Preview:

FOR PUBLICATION

ATTORNEY FOR APPELLANT : JEFFREY S. MCQUARY Indianapolis, Indiana

ATTORNEYS FOR STATE EMPLOYEE APPELLEES: GREGORY F. ZOELLER Attorney General of Indiana KATHY BRADLEY Deputy Attorney General Indianapolis, Indiana APPELLEES PRO SE: HERMAN BUD BERNITT AMY BERNITT Bloomington, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
SCOTT D. WELLS, Appellant-Plaintiff/Cross-Appellee, vs. HERMAN BUD BERNITT, individually, AMY BERNITT, individually, Appellees-Defendants/Cross-Appellants, and J.D. MAXWELL, as an employee of the Indiana State Police, TRAVIS CORYEA, individually, and as an employee of the Indiana State Police, STACY BROWN, individually, and as an employee of the Indiana State Police, INDIANA STATE POLICE, OTHER UNKNOWN EMPLOYEES OF THE INDIANA STATE POLICE, and STATE OF INDIANA, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Nov 10 2010, 10:03 am

CLERK

No. 53A01-0910-CV-494

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Michael A. Robbins, Special Judge Cause No. 53C06-0409-CT-1782

November 10, 2010 OPINION - FOR PUBLICATION KIRSCH, Judge

Scott D. Wells ("Wells") appeals from the trial courts orders granting summary judgment in favor of Herman Bud ("Bud") and Amy ("Amy") Bernitt (collectively "the Bernitts") as to Wells claim against them for defamation and in favor of J.D. Maxwell ("Maxwell"), Travis Coryea ("Coryea"), Stacy Brown ("Brown"), the Indiana State Police, other unknown employees of the Indiana State Police, and the State of Indiana as to Wells claims against them for negligent and intentional torts. The Bernitts cross-appeal from the trial courts order granting summary judgment in favor of Wells on their counterclaim alleging abuse of process and malicious prosecution. Wells presents the following restated issue for our review: I. Whether the trial court erred by granting summary judgment in favor of the Bernitts, Brown and Coryea.

The Bernitts cross-appeal raising the following restated issue for our review: II. Whether the trial court erred by granting summary judgment in favor of Wells on the Bernittss counterclaim alleging abuse of process.

We affirm. FACTS AND PROCEDURAL HISTORY Wells and the Bernitts are political adversaries in Monroe County, and their

2

relationship is acrimonious. On September 27, 2002, the Bernitts parked their pickup truck in a parking lot in downtown Bloomington across the street from a tavern that Wells was known to frequent on Friday nights. The Bernitts believed that they observed Wells exit the tavern, stagger across the street, urinate on the railroad tracks or street, and get into his car and drive away. The Bernitts then followed Wells. At some point, Bud contacted Maxwell,1 an Indiana State Trooper and fellow political adversary of Wells, at his home and reported his observations of Wells conduct. Maxwell called the Indiana State Police post and asked the dispatcher to send an officer to meet the Bernitts and take their complaint. Troopers Brown and Coryea responded to the dispatch. After taking the Bernitts complaint, Coryea left on an unrelated call, and Brown drove to a residential area where he intercepted Wells. Wells was ultimately charged, tried, and convicted of disorderly conduct and operating while intoxicated. We affirmed his convictions on direct appeal. Wells v. State, 848 N.E.2d 1133 (Ind. Ct. App. 2006). On September 27, 2004, Wells filed his complaint alleging defamation against the Bernitts and negligent and intentional torts, and he claimed a violation of his constitutional rights against Maxwell, Coryea, Brown, the Indiana State Police, other unknown employees of the Indiana State Police, and the State of Indiana. The Bernitts filed a counterclaim

alleging abuse of process and malicious prosecution against Wells. The Bernitts and the State of Indiana defendants filed motions for summary judgment as to Wells complaint, and

Maxwell passed away after the case at bar commenced, but prior to the trial courts order granting summary judgment.
1

3

the trial court granted the motions for summary judgment. Wells then filed a motion for summary judgment on the Bernitts counterclaim. The trial court granted Wells motion and dismissed the Bernitts counterclaim. Wells now appeals, and the Bernitts cross-appeal. Additional facts will be supplied. DISCUSSION AND DECISION Both sides present claims of trial court error from orders granting summary judgment. Our standard of review for summary judgment is the same as is used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Bd. of Sch. Comm'rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 330 (Ind. Ct. App. 2006). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Pettigrew, 851 N.E.2d at 330. Review of a summary judgment motion is limited to those materials designated to the trial court. Id. Questions of law are reviewed under a de novo standard. Liberty Mut. Fire Ins. Co. v. Beatty, 870 N.E.2d 546, 549 (Ind. Ct. App. 2007). I. Summary Judgment as to Wells' Complaint A. The Bernitts' Motion Wells argues that the trial court erred by granting the Bernitts motion for summary judgment on his defamation complaint because the Bernitts statements about his conduct on the night of his arrest for operating while intoxicated went beyond the statements necessary to establish the offense.

4

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." McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied. To recover in an action for defamation, "that which caused the alleged defamation must be both false and defamatory." Id. Moreover, a plaintiff must establish the basic elements of defamation: (1) a communication with a defamatory imputation; (2) malice; (3) publication; and (4) damages. Id. The determination of whether a

communication is defamatory is a question of law for the court. Id. Wells claims that the fact of his conviction for operating while intoxicated did not establish the truth of the Bernitts statements that they observed Wells stagger when exiting the tavern, urinate on the railroad tracks or the street, and drive so erratically that he almost ran over pedestrians. The trial court2 made the following findings that are relevant to our review of this issue: Findings of Fact 1. Wells was a Monroe County Council person, an elected public official, during all times relating to his Complaint. *** 3. On the night of September 27, 2002, the Bernitts both witnessed Wells leave the Crazy Horse Restaurant in Bloomington, Monroe County, Indiana. They watched him walk across the street to his vehicle and drive away. Based on their observations, the Bernitts believed Wells to be displaying obvious signs of intoxication.

We commend the trial court on the thoroughness and clarity of its findings and conclusions which have facilitated our appellate review.

2

5

*** 5. The Bernitts then contacted a state police officer, J.D. Maxwell ("Maxwell"), by telephone, and described their observations of Wells. *** 8. During the evening of September 27, 2002, Wells had consumed at least one alcoholic beverage at the Crazy Horse Restaurant, as well as more alcoholic beverages at Nicks English Hut and Kilroys, two other Bloomington, Indiana businesses in which alcoholic beverages are served. Trooper Brown then observed Wells driving and subsequently arrested him for operating while intoxicated ("OWI") and other criminal conduct. *** 11. Wells was subsequently convicted of OWI and disorderly conduct by a Monroe County jury. Although he appealed to the Indiana Court of Appeals, his conviction was not overturned. See Wells v. State, 848 N.E.2d 1133 (Ind. Ct. App. 2006). In upholding Wells conviction, the Court noted that Wells "actually did commit the crime of operating a vehicle while intoxicated." Wells, 848 N.E.2d at 1150. Wells has not presented evidence that the Bernitts made any defamatory statements to any person other than reporting to law enforcement officials on September 27, 2002, or any time thereafter. *** 14. Wells has not presented evidence that the Bernitts reported their suspicions of Wells behavior to the police with knowledge that the reports were false or with serious doubts as to their truth. In fact, their reports resulted in arrest and conviction of Wells for OWI. Wells has previously filed a separate defamation suit against the Bernitts and others, in the Monroe Circuit Court, entitled Wells v. Bernitt et al., Cause No. 53C01-0207-CT-1283, that alleged the Bernitts published defamatory statements about Wells regarding his alleged knowledge of a highly publicized alleged arson. In Cause No. 53C01-0207-CT-1283, the Court determined, on the merits, that statements published by the Bernitts on the Herald Times newspaper online message board concerning allegedly illegal septic
6

9.

12.

15.

16.

17.

repairs performed by Wells, were not defamatory as a matter of law and could not be used to establish actual malice by the Bernitts with respect to the allegedly defamatory statements they made about Wells and his knowledge of the alleged arson. Wells has designated the same Herald Times postings by the Bernitts to establish alleged actual malice on the part of the Bernitts with respect to the allegedly defamatory statements that form the basis of this present action. Conclusions of Law ***

3.

4.

5.

6.

"Actual malice" exists when the defendant publishes a defamatory falsehood "with knowledge that it was false or with reckless disregard of whether it was false or not." [ New York Times, 376 at 279- 80]. Recklessness in this context is not based upon what a reasonably prudent man would have published or would have investigated before publishing. The standard must actually show that the defendant had serious doubts as to the truth of the statement. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). A public official must offer evidence that the defendant published a defamatory statement with actual malice. Shine v. Loomis, 836 N.E.2d 952, 958 (Ind. Ct. App. 2005). If he fails to do so, the defendant is entitled to summary judgment. Id. Because Wells was an elected county council member at all times relevant to his Complaint, he is considered to be a public figure. St. Amant, 390 U.S. at 728. A qualified privilege, the common interest privilege, serves to protect statements made in good faith on any subject matter in which the party making the statements has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty. Holcomb v. Walter's Dimmick Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006). The Bernitts statements are matters of public interest that are protected by the common interest privilege. Indiana courts, as well as other courts throughout the nation, have recognized the effect drunk driving has had on the general public and the states interest in preventing accidents caused by intoxicated drivers. Smith v. Cincinnati Ins. Co, 790 N.E.2d 460, 461-2 (Ind. 2003). Whether the Bernitts actions were those beyond what might be considered the actions of a reasonable person, is certainly entertainable. Such actions, however egregious the motives, are not actionable.
7

7.

8.

9.

True statements never give rise to liability for defamation. Conwell v. Beatty, 667 N.E.2d 768, 774 (Ind. Ct. App. 1996). The statements also need not be absolutely true, but just substantially true. Journal-Gazette Co. v. Bandido's Inc., 712 N.E.2d 446, 457 (Ind. 1999). Here, the Bernitts statements to the police need not be absolutely true to be protected, and their substantial truth is supported by Wells admission of consuming alcohol at the Crazy Horse Restaurant, as well as his conviction for OWI. In order to create a genuine issue of fact, a party must produce admissible evidence and an inference is not reasonable if it rests on more than a speculation or conjecture. Estate of Sullivan v. Allstate Ins. Co., 841 N.E.2d 1220, 1225 (Ind. Ct. App. 2006). Wells has failed to produce such evidence. Because the Court in Cause No. 53C01-0207-CT-1283 concerning the Bernitts Herald Times message board postings about Wells[sic] allegedly illegal septic work [found that the postings] did not constitute actual malice, Wells is stopped from asserting such message board postings by the Bernitts establish actual malice in the present case.

Appellant's App. Vol. 1 at 12-14. A defendant in a defamation case is entitled to summary judgment if he demonstrates that the undisputed material facts negate at least one element of the plaintiffs claim. Kitco v. Corp. for Gen. Trade, 706 N.E.2d 581, 587 (Ind. Ct. App. 1999). In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), the United States Supreme Court held that a public official may not recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice." Both a public figure and a private individual bringing a defamation action over a matter of public or general concern must prove by clear and convincing evidence that the defendant made the alleged defamatory statement with "actual malice." Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 452 (Ind. 1999), cert. denied, 528 U.S. 1005 (1999). The actual malice element required by the United States Supreme Court and our state courts is not to be confused with the ordinary
8

definition of "malice" as "an evil intent or motive" arising from spite or ill will. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991). Here, Wells, an elected public official, attempted to establish the "actual malice" element of his claim by designating the same Herald Times message board postings that Wells offered to establish actual malice on the part of the Bernitts in a different defamation claim against them. However, the trial court in that defamation action determined that those same message board postings were not defamatory as a matter of law and could not be used to establish actual malice on the part of the Bernitts.3 The Bernitts argued that Wells was precluded from using those postings in this matter, and the trial court agreed. In general, issue preclusion bars subsequent litigation of the same fact or issue that was necessarily adjudicated in a former suit. Issue preclusion applies only to matters actually litigated and decided, not all matters that could have been decided. The matters decided must have been appealable in the original suit. Miller Brewing Co. v. Ind. Dep't of State Revenue, 903 N.E.2d 64, 68 (Ind. 2009) (internal citations omitted). Based upon the record that was before the trial court, which is the record before this court on review, we conclude that the doctrine of issue preclusion prevents Wells from using the same message board postings to establish actual malice on the part of the

During the hearing on the Bernitts motion for summary judgment, counsel for the Bernitts made reference to the trial courts ruling in another separate defamation action (53C01-0207-CT-1283) brought by Wells against the Bernitts. See e.g. Appellant's App. Vol. 1 at 7-8. The decision or final order in the other case was not designated by either Wells or the Bernitts in the current matter. The trial court indicated that it could take judicial notice of that courts file, but requested that counsel for the Bernitts identify the portions of the file relevant to their argument that certain message board postings found not to be defamatory as a matter of law in 53C01-0207-CT-1283 could not be used to establish actual malice on the part of the Bernitts in this action either. Id. at 29, 59-60. Wells counsel joined in the request that the trial court take judicial notice of the courts file in 53C01-0207-CT-1283. Id. at 60.
3

9

Bernitts in this matter. Further, because there was no admissible evidence before the court to establish actual malice, one of the elements of defamation, the trial court correctly concluded that the Bernitts were entitled to the entry of summary judgment in their favor as to Wells complaint against them.4 The trial court correctly determined that summary judgment should be granted in favor of the Bernitts. B. The State Defendants' Motion Wells also argues that the trial court erred by granting summary judgment in favor of Troopers Brown and Coryea on his claim under 42 U.S.C.

Download Scott D. Wells v. Herman Bud Bernitt, et al..pdf

Indiana Law