Chalk v. Bertholf

• Decision Date: 17 July 2007
• Docket Number: No. 2005-CA-01627-COA.,2005-CA-01627-COA.
• Citation: 980 So.2d 290
• Parties: Franklin E. CHALK, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, F. Gregory Malta, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Speed and Aaron K. Wilson, Appellants v. David J. BERTHOLF and Joe H. Bryant, Jr., Appellees.
• Court: Mississippi Court of Appeals

980 So.2d 290

Franklin E. CHALK, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, F. Gregory Malta, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Speed and Aaron K. Wilson, Appellants v. David J. BERTHOLF and Joe H. Bryant, Jr., Appellees.

No. 2005-CA-01627-COA.

Court of Appeals of Mississippi.

July 17, 2007.

Rehearing Denied April 22, 2008.

J. Stewart Parrish, Meridian, attorney for appellants.

Wayne E. Ferrell, Jackson, attorney for appellees.

EN BANC.

MYERS, P.J., for the Court.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶ 1. Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, F. Gregory Malta, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Speed, and Aaron K. Wilson filed a complaint in the Circuit Court of Lauderdale County against David J. Bertholf and Joe H. Bryant, Jr. alleging slander. All of the appellants are current, former, or retired high-ranking commissioned and non-commissioned officers of the 186th Air Refueling Wing of the Mississippi Air National Guard in Meridian. Appellee John H. Bryant, Jr. is a retired Mississippi Air National Guard officer, formerly of the 186th Wing. Appellee David J. Bertholf is a retired United States Air Force officer who, prior to his retirement, had been assigned by the Inspector General of the United States Air Force to investigate claims of wrongdoing filed by Joe H. Bryant, Jr. against members of the 186th Wing. The appellants assert that Bertholf and Bryant published slanderous statements against them on a radio talk show program conducted on May 27, 2003, on WMOX/1010 AM in Meridian, Mississippi, causing damage to their good names and reputations. However, the appellant's complaint failed to include the language of the alleged slander or the substance of the words used against them.

¶ 2. Bertholf and Bryant answered the complaint, asserting various affirmative defenses, including that the complaint failed to state a claim upon which relief could be granted pursuant to Mississippi Rule of Civil Procedure 12(b)(6). Later, Bertholf and Bryant moved for summary judgment under Mississippi Rule of Civil Procedure 56 asserting that there were no genuine issues of material fact for the trial court to decide and the complaint and an unauthenticated transcript of the radio talk show were attached as exhibits to the motion. Thereafter, a hearing was held on the matter and the circuit court converted the motion for summary judgment into a Rule 12(b)(6) motion, ruling in favor of Bertholf and Bryant. However, the entry of dismissal was stayed for a period of thirty days in order to allow the appellants time to amend their complaint to include more specificity as to which statements they alleged to be slanderous, information as to how the statements were slanderous and to whom the statements were directed. The appellants failed to amend their complaint before the expiration of the thirty day period of leave, and the circuit court dismissed their cause of action with prejudice, finding the complaint to be deficient under Mississippi Rule of Civil Procedure 8. The dismissal of the complaint is now appealed and the appellants request review of the following issues:

I. WHETHER A CIRCUIT COURT MAY CONVERT A MOTION FOR SUMMARY JUDGMENT INTO A MOTION TO DISMISS UNDER RULE 12(b)(6)?

II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING DISMISSAL UNDER RULE 12(b)(6)?

¶ 3. Finding no error, we affirm the judgment of the circuit court.

STANDARD OF REVIEW

¶ 4. Motions to dismiss under either Mississippi Rule of Civil Procedure 12 or Rule 56 raise questions of law and are reviewed de novo. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10 (¶¶ 6-7) (Miss.2001). Rule 12(b)(6) tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon which relief can be granted. Children's Med. Group, P.A. v. Phillips, 940 So.2d 931, 934(¶ 7) (Miss.2006). "[I]n applying this rule `a motion to dismiss should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim.'" Id. (quoting Missala Marine Servs. v. Odom, 861 So.2d 290, 294(¶ 12) (Miss.2003)). Motions to dismiss under Rule 12(b)(6) are considered on the face of the pleadings alone. Hartford, 826 So.2d at 1211(¶ 15). "Quite differently, Rule 56 tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact." Phillips, 940 So.2d at 934(¶ 7) (quoting Stuckey v. Provident Bank, 912 So.2d 859, 865-66(¶ 11) (Miss.2005)). Accordingly, Rule 56(c) provides that summary judgment shall be rendered for the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." M.R.C.P. 56.

DISCUSSION

I. WHETHER A CIRCUIT COURT MAY CONVERT A MOTION FOR

SUMMARY JUDGMENT INTO A MOTION TO DISMISS UNDER RULE 12(b)(6)?

¶ 5. The matter of dismissal initially came before the circuit court as a motion for summary judgment pursuant to Mississippi Rule of Civil Procedure 56. However, after a hearing on the matter, the circuit court converted the appellee's motion for summary judgment into a motion for dismissal, and ultimately dismissed the case pursuant to Mississippi Rule of Civil Procedure 12(b)(6), based upon the complainants' failure to state a claim for relief. During the hearing, Bertholf and Bryant introduced as an exhibit the transcript of the radio talk show; however, the appellants disputed the completeness of the transcript. Consequently, the trial court threw out the transcript of the radio show because its completeness was at issue.

¶ 6. On appeal, the appellants argue that the circuit court erred in converting the motion for summary judgment into a motion to dismiss under Rule 12(b)(6) because the trial judge considered evidence outside of the pleadings. The appellants point out that the appellees attached, as an exhibit to their memorandum in support of the motion for summary judgment, the transcript of the radio talk show. Further, the appellants assert that the motion was to be treated as a Rule 56 motion for summary judgment because during the motion hearing on the matter, the circuit court heard live testimony and admitted into evidence a transcript and tape recordings from the radio talk show. Based on the evidence the trial court took during the motion hearing and the evidence attached to the motion, the appellants assert that the judgment should be considered one for summary judgment not one for dismissal under Rule 12(b)(6). Bertholf and Bryant contend, however, that the circuit court, in its review during the motion hearing, was limited in its review only to the four corners of the complaint, and argue that all other matters were excluded. Thus, Bertholf and Bryant assert that the circuit court properly dismissed the appellant's complaint pursuant to Rule 12(b)(6), after converting the appellee's motion for summary judgment to one for dismissal under Rule 12(b)(6).

¶ 7. Our supreme court has well established that "[u]nder certain conditions, motions for summary judgment and for judgment on the pleadings are interchangeable." Hartford, 826 So.2d at 1213(¶ 24) (citing M.R.C.P. 12(c), and M.R.C.P. 56 cmt.) (permitting a motion for summary judgment to be converted into a judgment on the pleadings pursuant to Rule 12(c), finding that the circuit court did not consider matters beyond the pleadings); Lawrence v. Evans, 573 So.2d 695, 697 (Miss.1990) (citing M.R.C.P. 12(b)(6)); Millican v. Turner, 503 So.2d 289, 292 (Miss.1987); Walton v. Bourgeois, 512 So.2d 698, 699-700 (Miss.1987); Educ. Placement Serv. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986); Kountouris v. Varvaris, 476 So.2d 599, 602 n. 3 (Miss.1985). Under Rule 12(b)(6), where "matters outside the pleading are presented to and not excluded by the court," a motion to dismiss must be treated as one for summary judgment. Rosen v. Gulf Shores, Inc., 610 So.2d 366, 368 (Miss.1992) (quoting M.R.C.P. 12(b)(6)) (emphasis added). Conversely, where matters outside the pleadings have been excluded by the trial court, review may proceed pursuant to Rule 12(b)(6). Favre Prop. Mgmt., LLC v. Cinque Bambini, 863 So.2d 1037, 1044(¶ 18) (Miss.Ct.App.2004). In this case, there is no evidence that the circuit court considered anything outside the pleadings. Our review of the trial court order indicates that the court excluded the only evidence introduced at the motion hearing, the transcript of the talk show, because the completeness of the evidence was not substantiated. In accordance with the precedent, we likewise hold that a circuit court does not err by limiting its ruling on a Rule 56 motion for summary judgment to the four corners of the complaint, excluding all other matters introduced, and dismissing the complaint pursuant to Rule 12(b)(6). Therefore, we find that the trial court's exclusion of the radio show transcript allows the court to refine its review of the motion based only on the pleadings and dismiss the complaint pursuant to Rule 12(b)(6).

II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING DISMISSAL UNDER RULE 12(b)(6)?

¶ 8. At issue is whether the appellants properly alleged a claim for slander so as to survive a motion for dismissal. After the appellants failed to amend their complaint to provide more specificity regarding the allegedly slanderous statements, the circuit court dismissed the complaint pursuant to Mississippi Rule of Civil Procedure 12(b)(6), finding that the complaint failed to satisfy the notice-pleading requirements of Mississippi Rule of Civil Procedure 8. The...