CONNIE MARSHALL v. LOUISE WELCH
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RENDERED:
AUGUST 20, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001175-MR
CONNIE MARSHALL
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 03-CI-001813
v.
LOUISE WELCH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND TACKETT, JUDGES.
COMBS, CHIEF JUDGE:
Connie Marshall (“Marshall”) appeals from
an order of the Jefferson Circuit Court dismissing her complaint
for harassment and defamation against Louise Welch (“Welch”).
After our review of the record and the applicable law, we find
no error in the decision of the trial court.
Thus, we affirm.
On February 28, 2003, Marshall filed a complaint
alleging that Welch had harassed and defamed her in the
Jefferson Family Court on March 5, 2002.
At the time, Welch, an
attorney, was serving as one of the three court-appointed
guardians of Marshall’s former grandchildren.
The mother’s
parental rights had been terminated, and Marshall had not
preserved her visitation privileges according to KRS1 405.021(1).
However, Marshall had made a motion for visitation, which was
the subject of the hearing of March 5, 2002, at which Welch was
called to testify concerning Marshall’s motion.
Marshall had been awarded permanent custody of her
grandchildren in 1999, but she had voluntarily returned them to
the custody of the Cabinet for Families and Children.
Welch
accordingly believed that visitation by Marshall was not
warranted.
Noting that Marshall had no legal standing as a
result of the termination of parental rights of the mother, the
court dismissed her motion.
It was during the hearing at which that motion was
argued that the cause of action for defamation against Welch
allegedly arose.
Welch impugned Marshall’s credibility during
the hearing, referring in open court to her conduct as
“bizarre.”
defamation.
Consequently, Marshall filed her complaint for
She argued that she was willfully and intentionally
defamed and harassed by Welch’s comment that she was “bizarre.”
Marshall contends that her reputation was injured and that she
was exposed to public hatred, contempt, ridicule, or degradation
1
Kentucky Revised Statutes.
-2-
as a result.
Marshall also contends that Welch’s statements
adversely affected her as to the court order entered on March 9,
2002.
On March 12, 2003, Welch filed a motion to dismiss the
complaint for failure to state a claim upon which relief could
be granted pursuant to CR2 12.02.
filed her written response.
On March 24, 2003, Marshall
Following a hearing, the trial
court entered an order on May 7, 2003, granting Welch’s motion
to dismiss with prejudice.
On May 14, 2003, Marshall filed a notice motion for
reconsideration, which the court denied on June 5, 2003.
That
same day, Marshall filed a notice of appeal, pro se, from the
order dismissing of May 7, 2003.
She filed an amended notice of
appeal four days later.
A CR 12.02 motion for dismissal for failure to state a
claim “should only be granted if it appears that the pleading
party could not prove any facts in support of his claim that
would entitle him to relief.”
Pari-Mutuel Clerks’ Union of
Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, Ky.,
551 S.W.2d 801, 803 (1977).
We agree that Marshall could not
have succeeded under any reasonable interpretation of the facts
in support of her claim and that, therefore, the trial court
properly dismissed Marshall’s complaint pursuant to CR 12.02.
2
Kentucky Rules of Civil Procedure.
-3-
Marshall emphasizes that Welch’s statements were
intentionally and willfully defamatory due to the fact that
Welch was an attorney, a status which Marshall contended should
have made Welch fully “aware of the damage she was doing by
making the statement that she made in a conference room just
before a meeting was about to start.”
Appellant’s brief at 2.
As a result of Welch’s derogatory statements, Marshall contends
that her public reputation was injured and that the court order
of March 9, 2002, was tainted.
We disagree.
First, the adjective bizarre is not inherently
defamatory or slanderous.
Marshall alleges that bizarre is
synonymous with weird, freaky, odd in manner, grotesque.
However, Webster’s dictionary3 offers numerous definitions for
bizarre, none of which is necessarily slanderous and none of
which includes “freaky” or “grotesque” among the listed
synonyms.
The definitions listed include: “gallant, brave,
liberal, odd, extravagant, eccentric in style or mode,
fantastic, and strikingly out of the ordinary.”
Under Kentucky
law, words must be analyzed by the “natural meaning and in the
sense in which they would be understood by those to whom
addressed.”
2003).
Gahafer v. Ford Motor Co., 328 F.3d 859 (6th Cir.
We do not agree that the natural meaning of bizarre must
3
Webster’s New International Dictionary of the English Language,
G. & C. Merriam Co., (2d ed. 1955).
-4-
necessarily be characterized as slanderous, defamatory, or
harassing.
Second, Marshall contends that her public reputation
was injured.
However, even if the language complained of were
deemed injurious, we note that it was uttered in the context of
the confidentiality surrounding a juvenile hearing.
Marshall
herself was the only person who has publicized the private
contents of the hearing, which was closed to the public by its
very nature.
Additionally, statements made during the course of
judicial proceedings are absolutely privileged from actions of
libel or slander.
1969).
Hayes v. Rogers, Ky, 447 S.W.2d 597 (Ky.
Welch, who was acting as a court appointed guardian ad
litem, had a duty to act in the best interests of her clients
and was performing exclusively in that capacity in the course of
the judicial proceeding.
Marshall argues that Welch did not enjoy immunity
because she was not involved in the case.
Although Jason
Segeleon was the children’s usual court-appointed guardian ad
litem, Ms. Welch had also served as the children’s guardian.
Segeleon testified that Welch substituted for him on March 5,
2002, the date of the conference.
The court had consulted Welch
to ask her opinion of the motion because of her previous
experience as guardian for the children.
Welch was, therefore,
acting in the capacity of an officer of the court.
-5-
We conclude that the trial court properly dismissed
the case for failure to state a claim upon which relief could be
granted.
Therefore, we affirm the order of the Jefferson
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Connie Marshall, pro se
Louisville, Kentucky
C. Fred Partin
Louisville, Kentucky
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