Stewart v. Fahey , 14 Ariz. App. 149 ( 1971 )

JACOBSON, Presiding Judge.

We are asked in this appeal to determine whether a claim for slander of title may be based upon the filing of a lis pendens.

On February 9, 1959, plaintiff-appellant, Henry T. Stewart, acquired by patent from the United States government, title to a certain parcel of real estate. Approximately two weeks later, defendant-appellee, William G. Fahey, on February 21, 1959, filed a quiet title action against Stewart, disputing his right to obtain title to the property involved in the U. S. patent wholly in himself. At the time of filing the quiet title action, Fahey also caused a lis pendens to be filed affecting the real property involved. This original litigation terminated in Stewart’s favor some five years later on May 27, 1964.

On the basis of the successful termination of the prior litigation in his favor, Stewart on November 2, 1964, filed a complaint against Fahey alleging two claims.

The first alleged “slander of title,” based upon Fahey’s willful, false and malicious filing of a lis pendens against Stewart’s title interest, thereby making it impossible for him to sell or dispose of the land, and resulting in $65,000.00 damages, and the second alleged a claim in defamation arising out of the broad publication of the notice of lis pendens.

After filing an answer, Fahey moved for summary judgment on the basis that Stewart’s claims for relief were barred by the one-year statute of limitations (A.R.S. § 12-541) and that the filing of a lis pen-dens was an absolutely privileged act which would not give rise to a cause of action in either “slander of title” or defamation.

The trial court granted Fahey’s motion for summary judgment and this appeal followed.

While it is clear that “slander of title” is not a true defamation action, being historically an action on the case for special damages arising from a falsehood, (see, “Injurious Falsehood: the Basis of Liability,” W. Prosser, 59 Colum.L.Rev. 424 (1959)), it is equally clear that the privilege defenses available in an action for personal defamation are also available in an action for “slander of title.” See Restatement of Torts § 585 et seq., § 635 et seq. (1938).

At common law, parties to judicial proceedings were granted an absolute privilege to use defamatory language because of the overriding public interest that persons should speak freely and fearlessly in litigation, “uninfluenced by the possibility of being brought to account in an action for defamation.” Laun v. Union Electric Co., 350 Mo. 572, 166 S.W.2d 1065 (1942). As the rule is stated in Restatement of Torts § 587 (1938):

“A party to a private litigation * * * is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of a judicial proceeding in which he participates, if the matter has some relation thereto.”

Thus, it is apparent that Fahey, in bringing his action for quiet title against Stewart, was absolutely immune from any action for defamation which Stewart might bring against him arising out of language spoken in the quiet title action, since the language did have some relation to the claim stated. Does it then follow that there is also immunity from an action in slander of title where the claimed slander is based upon a lis pendens recorded in connection with the same quiet title action? We believe it does.

The purpose of a lis pendens was early stated in Arizona by the case of Brandt v. Scribner, 13 Ariz. 169, 108 P. 491 (1910) :

“The statute is obviously intended to make the recording of the lis pendens constructive notice of all that is claimed in the action regardless of whether such claims are sufficiently plead, in so far as their nature and extent are disclosed by the pleadings * *

It is apparent then, that the recording of a lis pendens is, in essence, a statutorily authorized republication of pleadings in a judicial proceeding. If such pleadings are absolutely privileged, logically the statutorily authorized republication of such pleadings should likewise be privileged. This logical extension was upheld in the case of Albertson v. Raboff, 46 Cal.2d 375, 295 P.2d 405 (1956):

“[T]he recordation of a notice of lis pendens is in effect a republication of the pleadings. The disparagement of title arises, therefore, from the recordation of the notice of lis pendens as well as from the pleadings. The publication of the pleadings is unquestionably clothed with absolute privilege, and we have concluded that the republication thereof by recording a notice of lis pendens is similarly privileged.”

Since the recording of a lis pen-dens is specifically authorized by statute in the State of Arizona and has no existence separate and apart from the litigation of which it gives notice, we hold that the filing of a notice of lis pendens in this action was a part of a “judicial proceeding.” Therefore the filing of the lis pen-dens was absolutely privileged and will not sustain an action for slander of title. Albertson v. Raboff, supra; Beuttenmuller v. Vess Bottling Co., 447 S.W.2d 519 (Mo.1969). Obviously, what we have stated here concerning Stewart’s claim for slander of title is equally applicable to his claim for defamation.

We do not intend to intimate that anything we have said herein would necessarily insulate a person who maliciously institutes a wrongful judicial proceeding from all liability for his malicious acts. See Comment (a), Restatement of Torts § 587 (1938).

Since the trial court’s action in granting the motion for summary judgment can be sustained on one ground we need not discuss the statute of limitations defense also raised by Fahey.

Judgment affirmed.

HAIRE, J., concur.