Appeal from the District Court of Big Horn County, The Honorable Steven R. Cranfill, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Philip and Letitia Abromats request relief from summary judgment granted to Don and Brenda Wood, claiming that the district court erred when it found that one allegedly defamatory statement contained in a victim impact statement was not libel per se and that the other allegedly defamatory statement was protected by qualified immunity as a statement concerning a common interest. The Woods, in their cross appeal, request that this Court uphold the dismissal of the Abromats' claims but ask that we find that neither of the statements constituted libel per se as a matter of law and that the Woods were entitled to protection under the doctrine of absolute immunity for witnesses in a legal proceeding. We affirm the district court's grant of summary judgment.
[¶2] Did the district court err when it found that statements by a victim published to a victims' services organization for the purpose of use in a criminal proceeding were protected by qualified immunity as statements made pursuant to a common interest but not absolutely immune from an action for libel as statements made by a witness pursuant to a legal proceeding?
[¶3] On March 2, 2006, Letitia Abromats was involved in a traffic accident in which she struck the Woods' car from behind. The Woods' son was driving the vehicle at the time. As a result of the accident, Mrs. Abromats was charged with following too closely, driving under suspension, and driving without insurance. Mrs. Abromats was scheduled to be arraigned on March 22, 2006. The arraignment was rescheduled for April 5, 2006, and postponed again to May 3, 2006, in part to give Mr. Abromats time to acquire his license to practice law in Wyoming so that he could represent his wife. In the interim, Mrs. Abromats received two more citations for driving with a suspended license. Because she was charged with three separate driving under suspension offenses, Mrs. Abromats was faced with the possibility of mandatory jail time under Wyo. Stat. Ann. § 31-7-134(c) (LexisNexis 2009). Mrs. Abromats was arrested for driving while under the influence on May 27, 2007. Plea negotiations were protracted and there were a number of delays in the proceedings as the Abromats and the prosecutor attempted to resolve all the charges. The case was not ultimately resolved until the court accepted a plea agreement and sentenced Mrs. Abromats on January 11, 2007.
[¶4] The Woods, as victims, were kept informed of the status of the criminal case by Crisis and Referral Emergency Services (C.A.R.E.S.), a victims' services organization. The Woods and the Abromats did not have contact after the accident until the Woods received a letter from Mr. Abromats, dated August 31, 2006, stating that the Abromats wished to settle any damage claims. In response to that letter, Mr. Wood called the Abromats but the discussion was not productive and did not lead to settlement. In that phone call, Mr. Wood expressed his inclination to leave the matter to the criminal justice system and to seek restitution as a victim, rather than to file a civil suit. Mr. Abromats then wrote to Mr. Wood inquiring as to what amount the Woods were going to claim for "restitution" and indicating that he required a release of liability as a condition of payment. The Woods were advised not to release liability in case their son, who was injured in the crash, wished to recover for future treatment of his injuries upon reaching the age of majority. Because they had decided to wait to see what restitution was ordered in the criminal case before pursuing any civil remedies, the Woods did not respond to Mr. Abromats' letter but submitted a claim for restitution to the court through C.A.R.E.S.
[¶5] The plea negotiations on the criminal case then took a bizarre turn. Mr. Abromats, as counsel for his wife, attempted to condition payment of restitution as part of the criminal plea agreement on a release of civil liability from the victims, the Woods. Unfathomably, the prosecutor agreed to the condition. The original plea agreement signed by the Abromats and the prosecuting attorney contained language that conditioned the payment of restitution to the Woods, as victims, on a release of civil liability for the Abromats. A C.A.R.E.S. representative contacted the Woods and informed them that the Abromats were taking actions in the criminal proceedings to impede the Woods' rights in future civil proceedings. The Woods then submitted a victim impact statement to the prosecutor through C.A.R.E.S., clarifying that they had not agreed to release Mrs. Abromats from civil liability.
[¶6] Based on the victim impact statement, the Abromats sued the Woods for libel, slander, and intentional infliction of emotional distress. The Abromats eventually voluntarily dismissed the claims of slander and intentional infliction of emotional distress. The remaining claim alleged that two statements in the victim impact statement were libelous. The statements at issue were that the Woods' car was "hit at full speed" and [t]here is a problem when the other driver and her husband can what seems to have so much power over our court system and what seems to be able to manipulate all the circumstances, when what took place is so evident and the answer seems so simple. We wonder what is going on?
[¶7] The Abromats' Complaint alleged publication of those statements to the county attorney and her staff, to the clerk of circuit court and her staff, to the judges involved and their staff, and to personnel at C.A.R.E.S. The Woods brought a motion to dismiss under Rule 12(b)(6) and the district court dismissed the claims involving publication to the county attorney and her staff, to the clerk of circuit court and her staff, and to the judges involved and their staff. The district court found that the doctrine of absolute immunity for statements made by a witness in the course of legal proceedings protected any publication to members of the legal system. The court could not, however, resolve the issue as to the publication of the statements to personnel at C.A.R.E.S. The Woods brought a subsequent motion for summary judgment on the remaining claim of publication of the allegedly libelous statements to C.A.R.E.S. The court granted summary judgment. With respect to the first statement, the court found that the Abromats had not claimed special damages and that, therefore, the statement was not actionable because it did not constitute libel per se. The court found that the second statement was protected under the doctrine of qualified immunity for statements made in common interest, and that the Abromats had failed to show malice on the part of the Woods, as required for such statements to be actionable. This appeal followed.
[¶8] We review a grant of summary judgment using the same materials reviewed by the district court, and following the same legal standards. Hoblyn v. Johnson, 2002 WY 152, ¶ 11, 55 P.3d 1219, 1224 (Wyo. 2002). "If we can uphold summary judgment on ...