Stewart v. Fahey

• Decision Date: 04 March 1971
• Docket Number: CA-CIV
• Citation: Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519 (Ariz. App. 1971)
• Parties: Henry T. STEWART, Appellant, v. William G. FAHEY, Appellee. 1985.
• Court: Arizona Court of Appeals

Page 519

481 P.2d 519

14 Ariz.App. 149

Henry T. STEWART, Appellant, v.William G. FAHEY, Appellee.

1 CA-CIV 985.

Court of Appeals of Arizona, Division 1, Department B.

March 4, 1971.

W. H. Chester, Phoenix, for appellant.

Snell & Wilmer, by John E. Lundin, Edwin F. Hendricks, Phoenix, for appellee.

JACOBSON, Presiding Judge.

We are asked in this appeal to determine whether a claim for slander of title may be based upon the filing of a lis pendens.

On February 9, 1959, plaintiff-appellant, Henry T. Stewart, acquired by patent from the United States government, title to a certain parcel of real estate.Approximately two weeks later, defendant-appellee, William G. Fahey, on February 21, 1959, filed a quiet title action against Stewart, disputing his right to obtain title to the property involved in the U.S. patent wholly in himself.At the time of filing the quiet title action, Fahey also caused a lis pendens to be filed affecting the real property involved.This original litigation terminated in Stewart's favor some five years later on May 27, 1964.

On the basis of the successful termination of the prior litigation in his favor, Stewart on November 2, 1964, filed a complaint against Fahey alleging two claims.

The first alleged 'slander of title,' based upon Fahey's willful, false and malicious filing of a lis pendens against Stewart's title interest, thereby making it impossible for him to sell or dispose of the land, and resulting in $65,000.00 damages, and the second alleged a claim in defamation arising out of the broad publication of the notice of lis pendens.

After filing an answer, Fahey moved for summary judgment on the basis that Stewart's claims for relief were barred by the one-year statute of limitations (A.R.S. § 12--541) and that the filing of a lis pendens was an absolutely privileged act which would not give rise to a cause of action in either 'slander of title' or defamation.

The trial court granted Fahey's motion for summary judgment and this appeal followed.

While it is clear that 'slander of title' is not a true defamation action, being historically an action on the case for special damages arising from a falsehood, (See, 'Injurious Falsehood: the Basis of Liability,' W. Prosser, 59 Colum.L.Rev. 424(1959)), it is equally clear that the privilege defenses available in an action for personal defamation are also available in an action for 'slander of title.'SeeRestatement of Torts§ 585 et seq., § 635 et seq.(1938).

At common law, parties to judicial proceedings were granted an absolute privilege to use defamatory language because of the overriding public interest that persons should speak freely and fearlessly in litigation, 'uninfluenced by the possibility of being brought to account in an action for defamation.'Laun v. Union Electric Co., 350 Mo. 572, 166 S.W.2d 1065(1942).As the rule is stated in Restatement of Torts§ 587(1938):

'A party to a private litigation * * * is absolutely privileged to publish false and defamatory matter of 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, if the matter has some relation thereto.'

Thus, it is apparent that Fahey, in bringing his action for quiet title against Stewart, was absolutely immune from any action for defamation which Stewart might bring against him arising out of language spoken in the quiet title action, since the language did have some relation to the claim stated.Does it then follow that there is also immunity from an action in slander of title where the claimed slander is based upon a lis pendens recorded in connection with the same quiet title action?We believe it does.

The purpose of a lis pendens was early stated in Arizona by the case of Brandt v. Scribner, 13 Ariz. 169, 108 P. 491(1910):

'The statute is obviously intended to make the recording of the Lis pendens constructive notice of all that is claimed in the action regardless of whether such claims are sufficiently plead, in so far as their nature and extent are disclosed by the pleadings * * *.'

In is apparent then, that the recording of a lis pendens is, in essence, a statutorily authorized republication of pleadings in a judicial proceeding.If such pleadings are absolutely privileged, logically the statutorily authorized republication of such pleadings should likewise be privileged.This logical extension was upheld in the case of Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405(1956):

'(T)he recordation of a notice of Lis pendens is in effect a republication of the pleadings.The disparagement of title arises, therefore, from the recordation of the notice of Lis pendens as well as from the pleadings.The publication of the pleadings is unquestionably clothed with absolute privilege, and we have concluded that the republication thereof by recording a notice of Lis pendens is similarly privileged.'

Since the recording of a lis pendens is specifically authorized by statute in the State of Arizona and has no existence separate and apart from the litigation of which it gives notice, we hold that the filing of a notice of lis pendens in this action was a part of a 'judicial proceeding.'Therefore the filing of the lis pendens was absolutely privileged and will not sustain an action for slander of title.Albertson v. Raboff, Supra;Beuttenmuller v. Vess Bottling Co., 447 S.W.2d 519(Mo.1969).Obviously, what we have stated here concerning Stewart's claim for slander of title is equally applicable to his claim for defamation.

We do not intend to intimate that anything we have said herein would necessarily insulate a person who maliciously institutes a wrongful judicial proceeding from all liability for his malicious acts.SeeComment (a), Restatement of Torts§ 587(1938).

Since the trial court's action in granting the motion for summary judgment can be sustained on one ground we need not discuss the statute of limitations defense also raised by Fahey.

Judgment affirmed.

HAIRE, J., concur.

EUBANK, Judge (specially concurring).

I differ in my view of the nature of the privilege involved in the case at bar; consequently, I am filing a special concurring opinion to merely highlight this difference of opinion.My review of the law convinces me that the defendant's claim of 'privilege' is well founded and we must therefore affirm the judgment on that basis.

It is the defendant's contention that the filing of a Lis pendens, pursuant to A.R.S. § 12--1191, constitutes a privileged act and therefore the trial court properly granted him summary judgment.Defendant cites no specific Arizona statute or authority in support of his claim of 'absolute privilege,' but bases his claim primarily upon the California Supreme Court decision of Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405(1956) urging its applicability because our Lis pendens statute(A.R.S. § 12--1191) was adopted from California.Cal.Civ. Code of Pro. § 409.SeeBrandt v. Scribner, 13 Ariz. 169, 175, 108 P. 491, 493(1910).In Albertson, Justice Traynor, speaking for the court, reversed West Investment Co. v. Moorhead, 120 Cal.App.2d 837, 262 P.2d 322(1953), Annot.39 A.L.R.2d 833, which held in effect that only a limited privilege attached to the filing of a Lis pendens, saying:

'(T)he privilege applies to any publication, such as the recordation of a notice of Lis pendens, that is required, * * *, or permitted, * * *, by law in the course of a judicial proceeding * * *.It is not limited to the pleadings, the oral or written evidence, to publications in open court or in briefs or affidavits.If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches.'295 P.2d at 409.

Although the court relied in part upon Section 47 of the California Code of Civil Procedure which expressly declares privileged a publication in any judicial proceeding, a statute which Arizona has not enacted, Justice Traynor explained that Section 47 was merely a reiteration of the rule at common law, '* * * that publications made in the course of a judicial proceeding are absolutely privileged.'In support of this proposition, he cited among others Gosewisch v. Doran, 161 Cal. 511, 513--515, 119 P. 656(1911), which contains an excellent analysis of the question, and the Restatement of Torts, §§ 635--639(1938).

In the main, I agree with the reasoning in the Albertson case and would only question the decision's emphasis on the word 'absolute' which by definition would seem to preclude the filing of a claim in malicious prosecution or defamation arising out of the filing of a false and malicious pleading.Such is not the majority rule in the United States.See the numerous citations collected in 50 Am.Jur.2d, Libel and Slander, § 238, at 751;and seeW. Prosser, The Law of Torts, § 108, at 767 (2d Ed. 1955).

Fortunately, Arizona has avoided the use of the word 'absolute' in this context and I would continue to do so.

In is true that A.R.S. § 12--1191, our Lis pendens statute, was adopted from California, and it reads as follows:

' § 12--1191.Notice of pendency of action affecting title to real property; filing; constructive notice to purchaser or incumbrancer

'A.In an action affecting title to real property, plaintiff at the time of filing the complaint, or thereafter, and defendant at the time of filing his pleading when affirmative relief is claimed in such pleading, or thereafter, may file in the office of the recorder of the county in which the property is situated a notice of the pendency of the action or defense.The notice shall contain the names of the parties, the object of the action or affirmative defense, the relief demanded and a description of the property affected.

'B.The recorder shall file the notice and record and index it in the names of the parties to the action, and thereafter a purchaser or...