Bitner v. Ottumwa Community School Dist.

Citation549 N.W.2d 295
Decision Date22 May 1996
Docket NumberNo. 95-135,95-135
Parties110 Ed. Law Rep. 418 Dan BITNER, Appellant, v. OTTUMWA COMMUNITY SCHOOL DISTRICT, Joe Scalzo, Max Miller, Firstar Bank Ottumwa a/k/a Firstar Bank Ottumwa, N.A., Kelly Smallwood, Estal & Associates, P.C., Gerald H. Estal, and Donald D. Kain, Appellees.
CourtUnited States State Supreme Court of Iowa

Peter C. Riley of Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.

Minor Barnes, Terry J. Abernathy and JoAnne M. Lilledahl of Pickens, Barnes & Abernathy, Cedar Rapids, and Richard J. Gaumer of Webber, Gaumer, Emanuel & Daily, P.C., Ottumwa, for appellees School District, Joe Scalzo and Max Miller.

Jerome M. Beaver of Kiple, Kiple, Denefe, Beaver & Gardner, Ottumwa, for appellees Firstar Bank and Kelly Smallwood.

Kasey W. Kincaid of Faegre & Benson Professional Limited Liability Partnership, Des Moines, for appellees Estal & Associates, Gerald H. Estal and Donald D. Kain.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.

ANDREASEN, Justice.

Dan Bitner, a former elementary principal in the Ottumwa Community School District, brought a defamation suit against: (1) the school district, its superintendent, Joe Scalzo, and its business manager, Max Miller (collectively referred to as school district); (2) Firstar Bank Ottumwa and its teller, Kelly Smallwood (collectively referred to as bank); and (3) Estal & Associates, P.C. and the firm's certified public accountants, Gerald H. Estal and Donald D. Kain (collectively referred to as Estal). The petition sought damages for the publication of defamatory statements contained in an audit and statements made in the course of investigation and the resulting criminal prosecution.

Following hearing on motions for summary judgment filed by all defendants, the court found statements made by the defendants in the course of a judicial proceeding were entitled to an absolute privilege and statements made prior to criminal prosecution were entitled to a qualified privilege and were made without actual malice. The court sustained the defendants' motions for summary judgment, entered judgment against Bitner, and assessed the costs against him. Bitner's motion for enlargement of the court's findings was overruled. On appeal, we affirm.

I. Background Facts and Proceedings.

Bitner was principal of Wilson elementary school in the Ottumwa school district from August 1988 until June 1991. He resigned in July and accepted employment as school principal in Lamar, Colorado. While principal of Wilson school he had primary responsibility and control over the school's activity fund.

Following Bitner's resignation, Miller conducted an investigation regarding shortages in the activity fund and for violations of school district regulations during the 1990-91 academic year. The bank advised Miller that Bitner had presented checks payable to Wilson school to Smallwood and that he requested and received payment of cash. Upon completion of his investigation Miller made a written report to superintendent Scalzo. The report, dated September 26, 1991, contained information regarding two checks that were cashed by Bitner at the bank. At Miller's request the bank provided a written statement from Smallwood regarding Bitner's cashing of the checks.

After receiving Miller's written report, Estal & Associates, P.C. was hired to conduct a special audit of the activity accounts. On October 31 the special audit was completed and a written report was provided to the school district. This audit was not made available to the public by the school district nor was it considered in open session of the school board. However, Estal notified the state auditor of their audit and the media was allowed access to the audit. See Iowa Code §§ 11.6(7), 11.19 (1991).

As a result of the audit the county attorney's office investigated and then charged Bitner on February 28, 1992, with the crime of theft in the second degree. In March both Miller and Smallwood were deposed by Bitner in preparation of trial. The case was tried to a jury and Bitner was acquitted of all criminal charges.

After Bitner filed his defamation petition on November 1, 1993, the parties engaged in extensive discovery. Both Bitner and the defendants submitted interrogatories and requests for production of documents in February 1994. In March and April answers to interrogatories were made and amended and responses and supplemental responses to requests were filed. In April and May additional interrogatories were served by the plaintiff and answered by the defendants. On July 6 an order was entered setting this case for trial for the week of April 24, 1995. In September the defendants answered plaintiff's additional interrogatories.

On September 30 the school district filed its motion for summary judgment. Annexed to the motion was a statement of material facts, memorandum of authorities, and affidavits in support of the motion. Bitner filed on October 11 a motion to extend time to resist the summary judgment and to delay ruling so that he could conduct discovery. The school district filed a resistance to the motion. Hearing on this motion was set for the same time and date as the hearing on the motion for summary judgment.

On October 14 the bank filed its motion for summary judgment. Annexed to the motion was a statement of material facts, memorandum of authorities, and affidavits in support of the motion. The motion also incorporated the statement of facts and memorandum of authorities contained in the school district's summary judgment motion. On October 14 the court set the school district's and bank's motions for summary judgment for hearing on October 28 at 9:30 a.m.

On October 17 Estal filed a motion for summary judgment alleging there was no genuine issue of material fact with respect to liability because the statements made by them were protected by a qualified privilege and were made without malice. Estal incorporated in its motion the material facts and memorandum of authorities filed by the school district and the bank. On October 21 Bitner served a motion to compel answers to interrogatories and to require a response to the request for production by Estal.

On October 26 Bitner served his resistance to motions for summary judgment and statement of undisputed material facts along with his affidavit and a portion of depositions taken in the criminal case against him. In his affidavit Bitner stated Scalzo "did not appreciate me catching him in a lie and has held this against me." "Miller did not like the fact that I was checking up on him and my accounts and held this against me." Because Smallwood "had experienced problems with my ex-wife in regard to babysitting ... she holds ill feelings toward me." He also stated that Smallwood accused him of cashing the $1000 check payable to Wilson school at approximately 3:35 p.m. on January 3, 1991. At that time and date he was en route to Des Moines. Phone calls between a car dealership and the school verified he was on his way to Des Moines at 3:35 p.m. and that he arrived in Des Moines at 4:30 p.m.

In the resistance Bitner alleged Estal's audit contained many untrue statements that could have been discovered if Estal had investigated properly. The resistance stated that all defendants acted with malice and with reckless disregard for the truth.

A hearing on the motions for summary judgment was held on October 28 with all parties appearing and being heard. The court's rulings on the motions were filed on November 22. The court found Bitner did not timely resist the motions for summary judgment filed by the school district and bank. The court granted summary judgment to all defendants.

Following the entry of the court's rulings and summary judgments, Bitner filed a motion as permitted by Iowa Rule of Civil Procedure 179(b) requesting that the court rule on his motion to compel discovery of Estal and to address whether his affidavit filed with his resistance would generate a genuine issue of material fact. The court denied the motion. Bitner appealed the judgments and the ruling on the rule 179(b) motion.

On appeal we consider the nature of summary judgment, the nature of defamation actions, and the undisputed facts as to Bitner's claims against the school district, the bank, and Estal.

II. Summary Judgment.

Iowa Rule of Civil Procedure 237 permits summary judgment to be entered under certain conditions and circumstances. When a party has met the initial burden required for a summary judgment under rule 237(c), the opposing party must either establish the existence of a triable issue of fact under rule 237(e) or explain why facts cannot be presented to justify continuance under rule 237(f). Our rule 237, like Federal Rule of Civil Procedure 56, provides in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Iowa R.Civ.P. 237(c); Fed.R.Civ.P. 56(c).

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Iowa R.Civ.P. 237(e); Fed.R.Civ.P. 56(e) (amended to refer to "adverse party" rather than "he"). Where the language of federal Rule 56 and Iowa rule 237 are essentially the same, federal interpretations are persuasive. See Shaw v. Soo Line R.R., 463 N.W.2d 51, 54 (Iowa 1990); Brody v. Ruby, 267 N.W.2d 902, 904 (Iowa 1978); Konz v. Ehly, 451 N.W.2d 504, 505 (Iowa App.1989).

Unlike the federal Rule, our rule provides:

The...

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