                                                                                             08/18/2020


                                           DA 20-0186
                                                                                         Case Number: DA 20-0186

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 209N



JACOB SMITH,

               Plaintiff and Appellant,

         v.

MICHAEL ROOPE,

               Defendant and Appellee.


APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Powell, Cause No. DV 19-22
                       Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jacob Smith, Self-represented, Deer Lodge, Montana

                For Appellee:

                       Michael Roope, Self-represented, Deer Lodge, Montana



                                                   Submitted on Briefs: July 29, 2020

                                                              Decided: August 18, 2020


Filed:

                                     r--6ta•--df
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2    Appellant Jacob Smith (Smith) appeals the March 3, 2020 Order on Summary

Judgment issued by the Third Judicial District Court, Powell County, denying Smith’s

motion for summary judgment and dismissing his cause with prejudice. We affirm.

¶3    On February 26, 2019, Smith brought a defamation claim against Appellee Mike

Roope (Roope) asserting “Roope made false and malicious statements, both in writing and

verbally, with evil motive and intent.” Roope filed an answer generally denying the

allegations of the complaint. Smith then filed two motions for summary judgment—one

was filed on July 8, 2019, and another filed on October 23, 2019—which advised he

“included exhibit page 1 and 2 in his complaint which are proof that Defendant Roope

made accusations against Smith.”1      The July 8, 2019 motion included Smith’s own

affidavit, asserting Roope made false statements to Lewis and Clark Detention Center

(LCDC) personnel and Probation and Parole, which caused him to be moved from the

detention center to Montana State Prison (MSP) and labeled as violent and dangerous, all



1
 The exhibit attached to Smith’s complaint is a Lewis and Clark Detention Center Report
Narrative authored by detention officer Heather Ryan, marked “CONFIDENTIAL.”


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causing him extreme emotional and psychological harm.                   The second motion, filed

October 23, 2019, basically re-submitted the original motion without the accompanying

affidavit, but included a notarized verification. In response, Roope filed a petition for

summary dismissal.2 On January 29, 2020, Smith filed an addendum to his summary

judgment motions. On March 3, 2020, the District Court denied Smith’s motions for

summary judgment and dismissed his claim with prejudice, basically concluding there

were no issues of material fact and even in the light most favorable to Smith, he failed to

establish any harm.

¶4     Defamation is effected by libel or slander. Section 27-1-801, MCA. “Libel is a

false and unprivileged publication by writing, printing, picture, effigy, or other fixed

representation that exposes any person to hatred, contempt, ridicule, or obloquy or causes

a person to be shunned or avoided or that has a tendency to injure a person in the person’s

occupation.” Section 27-1-802, MCA. Pursuant to § 27-1-803, MCA,

       [s]lander is a false and unprivileged publication other than libel that:
       (1) charges any person with crime or with having been indicted, convicted,
       or punished for crime;
       (2) imputes in a person the present existence of an infectious, contagious, or
       loathsome disease;
       (3) tends directly to injure a person in respect to the person’s office,
       profession, trade, or business, either by imputing to the person general
       disqualification in those respects that the office or other occupation
       peculiarly requires or by imputing something with reference to the person’s
       office, profession, trade, or business that has a natural tendency to lessen its
       profit;
       (4) imputes to a person impotence or want of chastity; or

2
  It is unclear if Roope served Smith with this document. It contains a certificate of service averring
under penalty of “purgery” [sic] that the document was sent to Smith but the certificate does not
indicate to what address it was sent and references an attached receipt which is not attached.


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          (5) by natural consequence causes actual damage.3

Libel and slander exist only with respect to “unprivileged” publications. If a defendant’s

statements are privileged, the plaintiff cannot prevail on a claim for defamation. McLeod

v. State, 2009 MT 130, ¶ 23, 350 Mont. 285, 206 P.3d 956. Pursuant to § 27-1-804(3),

MCA, a privileged publication is one made “in a communication without malice to a person

interested therein by one who is also interested or by one who stands in such relation to the

person interested as to afford a reasonable ground for supposing the motive for the

communication innocent or who is requested by the person interested to give the

information.”

¶5        Considering only the information provided by Smith and excluding the

documentation provided by Roope,4 the District Court did not err in denying Smith’s

motion for summary judgment and dismissing his complaint with prejudice. Smith’s

pleadings and submitted documentation do not establish a defamation claim based on either

libel or slander. Any information Roope provided to detention staff or Probation and

Parole, verbally or in writing, were privileged statements pursuant to § 27-1-804(3), MCA,

such that Smith cannot prevail. As properly determined by the District Court, a reasonable

basis existed for Roope to report Smith’s alleged behavior to law enforcement and there is




3
    Smith’s allegations do not assert any of the damages referenced in this statute.
4
  As previously indicated, it is unclear whether Roope’s Petition for Summary Dismissal and
accompanying documents were served on Smith. Even if the petition and supporting documents
are not considered, dismissing Smith’s action with prejudice was appropriate as Smith failed to
submit evidence establishing the elements of a defamation claim.


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no evidence of malicious intent or the falsity of the statements other than Smith’s bald

assertion otherwise. Further, Smith failed to show any damages—there is no evidence that

as a result of any statements made by Roope, Smith was exposed to hatred, contempt,

ridicule, or obloquy or which caused him to be shunned or avoided at MSP.5

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶7     Affirmed.


                                                 /S/ INGRID GUSTAFSON

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ JIM RICE




5
  There is no evidence Smith encountered problems with other inmates at MSP because of any
statements Roope made about Smith. There is no evidence whatsoever that anyone at MSP, staff
or inmates, was even aware of any statements Roope made to the LCDC or Probation and Parole
with regard to Smith.


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