Van Eaton v. Fink

• Decision Date: 24 July 1998
• Docket Number: No. 53A05-9708-CV-335,53A05-9708-CV-335
• Citation: 1998 WL 414632,697 N.E.2d 490
• Parties: Mark VAN EATON, Appellant-Plaintiff, v. Donna FINK, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 490

697 N.E.2d 490

Mark VAN EATON, Appellant-Plaintiff, v. Donna FINK, Appellee-Defendant.

No. 53A05-9708-CV-335.

Court of Appeals of Indiana.

July 24, 1998.

Rehearing Denied Nov. 5, 1998.

Walter E. Bravard, Jr., Indianapolis, for Appellant-Plaintiff.

Richard R. Skiles, Janet M. Prather, Skiles & Cook, Indianapolis, for Appellee-Defendant.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Mark Van Eaton ("Van Eaton") filed a Complaint for Damages for Defamation against Donna Fink ("Fink"). Fink filed her Answer and asserted the affirmative defense of privilege. Fink later filed a motion for judgment on the pleadings. Because Van Eaton attached additional materials outside the pleadings to his Response to Defendant's Motion to Dismiss, the motion was converted to a motion for summary judgment pursuant to Trial Rule 12(C). On March 10, 1997, the trial court denied Fink's motion.

Fink subsequently filed a motion to reconsider denial of summary judgment alleging that Van Eaton's supporting affidavits were not properly designated and, thus, not properly considered by the court. The court then reversed its earlier decision and granted Fink's motion for summary judgment. Van Eaton now appeals. The question presented is whether the trial court erred when it granted Fink's Motion for Summary Judgment.

We affirm.

FACTS

This suit arises from statements made by Fink in connection with another case, Kirchoff v. Selby, 686 N.E.2d 121 (Ind.Ct.App.1997), reh'g. denied. Fink worked as a legal assistant for attorney Dean Richards, who represented the Selbys. Attorney Patrick Shoulders represented the Kirchoffs. A jury awarded the Selbys $730,000.00. Before the trial court entered judgment on the verdict, Fink informed Shoulders that she had manufactured an exhibit on behalf of the Selbys, at Richards' request, in order to rehabilitate Van Eaton's testimony. ¹ She also stated that Van Eaton had testified falsely when he claimed, on rebuttal, that he had made notes regarding the differences between Exhibit 10 and Exhibit 12 prior to trial. In addition, Fink claimed that she had assisted Richards in the fabrication of Exhibit 61, a Stock Exchange and Subscription Agreement. After her sworn statement was taken before a notary, Fink sent a copy via facsimile to Richards.

The Kirchoffs then filed a motion to correct error based on newly discovered evidence. Kirchoff, 686 N.E.2d at 122. The trial court granted the Kirchoffs' motion and ordered a new trial. Id. Cross appeals were filed, and we affirmed the trial court's judgment. Id. at 133. We subsequently issued an opinion in which we denied the parties' petitions for rehearing, and the case is now pending before our supreme court. See Kirchoff v. Selby, 688 N.E.2d 1284 (Ind.Ct.App.1997), trans. pending.

On the same day the Kirchoffs filed their motion to correct error, Van Eaton filed this defamation suit against Fink. Fink responded that her statements were privileged and filed a motion for judgment on the pleadings. After Van Eaton attached thirteen affidavits to his response, Fink's motion was converted to a motion for summary judgment pursuant to Trial Rule 12(C). The trial court determined that the affidavits designated by Van Eaton had demonstrated a genuine issue of material fact which precluded the grant of summary judgment. Shortly thereafter, Fink filed a motion to reconsider and alleged that the affidavits had been improperly designated and, thus, were not properly considered by the trial court. The court agreed and granted Fink's motion for summary judgment.

DISCUSSION AND DECISION

Standard of Review

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Ind. Trial Rule 12(C). Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Konkle v. Henson, 672 N.E.2d 450, 454 (Ind.Ct.App.1996). Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Beiger Heritage Corp. v. Kilbey, 676 N.E.2d 784, 785 (Ind.Ct.App.1997). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Beiger, 676 N.E.2d at 785-86. We may sustain a summary judgment upon any theory supported by the designated materials. Squires v. Utility/Trailers of Indianapolis, Inc., 686 N.E.2d 416, 420 (Ind.Ct.App.1997).

I. Designation of Evidence

Van Eaton contends that summary judgment was inappropriate because the trial court erred when it determined that he had not designated materials in accordance with Indiana Trial Rule 56(C). We cannot agree.

Indiana Trial Rule 56(C) does not mandate the manner in which a party is to specifically designate material. National Bd. of Examiners for Osteopathic Physicians and Surgeons, Inc. v. American Osteopathic Ass'n, 645 N.E.2d 608, 615 (Ind.Ct.App.1994). Provided that the trial court is apprised of the specific material upon which the parties rely in opposition to a motion for summary judgment, the material may be considered. Id. Whether the parties designate material to the court in a separate filing, or in a brief in opposition to the motion, is within their discretion. Id. To comply with the designation requirement, a party may designate an affidavit either by providing specific page numbers and paragraph citations, or by specifically referring to the substantive assertions relied upon. Abbott v. Bates, 670 N.E.2d 916, 922 (Ind.Ct.App.1996) (citations omitted). However, the designation of pleadings, discovery material and affidavits in their entirety fails to meet the specificity requirement of T.R. 56. Plummer v. Board of Comm'rs of St. Joseph County, 653 N.E.2d 519, 521-522 (Ind.Ct.App.1995), trans. denied.

Here, Van Eaton designated thirteen affidavits, consisting of some fifty-five pages, in their entirety. He did not provide specific page numbers and paragraph citations. However, in paragraph 10 of his response, Van Eaton directs the court to specific language contained in the one-paragraph supplemental affidavit of Richards to support his claim. Thus, for the purposes of summary judgment, Van Eaton has properly designated only that portion of the record referred to in paragraph 10 of his response.

II. Defamation

Next, Van Eaton contends that the trial court erred when it granted summary judgment in favor of Fink because the properly designated portion of Richards' supplemental affidavit creates a genuine issue of material fact as to whether Fink's statements were privileged. We disagree.

To maintain an action for defamation, a plaintiff must show a communication with four elements: (1) defamatory imputation; (2) malice; (3) publication; and (4) damages. Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind.1994). A statement is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Furno v. Citizens Ins. Co. of America, 590 N.E.2d 1137, 1141 (Ind.Ct.App.1992), trans. denied. Publication, in defamation law, can consist of communication to just one individual. Doe v. Methodist Hospital, 690 N.E.2d 681, 692 (Ind.1997) (citing RESTATEMENT (SECOND) OF TORTS § 577(1) (1977)). Generally, each individual publication is a separate defamation. Weenig v. Wood, 169 Ind.App. 413, 430 n. 2, 349 N.E.2d 235, 246 n. 2 (1976). However, not all defamation is actionable. Trotter v. Indiana Waste Systems, Inc., 632 N.E.2d 1159, 1162 (Ind.Ct.App.1994). The law of libel and slander recognizes two classes of privileged communication, absolute and qualified. Id.

Here, the parties do not dispute that Fink's statement, in which she accused Van Eaton of perjury, is defamatory if proven to be false. The parties also do not dispute that Fink published the statement when she gave it to Shoulders and, again, when she sent it via facsimile to Richards. However, Fink contends that her defamatory statements are entitled to either absolute or qualified privilege. We address each claim in turn.

A. Absolute Privilege

Indiana law affords absolute privilege to statements made in the course of a judicial proceeding. Chrysler Motors Corp. v. Graham, 631 N.E.2d 7, 9 (Ind.Ct.App.1994), trans. denied. Absolute privilege, however, is abrogated when the statements are not relevant and pertinent to the litigation or do not bear some relation thereto. Id. Whether a particular communication is relevant and pertinent to the litigation is purely a legal determination for the court. Id.

Absolute privilege is based on the idea that:

[P]ublic interest in the freedom of expression by participants in judicial proceedings, uninhibited by the risk of resultant suits for defamation, is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of the individual to a legal remedy when he has been wronged.

Briggs v. Clinton County Bank & Trust Co., 452 N.E.2d 989, 997 (Ind.Ct.App.1983), trans. denied. Absolute privilege provides judges, attorneys, parties and witnesses, in connection with a judicial proceeding, immunity from liability even if they publish defamatory material with...