Lever v. Community First Bancshares, Inc., 99-46.

• Decision Date: 08 November 1999
• Docket Number: No. 99-46.,99-46.
• Citation: 989 P.2d 634
• Parties: Gary P. LEVER and Century 21 Action Realty, Inc., Appellants (Plaintiffs), v. COMMUNITY FIRST BANCSHARES, INC., and Timothy J. Anderson, Appellees (Defendants).
• Court: Wyoming Supreme Court

989 P.2d 634

Gary P. LEVER and Century 21 Action Realty, Inc., Appellants (Plaintiffs), v. COMMUNITY FIRST BANCSHARES, INC., and Timothy J. Anderson, Appellees (Defendants).

No. 99-46.

Supreme Court of Wyoming.

November 8, 1999.

Mel Dunn of Mel Dunn, P.C., Casper, WY., Representing Appellants.

John I. Henley of Vlastos, Brooks, Henley & Drell, Casper, WY., Representing Appellees.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Gary P. Lever and Century 21 Action Realty, Inc. appeal from an adverse summary judgment ruling in favor of Community First Bancshares, Inc. (the Bank) and Timothy J. Anderson (Anderson) on Lever's and Century 21's claims for slander and intentional interference with a contract or prospective advantage.

We affirm.

ISSUES

Appellants present two issues for review on appeal:

Issue I: Did the District Court err by finding that there were no genuine issues of material fact and granting the Defendants' Motion for Summary Judgment?

Issue II: Did the District Court err by denying the Plaintiffs' Motion to Amend their Complaint to include two additional Defendants?

Appellees state the issues as:

Issue I: Did the Appellees convey false information about Appellant Gary Lever to Dan Carlin?

Issue II: Were the statements made by the Appellees a privileged publication to a third party?

Issue III: Did the Appellees have the requisite degree of fault required for a claim of slander?

Issue IV: Was there any improper interference by the Appellees with the contract or prospective economic gain of the Appellants?

Issue V: Are the damages claimed by the Appellants so speculative that the intentional interference claims must fail for lack of the required damage element?

FACTS

Appellant Gary Lever is a real estate agent who works in the office of Century 21 Action Realty. In August of 1997, Lever entered into a contract with Pastor Dan Carlin and the Word Christian Fellowship Church for the purpose of purchasing, repairing, and selling dilapidated property. Lever also agreed to provide "consulting services for Word Christian Fellowship Church in exchange for listing on properties purchased to be resold."

Pastor Carlin approached the Bank about financing for the project. The Church was a customer of the Bank. Anderson, a loan officer with the Bank, consulted with two other bank officers, Rick Kellogg and Vance Sprecher, who had prior experiences relating to financial dealings with Lever. Based on the information supplied by the other officers, Anderson informed Pastor Carlin that approval for a loan was unlikely so long as Lever was involved in the project. In an apparent attempt to clarify the Bank's position, Pastor Carlin called Anderson and surreptitiously recorded the conversation.¹ It was during this conversation that the alleged slanderous statements were uttered by Anderson:

[Anderson]: Ya, I, I've had, you know, in my investigations, I've had, had more than one person tell me that you, you need to kinda count your fingers after you shake hands with Gary Lever, and I'm, I'm a little uncomfortable with that myself, [Pastor Carlin], and I'll tell you why. Because I know you, I've met you, we've visited a few times and things, but, I've never met Gary, I mean, you know, so what I'm really telling you is, is ah, ah, second hand, but, I, I, it comes up, it comes up, it comes up every time the name comes up, you know, people have bad things to say, so, ah, I'm concerned that he—

[Pastor Carlin]: Is it, do they have proof or evidence or anything like that?

[Anderson]: Well—

[Pastor Carlin]: Or is it just hearsay?

[Anderson]: Ah, ah, some of it is regarding past dealings that he, he's had with, with ah, these individuals, and, ah, you know, so ya, I guess it, you know, their experience[s] were first hand, so—

....

[Pastor Carlin]: You know, what if somebody's making up rumors about him?

[Anderson]: Well, you [k]now, hell, I can't go into a great deal of detail, you know, obviously, but you know the people I've talked to are, are, ah, trust, trustworthy and are within my confidence. I mean, they are people that I would believe, um, when they tell me these kind of things, so, so—

Pastor Carlin understood these statements to mean that Lever was dishonest and unscrupulous, and that the Church could lose its money if Lever got possession of it. Based upon that understanding, Pastor Carlin canceled the contract with Lever. Lever then filed suit against the Bank and Anderson alleging claims of slander, intentional interference with a contract and/or interference with a prospective advantage. After discovery, Lever filed a motion to amend the complaint to add as defendants Bank officers Sprecher and Kellogg. The Bank and Anderson countered with a motion in opposition to the amendment and a motion for summary judgment. The district court subsequently granted the motion for summary judgment on the grounds that Anderson's statements were true, and that there was no evidence that the defendants were intentionally trying to interfere in the contract between the Church and Lever. Since the district court had ruled against Lever on all claims, it also denied the motion to amend on the grounds that the same result would apply to the other prospective defendants. Lever now appeals the denial of the motion to amend his complaint and the granting of summary judgment in favor of defendants to this Court.

STANDARD OF REVIEW

In reviewing summary judgments, our standard is well established:

"`When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.' Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

"A summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo., 550 P.2d 490 (1976). After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat'l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Charles Alan Wright, Arthur. R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt." Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo.1999) (quoting Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo. 1997), and Thomas by Thomas v. South Cheyenne Water and Sewer District, 702 P.2d 1303, 1304 (Wyo.1985)

).

"We will affirm a grant of summary judgment if it can be sustained on any legal ground appearing in the record." Duncan v. Town of Jackson, 903 P.2d 548, 551 (Wyo. 1995).

DISCUSSION

Slander

Slander is an oral defamatory communication. "A defamatory communication is one which tends to hold the plaintiff up to hatred, contempt, ridicule or scorn or which causes him to be shunned or avoided; one that tends to injure his reputation as to diminish the esteem, respect, goodwill or confidence in which he is held." Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 224 (Wyo.1994) (quoting Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1119 (Wyo.1985)). To be actionable, the defamatory or disparaging words "must affect the plaintiff in some way that is peculiarly harmful to one engaged in his trade or profession." Wilder, 868 P.2d at 224 (quoting Restatement (Second) of Torts § 573 at 194, cmt. e).

The district court granted summary judgment on the grounds that the statements by Anderson were true. Lever disputes this conclusion. The essence of his argument is that bad credit is not necessarily synonymous with the implication of Anderson's statements that he was dishonest. Our review of the record leads us to agree with Lever. Viewing the evidence in the light most favorable to Lever, as we must at this stage of the proceedings, it is reasonable to interpret Anderson's statements as directly impugning Lever's professional reputation by implying that he was dishonest. Further, the evidence is contradictory as to whether Lever's credit history is indicative of dishonesty or merely a lack of business acumen. On this basis, we would have to conclude that there are material facts in dispute which would foreclose a summary judgment.

However, that does not end our inquiry. As noted above, we may affirm a summary judgment on any legal grounds appearing in the record. In support of their motion for summary judgment below, the defendants also raised the claim that Anderson's...