TORTS (defamation, condo association, appeals): Flint v. Stilger (COA 1/22/2010)

v. Stilger

2009-CA-000475 01/22/2010 2010 WL 199566

by Judge Caperton; Judge Dixon and Senior Judge Henry concurred. The
Court reversed and remanded a summary judgment entered in favor of
appellee on appellant’s claim for defamation. The trial court found that
statements made in response to appellant’s appeal for the Attorney
General to prosecute a condominium association’s failure to comply with
KRS 381.990 were entitled to absolute privilege. The Court first held
that appellant’s naming of additional appellees as “Jane and John Does”
was not fatal to the appeal. As members of the Board of Directors of the
association, they were not necessary parties because the defamation
claim was only between appellant and the named appellee, the attorney
for the association. The Court next held that review was confined to one
for manifest injustice, as appellant failed to properly cite to the
record as required by CR 76.12(4)(c)(iv)-(v). The Court ultimately held
that the statements made in the response to the appeal for the Attorney
General to prosecute was not entitled to absolute privilege because the
Attorney General’s office was undertaking an investigation and had not
made known whether it would pursue a judicial remedy. Therefore, the
statements were only entitled to a qualified privilege, which could be
overcome by a showing of malice.

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