Dube v. Likins – 6/28/2007

July 6, 2007

Arizona Court of Appeals Division Two Holds That Communications Between Two Agents of the Same Principal Constitute Publications, Subject to Qualified Privilege, for Purposes of Defamation Claim.

Plaintiff sued his former university faculty advisor for allegedly interfering tortiously with Plaintiff’s efforts to obtain a Ph.D. and subsequent employment. He later amended the complaint to add claims of defamation and tortious interference with a business expectancy against university officials. The officials moved to dismiss on the ground that the new claims failed as a matter of law, and were also time-barred. The trial court granted the motion to dismiss and entered judgment in favor of the officials. Plaintiff appealed.

The Court of Appeals held that questions of fact regarding when Plaintiff should have known the basis for his claim precluded dismissal on statute-of-limitations grounds of some of the tortious interference claims. The claims failed, however, as a matter of law because (1) Plaintiff did not allege that the officials acted pursuant to a “common design” or “substantially aided” the alleged tortious interference, so as to state a claim under Plaintiff’s aiding and abetting theory, and (2) Plaintiff failed to allege a valid business expectancy with any specific employer. The trial court did not err by refusing to allow Plaintiff to amend his complaint prior to dismissal because the proposed amendment would not have cured the complaint’s defects.

Regarding the defamation claim, the Court of Appeals held that the claim was timely under the facts as alleged in the complaint. On an issue of first impression in Arizona, the Court held that a communication may be a publication for purposes of a defamation claim even though the communication is only between two agents of the same principal. Questions of fact precluded judgment on the pleadings regarding whether the communications at issue were privileged. The Court ruled as a matter of law that certain alleged statements were not capable of defamatory meaning; other alleged statements, however, were, and the issue of whether they actually conveyed defamatory meaning presented a question of fact precluding dismissal of those claims. See Yetman v. English, 168 Ariz. 71, 79 (1991).

The Court affirmed the dismissal of the claims of tortious interference with a business expectancy and remanded for consideration of the remaining defamation claims.

Judge Howard authored the opinion; Judges Pelander and Vásquez concurred.