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Albert E. Holcomb Iv and Holcomb Enterprises, L.L.C. D/B/A/ Camp O v. Tammy Nefzger

February 13, 2013


Appeal from the Iowa District Court for Dubuque County, Monica Ackley, Judge.

The opinion of the court was delivered by: Vogel, J.

The plaintiffs appeal the district court decision granting summary judgment. AFFIRMED.

Considered by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

Albert E. Holcomb IV and Holcomb Enterprises L.L.C. (collectively Holcomb) appeal the district court's grant of summary judgment to Tammy Nefzger, finding the statements Nefzger made in a letter to the editor published in a local newspaper were not libelous as a matter of law because they were substantially true.*fn1 Holcomb claims there are genuine issues of material fact. Because Nefzger's statements were substantially true, providing a complete defense to the libel claim, we affirm the district court's grant of summary judgment.

I. Background Facts and Proceedings

Holcomb owns a resort on Lake Delhi called the Camp O Beach Resort, which includes the Camp O Bar and Grill (collectively Camp O). Camp O is the only commercial establishment within the Lake Delhi Association-otherwise consisting of residential property owners.*fn2 During the end of May and beginning of June 2007, there was a report to the Delaware County Sanitarian and to the Iowa Department of Natural Resources (DNR) of a spill of some type coming from Camp O and flowing down the beach into the water. A sample was taken and tested, showing extremely high levels of e.coli organisms. The restaurant was shut down by order of Black Hawk County Health. From its investigation, the DNR found (1) there was "wastewater . . . discharged from the Camp O Bar & Grill sink and flowed to Lake Delhi," (2) the discharge that reached Lake Delhi contained e.coli bacteria in excess of the maximum water quality standards, and

(3) the septic system was not properly permitted by the county and does not comply with the Iowa Administrative Code. Holcomb was required by the DNR to comply with the septic system requirements of 567 Iowa Administrative Code chapter 69*fn3 and "maintain the plumbing of his property to prevent any future prohibited discharge."

Nefzger's family owns a cabin near the Camp O Beach area. There appears to have been some discord between members of the Lake Delhi Association and Holcomb over the past several years. According to Nefzger, the association attempted to discuss with Holcomb some problems involving the obnoxious and loud behavior of some Camp O patrons. In addition, some members observed the septic system from Camp O would be overloaded on holiday weekends, resulting in some of the septic material overflowing onto the beach.

In late May 2008, Nefzger became aware of a problem on the beach where her children were playing. She claims it "was disgustingly loaded with human waste." Tom McCarthy, a senior environmental specialist with the DNR, was notified, and advised Nefzger to rope off the beach and place signs informing the public of the sewage discharge. After visiting Camp O, McCarthy determined "it appeared that a major release of septic waste has occurred." McCarthy told Holcomb to keep the warning signs up, but approximately one hour after this instruction, Nefzger informed McCarthy that Holcomb had removed them. Dennis Lyons, the Delaware County Sanitarian, also inspected the beach, and determined there was "evidence of a discharge and the presence of sewage." Lyons swore in an affidavit he had personal knowledge of Camp O's septic problems prior to May 2008. He stated it was anticipated by government authorities "the deficiencies would be corrected so as to prevent occurrence[s] well prior to May 2008," and any attempts to correct the problems "were at best temporary 'band aids' and did not adequately or permanently correct the situation."

On June 4, 2008, the Dyersville Commercial published a letter to the editor authored by Nefzger. The entirety of Nefzger's letter reads:

I am writing this letter to inform all residents of Lake Delhi and anyone who may visit the lake in the next few weeks, to stay off of the beach near Camp O Beach Resort due to sewage leaking onto the beach. On May 25, my children went down to the beach to play and we realized they were playing in sewer water. After a phone call to the Delaware County Sheriff Department and the Department of Natural Resources, I was told to have the signs put up until they arrived warning people of this leak so no one else would be contaminated. After the DNR inspected the party responsible for the leak tore down the signs and informed us he would continue to do so. After further investigation, I found out that this is not the first time this type of leak has happened. The responsible party has been told to fix this problem, but continues to "bandage" the leak instead. I feel this person has been given enough time to fix this leak and needs to do so before someone gets sick. I am hoping that by writing this letter, at least one person will be notified of this problem and will keep away from this area until local officials can resolve this problem.

On June 1, 2010, Holcomb filed a defamation action in response to this letter. Nefzger moved for summary judgment claiming the statements were true or substantially true, providing an absolute defense. On October 11, 2011, the district court granted Nefzger's motion, finding all of the facts asserted in her letter to the editor were true or substantially true based on the information known to her at the time of the drafting of the communication. After a denied motion to enlarge the findings, Holcomb appeals.

II. Standard of Review

Our review of a grant or denial of summary judgment is at law. Iowa R. App. P. 6.907. Generally speaking, summary judgment is appropriate only when the entire record including pleadings, discovery, and affidavits on file shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3); McVay v. Nat'l Org. Serv. Inc., 719 N.W.2d 801, 803 (Iowa 2006). A "genuine" issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party based on the evidence. Fees v. Mut. Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992). A fact is "material" only if its determination might affect the outcome of the case. Baratta v. Polk Cnty. Health Servs., 588 N.W.2d 107, 109 (Iowa 1999). When reviewing the grant or denial of a motion for summary judgment, we examine the evidence in a light most favorable to the nonmoving ...

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