Conwell v. Beatty
| Decision Date | 21 June 1996 |
| Docket Number | No. 34A02-9412-CV-781,34A02-9412-CV-781 |
| Citation | 667 N.E.2d 768 |
| Parties | Larry CONWELL, Appellant-Plaintiff, v. John D. BEATTY, Sheriff of Howard County, Howard County Sheriff's Department and County of Howard, Tammy Cappoli, and the Fleet Supply Incorporated, Doing Business as Big R Stores, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Appellant-plaintiff Larry Conwell appeals the trial court's entry of summary judgment against him in two lawsuits he filed for defamation and various other counts. The overall issue for review is whether a genuine issue of material fact exists to preclude summary judgment on Conwell's claims.
We affirm.
Larry Conwell was a deputy sheriff with the Howard County Sheriff's Department. On August 3, 1990, while dressed in his deputy sheriff uniform, Conwell entered a Big R store operated by Fleet Supply Incorporated in Kokomo, Indiana. Tammy Cappoli was working as a merchandiser at the same store. Cappoli recognized Conwell as the same person she thought had switched a price tag from one item to a more expensive item on an earlier occasion at a K-Mart store where Cappoli was employed.
Upon recognizing Conwell, Cappoli telephoned security and told Big R employee Robin Johanning to watch Conwell because he was a "price switcher." Cappoli Record at 40. Johanning turned one of the security cameras on Conwell and videotaped him moving throughout the store. She saw Conwell proceed to the agricultural department and stand by some couplers. She telephoned another Big R employee, Thad Edmonds, and told him that she thought Conwell was a price switcher. Johanning asked Edmonds to follow Conwell through the aisles and watch his hands. Edmonds located Conwell near the hydraulic hoses. Johanning observed Conwell pick up a hydraulic hose and "mess with" the box. Cappoli Record at 43. It appeared as if Conwell was trying to scrape the price tag off of the box. Johanning called Edmonds to ascertain the price of the hose.
By the time Edmonds obtained the price, Conwell had already made his purchase and left the store. Upon examining the cash register tape, it was determined that Conwell had purchased an 84-inch hydraulic hose, SKU number 571-196, with a price tag for a lock coupler, SKU number 631-081. The hydraulic hose normally sold for $12.59, but with the lock coupler price tag, Conwell bought it for $8.49.
Johanning reported the incident to William S. Alverson, a member of security personnel for Fleet Supply Incorporated. Alverson reviewed the video tape Johanning made of Conwell. Alverson also inspected the merchandise in the area where the incident was to have occurred. He discovered that all of the 84-inch hydraulic hoses remaining on the shelf contained the correct price tag. Edmonds told Alverson that a coupler was found on the shelf below its original shelf and the price tag was missing. Alverson then reported the incident to the Howard County Sheriff's Department.
Detective Rich Ferguson responded to Alverson's call. Ferguson went to the Big R store where he viewed the video tape. Upon doing so, Ferguson advised Alverson that the video tape did not contain enough evidence to warrant filing criminal charges because the tape did not show the item being remarked. Ferguson nonetheless requested a copy of the video tape because the department considered the matter a complaint and would investigate further. Alverson sought and obtained approval from the head security officer to continue the case. Alverson told Ferguson that his superiors wanted to pursue criminal charges against Conwell.
Steven R. Rogers, an investigator with the Sheriff's Department, was assigned to investigate the incident. Rogers talked with the Big R employees involved and obtained a copy of Johanning's video tape of Conwell. Following his investigation, Rogers turned the case over to prosecuting officials. Rogers swore out a probable cause affidavit in which he detailed his investigation and identified the materials he received during the course of his investigation: two reports prepared by the sheriff's department; Tammy Cappoli's statement; Thad Edmonds' statement; Big R's security report; and the video tape.
The prosecuting attorney filed charging informations against Conwell for theft and official misconduct. In conjunction with the informations, the prosecutor also submitted Rogers' probable cause affidavit and Johanning's video tape to the Howard Circuit Court. The court issued a warrant for Conwell's arrest on both charges and a warrant to search Conwell's residence.
On August 7, 1990, Conwell was arrested at his home by seven officers of the Howard County Sheriff's Department pursuant to the arrest warrant issued by the court earlier that day. The officers also executed the warrant to search Conwell's residence where they discovered a piece of hydraulic hose, the carton which the hose came in, the cash register slip of the transaction, and the Big R bag in which the hose was placed. There were two price tags on the hose carton, one placed over the other. The top tag bore a price of $8.49 and a SKU number of 631-801, the same as the price and SKU number of a coupler like the one discovered without a price tag on the Big R shelf.
Following Conwell's arrest and the search of his residence, appellee-defendant, Sheriff J.D. Beatty, called an "impromptu" press conference at the Sheriff's Department. Beatty Record at 76. Beatty told the press that Conwell had been arrested pursuant to warrants for theft and official misconduct. Beatty also relayed the details provided to the court in support of the arrest and search warrants. Beatty told the press that on a prior occasion, Conwell had been involved in a price switching incident at a local K-Mart.
Conwell subsequently attempted to retire from the sheriff's department. Sheriff Beatty refused to assist Conwell with the necessary paperwork to obtain Conwell's pension. Legal counsel advised Beatty that Beatty had no authority to deny Conwell's retirement request, and on August 30, 1990, the Howard County Sheriff's Department Merit Board accepted Conwell's resignation and retirement.
Conwell went to trial on the criminal charges, and a jury found him not guilty. Following his acquittal, Conwell filed the lawsuits underlying the present appeal. He sued Tammy Cappoli and Fleet Supply Incorporated, doing business as Big R stores, on theories of malicious prosecution, defamation, intentional infliction of emotional distress, and negligence and/or gross negligence.
In a separate action, Conwell sued Sheriff Beatty, the Howard County Sheriff's Department, and Howard County. Conwell claimed these defendants were answerable for defamation, false arrest, intentional infliction of emotional distress, and for violating Conwell's constitutional liberty interest in his good name and reputation, including his "employability," giving rise to an action under 42 U.S.C. § 1983.
All the defendants in both actions moved for summary judgment. The trial court granted the respective motions without stating the basis for its judgment. Conwell initially appealed each case separately. This court granted Conwell's subsequent motion to consolidate the appeals.
When reviewing a decision on a summary judgment motion, this court applies the same standard as the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Summary judgment shall be granted if the designated evidentiary matter demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Wickey, 642 N.E.2d at 265. All facts and reasonable inferences must be construed against the moving party. Sizemore v. Arnold, 647 N.E.2d 697, 699 (Ind.Ct.App.1995). We will affirm a summary judgment ruling on any legal theory which is consistent with the designated evidence in the record. Crist v. K-Mart Corp., 653 N.E.2d 140, 142 (Ind.Ct.App.1995), trans. denied (1996).
Conwell's defamation claim against Beatty and the Howard County defendants is based on statements Beatty made to the local newspaper in connection with the Sheriff's Department's investigation of the Big R incident. In his affidavit designated to the trial court, Conwell asserted:
"50. That following my arrest, a newspaper article appeared in the Kokomo Tribune which stated:
which statements were attributed to Sheriff Beatty."
Beatty Record at 155. Also designated to the trial court was Beatty's affidavit in which he averred:
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