Poyser v. Peerless

775 N.E.2d 1101, 2002 WL 31057802

• Court: Indiana Court of Appeals
• Decided: September 12, 2002
• Docket: 49A05-0108-CV-352
• Status: Published

Opinions

OPINION

ROBB, Judge.

Karen Poyser filed a defamation lawsuit against St. Richard’s School, her former employer, David Peerless and Claudia Hil-ligoss, her supervisors at the school, the St. Richard’s Board of Directors, and Karen Dorfman, president of the Board (collectively referred to as “the School”). The School moved for summary judgment, which motion was granted by the trial court. Poyser now appeals the summary judgment against her. We affirm.

Issues

Poyser raises three issues for our review, which we consolidate and restate as one: whether the trial court properly granted summary judgment to the School on finding that the statements the School made in a letter to the School community about Poyser’s departure from the School were true, were made without malice, or were protected by the common interest privilege.

Facts and Procedural History¹

Karen Poyser was employed beginning in 1991 as a second-grade teacher at St. Richard’s School, a private Episcopal grade school in Indianapolis. While Poy-ser was employed at St. Richard’s, her ultimate supervisor was the Headmaster, David Peerless. Her immediate supervisor at the relevant time was Claudia Hilli-goss, the “Lower School Head.” Poyser and Hilligoss experienced “communication difficulties” in their dealings with one another. Poyser did not sign and return her contract for the 1999-2000 school year, but she did begin teaching that fall. In September of 1999, Poyser composed a letter to Peerless explaining her complaints and concerns about the school administration and Hilligoss in particular. She indicated in her letter that she was “considering turning in [her] resignation.” Appellant’s Appendix at 255. She requested a meeting with Peerless at his convenience, and sent a copy of the letter to Hilligoss and to the St. Richard’s Board of Directors.

After Peerless received this letter, he directed Hilligoss to meet with Poyser to try to resolve their difficulties and he sent a letter to Poyser informing her that she should follow the chain-of-command and attempt resolution first with Hilligoss before he became involved. Appellant’s Appendix at 257. Because Hilligoss was reluctant to meet one-on-one with Poyser due to their past difficulties, Peerless ultimately agreed to attend a meeting between the two. Hilligoss e-mailed Poyser on September 22, 1999, and informed her that she had scheduled a meeting for the two of them that afternoon, that Peerless would also attend, and that arrangements had been made to cover her classroom during this time. Appellant’s Appendix at 258. Poyser responded by e-mail that the meeting was not at a good time for her and that she would not meet with Hilligoss and Peerless at the same time. Appellant’s Appendix at 259. Hilligoss responded by e-mail that “the issues you raised in your letter are serious enough to require a meeting” that afternoon, and that she and Peerless expected her to meet with them as scheduled. Appellant’s Appendix at 260. Poyser did not attend the meeting. Peerless sent an e-mail that afternoon informing Poyser that her failure to attend the meeting was a serious violation, scheduling another meeting for the morning of September 24, and asking her not to discuss the issue “in any way that negatively affects the school’s reputation, ability to function smoothly, or the quality of the working conditions.” Appellant’s Appendix at 262.

That evening was the school open house, and following her presentation to the parents of her students, one of whom was a Board member, Poyser answered questions regarding her employment situation at the school and read to them parts of her letter to Peerless and his response. At the September 24 meeting, Peerless informed Poyser that her actions, both in failing to attend the September 22 meeting and in talking with parents about her situation, were insubordination and grounds for termination. Poyser responded that he could not terminate her because she had never turned in her contract and that she was resigning. However, she refused to discuss her resignation further with Hilli-goss in the room. Peerless then asked that she turn in her key to the school and he escorted her from the school.

Peerless informed the Board that Poy-ser was no longer teaching at the school. He prepared a letter that was sent to the parents of Poyser’s former students addressing Poyser’s departure but declining to share details “[a]s it was an internal personnel issue.” Appellant’s Appendix at 265. He also prepared a general notice that was sent to the parents of all St. Richard’s students concerning Poyser’s departure and stating that the “decision was the conclusion of a normal personnel process for these matters. The School policy, in evaluating any employee, is to treat the details with confidence.” Appellant’s Appendix at 266. Thereafter, parents of some of Poyser’s former students contacted the school concerning Poyser’s departure.

At the next regularly scheduled Board meeting, the Board addressed the apparent discrepancy between Poyser’s position that she had resigned from St. Richard’s and Peerless’ position that he had terminated her employment. To address concerns that Peerless had violated school policies and procedures in his handling of Poyser’s departure and to end the discord in the school community over the situation, the Board formally addressed Poyser’s departure by sending a letter from the Board to all St. Richard’s parents. After speaking with Peerless, Karen Dorfman, the president of the Board, composed and signed the letter, which reads in part:

There has been much speculation as to the circumstances surrounding Mrs. Poyser’s departure from St. Richard’s. For the privacy of its employees, St. Richard’s makes every effort to maintain confidentiality with respect to personnel issues. However, in this case, there seems to be, a general misunderstanding as to what occurred. The incidents surrounding Mrs. Poyser’s departure were instigated by her and not her supervisor, Mrs. Hilligoss. The Administration attempted to address Mrs. Poyser’s concerns within the School’s published guidelines and policies. It was only after Mrs. Poyser ignored School policies and the Administration’s directives, - and refused to meet with the Administration to resolve her concerns, that the School decided to terminate her contract.

Appellant’s Appendix at 267.

Poyser thereafter initiated a lawsuit against Peerless, Hilligoss, Dorfman, St. Richard’s School, and St. Richard’s Board of Directors, alleging that they had defamed, slandered and libeled her through the publication of Peerless’ notices regarding her termination and Dorfman’s above-quoted letter. The School moved for summary judgment, alleging' that the statements made were true, there was no evidence of malice in the making of the statements, and the School was protected by the “common interest privilege.” Poy-ser opposed the motion. Following a hearing, the trial court granted the School’s motion for summary judgment:

... Mrs. Poyser’s claims fail as a matter of law for three reasons: (1) Mrs. Poy-ser has not demonstrated a prima facie case as the undisputed facts demonstrate that the allegedly defamatory statements were true ...; (2) Mrs. Poy-ser has not shown a prima facie case as the undisputed facts demonstrate that there was no malice ...; and, (3) the comments were protected by the common interest privilege as parents and schools have “corresponding interests” in the free flow of information about teachers, the school environment, and the education of children....

Appellant’s Appendix at 129-30 (citations omitted). Poyser now appeals.

Discussion and Decision

I. Standard of Rewew

Our standard of review of a summary judgment order is well-settled: summary judgment is appropriate if the “designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 56(C). Relying on specifically designated evidence, the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. I/N Tek v. Hitachi Ltd., 734 N.E.2d 584, 586 (Ind.Ct.App.2000), trans. denied. If the moving party meets these two requirements, the burden shifts to the nonmovant to set forth specifically designated facts showing that there is a genuine issue for trial. Id. A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Gilman v. Hohman, 725 N.E.2d 425, 428 (Ind.Ct.App.2000), trans. denied. Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts. Id.

On appeal, we are bound by the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage. Interstate Cold Storage v. General Motors Corp., 720 N.E.2d 727, 730 (Ind.Ct.App.1999), trans. denied. We do not reweigh the evidence, but we liberally construe all designated evidentiary material in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact for trial. Estate of Hofgesang v. Hansford, 714 N.E.2d 1213, 1216 (Ind.Ct.App.1999). The party that lost in the trial court has the burden to persuade the appellate court that the trial court erred. Id. Specific findings and conclusions by the trial court are not required, and although they offer valuable insight into the rationale for the judgment and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App.2000), trans. denied. A grant of summary judgment may be affirmed upon any theory supported by the designated materials. Id.

II. Defamation

Defamation is “that which tends to injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Davidson v. Perron, 716 N.E.2d 29, 37 (Ind.Ct.App.1999), trans. denied. To establish defamation, the plaintiff must prove the following elements: (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Ratcliff v. Barnes, 750 N.E.2d 433, 436 (Ind.Ct.App.2001), trans. denied. In general, the determination of whether a communication is defamatory is a question of law for the court. Dietz v. Finlay Fine Jewelry Corp., 754 N.E.2d 958, 968-69 (Ind.Ct.App.2001). The determination becomes a question of fact for the jury if the communication is reasonably susceptible of either defamatory or non-defamatory interpretation. Ratcliff, 750 N.E.2d at 436. However, a communication is defamatory per se if it imputes: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person’s trade, profession, office, or occupation; or (4) sexual misconduct. Levee v. Beeching, 729 N.E.2d 215, 220 (Ind.Ct.App.2000). Damages are presumed even without proof of actual harm to the plaintiffs reputation if the communication is defamatory per se. Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied.

The trial court determined that Poyser had not stated an actionable claim for defamation for three reasons: the allegedly defamatory statements were true, they were made without malice, and they were protected by the “common interest” privilege. Poyser contends that the trial court erred in granting summary judgment to the School on all three grounds. We note that any one of the grounds recited by the trial court is sufficient to defeat Poyser’s defamation claim and support summary judgment for the School.

A. The Statements

Poyser contends that the following statements from Dorfman’s letter were defamatory:

1. “The incidents surrounding Mrs. Poyser’s departure were instigated by her and not her supervisor, Mrs. Hilligoss.”

2. “The Administration attempted to address Mrs. Poyser’s concerns within the School’s published guidelines and policies.”

3. “... Mrs. Poyser ignored School policies and the Administration’s directives .... ”

4. “Mrs. Poyser ... refused to meet with the Administration to resolve her concerns.... ”

5. “... the School decided to terminate her contract.”

The evidence the parties designated for summary judgment purposes consists primarily of the communications described in the Facts section above and of the deposition testimony of the principal players.

B. Malice

A private individual bringing a defamation action must show “actual” malice in matters of public or general concern. Ratcliff, 750 N.E.2d at 437. See also Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind.1999), cert. denied, 528 U.S. 1005, 120 S.Ct. 499, 145 L.Ed.2d 385 (1999) (expressly adopting Aafco Heating and Air Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671, 321 N.E.2d 580 (1974), cert. denied, which applied the actual malice standard for both public and private individuals). Actual malice must be shown by clear and convincing evidence. Bandido’s, 712 N.E.2d at 456. The question of whether there is sufficient evidence to support finding actual malice is a question of law for the court. Id.

Actual malice exists when “the defendant publishes a defamatory statement ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Ratcliff, 750 N.E.2d at 437 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). In order to prove that a defendant published with reckless disregard, a plaintiff must designate “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Id. “ ‘[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.’ ” Bandido’s, 712 N.E.2d at 456 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). Hence, the defendant’s state of mind when making the publication is a “critical factor.” Id. A defendant’s state of mind is a subjective fact that may be shown by indirect or circumstantial evidence. Ratcliff, 750 N.E.2d at 437. A defendant cannot “automatically insure a favorable verdict by [stating in an affidavit] that he published with a belief that the statements were true.”' Kitco, Inc. v. Corp. for General Trade, 706 N.E.2d 581, 588 (Ind.Ct.App.1999).

Poyser contends that Dorfman, in relying exclusively on the version of events related to her by Peerless, wrote the letter with reckless disregard for the truth. In order to prevail, Poyser must show that the School was aware of the inaccuracy of the statements in Dorfman’s letter at the time of publication or had serious doubts as to their accuracy. Poyser has failed in this regard.

Dorfman testified at a deposition that she was in contact with Peerless regarding the Poyser situation from the time she received a copy of Poyser’s letter and knew that Peerless was intending to place Poyser on probation at the September 24, 1999, meeting. Peerless contacted her after the meeting and informed her that Poyser had indicated her intent to resign but refused to talk about the terms with Hilligoss in the room, so he had terminated her employment. Although Dorfman thought it was “unusual” that Poyser refused to meet and would not talk in Hilli-goss’ presence, the scenario as related to her by Peerless seemed “plausible.” Appellant’s Appendix at 166. She and Peerless traveled to a conference in Chicago together the weekend after these events and discussed the situation. At the time the Board decided to clear up misconceptions in the School community about the School’s handling of these events, Dorfman had not heard any rumors that Poyser was saying she had resigned. She had received a copy of the letter Poyser wrote after the September 24 meeting in which she recorded her account of the meeting in dialogue form. The Board was confident that Peerless had “fairly and clearly” represented the events that transpired and felt no need to conduct a follow-up investigation before sending out the letter. Appellant’s Appendix at 171. Recognizing the possibility that Peerless had given her erroneous information and that the Board could have asked more questions before sending out the letter, Dorfman nonetheless stated that she had no reason to doubt the truthfulness of Peerless’ statements.

Poyser contends that because Dorfman relied upon Peerless as her sole source of information prior to writing the letter, she demonstrated reckless disregard for whether the statements she made concerning the encounter were true. She contends that this is at least sufficient to create a question of fact regarding the malice element, thus precluding summary judgment. We disagree. In defamation cases arising in the journalism arena, we have held that it is not sufficient to show that the reporting in question was speculative or even sloppy, Cochran v. Indianapolis Newspapers, Inc., 175 Ind.App. 548, 372 N.E.2d 1211, 1220 (1978), and that the failure to investigate does not in itself establish malice. Kitco, 706 N.E.2d at 589. Despite Dorfman’s reservations about Peerless as an administrator, she made it quite clear in her deposition that she believed he was truthful in relaying to her and the Board the events surrounding Poyser’s departure and that she had no reason to doubt his version of events.

To the extent Poyser argues that malice can be inferred from the publication of the letter to the entire School community, we note that Poyser herself discussed the situation outside the immediate circle of people with a need to know. It is true that the letter was published to the entire School community — not just to parents of her own students, but to all parents. Even if this was a broader publication than strictly necessary, Poyser “opened the door” to such communications by discussing her complaints and the School’s response with parents of her students, other faculty, and staff.

Taking the evidence in the light most favorable to Poyser, and especially construing every statement in her letter following up the September 24 meeting in her favor, we hold that, as a matter of law, she has failed to show that the School published the letter with “reckless disregard” for the truth of the statements contained therein. Poyser’s own recitation of the discussion during the September 24 meeting shows that she was terminated from her position at the School. The communications between the parties support the interpretation of Poyser’s actions as depicted in the letter. She has failed to show that the School knew any of the statements in Dorfman’s letter were false. Moreover, she has failed to show that the School recklessly disregarded whether the statements were false or not. Thus, she has failed to show that the School acted with actual malice² in publishing the letter and the trial court properly granted summary judgment. Because we hold as a matter of law that there was no malice in the publication of the letter, we need not discuss whether the statements were in fact true or whether they were protected by the common interest privilege.

Conclusion

As Poyser has failed to raise a genuine issue of material fact as to the element of malice required to sustain her defamation suit, we hold that the trial court properly granted summary judgment to the School. The judgment of the trial court is affirmed.

Affirmed.

BAILEY, J., concurs. BAKER, J., concurs with separate opinion.

1 . We heard oral argument on this case on July 1, 2002, in Indianapolis, Indiana. We thank counsel for their presentations.

2 . In Bandido's, our supreme court noted a few of the factual situations in which courts have found a defendant to have published statements with actual malice. See 712 N.E.2d at 465 n. 32. For example, in Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976), the defendant fabricated defamatory quotations and printed defamatory allegations which were contradicted by a prior publication used as a source for the defendant's article. In Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), the defendant admitted that he did not believe the plaintiff had engaged in the conduct defendant alleged in his book. And in Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), the defendant wrote that a presidential candidate was mentally ill despite knowing the statement was false. All of these cases demonstrate much more egregious conduct than even alleged herein.