Hadnot v. Shaw
| Decision Date | 11 February 1992 |
| Docket Number | No. 72961,72961 |
| Citation | 1992 OK 21,826 P.2d 978 |
| Parties | Jeanne A. HADNOT and Suzette Renee Ellis, Plaintiffs-Appellants, v. R.T. SHAW, Dennis J. Joiner, Charles Warden, the Church of Jesus Christ of Latter-Day Saints, Chickasha Branch, Norman Stake, and Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, a Utah corporation, Defendants-Appellees. |
| Court | Oklahoma Supreme Court |
On Appeal from the District Court, Grady County; James R. Winchester, Judge.
In an action for damages from libel, slander, intentional infliction of emotional distress and invasion of privacy, brought against the church and its local leadership by two excommunicated parishioners, the district court gave summary judgment to the defendants. On plaintiffs' appeal,
SUMMARY JUDGMENT, TREATED AS PARTIAL SUMMARY ADJUDICATION, BASED ON THE EVIDENTIARY MATERIALS OF RECORD, IS AFFIRMED AND CAUSE IS REMANDED.
Kenneth R. Johnston, K.W. Johnston, Allen, Allen, Johnston & Tack, Chickasha, for plaintiffs-appellants.
F. Thomas Cordell, Jr., Huckaby, Fleming, Frailey, Chaffin & Darrah, Chickasha, and Dan Bushnell, Kirton, McConkie & Poelman, Salt Lake City, for defendants-appellees.
Six issues are presented by this appeal: Did the trial court correctly exclude from consideration the plaintiffs' (nonmovants') notice of filing exhibits as a sanction for their noncompliance with summary judgment procedure? Did the plaintiffs timely raise the issue whether summary judgment was premature? Did the plaintiffs show any material fact issue? Did the trial court err in ruling out all of the plaintiffs' theories of liability fairly comprised within the evidentiary materials before it? Is summary judgment for the defendants inconsistent with the teachings of Guinn v. Church of Christ of Collinsville? 1 and Did the Church's First Amendment 2 protection bar the plaintiffs' quest for discovery? We answer the first issue in the affirmative and the second through fifth in the negative. As to the final issue, because the trial court failed to rule on the plaintiffs' final discovery quest, we are unable to determine whether they sought discovery of post-expulsion 3 conduct not protected by the shield of the First Amendment--i.e., post-expulsion conduct that may be unrelated to implementation of the excommunication sanction.
The plaintiffs, Jeanne A. Hadnot and Suzette Renee Ellis [parishioners], are sisters and were formerly members of the Church of Jesus Christ of Latter-day Saints [Church] in Chickasha, Oklahoma. The defendants are the Church, R.T. Shaw (lay leader of the local congregation), Dennis J. Joiner and Charles Warden (counselors who assisted Shaw).
Parishioners were each notified of and asked to be present at a Church disciplinary hearing called to determine their membership status. Neither attended. Following the hearing both parishioners received letters from the Church. The letter addressed to parishioner Hadnot was placed in her mailbox. This letter, which was opened and read by her husband, informed parishioner that the Church court determined her membership should be terminated because of her alleged fornication. 4 This communication, typed by the clerk of the local congregation, was signed by a lay leader. Parishioner Ellis was personally handed a letter also signed by a lay leader, which informed her of the Church court's decision to remove her from membership.
On December 23, 1986 the parishioners initiated the present action against the Church and its lay leaders. We conclude from the rather imprecise wording of the pleadings and the briefs that parishioners have alleged two delictual causes of action, advancing three theories of liability in support of each. 5 The first cause of action is for harm from wilful or grossly negligent delivery of the expulsion letters to parishioners. It is sought to be grounded on (a) libel, (b) intentional or negligent infliction of emotional distress and (c) invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public). The second cause of action is for harm from communicating the letters' contents to the public. It is sought to be rested on (a) slander, (b) intentional or negligent infliction of emotional distress and (c) invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public). 6
The Church and lay leaders moved for summary judgment, appending copies of correspondence and excerpts of depositions. Parishioners responded to the motion without tendering any evidentiary material. Their response brief merely referenced those paragraphs in the Church's statement of uncontroverted facts which they deemed to be disputed. On March 8, 1989 the district court reached the motion for argument. The next day parishioners filed a notice of filing exhibits, listing fifteen depositions without any attachments or references to page, line or portion. On March 10 the district court gave summary judgment to the defendants.
In the course of litigation parishioners sought discovery of certain information about Church procedures and communications by the lay leaders and Church members which occurred during the Church disciplinary process. The district court denied parishioners' discovery quest on the ground that by force of the First Amendment the information sought was privileged from secular judicial inquest. By mandamus brought in this court parishioners then unsuccessfully sought to compel the trial judge to grant discovery. 7 The trial court failed to rule on parishioners' last discovery request, which consisted of their motion to compel the defendants to answer certain questions asked at an earlier deposition. During the summary judgment proceeding they argued their discovery efforts were unduly limited because they were not allowed to question the defendants, their spouses or certain expert witnesses as to what they may have said to other Church members or ecclesiastical leaders concerning the parishioners' expulsion.
Parishioners' appeal is from summary judgment. Their petition in error lists several claims to reversible error which were not argued in the brief. Among them is the trial judge's refusal to disqualify. 8 Claims to error for which there is no support in argument and authority are deemed abandoned. 9 We hence do not reach them either for discussion or resolution.
FAILURE TO COMPLY WITH DISTRICT COURT RULES MAY RESULT IN
The record in this case is silent, and hence leaves us in doubt, as to what, if any, depositions and exhibits or other materials were deemed timely filed by parishioners and were properly before the trial court for consideration in the decisional process that led to summary judgment. An appellate court cannot on review take notice of any material that was not properly before the trial court. 10
As an aid in deciding whether any of the items filed by parishioners on March 9 were considered by the trial court in the summary judgment process, we appointed the trial judge to sit as this court's special master and to clarify the record nunc pro tunc, upon adversary hearing with due notice to all parties. 11 In his nunc pro tunc order the trial judge explains he considered only the parties' summary judgment briefs and attached exhibits that had been on file as of March 8; he excluded from consideration the parishioners' March 9 notice of filing exhibits. 12 His rejection of the parishioners' notice was grounded on their failure to comply with the Rule 13 13 requirement that the party opposing summary judgment attach only the portions of the evidentiary materials on which it relies.
We affirm the district court's refusal to consider the March 9 notice and the depositions referenced therein as a reasonable litigation sanction for parishioners' patent noncompliance with Rule 13. Without a reasonable enforcement of that rule, an impossible burden would be cast on the judicial officers presiding over summary judgment process. They would be expected to go over reams of disjointed and disarranged materials, much of them without shown relevancy to the issues at hand.
Parishioners have filed here an amended designation of record in their attempt to incorporate into the appellate record two other depositions that were not considered by the trial judge as part of the nisi prius summary judgment record. After summary judgment is granted, the objecting party cannot on appeal supplement the appellate record by injecting into it material that was not before the trial court at the judgment stage. 14 In short, there can be no post-decisional amendment of the record to include material that was not timely admitted or pressed for incorporation at the trial level. 15
As none of the depositions listed in parishioners' March 9 notice or in their amended designation of record was properly before the trial court, none of this evidentiary material may be reviewed on their appeal.
TIMELINESS OF PARISHIONERS' CONTENTION THAT SUMMARY JUDGMENT
Shortly after the Church had moved for summary judgment, this court handed down its opinion in Guinn. 16 The parishioners, who were given additional time to assess Guinn's impact on their case, responded on February 21, 1989 to the quest for summary disposition. On March 3 the Church filed a reply to this response, which also dealt with Guinn's applicability to the pending action. Five days later the summary judgment argument took place.
Parishioners contend the trial court's ruling was premature. At the outset, they argue that a reply brief is not sanctioned by Rule 13, 17 which authorizes only motions and responses. They appear to urge that the Church's reply brief addressed issues not tendered in the movant's original motion and that it pressed as undisputed those...
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