Kirschstein v. Haynes

• Citation: 1990 OK 8,788 P.2d 941
• Decision Date: 30 January 1990
• Docket Number: No. 67655,67655
• Parties: Naomi L. KIRSCHSTEIN, Appellant, v. William M. HAYNES, Alice Faye Kilgore and Michael E. Moore, Appellees.
• Court: Oklahoma Supreme Court

Page 941

788 P.2d 941

1990 OK 8

Naomi L. KIRSCHSTEIN, Appellant, v. William M. HAYNES, Alice Faye Kilgore and Michael E. Moore, Appellees.

No. 67655.

Supreme Court of Oklahoma.

Jan. 30, 1990.

Rehearing Denied March 27, 1990.

Certiorari to the Court of Appeals, Oklahoma City Divisions Appeal from the District Court of Cleveland County; Noah Ewing, Trial Judge.

Appellant brought actions for defamation and intentional infliction of emotional distress alleging Appellee Moore procured an affidavit from Appellee Haynes which was false and defamatory, which in turn was published by Appellee Kilgore. Appellant also brought a cause for determination of heirs. The trial court granted summary judgment for Appellees ruling the affidavit and its publications privileged as it had been obtained for use in a proceeding to be initiated by Kilgore to procure a birth certificate. The Court of Appeals affirmed as to the first two causes on the basis an absolute privilege attaches to communications made in the course of preparation for judicial proceedings, relying on the Restatement (Second) of Torts, § 586 (1977). The Court of Appeals did not reach the merits of arguments raised in regard to the determination of heirs cause because it ruled Appellant did not preserve any issue as to said claim by failure to raise such in her petition in error. Held: We generally adopt the Restatement's view as to absolute privilege for communications preliminary to a judicial or quasi-judicial proceeding in regard to attorneys, parties and witnesses. We further affirm the grant of summary judgment in favor of Appellees. We also hold Appellant failed to preserve any issue or claim of error as to the determination of heirs claim by failing to raise such in her petition in error.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF APPEALS VACATED AND WITHDRAWN FROM PUBLICATION; TRIAL COURT AFFIRMED.

Elvin J. Brown, Norman, for appellant.

Robert G. Perrine, Norman, for appellee Alice Faye Kilgore.

Calvin W. Hendrickson and Margaret W. Owens, Oklahoma City, for appellee William M. Haynes, M.D.

Michael E. Moore, Norman, for appellee Michael E. Moore.

LAVENDER, Justice:

Four central issues are presented in this case. They are: 1) whether we will recognize an absolute privilege to bar defamation actions for communications by attorneys, parties and witnesses having some relation to and made preliminary to a proposed judicial or quasi-judicial proceeding; 2) if the absolute privilege is recognized does it bar not only a defamation action, but a cause premised on the tort of intentional infliction of emotional distress; 3) were the trial court and the Court of Appeals correct in granting and affirming, respectively, summary judgment in favor of Appellees; and 4) was the Court of Appeals' ruling that it would not reach the merits of any issues in relation to Appellant's determination of heirs cause proper because Appellant failed to preserve any claim of error in said regard by failure to raise such in her petition in error.

We have determined we will recognize an absolute privilege for communications made preliminary to proposed judicial or quasi-judicial proceedings in favor of attorneys, parties and witnesses generally under the standards set forth at the Restatement (Second) of Torts §§ 586, 587 and 588 and the comments thereto. Further, the absolute privilege acts not only to bar defamation actions, but those for intentional infliction of emotional distress when based on the same factual allegations as the defamation claim. As to the privilege's application in this case we hold summary judgment was properly granted to Appellees, Michael E. Moore (attorney), William M. Haynes (witness) and Alice Faye Kilgore (party). Finally, we hold the Court of Appeals was correct in its conclusion Appellant, Naomi L. Kirschtein failed to preserve claim of error in regard to her determination of heirs cause by failure to include such in her petition in error.

This case appears to have its genesis in communications from Eva Mae, the sister of Appellant, to Kilgore to the effect Eva Mae did not believe she was Kilgore's mother. These communications apparently coincided with Kilgore's inability to find any record of a birth certificate on file with State authorities. Kilgore was primarily raised by her father, Alvin E. Salsman and his family since she was approximately two years old. About said time Eva Mae was institutionalized at the State mental health facility in Vinita, Oklahoma. In her deposition Eva Mae stated she remembered having only one child (the eldest) and had no memory of having any other children generally attributed to her (three in number), including Kilgore. According to Moore's deposition Kilgore told him the father, Salsman refused to discuss the circumstances of her birth with her.

Appellees, Kilgore and Moore, an attorney licensed to practice law in Oklahoma, worked in the same office building in Norman, Oklahoma. Kilgore requested Moore to assist her in recording a birth certificate with the Oklahoma Department of Health (ODH). Moore agreed. Moore did some preliminary research and determined a delayed birth certificate could be obtained from ODH. The statute covering delayed birth certificates is found at 63 O.S.1981, § 1-313. ¹ Section 1-313 allows for filing a delayed birth certificate for a person born in this State in accordance with evidentiary requirements established by the Oklahoma State Board of Health to establish the facts of birth, including date and place of birth and parentage. ² Another statutory provision 63 O.S.1981, § 1-315, provides for a judicial proceeding for an order establishing a record of birth and parentage to one who has lived in Oklahoma for ten (10) years, the last three (3) continuous. ³

In an effort to obtain information to procure a delayed birth certificate Moore contacted Appellee, William M. Haynes, M.D., an elderly physician in the town where it was believed Kilgore was born as a potential affiant to the circumstances of birth. In his deposition Haynes stated Moore came to see him to ask if he had any memory of Kilgore's birth. He testified he told Moore he had no memory of her birth and knew of no records which would cover the event. Moore, however, mailed an affidavit to Haynes for his signature which stated Haynes remembered Naomi Bramble (Appellant's maiden name) had given birth to Kilgore. Haynes further stated in his deposition he did not remember reading the affidavit before signing it and returning it to Moore. Moore's deposition testimony appears contradictory to that of Haynes. His testimony, although somewhat equivocal, was he got the information for the affidavit from his conversation with Haynes.

Moore delivered the affidavit to Kilgore, who the record shows published it or its contents to various relatives, including Appellant. ⁴ Appellant testified in her deposition she had a conversation with Kilgore in which Kilgore told her the affidavit or its contents were published to find out whether it had any truth to it in view of her attempt to obtain the birth certificate. There is no record evidence either an administrative proceeding under § 1-313 or a judicial proceeding under § 1-315 has ever been initiated by Kilgore.

The instant lawsuit was initiated as a result of Kilgore's publication of the affidavit and reference to it in the aforementioned conversations. After discovery was conducted, on motion of all Appellees, the trial court granted summary judgment in their favor and dismissed Appellant's case. The order stated it found the affidavit and its publication privileged.

Appellant appealed. She argues the publications of the affidavit were not privileged and if a privilege applied it was only a conditional or qualified one, not subject to summary judgment treatment in view of the record before the trial court. She further argues even if a privilege did bar her defamation cause, her theory based on intentional infliction of emotional distress and request for determination of heirs survived because summary judgment was not specifically requested as to said claims and, thus, summary judgment was improperly granted as to her entire lawsuit. She also apparently argues the privilege would not bar these claims in any event, even assuming her defamation claim was so barred.

As noted above, the Court of Appeals affirmed the trial court. In doing so it relied on the Restatement (Second) of Torts § 586 (1977) to bar both her defamation and intentional infliction of emotional distress claims. It also ruled Appellant failed to preserve error in regard to the determination of heirs claim. Although the result reached by the Court of Appeals was correct we granted certiorari in this case because the matter is one of first impression and to outline the general parameters of the absolute privilege as applied to communications made preliminary to a proposed judicial or quasi-judicial proceeding.

Section 586 of the Restatement provides as follows:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Sections 587 and 588 contain substantially the same language in regard to publications made by parties and witnesses, respectively. ⁵ Comment a to § 586 provides in pertinent part as follows:

The privilege stated in this section is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. Therefore the privilege is absolute. It protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity..... The...