Charles v. Vest

• Court: Court of Appeals of Indiana
• Citation: 90 N.E.3d 667
• Docket Number: Court of Appeals Case No. 72A01–1706–SC–1252
• Parties: Zerlie CHARLES, Appellant–Plaintiff, v. Vickie VEST, Appellee–Defendant.
• Decision Date: 24 October 2017

90 N.E.3d 667

Zerlie CHARLES, Appellant–Plaintiff,
v.
Vickie VEST, Appellee–Defendant.

Court of Appeals Case No. 72A01–1706–SC–1252

Court of Appeals of Indiana.

Filed October 24, 2017
Publication Ordered November 21, 2017

Attorneys for Appellant : James C. Spencer, Thomas M. Dattilo, Dattilo Law Office, Madison, Indiana

Bailey, Judge.

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 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

[90 N.E.3d 670

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.

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

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