Kelley v. Tanoos

• Decision Date: 02 May 2007
• Docket Number: No. 84S01-0605-CV-195.,84S01-0605-CV-195.
• Citation: 865 N.E.2d 593
• Parties: Paul Joseph "Jay" KELLEY, III, Appellant (Plaintiff below), v. Daniel T. TANOOS, Appellee (Defendant below).
• Court: Indiana Supreme Court

865 N.E.2d 593

Paul Joseph "Jay" KELLEY, III, Appellant (Plaintiff below), v. Daniel T. TANOOS, Appellee (Defendant below).

No. 84S01-0605-CV-195.

Supreme Court of Indiana.

May 2, 2007.

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

Robert B. Clemens, George T. Patton, Bryan H. Babb, Indianapolis, IN, Attorneys for Appellee.

Linda J. Cooley, Indiana Association of School Principals, David R. Day, Indiana Association of Public School Superintendents, Joseph K. Etling, Indiana Urban Schools Association and Vigo County Administrators Association, A. Howard Williams, Indiana Sheriffs Association, and the Vigo County Sheriff's Department, Kendall Boyd, City of Terre Haute (Police Dept.), and the City of Terre Haute (Mayor's Office), C. Russell Cox, Indiana Association of Chiefs of Police, Inc., Bruce D. Aukerman, National Association of School Resource Officers, and the International Union of Police Associations, Attorneys for Amici Curiae.

On Petition to Transfer from the Indiana Court of Appeals, No. 84A01-0410-CV-461

SULLIVAN, Justice.

Daniel Tanoos believed that Paul Kelley had been the unidentified gunman who had fired a shotgun at him, though Kelley was never charged. While the police were investigating the incident, and with their knowledge and cooperation, Tanoos made accusatory statements about Kelley in a private conversation with the head of the school where Kelley worked. When Kelley learned of the statements, he sued Tanoos for defamation. We hold that Tanoos is protected from liability for defamation in these circumstances because the statements were made to assist law enforcement investigate criminal activity.

Background

On January 17, 2001, a bullet grazed the head of Daniel T. Tanoos, Superintendent of the Vigo County School Corporation ("School Corporation"), when someone fired a shotgun at him from outside his house. The police identified Paul "Jay" Kelley as a suspect because of his known animosity toward Tanoos. At the time of the incident, Kelley was Supervisor of Safety and Security at the Gibault School, a juvenile residential treatment facility also in Vigo County. James Sinclair was the Executive Director and Chief Executive Officer of Gibault, Inc.

The day after the shooting, there were rumors on the Gibault campus that Kelley was a suspect. The police came to Gibault School and interviewed some of Kelley's fellow employees. When police contacted Gibault a second time and indicated that they would like to speak to some Gibault employees again, they were told they should interview the employees on their own time rather than while the employees were working. This led to a rumor that Gibault was not cooperating with the police investigation and strained relations between the School Corporation and Gibault School. Concerned, Sinclair sent Tanoos a letter suggesting they meet.

Tanoos called the police, who expressed interest in the meeting because Kelley would be a topic of discussion. The police gave Tanoos questions to ask and a wire to wear so that the conversation could be recorded. At the meeting, which occurred on December 21, 2001, Tanoos attempted to coax information from Sinclair. In particular, Tanoos made the following statements about Kelley:

"I'm as convinced as the police are that Jay Kelley did it."

"Well, the issue with the polygraph is that he took it four times and failed it three times."

"It's all circumstantial, but it all leads back to him."

"He—I could throw you on to some other people the police looked at through different things and all—all of a sudden all the things they were hearing—everything just started pointing to him."

Kelley was never charged with any crime arising from the shooting incident. On December 10, 2002, Kelley filed a lawsuit for defamation against Tanoos. He subsequently learned of the taped conversation during the trial of one Marty Ketner, who was identified as a suspect in February 2002, tried, and acquitted. The parties filed cross-motions for summary judgment. The trial court, without findings of fact or conclusions of law, granted Tanoos's motion and denied Kelley's.

The Court of Appeals reversed and remanded, holding that genuine issues of material fact existed regarding Kelley's defamation claim and that Tanoos's statements were not covered by a qualified privilege. Kelley v. Tanoos, 840 N.E.2d 342 (Ind.Ct.App.2005). Tanoos, supported by law enforcement and several amici, sought, and we granted, transfer. Kelley v. Tanoos, 855 N.E.2d 1009 (Ind.2006) (table).

Discussion

I

A defamatory communication is one that "tend[s] to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing or associating with the person." Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied. The framers of the Indiana Constitution placed high value on reputation. Our Constitution provides that "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law." Ind. Const. art. I, § 12. Whether a communication is defamatory or not is a question of law for the court, unless the communication is susceptible to either a defamatory or nondefamatory interpretation — in which case the matter may be submitted to the jury. Rambo, 587 N.E.2d at 145.

A defamatory communication is said to either be "defamatory per se" or "defamatory per quod." A communication is defamatory per se if it imputes: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person's trade, profession, office, or occupation; or (4) sexual misconduct. Id. (citing cases). All other defamatory communications are defamatory per quod. Id. at 146. To maintain an action for either per se or per quod defamation the plaintiff must demonstrate (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind.1994). Actions for per se and per quod defamation are susceptible to different requirements with regard to the showing of damages. In an action for defamation per se the plaintiff "is entitled to presumed damages `as a natural and probable consequence' of the per se defamation." Rambo, 587 N.E.2d at 145 (citing Elliott v. Roach, 409 N.E.2d 661, 683 (Ind.Ct.App.1980)). In an action for defamation per quod, the plaintiff must demonstrate special damages. Id. at 146 (citing cases).

Kelley maintains that the requirements for maintaining an action for defamation per se have been met in this case. In the Court of Appeals, Tanoos argued that he was properly awarded summary judgment because at least three of the four elements for a defamation action were not present. The Court of Appeals disagreed, and found instead that (1) Tanoos's statements were defamatory per se; (2) Kelley had designated sufficient evidence to raise a question of fact as to whether Tanoos made the defamatory remarks with malice; and (3) that the record overwhelmingly supports the contention that Kelley was not damaged. Kelley, 840 N.E.2d at 347-48. Despite finding no evidence that Kelley sustained any damages at all, the Court of Appeals did not affirm the grant of summary judgment in favor of Tanoos because, as stated supra, in a per se action for defamation, damages are presumed and, per Ind. Evidence Rule 301, even rebutted presumptions are given continuing effect. Id. at 350-49; Schultz v. Ford Motor Co., 857 N.E.2d 977 (Ind.2006).

On transfer, Tanoos asks this Court to abolish the presumption of damages in an action for defamation per se, and grant summary judgment in his favor. We decline Tanoos's invitation to abolish the presumption of damages in an action for defamation per se; instead, we resolve this case under the qualified privilege doctrine.

II

A qualified privilege protects "communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty." Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992) (quoting Chambers v. American Trans Air, Inc., 577 N.E.2d 612, 615 (Ind. Ct.App.1991), trans. denied.). To "enhance[] public safety by facilitating the investigation of suspected criminal activity," communications to law enforcement officers are protected by this qualified privilege. Holcomb v. Walter's Dimmick Petroleum, 858 N.E.2d 103, 108 (Ind.2006). In the absence of a factual dispute, the applicability of the privilege is a question of law to be determined by the court. Bals, 600 N.E.2d at 1356.

A

Our courts have recognized two distinct rationales for holding certain communications qualifiedly privileged. The first is the well-established common interest privilege that protects communication made in connection with membership qualifications, Indianapolis Horse Patrol Inc. v. Ward, 247 Ind. 519, 217 N.E.2d 626 (1966); employment references, Passmore v. Multi-Management Services Inc., 810 N.E.2d 1022 (Ind.2004); intracompany communications, Schrader, 639 N.E.2d at 258; and the extension of credit, Boydston v. Chrysler Credit Corp., 511 N.E.2d 318 (Ind.Ct.App.1987). This privilege is intended to facilitate "full and unrestricted communication on matters in which the parties have a common interest or duty." Chambers, 577 N.E.2d at 615.

Tanoos contends that his statements to Sinclair are protected by the common interest privilege. To support this contention, Tanoos argues that both he and Sinclair were executives in partnered education institutions, that Sinclair employed Kelley as a school guard, and that tension between the School Corporation and Gibault had arisen as a result of Gibault's refusal to cooperate with the police investigation. (Appellee's Br. at 20.) Chiefly, Tanoos argues that both he and Sinclair share a common interest "in discerning...