MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 24 2017, 10:28 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT James C. Spencer Thomas M. Dattilo Dattilo Law Office Madison, Indiana
IN THE COURT OF APPEALS OF INDIANA
Zerlie Charles, October 24, 2017 Appellant-Plaintiff, Court of Appeals Case No. 72A01-1706-SC-1252 v. Appeal from the Scott Superior Court Vickie Vest, The Honorable Andrew Adams, Appellee-Defendant. Special Judge Trial Court Cause No. 72D01-1611-SC-387
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 1 of 9 Case Summary [1] Zerlie Charles (“Charles”) appeals the trial court’s ruling, following a bench
trial, against her in her complaint against Vickie Vest (“Vest”) for defamation.
On appeal, she raises only one issue, namely, whether the trial court’s ruling on
her defamation claim was contrary to law. We hold that it was, and we reverse.
Facts and Procedural History [2] Vest cohabitated with Charles’ son, Robert (“Robert”), for approximately three
years. Robert owned a 2002 Chevrolet Silverado pick-up truck. On February
10, 2015, Robert died. About ten days later, Vest made a police report with
Scott County that the 2002 Chevrolet Silverado pick-up truck had been stolen.
A short time later, the police recovered the truck in a church parking lot.
[3] On February 28, 2015, Vest posted the following message on her Facebook
page:
Just have to say [a]ll the talk that’s being said about Robert[’s] things being stolen[,] [i]f it was stolen I don’t know but I do know my truck was and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts [sic]. I didn’t even get all my personal things out of the house before his mom went physco [sic]. Butt [sic] that’s OK[.] I will be OK[.] I lost my soul mate[,] thrown out of his house[,] and had my truck stolen all in 2 weeks. So I really don’t give a DAM! [sic] what Zerlie Charles has to say. I was there for Robert[.] [S]he had to have control[.] [W]ell she got it all now. And still ain’t happy. Life goes on and will be great. She can talk all she wants and we all know she will because that how it
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 2 of 9 is[.] I have our memories and a lot of wonderful ones that no one can take away! Not even Zerlie Charles!!!!!!!!!
Exhibits at 2 (emphasis added). Eleven people “liked” that message, and eight
people posted comments in response to the message. Id.
[4] On November 30, 2016, Charles filed in the Small Claims Division of the Scott
County Superior Court a complaint against Vest “for defamation per se.”
Appellant’s App. at 7. Specifically, Charles contended that Vest defamed
Charles when Vest stated in a Facebook post: “I do know my truck was [stolen]
and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts [sic].” Id.;
Exhibits at 2. Charles also claimed that Vest “intimated” to the Scott County
Sheriff’s Office that Charles had stolen the truck. Exhibits at 2. On December
29, Vest filed a counter-claim for defamation against Charles.
[5] The trial court held a trial on the parties’ claims on April 7, 2017. At the trial,
Vest admitted that, in a different case, she had pled guilty to forging the title of
the 2002 Chevrolet Silverado pick-up truck from Robert’s name to her own
name. Vest admitted that she had stolen the truck she had reported as stolen to
the police. Vest further admitted that she sold the truck to a third party in June
of 2016. Charles testified that she (Charles) had not stolen the truck. And
Charles admitted into evidence, without objection, as Plaintiff’s Exhibit 2 an
order of the Jefferson Circuit Court in a civil collection case involving Robert’s
estate in which the court concluded that Vest had “unlawfully converted the
2002 Chevrolet Silverado to her own use,” and granted Robert’s estate $5,000
for the value of the truck and $5,000 in exemplary damages. Exhibits at 4-5. Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 3 of 9 [6] Charles testified that, because of the allegation posted on Facebook that she had
stolen the truck, she could no longer sleep at night, her reputation had been
“ruined,” and some of her good friends did not “come around anymore.” Tr.
at 22-23. Kevin Zehner, Robert’s “best friend” and a registered nurse
specializing in behavioral health and anxiety issues, testified that he had
observed in Charles anxiety, depression, tears, pain, and emotional distress
caused by the death of her son and “being called a thief.” Tr. at 28, 30.
[7] On May 12, 2017, the trial court issued the following written order:
Comes now the Court[,] having heard testimony [and] reviewed pleadings and case law[,] and finds as follows:
1. That the Plaintiff failed to meet her case for defamation per se as the evidence presented did not meet the standard for per se or per quod.
2. That the Defendant fail[ed] to meet her burden on [her] counter claim.
Appellant’s App. at 30. This appeal ensued.
Discussion and Decision Standard of Review [8] Charles alleges that Vest defamed her. As an initial matter, we note that Vest
has not filed an appellee’s brief; therefore, we apply a less stringent standard of
review and may reverse the trial court if Charles has shown prima facie error.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 4 of 9 Ind. Appellate Rule 45(D). “Prima facie error” is error at first sight, at first
appearance, or on the face of it. See, e.g., Progressive Ins. Co. v. Harger, 777
N.E.2d 91, 92 (Ind. Ct. App. 2002).
[9] We also note that Charles appeals from a negative judgment.
A judgment entered against a party who bore the burden of proof at trial is a negative judgment. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will not reverse a negative judgment unless it is contrary to law. Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994). To determine whether a judgment is contrary to law, we consider the evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482 (Ind. Ct. App. 1998). A party appealing from a negative judgment must show that the evidence points unerringly to a conclusion different than that reached by the trial court. Mominee, 629 N.E.2d at 1282.
Smith v. Dermatology Associates of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct.
App. 2012).
Defamation [10] Our Supreme Court has clearly laid out the law of defamation:
To establish a claim of defamation, a “plaintiff must prove the existence of ‘a communication with defamatory imputation, malice, publication, and damages.’” Trail v. Boys & Girls Clubs of N.W.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 24 2017, 10:28 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT James C. Spencer Thomas M. Dattilo Dattilo Law Office Madison, Indiana
IN THE COURT OF APPEALS OF INDIANA
Zerlie Charles, October 24, 2017 Appellant-Plaintiff, Court of Appeals Case No. 72A01-1706-SC-1252 v. Appeal from the Scott Superior Court Vickie Vest, The Honorable Andrew Adams, Appellee-Defendant. Special Judge Trial Court Cause No. 72D01-1611-SC-387
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 1 of 9 Case Summary [1] Zerlie Charles (“Charles”) appeals the trial court’s ruling, following a bench
trial, against her in her complaint against Vickie Vest (“Vest”) for defamation.
On appeal, she raises only one issue, namely, whether the trial court’s ruling on
her defamation claim was contrary to law. We hold that it was, and we reverse.
Facts and Procedural History [2] Vest cohabitated with Charles’ son, Robert (“Robert”), for approximately three
years. Robert owned a 2002 Chevrolet Silverado pick-up truck. On February
10, 2015, Robert died. About ten days later, Vest made a police report with
Scott County that the 2002 Chevrolet Silverado pick-up truck had been stolen.
A short time later, the police recovered the truck in a church parking lot.
[3] On February 28, 2015, Vest posted the following message on her Facebook
page:
Just have to say [a]ll the talk that’s being said about Robert[’s] things being stolen[,] [i]f it was stolen I don’t know but I do know my truck was and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts [sic]. I didn’t even get all my personal things out of the house before his mom went physco [sic]. Butt [sic] that’s OK[.] I will be OK[.] I lost my soul mate[,] thrown out of his house[,] and had my truck stolen all in 2 weeks. So I really don’t give a DAM! [sic] what Zerlie Charles has to say. I was there for Robert[.] [S]he had to have control[.] [W]ell she got it all now. And still ain’t happy. Life goes on and will be great. She can talk all she wants and we all know she will because that how it
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 2 of 9 is[.] I have our memories and a lot of wonderful ones that no one can take away! Not even Zerlie Charles!!!!!!!!!
Exhibits at 2 (emphasis added). Eleven people “liked” that message, and eight
people posted comments in response to the message. Id.
[4] On November 30, 2016, Charles filed in the Small Claims Division of the Scott
County Superior Court a complaint against Vest “for defamation per se.”
Appellant’s App. at 7. Specifically, Charles contended that Vest defamed
Charles when Vest stated in a Facebook post: “I do know my truck was [stolen]
and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts [sic].” Id.;
Exhibits at 2. Charles also claimed that Vest “intimated” to the Scott County
Sheriff’s Office that Charles had stolen the truck. Exhibits at 2. On December
29, Vest filed a counter-claim for defamation against Charles.
[5] The trial court held a trial on the parties’ claims on April 7, 2017. At the trial,
Vest admitted that, in a different case, she had pled guilty to forging the title of
the 2002 Chevrolet Silverado pick-up truck from Robert’s name to her own
name. Vest admitted that she had stolen the truck she had reported as stolen to
the police. Vest further admitted that she sold the truck to a third party in June
of 2016. Charles testified that she (Charles) had not stolen the truck. And
Charles admitted into evidence, without objection, as Plaintiff’s Exhibit 2 an
order of the Jefferson Circuit Court in a civil collection case involving Robert’s
estate in which the court concluded that Vest had “unlawfully converted the
2002 Chevrolet Silverado to her own use,” and granted Robert’s estate $5,000
for the value of the truck and $5,000 in exemplary damages. Exhibits at 4-5. Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 3 of 9 [6] Charles testified that, because of the allegation posted on Facebook that she had
stolen the truck, she could no longer sleep at night, her reputation had been
“ruined,” and some of her good friends did not “come around anymore.” Tr.
at 22-23. Kevin Zehner, Robert’s “best friend” and a registered nurse
specializing in behavioral health and anxiety issues, testified that he had
observed in Charles anxiety, depression, tears, pain, and emotional distress
caused by the death of her son and “being called a thief.” Tr. at 28, 30.
[7] On May 12, 2017, the trial court issued the following written order:
Comes now the Court[,] having heard testimony [and] reviewed pleadings and case law[,] and finds as follows:
1. That the Plaintiff failed to meet her case for defamation per se as the evidence presented did not meet the standard for per se or per quod.
2. That the Defendant fail[ed] to meet her burden on [her] counter claim.
Appellant’s App. at 30. This appeal ensued.
Discussion and Decision Standard of Review [8] Charles alleges that Vest defamed her. As an initial matter, we note that Vest
has not filed an appellee’s brief; therefore, we apply a less stringent standard of
review and may reverse the trial court if Charles has shown prima facie error.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 4 of 9 Ind. Appellate Rule 45(D). “Prima facie error” is error at first sight, at first
appearance, or on the face of it. See, e.g., Progressive Ins. Co. v. Harger, 777
N.E.2d 91, 92 (Ind. Ct. App. 2002).
[9] We also note that Charles appeals from a negative judgment.
A judgment entered against a party who bore the burden of proof at trial is a negative judgment. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will not reverse a negative judgment unless it is contrary to law. Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994). To determine whether a judgment is contrary to law, we consider the evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482 (Ind. Ct. App. 1998). A party appealing from a negative judgment must show that the evidence points unerringly to a conclusion different than that reached by the trial court. Mominee, 629 N.E.2d at 1282.
Smith v. Dermatology Associates of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct.
App. 2012).
Defamation [10] Our Supreme Court has clearly laid out the law of defamation:
To establish a claim of defamation, a “plaintiff must prove the existence of ‘a communication with defamatory imputation, malice, publication, and damages.’” Trail v. Boys & Girls Clubs of N.W. Ind., 845 N.E.2d 130, 136 (Ind. 2006) (quoting Davidson v. Perron, 716 N.E.2d 29, 37 (Ind. Ct. App. 1999), trans. denied). A statement is defamatory if it tends “to harm a person’s reputation
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 5 of 9 by lowering the person in the community’s estimation or deterring third persons from dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007) (internal citation omitted). One type of defamation action, alleging defamation per se, arises when the language of a statement, without reference to extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3) misconduct in a person’s trade, profession, office, or occupation, or (4) sexual misconduct. Id.; see also Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind. Ct. App. 1992), trans. denied; Elliott v. Roach, 409 N.E.2d 661, 683 (Ind. Ct. App. 1980), trans. not sought. In contrast, if the words used are not defamatory in themselves, but become so only when understood in the context of extrinsic evidence, they are considered defamatory per quod. McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied. In actions for defamation per se, damages are presumed, but in actions for defamation per quod, a plaintiff must prove damages. Rambo, 587 N.E.2d at 145-46.
Dugan v. Mittal Steel USA, Inc., 929 N.E.2d 184, 186 (Ind. 2010). Moreover,
“[a]ny statement actionable for defamation must not only be defamatory in
nature, but also false.” Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 956
(Ind. Ct. App. 2014), trans. denied. “Whether a communication is defamatory
or not is a question of law for the court, unless the communication is
susceptible to either a defamatory or nondefamatory interpretation—in which
case the matter may be submitted to the jury.” Kelley v. Tanoos, 865 N.E.2d
593, 596 (Ind. 2007) (citing Rambo, 587 N.E.2d at 145).
[11] Here, Charles has shown that Vest’s statement—“I do know my truck was
[stolen] and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts
[sic]”—is defamation per se. Exhibits at 2. The statement quite clearly imputes
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 6 of 9 to Charles criminal conduct—i.e., stealing a truck. See Ind. Code § 35-43-4-2.5
(making auto theft a Level 6 felony). Moreover, the statement was clearly
published on Vest’s Facebook page, where at least eleven people read it and
“liked” it, Exhibits at 2. See, e.g., Sch. City of Hammond Dist. v. Rueth, 71 N.E.3d
33, 43 (Ind. Ct. App. 2017) (noting that, within the context of defamation,
“publish” means to communicate the statement to a third person or persons),
trans. denied.
[12] Furthermore, there was no evidence that Vest’s Facebook statement was true.
Charles testified that she did not steal the truck and there was no evidence in
the record indicating otherwise. See I.C. § 34-15-1-2 (providing a defendant in a
libel or slander action may allege truth of the allegedly defamatory statement as
a defense); see also, e.g., Melton v. Ousley, 925 N.E.2d 430, 437 (Ind. Ct. App.
2010) (“[T]ruth is a complete defense in civil actions for defamation.”).
Although Vest said in her opening statement that the only person who could
have stolen the truck was someone with a key and Charles had a key, that
statement was not evidence. And Vest did not testify at any point that her
statement that Charles stole the truck was true; in fact, she repeatedly noted that
she had never used the word “thief” in reference to Charles and that she only
said Charles “was involved” because Charles had a key to the truck. Tr. at 47.
Moreover, Vest admitted it was not legally her truck because she had forged the
title to the vehicle over to herself; thus, her statement that “her” truck was
stolen was false.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 7 of 9 [13] And Charles was not required to prove “malice” as part of her defamation
claim. Malice is not a required element of a defamation claim between private
individuals unless the alleged defamatory statement relates to a matter of public
concern. Mourning v. Allison Transmission, Inc., 72 N.E.3d 482, 489 n.3 (Ind. Ct.
App. 2017) (citing 23 James R. Fisher & Debra H. Miller, Indiana Practice,
Personal Injury Law and Practice, § 3:21 (2d ed. 2007) (footnotes and citations
omitted) (“Private persons must also show ‘actual malice’ when the
communication in question relates to an issue of public concern. Malice is not
otherwise a required element of a defamatory action.”)). Here, Vest’s statement
related to a private matter, not a matter of public concern; therefore, she did not
need to show that Vest acted with malice. Mourning, 72 N.E.3d at 489.
[14] Nor was Charles required to prove damages. In an action for defamation per
se—as opposed to defamation per quod—a “plaintiff is entitled to presumed
damages ‘as a natural and probable consequence’ of the per se defamation.[]”
Baker v. Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009) (internal quotations and
citations omitted).
Conclusion [15] Charles has not only shown prima facie error, but she has also shown that the
evidence points unerringly to a conclusion that Vest committed defamation per
se against her. The trial court’s decision was contrary to law and we must
reverse it.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 8 of 9 [16] Reversed and remanded for a determination of the amount of damages.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017 Page 9 of 9