Hamilton v. Prewett

• Decision Date: 06 February 2007
• Docket Number: No. 14A01-0601-CV-32.,14A01-0601-CV-32.
• Citation: 860 N.E.2d 1234
• Parties: Paul HAMILTON, Appellant-Plaintiff, v. Morgan PREWETT, Appellee-Defendant.
• Court: Indiana Appellate Court

860 N.E.2d 1234

Paul HAMILTON, Appellant-Plaintiff, v. Morgan PREWETT, Appellee-Defendant.

No. 14A01-0601-CV-32.

Court of Appeals of Indiana.

February 6, 2007.

John R. Price, John R. Price & Associates, Indianapolis, IN, Attorney for Appellant.

Blake Chambers, Waller Chambers & Hanson, Washington, IN, Attorney for Appellee.

OPINION

BAKER, Judge.

Appellant-plaintiff Paul Hamilton appeals from the trial court's order granting summary judgment in favor of appellee-defendant Morgan Prewett. Specifically, Hamilton claims that the trial court erred in granting Prewett's motion for summary judgment because (1) Prewett failed to designate evidence to support his motion in accordance with Indiana Trial Rule 56(C); (2) the evidence that Prewett did reference in his motion did not demonstrate that Hamilton had failed to prove any element of the defamation per se claim; and (3) Indiana's Strategic Lawsuit Against Public Participation statute¹ (anti-SLAPP statute) does not apply to this case. Because we determine that the trial court properly granted Prewett's motion for summary judgment and that the anti-SLAPP statute does not apply to this case, we affirm the judgment of the trial court and remand with instructions to enter an order denying Prewett's request for attorney's fees.

FACTS²

Prewett and his wife, Georgia Prewett (Georgia), reside in Daviess County. Hamilton maintains his business, Hamilton Water Conditioning, in Daviess County. Neither the record nor the parties' briefs address how the parties were acquainted, if at all. On June 21, 2002, Hamilton filed a lawsuit against the Prewetts in the Daviess County Superior Court after Hamilton found a website entitled "Paul Hamilten — The World's Smartest Man" (the Website), which Hamilton claims defamed him and his business. Hamilton's complaint alleged claims of defamation, intentional infliction of emotional distress, and punitive damages. On September 25, 2002, Hamilton filed an Amended Complaint and added his son, Michael Hamilton³ (Michael), as a party plaintiff because Michael was the legal owner of Hamilton Water Conditioning.

While there was a one-letter difference between the man on the website, "Paul Hamilten" ("Hamilten"), and appellant Paul Hamilton, Prewett has never denied that he was the author of the Website or represented that the Website was not a reference to Hamilton or Hamilton Water Conditioning. Instead, as detailed below, Prewett argues that the Website was a form of comedy, parody, or satire. The Website was written from the perspective of "Hamilten," a man in the business of water conditioning, and portrayed "Hamilten" as a manipulative individual both personally and professionally. Appellant's App. p. 75-108. For example, the Website stated:

I am a very intelligent, older American male and have my own very successful business dealing with the water conditioning field. I have a Master's Degree in Water Conditioning from Smartass University, a prestigious mail order college. While I am somewhat attractive, I am known for my ability to seduce women with my quick wit. I have several methods of attracting women as well as socializing skills, which are in the book I am writing. . . .

* * *

When my employees are installing a unit at a place where their [sic] is a woman at home, I like to get the target alone and tell her that she doesn't have to "pay for this." A couple of winks and boom, you have another sucker hooked. Please note that this only works on women that have half a brain, the more intelligent ones.

* * *

I place an ad in the paper which show [sic] my salt prices well below any other store in town. It is a known fact that few people buy one bag of salt at a time (except in the winter, then I tell them I am out of stock) and generally buy a lot. So I charge them the advertised price on the first bag and inflate it on the rest. . . . [If they ask me why the advertisement didn't say that the price was only for one bag,] I said that it wasn't published but we just knew it, this illustrates how fast I can think!

* * *

Since I have the name of my business on the vehicle, this provides free advertisement. If I am ever challenged [for parking illegally], I just say it is an Emergency vehicle and I am attending a water leak. This shows how stupid other people are, it is illegal to park this way and I know it, ha ha! . . . The Mayor in this town is terrified of me because I am so smart, but occasionally I do have to put him in his place.

* * *

I began stocking conditioned water in large five gallon containers. To turn over the water stock supply and maintain fresh water, I began selling the oldest containers as bottled water. . . . No one is smart enough to test the water for free sodium ions, they will never know it's just softened water in the containers.

Id. at 76-78, 103. As quoted in detail in Part II, the Website also contains eight pages of "Customer Testimonials" that describe the life-changing effects of drinking "Hamilten's" water. Id. at 91-99. These tongue-in-cheek testimonials, which are quoted in Part II, claim that drinking the water can cure severe facial disfigurement, attract women, and greatly increase the drinker's intelligence quotient.

On December 11, 2002, Georgia moved for partial summary judgment, seeking a dismissal of all claims against her because she was not involved in the creation or posting of the Website. After receiving Georgia's discovery responses and other assurances of her non-participation, the Hamiltons moved to dismiss their complaint against Georgia without prejudice and the trial court granted the motion on February 28, 2005.

On November 8, 2004, Prewett filed a motion to dismiss and for summary judgment (Motion). In his designated evidence, Prewett listed the depositions of himself, Georgia, and Hamilton; however, Prewett did not attach or refer to specific portions of the depositions. See id. at 126. In his brief supporting the Motion, Prewett argued that the Hamiltons' suit should be barred by Indiana's anti-SLAPP statute because the Website was made in furtherance of Prewett's right to free speech pursuant to the State and federal Constitutions. The Hamiltons did not respond to Prewett's Motion.

The trial court heard oral argument on the Motion on February 28, 2005, and the Hamiltons argued that they had no duty to respond to Prewett's Motion because he had not designated evidence as required by Indiana Trial Rule 56. The Hamiltons also asserted that the anti-SLAPP statute was not applicable to this case because comedy is not a public interest within the scope of that statute. The oral argument was limited to the adequacy of Prewett's designated evidence and the applicability of the anti-SLAPP statute. On August 16, 2005, the trial court granted Prewett's Motion because "Plaintiff[s have] failed to demonstrate the necessary elements for a cause of action of defamation against Defendant, Morgan Prewett, as a matter of law." Id. at 10.

Hamilton filed a motion to correct error on September 9, 2005, but the trial court summarily denied the motion on November 3, 2005. Hamilton now appeals the trial court's grant of summary judgment and the denial of the motion to correct error.

DISCUSSION AND DECISION

Where a motion to correct error is grounded upon a claim that the trial court erred by granting summary judgment, we review on appeal the grant of summary judgment. Rishel v. Estate of Rishel ex rel. Gilbert, 781 N.E.2d 735, 738 (Ind.Ct. App.2003). Summary judgment is appropriate only if the pleadings and evidence considered by the trial court show 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. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 909 (Ind.2001); see also Ind. Trial Rule 56(C). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. Owens Corning, 754 N.E.2d at 909. Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Id.

An appellate court faces the same issues that were before the trial court and follows the same process. Id. at 908. The party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id. A grant of summary judgment may be affirmed upon any theory supported by the designated evidence. Bernstein v. Glavin, 725 N.E.2d 455, 458 (Ind.Ct.App.2000).

I. Designated Evidence

A. The Website

We are initially concerned with whether the Website was before the trial court when it ruled on Prewett's Motion. A copy of the Website was not attached to Hamilton's complaint,⁴ appellant's app. p. 51-53, and we questioned the parties at oral argument about the manner in which the Website came before the trial court. Hamilton informed us that he filed a motion to compel Prewett to turn over a copy of the Website and that Prewett complied with his request. While Prewett insists that the trial court considered the Website with his Motion because a copy of it was attached to Prewett's deposition — a deposition he claims he designated as evidence with his Motion — we do not have that copy of the Website because none of the allegedly-designated depositions were included in the record on appeal. However, a copy of the Website is included in Hamilton's Appendix because it was attached to the preliminary witness and exhibit list that the Hamiltons submitted to the trial court. Appellant's App. p. 73-108. Because counsel for both parties asserted at oral argument that the trial court considered the...