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

Filed:

Submitted on Briefs: December 15, 1994

Decided: February 14, 1995

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.

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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.

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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),

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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