Davidson v. Perron

• Decision Date: 23 August 1999
• Docket Number: No. 43A03-9902-CV-63.,43A03-9902-CV-63.
• Citation: 716 N.E.2d 29
• Parties: Bruce DAVIDSON, Appellant-Plaintiff, v. James PERRON, Mayor, and City of Elkhart, Indiana, Appellees-Defendants.
• Court: Indiana Appellate Court

716 N.E.2d 29

Bruce DAVIDSON, Appellant-Plaintiff, v. James PERRON, Mayor, and City of Elkhart, Indiana, Appellees-Defendants.

No. 43A03-9902-CV-63.

Court of Appeals of Indiana.

August 23, 1999.

Bruce Davidson, Indianapolis, Indiana, Appellant Pro Se.

R. Kent Rowe, Marie Anne Hendrie, South Bend, Indiana, Attorneys for Appellees.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Bruce Davidson, pro se, appeals the trial court's dismissal of his two count "Amended Complaint for Civil Rights Violations, Defamation, and Libel" against Mayor James Perron (the "Mayor") and the City of Elkhart, Indiana (the "City"). The trial court dismissed Count I of Davidson's complaint because Davidson failed to comply with the notice requirements of the Indiana Tort Claims Act. The trial court dismissed Count II of Davidson's complaint after concluding that the same or similar action was pending in another state court. On cross-appeal, the Mayor and the City appeal the trial court's previous denial, in part, of their motion to dismiss Davidson's original complaint.

We affirm in part, reverse in part and remand.

ISSUES

Davidson raises two issues for our review and the City and the Mayor raise one issue on cross-appeal, all of which we restate as:

1. Whether the trial court erred when it dismissed Davidson's defamation claim based upon the Indiana Tort Claims Act.

2. Whether the trial court erred when it dismissed Davidson's constitutional and civil rights claims because the same or similar action was pending in another state court.

3. Whether the trial court erred when it denied the Mayor and the City's motion to dismiss Davidson's original complaint.

FACTS AND PROCEDURAL HISTORY

Until his termination by the Elkhart Board of Public Works in October of 1995, Davidson was a police officer with the Elkhart Police Department and was also president of the local Fraternal Order of Police. On January 4, 1994, a letter signed and purportedly written by Elkhart reserve police officer Steven Cappelletti appeared in the editorial section of The Elkhart Truth. The letter, written in response to a letter Davidson had written that had been published in the newspaper several days earlier, contained the following two paragraphs that became the subject of this lawsuit:

Davidson's assertion that "Mayor Perron has been too soft on crime and a little too hard on cops" is laughable. In reality, some cops like Davidson have been a little too soft on crime and too hard on Mayor Perron.

Police certainly have privileges but I do not believe that they should be abused in the way that some officers like Davidson have done. The so-called vote of no confidence amounted to only a cheap shot against the chief.

Record at 82 (emphasis added). In January of 1995, Cappelletti admitted to Davidson that the Mayor was the true author of the letter. Thereafter, on February 9, 1995, Davidson sent his written tort claims notice to the Mayor and the City. Although the Mayor publicly denied that he had written the letter and his denial was reported in The Elkhart Truth, the Mayor later admitted during a deposition that he had written the letter.¹

On June 1, 1995, Davidson filed a one count complaint for defamation against the Mayor and the City in the Elkhart Superior Court. The Mayor and the City filed a motion to dismiss on July 21, 1995, alleging that the statements in the letter were not defamatory, as a matter of law. The Elkhart Superior Court granted the motion to dismiss in part, and denied the motion in part. Davidson then filed a motion to amend his complaint to include constitutional and civil rights claims under 42 U.S.C. § 1983 against the Mayor and the City. Davidson's constitutional and civil rights claims alleged that the Mayor had engaged in a plan to discredit him and damage his reputation. Davidson also alleged that the Mayor engaged in harmful conduct which eventually led to Davidson's termination from the police department and which further damaged his reputation. The parties subsequently moved for a change of venue due to excessive press coverage, and the case was transferred to the Kosciusko Circuit Court.

With leave of court, Davidson then filed a "Restated Complaint" on May 22, 1998. The Mayor and the City filed a motion to dismiss the restated complaint which the court granted on June 30, 1998. In response, Davidson filed a motion to amend the complaint which was granted by a judge pro tempore.² Thereafter, in addition to filing his two count "Amended Complaint for Civil Rights Violations, Defamation, and Libel" against the Mayor and the City, Davidson filed a Motion to Correct Error regarding the trial court's June 30, 1998, dismissal of his restated complaint. Following a hearing held on October 7, 1998, the trial court denied Davidson's motion to correct error and granted the Mayor and the City's motion to dismiss Davidson's amended complaint. This appeal and cross-appeal ensued.

DISCUSSION AND DECISION

Davidson's Appeal

Issue One: Dismissal of Count I

The trial court dismissed Davidson's defamation claim, Count I of Davidson's amended complaint, pursuant to Trial Rule 12(B)(6) for failure to state a claim upon which relief can be granted. Specifically, the trial court determined that Davidson had failed to comply with the notice requirements of the Indiana Tort Claims Act (the "ITCA"), Indiana Code Section 34-4-16.5-1 et seq.³ (the "ITCA").

A motion to dismiss pursuant to Trial Rule 12(B)(6) tests the legal sufficiency of the claim, not the facts which support it. Vakos v. Travelers Ins., 691 N.E.2d 499, 501 (Ind.Ct.App.1998), trans. denied. Upon review of a 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the non-moving party, and draw every reasonable inference in favor of that party. Newman v. Deiter, 702 N.E.2d 1093, 1097 (Ind.Ct.App. 1998), trans. denied. Only when the allegations present no possible set of facts upon which the complainant can recover is a Trial Rule 12(B)(6) motion to dismiss properly granted. Mart v. Hess, 703 N.E.2d 190, 193 (Ind.Ct.App.1998). We will affirm the trial court's grant of a motion to dismiss if it is sustainable on any theory or basis found in the record. Newman, 702 N.E.2d at 1097. However, dismissals pursuant to Trial Rule 12(B)(6) are rarely appropriate. Ratliff v. Cohn, 693 N.E.2d 530, 534 (Ind.1998).

The ITCA provides that a claim against a political subdivision is barred unless the prescribed notice is filed within 180 days after the loss occurs. IND.CODE § 34-4-16.5-7; Bradley v. Eagle-Union Community Sch. Corp. Bd. of Sch. Trustees, 647 N.E.2d 672, 676 (Ind.Ct.App. 1995).⁴ The notice requirements of the ITCA apply not only to suits against political subdivisions but also to suits against employees of political subdivisions. Van-Valkenburg v. Warner, 602 N.E.2d 1046, 1048 (Ind.Ct.App.1992),trans. denied. Compliance with the notice provisions of the ITCA is a procedural precedent which the plaintiff must prove and which the trial court must determine before trial. Indiana Dep't of Highways v. Hughes, 575 N.E.2d 676, 678 (Ind.Ct.App.1991),trans. denied. Indeed, when a plaintiff fails to give the required notice, the defendant has an affirmative defense which must be raised in a responsive pleading to the plaintiff's complaint. Thompson v. City of Aurora, 263 Ind. 187, 194-95, 325 N.E.2d 839, 843 (1975). Once the defendant raises failure to comply with the ITCA's notice requirements as an affirmative defense, the burden shifts to the plaintiff to prove compliance. Id.

In the instant case, the allegedly defamatory letter was published on January 4, 1994. Davidson's tort claims notice was not sent to the Mayor until February 9, 1995, well beyond the 180-day time limit. Thus, Davidson failed to comply with the notice provisions of the ITCA.

Nevertheless, Davidson contends that the Mayor and the City should be estopped from asserting the ITCA as a bar to his defamation claim. Specifically, Davidson argues that the pleadings establish that the Mayor engaged in a plan of deceit to disguise his authorship of the letter and that Davidson could not have known of the true identity of the tortfeasor and his status as a government employee until after the 180-day time limit had lapsed. In support of his estoppel argument, Davidson points to our recent decision in Gregor v. Szarmach, 706 N.E.2d 240 (Ind.Ct.App.1999). In Gregor, this court addressed for the first time "the significance of a plaintiff's legitimate and complete ignorance that a defendant is a government employee as that ignorance relates to that plaintiff's failure to comply with the ITCA." Id. at 242 (quoting Judge Dillin's opinion in Baker v. Schafer, 922 F.Supp. 171, 173 (S.D.Ind.1996)). We held that in a case where a government employee in the course of his duties acts in a manner which disguises or fails to reveal his status as a government employee, he may be estopped from asserting the Act as a bar to a claim if the plaintiff actually and reasonably lacks knowledge of the government employee's status. Id. at 243.

As our holding in Gregor illustrates, a party may not utilize a subterfuge to bar a claim for failure to comply with the notice provisions of the ITCA. Accepting the pleadings as true in this case, the pleadings establish that the Mayor, in the course of his duties, purposefully disguised his identity as the author of the letter. Consequently, the Mayor prevented Davidson from knowing the author's true identity and status as a government employee. The Mayor not only failed to sign the letter, but continued to deny his authorship publicly until questioned under oath at a deposition. Viewing the facts alleged in the light most favorable to Davidson, we conclude that Davidson has sufficiently established that the Mayor's deceitful conduct led to his ignorance that the true author of the letter was the Mayor, which prevented Davidson from complying with the notice provisions of...