Near East Side Community Organization v. Hair, 73A04-8903-CV-89

CourtCourt of Appeals of Indiana
Citation555 N.E.2d 1324
Decision Date28 June 1990
Docket NumberNo. 73A04-8903-CV-89,73A04-8903-CV-89
PartiesNEAR EAST SIDE COMMUNITY ORGANIZATION, Jerry King, Paul Miles-Severance, Valery Delong, Dottie Tackitt, Michelle Davis and Martha Miles-Severance, Appellants, v. Jeffery L. HAIR and Janet L. Hair, individually, and d/b/a J.L. Hair Realty, Appellees.

James B. Mitchell, William E. Marsh, Indianapolis, for appellants.

Craig D. Doyle, Klineman, Rose, Wolf and Wallack, Indianapolis, James Bopp, Jr., Brames, McCormick, Bopp and Abel, Terre Haute, for appellees.

MILLER, Judge.

In October 1987 the Near Eastside Multi-Service Center (NESCO), an unincorporated not for profit association, held a meeting addressing community issues of quality education and housing. The plaintiffs-appellees, Jeffrey L. Hair, Janet L. Hair, and Hair Realty (the Hairs) claimed that during that meeting the NESCO officers, Jerry King and Paul Miles-Severance, made statements about the Hairs which were defamatory because they implied the Hairs were "slum landlords". The Hairs also claimed that NESCO, its officers and members took actions which interferred with their contractual relationships with their tenants and other actions which invaded the Hairs' privacy.

The Hairs filed a complaint against NESCO, its officers and members in Shelby Circuit Court. The complaint stated three counts: (1) defamation, (2) interference with trade, and (3) invasion of privacy. NESCO filed a Motion to Dismiss under Ind. Trial Rule 12(B)(6) for failure to state a claim. The trial court denied the motion. On NESCO's motion, the Shelby Circuit Court certified the denial of the motion to dismiss for an interlocutory appeal pursuant to Ind. Appellate Rule 4(B)(6) and this court accepted jurisdiction. NESCO presents one issue for review:

Whether the trial court erred in denying the motion to dismiss because the First and Fourteenth Amendments to the Constitution We affirm the trial court's decision as to Count I, defamation, and reverse as to Counts II, interference with trade, and Count III, invasion of privacy.

of the United States preclude an award of damages against NESCO and its officers for the statements and actions attributed to them by the complaint.


On October 25, 1987, NESCO conducted a community meeting (also referred to as Congress) at new school number 15, at 2302 Michigan Street in Indianapolis. Tours were conducted, neighborhood exhibits were displayed, entertainment was provided by the Tech High School Swing Choir, and Mayor William Hudnut gave introductory greetings. Linda Bond, Assistant to State Superintendent Dean Evans, Indiana State Department of Education, was the keynote speaker. The speakers addressed two community issues--quality education (Bond) and slum landlords (defendant Jerry King, a past officer of NESCO).

Before the October 25th meeting, NESCO distributed a handbill advertising this community meeting which stated in part:

SLUM LANDLORDS: Taking action-Starting with the "Top Three" ...


Starting with the "Top Three Slumlords," what steps will we take to protect our residents and to make sure properties are adequately maintained?

Complaint, Exhibit A. (R. 52).

There is no reference to the Hairs in Exhibit A.

NESCO also prepared an agenda for the October 25th meeting, which was available prior to the meeting, again mentioning the "Campaign on housing and slum landlords." Complaint, Exhibit B, (R. 53). There was no mention of the Hairs on this agenda. During the meeting, NESCO distributed a handbill or leaflet advertising NESCO's proposed action campaign on large landlords. This leaflet addressed an issue which NESCO perceived as a problem in its neighborhood of "housing that does not meet minimum housing and zoning standards." Complaint, Exhibit C, (R. 55). It suggested that such housing damages the near eastside neighborhood in many ways, including depressing surrounding property values, giving the community a negative image, depriving tenants of decent housing, and discouraging investment and lending in the community.

The leaflet proposed a resolution:

NESCO will work diligently to ensure that the properties of all large landlords operating in our community meet minimum legal standards (at least) at all times. NESCO will do this by; (1) working with housing and zoning code enforcement of codes as possible, or (2) developing cooperative written agreements with landlords and working together to implement them. (R. 55).

The Hairs were not named in this document.

During the course of the NESCO Congress, defendants King and Paul Miles-Severance (another past officer and representative of NESCO) allegedly made the following statements which the Hairs contend are actionable as false and defamatory:

1. Miles-Severance spoke "to the effect that the Hairs are large landlords who do not take care of their properties so that they comply with minimum standard housing requirements and that they are uncooperative with NESCO in dealing with alleged complaints of tenants." Complaint, paragraph 9. (R. 46). (emphasis added);

2. King "spoke about the Hairs during the NESCO congress with the intent to create the impression and make the Hairs appear to be large slum landlords, whose housing is not in compliance with the minimum regulatory requirements." Complaint, paragraph 10. (R. 46-47). (emphasis added);

3. King "urged the public at said congress to 'Adopt a Hair Property' for the purposes of filing complaints at the Health and Hospital Department, and of encouraging tenants to file complaints with governmental agencies so as to further The Complaint further alleged that during the NESCO meeting, Miles-Severance and King stated that "they had never actually seen a property owned by the Hairs, or inspected a property owned by the Hairs, or were aware of any actual problems or complaints by tenants." Complaint, paragraph 15. (R. 47). Additionally, the Hairs allege that NESCO issued a document at the meeting containing the personal address of the Hairs and a list of properties they allegedly owned. Complaint, Exhibit D. (R. 57-58). This document included a Landlord Campaign Volunteer Form encouraging people to sign up to "help make the Near East Side a better place to live, work, and worship by volunteering in NESCO's campaign to ensure enforcement of housing codes for large landlords operating in our community." (R. 58). Volunteers were given an opportunity to lend their efforts to the campaign by agreeing to periodically check the exterior appearance of a Hair property, distribute informational flyers to Hair tenants, or "court watch" cases involving large landlords. (Exhibit D, R. 58).

                a 'more aggressive and less satisfied' attitude against the Hairs."   Complaint, paragraph 10.  (R. 47)

Finally, NESCO distributed at the meeting a document which purported to be a tentative agreement (reached two days before the congress) between plaintiff Janet L. Hair and NESCO representatives. Pursuant to this purported tentative agreement:

"(1) a joint inspection of all J.L. Hair properties on the Near East Side will be done by representatives J.L. Hair and NESCO by January 31, 1988.

(2) representatives of J.L. Hair and NESCO will negotiate an agreement that will outline repairs and improvements to be done by J.L. Hair to its properties on the Near East Side. This agreement will include a time schedule for repairs.

(3) If J.L. Hair seeks financing to carry out this agreement, NESCO will support these efforts by appropriate means and will offer advise and assistance where possible.

(4) During the time that the terms of this agreement are being complied with, if NESCO receives a complaint about a J.L. Hair property it will attempt to work out an agreement with J.L. Hair on this complaint before turning the complaint over to any enforcement agency."

Complaint, Exhibit C. (R. 56).


For the purposes of this appeal NESCO concedes the Complaint adequately alleges each and every element of each count. Even with this assumption, NESCO urges the complaint fails to state a claim because all of the actions attributed to NESCO are insulated from liability by the First and Fourteenth Amendments of the Constitution of the United States.

At the outset we will review this as a Motion to Dismiss under T.R. 12(B)(6) and will look only to the allegations of the complaint as set out in the facts. Hoosier Plastics v. Westfield Savings & Loan Association (1982), Ind.App., 433 N.E.2d 24. Any material included in the briefs referring to depositions or other transcript references will not be considered in this review. Our scope of review on a motion under T.R. 12(B)(6) is limited to the same standard as the trial judge--the complaint should not be dismissed for failure to state a claim unless the plaintiff cannot show, under any set of facts, that he is entitled to relief. State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604. The complaint should be viewed in the light most favorable to the Hairs to determine if it states a cause of action upon which relief may be granted. Hoosier Plastics, supra. Because NESCO concedes the Complaint adequately alleges each and every element of each cause of action, our review is then limited to the issue of a constitutional privilege and whether the trial court, in that regard, improperly denied the motion to dismiss.

Count I--Defamation

NESCO first argues that all statements made by NESCO and its officers are absolutely protected by the constitution and are not actionable as defamation. It further contends that because money damages can only be imposed on a speaker for false statements of fact--whether the action is styled as defamation, libel, slander, intentional infliction of emotional distress, interference with trade or invasion of privacy--that this action is properly resolved by a motion to dismiss.

The Hairs contend that NESCO's statements are false and defamatory...

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