judge for cause is waived if not timely filed. Smith v. Rabb, 95 Ariz. 49, 386 P.2d 649 (1963); Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721 (1955). Further, there are no transcripts in the record to support appellant's claim that the trial judge was asked to
The judgment is affirmed.
OGG and CORCORAN, JJ., concur.
There is nothing in the complaint itself nor in appellant's responsive pleadings to the motion for summary judgment indicating that appellant was at that time alleging falsity of the term "fraudulent practices." (Cf. the allegations of Count Seven, discussed below). Appellant has chosen not to provide this court with a transcript of the hearing on the motion for summary judgment and we will not presume that this issue was raised in the hearing. Appellant is precluded from raising for the first time on appeal an argument not advanced at trial level. Conner v. El Paso Natural Gas Co., 123 Ariz. 291, 599 P.2d 247 (App. 1979); Apache East, Inc. v. Wiegand, 119 Ariz. 308, 580 P.2d 769 (App. 1978). On appeal from summary judgment this court will not consider new theories raised in order to secure reversal of the lower court's determination. Crook v. Anderson, 115 Ariz. 402, 565 P.2d 908 (App. 1977).