     Case: 12-60814       Document: 00512208068         Page: 1     Date Filed: 04/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 15, 2013

                                     No. 12-60814                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ROBERT C. LEHMAN,

                                                  Plaintiff-Appellant
v.

MICHAEL B. HOLLEMAN; HOLLEMAN LAW FIRM, P.L.L.C.,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:11-CV-284


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*

       Plaintiff-appellant Robert Lehman sued Michael Holleman and Holleman
Law Firm, PLLC (collectively “Holleman”) for defamation and for intentional
and negligent infliction of emotional distress under Mississippi law. The district
court granted summary judgment in favor of Holleman. We AFFIRM.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                 No. 12-60814

                        FACTS AND PROCEEDINGS
      Lehman’s claims are premised on a settlement negotiation letter sent by
Holleman to another attorney in connection with a suit Lehman filed against
Louis Normand, Jr. and Matthew Normand in Louisiana state court alleging
wrongdoing in the administration of companies for which Lehman was
previously employed. Briefly, the relevant circumstances of that underlying
litigation are as follows.
      Louis Normand, Jr. created the Normand Children Diversified Class Trust
(“Trust”), which was the majority owner of three parcels of land in Gulfport,
Mississippi. Lehman’s professional law corporation, Lehman APLC, owned an
interest in one parcel. In 2009, the Mississippi Transportation Commission
(“MTC”) notified the owners that it intended to condemn the three parcels
pursuant to its eminent domain power. Negotiations ensued, and the MTC
offered relocation compensation. All parties accepted. Subsequently, Lehman
APLC filed a Notice of Lis Pendens against the Trust on all three parcels. The
notice claimed an interest in the property based on Lehman’s pending Louisiana
suit against the Normands. The filing of the notice effectively prevented
completion of the settlement with the MTC, and the MTC filed a complaint for
condemnation in the Special Court of Eminent Domain of Harrison County,
Mississippi. The Trust cross-claimed against Lehman APLC, alleging wrongful
filing of lis pendens. The Special Court found in favor of the Trust, holding the
lis pendens notices invalid.
      The Trust, represented by Holleman, subsequently filed suit against
Lehman and his then-counsel, Thomas Payne, based on the wrongful filing of the
lis pendens notices. Lehman hired a new attorney, Frank Montague. Montague
solicited a settlement offer from Holleman. In response, Holleman submitted the
subject letter containing a global settlement offer for the lawsuits pending
between the parties and their related entities.

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                                  No. 12-60814

      Subsequently Lehman filed the present suit, alleging the following
paragraph of the letter from Holleman to Montague to be defamatory:
      In the Louisiana action, Mr. Lehman “loaned” a complete stranger,
      Chadwick Harris, a disgruntled General Manager of my client,
      United Truck Group, $2,000 for what the witness believed was his
      favorable testimony and access to confidential information. When
      Mr. Harris testified in a deposition unfavorably to Mr. Lehman, Mr.
      Lehman, on the record, demanded his $2,000 back.
The district court held the statements were absolutely privileged and thus not
defamatory as a matter of Mississippi law because they were relevant to the
subject matter of a judicial proceeding. The district court noted that in his
complaint, Lehman acknowledged that the alleged defamatory statements were
related to the eminent domain suit. Lehman now appeals.
                                 DISCUSSION
      “We review a grant of summary judgment de novo, applying the same legal
standard as the district court.” Croft v. Governor of Texas, 562 F.3d 735, 742 (5th
Cir. 2009) (citation and internal quotation marks omitted). Summary judgment
is warranted if the record shows that “there is no genuine dispute as to any
material fact.” Fed. R. Civ. P. 56(a). Lehman argues that the district court erred
when it granted summary judgment and held that Holleman’s statements in the
settlement letter were absolutely privileged. We disagree.
      Under Mississippi law, a defamation claim requires that the plaintiff
prove:

      (1) a false and defamatory statement concerning another; (2) an
      unprivileged publication to a third party; (3) fault amounting at
      least to negligence on the part of the publisher; and (4) either
      actionability of the statement irrespective of special harm or the
      existence of special harm caused by the publication.

Fulton v. Miss. Publishers Corp., 498 So. 2d 1215, 1216 (Miss. 1986). Thus, in
order for Holleman’s statement to be actionable, it must constitute “an


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unprivileged publication.” See id. Mississippi courts consider statements made
in connection with judicial proceedings, “if in any way relevant to the subject
matter of the action,” as “absolutely privileged and immune from attack as
defamation, even if such statements are made maliciously and with knowledge
of their falsehood.” McCorkle v. McCorkle, 811 So. 2d 258, 266 (Miss. Ct. App.
2001); see also Clinton v. Johnson, No. 5:12-CV-84, 2013 WL 870361, at *6 (S.D.
Miss. Mar. 7, 2013) (explaining that “[s]ome time ago, the Mississippi Supreme
Court carefully considered this exact issue and settled on the ‘American rule’
that statements made in a judicial proceeding, if pertinent and relevant to that
proceeding, are absolutely privileged” (quoting Hardtner v. Salloum, 114 So. 621,
624 (Miss. 1927)). In order to be absolutely privileged, “the defamatory words
must be pertinent or relevant” to the underlying controversy. Hardtner, 114 So.
at 624. Mississippi courts favor a “liberal rule” as “to the determination of the
degree of relevancy or pertinency necessary to make alleged defamatory matter
privileged.” Id. “The matter to which the privilege does not extend must be so
palpably wanting in relation to the subject-matter of the controversy that no
reasonable man can doubt its irrelevancy and impropriety.” Id.
       Lehman argues that Holleman failed to illustrate that the settlement
letter was absolutely privileged because no Mississippi case has explicitly
applied this absolute privilege to settlement negotiation letters exchanged
between attorneys. We are confident, however, that the Mississippi courts would
do so here because Holleman’s letter to opposing counsel was plainly relevant to
the underlying controversy.1 Accordingly, Lehman has not shown that the
district court erred in granting summary judgment in favor of Holleman.

       1
        Additionally, courts in jurisdictions with similar absolute privilege rules have applied
those rules to bar defamation suits premised on letters exchanged in the course of settlement
negotiations. See, e.g., Chard v. Galton, 559 P.2d 1280, 1283 (Or. 1977); Oesterle v. Wallace,
725 N.W.2d 470, 476 (Mich. Ct. App. 2006).



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                             No. 12-60814

                            CONCLUSION
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.




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