Molever v. Roush

Decision Date19 August 1986
Docket NumberCA-CIV,No. 1,1
Citation152 Ariz. 367,732 P.2d 1105
PartiesI.M. MOLEVER, Plaintiff-Appellant, Cross Appellee, v. Charles D. ROUSH, an individual, and Treon, Warnicke, Dann & Roush, P.A., Defendants-Appellees, Cross Appellants. 8045.
CourtArizona Court of Appeals

GRANT, Judge.

This case incorporates two appeals in one, a direct appeal and a cross-appeal. The case began as a legal malpractice action brought by I.M. Molever (Molever) against attorney, Charles D. Roush and Roush's law firm, Treon, Warnicke, Dann & Roush, P.A. (Roush). The complaint in malpractice had two counts. Count I alleged negligence and breach of contract by Roush in an action against attorneys Stanley E. Preiser and John F. Brown, Jr. (Preiser & Brown litigation). Count II alleged negligence and breach of contract by Roush in the prosecution of a defamation action against Retail Credit Company for a false and defamatory credit report (Retail Credit litigation). The trial court originally granted summary judgment against Molever on both counts. However, after granting post-trial motions with respect to Count I (Preiser & Brown litigation), the court reinstated the claim against Roush. The court denied the motions with respect to Count II (Retail Credit litigation). Molever appeals from the summary judgment for Roush as to Count II (Retail Credit litigation). Roush cross-appeals on the order granting a new trial and setting aside summary judgment as to Count I (Preiser & Brown litigation).

DIRECT APPEAL (Retail Credit Litigation) (Count II)

Molever appeals from summary judgment granted in favor of Roush and from an order denying his motion for a new trial.1 1] Molever contends that triable issues of negligence exist. We do not agree.

FACTS (Retail Credit Litigation) (Count II)

Viewed in a light most favorable to Molever, the course of events may be summarized as follows. Molever retained Roush in 1977 to represent him in a defamation suit against Retail Credit Company. In February, 1980, the case was tried in the United States District Court of Arizona before visiting Judge Wesley Brown of the District of Kansas.

Molever's claim was that he was injured by a false credit report published by Retail Credit. Retail Credit defended, inter alia, on the grounds that its report was neither false nor injurious, that Molever was a public figure, and that it was entitled to a conditional privilege as to the publication of the statement. While the record before us of the district court proceedings is spare, it is evident that Judge Brown ruled that Molever was not a public figure, but that a conditional privilege existed in favor of Retail Credit.

During the trial, both Roush and counsel for Retail Credit, pursuant to rule 51, Federal Rules of Civil Procedure, submitted written requests for jury instructions. Judge Brown advised counsel of his intentions regarding the requests prior to counsels' arguments to the jury. Following counsels' arguments to the jury, Judge Brown instructed the jury. The allegedly erroneous instructions read as follows:


A publication is made with "actual malice," as that term is used in these instructions, if it is made with a wrongful motive or in bad faith, or with knowledge that it is false, or with reckless disregard of whether it is false or not.


"Recklessness" implies a higher degree of culpability than negligence. A failure to exercise ordinary or reasonable care in ascertaining the truth of published material does not, standing alone, render the publisher liable in damages in the circumstances of this case.

In order to establish recklessness, the plaintiff must prove the defendants entertained serious doubts as to the truth of the statements published, or that the defendants had a high degree of awareness of the probable falsity of the statements published.

In compliance with rule 51, Judge Brown heard objections after instructing the jury. Roush objected to the court's definition of recklessness as found in instruction 22. Judge Brown overruled the objection.

The jury apparently focused its attention on instruction 22. Indeed, the jury during its deliberations asked for clarification of only one instruction--instruction 22. Upon repetition of instruction 22, the jury resumed its deliberations and shortly thereafter returned a verdict for Retail Credit.

Roush subsequently filed a motion for a new trial on the ground that the jury had been improperly instructed. The motion was denied. Molever did not appeal from the judgment in favor of Retail Credit.

In 1981, Molever brought the present malpractice action against Roush and the law firm. Molever alleged breach of contract and negligent failure to object to erroneous jury instructions. Molever contended that the "actual malice/reckless disregard" instructions (instructions 21 and 22) were improper in light of the federal district court's finding that Molever was not a public figure. Molever also alleged that Roush negligently failed to file a notice of appeal from the adverse judgment.


Our evaluation of the trial court's grant of summary judgment is guided by the principle that summary judgment is only proper provided there is no genuine dispute as to any material fact, and provided the moving party is entitled to judgment as a matter of law. Tribe v. Shell Oil Co., Inc., 133 Ariz. 517, 652 P.2d 1040 (1982); Gomez v. Hensley, 145 Ariz. 176, 700 P.2d 874 (App.1984). We note, unhappily, that the appellate briefs of both parties contain arguments that strain to find support in the record. Moreover, we find incredible the bold suggestion proposed by counsel for Roush at oral argument that we take judicial notice of the federal district court proceedings. On an appeal from summary judgment, this court will only review any pleadings, depositions, affidavits, and other material properly considered by the trial judge pursuant to rule 56(c), Arizona Rules of Civil Procedure. See Overson v. Cowley, 136 Ariz. 60, 664 P.2d 210 (App.1982); Crook v. Anderson, 115 Ariz. 402, 565 P.2d 908 (App.1977). In this manner, we now turn to consider Molever's first contention that Roush negligently failed to object to an erroneous instruction.


It is well established that the burden to show no genuine dispute of a material fact rests on the party moving for summary judgment. Mast v. Standard Oil Co. of Cal., 140 Ariz. 1, 680 P.2d 137 (1984); Nelson v. Cannon, 126 Ariz. 381, 616 P.2d 56 (App.1980). Upon a prima facie showing that no dispute exists, however, the burden shifts to the party opposing the motion to show there exists evidence of genuine issues for trial. Portonova v. Wilkinson, 128 Ariz. 501, 627 P.2d 232 (1981); W.J. Kroeger Co. v. Travelers Indemnity Co., 112 Ariz. 285, 541 P.2d 385 (1975). In the absence of controverting affidavits, moreover, any facts alleged by affidavits attached to a party's motion for summary judgment may be considered true. Portonova, 128 Ariz. at 502, 627 P.2d at 233; Cecil Lawter Real Estate School, Inc. v. Town & Country Shopping Center Co. Ltd., 143 Ariz. 527, 694 P.2d 815 (App.1984).

We have studied the record in this case and have determined that Roush met his burden to negate any alleged negligence. In support of his motion for summary judgment, Roush put into the record his own affidavit stating that he strongly opposed the trial court's instruction 22. Roush additionally submitted the affidavit of counsel for Retail Credit. Opposing counsel stated that Roush vigorously argued to Judge Brown that the requests he presented be given, and that certain instructions proposed by Retail Credit, the defendant, not be given--specifically, the "actual malice/reckless disregard" instructions. Counsel also noted that when Judge Brown gave Roush the opportunity to formally object, Roush objected to instruction 22, thereby preserving the record. Finally, Roush provided the trial judge with the following record of his objection before Judge Brown:

MR. ROUSH: Instruction number 22, definition of recklessness, insofar as it does not incorporate the Romer standard, that a failure to have any reasonable belief in the truth may constitute recklessness.

I believe the Court's instruction is improper. The instruction implies that the defendant must have actual serious doubts.

In other words, affirmative doubts or that he have a high degree of awareness of probable falsity.

It does not include the elements as set forth in the Romer case of a reckless or total lack of any information upon which to base a belief in truth, and in that regard, I think the instruction is lacking.

In sum, Roush has easily made a prima facie showing on the issue of negligence. The supporting materials establish that Roush met his duty to act as a reasonably careful and skillful attorney. Martin v. Burns, 102 Ariz. 341, 429 P.2d 660 (1967); Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). Molever, by contrast, has not met his burden. Molever filed no contravening affidavits or depositions. Counsel for Molever only stated in his response to Roush's motion for summary judgment that vehement opposition falls far short of showing the required standard for attorney practice. Counsel's statement does no more than contend that a factual issue exists. Such a mere contention is insufficient to rebut Roush's prima facie showing. Kroeger, 112 Ariz. at 286, 541 P.2d at 386; Dobson v. Grand International Brotherhood of Locomotive Engineers, 101 Ariz. 501, 421 P.2d 520 (1966...

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