CHALK v. BERTHOLF

MYERS, P.J., for the Court.

¶ 1. Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, F. Gregory Malta, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Speed, and Aaron K. Wilson filed a complaint in the Circuit Court of Lauderdale County against David J. Bertholf and Joe H. Bryant, Jr. alleging slander. All of the appellants are current, former, or retired high-ranking commissioned and non-commissioned officers of the 186th Air Refueling Wing of the Mississippi Air National Guard in Meridian. Appellee John H. Bryant, Jr. is a retired Mississippi Air National Guard officer, formerly of the 186th Wing. Appellee David J. Bertholf is a retired United States Air Force officer who, prior to his retirement, had been assigned by the Inspector General of the United States Air Force to investigate claims of wrongdoing filed by Joe H. Bryant, Jr. against members of the 186th Wing. The appellants assert that Bertholf and Bryant published slanderous statements against them on a radio talk show program conducted on May 27, 2003, on WMOX/1010 AM in Meridian, Mississippi, causing damage to their good names and reputations. However, the appellant's complaint failed to include the language of the alleged slander or the substance of the words used against them.

¶ 2. Bertholf and Bryant answered the complaint, asserting various affirmative defenses, including that the complaint failed to state a claim upon which relief could be granted pursuant to Mississippi Rule of Civil Procedure 12(b)(6). Later, Bertholf and Bryant moved for summary judgment under Mississippi Rule of Civil Procedure 56 asserting that there were no genuine issues of material fact for the trial court to decide and the complaint and an unauthenticated transcript of the radio talk show were attached as exhibits to the motion. Thereafter, a hearing was held on the matter and the circuit court converted the motion for summary judgment into a Rule 12(b)(6) motion, ruling in favor of Bertholf and Bryant. However, the entry of dismissal was stayed for a period of thirty days in order to allow the appellants time to amend their complaint to include more specificity as to which statements they alleged to be slanderous, information as to how the statements were slanderous and to whom the statements were directed. The appellants failed to amend their complaint before the expiration of the thirty day period of leave, and the circuit court dismissed their cause of action with prejudice, finding the complaint to be deficient under Mississippi Rule of Civil Procedure 8. The dismissal of the complaint is now appealed and the appellants request review of the following issues:

II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING DISMISSAL UNDER RULE 12(b)(6)?

¶ 3. Finding no error, we affirm the judgment of the circuit court.

¶ 4. Motions to dismiss under either Mississippi Rule of Civil Procedure 12 or Rule 56 raise questions of law and are reviewed de novo. Hartford Cos. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209-10 (¶¶ 6-7) (Miss. 2001). Rule 12(b)(6) tests the legal sufficiency of a complaint, and provides that dismissal shall be granted to the moving party where the plaintiff has failed to state a claim upon which relief can be granted. Children's Med. Group, P.A. v. Phillips, 940 So.2d 931, 934 (¶ 7) (Miss. 2006). "[I]n applying this rule `a motion to dismiss should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of the claim.'" Id. (quoting Missala Marine Servs. v. Odom, 861 So.2d 290, 294 (¶ 12) (Miss. 2003)). Motions to dismiss under Rule 12(b)(6) are considered on the face of the pleadings alone. Hartford, 826 So.2d at 1211 (¶ 15). "Quite differently, Rule 56 tests the notion of well-pled facts and requires a party to present probative evidence demonstrating triable issues of fact." Phillips, 940 So.2d at 934 (¶ 7) (quoting Stuckey v. Provident Bank, 912 So.2d 859, 865-66 (¶ 11) (Miss. 2005)). Accordingly, Rule 56(c) provides that summary judgment shall be rendered for the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." M.R.C.P. 56.

I. WHETHER A CIRCUIT COURT MAY CONVERT A MOTION FOR SUMMARY JUDGMENT INTO A MOTION TO DISMISS UNDER RULE 12(b)(6)?

¶ 5. The matter of dismissal initially came before the circuit court as a motion for summary judgment pursuant to Mississippi Rule of Civil Procedure 56. However, after a hearing on the matter, the circuit court converted the appellee's motion for summary judgment into a motion for dismissal, and ultimately dismissed the case pursuant to Mississippi Rule of Civil Procedure 12(b)(6), based upon the complainants' failure to state a claim for relief. During the hearing, Bertholf and Bryant introduced as an exhibit the transcript of the radio talk show; however, the appellants disputed the completeness of the transcript. Consequently, the trial court threw out the transcript of the radio show because its completeness was at issue.

¶ 6. On appeal, the appellants argue that the circuit court erred in converting the motion for summary judgment into a motion to dismiss under Rule 12(b)(6) because the trial judge considered evidence outside of the pleadings. The appellants point out that the appellees attached, as an exhibit to their memorandum in support of the motion for summary judgment, the transcript of the radio talk show. Further, the appellants assert that the motion was to be treated as a Rule 56 motion for summary judgment because during the motion hearing on the matter, the circuit court heard live testimony and admitted into evidence a transcript and tape recordings from the radio talk show. Based on the evidence the trial court took during the motion hearing and the evidence attached to the motion, the appellants assert that the judgment should be considered one for summary judgment not one for dismissal under Rule 12(b)(6). Bertholf and Bryant contend, however, that the circuit court, in its review during the motion hearing, was limited in its review only to the four corners of the complaint, and argue that all other matters were excluded. Thus, Bertholf and Bryant assert that the circuit court properly dismissed the appellant's complaint pursuant to Rule 12(b)(6), after converting the appellee's motion for summary judgment to one for dismissal under Rule 12(b)(6).

¶ 7. Our supreme court has well established that "[u]nder certain conditions, motions for summary judgment and for judgment, on the pleadings are inter-changeable." Hartford, 826 So.2d at 1213 (¶ 24) (citing M.R.C.P. 12(c), and M.R.C.P. 56 cmt.) (permitting a motion for summary judgment to be converted into a judgment on the pleadings pursuant to Rule 12(c), finding that the circuit court did not consider matters beyond the pleadings); Lawrence v. Evans, 573 So.2d 695, 697 (Miss. 1990) (citing M.R.C.P. 12(b)(6)); Millican v. Turner, 503 So.2d 289, 292 (Miss. 1987); Walton v. Bourgeois, 512 So.2d 698, 699-700 (Miss. 1987); Educ. Placement Serv. v. Wilson, 487 So.2d 1316, 1320 (Miss. 1986); Kountouris v. Varvaris, 476 So.2d 599, 602 n. 3 (Miss. 1985). Under Rule 12(b)(6), where "matters outside the pleading are presented to and not excluded by the court," a motion to dismiss must be treated as one for summary judgment. Rosen v. Gulf Shores, Inc., 610 So.2d 366, 368 (Miss. 1992) (quoting M.R.C.P. 12(b)(6)) (emphasis added). Conversely, where matters outside the pleadings have been excluded by the trial court, review may proceed pursuant to Rule 12(b)(6). Favre Prop. Mgmt., LLC v. Cinque Bambini, 863 So.2d 1037, 1044 (¶ 18) (Miss.Ct.App. 2004). In this case, there is no evidence that the circuit court considered anything outside the pleadings. Our review of the trial court order indicates that the court excluded the only evidence introduced at the motion hearing, the transcript of the talk show, because the completeness of the evidence was not substantiated. In accordance with the precedent, we likewise hold that a circuit court does not err by limiting its ruling on a Rule 56 motion for summary judgment to the four corners of the complaint, excluding all other matters introduced, and dismissing the complaint pursuant to Rule 12(b)(6). Therefore, we find that the trial court's exclusion of the radio show transcript allows the court to refine its review of the motion based only on the pleadings and dismiss the complaint pursuant to Rule 12(b)(6).

¶ 8. At issue is whether the appellants properly alleged a claim for slander so as to survive a motion for dismissal. After the appellants failed to amend their complaint to provide more specificity regarding the allegedly slanderous statements, the circuit court dismissed the complaint pursuant to Mississippi Rule of Civil Procedure 12(b)(6), finding that the complaint failed to satisfy the notice-pleading requirements of Mississippi Rule of Civil Procedure 8. The trial court found that the complaint was insufficient on its face, as the appellants merely alleged that Bertholf and Bryant made slanderous statements, but refused to "specifically identify those remarks or to identify which remark slandered which plaintiff."

¶ 9. The appellants assert that the circuit court erred in ruling that their complaint lacked sufficient details in order to survive a motion for dismissal. The crux of the appellants' argument is that the purpose of Mississippi Rules of Civil Procedure Rule 8 is to give notice of the claims, and that the pleading of the specific facts upon which the claims will be proved is not required. At the hearing, the appellants defended the motion to dismiss by arguing that the motion was premature because discovery was not complete. In opposition, Bertholf and Bryant argue that they were not afforded proper notice through the pleadings because notice pleading under the Mississippi Rules of Civil Procedure require a plaintiff to plead every element of slander, including the fact that a false and defamatory statement was made. More specifically, Bertholf and Bryant argue that a complaint for slander should include the specific slanderous statements made by each defendant, a statement regarding to whom those statements were directed, and a statement describing how the defendant's statements were slanderous. According to Bertholf and Bryant, failure to include such specificity in the complaint is fatal and dismissal of a complaint lacking such information is warranted under Rule 12(b)(6).

¶ 10. The substance of the appellants' complaint alleging defamation reads in pertinent parts:

On Tuesday, May 27, 2003, the Defendants voluntarily appeared on a radio talk show program conducted by the WMOX/1010 A.M. radio station in Meridian, Mississippi, which program was broadcast to the general public throughout the area of Lauderdale County and surrounding counties.

* * * *

Statements made and published by the Defendants as described herein above slander the good name and reputation of each of the Plaintiffs, expressly or impliedly, causing injury to the said Plaintiffs for which each should be permitted to recover.

Absent from the complaint, however, are the words or substance of the words alleged to constitute slander.

¶ 11. Mississippi Rule of Civil Procedure 8 establishes the general rules of pleading and only requires "a short and plain statement of the claim showing that the pleader is entitled to relief." When a complaint is reviewed for sufficiency under Rule 12(b)(6), the review is limited only to the face of the pleading. Hartford, 826 So.2d at 1211 (¶ 15). A trial judge must accept the allegations in the complaint as true and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. State Indus, v. Hodges, 919 So.2d 943, 945 (¶ 2) (Miss. 2006). However, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Penn Nat'l Gaming, Inc. v. Ratliff, 954 So.2d 427, 431 (¶ 6) (Miss. 2007).

¶ 12. "[T]he question whether said-to-be-offending words are defamatory may be decided by the Court without submission to the trier of fact." Lawrence, 573 So.2d at 697. In order to prove slander, Mississippi requires the plaintiffs to prove the following elements:

(a) a false statement that has the capacity to injure the plaintiff's reputation;

(b) an unprivileged publication, i.e., communication to a third party;

(c) negligence or greater fault on part of publisher; and

(d) either actionability of statement irrespective of special harm or existence of special harm caused by publication.

¶ 13. We are mindful that the promulgation of Rule 8 was intended to lessen the pleading requirements so that a plaintiff's rights "are not lost by poor drafting skills of counsel." M.R.C.P. 8 cmt. However, we must also remember that "[a]lthough Rule 8 abolishes many technical requirements of pleadings, it does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim." M.R.C.P. 8 cmt. While the use of discovery tools becomes helpful to a defendant in developing his defense, a defendant must be able to ascertain from the outset of the litigation the circumstance(s), occurrence(s) and event(s) of his conduct that form the basis of the suit against him.

¶ 14. In this appeal, we must determine whether the appellant's complaint alleging defamation pled sufficient detail pursuant to Mississippi Rule of Civil Procedure 8. "In construing our rules, we sometimes look for guidance to the federal cases, since the Mississippi Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure." Penn Nat'l Gaming, Inc., 954 So.2d at 432 (¶ 11) (citing White v. Stewman, 932 So.2d 27, 39 (¶ 34) (Miss. 2006)). This case is one of the instances we find it necessary to rely upon the federal court guidance because case law concerning this precise issue is scarce within our current state court jurisprudence. Mississippi federal courts have examined our state law and ruled on the matter of pleading requirements in a suit for defamation on several occasions. Quite consistently, these courts have found that Mississippi law requires that a complaint for defamation must provide allegations of sufficient particularity so as to give the defendant or defendants notice of the nature of the complained-of statements.

¶ 15. One federal district court opinion in particular, Mitchell v. Random House, Inc., 703 F.Supp. 1250, 1258 (S.D.Miss. 1988), has upheld a trial court's dismissal of a defamation complaint pursuant to Rule 12(b)(6) for failure to include sufficient detailing. In the Mitchell case, the complainant reproduced portions of a published book in her complaint, seeking to show that she had been defamed. However, after the court examined the book excerpts in relation to the plaintiff, it was able to ascertain that there were no actionable words of defamation. The court held that "[t]he trial court in a defamation case must make the threshold determination of whether the language in question is actionable." Mitchell, 703 F.Supp. at 1256. In its opinion, the Mitchell court explained the importance of requiring a complainant to put before the trial court the alleged defamatory words against him, quoting a treatise on the matter:

Dismissal of defamation suits for failure of the complaint to state a cause of action or to state a claim upon which relief may be granted occurs with relative frequency. One substantial factor is that the communication complained of is usually before the court at the outset; indeed in many jurisdictions it is required that complaints themselves set forth the allegedly defamatory statement. Thus, unlike most litigation, in a libel suit the central event — the communication about which suit has been brought — is usually before the judge at the pleading stage. He may assess it upon a motion to dismiss first hand and in context.

The trial court may therefore, at the earliest stages, make sound determinations as to issues relating to the communication of which complaint is made. Thus courts routinely consider on motions to dismiss issues such as whether the statement at bar is capable of bearing a defamatory meaning, whether it is "of and concerning" the plaintiff, whether it is protected opinion, whether there is jurisdiction over the defendant, and whether the suit is barred by privilege and frequently grant motions on these grounds and others.

¶ 16. In the decision of Berry v. Safer, No. 5:03-CV-3(Br)(S), 2004 WL 1961675 (S.D.Miss. July 9, 2004), the district court found that "the failure to plead the `of and concerning' element [required to be pled by the supreme court pursuant to Ferguson, 448 So.2d at 275] of a defamation suit may be raised at the pleading stage and made the subject of a motion to dismiss. "The court dismissed the plaintiff's action on the pleadings, holding that the complaint "fail[ed] to allege facts sufficient to establish that the allegedly defamatory statements were `of and concerning' or `clearly directed toward' the plaintiffs." Id.

¶ 17. One federal court construed Mississippi pre-rules statutory law to require a plaintiff "to plead the words or matter' constituting the alleged defamation." Lenoir v. Tannehill, 660 F.Supp. 42, 45 (S.D.Miss. 1986) (citing Valley Dry Goods Co., 75 So. at 254). Before the adoption of the Mississippi Rules of Civil Procedure, the seminal case of Valley Dry Goods Co., 114 Miss. 414, 75 So. at 254, dictated that a plaintiff sufficiently plead an action for libel or slander by averring "the words or synonymous words which constitute the slander." As the jurisprudence progressed, stricter compliance with the pleading requirements was mandated by the supreme court in Cooper v. Davidson, 172 Miss. 74, 81, 157 So. 418, 419 (1935). In the Cooper opinion, the court restricted the pleading requirements and held that "[t]he circumstances under which the words were used must appear [in the action for slander.]"

¶ 18. With this guidance in the interpretation of the Mississippi Rule of Civil Procedure 8 pleading requirements in mind, we turn to the case sub judice. We find that the appellants' complaint failed to comply with the relaxed, notice-pleading requirements of Mississippi Rule of Civil Procedure 8 in two ways. First, the complaint failed to specify which of the twelve plaintiffs was slandered by which of the two defendants. Second, the complaint failed to set forth the statements, paraphrased or verbatim, that constituted slander. Without setting forth any information in the complaint regarding the statements, to whom the statements were directed, by whom the statements were made, and how the statements were slanderous, the allegation that appellees made `slanderous statements' constitutes a bare legal conclusion with no support in the complaint. Had the complaint alleged that the entire radio broadcast occurring on May 27, 2003, was slanderous, then we would be facing a different situation. However, the appellants did not claim that the entire radio broadcast occurring on May 27, 2003, was slanderous. Rather, the appellees were only given notice that something either Bertholf or Bryant (or both) said on their morning radio show on the date of May 27, 2003, was allegedly slanderous toward one or all of the twelve complainants. Because the complaint did not contain any information as to the substance or effect of the statements with which the appellants allege they were slandered, Bertholf and Bryant were left with approximately two hours worth of radio air time to analyze and attempt to guess which parts of the radio show the appellants alleged slanderous in order to begin their defense.

¶ 19. Failure to provide any substance regarding the allegedly slanderous words in the complaint against the appellees was fatal to the appellant's claim. Even after the trial judge granted the appellants leave to amend their complaint to include more specificity regarding the allegedly slanderous words, the appellants refused to do so. We agree with the trial court that the appellant's complaint failed to state a claim for which relief could be granted, albeit under a different analysis. But, as a reviewing appellate court, we are most "interested in the result of the decision, and if it is correct we are not concerned with the route — straight path or detour — which the trial court took to get there." Kirksey v. Dye, 564 So.2d 1333, 1336-37 (Miss. 1990). For these reasons, the judgment of the circuit court dismissing the complaint pursuant to Rule 12(b)(6) is affirmed.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., IRVING, CHANDLER, ISHEE, and CARLTON, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J.; BARNES, J. JOINS IN PART. ROBERTS, J., NOT PARTICIPATING.