“Convicted Felon” Accusations Are Defamation Per Se; Party‑Opponent Statements in Affidavits Can Defeat Summary Judgment — Lewis v. Jolley (Wyo. 2025)

Introduction

In Brian C. Lewis v. Rebecca Lyn Francis, n/k/a Rebecca Lyn Jolley, the Wyoming Supreme Court reversed a grant of summary judgment that had dismissed Lewis’s defamation per se claim against his ex-wife, Jolley. The case arises from allegations that Jolley told third parties that Lewis was a convicted felon (among other disparaging statements). The district court entered summary judgment for Jolley, reasoning there was no competent, admissible evidence of publication and that the plaintiff could not show defamation per se. On appeal, the Supreme Court held that:

A false statement that a person is a “convicted felon” is defamation per se because it imputes a criminal offense punishable by imprisonment.
The four Restatement-based categories of defamation per se are independent; a plaintiff need not also prove the separate “incompatibility with business, trade, profession, or office” category when proceeding under the “imputation of criminal offense” category.
An affidavit recounting a defendant’s out-of-court statement is admissible to defeat summary judgment where it is offered (1) not for its truth but to prove the statement was made and was false, and (2) as a party-opponent admission under W.R.E. 801(d)(2)(A).
Credibility disputes cannot be resolved at summary judgment.

The decision clarifies Wyoming defamation per se doctrine, evidentiary treatment of party-opponent statements at the summary-judgment stage, and underscores the distinct burdens under Rule 56.

Summary of the Opinion

Lewis and Jolley divorced in 2021. After Lewis faced hunting-related violations and license suspensions in Idaho (with collateral effects in Wyoming due to the Interstate Wildlife Violator Compact), he alleged that, in mid-2022, Jolley spread false statements in their small community that harmed his reputation and business prospects. He sued for defamation per se, pleading that she falsely stated he was a homosexual, committed homosexual acts captured on video, was a convicted felon, and poached wildlife. Jolley moved for summary judgment, denying she made the statements and arguing that, in any event, the statements did not satisfy defamation per se.

In opposition, Lewis submitted several exhibits, including an affidavit from third party Abby Bytheway, who swore that in July 2022 Jolley told her in Riverton, Wyoming, that Lewis is a homosexual, a convicted felon, a poacher, and attracted to underage girls. Jolley conceded in her Rule 56.1 statement that she knew Lewis was not a convicted felon, and admitted in deposition that she had spoken to Bytheway at a Riverton Walmart.

The district court nonetheless granted summary judgment for Jolley. The Supreme Court reversed, holding that:

Calling someone a “convicted felon” is actionable as defamation per se because it imputes a crime punishable by imprisonment.
The categories of defamation per se are separate; a plaintiff need not prove statements were incompatible with business when proceeding under the “imputation of criminal offense” category.
The Bytheway affidavit is competent and admissible: the statements are not hearsay when offered to show the defendant made them (and that they were false), and they are independently admissible as party-opponent admissions.
The affidavit creates a genuine dispute of material fact on publication and falsity/fault that must be resolved at trial, not on summary judgment.

The Court remanded for trial.

Analysis

Precedents Cited and Their Influence

Hill v. Stubson, 2018 WY 70, 420 P.3d 732: The Court relied on Hill’s articulation of defamation per se categories derived from the Restatement (Second) of Torts § 570: (1) imputation of a criminal offense; (2) loathsome disease; (3) matter incompatible with business, trade, profession, or office; and (4) serious sexual misconduct. Hill also explains that a statement imputing criminal conduct must suggest a crime punishable by imprisonment or involving moral turpitude (Restatement § 571). Here, the Court reaffirmed these categories and emphasized they are distinct. The Court rejected Jolley’s contention that Lewis also had to satisfy the “business/trade” category when proceeding under “imputation of a criminal offense.”
Thomas v. Sumner, 2015 WY 7, 341 P.3d 390: Confirmed that defamation per se is actionable without proof of special damages, and set out the prima facie elements of defamation, including falsity, unprivileged publication, and fault (knowledge, reckless disregard, or negligence). The Court applied Thomas to frame the elements and noted that damages are presumed for defamation per se.
Bextel v. Fork Rd. LLC, 2020 WY 134, 474 P.3d 625: Reiterated the defamation definition and per se doctrine in Wyoming and its Restatement lineage.
Restatement (Second) of Torts §§ 570–571: The doctrinal backbone for defamation per se categories and the requirement that imputed crimes be punishable by imprisonment or involve moral turpitude. The Court also cited comment c to § 571 to explain that technical precision is unnecessary; it need only be apparent that the imputed crime fits the imprisonment/moral-turpitude criteria. The Court further highlighted comment b: it is enough that the conduct is criminal under the law of the place where the communication is published.
Summary judgment authorities: Chesapeake Exploration v. Morton Production (2025 WY 15), Groff v. McKellar Tiedeken & Scoggin (2025 WY 54), Weir v. Expert Training (2022 WY 44), Little Medicine Creek Ranch v. D’Elia (2019 WY 103), Mantle v. North Star Energy (2019 WY 29), Warwick v. Accessible Space (2019 WY 89), Page v. Meyers (2021 WY 73), Burns v. Sam (2021 WY 10). These cases collectively establish the de novo standard of review; the movant’s ability to meet its burden by showing an absence of evidence; the nonmovant’s obligation to come forward with competent, admissible evidence; and the rule that courts do not weigh credibility at summary judgment, drawing all reasonable inferences for the nonmovant.
Evidence/hearsay: Sorum v. Sikorski (2024 WY 124) and Jontra Holdings Pty Ltd v. Gas Sensing Tech. Co. (2021 WY). The Court invoked W.R.E. 801 and specifically W.R.E. 801(d)(2)(A) to hold that Jolley’s statements, as recounted by Bytheway, are non-hearsay party-opponent admissions. It also emphasized that statements offered not for their truth but to prove they were made (and were false) are not hearsay under W.R.E. 801(c).

Legal Reasoning

The Court’s reasoning follows a clear sequence: (1) restating the governing defamation per se doctrine; (2) clarifying the independence of per se categories; (3) applying summary judgment burdens; and (4) addressing evidentiary objections to the Bytheway affidavit.

Elements and per se classification. A defamation per se claim requires proof that the defendant made a false and defamatory statement, published it to a third party without privilege, and acted with knowledge, reckless disregard, or negligence regarding falsity. Because per se damages are presumed, no special damages need be shown. Within the per se framework, “imputation of a criminal offense” stands on its own. A felony, by definition, is punishable by more than one year of imprisonment. Therefore, an accusation that someone is a “convicted felon” (if false) necessarily imputes a crime punishable by imprisonment and is actionable per se.
Distinct per se categories. The Court rejected Jolley’s reading of Hill that would have required Lewis to demonstrate not only imputation of criminal conduct but also that the statements were incompatible with his business or trade. The Court made explicit that each per se category is separate; proving one suffices. This clarification is particularly significant for litigants and trial courts parsing per se pleadings and jury instructions.
Summary judgment burdens applied. Jolley attempted to carry her Rule 56 burden by relying on her own deposition denial and arguing a lack of evidence of publication. That shifted the burden to Lewis to come forward with competent evidence creating a genuine dispute of material fact. Lewis did so via the Bytheway affidavit, which specified the time (July 2022), the place (Riverton, Wyoming), the speaker (Jolley), and the content (including that Lewis is a convicted felon). Jolley also admitted she knew Lewis was not a felon, supporting the fault element at least at the summary-judgment stage.
Admissibility of the affidavit. The district court discounted the Bytheway affidavit as “mostly hearsay within hearsay, conjecture and speculation.” The Supreme Court disagreed:
- Not hearsay under W.R.E. 801(c) because the statement was offered to prove it was made (and that it was false), not for its truth.
- Independently non-hearsay under W.R.E. 801(d)(2)(A) as a party-opponent admission — Jolley’s own statement, offered against her.
- Not speculative: the affidavit provided concrete details (who, what, when, where), satisfying Rule 56’s requirement of specific, admissible facts.
This evidentiary holding is central: it confirms that a single affidavit from a third party recounting the defendant’s statement can create a triable issue in a defamation case.
No credibility weighing at summary judgment. With Jolley denying and Bytheway averring the statements occurred, the Court reiterated that credibility determinations are for the trier of fact. The existence of that direct factual conflict precluded summary judgment.

Impact

Clarified pathway for defamation per se claims in Wyoming. Plaintiffs alleging an imputation of criminal offense need not couple that theory with the “business/trade” per se category. This avoids doctrinal conflation and streamlines pleadings, proof, and jury instructions.
Evidentiary roadmap at the Rule 56 stage. The decision underscores that:
- Third-party affidavits recounting a defendant’s statements are often admissible and sufficient to defeat summary judgment as party-opponent admissions.
- When offered to show that a statement was made (and was false), not to prove the statement’s content is true, such evidence is not hearsay.
- Specificity in affidavits (time, place, speaker, content) is dispositive to avoid characterization as speculation.
Practical consequences for litigants. Defamation defendants can no longer assume that a personal denial will suffice for summary judgment if the plaintiff counters with a specific third-party affidavit. Plaintiffs should be encouraged to gather precise, sworn witness statements identifying the who/what/when/where of alleged publications.
Substantive clarity: “Convicted felon” labels. The Court’s express statement that calling someone a “convicted felon” (if false) is defamation per se provides bright-line guidance. This likely narrows disputes at the motion-to-dismiss and summary-judgment stages in cases involving accusations of criminality.
Restatement guidance preserved and updated. By citing Restatement comments b and c to § 571, the Court reaffirmed two useful principles: technical precision in naming a specific statute is unnecessary, and the criminality of the conduct is assessed under the law where the defamatory publication occurs.

Complex Concepts Simplified

Defamation vs. Defamation Per Se: Defamation is a false statement that harms reputation. Defamation per se refers to certain categories of statements considered so inherently harmful that the law presumes damages; the plaintiff need not prove special (economic) damages. Wyoming follows four per se categories: imputation of a crime; loathsome disease; incompatibility with business, trade, profession, or office; and serious sexual misconduct.
Imputation of a Criminal Offense: To qualify as per se, the statement must accuse the plaintiff of a crime either punishable by imprisonment or involving moral turpitude. Labeling someone a “convicted felon” plainly meets the “punishable by imprisonment” prong.
Publication: In defamation, “publication” simply means communicating the statement to at least one third party. A single conversation with one person suffices if unprivileged.
Fault Standard: For private-figure plaintiffs, Wyoming requires that the defendant knew the statement was false, recklessly disregarded its falsity, or negligently failed to ascertain the truth. Jolley’s admission that she knew Lewis was not a felon supports the knowledge prong at the summary-judgment stage.
Hearsay and Party-Opponent Admissions: Hearsay is an out-of-court statement offered to prove the truth of what it asserts. A statement is not hearsay if it is offered for another purpose (e.g., to show it was made or to prove falsity). Separately, under W.R.E. 801(d)(2)(A), a party’s own statement, offered against that party, is not hearsay at all. Thus, a third party can recount what the defendant said, and that testimony/affidavit can be admissible to establish publication.
Summary Judgment: A court can grant summary judgment only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. The movant can carry the initial burden by showing the nonmovant lacks evidence. The nonmovant must respond with specific, admissible facts. Courts do not weigh credibility or resolve conflicting testimony at this stage; they draw reasonable inferences for the nonmovant.
Place-of-Publication Rule (Restatement § 571 cmt. b): Whether conduct is “criminal” is assessed under the law of the place where the statement is published (communicated), not necessarily where the alleged conduct occurred.

Conclusion

Lewis v. Jolley sets two important guideposts for Wyoming defamation law and summary judgment practice. First, it confirms that a false accusation that a person is a “convicted felon” is defamation per se as a matter of law because it imputes a crime punishable by imprisonment. Second, it clarifies evidentiary and procedural doctrine: an affidavit recounting the defendant’s own out-of-court statements is competent, admissible non-hearsay (both because it is not offered for truth and as a party-opponent admission) and can create a genuine factual dispute precluding summary judgment. The Court also makes explicit that the Restatement’s defamation per se categories are independent — a plaintiff need not prove incompatibility with business when proceeding on an imputation-of-crime theory.

Doctrinally, the opinion preserves Wyoming’s alignment with the Restatement and reiterates core Rule 56 principles: courts must credit specific, admissible affidavits and leave credibility to the fact-finder. Practically, it signals that defamation per se claims grounded in accusations of felon status will rarely be disposed of on summary judgment when the plaintiff can marshal a concrete third-party account of publication. On remand, the trier of fact must resolve whether Jolley made the statements, her state of mind when doing so, and the scope of presumed and any additional damages. In the broader legal landscape, the opinion enhances clarity for litigants and courts confronting the interplay between per se defamation categories and summary judgment evidentiary rules in Wyoming.