HADNOT v. SHAW

OPALA, Chief Justice.

Six issues are presented by this appeal: [1] 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? [2] Did the plaintiffs timely raise the issue whether summary judgment was premature? [3] Did the plaintiffs show any material fact issue? [4] Did the trial court err in ruling out all of the plaintiffs' theories of liability fairly comprised within the evidentiary materials before it? [5] Is summary judgment for the defendants inconsistent with the teachings of Guinn v. Church of Christ of Collinsville?1 and [6] Did the Church's First Amendment2 protection bar the plaintiffs' quest for discovery? We answer the first issue in the affirmative and the second through fifth in the negative. As to the final issue, because the trial court failed to rule on the plaintiffs' final discovery quest, we are unable to determine whether they sought discovery of post-expulsion3 conduct not protected by the shield of the First Amendment — i.e., post-expulsion conduct that may be unrelated to implementation of the excommunication sanction.

I

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.4 This communication, typed by the clerk of the local congregation, was signed by a lay leader. Parishioner Ellis was personally handed a letter also signed by a lay leader, which informed her of the Church court's decision to remove her from membership.

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 have alleged two delictual causes of action, advancing three theories of liability in support of each.5 The first cause of action is for harm from wilful or grossly negligent delivery of the expulsion letters to parishioners. It is sought to be grounded on (a) libel, (b) intentional or negligent infliction of emotional distress and (c) invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public). The second cause of action is for harm from communicating the letters' contents to the public. It is sought to be rested on (a) slander, (b) intentional or negligent infliction of emotional distress and (c) invasion of privacy (public disclosure of private facts, intrusion upon seclusion, and placing parishioners in a false light before the public).6

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.7 The trial court failed to rule on parishioners' last discovery request, which consisted of their motion to compel the defendants to answer certain questions asked at an earlier deposition. During the summary judgment proceeding they argued their discovery efforts were unduly limited because they were not allowed to question the defendants, their spouses or certain expert witnesses as to what they may have said to other Church members or ecclesiastical leaders concerning the parishioners' expulsion.

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.8 Claims to error for which there is no support in argument and authority are deemed abandoned.9 We hence do not reach them either for discussion or resolution.

II

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.10

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.11 In his nunc pro tunc order the trial judge explains he considered only the parties' summary judgment briefs and attached exhibits that had been on file as of March 8; he excluded from consideration the parishioners' March 9 notice of filing exhibits.12 His rejection of the parishioners' notice was grounded on their failure to comply with the Rule 1313 requirement that the party opposing summary judgment attach only the portions of the evidentiary materials on which it relies.

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 summary judgment is granted, the objecting party cannot on appeal supplement the appellate record by injecting into it material that was not before the trial court at the judgment stage.14 In short, there can be no post-decisional amendment of the recor to include material that was not timely admitted or pressed for incorporation at the trial level.15

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.

III

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.16 The parishioners, who were given additional time to assess Guinn's impact on their case, responded on February 21, 1989 to the quest for summary disposition. On March 3 the Church filed a reply to this response, which also dealt with Guinn's applicability to the pending action. Five days later the summary judgment argument took place.

Parishioners contend the trial court's ruling was premature. At the outset, they argue that a reply brief is not sanctioned by Rule 13,17 which authorizes only motions and responses. They appear to urge that the Church's reply brief addressed issues not tendered in the movant's original motion and that it pressed as undisputed those facts which were neither argued in the motion nor revealed by the evidentiary materials appended to it. Consequently, they conclude, the reply should be treated as a supplemental or renewed motion for summary judgment, which would entitle them to an additional 15-day period to respond.18 According to their argument they were prejudiced by a "premature" decision and "never accorded an adequate opportunity" to present the position they now press for our consideration.

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.19 The Church's reply brief was filed five days before the motion was reached. Parishioners had ample opportunity to seek additional time to prepare a written response and use the issue now pressed as a reason for their request. They failed to do so and cannot complain here of error.

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.20 Parishioners admit in their appellate brief they did address at summary judgment argument one new issue which they viewed as having been included in the Church's reply — namely, that all of parishioners' claims, even those arising after their excommunication, were non-actionable under Guinn. The Church did indeed assert this argument, taking this position based on the fact that parishioners had not yet voluntarily withdrawn themselves from the ecclesiastical jurisdiction's reach. The district court's statement of uncontroverted facts includes only one undisputed fact neither tendered in the original motion nor revealed by the evidentiary materials before the court — i.e., that at no time before excommunication had parishioners either orally or in writing withdrawn their church membership. This fact, though dehors the evidentiary materials, stood conceded by parishioners' attorneys during the summary judgment argument.21 The trial court's consideration of the Church's reply, even if error, was at best harmless under these circumstances.

IV

PARISHIONERS HAVE NOT SHOWN ANY MATERIAL FACT ISSUE

A.

Parishioners assert there is a substantial controversy about whether the lay leaders communicated the letters' contents outside the Church.22 They direct us to excerpts of Clinton Sharp's [Sharp] testimony, which was appended to the Church's motion. According to Sharp, when he asked defendant Joiner why they were "going after" the parishioners, Joiner told him that it was for "fornication."23

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 issues.24 A fact is "material" if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.25

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,26 the statement is not defamatory of parishioners; rather it is but a factual response to an inquiry as to the charges against parishioners without aversion or accusation of parishioners' culpability. Under the theory of international infliction of emotional distress,27 the evidentiary material does not suggest that the lay leader's conduct was so extreme and outrageous as to justify submission of the claim to the jury. Finally, under their invasion of privacy theory,28 the evidentiary material indicates that Sharp had heard this very fact as early as one to two months before his conversation with Joiner and that it was common knowledge. According to Sharp, it "seemed like everybody knew it."29 Joiner's statement, even when taken in the light most favorable to parishioners, did not amount to "publication" for purposes of invasion of privacy.30 A statement to a single individual is not enough "publicity" to make one's claim actionable either for harm from public disclosure of private facts31 or for harm from placing a person in a false light.32 Neither does it constitute an investigation into the parishioners' private concerns that would subject the Church to liability for the tort of intrusion upon one's seclusion.33

B.

Parishioners also assert there is a genuine fact issue about whether the written notice given them about the Church proceedings was reasonable and proper.34

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.35 The district court was hence without any authority to assess the propriety of the notice given. Its view that the notice was proper and reasonable had no special legal effect on the summary judgment process. Moreover, since parishioners failed to raise this issue below, they may not tender it for the first time on appeal.36

We hence conclude the Church has met its burden of showing the absence of any factual dispute as to material issues.

V

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 distress theories. Parishioners' contention is without merit.

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,37 but different theories of liability may be pressed in support of each claim alleged.38 Parishioners appear to have asserted three discrete theories of recovery for each of their claims.39

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.

VI

THE TRIAL COURT CORRECTLY APPLIED GUINN40

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.42 Until it is so terminated, the church has authority to prescribe and follow disciplinary ordinances without fear of interference by the state. The First Amendment43 will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline. Within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.

The church privilege extends in this case to activities or communications which occurred after excommunication if these may be termed as mere implementation44 of previously pronounced ecclesiastical sanction which was valid when exercised — i.e., that it was declared when Church jurisdiction subsisted. Within the concept of protected implementation are not only the religious disciplinary proceeding's merits and procedure but also its end product — the expulsion sanction. While excommunication would put an end to jurisdiction over any further offense, it does not abrogate the consequences flowing from the previously announced Church judicature.45

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 and personal jurisdiction to adjudicate the two disciplinary cases against the parishioners. Upon excommunication, and while a parishioner remains under the church discipline, the ecclesiastical tribunal impliedly relinquishes the power of judicature over the parishioner for any other or future conduct, yet retains cognizance over the previously adjudicated matter for the purpose of implementing any extent ecclesiastical sanction. Guinn reaffirms ecclesiastical judicature. It also recognizes that parishioners must positively act to withdraw membership if they intend church jurisdiction to cease.46 When the target of civil litigation is simply the church's implementation of its valid ecclesiastical judicature, the Free Exercise Clause of the First Amendment will afford a shield from interference by secular inquest.

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.

VII

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.47

The Free Exercise Clause prohibits civil courts from inquiring into any phase of ecclesiastical decisionmaking — its merits as well as procedure.48 Internal ecclesiastical procedure need not meet any "constitutional concept of due process."49 This is so because the church's judicature rests solely on consent which in turn is anchored on the ecclesiastical respondent's church affiliation. Because religious judicature is immune from any civil court inquest,50 it is also protected from intrusion by discovery. The church's immunity from disclosure rests neither on a statute nor a code of evidence. Rather its shield is of a constitutional dimension. It is founded on the Free Exercise Clause's prohibition against secular re-examination of merits and procedure in ecclesiastical judicature. In sum, if a matter lies within ecclesiastical cognizance, the church stands protected from any interference by the Free Exercise Clause. If it oversteps proper bounds, it will run afoul of the Establishment Clause insofar as its use of the state power may be in furtherance of a religious cause.51 As stated in Prince v. Commonwealth, "... religious activities which concern only members of the faith are and ought to be free — as nearly absolutely free as anything can be."52

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.53 The church may take such steps as are reasonable to protect itself and to complete the process occasioned by the withdrawal or other termination of the consensual relationship with a member. Until an affirmative notification of membership withdrawal is received the church need not reassess the course of its legitimate ecclesiastical interest.

VIII

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.54 On January 9, 1989, four days before the Church filed its motion for summary judgment, parishioners filed a motion to compel the defendants (Shaw, Joiner, and Warden), their spouses and two expert witnesses to answer certain questions that had been asked during depositions taken in September of 1988. The trial court failed to rule on the parishioners' January 9 motion. At the summary judgment proceeding parishioners' counsel argued that they had not been allowed to question these persons "as to what they have said to other church members or other ecclesiastical leaders concerning the excommunication ..." In their briefs here parishioners argue that the trial court's failure to rule affirmatively on their motion denied them the "opportunity to conduct meaningful discovery" and hence constitutes an abuse of discretion.

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 conduct55 that would lie outside the ecclesiastical privilege surrounding religious judicature and its implementation.

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.56

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.