Levee v. Beeching

• Decision Date: 31 May 2000
• Docket Number: No. 71A04-9906-CV-248.,71A04-9906-CV-248.
• Citation: 729 N.E.2d 215
• Parties: Carol LEVEE, Appellant-Plaintiff, v. Richard BEECHING and National Education Association, South Bend, an Affiliate of the Indiana State Teachers Association, Appellees-Defendants.
• Court: Indiana Appellate Court

729 N.E.2d 215

Carol LEVEE, Appellant-Plaintiff, v. Richard BEECHING and National Education Association, South Bend, an Affiliate of the Indiana State Teachers Association, Appellees-Defendants.

No. 71A04-9906-CV-248.

Court of Appeals of Indiana.

May 31, 2000.

Sean E. Kenyon, Margot F. Reagan, Konopa & Murphy, South Bend, Indiana, Attorneys for Appellant.

Richard J. Darko, Eric M. Hylton, Lowe Gray Steele & Darko, Indianapolis, Indiana, Attorneys for Appellees.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Carol Levee ("Levee") appeals from partial summary judgment on the issue of defamation per se, partial summary judgment on the issue of tortious interference with a business relationship¹, and judgment on the evidence in favor of Richard Beeching ("Beeching") and the National Education Association-South Bend ("NEA").

We affirm in part and reverse and remand in part.

ISSUES

Levee raises three issues for our review, which we consolidate and restate as:

1. Whether the trial court erred in granting partial summary judgment in favor of Beeching and the NEA on the issues of defamation per se, tortious interference with a contractual relationship, and tortious interference with a business relationship.

2. Whether the trial court erred in entering judgment on the evidence in favor of Beeching and the NEA on the issue of defamation per quod.

FACTS AND PROCEDURAL HISTORY

Levee has been the principal of Eggleston School in South Bend since the Fall of 1994. Beeching is the UNISERV² Director for the NEA-South Bend, and he is married to Elaine Beeching ("Elaine"), a teacher at Eggleston. During the Spring and Fall of 1995, Levee took some actions which upset Elaine. During the Fall of 1995, Kelly Reygaert, another teacher at Eggleston, heard Elaine discussing Levee and concluded that Elaine wanted to force Levee to leave Eggleston. Between August, 1995 and November, 1995, Elaine filed six grievances against Levee and conferred with other teachers who filed two grievances. Beeching, as the UNISERV Director, acted upon those grievances. On October 19, 1995, Beeching placed a document in each Eggleston School teacher's box stating that Levee "couldn't be trusted." Record at 156. These events led Bruce Stahly, Executive Director of Support Services for the South Bend Community School Corporation ("SBCSC"), Jan Putz, Executive Director of Instruction and Curriculum for the SBCSC, and Myrtle Wilson, Director of Elementary Secondary Education for the SBCSC to write a joint letter to the Executive Committee of the NEA-South Bend expressing concern that Beeching was apparently using his office "to conduct what appears to be a personally motivated attack" against Levee. Record at 870.

On January 23, 1996, Beeching met with Eggleston School teachers regarding the cancellation of an Internet training session that Levee had scheduled. During that meeting, Beeching called Levee a "liar" and stated that Levee "favored some staff." Record at 156. Thereafter, on March 6, 1996, Stahly, Putz and Wilson wrote a letter to the President of the Indiana State Teachers Association complaining about Beeching's continued personal attacks on Levee.

At the conclusion of the 1995-96 school year, Levee received a 1.5% merit increase. She had received a 3% merit increase at the close of each of the previous three school years. Levee's supervisor, Myrtle Wilson, told her that the decrease in her merit pay was due to the turmoil at Eggleston during the 1995-96 school year.

On March 20, 1996, Levee filed a complaint against Beeching and the NEA. She sought damages for defamation, tortious interference with a contractual relationship, and intentional infliction of emotional distress. On November 3, 1997, Beeching and the NEA moved for partial summary judgment on the issues of defamation and intentional infliction of emotional distress. The trial court granted partial summary judgment in favor of Beeching and the NEA on the issues of defamation per se and intentional infliction of emotional distress but ruled that the issue of whether Levee could recover on a theory of defamation per quod should go to a jury.

On November 3, 1998, Beeching and the NEA moved for partial summary judgment on the issue of tortious interference with a business or contractual relationship.³ Following oral argument, the trial court entered partial summary judgment in favor of Beeching and the NEA. Levee was allowed to proceed to trial on the issue of defamation per quod. Following Levee's presentation of evidence on her claim, Beeching and the NEA moved for judgment on the evidence. After hearing arguments on the motion, the trial court entered judgment on the evidence in favor of Beeching and the NEA.

DISCUSSION AND DECISION

I. Summary Judgment

In reviewing a motion for summary judgment, we apply the same standard as the trial court, and we resolve any question of fact or an inference to be drawn therefrom in favor of the non-moving party. Foster v. Evergreen Healthcare, Inc., 716 N.E.2d 19, 23-24 (Ind.Ct.App.1999), trans. denied. Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). Once the moving party has met this burden with a prima facie showing, the burden shifts to the non-moving party to demonstrate that there is a genuine issue of material fact for trial. Jacques v. Allied Bldg. Servs. of Indiana, 717 N.E.2d 606, 608 (Ind.Ct.App.1999). Any doubt about the existence of a factual issue should be resolved against the movant, with all properly asserted facts and reasonable inferences construed in favor of the nonmovant. Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 261 (Ind.1994). The party appealing the grant of a motion for summary judgment bears the burden of persuading this court that the trial court erred. Foster, 716 N.E.2d at 24.

A. Defamation Per Se

Levee contends that the trial court erred when it entered partial summary judgment on the issue of defamation per se. 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. Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App. 1992), trans. denied. In addition, the defamatory nature of the communication must appear without resort to extrinsic facts or circumstances. McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied. The determination of whether a communication is defamatory is a question of law. Id.

Levee contends that Beeching's remarks calling her a "liar" and stating that she "favored some staff" were defamatory per se. Specifically, Levee maintains that these comments imputed professional misconduct on her part and indicated that she had deliberately lied in the course of her duties as principal. Beeching and the NEA respond that the comments were not defamatory per se because they were merely obnoxious remarks and because reference to extrinsic facts was necessary to convey a defamatory meaning.

While we conclude that Beeching's comments had a defamatory imputation, we agree with the trial court that they were not defamatory per se. As a matter of law, his words were not "so obviously and naturally harmful that proof of their injurious character can be dispensed with." Moore v. University of Notre Dame, 968 F.Supp. 1330, 1334 (N.D.Ind.1997). Beeching's remarks that Levee was a "liar" and that she "favored some staff" acquired a defamatory meaning only with reference to Beeching's pattern of personal attacks against Levee. McQueen, 711 N.E.2d at 65. They are not, therefore, actionable per se. Id. The trial court correctly entered partial summary judgment in favor of Beeching and the NEA on this issue.

B. Tortious Interference With a Contractual Relationship

Levee contends that the trial court erred in granting partial summary judgment in favor of Beeching and the NEA on the issue of their alleged tortious interference with the business relationships she had with her employer and Eggleston teachers. Beeching and the NEA correctly recognize that Levee's claim for interference with her relationship with her employer, SBCSC, is one for intentional interference with a contractual relationship. We have consistently held that an action for intentional interference with a business relationship arises where there is no contract underlying the relationship involved in the litigation. See Comfax Corp. v. North Am. Van Lines, Inc., 587 N.E.2d 118, 124 (Ind.Ct.App.1992)

; Biggs v. Marsh, 446 N.E.2d 977, 983 (Ind.Ct. App.1983); Helvey v. O'Neill, 153 Ind. App. 635, 647, 288 N.E.2d 553, 560-561 (1972).

Here, while the trial court did not distinguish between the two claims, its order of January 19, 1999 granted partial summary judgment in favor of Beeching and the NEA "on Count III" of Levee's complaint. Because Count III included both Levee's claim for tortious interference with a business relationship and her claim for tortious interference with a contractual relationship, the trial court's order disposed of both claims. We conclude that Levee's claim for tortious interference with a contract should have gone to the jury.

The elements of an action for tortious interference with a contract are: (1) the existence of a valid and enforceable contract; (2) defendant's knowledge of the existence of the contract; (3) defendant's intentional inducement of breach of the contract; (4) the absence of justification; and (5) damages resulting from defendant's wrongful inducement of the breach. Biggs, 446 N.E.2d at 983. Beeching and the NEA contend that they have demonstrated that the undisputed material facts prove that Beeching's conduct was justified and that he did not induce Levee's employer to breach its contract with her, thus negating two elements of Levee's...