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FOR PUBLICATION

ATTORNEY FOR APPELLANT: LAWRENCE T. NEWMAN Lawrence Law Firm Indianapolis, Indiana

ATTORNEYS FOR APPELLEES: JAMES W. ROEHRDANZ ERIC D. JOHNSON NICHOLAS W. LEVI Kightlinger & Gray, LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BEVERLY R. NEWMAN, Appellant-Plaintiff, vs. JEWISH COMMUNITY CENTER ASSN. OF INDIANAPOLIS, INC., ET AL., Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 30A01-0703-CV-129

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Terry K. Snow, Judge Cause No. 30D01-0602-CT-00111

October 31, 2007 OPINION - FOR PUBLICATION

BAKER, Chief Judge

Beverly Newman and her daughter, Julie Sondhelm, have an extremely volatile relationship, as detailed in our memorandum decision dismissing Newman's appeal from the trial court's denial of her petition for grandparent visitation with Sondhelm's children, M.S. and K.S. In re Visitation of M.S. & K.S., No. 29A05-0606-CV-322, slip op. at 1-2 (Ind. Ct. App. Jan. 24, 2007). While the harmful effects of Newman and Sondhelm's relationship were initially confined to the immediate family, Newman has chosen to involve third parties by filing suit against numerous defendants, including appellees-defendants Jewish Community Center Association of Indianapolis, Inc. (the JCC), Nancy Riddle-Mills, Bev Brown, and Beth Grimm (collectively, the appellees). Newman's latest complaint alleges claims for defamation and invasion of privacy by false light and intrusion. Newman appeals from the trial court's grant of summary judgment in favor of the appellees. Specifically, Newman argues that (1) the trial court erred by dismissing various defendants; (2) the trial court erred by dismissing Newman's claim for invasion of privacy by intrusion; (3) the trial court abused its discretion during discovery; and (4) the trial court erred by granting summary judgment in favor of the appellees. Finding no error, we affirm the judgment of the trial court. FACTS Sondhelm began working as a social worker at the JCC in August 1999. At that time, Newman was also a volunteer at the JCC and assisted with the Early Childhood Education Class (ECE class) in which M.S. and K.S. were students. In August 2002, Sondhelm terminated all social contact between Newman and M.S. and K.S. because Sondhelm

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believed that Newman was undermining her relationship with the children. Appellant's App. p. 218. While Newman no longer had social contact with her grandchildren, she continued to have contact with them through the ECE class. Two months after Sondhelm terminated Newman's social contact with the children, two JCC employees, Brown and Grimm, approached Sondhelm about Newman's conduct in their ECE class. Brown and Grimm told Sondhelm that Newman had become "increasingly insistent on being in the classroom," "demanding," and "very argumentative." Id. at 222. Grimm told Sondhelm that during the last ECE class field trip, "she had a difficult time handling [Newman and that] . . . she didn't want [Newman] to come on field trips anymore because it was more work having [her] there." Id. As a result of these conversations, Sondhelm filed a written request with the JCC requesting that Newman be prohibited from volunteering in JCC activities involving M.S. and K.S. Ira Jaffee, the Executive Director of the JCC, wrote a letter to Newman on October 31, 2002, informing her that because of Sondhelm's request, "future visits in the classrooms of [M.S. and K.S.] or participation in their school activities must be pre-arranged and approved by [Sondhelm]." Id. at 285. M.S. also participated in the JCC's aftercare program. On December 4, 2003, Newman contacted Jaffee about an incident she witnessed in the aftercare wing, alleging that a young JCC employee engaged in contact with a child in the employee's care that may have constituted sexual or physical abuse. Newman informed Jaffee that I saw a large young male with brown hair and a round, rosy face pinning down the person who was moaning. They were on the floor next to the wall. I stood 3

there until the large male noticed me watching him and stopped his use of force. I could not tell if the extreme physical contact was sexual or hostile, but it was totally inappropriate and potentially involved liability to the JCC. . . . As an educator and grandparent of two children attending the JCC, I feel it is imperative that the large male be removed from the JCC . . . . Id. at 66. The JCC conducted an investigation and concluded that the behavior was "voluntary wrestling" and "playful behavior." Id. at 522. Based on this conclusion, the JCC did not discipline the employee. On December 18, 2003, Riddle-Mills, the JCC human resources director, drafted an internal document addressing the Newman-Sondhelm situation (the memorandum). In relevant part, the memorandum listed four JCC employees to contact if Newman was seen in the aftercare wing of the JCC. The memorandum also detailed a protocol for handling situations involving Newman. Additionally, Riddle-Mills conducted a meeting with the aftercare program staff in which she detailed the protocol and asked the staff not to discuss the situation with others. On April 21, 2006, Newman filed her third 1 amended complaint against the JCC, Riddle-Mills, Brown, Grimm, Jaffee, Aaron Atlas, Jaime Hubbard, Naomi Tropp, Joe Kinney, and "Unknown Employees" of the JCC, alleging defamation, invasion of privacy by false light, and invasion of privacy by intrusion claims and requesting punitive damages. Id. at 52-64. On May 3, 2006, the defendants filed a motion to dismiss the claims against Jaffee, Atlas, Hubbard, Tropp, Kinney, and the unknown JCC employees. Additionally, the

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Newman filed her original complaint in the Marion County Superior Court on October 24, 2005. Venue was changed to Hancock County on February 10, 2006, and Newman filed her second amended complaint on March 24, 2006.

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defendants requested that the trial court dismiss Newman's invasion of privacy by intrusion claim. The trial court granted the defendants' motion on May 22, 2006, dismissing various defendants and dismissing Newman's invasion of privacy by intrusion claim against the appellees. On August 28, 2006, the appellees moved for summary judgment on the remaining counts, arguing that there was no evidence that the appellees had made the false statements of fact required for Newman to succeed on the defamation and invasion of privacy by false light claims. The trial court held a hearing on October 23, 2006, and granted the appellees' summary judgment motion on December 18, 2006. Newman filed a motion to correct error on January 17, 2007, which the trial court denied on February 20, 2007. Newman now appeals. DISCUSSION AND DECISION 2 I. Dismissed Defendants Newman argues that the trial court erroneously granted the defendants' motion to dismiss Jaffee, Atlas, Hubbard, Tropp, Kinney, and the unknown JCC employees (collectively, the dismissed defendants) from the action. Specifically, Newman argues that her complaint was sufficient to withstand the dismissed defendants' motion.

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Newman briefly argues that the trial court erred by striking photographs referenced in paragraph 13 of her complaint and attached to the complaint as Exhibit A. Specifically, Newman argues that the photographs "show the exact site where the child was abused, and [the] ease with which the abuse occurred after hours near the end of a secluded wing of the JCC . . . ." Appellant's Br. p. 46. After reviewing the trial court's order, we conclude that the trial court did not strike the photographs from Newman's complaint. Appellant's App. p. 46-47. While the trial court did strike various portions of the complaint, its order does not reference Exhibit A, paragraph 13, or the photographs.

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The trial court granted the dismissed defendants' motion pursuant to Indiana Trial Rule 12(B)(6). A motion to dismiss for failure to state a claim upon which relief can be granted tests the legal sufficiency of a claim, not the facts supporting it. Harmony Health Plan of Ind. v. Ind. Dep't of Admin., 864 N.E.2d 1083, 1089 (Ind. Ct. App. 2007). Therefore, we review the complaint in a light most favorable to the non-moving party, drawing every reasonable inference in favor of that party. Id. The trial court's grant of a motion to dismiss is proper if it is apparent that the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Gorski v. DRR, Inc., 801 N.E.2d 642, 644-45 (Ind. Ct. App. 2003). On appeal, the appellees first argue that Newman has waived this argument by failing to attach the trial court's May 22, 2006, order granting the dismissed defendants' motion to her notice of appeal. Indiana Appellate Rule 9(F)(1) provides that the appellant's notice of appeal "shall designate the appealed judgment or order and whether it is a final judgment or interlocutory order." While the appellees correctly note that Newman failed to attach the trial court's order to her notice of appeal, they do not direct us to case precedent holding that such error is fatal to an appellant's claim. Because of our penchant for addressing an appellant's claims on the merits, we decline to find that Newman has waived this issue on appeal and, instead, turn to the merits of her claim. The law of defamation was created to protect individuals from reputational attacks. Journal-Gazette Co., Inc. v. Bandido's, Inc., 712 N.E.2d 446, 451 (Ind. 1999). A defamatory communication is defined as one that "`tends so to harm the reputation of another as to lower

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him in estimation of the community or to deter a third person from associating or dealing with him.'" Doe v. Methodist Hosp., 690 N.E.2d 681, 686 (Ind. 1997) (quoting Restatement (Second) of Torts

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