Williams v. Blount

• Decision Date: 21 August 1987
• Docket Number: No. 87-36,87-36
• Citation: 741 P.2d 595
• Parties: Earl L. WILLIAMS, Jr., Appellant (Plaintiff), v. Kerry C. BLOUNT and Albany County Pioneer Abstract Company, a Wyoming Corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 595

741 P.2d 595

Earl L. WILLIAMS, Jr., Appellant (Plaintiff), v. Kerry C. BLOUNT and Albany County Pioneer Abstract Company, a Wyoming Corporation, Appellees (Defendants).

No. 87-36.

Supreme Court of Wyoming.

Aug. 21, 1987.

Earl L. Williams, Jr., Laramie, pro se, and Barkley R. Bonine, San Antonio, Tex., for appellant.

C.M. Aron of Aron and Hennig, Laramie, for appellees.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

Appellant, an attorney appearing pro se, sued to recover damages resulting from an alleged defamatory statement made by appellee Blount, and here appeals from a summary judgment in favor of appellees. ¹ We affirm.

Appellee Blount is an officer of a title insurance company from which appellant ordered a lender's insurance policy for the sale of appellant's real estate. Occasioned by the buyer seeking purchase financing, appellees and a bank officer engaged in a business conversation about the desired title policy. It was during this conversation that the alleged defamatory statement was made. Appellee Blount was alleged to have told the bank officer, "We will not do any work for Earl Williams unless you guarantee payment because he is having financial difficulty." Dispute as to the exact words exists, but the message was unquestioned that the title insurance company wanted insurance-premium payment protection.

Summary judgment was granted by the trial court under Rule 56(c), W.R.C.P., and appellant here presents the following issues:

"1. Whether the trial court erred in granting summary judgment in favor of defendants on a finding that the defamatory utterance about financial difficulty of plaintiff was protected by a qualified privilege of mutual business interest, concluding therefore, as a matter of law defendant was entitled to summary judgment.

"2. Whether the trial court erred in granting a summary judgment in favor of defendants on a finding that the plaintiff bore the burden of proving the statement of defendant was false and failed to do so, concluding therefore, as a matter of law defendant was entitled to summary judgment.

"3. Whether the trial court erred in granting a summary judgment in favor of defendants on a finding that there was no showing of malice in the defendant's statement about the plaintiff's financial condition, concluding therefore, as a matter of law defendant was entitled to summary judgment."

Finding that the trial court correctly concluded that the utterance in question was immunized as conditionally privileged communication, we answer the first issue in the negative, thus disposing of the need to treat with the remaining issues, although appellant's third issue is dealt with automatically by the nature of the first issue. A separate issue raised by appellees about denial by the litigant of discovery of appellant's financial status, as well as a belated filing of appellant's brief, also will not be addressed.

" '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 [or she]. We must follow the same standards.' " Tschirgi v. Lander Wyoming State Journal, Wyo., 706 P.2d 1116, 1117 (1985), quoting from Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981).

The standards to be followed are established in the six-stage analysis of a summary judgment in Cordova v. Gosar, Wyo., 719 P.2d 625, 634 (1986). This case enters the Gosar analysis at stage five: legal-issue disposition.

"This stage resolution involves interpretation of unambiguous contracts, suits on rationally uncontested promissory notes, and a variant kind of circumstance where the facts are not in dispute but the legal principles are otherwise at issue." 719 P.2d at 636.

In this case, in assuming the accuracy of appellant's contention as to the text of the questioned comment, we do not find an issue of fact involving the statement made or business interests involved. ²

1. Moving Party is Entitled to a Judgment as a Matter of Law

Analysis begins with the trial court's conclusion that appellees were entitled to judgment as a matter of law as a relevant facts inquiry. What is libel or slander as a matter of law is wholly dependent on the surrounding circumstances and the subject matter of the communication. The acceptance of a conditionally privileged communication was established nearly a half century ago:

" 'In those cases where one person has an interest in the subject matter of the communication and the person to whom the communication is made has a corresponding interest, every communication honestly made in order to protect such common interest is privileged by reason of the occasion.' " Sylvester v. Armstrong, 53 Wyo. 382, 84 P.2d 729, 732 (1938), quoting from Newell, Slander & Libel § 432 (4th ed.).

A similar case involving the subject rule is Lull v. Wick Construction Company, Alaska, 614 P.2d 321 (1980). See also Prosser and Keeton on Torts § 115, pp. 828-830 (5th ed. 1984) and Foothill Industrial Bank v. Mikkelson, Wyo., 623 P.2d 748 (1981).

The subject matter of the communication in this case was a routine business transaction in which both parties had a pecuniary interest. See Restatement of Torts 2d § 596 (1986); Hansen, Libel and Related Torts § 126, p. 97 (1969). Under the doctrine of conditionally privileged communication, an absence of malice is presumed; malice on the part of a defendant must be established by a plaintiff.

"The communication in such case will, prima facie, be considered as having been made in good faith--i.e., without malice, and the burden of proving the existence of malice is cast upon the person claiming to have been defamed." Sylvester v. Armstrong, 84 P.2d at 733.

Malice is a necessary element to move the communication out from under the protective doctrine of conditionally privileged communication. The lower court concluded there was no malice.

" ' * * * [I]t is within the power and duty of the court to say as a matter of law that the motive of the [communication] was without malice.' " Id. 84 P.2d at 734, quoting from Williams v. Standard-Examiner Pub. Co., 83 Utah 31, 27 P.2d 1, 17 (1933).

Given the framework of a conditionally privileged communication, an absence of malice entitles the defendant to judgment as a matter of law. Phifer v. Foe, Wyo., 443 P.2d 870 (1968); Tschirgi v. Lander Wyoming State Journal, supra, 706 P.2d 1116.

2. No Genuine Issue of Material...