The opinion
Dec 07 2015, 8:47 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Blake Hike James J. Shea, Sr.
Larry L. Barnard Linda A. Polley
Carson Boxberger LLP Jeremy D. Lemon
Fort Wayne, Indiana Hunt Suedhoff Kalamaros LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael A. Wartell, December 7, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1503-PL-81
v. Appeal from the Allen Superior
Court
Lawrence H. Lee, The Honorable Stanley A. Levine,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D03-1306-PL-232
Mathias, Judge.
[1] Dr. Michael Wartell (“Wartell”), former Chancellor of Indiana University
Purdue University Fort Wayne (“IPFW”), filed a complaint in Allen Superior
Court against Lawrence Lee (“Lee”), alleging among other claims, defamation
per se because Lee sent a private letter to then-Purdue president Dr. France
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Córdova (“Córdova”) urging her to deny Wartell’s request for an exception to
Purdue’s retirement policy. The trial court subsequently granted Lee’s motion
for partial summary judgment on the claim of defamation per se. Wartell now
appeals and argues that the trial court erred in concluding that Lee’s statements
in the letter to Córdova did not constitute defamation per se.1
[2] We affirm.
Facts and Procedural History
[3] Wartell served as the chancellor of IPFW for eighteen years, from 1994 until
June 30, 2012. IPFW is the largest state university in Northeast Indiana and
had an enrollment of over 14,000 students when Wartell left his position as
chancellor. During Wartell’s tenure, IPFW experienced positive growth and a
strong reputation as a university. As chancellor, Wartell was well-known in the
Fort Wayne community.
[4] Wartell was employed by Purdue University (“Purdue”) and reported to the
Purdue Board of Trustees (“the Board”) through the Purdue president.
Appellant’s App. p. 126. Throughout his service as chancellor, Wartell was
subject to administrative review, where Purdue and IPFW officials would
interview individuals from Purdue, IPFW, and the community about Wartell’s
1
We held oral argument on this appeal on October 14, 2015, at the Allen County Courthouse
in Fort Wayne, Indiana. We extend our gratitude to the Allen County Bar Association’s
Appellate Law Section for their hospitality and commend counsel for the quality of their
written and oral advocacy.
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job performance. Integrity was one of the areas subject to review and a category
in which Wartell always received “the highest marks.” Appellant’s App. pp.
119-20.
[5] At the time, Purdue procedure required that chancellors be re-appointed on a
year-to-year basis with the underlying contract renewed each year. Purdue
policy required high-ranking administrators to retire from their positions during
the fiscal year which they turn sixty-five. Appellant’s App. p. 128. See also
Appellee’s App. pp. 23-25. Because of the policy, Wartell was required to retire
at the end of the fiscal year in 2012 unless the Board agreed to extend his
chancellorship. Wartell was aware of this policy, but he did not believe that he
would be required to retire because no other high-ranking Purdue officials had
been previously denied an extension request. On May 19, 2011, Wartell
received a phone call from then-Purdue President Córdova, notifying him that
the Board wanted Wartell to retire. In response to the call, Wartell submitted a
request to the Board to extend his position beyond the mandatory retirement
date. Appellee’s App. p. 18. Wartell’s request was denied, and he retired as
chancellor on June 30, 2012.
[6] Lee, a Fort Wayne businessman and owner of Leepoxy Plastics and president
of Midwest Epoxy Applicators, is an active citizen in the Fort Wayne
community and a longtime IPFW donor and supporter. Appellee’s App. pp. 13,
70, 78-80. Lee was also on the Advisory Board for the Doermer School of
Business at IPFW. Id. at 32-33. Lee had worked with Wartell on numerous
occasions over the years, and that collaboration had sparked some
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disagreements. After discovering that Wartell had requested that the Board
extend his chancellorship in spring of 2011, Lee contacted several other
prominent businessmen in the community to arrange a meeting with Córdova
to convince her that the Board should deny Wartell’s request. Lee referred to
this group of men as “the Worthy Brothers” which consisted of Keith Busse
(“Busse”), Ian Rolland (“Rolland”), and Jim Vann (“Vann”).
[7] In an email sent to the group on June 22, 2011, Lee confirmed that their goals
in a meeting with Córdova were “two-fold: (1) to express our conviction that
Wartell’s request to delay his retirement should be denied, and (2) his successor
as chancellor at IPFW be of impeccable integrity, able to earn and command
the respect of local and area business leaders.” Appellant’s App. p. 201.
Additionally, Lee informed the group that he had learned “from a very reliable
source that Córdova is the one and only determiner on Wartell’s petition to
delay [Wartell’s] retirement date.” Appellant’s App. pp. 167, 201. A Skype
meeting was scheduled on June 29, 2011, for Lee, Rolland, Busse, and Vann to
discuss Wartell’s extension request with Córdova. At the end of the meeting,
Córdova requested that each of the men submit written comments to her and
that she would confidentially submit the information to the Board. Appellant’s
App. pp. 64-66.
[8] Lee sent a confidential letter to Córdova as requested on July 1, 2011. Lee
discussed some of Wartell’s accomplishments as chancellor but also expressed
his concerns to Córdova about the Board granting Wartell’s extension request.
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At issue in this appeal are the following allegedly defamatory statements
contained in Lee’s letter, as asserted in the plaintiff’s complaint:
• “[Wartell’s] word not always serving as his bond.”
• “Too often, with persons in a variety of capacities in a variety of
situations, he has broken faith.”
• “Lack of integrity.”
• “How can IPFW be the leading force it should be in our community and
among our small area universities when too frequently its chancellor’s
character is at issue.”
• “In the past couple of year [sic] it has become clear that significant
financial support from foundations and area business will be hard to
come by while [Wartell] remains as chancellor.”
• “[W]e deserve a chancellor with impeccable integrity, the willingness to
cooperate with other area universities, and the esteem to inspire complete
trust from our business community.”
Appellant’s App. pp. 26-38. Rolland and Busse also sent letters to Córdova that
echoed Lee’s sentiments. Wartell learned about Lee’s letter from a Purdue
Trustee. At that time, he also was told that Lee’s letter was the only
correspondence given to the Board for consideration.2
[9] Wartell filed a complaint against Lee on June 21, 2013 in Allen Superior Court,
alleging defamation per se, defamation per quod, tortious interference with
contractual rights, and tortious interference with a business relationship. On
2
After discovering this information, Wartell believed that Córdova’s intent was to replace him
with a woman. He subsequently filed a gender discrimination law suit against Purdue.
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August 29, 2013, Lee moved for summary judgment on all issues and also
asserted a defense under the Anti-SLAPP Statute3 and the qualified privilege of
common interest defense. A hearing was held on Lee’s motion for summary
judgment, and on February 3, 2015, the trial court issued an order granting the
motion in part and denying it in part. Specifically, the trial court granted partial
summary judgment on the defamation per se, tortious interference with
contractual rights, and tortious interference with a business relationship claims,
but denied summary judgment on the Anti-SLAPP Statute defense, the
qualified privilege of common interest defense, and the defamation per quod
claim. Wartell now appeals the trial court’s order granting Lee summary
judgment on the defamation per se claim.4
Standard of Review
[10] Our standard of review of summary judgment appeals is well established:
When reviewing a grant of summary judgment, our standard of
review is the same as that of the trial court. Considering only those
facts that the parties designated to the trial court, we must
3
The Anti-SLAPP (Strategic Lawsuit Against Public Participation) Statute is codified in
Indiana Code section 34-7-7-5 and provides that “[i]t is a defense in a civil action against a
person that the act or omission complained of is: (1) an act act or omission of that person in
furtherance of the person’s right of petition or free speech under the Constitution of the United
States or the Constitution of the State of Indiana in connection with a public issue; and (2) an
act or omission taken in good faith with a reasonable basis in law and fact.”
4
Lee filed a cross-appeal on the issues that the trial court denied summary judgment. Wartell
filed a motion to dismiss cross-appeal, arguing that this court did not have jurisdiction because
the trial court did not enter a final judgment on those claims under Trial Rule 54(B) or 56(C).
This court granted Wartell’s motion to dismiss Lee’s cross-appeal in an order dated July 17,
2015.
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determine whether there is a genuine issue as to any material fact
and whether the moving party is entitled to judgment as a matter
of law. In answering these questions, the reviewing court construes
all factual inferences in the nonmoving party’s favor and resolves
all doubts as to the existence of a material issue against the moving
party. The moving party bears the burden of making a prima facie
showing that there are no genuine issues of material fact and that
the movant is entitled to judgment as a matter of law. Once the
movant satisfies the burden, the burden shifts to the nonmoving
party to designate and produce evidence showing the existence of
a genuine issue of material fact.
Likens v. Prickett’s Properties, Inc., 943 N.E.2d 816, 820 (Ind. Ct. App. 2011)
(citations and internal quotations omitted).
Discussion and Decision
[11] Wartell argues that the trial court erred in granting Lee’s motion for summary
judgment because he asserts that Lee’s statements in the letter sent to Córdova
were defamatory per se. “To establish a claim of defamation, a plaintiff must
prove the existence of a communication with defamatory imputation, malice,
publication, and damages.” Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186
(Ind. 2010). A statement is defamatory if it tends “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.” Kelley v. Tanoos, 865 N.E.2d 593,
596 (Ind. 2007) (citation omitted). “. . . [D]efamation per se, arises when the
language of a statement, without reference to extrinsic evidence, constitutes an
imputation of: (1) criminal conduct, (2) a loathsome disease, (3) misconduct in
a person’s trade, profession, office, or occupation, or (4) sexual misconduct.”
Dugan, 929 N.E.2d at 186 (emphasis added).
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[12] “For a statement to be actionable [as defamation per se], it must be clear that it
contains objectively verifiable fact regarding the plaintiff. If the speaker is merely
expressing his subjective view, interpretation, or theory, then the statement is
not actionable.” Meyer v. Beta Tau House Corp., 31 N.E.3d 501, 515 (Ind. Ct.
App. 2015) (emphasis added) (citing Hamilton v. Prewett, 860 N.E.2d 1234, 1243
(Ind. Ct. App. 2007). “In an action for defamation per se, the words used must
have defamatory imputation on their face. The circumstances in which the
statements were made have no bearing on whether the statements constitute defamation
per se.” Big Wheel Restaurants, Inc. v. Bronstein, 302 N.E.2d 876, 879 (Ind. Ct.
App. 1973) (emphasis added). Importantly, in actions for defamation per se,
damages are presumed, while in actions for defamation per quod, a plaintiff
must prove damages. Dugan, 865 N.E.2d at 186. As quickly becomes apparent
in a review of the relevant case law, defamation cases are highly fact-sensitive.
[13] Wartell asserts that Lee’s statements in his letter to Córdova imputed
misconduct by Wartell as former chancellor of IPFW. He argues that the
purpose of Lee’s correspondence to Córdova was to remove Wartell as
chancellor, and as such, has defamatory meaning without any need for extrinsic
evidence. In general, if words falsely written or uttered directly tend to prejudice
or injure a person in his profession, trade, or business, they can be actionable
per se. Erdman v. White, 411 N.E.2d 653, 658 (Ind. Ct. App. 1980).
[14] In Erdman, a corporation’s chairman of the board wrote a letter to a bank
president regarding the “questionable reputation” of the corporation’s former
president, who remained a personal guarantor on the company’s line of credit.
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The former president brought an action against the chairman alleging
defamation per se, among other claims. Id. The trial court entered a default
judgment on the defamation per se claim against the chairman and awarded
damages to the former president. Id. at 655. The chairman appealed, and our
court held that the chairman’s statement in the letter to the bank president
injured the former president in his profession, trade, or business because it
negatively affected his ability to obtain a line of credit from the bank after the
letter was sent. Id. at 659. Additionally, the former president was no longer in
good credit standing with the bank, which adversely impacted his business and
personal finances. Id.
[15] Further, Wartell argues that Lee’s remarks questioned Wartell’s characteristics
and conduct in his role as chancellor and as such are “so obviously and
naturally harmful that proof of their injurious character can be dispensed with.”
See Moore v. Univ. of Notre Dame, 968 F.Supp. 1330, 1334 (N.D.Ind. 1997).
[16] Lee argues that the statements in his letter to Córdova are not defamatory per se
because he was merely expressing a subjective opinion about Wartell and
therefore are not actionable. See Meyer, 31 N.E.3d at 515. Lee claims that his
statements about Wartell’s word not always serving as his bond, or that his
“character is at issue,” or that he “lacks integrity,” or has “broken faith” cannot
be objectively verified. Lee supports his position with Levee v. Beeching, 729
N.E.2d 215 (Ind. Ct. App. 2000) and Baker v. Tremco, 917 N.E.2d 652 (Ind.
2009). We find both cases instructive.
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[17] In Levee, a school principal sued a teacher’s union and the union representative
for defamation per se, among other claims. 729 N.E.2d at 218. The trial court
granted summary judgment for the union and union representative and the
principal appealed. Id. Our court held that the union representative’s remarks
calling the principal a “liar” and stating that she “favored some staff” were not
defamatory per se because his words were not “so obviously and naturally
harmful that proof of their injurious character can be dispensed with.” Id. at
220. This court additionally noted that the union representative’s comments
were only defamatory with reference to his pattern of personal attacks against
the principal, meaning the statements were not defamatory on their own,
without extrinsic evidence. Id.
[18] Our supreme court in Baker provided even more guidance on defamation per se.
Plaintiff was a former employee of the defendant, who had quit because of a
workplace dispute with the defendant. 917 N.E.2d at 652-53. After quitting his
job, plaintiff started his own business that was similar to his former employer’s.
Plaintiff brought suit against his former employer for defamation per se, among
other claims, because an employer’s representative commented that “[plaintiff]
had engaged in ‘inappropriate’ sales practices.” Id. at 657. Our supreme court
found that this statement was “far too vague to conclude that [it was] so
obviously and naturally harmful that proof of [its] injurious character c[ould] be
dispensed with.” Id. at 658. As such, the statement was not defamatory per se.
Additionally the court clarified:
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Indeed, it may be inferred from use of the word “inappropriate”
that the sales practice did not amount to any misconduct. This
makes clear that in order for the statements to be defamatory per se,
the statements must impute “misconduct.”
Id. The phrase, “inappropriate sales practice,” although directed toward
plaintiff’s “trade, profession, or occupation,” did not impute “misconduct” and
therefore could not be defamatory per se. Id.
[19] Lee’s statements in the letter to Córdova were less harsh than the union
representative’s comments about the principal in Levee and much like the vague
comments made by the employer’s representative about the former employee in
Baker. Lee commented that Wartell’s word did not always serve as his bond,
but did not call him a liar. Further, Lee’s statements were generalizations about
Wartell’s character and conduct “in a variety of capacities in a variety of
situations,” although directed at his role as chancellor. Like the representative’s
statement in Baker, Lee’s statements were directed toward Wartell’s trade,
profession, or occupation but did not impute misconduct. Wartell does not
establish that the statements were objectively verifiable without referring to
extrinsic evidence.
[20] In Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184 (Ind. 2010), our supreme court
determined that statements made by an employee’s supervisor qualified to be
considered as defamation per se. Plaintiff alleged in her complaint that
defendant stated to other employees that plaintiff was “stealing time,” working
on a “scheme with her boss. . . allegedly an attempt to defraud the Company,”
and “stealing an air compressor from the Company.” Id. at 187. The court
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concluded, “[a]s statements imputing criminal conduct or occupational
misconduct, these alleged statements clearly qualify for consideration as
defamation per se.” Id. This determination was made without reference to
extrinsic evidence.
[21] We believe that Dugan is a good example of a situation where statements
imputed misconduct in a person’s trade, profession, office, or occupation
without resort to extrinsic evidence, and were statements that were so obviously
and naturally harmful that proof of their injurious character could be dispensed
with. In Dugan, the defendant accused plaintiff of stealing time, attempting to
defraud the company with help from her boss, and stealing an air compressor.
These statements were not subjective opinion but rather were objectively
verifiable and defamatory on their face.
[22] In contrast, Lee’s statements are vague and not objectively verifiable without
referring to extrinsic evidence. Lee mentioned no specific incidents of
misconduct but rather made general statements about Wartell’s character and
conduct in his role as chancellor. Although Lee’s statements in his letter to
Córdova were arguably defamatory, the vagueness with which they are stated
prevents them from imputing misconduct and rising to the level of defamation
per se.
[23] It is understandable and indeed tempting to leap from a determination that an
allegedly defamatory statement is related to a person’s trade, profession, office,
or occupation to the conclusion that the statement is defamatory per se.
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However, that is simply not the proper legal analysis. As a matter of law, for an
allegedly defamatory statement to qualify as defamation per se, it must impute
not only the serious level of misconduct of the type described in Dugan, but also
in a way that does not require reference to extrinsic facts for context. Here,
Lee’s statements require development of the underlying factual context in the
legal determination of whether they were defamatory, and as such, the
statements are not actionable as defamation per se.
[24] For all of these reasons, we conclude that no genuine issues of material fact
exist as to whether Lee’s statements were defamatory per se and that the trial
court did not err in granting Lee’s motion for summary judgment on the issue
of defamation per se.
[25] Affirmed.
Barnes, J., and Crone, J., concur.
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