Alford v. Utah League of Cities and Towns

• Decision Date: 23 March 1990
• Docket Number: No. 880669-CA,880669-CA
• Citation: 791 P.2d 201
• Parties: Alice M. ALFORD, Plaintiff and Appellant, v. The UTAH LEAGUE OF CITIES AND TOWNS, an unincorporated association; Jan T. Furner; Kenneth H. Bullock; Carol A. Kotler; Michele Reilly; Jami Adamson; Jack A. Richards; and John Does 1 through 10, individuals, Defendants and Respondents.
• Court: Utah Court of Appeals

Page 201

791 P.2d 201

Alice M. ALFORD, Plaintiff and Appellant, v. The UTAH LEAGUE OF CITIES AND TOWNS, an unincorporated association; Jan T. Furner; Kenneth H. Bullock; Carol A Kotler; Michele Reilly; Jami Adamson; Jack A. Richards and John Does 1 through 10, individuals, Defendants and Respondents.

No. 880669-CA.

Court of Appeals of Utah.

March 23, 1990.

Brian R. Florence, Ogden, for plaintiff and appellant.

Todd S. Richardson and Stephen G. Morgan, Salt Lake City, for defendants and respondents.

AMENDED OPINION ^*

Before DAVIDSON, BENCH and BILLINGS, JJ.

BILLINGS, Judge:

Alice M. Alford ("Alford"), appeals from a Third District Court order granting summary judgment in favor of the Utah League of Cities and Towns, Jan T. Furner, Kenneth H. Bullock, Carol A. Kotler, Michele Reilly, Jami Adamson, and Jack A. Richards (hereinafter collectively referred to as "League"), dismissing Alford's claim of defamation against the League. We affirm.

The Utah League of Cities and Towns is an organization formed by the municipalities of the State of Utah under the Interlocal Co-operation Act, Utah Code Ann. §§ 11-13-1 to -36 (1986 & Supp.1989). Alford was employed with the League as the director of administrative services. On October 3, 1986, Alford was terminated after Alford retained an attorney to appeal her termination. Alford's attorney sent a letter to the League on October 16, 1986, requesting a hearing before the Board of Directors of the League ("Board") to review her termination. He requested the League to "come forward with specific instances of insubordination and unwillingness to work with co-workers, sufficient to justify the measures taken." Alford's attorney also requested documentation from the League, stating:

being placed on probation twice in the previous eight months. The grounds listed on her notice of termination were "insubordination and unwillingness to work with co-workers."

In addition, we would request that, no later than Wednesday, October 22, 1986, the League furnish this office with all the information upon which it claims to have relied in Mrs. Alford's termination, and which it intends to present to the board of directors during the October 24, 1986, hearing. Specifically, we request the following, in writing: ... [t]he names of all individuals who will be present at the hearing on October 24, 1986, to offer statements or testimony regarding Mrs. Alford's job performance during her employment with the League, together with all particulars of the statements or testimony which they will offer; and ... [a]ll particulars of any other information, whether written or verbal (including copies of any information which has been reduced to writing), which the League will present to its board of directors in support of its termination decision.

Again on October 23, 1986, after concluding the original response of the League was not specific enough, Alford's counsel requested specific information be provided to the Board prior to their consideration of her appeal:

The report itself, while it characterizes Mrs. Alford's termination as "an emergency response to a critical situation" does not name a single co-worker nor describe a single event, to justify the charge of "insubordination". [sic] Not only, therefore, is the report unresponsive to my prior letter, it does not give the board adequate information upon which to base its decision regarding a further hearing....

In order to respond adequately to Alford's request, the League solicited statements from employees who had worked with Alford or had been involved in the decision to terminate her. Alford admits that these employee statements were prepared in anticipation of the Board's review of her termination.

Alford's attorney attended the October 24, 1986, Board meeting. At this meeting, a special hearing was scheduled for Alford's appeal. The Board minutes reflect the following:

Mr. Tom Melloy, attorney for Alice Alford, then returned to the board room. After reconvening the board meeting, counsel member Gurrister made the motion to direct the staff to furnish a copy of the same information to each board member. The motion was seconded by Mayor Scott, motion passed. Mayor Linford moved the date of hearing to be set for November 10, 1986 at 4:00 p.m. The motion was seconded by counsel member Gurrister, motion passed. Mr. Melloy asked for a copy of all written statements originally requested by [Alford's previous attorney] from staff and Mr. Furner. Mr. Melloy agreed that the statements should also be distributed to board members; so that they would be prepared for the November 10 meeting.

Mr. Melloy filed an affidavit claiming he had not affirmatively agreed to the distribution of the employee statements at the October 24th meeting, but confirming that he made no objection to the Board receiving the statements prior to the special hearing.

The employee statements ultimately distributed to Alford's attorney and to each Board member before her November appeal included, among others, the following allegations: she was intoxicated at business meetings, was mentally unstable and unable to control her behavior, and circulated deliberate falsehoods about co-workers Subsequently, Alford filed this action claiming that the League defamed her by providing these employee statements to the Board. The League filed a motion for summary judgment arguing four grounds in support of the dismissal of Alford's defamation claims: 1) Alford consented to the publication of the statements, 2) the League had a qualified privilege because of the common interest in the subject matter of the statements, 3) Alford failed to give proper notice under Utah's Governmental Immunity Act, and 4) the League had an absolute privilege to publish the statements because Alford's request for a hearing constituted a quasi-judicial proceeding. The trial court granted the League's motion for summary judgment without specifying the grounds for granting the motion.

which she then falsely attributed to her supervisor.

Alford appeals claiming that the trial court improperly granted the League's motion for summary judgment and that the trial court's failure to state the grounds for its ruling constitutes reversible error.

Summary judgment should be granted under Utah R.Civ.P. 56(c) "only when it is clear from the undisputed facts that the opposing party cannot prevail." Lach v. Deseret Bank, 746 P.2d 802, 804 (Utah Ct.App.1987). When reviewing an appeal from summary judgment, we construe the facts and view the evidence in the light most favorable to the losing party. Geneva Pipe Co. v. S & H Ins. Co., 714 P.2d 648, 649 (Utah 1986); Lucky Seven Rodeo Corp. v. Clark, 755 P.2d 750, 752 (Utah Ct.App.1988). "If ... we conclude that there is a dispute as to a genuine issue of material fact, we must reverse the grant of summary judgment and remand for trial on that issue." Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1987).

RULE 52(a) FINDINGS

Initially, Alford argues the trial court erred by failing to issue a brief written statement of the grounds for granting the League's motion for summary judgment because alternate grounds were argued by the League. See Utah R.Civ.P. 52(a). ¹ We agree that under rule 52(a) the trial court is required to make a brief written statement delineating which alternative theory it accepted in granting summary judgment. However, Alford failed to object or move the trial court to correct this oversight under Utah R.Civ.P. 52(b). Failure to object below, in order to give a trial court an opportunity to cure the problem, precludes us from considering the error on appeal. Mascaro v. Davis, 741 P.2d 938, 944 (Utah 1987) ("matters not raised at the trial court level will not be considered by [appellate court] on appeal, particularly when the problem could have been resolved below"); Trayner v. Cushing, 688 P.2d 856, 857 (Utah 1984) (issues not presented to the trial court for decision are not reviewable on appeal). Therefore, we do not consider the trial court's failure to make the requisite rule 52(a) statement of the grounds for its decision on appeal.

QUALIFIED PRIVILEGE

The League advances several grounds to support the trial court's summary judgment dismissing Alford's defamation suit. Because we find the undisputed facts in the record support the League's defense to the defamation suit of a common interest qualified privilege, we do not discuss the other defenses asserted by the League on appeal. ²

Communications between persons who share a common interest are qualifiedly privileged and not libelous in the absence of malice. Lind v. Lynch, 665 P.2d 1276, 1278 (Utah 1983); Sowell v. IML Freight Inc., 30 Utah 2d 446, 519 P.2d 884, 885 (1974) (communication protected by privilege when it is made bona fide about a matter in which both the writer and recipient have an interest); Combes v. Montgomery Ward & Co., 119 Utah 407, 228 P.2d 272, 275 (1951) (conditional privilege exists when there is an important interest on behalf of publisher and recipient). The question of whether a communication is privileged is for a court to determine. Dominguez v. Babcock, 727 P.2d 362, 365 (Colo.1986) (en banc).

The common interest shared by the Board and the League was the desire to determine the factual circumstances surrounding Alford's...