Ellis v. Wal-Mart Stores

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Marvin Ellis,

Plaintiff and Appellant,

v.

Wal-Mart Stores, Inc.,

Defendant and Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20010658-CA

F I L E D

January 8, 2002   2002 UT App 6 -----

Second District, Ogden Department

The Honorable Stanton M. Taylor

Attorneys:

Marvin Ellis, Ogden, Appellant Pro Se

Mitchel T. Rice, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Greenwood.

PER CURIAM:

This matter is before the court on a sua sponte motion to summarily affirm the trial court's order granting summary judgment because "it plainly appears that no substantial question is presented." Utah R. App. P. 10(e). Appellee Wal-Mart filed a response in support of the motion. Appellant Ellis did not file a response.

The trial court found that even under Ellis's version of the facts, Wal-Mart would still have a reasonable belief that the contents of the box had been stolen. Thus, the trial court concluded that Ellis's dispute of the facts was not material.

The trial court also found Wal-Mart had a qualified privilege that protects an employer's communication to employees and other interested parties. See Utah Code Ann. § 76-9-506 (1996); Brehany v. Nordstrom, Inc., 812 P.2d 49, 58 (Utah 1991). If a qualified privilege exists, the burden is on the plaintiff to prove that the privilege was abused. The plaintiff can show abuse of the privilege by proving that the defendant acted with malice or that the publication of the defamatory material extended beyond those who had a legally justified reason for receiving it. Id.

Ellis did not present any evidence that Wal-Mart acted with malice, or that Wal-Mart shared information about the case with anyone other than those legally justified in receiving it. Furthermore, Ellis presents no evidence to demonstrate the trial court erred. Accordingly, the trial court's order granting summary judgment for Wal-Mart is affirmed.
 
 

______________________________

Judith M. Billings,

Associate Presiding Judge
 
 

______________________________

James Z. Davis, Judge
 
 

______________________________

Pamela T. Greenwood, Judge