Freer v. M&I MARSHALL & ILSLEY CORP.

2004 WI App 201, 688 N.W.2d 756, 276 Wis. 2d 721, 21 I.E.R. Cas. (BNA) 1806, 2004 Wisc. App. LEXIS 749

• Court: Court of Appeals of Wisconsin
• Decided: September 21, 2004
• Docket: 03-3175
• Status: Published

Opinions

FINE, J.

¶ 1. Elizabeth Freer appeals from a summary judgment dismissing her complaint against M&I Marshall & Ilsley Corporation alleging that an employee of Marshall & Ilsley had slandered her. We affirm.

I.

¶ 2. According to her complaint, Freer worked for Marshall & Ilsley Bank from 1984 until 1995, when "by mutual agreement" her "employment with [Marshall & Ilsley] was terminated." Freer's complaint also asserts that she was hired as a "trust sales representative," and "[a]t the time of the termination [she] was employed as a vice president of sales."

¶ 3. Freer's complaint alleged that after she left Marshall & Ilsley, she became "an equity partner" in Capital Investment Services of America, Inc., "as an investment counsel," and, as such, "solicited business customers in southern California." The following is the nub of Freer's defamation claim as set out in her complaint:

That [Ruth A.] Sherman then identified herself as a resident of the Los Angeles, California area, who was interested in investing with [Freer] and her employer, Capit[a]l Investment Services of America, Inc., and was seeking some information and references regarding [Freer] from [Marshall & Ilsley].

Ruth A. Sherman asked Joanne Matchette what position had been held hy [Freer] at [Marshall & Ilsley], Matchette replied that [Freer] was employed as a sales person. When Sherman stated that she thought [Freer] was an investment manager, Matchette replied, "Oh no, Elizabeth had no such position. Elizabeth was never anything other than a sales person, although she did some marketing too." Matchette further informed Ruth A. Sherman "that Freer had never been a money manager, had never been an investment manager, nor was . Freer in any type of management position at M & I." Matchette then repeated to Ruth A. Sherman "that Freer never had held a management position." Ruth A. Sherman further asked Matchette if [Freer] had ever held a position at [Marshall & Ilsley] where she managed anyone's investment portfolio and Matchette replied "Oh, absolutely not."

¶ 4. Wisconsin Stat. Rule 802.03(6) requires that: "In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their publication and their application to the plaintiff may be stated generally." Thus, Freer's slander claim is limited to Matchette's alleged conversation with Sherman, and to the specific words she contends that Matchette used. Freer's complaint asserts that those words "defamed and slandered [Freer] in that the statements were false and not privileged and harmed [Freer]'s reputation so as to lower her in the estimation of Ruth A. Sherman who subsequently withdrew from associating and dealing with [Freer] and doing business with her." Freer's complaint alleges no other damage. Thus, as explained below, her claim against Marshall & Ilsley fails unless Matchette's words were slanderous per se. We hold that they are not.

II.

A. Wisconsin Stat. Rule 802.05.

¶ 5. Before we begin our analysis of the narrow ultimate legal issue presented by this appeal, namely whether Matchette's words were slanderous per se, we are disturbed that Freer's complaint asserts things that conflict with the summary-judgment evidentiary record: That Sherman was "[o]ne of those customers" within Freer's range of business solicitation; that Sherman "was interested in personally investing with [Freer]"; and that Sherman "withdrew from associating and dealing with [Freer] and doing business with her" as a consequence of what Matchette told her. According to the evidentiary record, however, Sherman was neither an investor nor potential investor with either Capital Investment Services or Freer. Rather, as Freer conceded in her deposition and in her brief before the trial court, Sherman was retained for $200 to test what response an inquiry to Marshall & Ilsley about Freer would turn up. Although Freer's briefs on appeal assert that Sherman was a bona fide potential investor with Freer, Freer points to nothing in the evidentiary record that supports her contention, and, of course, we are bound by the record as it comes to us. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992). Thus, for example, Sherman's affidavits merely aver that she told Matchette that she was seeking information about Freer in order to decide whether to do business with Freer, not that that was her actual intent in seeking Matchette's comments about Freer.¹

¶ 6. Wisconsin Stat. Rule 802.05(1)(a) provides, as material here:

Every pleading... of a party represented by an attorney shall contain the name ... of the attorney ... and shall be subscribed with the handwritten signature of at least one attorney of record... . The signature of an attorney.. . constitutes a certificate that the attorney ... has read the pleading...; that to the best of the attorney's... knowledge, information and belief, formed after reasonable inquiry, the pleading... is well-grounded in fact.

Rule 802.05(l)(a) also provides, as material here:

If the court determines that an attorney.. . failed to read or make the determinations required under this subsection before signing any . .. paper, the court may, upon motion, or upon its own initiative, impose an appropriate sanction on the person who signed the pleading... or on a represented party, or on both. The sanction may include an order to pay the other party the amount of reasonable expenses incurred by that party because of the filing of the pleading. .. including reasonable attorney fees.

We are not a fact-finding court. Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155, 159 n.3 (1980). Accordingly, we remand this matter to the trial court with directions that it hold a hearing to determine: (1) Sherman's true role in this case; (2) what and when Freer and her lawyer knew of Sherman's true role in this case; and (3) whether the statements in Freer's appellate briefs about Sherman are true, even though they are not supported by the summary-judgment evidentiary record. By virtue of our superintending authority over the circuit court, Wis. Stat. § 752.02 ("[t]he court of appeals has supervisory authority over all actions and proceedings in all courts except the supreme court"), we direct the trial court to report its findings to us, and, in connection with items 1 and 2, and, depending on its findings, to impose under Rule 802.05(l)(a) any sanction that in the exercise of its reasoned discretion it believes is appropriate. We retain jurisdiction over this appeal, pending receipt of the trial court's report.

B. Slander per se.

¶ 7. As noted, this case comes to us from the trial court's grant of summary judgment to Marshall & Ilsley dismissing Freer's complaint. Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-317, 401 (1987). In order to survive summary judgment, the party with the burden of proof on an element in the case must establish that there is at least a genuine issue of fact on that element by submitting evidentiary material "set[ting] forth specific facts," Wis. Stat. Rule 802.08(3), pertinent to that element, Transportation Ins. Co. v. Hunzinger Constr. Co., 179 Wis. 2d 281, 290-292, 507 N.W.2d 136, 139-140 (Ct. App. 1993).

¶ 8. A person who claims that his or her reputation has been unlawfully damaged by something someone else has said must first establish that the words are not true and are capable of a defamatory meaning. See Martin v. Outboard Marine Corp., 15 Wis. 2d 452, 461, 113 N.W.2d 135, 140 (1962). Whether words are capable of a defamatory meaning is an issue of law for the court. Ibid. Although Marshall & Ilsley contends that what Matchette told Sherman is not defamatory, we need not reach that issue or other defenses asserted by Marshall & Ilsley because assuming without deciding that Matchette's words to Sherman as quoted in the complaint are both false and capable of a defamatory meaning, Freer has neither pled nor submitted any evidentiary material showing that she sustained any damage as a result of what Matchette is alleged to have told Sherman, and, as we show below, Matchette's words are not slanderous per se. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issues need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

¶ 9. Slander, of course, is distinguished from libel because, unlike libel, where the defamation is written, slander is oral. Bauer v. Murphy, 191 Wis. 2d 517, 524, 530 N.W.2d 1, 3 (Ct. App. 1995). Slander is not actionable unless: (1) the plaintiff either both pleads and proves "special damages," or (2) the slander is "actionable per se." Martin, 15 Wis. 2d at 459, 113 N.W.2d at 138-139. We address these two matters in turn.

1. Special damages.

¶ 10. Freer has not demonstrated in her summary judgment submissions that she sustained any damage as a result of what Matchette said to Sherman, and has not submitted any sworn statement, by affidavit or deposition, from any other person to whom employees of Marshall & Ilsley said bad things about her. Freer has attempted, however, to show special damages by submitting an elaborate "Lost Income Computation" prepared by a certified public accountant and business appraiser Freer hired. (Uppercasing omitted.) That analysis, however, is based on what the accountant says he was told by Larry Crober, who allegedly sought to steer business to Freer by virtue of his position with a California bank. This does not suffice. First, what Crober may have told the accountant is hearsay and not "evidentiary facts as would be admissible in evidence," which is required of summary judgment submissions. See Wis. Stat. Rule 802.08(3). Second, the only alleged defamatory statements set out in Freer's complaint, as required by Wis. Stat. Rule 802.03(6), are those Freer claims were made by Matchette to Sherman, and thus Freer needed to show pecuniary loss resulting from those statements. This she has not done. Indeed, in his deposition, Freer's accountant admitted that the period covered by his analysis predated Matchette's alleged statements to Sherman.

2. Actionable per se.

¶ 11. As noted, there is a type of slander that is "actionable without proof of damages" because damages are "presumed from the character of the defamatory language." Martin, 15 Wis. 2d at 459, 113 N.W.2d at 139. Such slander, slander per se, is limited to the following four narrow circumstances:

• "imputation of certain crimes" to the plaintiff; or

• "imputation ... of a loathsome disease" to the plaintiff; or

• "imputation ... of unchastity to a woman" plaintiff; or

• defamation "affecting the plaintiff in his business, trade, profession, or office."

Ibid. Whether, as the Concurrence/Dissent opines, these categories "make sense" in this era, Concurrence/Dissent at ¶ 17, they are universal in our jurisprudence. See Restatement (Second) of Torts § 570 (1977).² It is into the last category, defamation "affecting the plaintiff in his business, trade, profession, or office," that Freer seeks to squeeze what Matchette told Sherman. She fails because there is nothing inherently defamatory about Matchette's statements.

¶ 12. It is settled in Wisconsin that words are not slanderous per se if anything other than the words are needed to make them defamatory. Bauer, 191 Wis. 2d at 530, 530 N.W.2d at 6; Kassowitz v. Sentinel Co., 226 Wis. 468, 472, 476, 277 N.W. 177, 179, 180-181 (1938) (The defamation must be "apparent from the words themselves"; " '[w]ords which are defamatory per se do not need an innuendo, and, conversely, words which do need an innuendo are not defamatory per se.'") (quoted source omitted), criticized on other grounds, Martin, 15 Wis. 2d at 460-461, 113 N.W.2d at 139; see Bauer, 191 Wis. 2d at 530-531 n.12, 530 N.W.2d at 6 n.12 (recognizing continued vitality of Kassowitz on what is slander per se). This is the law elsewhere as well. See Holsapple v. Smith, 599 S.E.2d 28, 33 (Ga. Ct. App. 2004) (" 'To determine whether a declaration constitutes slander per se, the court looks to 'the plain import of the words spoken' and will not enlarge their meaning by innuendo.'") (quoted source omitted) (charging that plaintiff "screwed a client" and " 'intentionally messed things up in Florida'" both "could possibly be considered a charge 'against another in reference to his trade, office, or profession, calculated to injure him therein.'"); Cook v. Winfrey, 141 F.3d 322, 329-330 (7th Cir. 1998) (" 'Slander per se means that the slander is accomplished by the very words spoken.'") (quoted source omitted) (calling someone a "liar" passes motion-to-dismiss muster because it was error, at that stage of the lawsuit, to conclude that the charge "could not have been of a type that would 'tend to injure [plaintiff] in his trade or occupation.'") (applying Ohio law). This is an inquiry limited to the words themselves without reference to history or gloss. Indeed, one of the core non-Wisconsin decisions upon which the Concurrence/Dissent relies, Anderson v. Vanden Dorpel, 667 N.E.2d 1296 (Ill. 1996), makes this clear. In Anderson, a fund-raiser seeking a job complained that her prior employer disparaged her by telling a potential employer that she " 'did not follow up on assignments' and that 'she could not get along with her coworkers.'" Id., 667 N.E.2d at 1298. Anderson declined to look beyond the words used, and held that they were not defamatory per se because those words could have been non-defamatory in reference to others. Id., 667 N.E.2d at 1301-1302. Similarly, the other core non-Wisconsin decision upon which the Concurrence/Dissent relies, Shaw Cleaners & Dyers, Inc. v. Des Moines Dress Club, 245 N.W. 231 (Iowa 1932), also recognized that "it is quite clear that, in determining the question as to whether the allegations of the petition are libelous per se, we must consider only the unambiguous language of the published advertisement hereinbefore quoted, regardless of any pleaded innuendo." Id., 245 N.W. at 234.

¶ 13. The following statements, allegedly made by Matchette to Sherman, are not slanderous per se because they need context outside of the words themselves to be perceived as defamatory: that Freer was "never an investment manager"; that Freer "was never anything other than a sales person, although she did some marketing too"; that Freer "had never been a money manager, had never been an investment manager"; and that Freer was never "in any type of management position at M & I." See Kassowitz, 226 Wis. at 471-477, 277 N.W. at 178-181 (charging that someone had an " 'arrested case of tuberculosis'" did not impute a "loathsome and a contagious" disease to that person because matters outside the words themselves are needed to convey the meaning that the charge "is understood by the general public and by the readers of the defendant's papers to mean an individual who is still tubercular and subject to the same hazards of relapse and spread of disease as is common in cases of clinical and manifest tuberculosis"); see also Restatement (Second) of Torts § 573 cmt. c, illus. 1-6 (Calling a bricklayer a "hypocrite," saying a clerk "consorts with prostitutes," and calling a university professor a "drunk," all require proof of special damages to be actionable; saying that a lawyer "is ignorant and unqualified to practice law," saying that a merchant is "insolvent," and calling a merchant "insane," are all actionable without proof of special damages.). Simply put, many business people undoubtedly fall within the ambit of employment encompassed by Matchette's alleged statements to Sherman about Freer and lead proud and productive lives. See Anderson, 667 N.E.2d at 1301-1302 (words that could be non-defamatory if ápplied to others are not defamatory per se).3

¶ 14. Freer has not satisfied her summary-judgment burden to show special damages she suffered as a result of what Matchette may have told Sherman, and, additionally, Matchette's alleged statements to Sherman were not slanderous per se. Accordingly, the trial court did not err in dismissing Freer's complaint against Marshall & Ilsley.

By the Court. — Judgment affirmed and cause remanded with directions.

1 Although Freer filed an affidavit with the trial court in July of 2003 that seems to contradict her affirmation in her April 2003 deposition that her prior lawyers had hired Sherman "to do what [the prior lawyer] called a test reference check with M&I regarding" Freer, that affidavit, which avers that "a customer named Ruth A. Sherman was interested in personally investing with" Freer, is not only hearsay as to what Sherman's intentions were and thus is not part of the summary-judgment evidentiary record, see Wis. Stat. Rule 802.08(3) ("[supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence"), but, also, cannot contradict Freer's earlier deposition testimony, see Yahnke v. Carson, 2000 WI 74, ¶ 21, 236 Wis. 2d 257, 270, 613 N.W.2d 102, 108-109.

2 The Restatement (Seoond) of Torts § 570 (1977), recognizes:

One who publishes matter defamatory to another in such a manner as to make the publication a slander is subject to liability to the other although no special harm results if the publication imputes to the other

(a) a criminal offense, as stated in § 571, or

(b) a loathsome disease, as stated in § 572, or

(c) matter incompatible with his business, trade, profession, or office, as stated in § 573, or

(d) serious sexual misconduct, as stated in § 574.

3 We respectfully disagree with the Concurrence/Dissent's reading of both Kassowitz v. Sentinel Co., 226 Wis. 468, 277 N.W. 177 (1938), and Bauer v. Murphy, 191 Wis. 2d 517, 530 N.W.2d 1 (Ct. App. 1995). First, Bauer adhered to Kassowitz's recognition that "[w]ords which are defamatory per se do not need an innuendo, and, conversely, words which do need an innuendo are not defamatory per se." Bauer, 191 Wis. 2d at 530, 530 N.W.2d at 6 (quoting Kassowitz, 226 Wis. at 476, 277 N.W. at 180) (footnote and internal quotation marks omitted). Thus, Bauer held that calling a female former member of the university basketball team a "disgrace" was not slander per se "in the context in which the remark was made" even though the discussion that preceded the "disgrace" charge implicated her in an "inappropriate relationship" with an assistant coach who was suspended as a result of that alleged relationship. Bauer, 191 Wis. 2d at 520-521, 532, 530 N.W.2d at 2, 6. If the context of that discussion was material, there were, as Bauer noted, arguably other things to which the "disgrace" remark might have referred, including insubordination, id., 191 Wis. 2d at 522 n.1, 530 N.W.2d at 2 n.1, and a dispute whether the "disgrace" remark referred to those other matters or, as the plaintiff argued, the "inappropriate relationship" discussion, would have required a trial, id., 191 Wis. 2d at 523 n.2, 530 N.W.2d at 3 n.2. Accordingly, the "context" discussed by Bauer in the part quoted hy the Concurrence/Dissent is clearly limited to the word "disgrace" only and did not encompass the roiling finger-pointing session that preceded use of that word. Stated another way, given the no-extraneous-information rule recognized by both Kassowitz and Bauer, and Bauer's failure to remand for trial to ascertain to what the "disgrace" comment referred, Bauer would not have concluded that the "disgrace" comment was slander per se even if the preceding discussion only concerned the plaintiffs alleged "inappropriate relationship" with the assistant coach. Second, contrary to the Concurrence/ Dissent, Kassowitz did not opine that a person with tuberculosis would not be shunned, but, rather, held that saying that someone had an "arrested case" of the disease did not, focusing on the words only, charge that the person either was currently afflicted with a loathsome disease or had engaged in any immoral conduct. Kassowitz, 226 Wis. at 475, 277 N.W. at 180.