Burns v. Davis8/10/1999
REVERSED AND REMANDED
Plaintiffs (Appellants) appeal from the dismissal of their defamation complaint. The trial court found that the statements at issue were made by witnesses and an attorney at a board of adjustment meeting and as such were within a quasi- judicial proceeding; therefore, the trial court held the statements were absolutely privileged. Although presented with a very brief record, we have reviewed its contents carefully and our Conclusions are as follows: 1) a qualified privilege existed for the statements made at the meeting, and 2) the dismissal of the action as a matter of law was premature because the trial court had not received testimony, reviewed it, and ruled on a record developed by the testimony. For these reasons, we reverse and remand for proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
Sedona Heights, L.L.C., through its managing member Brent Hickey, sought a zoning variance on a lot in the city of Sedona. Nearby property owners, including Paul Davis and Gary Byer, opposed the variance. At the Sedona Board of Adjustment public meeting, Davis and Byer spoke, as did legal counsel representing Davis. After the meeting, Sedona Heights, L.L.C., Brent Hickey and Robert Burns (collectively "Sedona Heights") filed suit against Paul Davis, Gary Byer, and Davis' legal counsel, Robert Earle (collectively "the Davis group"), for statements made by the Davis group at the meeting. Sedona Heights asserted that these statements defamed them.
Upon the Davis group's motion, the trial court dismissed the action, finding the statements at issue to be absolutely privileged because the nature of the meeting was quasi-judicial. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) section 12-2101(B).
ISSUES
1. Were the statements made to the Sedona Board of Adjustment subject to an absolute or a qualified privilege?
2. Must this matter be remanded to the trial court, or may this Court review and summarily dismiss Sedona Heights' complaint as being protected speech, and not defamatory as a matter of law?
DISCUSSION
A. Standard of Review
In a defamation case, once an immunity defense has been raised, defining the scope of a speaker's immunity is a legal question for the court. See Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986). The privilege may be either absolute or qualified. See id.; see also Restatement (Second) of Torts (Restatement) §§ 583-612 (1977). Because classification of the privilege is a question of law, we review it de novo. Ashton- Blair, 187 Ariz. at 317, 928 P.2d at 1246; see also Restatement § 619. While a qualified privilege protects the speaker only for those statements made in good faith, an absolute privilege is much broader, protecting the speaker regardless of his "motive, purpose, or reasonableness." Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984). A witness is generally afforded an absolute privilege when testifying in a judicial proceeding. Todd v. Cox, 20 Ariz. App. 347, 348, 512 P.2d 1234, 1235 (1973).
B. Determining Absolute or Qualified Privilege
To determine if a privilege, absolute or qualified, exists, we first examine the applicable case law. If no clear answer is obtained, then we look to the Restatement for guidance. See Bruce v. Chas Roberts Air Conditioning, Inc., 166 Ariz. 221, 227, 801 P.2d 456, 462 (App. 1990) (appellate courts follow Restatement only absent case law to the contrary). We do this because " lthough the Arizona courts generally follow the Restatement of the law, they do not do so
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