COURT OF APPEALS DECISION DATED AND RELEASED January 14, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0293
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
David C. Kanz,
Plaintiff-Appellant,
v.
Catherine M. Doyle and
Beth Kushner,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
MICHAEL J. SKWIERAWSKI, Judge. Affirmed.
Before Wedemeyer, P.J.,
Curley and LaRocque, JJ.
PER CURIAM. David C. Kanz appeals from an order
dismissing his defamation claim against Catherine M. Doyle and Beth
Kushner. He claims the trial court
erred in granting Doyle's motion to dismiss because the alleged defamatory
statements were not relevant to the judicial proceeding and, therefore, not
absolutely privileged.[1] Because the alleged defamatory statements
are absolutely privileged because they were made in the context of a judicial
proceeding, we affirm.[2]
I. BACKGROUND
Kanz, an employee of
WVCY, was subpoenaed to testify in a separate judicial proceeding, Doyle
v. WVCY, Milwaukee Circuit Court, No. 93-017906, which alleged that
WVCY defamed Doyle. Doyle filed a
motion seeking to amend the complaint in Doyle in order to add
more claims against WVCY based on Kanz's actions.
Based on this document,
Kanz filed a defamation complaint alleging that the following seven statements
constituted libel: (1) “In Exhibit A, Mr. Kanz accuses [Doyle] of a number
of serious wrongdoings. Mr. Kanz further
warns [Doyle] that she faces eternal damnation if she does not accept his
version of appropriate religious belief”; (2) “In Exhibit A, Mr. Kanz
repeats one of the defamatory statements for which his employer has been sued
in this action, i.e. that [Doyle] has sought to entangle and influence
government officials in her purported advocacy for abortion”; (3) “Mr.
Kanz states in Exhibit A that, if [Doyle] does not agree in writing to Mr.
Kanz's accusations about her, she will become liable to him, as a member of the
Christian community, a Christian Broadcaster and a minister for One Hundred
Million Dollars”; (4) Mr. Kanz describes himself in Exhibit A as being in
the Country of Wisconsin which he states is not a part of the United States,
and purports to act under a common law court system formed recently by a
militia group which is the apparent successor to Posse Comitatus”;
(5) Exhibit A is particularly threatening in view of its separatist
sentiments and proximity in time to the Oklahoma City bombing”; (6) It
appears that, in the course of his employment at WVCY, Mr. Kanz was told a
number of false and derogatory things about [Doyle] and that he drafted and
sent Exhibit A to [Doyle] in response”; and (7) “Mr. Kanz has continued to
engage in bizarre and threatening behavior, and WVCY has continued to acquiesce
in it. Mr. Kanz was warned not to
communicate with [Doyle]; in response, he promptly sent three cronies to her
home at night to serve her with a subpoena he signed. Mr. Kanz has no legal authority to issue subpoenas and apparently
did so for no reason other than to upset the plaintiff and her family. He succeeded.”
After being served with
Kanz's complaint in the instant case, Doyle filed a motion to dismiss on the
basis that these statements were made in the context of a judicial proceeding
and, therefore, absolutely privileged.
The trial court granted the motion dismissing Kanz's complaint. Kanz appeals that decision.
II. DISCUSSION
Whether the facts
alleged in a complaint are sufficient to state a claim for relief, and whether
the statements alleged in Kanz's complaint are absolutely privileged are
questions of law that we review de novo. Busse v. Dane County Regional Planning Comm'n, 181
Wis.2d 527, 534, 511 N.W.2d 356, 358 (Ct. App. 1993); Rady v. Lutz,
150 Wis.2d 643, 647, 444 N.W.2d 58, 59 (Ct. App. 1989). We have reviewed Kanz's complaint and
conclude that these statements are absolutely privileged. Accordingly, he cannot pursue any action
based on these statements and it was proper to dismiss his complaint.
Statements made in the
course of judicial proceedings are absolutely privileged and do not give rise
to liability for defamation. Larson
v. Zilz, 151 Wis.2d 637, 642, 445 N.W.2d 699, 701 (Ct. App. 1989). The only requirements necessary to invoke
the absolute privilege are: (1) the statements must be made in a
procedural context that is recognized as affording the privilege; (2) the
statements must be made by and to persons involved in and closely connected to
the proceeding; and (3) the statements must be relevant to the
proceeding. Rady, 150
Wis.2d at 647-49, 444 N.W.2d at 59-60.
Kanz does not dispute
that the first two requirements are satisfied under the facts present in this
case. He argues only that the
statements are not privileged because they were not relevant to the judicial
proceeding. We disagree.
To be relevant in this
context, the statements must be of a general frame of reference and relation to
the subject matter of the proceeding. Spoehr
v. Mittelstadt, 34 Wis.2d 653, 663, 150 N.W.2d 502, 506 (1967). Moreover, the statements should be liberally
construed in determining relevance, id. at 661-62,
150 N.W.2d at 505, and any doubt as to relevance must be resolved in favor
of finding the statement privileged. Rady,
150 Wis.2d at 650, 444 N.W.2d at 60.
The statements
referenced above clearly bear some general frame of reference and relation to
the Doyle v. WVCY case.
Doyle is seeking to amend her complaint based on the alleged conduct of
WVCY's employee, Kanz. The statements
merely describe conduct Kanz allegedly engaged in which may support an
additional cause of action against WVCY.
Because these statements are relevant to a judicial proceeding, they
cannot form the basis for Kanz's defamation claim. They are absolutely privileged.
Accordingly, the trial court acted properly in dismissing Kanz's
complaint.[3]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Kanz also claims: (1) that the trial court failed to investigate a fraud on the court; and (2) that he should be allowed to “replead” his case. Both of these arguments are raised for the first time on appeal and, therefore, we decline to address them. First Bank v. H.K.A. Enters., Inc., 183 Wis.2d 418, 426-27 n.10, 515 N.W.2d 343, 347 n.10 (Ct. App. 1994) (court of appeals may decline to consider issues raised for the first time on appeal).
[2] Doyle has filed a motion seeking an award of appellate costs and attorney's fees on the grounds that Kanz's appeal is frivolous. We deny this motion.
[3] The trial court's award of costs and attorney's fees is also affirmed. Kanz does not raise this issue until his reply brief and, even then, the argument is not developed. Therefore, we decline to consider it. See W.H. Pugh Coal Co. v. State, 157 Wis.2d 620, 634, 460 N.W.2d 787, 792 (Ct. App. 1990)