Hoffman v. Roberto
| Decision Date | 23 September 1991 |
| Docket Number | No. 71A03-9009-CV-399,71A03-9009-CV-399 |
| Citation | 578 N.E.2d 701 |
| Parties | Raymond K. HOFFMAN, Appellant-Plaintiff Below, v. Elizabeth ROBERTO, Walter L. Wittenberg, Durwood Young, Lawrence Parrott, Kevin Cash, William A. Nolan, Michael L. Fayette, Nancy Loomis, Lonnie Wilson, Richard Nelson, James Curcio, Estate of Jackie Presser, and International Brotherhood of Teamsters, Warehousemen, Appellees-Defendants Below. |
| Court | Indiana Appellate Court |
Robert J. Palmer, Jeffery A. Johnson, Tammy S. Sestak, May, Oberfell & Lorber, South Bend, for appellant-plaintiff below.
Robert J. Konopa, Kramer, Butler, Simeri, Konopa and Laderer, South Bend, Dennis R. Wilcox, Thomas M. Wilson, Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., Cleveland, Ohio, Todd J. Kaiser, Locke, Reynolds, Boyd & Weisell, Barbara J. Baird, Edward J. Fillenwarth, Jr., Fillenwarth, Dennerline, Groth & Baird, Indianapolis, for appellees-defendants below.
Plaintiff-appellant Raymond K. Hoffman appeals the dismissal of his fourth amended complaint as to the above-named defendants. Roberto, Wittenberg, Young, Parrott, Cash, Nolan, Fayette, Loomis, Wilson, Nelson and Curcio are members of the Unsecured Creditor's Committee (creditor's committee) in the bankruptcy proceedings for Tucker Freight Lines, Inc., pending in the Western District of Michigan, Southern Division. At the time of the incidents pertinent to this action, Hoffman was the president of Tucker. Hoffman brought suit against members of the creditor's committee, Jackie Presser, who was the chairman of the International Brotherhood of Teamsters (IBT), and IBT alleging that proceedings initiated by the creditor's committee in the bankruptcy of Tucker and certain communications through telex made by Presser which were circulated to union locals in the trucking industry constituted defamation. The claims against IBT are based upon the doctrine of respondeat superior stemming from the telexes sent by Presser.
In his fourth amended complaint, the subject of this appeal, Hoffman sued for defamation, malicious prosecution, abuse of process, and tortious interference with business relations. During the litigation of this case, Presser died. Presser's estate was substituted as a defendant.
In September 1983, Central Transport, Inc. purchased the ailing Tucker. Within days after the purchase, Tucker filed a voluntary petition under Chapter 11 of the Bankruptcy Act. On December 15, 1983, approximately three months after Tucker filed for bankruptcy protection, a telex was sent to members of the trucking industry. The telex advised that Tucker had recently been purchased by Central and that soon Tucker would be closing. The telex urged terminal managers and sales representatives to make contacts in order to transfer Tucker's customers to "CL Motor Freight." The telex bore the name, "R.A. Hoffman." Hoffman denied sending the telex; however the creditor's committee fearing further depletion of Tucker's customers and goodwill immediately filed a request for a restraining order and a request for appointment of a trustee alleging inter alia that Hoffman was attempting to divert Tucker's customers and goodwill to Central.
Then in December 1983 and January 1984, two telex communications, authored by Presser in his capacity as chairman of the Teamsters National Freight Industry Negotiating Committee, advised union members of the action by the creditor's committee. The telexes were directed to local unions having members employed by Tucker. The first telex advised of the status of negotiations between Tucker and the union on contract concessions, and that the creditor's committee had filed an action for appointment of a trustee over Tucker, and had requested a restraining order to prevent Tucker from diverting customers and assets to another company. The December telex did not mention Hoffman. The second telex announced that the trustee had been appointed and purported to list factors which formed the basis of the decision. Twelve factors were listed. The telex mentioned Hoffman, stating that after a unilateral reduction in the wages of the union members, Hoffman received a salary increase.
Prior to appointment of a trustee in January 1984, all parties and the court became aware that Hoffman did not author the December 15, 1983 telex, and that the company referred to was not Central but another carrier with the initials "CL." In determining that a trustee should be appointed, the court based its decision on factors other than the telex. The court termed the telex's impact on the proceedings "negligible." Also, the temporary restraining order which had been issued earlier was allowed to expire without further action.
Alleging damage to his business and personal reputations, and limitations on his ability to obtain employment in the trucking industry caused by falsely imputing authorship of the December 15, 1983 telex to him, Hoffman filed his original complaint in December 1984. Hoffman's original complaint inaccurately described Presser as a member of the creditor's committee and did not mention the two telexes authored by Presser.
The cause was transferred to the United States District Court for the Western District of Michigan where it remained until 1988. The federal court then remanded the cause to the St. Joseph Circuit Court. The complaint was amended three times prior to remand to St. Joseph Circuit Court.
In 1988 the creditor's committee, Presser, and IBT filed motions to dismiss, prompting Hoffman to move to amend his complaint for the fourth time in June 1989. In July 1989 the creditor's committee moved to dismiss Counts I, II, and III of the fourth amended complaint. In September 1989, the trial court granted Hoffman's motion to amend the complaint, and granted the defendants' renewed motions to dismiss on Counts I, II, III, V and VI. The court reserved ruling on the motion to dismiss as to six members of the creditor's committee on Count IV. The trial court entered findings of fact and conclusions of law in December 1989. In May 1990, the trial court dismissed the remaining count as to the members of the creditor's committee after they filed a motion for summary judgment. The court ordered that the cause be dismissed and that Hoffman take nothing by reason of his complaint. This appeal ensued.
Hoffman raises three issues for review, which as restated are:
(1) whether the trial court erred in dismissing Hoffman's claims against Presser and IBT based upon a qualified privilege, and finding that the claims could not be maintained as a matter of law;
(2) whether the trial court erred in dismissing the claims against the creditor's committee based upon an absolute privilege, and finding that the claims could not be maintained as a matter of law; and
(3) whether the trial court erred in refusing to consider published depositions in granting judgment in favor of the creditor's committee.
Initially, it should be noted that the record does not reveal a determination whether Michigan or Indiana substantive law is applicable. On appeal Hoffman contends that the choice of law would not affect his claims. The creditor's committee contends that, although the trial court did not so state, the findings are based upon Michigan law and Michigan law should apply. Presser and IBT rely upon Indiana law and federal law in their briefs of appellee. While Indiana and Michigan law are similar regarding defamation, some differences exist.
In Hubbard Mfg. Co., Inc. v. Greeson (1987), Ind., 515 N.E.2d 1071, 1073-1074, our supreme court adopted a modified test for determining the choice of substantive law to be applied in a tort case. Prior to Hubbard, Indiana had followed the traditional doctrine of lex loci delicti, employing the substantive law of the place where the tort was committed. See Tompkins v. Isbell (1989), Ind.App., 543 N.E.2d 680, 681; Bencor Corp. v. Harris (1989), Ind.App., 534 N.E.2d 271, 272.
The court in Hubbard noted that often the place of the tort is significant and will be the place of the most contacts. Hubbard, supra, at 1073. However, when the place of the tort is insignificant, the court should evaluate other factors, according to their relative importance, such as:
Under the foregoing test, the first inquiry is whether the place of the tort "bears little connection" to the particular action. See id. If the place of the tort is significant, the traditional doctrine of lex loci delicti will be employed.
In a defamation action, the place of the tort is generally considered the place of publication. See 53 C.J.S. Sec. 5(b) Libel and Slander. Where the place of publication simultaneously occurs in more than one state, the place of the tort may become insignificant. Cf. Id. Here, the telexes were published simultaneously in several states, and the legal proceedings by the creditor's committee were initiated in Michigan. Under the Hubbard test, the place of the tort bears little connection to this particular action, requiring use of the three factors set out above.
The first factor, "the place where the conduct causing the injury occurred," leads to consideration of more than one state. The action by the creditor's committee occurred in Michigan where the bankruptcy proceedings were pending. The record discloses that the telexes originated from Presser's office in Washington, D.C. However, the place of origin of the telexes bears little significance to this action.
The second factor, "the residence or place of business of the parties," also embraces more than one state. Hoffman was a resident of Indiana. The record is conflicting as to the principal place of business of Tucker; however, Hoffman apparently worked at Tucker in...
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