Aspell v. American Contract Bridge League of Memphis, Tenn.

• Decision Date: 16 February 1979
• Docket Number: No. 2,CA-CIV,2
• Parties: Florance ASPELL, a married woman, Appellant, v. AMERICAN CONTRACT BRIDGE LEAGUE OF MEMPHIS, TENNESSEE, a corporation, the Tucson Unit of the American Contract Bridge League, an Unincorporated Association, Allen V. Shaw, Walter Shiel, David Reiner, John Barnard, William A. Baldwin, Barbara Downing, Verda Robinson, Robert Bates, T. G. McQuade, Frank Fiems, Sharon Kasle, Raymond Brown, Appellees. 2827.
• Court: Arizona Court of Appeals

Page 191

595 P.2d 191

122 Ariz. 399

Florance ASPELL, a married woman, Appellant, v. AMERICAN CONTRACT BRIDGE LEAGUE OF MEMPHIS, TENNESSEE, a corporation, the Tucson Unit of the American Contract Bridge League, an Unincorporated Association, Allen V. Shaw, Walter Shiel, David Reiner, John Barnard, William A. Baldwin, Barbara Downing, Verda Robinson, Robert Bates, T. G. McQuade, Frank Fiems, Sharon Kasle, Raymond Brown, Appellees.

No. 2 CA-CIV 2827.

Court of Appeals of Arizona, Division 2.

Feb. 16, 1979.

Rehearing Denied March 21, 1979.

Review Denied April 17, 1979.

Law Offices of Paul G. Rees, Jr., P. C. by Paul G. Rees, Jr., Tucson, for appellant

Lesher, Kimble & Rucker, P. C. by Darwin J. Nelson, Tucson, for appellee American Contract Bridge League of Memphis, Tennessee.

Slutes, Browning, Zlaket & Sakrison, P. C. by William D. Browning, Tucson, for appellees Tucson Unit of the American Contract Bridge League, et al.

OPINION

HOWARD, Judge.

Appellant, plaintiff below, claims that the appellees defamed her and wrongfully deprived her of her rights as a member of the American Contract Bridge League (ACBL) and the Tucson Unit of the ACBL (Tucson Unit), and as a citizen of Arizona and the United States. At the close of appellant's case, the trial court directed a verdict for appellees. The evidence will be viewed in a light most favorable to appellant. Tanner v. Levie, 105 Ariz. 149, 460 P.2d 995 (1969).

Appellant was an active member of the ACBL and the Tucson Unit. As a result of dissension within the Tucson Unit, in 1973 the board of directors, of which appellant was the president, resigned en masse. Appellant then withdrew Unit funds from its bank account and gave them to a lawyer who deposited them in his trust account. This necessitated a lawsuit in order for the new board to recover the funds. In 1974 the new board of directors voted to suspend appellant from the ACBL for two years on the ground of misappropriation of the Unit funds. This action by the board of the Tucson Unit was affirmed by both the regional and national organizations. The minutes of the meeting of the Tucson Unit at which appellant was suspended were distributed to the local clubs of the Tucson Unit for posting and to executives of the ACBL and the regional organization. An announcement of her suspension was published three times in the ACBL's national bulletin, which is sent to all member clubs.

In granting appellees' motion for a directed verdict on the defamation charge, the trial court found that the words "misappropriation of unit funds" are insufficient to establish libel per se, and that, because appellant had failed to plead and prove special damages, she did not have a cause of action for libel per quod. It also found that they were true. We affirm the trial court's decision but do not reach the issues that decision was based on because we find that the appellees were protected by a conditional privilege.

In Arizona, a communication is protected by a conditional privilege when the speaker has a duty to make the communication, and it is made in the performance of this duty. Roscoe v. Schoolitz, 105 Ariz. 310, 464 P.2d 333 (1970). The duty may be a legal, moral or social one. Long v. Mertz, 2 Ariz.App. 215, 407 P.2d 404 (1965). In other states, this definition of a conditional privilege has been found to apply to the disciplinary proceedings of a voluntary association where the subject of the communication is a member of the association. Indianapolis Horse Patrol, Inc. v. Ward, 247 Ind. 519, 217 N.E.2d 626 (1966); Fisher v. Myers, 339 Mo. 1196, 100 S.W.2d 551 (1936); and see 53 C.J.S. Libel and Slander § 118 (1948); 50 Am.Jur.2d Libel and Slander Sec. 306 (1970). The board members here were acting in the capacity of officers of the Tucson Unit, in accordance with their duty to Unit members to regulate Unit affairs.

Other than contending that malice was shown, appellant has not challenged appellees' assertion of a conditional privilege in her brief. We note that there are aspects of the proceedings against her which raise a factual question of whether there was compliance with the ACBL's regulations and the Tucson Unit's by-laws. For example, the by-laws governing disciplinary proceedings speak only of complaints which involve conduct or ethics at a tournament, thus raising the question of whether the board had the power to discipline appellant. The ACBL regulations require that a unit give an accused member the opportunity to question his accusers during its preliminary investigation, before written charges are drawn up; there is no evidence that this was done. The by-laws also require a 75% Vote for suspension; the minutes of the meeting show that the board members agreed by a unanimous vote that appellant did misappropriate the funds, but only five of the seven, or 71%, voted in favor of the two-year suspension.

Assuming arguendo that the proceedings against appellant were not in compliance with the regulations and by-laws, we do not believe that the board members' qualified privilege was dispelled. They were still acting pursuant to their duty to the members of the Tucson Unit to regulate the affairs of the Unit when they evaluated and criticized the actions of appellant that had directly affected, and possibly injured, the interests of the Unit.

Whether a communication was privileged is a question for the court. Roscoe v. Schoolitz, supra. The burden is then on the plaintiff to show that the privilege was abused by showing that the defendant was acting with malice in fact. Roscoe v. Schoolitz, supra. This is a question for the jury, but where there is no evidence of malice, the court can dispose of the issue. Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267 (App.1978). We find that appellant failed to provide any evidence that appellees acted with malice.

Malice is established by showing that appellees acted in reckless disregard of the truth, or with actual knowledge that their statements were false. Sewell v. Brookbank, supra. The statement that appellant misappropriated Unit funds was the board's conclusion about a controversial series of events. The fact that the board knew, or should have known, that appellant did not consider that by her actions she had misappropriated funds does not mean that their conclusion was false. Nor does the evidence, viewed in the light most favorable to appellant, show that the board had a reckless disregard for the truth. The minutes of the board meeting which contained the allegedly defamatory statement described the grounds for their conclusion, so readers could decide for themselves whether there had been a misappropriation of funds. The minutes state that the board discussed the situation for over an hour. Nor do we believe the procedural irregularities show the required malice. As to the appellees who were not members of the board, appellant has made no attempt to argue that they acted with malice.

The trial court also directed a verdict for the appellees for lack of evidence on appellant's claim that she was deprived of her rights as a member of the ACBL and the Tucson Unit, and that she was deprived of her rights as a citizen of the United States and Arizona. We affirm the directed verdict on these claims.

Appellant frames her claim for relief for deprivation of her rights as a member as one in tort, and seeks compensation for injury to her reputation, for the ridicule and scorn she has been subjected to, and asks for punitive damages. Tortious actions are tautologically defined as actions which invade an interest that is legally protected against such invasion. See Restatement (Second) of Torts Sec. 6, Comment A (1965). This definition focuses attention on appellant's interest in her membership in the ACBL and Tucson Unit, an interest which, she argues, was wrongfully invaded by her improper suspension.

The relationship between members of a voluntary association is contractual. Savoca Masonry Co., Inc. v. Homes & Son Const. Co. Inc., 112 Ariz. 392, 542 P.2d 817 (1975); Cason v. Glass Bottle Blowers Ass'n 37 Cal.2d 134, 231 P.2d 6 (1951); 6 Am.Jur.2d Associations and Clubs Sec. 5 (1963). Although some writers have found conceptual difficulties with the idea that, by joining a club, a person has created separate contracts with each person who belongs to the shifting membership, Note, Judicial Control of Actions of Private Associations, 76 Harv.L.Rev. 983, 999 (1963); Chaffee, The Internal Affairs of Associations Not for Profit, 43 Harv.L.Rev. 993, 1002-1003 (1930), for our purposes it is clear that the rights and obligations among appellant, the ACBL and Tucson Unit, and the members thereof, were not imposed by law, but were assumed by their voluntary actions. When a voluntary association wrongfully disciplines one of its members, the terms of the contract setting out appropriate grounds and procedures for disciplinary action have been breached. Cason v. Glass Bottle Blowers Ass'n, supra.

A breach of contract is not a tort unless the law imposes a duty on the relationship created by the contract which exists apart from the contract. Felder v. Great American Insurance Co., 260 F.Supp. 575, (D.C.S.1966); W. Prosser Law of Torts Sec. 92 at 617 (1971). Thus, appellees' breach by wrongfully suspending appellant is not tortious unless the law provides protection for one's membership in such a voluntary association.

We have found several cases dealing with tort liability for wrongful expulsion from voluntary associations. We can distinguish most of them, which deal with labor unions and trade or professional associations. The interest there which the law protects is the member's interest in pursing his chosen career or his interest in his professional status. Cason v. Glass Bottle Blowers Ass'n, supra; Nissen...