Six issues are presented by this appeal:  Did the trial court correctly exclude from consideration the plaintiffs' (nonmovants') notice of filing exhibits as a sanction for their noncompliance with summary judgment procedure?  Did the plaintiffs timely raise the issue whether summary judgment was premature?  Did the plaintiffs show any material fact issue?  Did the trial court err in ruling out all of the plaintiffs' theories of liability fairly comprised within the evidentiary materials before it?  Is summary judgment for the defendants inconsistent with the teachings of Guinn v. Church of Christ of Collinsville?
THE ANATOMY OF LITIGATION
The plaintiffs, Jeanne A. Hadnot and Suzette Renee Ellis [parishioners], are sisters and were formerly members of the Church of Jesus Christ of Latter-day Saints [Church] in Chickasha, Oklahoma. The defendants are the Church, R.T. Shaw (lay leader of the local congregation), Dennis J. Joiner and Charles Warden (counselors who assisted Shaw).
Parishioners were each notified of and asked to be present at a Church disciplinary hearing called to determine their membership status. Neither attended. Following the hearing both parishioners received letters from the Church. The letter addressed to parishioner Hadnot was placed in her mailbox. This letter, which was opened and read by her husband, informed parishioner that the Church court determined her membership should be terminated because of her alleged fornication.
On December 23, 1986 the parishioners initiated the present action against the Church and its lay leaders. We conclude from the rather imprecise wording of the pleadings and the briefs that parishioners
The Church and lay leaders moved for summary judgment, appending copies of correspondence and excerpts of depositions. Parishioners responded to the motion without tendering any evidentiary material. Their response brief merely referenced those paragraphs in the Church's statement of uncontroverted facts which they deemed to be disputed. On March 8, 1989 the district court reached the motion for argument. The next day parishioners filed a notice of filing exhibits, listing fifteen depositions without any attachments or references to page, line or portion. On March 10 the district court gave summary judgment to the defendants.
In the course of litigation parishioners sought discovery of certain information about Church procedures and communications by the lay leaders and Church members which occurred during the Church disciplinary process. The district court denied parishioners' discovery quest on the ground that by force of the First Amendment the information sought was privileged from secular judicial inquest. By mandamus brought in this court parishioners then unsuccessfully sought to compel the trial judge to grant discovery.
Parishioners' appeal is from summary judgment. Their petition in error lists several claims to reversible error which were not argued in the brief. Among them is the trial judge's refusal to disqualify.
FAILURE TO COMPLY WITH DISTRICT COURT RULES MAY RESULT IN APPROPRIATE SANCTIONS
The record in this case is silent, and hence leaves us in doubt, as to what, if any, depositions and exhibits or other materials were deemed timely filed by parishioners and were properly before the trial court for consideration in the decisional process that led to summary judgment. An appellate court cannot on review take notice of any material that was not properly before the trial court.
As an aid in deciding whether any of the items filed by parishioners on March 9 were considered by the trial court in the summary judgment process, we appointed the trial judge to sit as this court's special master and to clarify the record nunc pro tunc, upon adversary hearing with due notice to all parties.
We affirm the district court's refusal to consider the March 9 notice and the depositions referenced therein as a reasonable litigation sanction for parishioners' patent noncompliance with Rule 13. Without a reasonable enforcement of that rule, an impossible burden would be cast on the judicial officers presiding over summary judgment process. They would be expected to go over reams of disjointed and disarranged materials, much of them without shown relevancy to the issues at hand.
Parishioners have filed here an amended designation of record in their attempt to incorporate into the appellate record two other depositions that were not considered by the trial judge as part of the nisi prius summary judgment record. After
As none of the depositions listed in parishioners' March 9 notice or in their amended designation of record was properly before the trial court, none of this evidentiary material may be reviewed on their appeal.
TIMELINESS OF PARISHIONERS' CONTENTION THAT SUMMARY JUDGMENT WAS PREMATURELY RENDERED
Shortly after the Church had moved for summary judgment, this court handed down its opinion in Guinn.
Parishioners contend the trial court's ruling was premature. At the outset, they argue that a reply brief is not sanctioned by Rule 13,
Parishioners' contention is based on an issue not presented to the trial court and is hence not reviewable here. Parties will not be permitted to argue in this court for the first time issues not tendered below.
Even if the trial court was in error because the Church's reply brief did address new arguments, the court's action did not prejudice the parishioners.
PARISHIONERS HAVE NOT SHOWN ANY MATERIAL FACT ISSUE
Parishioners assert there is a substantial controversy about whether the lay leaders communicated the letters' contents outside the Church.
Parishioners' failure to put on evidentiary materials of their own does not necessarily preclude them from demonstrating that an actual controversy exists as to some material fact issue in the case. The party against whom the motion for summary judgment is directed can show through the movant's own evidentiary materials the existence of controverted fact
Assuming that Joiner's statement to Sharp establishes a fact issue as to whether the lay leader communicated the letters' contents outside the Church, we find that it is not a material fact precluding summary judgment. It is insufficient to establish an essential element under any of the three theories of recovery parishioners have pressed against the Church and its lay leaders. As to their defamation theory,
Parishioners also assert there is a genuine fact issue about whether the written notice given them about the Church proceedings was reasonable and proper.
The Church court had proper ecclesiastical cognizance when the letters were delivered. The parishioners had not withdrawn their membership at the time they received notice of their expulsion. Under the First Amendment, the procedural norms which govern the exercise of ecclesiastical cognizance are not subject to a secular court's scrutiny.
We hence conclude the Church has met its burden of showing the absence of any factual dispute as to material issues.
IN GIVING SUMMARY JUDGMENT THE TRIAL COURT MUST RULE OUT ALL THEORIES OF LIABILITY FAIRLY COMPRISED WITHIN THE EVIDENTIARY MATERIALS
Parishioners assert the trial court erred in disposing of all their "claims" since the motion for summary judgment addressed only their libel and slander bases of recovery. Under these circumstances summary judgment was inappropriate, parishioners urge, with respect to their invasion of privacy and intentional infliction of emotional
It appears from this record that Parishioners have alleged but two delictual causes of action — (1) one for harm from wilful or grossly negligent delivery of the expulsion letters to parishioners and (2) the other for harm from communicating the letters' contents to the public. Only a single cause of action can be predicated on the same set of facts,
As we assess this record, the trial court considered the libel as well as slander theories that were asserted at the summary judgment argument in support of both causes of action. When rendering summary judgment on Parishioners' claims the trial court was not only authorized but required to rule out all theories of liability fairly comprised within the evidentiary materials before him.
THE TRIAL COURT CORRECTLY APPLIED GUINN
In Guinn this court recognized a jurisdictional boundary limiting the powers of the ecclesiastical judicature. The church's jurisdiction exists as a result of the mutual agreement between that body and its member.
That relationship may be severed freely by a member's positive act at any time.
The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation
Parishioners admit that at no time during or after the proceedings at issue did they withdraw their Church membership. Thus the Church retained full subject matter
It is undisputed that in this case the parishioners never withdrew their membership from the Church. Thus in contemplation of law their consent to the Church's disciplinary action stood unaffected. They are hence unable to complain about lack of jurisdiction over the disciplinary actions taken in the ecclesiastical expulsion process.
CHURCH ACTIONS OR PROCEEDINGS WHICH OCCUR AFTER TERMINATION OF THE ECCLESIASTICAL COURT'S VALID JURISDICTION ARE NO LONGER PROTECTED BY AN ABSOLUTE PRIVILEGE
While the Constitution protects the jurisdiction of an ecclesiastical tribunal by its Free Exercise Clause's shield, it also serves to protect the rights of an individual to worship or not to worship according to one's conscience. Sovereign only within her own domain, the church has no power over those who live outside of the spiritual community. The church may not be forced to tolerate as a member one whom it feels obliged to expel from its flock. On the other hand, no citizen of the state may be compelled to remain in a church which his conscience impels him to leave.
The Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking — its merits as well as procedure.
At the point when the church-member relationship is severed through an affirmative act either of a parishioner's withdrawal or of excommunication by the ecclesiastical body, a different situation arises. In the event of withdrawal or of post-excommunication activity unrelated to the church's efforts at effectuation of valid judicature, the absolute privilege from tort liability no longer attaches. Any action at this point, if it is to be protected, must be justified by others means. Under these circumstances conditional privileges may be applicable.
PARISHIONERS' DISCOVERY QUEST
Initially parishioners sought discovery by interrogatories and requests for production of writings, Church records and reports pertaining to their expulsion. They moved to compel defendants to produce these documents and to answer interrogatories. The district court agreed with the Church that the information sought was absolutely privileged by the First Amendment. Discovery quest was denied. Parishioners then unsuccessfully sought, by mandamus brought in this court, to compel the trial judge to grant discovery.
The record does not show whether the district court correctly applied the teachings in this opinion on the First Amendment limitation on discovery. Church judicature exercised within proper bounds of cognizance is not discoverable. Conversely, any activity outside of valid church judicature is not absolutely privileged and may be discoverable. We cannot say that this is always so, but only that the absolute privilege afforded by the First Amendment does not reach beyond the outer bounds of proper ecclesiastical jurisdiction.
Parishioners' first unsuccessful discovery efforts occurred before Guinn's promulgation. Shortly after Guinn was handed down, they attempted to incorporate its governing norms in a supplemental brief in support of their January 9 motion to compel discovery. Their request was never ruled on. Because of the intervening promulgation of Guinn, fairness requires that a limited "window of opportunity" be kept open today for parishioners' discovery of actionable post-expulsion facts or conduct
On this record, we are unable to ascertain whether parishioners did seek discovery of post-expulsion communications or conduct that lie dehors the outer bounds of valid ecclesiastical judicature. If so, then the trial court, after hearing arguments on remand, must reconsider the motion. We hence remand today solely to allow for testing of undiscovered post-expulsion conduct's action ability. If parishioners can show good cause for discovery of post-expulsion communications or conduct unrelated to the Church's efforts at effectuating its valid judicature, they should be allowed to proceed further.
The trial court's summary judgment, treated here as its partial summary adjudication (holding that evidentiary materials of record disclose no pre-expulsion or expulsion-related conduct to be actionable) is affirmed; the cause is remanded for further proceedings not inconsistent with this pronouncement.
LAVENDER, DOOLIN, HARGRAVE and SUMMERS, JJ., concur.
HODGES, V.C.J., concurs in Parts I through VI and dissents from Parts VII and VIII.
SIMMS, J., concurs in Parts I through VI, concurs by reason of stare decisis in Part VII and dissents from Part VIII.
ALMA WILSON, J., dissents.
KAUGER, J., concurs in result.
The quoted portions were not changed by subsequent amendments to the statute (Okl.Sess.L. 1990, Ch. 251 § 13; Okl.Sess.L. 1991, Ch. 251 § 16).
In the absence of a showing that substantial prejudice has resulted from the action of the court and of its rulings, the reviewing court will ordinarily not interfere. Reynolds v. Reynolds, 192 Okl. 564, 137 P.2d 914, 917 (1943). A judgment will be affirmed where it does not appear that the error probably resulted in a substantial violation of a right. Oklahoma City Land & Development Co. v. Adams Engineering & Blue-printing Co., 51 Okl. 763, 155 P. 496 (syllabus 2) (1915).
Mr. Johnston: That's correct, Your Honor." See in this connection Hulsey v. Mid-America, supra note 10 at 936. Hulsey holds that admissions during summary judgment argument may be considered as evidentiary material in reviewing summary judgment process.
"A: Dennis Joiner came over to my trailer one (1) time, it was — I had borrowed a jack from him sometime prior and I neglectfully forgot to return it or hadn't got around to returning it and he come over there to get it.
Q: First of all, before we go further with that conversation, when was that?
A: As near as I can recollect, it was in September or October or November, somewhere along in there, in '86.
Q: So you mentioned the Dupire girls?
A: Yeah. And I asked him why he was going after those in particular, and he said that it was for fornication. Let's see, wait a minute, let me — I mentioned something about some of the procedures that R.T. had went through with it and he said R.T. had done everything right by the book."
It is the trial court's responsibility initially to determine whether the defendant's conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the § 46 standards. Breeden, supra at 1377. Only when it is found that reasonable men would differ in an assessment of this critical issue may the tort-of-outrage claim be submitted to a jury.
The definition of "publicity" in RESTATEMENT (SECOND) OF TORTS, § 652D, comment a, supra note 31, and its application to a simple disclosure also governs invasions of privacy in which the person is placed in a false light, see § 652E, comment a.