Gee v. Pima County

OPINION RICHMOND, Judge. Appellants, the sole owners of all stock in the four El Grande Markets in Tucson, brought suit to recover damages for loss of business caused by the publication by appel-lee of facts showing that the markets sold perishable goods after they should have been removed from the market shelves. The trial court granted summary judgment for appellee. We affirm. The threshold question on appeal is the nature of the claim for relief stated by the complaint. Since the alleged damages stem from the publication of information to the public, the action is one either for libel or trade libel. The latter involves the intentional publication of an injurious falsehood disparaging the quality of another’s property with resulting pecuniary loss. See Restatement 2d of Torts, § 626; 50 Am. Jur.2d Libel and Slander § 539. It is similar to slander of title, except that the disparagement in the trade libel goes to the quality of property, rather than title. Restatement 2d of Torts, §§ 623A-626. There is no basis for appellants’ contention that the complaint also states a claim for relief under other theories of law such as abuse of process. Appellee argues that the action is barred by A.R.S. § 12-541(1), which requires that actions “for injuries done to the character or reputation of another by libel or slander” be brought within one year. Appellants contend the two-year limitation of A.R.S. § 12-542(3) applies to an action for trade libel, where loss of business results from statements disparaging the quality of goods sold. The latter statute governs actions “[f]or trespass for injury done to the estate or the property of another.” *117 Appellants correctly point out that our statutes of limitations were adopted from Texas, and that a Texas court has held that the statute of limitations for libel did not apply to an action for damages to business caused by false statements. Brown v. American Freehold Land Mortgage Co. of London, 97 Tex. 599, 80 S.W. 985 (1904). Since that case was decided after the statute was adopted by Arizona, however, its holding, although persuasive, is not controlling. Schuldes v. National Surety Corp., 27 Ariz.App. 611, 557 P.2d 543 (1976). The majority of the courts that have considered the issue have held that the statute of limitations for libel governs actions for slander of title. Scott Paper Co. v. Fort Howard Paper Co., 343 F.Supp. 229 (E.D.Wis.1972); Lehigh Chemical Co. v. Celanese Corp. of America, 278 F.Supp. 894 (D.Md.1968); Woodard v. Pacific Fruit & Produce Co., 165 Or. 250 , 106 P.2d 1043 (1940). Although we do not see any reason to vary the statute of limitations because property rather than a person is defamed, we need not decide whether Arizona would follow the majority in applying the statute of limitations for libel to trade libel actions. The action was subject to summary judgment in any event, because appellants failed to allege special damages or to show actual malice. Scott Paper Co., supra, 343 F.Supp. at 232-33 . See also City of Tempe v. Pilot Properties, Inc., 22 Ariz.App. 356, 527 P.2d 515 (1974) (falsity, malice and special damages must be shown in slander of title action). Affirmed. ALICE TRUMAN, Superior Court Judge, concurs.