WILLIAMS v. THARP

• Decision Date: 30 September 2010
• Docket Number: No. 29A02-1003-CT-283.,29A02-1003-CT-283.
• Citation: 934 N.E.2d 1203
• Parties: Thomas WILLIAMS and Sanford Kelsey, Appellants-Plaintiffs, v. Kelly Eugene THARP and Papa John's U.S.A., Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

934 N.E.2d 1203

Thomas WILLIAMS and Sanford Kelsey, Appellants-Plaintiffs,

v.Kelly Eugene THARP and Papa John's U.S.A., Inc., Appellees-Defendants.

No. 29A02-1003-CT-283.

Court of Appeals of Indiana.

Sept. 30, 2010.

COPYRIGHT MATERIAL OMITTED.

Arend J. Abel, Michael J. Blinn, Cohen & Malad, LLP, Indianapolis, IN, Attorneys for Appellants.

Julia Blackwell Gelinas, John M.T. Chavis, II, Lucy R. Dollens, Frost Brown Todd LLC, Indianapolis, IN, Attorneys for Appellee, Kelly Eugene Tharp.

John B. Drummy, Mark D. Gerth, Jeffrey D. Hawkins, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellee, Papa John's U.S.A., Inc.

OPINION

CRONE, Judge.

Case Summary

Thomas Williams and Sanford Kelsey were handcuffed and detained for over an hour in Williams's driveway after Kelly Eugene Tharp, a Papa John's pizza delivery driver, told a passerby and a police officer that Kelsey had “pulled a gun” inside the Papa John's restaurant where Kelsey and Williams had recently paid for and picked up their pizza. Police searched Williams and Kelsey in full view of their families and neighbors and found no gun. The two men sued Tharp and his employer, Papa John's U.S.A., Inc., for defamation, false imprisonment, negligence, and intentional infliction of emotional distress. The trial court determined that Tharp's statements were covered by a qualified privilege developed to protect those who report suspected criminal activity and entered summary judgment in favor of Tharp and Papa John's. Williams and Kelsey appealed.

While the appeal was pending, Tharp pled guilty to falsely reporting that Kelsey had a gun inside the restaurant. As to Williams and Kelsey's appeal, the Indiana Court of Appeals ruled in their favor, but the Indiana Supreme Court upheld the trial court's judgment in favor of Tharp and Papa John's. The supreme court determined that Williams and Kelsey had failed to establish a genuine factual dispute regarding whether Tharp knew that his statements were false and thus abused the qualified privilege. The court also noted that after it held oral argument, Williams and Kelsey petitioned to file a motion for relief from the trial court's judgment based on Tharp's guilty plea to false reporting. The court denied Williams and Kelsey's petition and said that they could file a motion for relief with the trial court, which could consider whether the motion was filed within a reasonable time and should be granted. Williams and Kelsey then filed a motion for relief from judgment with the trial court, which summarily denied it.

Williams and Kelsey (“Appellants”) now appeal the trial court's denial of their motion for relief from the judgment in favor of Tharp and Papa John's (“Appellees”), asserting that their motion was filed within a reasonable time and that Tharp's guilty plea creates a genuine factual dispute regarding whether he knew that his statements were false and thus abused the qualified privilege. We agree with Appellants on both counts and reverse and remand for further proceedings consistent with this opinion.

Facts and Procedural History

In Williams v. Tharp, 914 N.E.2d 756 (Ind.2009), ¹ Justice Dickson (joined by Chief Justice Shepard and Justice Sullivan) outlined the relevant facts as follows:

On February 19, 2005, around 9:30 p.m., the plaintiffs [Kelsey and Williams] drove to a Papa John's restaurant to pick up an order. Kelsey wore a full-length tan coat and at the front of his waist a rectangular black fanny pack with silver reflective material. Williams planned to pick up the tab, but inside the restaurant Kelsey contributed by handing cash to Williams, which Kelsey removed from his brown leather bi-fold wallet inside the fanny pack. Williams accepted the money and paid the bill by credit card. The men left the store and drove directly home.

Tharp worked that night as a delivery driver. He had never met and did not know the plaintiffs. While the plaintiffs were paying, Tharp had come to the front of the store and, according to his deposition testimony, “saw a guy at the counter, and he was looking down ..., and he pulled out what I thought was a gun.” Tharp said the man “looked up.... He didn't move his head, he moved his eyes, and he saw me looking at him, and he stuck his hand back in his coat.” Tharp “went out the door, and whoever was there, the first person it was ... I said, we need to watch that guy because I think he had a gun. He pulled out a gun, and he stuck it back in when he thought-when he saw me looking at him.” The passerby called police. Meanwhile, Tharp returned inside and told another restaurant employee, Christian Martin, that one of the customers had a gun. Martin walked to the front of the store and noticed Kelsey's fanny pack but did not see a gun.

The Westfield, Indiana, Police Department dispatched Officer Jeff Frolick to Papa John's “on a report of a person carrying a weapon.” The officer happened to be across the street at the time, so he arrived quickly, but the plaintiffs had already left. After parking, Officer Frolick spoke with two men in the parking lot-one was Tharp, who falsely identified himself as “Arthur Tharp”; the other was the passerby. Tharp told the officer that “two black males came into Papa John's Restaurant, one was wearing a long tan coat and he pulled a hand gun out of his waistband or a holster and then put it back into some type of holder.” Tharp gave Officer Frolick the license plate number, which he had written down, and a description of Williams's car. Frolick relayed this information to dispatch. Tharp described the weapon as a medium-sized silver gun with a brown wooden handle with two small silver circles. He told Officer Frolick that he had been standing behind the clerk at the register when he saw the gun. (Later in his deposition Tharp recalled the gun as having a black grip with small silver circles on the handle.) It is undisputed that Tharp never claimed that either plaintiff committed a robbery, made threats, demanded money, or pointed a gun at anyone.

Officer Frolick told Tharp to stay by the police car while he went inside to speak with other employees. None of the three other employees reported that the store had been robbed or that anyone had made threats with a gun or demanded money. Frolick went behind the counter to where he understood Tharp to say he had been standing, but the officer did not think someone standing in that location could see a customer's waist and believed that Tharp, who is shorter than Frolick, could not have seen what he claimed. When Officer Frolick returned outside, Tharp was gone. Tharp explained at his deposition that he fled because he had outstanding warrants and feared arrest once his identity was discovered and that “what I saw was the only motivation. I didn't-I didn't really want to talk to police that night.”

After Williams and Kelsey made the short drive to Williams's home and parked, police ordered them out of the car at gunpoint, ordered them to their knees, and handcuffed them, thereafter detaining the men for over an hour while family and neighbors looked on. Police told the men they were investigating a report of someone “flashing a gun around at the Papa John's location” or “pulling a gun out.” No officer said they were investigating a robbery. Police found no gun, and the men were released.

Tharp had worked for Papa John's elsewhere twice before. The first stint ended with a firing and a later conviction for theft. He used a false name for his second period of employment, which ended because of his incarceration for fraud stemming from events unrelated to his employment. When hired the third time, he used his father's name, social security number, and driver's license number. After he left the scene on February 19, Tharp did not return to work at Papa John's (he later learned that he was fired). Tharp later returned money to Papa John's that was in his car when he left and penned a letter, maintaining, “I don't care what that Black guy says-he was getting ready to rob the store. Why else put his hand on his gun & start to pull it out[?]”

The plaintiffs sued Papa John's and Tharp, seeking compensatory and punitive damages, alleging that Tharp's statement constituted defamation per se, that the plaintiffs were falsely imprisoned as a result, that Tharp intentionally inflicted emotional distress upon them, and that Tharp's actions were negligent. Papa John's was alleged to be liable under the doctrine of respondeat superior as well as for negligent hiring, retention, and supervision. Papa John's moved for summary judgment, and Tharp joined that motion. Papa John's also moved to strike certain items of evidence that the plaintiffs designated in their opposition to summary judgment, including paragraph 9 of Officer Frolick's affidavit (stating his belief that Tharp could not see a customer's waist from behind the counter) and paragraph 10 (his testimony based on reviewing Papa John's surveillance video), as well as in-car video from Frolick's vehicle and a transcript of that video.

The trial court granted summary judgment on all counts. The court held that a qualified privilege protected Tharp's statements, compelling summary judgment for defamation, as well as for negligence, intentional infliction of emotional distress, punitive damages, and, with no underlying tort, negligent hiring. The court also granted summary judgment on the plaintiffs' claim of false imprisonment, concluding that a false report to police was insufficient to create liability. The trial court granted in part and denied in part Papa John's motion to strike. The court struck the video taken from Officer Frolick's car at the scene as well as paragraph 10 of his affidavit, but declined to strike paragraph 9. The Court of Appeals reversed and remanded on each count. [ ² ]

Id. at 759-61 (footnote omitted).

Our supreme court granted transfer and addressed the following contentions raised by Appellants:

(1)...