Wells v. Bernitt

• Decision Date: 10 November 2010
• Docket Number: No. 53A01-0910-CV-494.,53A01-0910-CV-494.
• Citation: 936 N.E.2d 1242
• Parties: Scott D. WELLS, Appellant-Plaintiff/Cross-Appellee, v. Herman Bud BERNITT, individually, Amy Bernitt, individually, Appellees-Defendants/Cross-Appellants, and J.D. Maxwell, as an employee of the Indiana State Police, Travis Coryea, individually, and as an employee of the Indiana State Police, Stacy Brown, individually, and as an employee of the Indiana State Police, Indiana State Police, Other Unknown Employees of the Indiana State Police, and State of Indiana, Appellees-Defendants.
• Court: Indiana Appellate Court

936 N.E.2d 1242

Scott D. WELLS, Appellant-Plaintiff/Cross-Appellee,

v. Herman Bud BERNITT, individually, Amy Bernitt, individually, Appellees-Defendants/Cross-Appellants,andJ.D. Maxwell, as an employee of the Indiana State Police, Travis Coryea, individually, and as an employee of the Indiana State Police, Stacy Brown, individually, and as an employee of the Indiana State Police, Indiana State Police, Other Unknown Employees of the Indiana State Police, and State of Indiana, Appellees-Defendants.

No. 53A01-0910-CV-494.

Court of Appeals of Indiana.

Nov. 10, 2010.

Jeffrey S. McQuary, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for State Employee Appellees.

Herman Bud Bernitt, Amy Bernitt, Bloomington, IN, Appellees Pro Se.

OPINION

KIRSCH, Judge.

Scott D. Wells ("Wells") appeals from the trial court's orders granting summary judgment in favor of Herman Bud ("Bud") and Amy ("Amy") Bernitt (collectively "the Bernitts") as to Wells' claim against them for defamation and in favor of J.D. Maxwell ("Maxwell"), Travis Coryea ("Coryea"), Stacy Brown ("Brown"), the Indiana State Police, other unknown employees of the Indiana State Police, and the State of Indiana as to Wells' claims against them for negligent and intentional torts. The Bernitts cross-appeal from the trial court's order granting summary judgment in favor of Wells on their counterclaim alleging abuse of process and malicious prosecution.

Wells presents the following restated issue for our review:

I. Whether the trial court erred by granting summary judgment in favor of the Bernitts, Brown and Coryea.

The Bernitts cross-appeal raising the following restated issue for our review:

II. Whether the trial court erred by granting summary judgment in favor of Wells on the Bernitts's counterclaim alleging abuse of process.

We affirm.

FACTS AND PROCEDURAL HISTORY

Wells and the Bernitts are political adversaries in Monroe County, and their relationship is acrimonious. On September 27, 2002, the Bernitts parked their pickup truck in a parking lot in downtown Bloomington across the street from a tavern that Wells was known to frequent on Friday nights. The Bernitts believed that they observed Wells exit the tavern, stagger across the street, urinate on the railroad tracks or street, and get into his car and drive away. The Bernitts then followed Wells. At some point, Bud contacted Maxwell, ¹ an Indiana State Trooper and fellow political adversary of Wells, at his home and reported his observations of Wells' conduct. Maxwell called the Indiana State Police post and asked the dispatcher to send an officer to meet the Bernitts and take their complaint. Troopers Brown and Coryea responded to the dispatch. After taking the Bernitts' complaint, Coryea left on an unrelated call, and Brown drove to a residential area where he intercepted Wells. Wells was ultimately charged, tried, and convicted of disorderly conduct and operating while intoxicated. We affirmed his convictions on direct appeal. Wells v. State, 848 N.E.2d 1133 (Ind.Ct.App.2006).

On September 27, 2004, Wells filed his complaint alleging defamation against the Bernitts and negligent and intentional torts, and he claimed a violation of his constitutional rights against Maxwell, Coryea, Brown, the Indiana State Police, other unknown employees of the Indiana State Police, and the State of Indiana. The Bernitts filed a counterclaim alleging abuse of process and malicious prosecution against Wells. The Bernitts and the State of Indiana defendants filed motions for summary judgment as to Wells' complaint, and the trial court granted the motions for summary judgment. Wells then filed a motion for summary judgment on the Bernitts' counterclaim. The trial court granted Wells' motion and dismissed the Bernitts' counterclaim. Wells now appeals, and the Bernitts cross-appeal. Additional facts will be supplied.

DISCUSSION AND DECISION

Both sides present claims of trial court error from orders granting summary judgment. Our standard of review for summary judgment is the same as is used in the trial court: summary judgment is appropriate only where the evidence shows 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); Bd. of Sch. Comm'rs of City of Indianapolis v. Pettigrew, 851 N.E.2d 326, 330 (Ind.Ct.App.2006). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Pettigrew, 851 N.E.2d at 330. Review of a summary judgment motion is limited to those materials designated to the trial court. Id. Questions of law are reviewed under a de novo standard.Liberty Mut. Fire Ins. Co. v. Beatty, 870 N.E.2d 546, 549 (Ind.Ct.App.2007).

I. Summary Judgment as to Wells' Complaint

A. The Bernitts' Motion

Wells argues that the trial court erred by granting the Bernitts' motion for summary judgment on his defamation complaint because the Bernitts' statements about his conduct on the night of his arrest for operating while intoxicated went beyond the statements necessary to establish the offense.

Defamation is that which tends to "injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff." McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind.Ct.App.1999), trans. denied. To recover in an action for defamation, "that which caused the alleged defamation must be both false and defamatory." Id. Moreover, a plaintiff must establish the basic elements of defamation: (1) a communication with a defamatory imputation; (2) malice; (3) publication; and (4) damages. Id. The determination of whether a communication is defamatory is a question of law for the court. Id. Wells claims that the fact of his conviction for operating while intoxicated did not establish the truth of the Bernitts' statements that they observed Wells stagger when exiting the tavern, urinate on the railroad tracks or the street, and drive so erratically that he almost ran over pedestrians.

The trial court ² made the following findings that are relevant to our review of this issue:

Findings of Fact

1. Wells was a Monroe County Council person, an elected public official, during all times relating to his Complaint.

* * *

3. On the night of September 27, 2002, the Bernitts both witnessed Wells leave the Crazy Horse Restaurant in Bloomington, Monroe County, Indiana. They watched him walk across the street to his vehicle and drive away. Based on their observations, the Bernitts believed Wells to be displaying obvious signs of intoxication.

5. The Bernitts then contacted a state police officer, J.D. Maxwell ("Maxwell"), by telephone, and described their observations of Wells.

* * *

8. During the evening of September 27, 2002, Wells had consumed at least one alcoholic beverage at the Crazy Horse Restaurant, as well as more alcoholic beverages at Nick's English Hut and Kilroy's, two other Bloomington, Indiana businesses in which alcoholic beverages are served.

9. Trooper Brown then observed Wells' driving and subsequently arrested him for operating while intoxicated ("OWI") and other criminal conduct.

* * *

11. Wells was subsequently convicted of OWI and disorderly conduct by a Monroe County jury. Although he appealed to the Indiana Court of Appeals, his conviction was not overturned. See Wells v. State, 848 N.E.2d 1133 (Ind.Ct.App.2006). In upholding Wells' conviction, theCourt noted that Wells "actually did commit the crime of operating a vehicle while intoxicated." Wells, 848 N.E.2d at 1150.

12. Wells has not presented evidence that the Bernitts made any defamatory statements to any person other than reporting to law enforcement officials on September 27, 2002, or any time thereafter.

* * *

14. Wells has not presented evidence that the Bernitts reported their suspicions of Wells' behavior to the police with knowledge that the reports were false or with serious doubts as to their truth. In fact, their reports resulted in arrest and conviction of Wells for OWI.

15. Wells has previously filed a separate defamation suit against the Bernitts and others, in the Monroe Circuit Court, entitled Wells v. Bernitt et al., Cause No. 53C01-0207-CT-1283, that alleged the Bernitts published defamatory statements about Wells regarding his alleged knowledge of a highly publicized alleged arson.

16. In Cause No. 53C01-0207-CT-1283, the Court determined, on the merits, that statements published by the Bernitts on the Herald Times newspaper online message board concerning allegedly illegal septic repairs performed by Wells, were not defamatory as a matter of law and could not be used to establish actual malice by the Bernitts with respect to the allegedly defamatory statements they made about Wells and his knowledge of the alleged arson.

17. Wells has designated the same Herald Times postings by the Bernitts to establish alleged actual malice on the part of the Bernitts with respect to the allegedly defamatory statements that form the basis of this present action.

Conclusions of Law

* * *

3. "Actual malice" exists when the defendant publishes a defamatory falsehood "with knowledge that it was false or with reckless disregard of whether it was false or not." [ New York Times, 376 at 279-80, 84 S.Ct. 710]. Recklessness in this context is not based upon what a reasonably prudent man would have published or would have investigated before publishing. The standard must actually show that the defendant had serious doubts as to the truth of the statement. St. Amant v. Thompson, 390 U.S. 727, 731 [88 S.Ct. 1323, 20 L.Ed.2d 262] (1968).

4. A public official must offer evidence that the defendant published a defamatory statement with actual malice. Shine v. Loomis, 836 N.E.2d 952, 958 (Ind.Ct.App.2005). If he fails to do so, the defendant is entitled to summary judgment. Id. Because Wells was an

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