NO. 94-393
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
PETER WOLF,
Plaintiff and Appellant,
v.
ED WILLIAMSON and THE CITY OF GLENDIVE,
Defendant and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lynch, Lynch Law Firm,
Great Falls, Montana
For Respondents:
Gary L. Day, Lucas & Monaghan,
Miles City, Montana
Submitted on Briefs: December 15, 1994
Decided: February 14, 1995
Filed:
Cyerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Peter Wolf appeals from an order of the Seventh
Judicial District Court, Dawson County, granting the motion for
summary judgment of respondents Ed Williamson and the City of
Glendive.
Affirmed.
Appellant raises the following issues:
1. Did the District Court err by granting respondents'
motion for summary judgment?
2. Did the District Court err by failing to grant
appellant's second motion for leave to amend the pleadings before
granting summary judgment in favor of respondents?
From April 1989 to January 1991, appellant was employed by the
City of Glendive as a police officer. In January 1991, appellant
resigned his position in Glendive and was subsequently employed by
the Ravalli County Sheriff's office as a deputy sheriff. In
July 1991, appellant resigned from his position in Ravalli County
and applied for a position as a police officer with the Kalispell
Police Department. As part of his application, appellant signed an
authorization for former employers to release information of past
employment. The Kalispell Police Department requested information
about appellant's employment history from Glendive Police Chief, Ed
Williamson, who in turn, provided the requested information. After
the Kalispell Police Department did not hire appellant, he obtained
a copy of the information provided by Williamson to the Kalispell
Police Department.
2
On February 11, 1993, appellant filed suit against Williamson,
alleging defamation in the form of libel. The District Court
granted appellant's motion to amend his complaint to add the City
of Glendive as a defendant. On March 28, 1994, respondents filed
a motion for summary judgment. Appellant filed a second motion for
leave to file an amended complaint on May 31, 1994. On June 10,
1994, the District Court granted respondents' motion for summary
judgment. Appellant appeals from the District Court's order
granting summary judgment and its failure to rule on his second
motion to amend the pleadings.
ISSUE 1
Did the District Court err by granting respondents' motion for
summary judgment?
"Our standard of review on a grant of summary judgment is
identical to that of a trial court's." Cooper v. Sisters of
Charity (1994), 265 Mont. 205, 207, 875 P.Zd 352, 353. Summary
judgment is only proper when there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of
law. Rule 56(c), M.R.Civ.P.; Spain-Morrow Ranch, Inc. v. West
(1994), 264 Mont. 441, 442, 072 P.2d 330, 332. The burden of proof
rests with the party seeking summary judgment to provide the court
with evidence which excludes any real doubt as to the existence of
a genuine issue of fact. Berens v. Wilson (1990), 246 Mont. 269,
271, 806 P.2d 14, 16. The party opposing the summary judgment is
entitled to have any inference drawn from the factual record
resolved in his or her favor. Boylan v. Van Dyke (1991), 247 Mont.
3
259, 266, 806 P.Zd 1024, 1028. Only after the moving party has met
this burden of proof does the burden shift to the nonmoving party
to show that a genuine issue of fact exists. Morton v. M.W.M.,
Inc. (1994), 263 Mont. 245, 249, 868 P.2d 576, 579. "When raising
the allegations that disputed issues of fact exist, the non-moving
party has an affirmative duty to respond by affidavit or other
sworn testimony containing material facts that raise genuine
issues; conclusory or speculative statements will not suffice."
Koepplin v. Zortman Mining (Mont. 1994), 881 P.2d 1306, 1309, 51
St. Rep. 881, 882.
In his complaint, appellant alleged defamation in the form of
libel, claiming that Williamson notified the Kalispell Police
Department, through false and unprivileged publication, that
appellant lacked appropriate personal habits, did not have good
attendance habits, did not satisfactorily follow instructions, did
not handle stress well, and was not suitable for re-employment with
the Glendive Police Department. This information formed the basis
of appellant's complaint.
As part of his application with the Kalispell Police
Department, appellant signed an authorization to release
information which provided:
I am an applicant for a position with the Kalispell
Police Department. I am required to furnish information
which this agency may use in determining my moral,
physical, mental and financial qualifications. In this
connection, I hereby expressly authorize release of any
and all information which you may have concerning me,
including information of a confidential or privileged
nature.
4
I hereby release the agency with which I am seeking
employment and any organization, company, institution or
person furnishing information to that agency as expressly
authorized above, from any liability for damage which may
result from furnishing the information requested.
In addition to signing the above, appellant testified that he
believed Williamson would be responding to requests for information
from the Kalispell Police Department in his official capacity as
Chief of Police. Williamson testified that he responded to the
request for information from the Kalispell Police Department in his
official capacity as Chief of Police. Two mayors of Glendive
testified that one of the official duties of the Chief of Police is
to respond to requests from prospective employers about past
employees of the Glendive Police Department.
Libel is a false and unpriviledged publication which exposes
a person to hatred, contempt, ridicule, or obloquy, or which causes
him to be shunned or avoided or which has a tendency to injure him
in his occupation. Section 27-l-802, MCA. A privileged
publication involves one made in the proper discharge of an
official duty. Section 27-l-804(1), MCA. "When a public official
is acting within the scope of his or her authority, communications
within that scope are privileged." Denny Driscoll Boys Home v.
State (1987), 227 Mont. 177, 178, 737 P.2d 1150, 1152.
The record shows that Williamson was acting in his official
capacity as Chief of Police when he responded to the request of the
Kalispell Police Department for information about appellant's
employment history with the Glendive Police Department. That
information was a privileged communication under § 27-l-804(1),
5
MCA, and therefore, could not form the basis of a defamation
action. Dennv Driscoll Bovs Home, 737 P.Zd at 1150; Small v. McRae
(1982), 200 Mont. 497, 521, 651 P.2d 982, 996. Respondents
sustained their burden of establishing the absence of any genuine
issue of material fact, thereby shifting the burden to appellant
who failed to raise a genuine issue of material fact.
Consequently, respondents were entitled to summary judgment as a
matter of law.
We hold that the District Court did not err in granting
respondents' motion for summary judgment.
ISSUE 2
Did the District Court err by failing to grant appellant's
second motion for leave to amend the pleadings before granting
summary judgment in favor of respondents?
We review discretionary trial court rulings, such as trial
administration issues, post-trial motions, and similar rulings, to
determine whether the district court abused its discretion.
Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d
121, 125. Absent an abuse of discretion, we will affirm the
district court. State v. Anderson (1993), 260 Mont. 354, 358, 860
P.2d 115, 118.
On October 13, 1993, the District Court issued its memorandum
of pre-trial scheduling conference and order which provided that
requests for amending pleadings were to be made by March 3, 1994.
Under Rule 15(a), M.R.Civ.P., a party may amend a pleading once as
a matter of course; thereafter, a party may amend a pleading only
6
by leave of court or by consent of an opposing party. The District
Court granted appellant's first motion for leave to file an amended
complaint on March 2, 1994. On March 28, 1994, respondents filed
a motion for summary judgment. On May 24, 1994, the District Court
issued its minute entry order, stating that it intended to grant
respondents' motion for summary judgment. On June 1, 1994,
appellant filed a second motion to amend his complaint, seeking to
add a claim under Montana's blacklisting statute, 5 39-2-802, MCA.
On June 8, 1994, the District Court issued its order granting
summary judgment in favor of respondents. Although the District
Court did not rule on appellant's motion to amend, it found that
because appellant failed to plead blacklisting in the original
complaint, as well as the amended complaint of March 2, 1994,
blacklisting was not an issue properly before the court at the time
of summary judgment.
There is nothing in the record to show that the District Court
abused its discretion under Rule 15(a), M.R.Civ.P., by not granting
appellant's second motion to amend his complaint.
We hold that the District Court did not err by failing to
grant appellant's second motion for leave to amend the pleadings
before granting summary judgment in favor of respondents.
Affirmed.
we concur:
Chief Justice
February 14, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John F. Lynch
Lynch Law Fim
P.O. Box 2265
Great Falls. MT 59403
Gary L. Day, Esq.
Lucas & Monaghan, P.C.
513 Main Street
P.O. Box 728
Miles City, Montana 59301
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA