Opinion
24A-PL-808
12-17-2024
Davis & Son Excavating,[1] LLC; Richard Davis; Marc Davis; and Tanya Davis, Appellants/Plaintiffs/Counterclaim-Defendants[2] v. International Union of Operating Engineers, Local 150; Carlton Glover; and Jeffery Valles, Appellees/Defendants/Counterclaim-Plaintiffs[3]
ATTORNEY FOR APPELLANTS Patrick B. McEuen McEuen Law Office Portage, Indiana. ATTORNEYS FOR APPELLEES Nathaniel C. Henson Kenneth B. Elwood Rhame, Elwood &McClure, PC Portage, Indiana James E. Harper Harper and Harper, LLC Valparaiso, Indiana.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Interlocutory Appeal from the Porter Superior Court Trial Court Cause No. 64D02-1710-PL-10409, The Honorable Jeffrey W. Clymer, Judge.
ATTORNEY FOR APPELLANTS Patrick B. McEuen McEuen Law Office Portage, Indiana.
ATTORNEYS FOR APPELLEES Nathaniel C. Henson Kenneth B. Elwood Rhame, Elwood &McClure, PC Portage, Indiana James E. Harper Harper and Harper, LLC Valparaiso, Indiana.
Altice, Chief Judge and Kenworthy, Judge concur.
MEMORANDUM DECISION
Bradford, Judge.
We held oral argument in this case at Indiana Wesleyan University on November 21, 2024. We thank the faculty, students, and staff of Indiana Wesleyan for their warm hospitality and commend counsel for the quality of their arguments.
[¶1] At all times relevant to this interlocutory appeal, International Union of Operating Engineers, Local 150 ("the Union"), was engaged in ambulatory picketing of Davis &Son Excavating, LLC ("the Business"). Richard and Marc Davis are principals of the Business. Carlton Glover and Jeffery Valles are Union agents. At some point, a sign was posted outside the Business accusing Union agents of stalking Marc's wife and children. The Union, Glover, and Valles (collectively, "the Appellees") filed suit against the Business, Richard, Marc, and Marc's wife, Tanya Davis (collectively, "the Appellants"), alleging that the sign was defamatory. The Appellants moved for summary judgment, asserting that the truth is a defense to a claim of defamation. In support of their motion, the Appellants designated materials, which they alleged proved that Union agents had stalked Tanya and her and Marc's children. In opposition, the Appellees designated materials, which they claimed created a genuine issue of material fact. The Appellants moved to strike the Appellees' response and designated materials, arguing that they had been untimely filed. The trial court found otherwise and denied both the Appellants' motion to strike and motion for summary judgment. In this interlocutory appeal, the Appellants contend that the trial court erred in denying both motions. We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[¶2] As is stated above, at all times relevant to this interlocutory appeal, the Union was engaged in ambulatory picketing of the Business. On October 30, 2017, the Business filed a complaint for damages and injunctive relief naming the Union, Glover, Valles, and Joe McGuiness as defendants. The Business's lawsuit sought to enjoin the Union and its agents from gathering outside the Business's property along U.S. Highway 6 in Valparaiso.
Counsel for the Appellants indicated at oral argument that as part of their picketing of the Business, Union agents would display a large inflatable rat at or near the Business's worksites.
[¶3] In January of 2018, the Appellees sought a temporary restraining order and an order requiring the Business to remove a sign from its property along U.S. Highway 6 which stated, "150 business agents are stalking my wife and kids." Appellants' App. Vol. II p. 38 (underlining in original). On January 18, 2018, the trial court issued an order enjoining use of the word "stalking" from any signage on the Business's property along U.S. Highway 6. The temporary restraining order expired on February 2, 2018.
[¶4] On or about June 8, 2018, the Appellees filed a counterclaim and third-party complaint against the Appellants, asserting that the Appellants had defamed them. On June 19, 2018, the trial court dismissed the Business's complaint against the Appellees and McGuiness. The counterclaim remained pending.
[¶5] On November 16, 2023, the Appellants moved for summary judgment. In support of their summary-judgment motion, the Appellants designated Tanya's affidavit, in which she averred as follows:
2. I have never been employed by any company owned or operated by my husband or father-in-law. That list includes "Davis Construction, Inc." and "Davis &Son Excavation, LLC".
3. I have a full-time job at John E. Reid &Associates, Inc. where I am a business systems executive. I have had this full-time employment since October 2001.
4. I am not now, nor have I ever been, an owner, shareholder, member, manager, or any sort of executive or employee with any construction or excavating company.
5. On Thursday, October 19, 2017, I was driving my daughter [Te.], then aged 10, to Yost Elementary School in Chesterton, from our home.
6. As we were leaving, I noted [Glover] sitting in his [Union] black Ford Taurus in his driveway, which is just around the corner from our home.
7. Upon my arrival at Yost, I noted Glover had followed me, arriving at Yost at the same time as my daughter and me, and [Te.] became very nervous and apprehensive upon seeing the [Union]-owned black Ford Taurus.
8. Due to [Te.]'s reaction, I approached a uniformed Porter police officer assisting the crossing guards. I reported my concerns and fears of being followed, and [Te.]'s apprehension to get out of the car and attend school while Glover was following us.
9. Porter Police documented the incident, and attached hereto and incorporated herein as Exhibit A is a true and correct copy of Porter Police Event #170132221.
10. On Thursday, October 19, 2017, my daughter [Te.] and I felt terrorized, frightened, and threatened by [Glover's] intentional conduct of following me with my _ daughter in the car.
11. About two (2) weeks later, on Friday, November 3, 2017, I received a call on my cell phone from my husband, [Marc], in which he told me that Jake Wetzel had followed him and my son to American Trim &Style barber shop on Central Avenue in Portage.
12. [Ty.] was apprehensive, since Wetzel had followed him and his father to Portage from our home and sat in the parking lot while they were inside, so I drove from our home in Chesterton to American Trim &Style, and my son, [Ty.], then aged 12,
came out of the barber shop and got in my car.
13. Thereafter, on November 3, 2017, [Wetzel], a person known to me and identified by me on November 3, 2017, by his license plate, followed me and [Ty.] in my personal (not business-related) automobile from Central Avenue in Portage to a residence near the Police Station on Navaho Trail in Burns Harbor.
14. [Ty.] and I were going to Burns Harbor to retrieve my daughter [Te.] from a friend's sleepover at the friend's grandmother's home.
15. While in route, and noting that Wetzel was still following my car, I called the home where [Te.] was staying, to report that [Ty.] and I were being followed. [Te.]'s friend's grandmother invited me to come straight into the house.
16. [Ty.] stayed crouched down in the car while I entered the residence to get [Te.].
17. [Wetzel] was then filmed by my son [Ty.] driving past the house twice, and parking his [Union] black Ford Taurus a block or so away on Boo Road.
18. On November 3, 2017, my son [Ty.] and I felt terrorized, frightened, and threatened by [Wetzel's] intentional conduct of following me, and waiting for me to leave [Te.]'s friend's home, while my 13-year-old son was in the car.
19. My husband and I also own a vacation cottage in Shipshewana, LaGrange County, Indiana, over eighty-five (85) miles from our home in Chesterton.
20. On November 29, 2017, a neighbor in Shipshewana named Tom McCollough texted me a photograph of an "information
sheet" taped to the door of our cottage which read:
ON STRIKE FOR UNFAIR LABOR PRACTICES
Please be advised that the International Union of Operating Engineers, Local 150 AFL-CIO, is on strike against DAVIS &SON EXCAVATION, LLC
To protest this company's unfair labor practices.
A true and correct copy of the photograph I received on November 29, 2017, is attached hereto and incorporated herein as Exhibit B, depicting a sign taped to the front door of my vacation cottage in LaGrange County, Indiana, almost one hundred (100) miles from my home.
21. On November 29, 2017, I felt terrorized, frightened, and threatened by an unknown agent of [the Union]'s intentional conduct of targeting my vacation cottage, in the midst of terrorizing me and my children, following us around town, and following me to drop my 10-year-old daughter at Yost Elementary School.
Appellant's App. Vol. II pp. 30-33 (emphasis omitted, bold in original). The Appellees filed a response in opposition to the Appellants' motion for oral argument and designated the affidavits of Glover and Wetzel as well as text messages purporting to have been exchanged between Marc and Wetzel. In their affidavits, Glover and Wetzel averred that neither had knowingly or intentionally followed Tanya and the children.
[¶6] On January 24, 2024, the Appellants filed a motion to strike the Appellees' response and designated materials, claiming that they had been untimely filed. For their part, the Appellees asserted that their response and designated materials had been timely filed. Following a hearing, the trial court denied both the Appellants' motion to strike and motion for summary judgment. The trial court certified the matter for interlocutory appeal, and we accepted jurisdiction.
Discussion and Decision
[¶7] The Appellants contend that the trial court erred in finding that the Appellees' response and designated materials in opposition of their motion for summary judgment were timely filed. The Appellants further contend that the trial court erred in denying their motion for summary judgment.
I. Timeliness of the Appellees' Response and Designated Evidence
[¶8] Trial Rule 56(C) provides that an adverse party to a motion for summary judgment "shall have thirty (30) days after service of the motion to serve a response and any opposing affidavits." With respect to alterations of the applicable time limits, Trial Rule 56(I) provides "[f]or cause found, the Court may alter any time limit set forth in this rule upon motion made within the applicable time limit." The Indiana Supreme Court has held that
[w]hen a nonmoving party fails to respond to a motion for summary judgment within 30 days by either filing a response, requesting a continuance under Trial Rule 56(I), or filing an affidavit under Trial Rule 56(F), the trial court cannot consider summary judgment filings of that party subsequent to the 30-day period.Borsuk v. Town of St. John, 820 N.E.2d 118, 123 n.5 (Ind. 2005) (citing Desai v. Croy, 805 N.E.2d 844, 848-49 (Ind.Ct.App. 2004), trans. denied). The Indiana Supreme Court reaffirmed this holding in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008), when it stated that "[a]ny residual uncertainty" regarding whether a trial court could consider an untimely summary judgment filing "was resolved in 2005 when we cited Desai with approval[.]"
[¶9] The parties agree that the filing deadline for the Appellees' response to the Appellants' motion for summary judgment was January 12, 2024. They also agree that on January 12, 2024, the Porter County courts were closed due to an emergency relating to a winter-weather event. The parties further agree on appeal that in light of the emergency closure of the trial court, they had agreed to move the deadline for the Appellees' submissions to Monday, January 15, 2024. January 15, 2024, however, was Martin Luther King, Jr., Day, a federal and state holiday, on which day the trial court was closed. The Appellees filed their submissions on January 16, 2024, the next day that the trial court was open.
[¶10] In arguing that the Appellees' submissions were untimely filed, the Appellants assert that
Indiana's Odyssey, or "Indiana E-Filing System" (IEFS), never shuts down. The undersigned counsel has filed pleadings to state of [sic] federal courts on Thanksgiving, Martin Luther King day, Saturdays, Sundays, and at other times, including holidays. The sole question on [its] motion to strike was, "did Martin Luther King's Holiday preclude Appellees from abiding by the agreed-
upon extension." Appellees simply accepted Appellants' good will, and abused it.
Appellants' Br. p. 20. The Appellants further assert that because the Appellees' submissions were not filed until January 16, 2024, the submissions were untimely filed and, as a result, the trial court could not consider them when ruling on their motion for summary judgment. For their part, the Appellees argue that their submissions were timely filed pursuant to the method for computation proscribed in Indiana Trial Rule 6.
[¶11] Trial Rule 6(A) provides that
In computing any period of time prescribed or allowed by these rules, ... [t]he last day of the period so computed is to be included unless it is:
(1) a Saturday,
(2) a Sunday,
(3) a legal holiday as defined by state statute, or
(4) a day the office in which the act is to be done is closed during regular business hours.
In any event, the period runs until the end of the next day that is not a Saturday, a Sunday, a legal holiday, or a day on which the office is closed.
The Appellees assert that because their submissions were filed on January 16, 2024, i.e., the next day after the agreed deadline that was not a Saturday, a Sunday, a legal holiday, or a day on which the trial court was closed, their submissions were timely filed. We agree with the Appellees on this point, concluding that Trial Rule 6(A) governs computation of the filing deadline. See generally Santos v. Franciscan Health, 216 N.E.3d 449, 454-55 (Ind.Ct.App. 2023) (indicating that unless a statute or rule states otherwise, the Trial Rules should be utilized for determination of how the timeliness of a filing is to be computed), trans. denied. Given that the Appellees filed their response and designated evidence on Tuesday, January 16, 2024, i.e., the first day after the trial court was open following both the snow emergency and the holiday, we conclude that the trial court did not err in finding that the submissions were timely filed pursuant to Trial Rule 6(A).
II. Summary Judgment
[¶12] With respect to an award of summary judgment, Trial Rule 56(C) provides that "[t]he judgment sought shall be rendered forthwith 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." We review an award of summary judgment "de novo, applying the same standard as the trial court[.]" Young v. Hood's Gardens, Inc., 24 N.E.3d 421, 423 (Ind. 2015). "We consider only those materials properly designated pursuant to Trial Rule 56 and construe all factual inferences and resolve all doubts as to the existence of a material issue in favor of the non-moving party." Id. at 424.
[¶13] The Appellees asserted below that the sign placed in front of the Business stating that Union representatives were stalking Marc's wife and children was defamatory. A defamatory communication is one that tends to harm an entity's reputation by lowering the entity in the community's estimation or deterring third persons from dealing or associating with the entity. Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007).
A defamatory communication is said to either be "defamatory per se" or "defamatory per quod." 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. All other defamatory communications are defamatory per quod. To maintain an action for either per se or per quod defamation the plaintiff must demonstrate (1) a communication with defamatory imputation; (2) malice; (3) publication; and (4) damages. Actions for per se and per quod defamation are susceptible to different requirements with regard to the showing of damages. In an action for defamation per se the plaintiff is entitled to presumed damages as a natural and probable consequence of the per se defamation. In an action for defamation per quod, the plaintiff must demonstrate special damages.Id. at 596-97 (internal citations and quotations omitted).
[¶14] "It is a question of law for the court to decide whether a statement considered in its entirety is capable of possessing a defamatory meaning or implication." J.-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 457 (Ind. 1999). "If a statement is susceptible to both defamatory and non-defamatory meanings, the matter of interpretation should be left to the jury." Id. It is well-settled that "[t]ruth is a complete defense to a claim of defamation." Assocs. Corp. of N. Am. v. Smithley, 621 N.E.2d 1116, 1119 (Ind.Ct.App. 1993); see also Melton v. Ousley, 925 N.E.2d 430, 437 (Ind.Ct.App. 2010) ("[T]ruth is a complete defense in civil actions for defamation.").
[¶15] The Appellants argued both before the trial court and at oral argument that they were entitled to summary judgment because Glover and Valles could not have been defamed, as their names were not included on the allegedly defamatory sign. In their counterclaim complaint alleging defamation, the Appellees alleged the following:
The Appellants' argument in this regard is reflected on pages nine, ten, and seventeen of the transcript from the summary-judgment hearing.
1. That Counter-Plaintiff Carlton Glover (hereinafter "Glover") is a business agent with [the Union].
2. That Counter-Plaintiff Jeffery Valles (hereinafter "Valles") is a business agent with [the Union].
3. That Counter-Plaintiff, [the Union], is a labor organization representing members in collective bargaining agreements in the Chicagoland region including Porter County.
Appellants' App. Vol. II pp. 24-25. With respect to their defamation claim, the Appellees alleged that "Glover, Valles and/or [the Union] have suffered damages from loss of reputation and loss of third-party association." Appellants' App. Vol. II p. 25.
[¶16] In their counterclaim, the Appellees assert that Glover and Valles were injured by the allegedly defamatory statement due to their claimed status as business agents of the Union. However, Glover and Valles were not named individually on the sign. Given that the sign merely referred to "150 business agents" generally, we conclude that the statement, even if true, is incapable of defaming Glover and Valles individually. See Bandido's, 712 N.E.2d at 457. The trial court, therefore, erred in denying Appellants' motion for summary judgment as it relates to Glover and Valles. We reach a different conclusion as it relates to the Union, however, concluding that the designated evidence is sufficient as a matter of law to raise a factual question as to whether the Union was defamed by the reference to "150 business agents[.]" Appellants' App. Vol. II p. 25.
Appellees did not make any separate argument regarding any potential reputational harm suffered by either Valles or Glover beyond the general allegation in their counterclaim that "Glover, Valles, and/or Local 150 have suffered damages from loss of reputation and loss of third-party association." Appellants' App. Vol. II p. 25. Appellees likewise did not designate any evidence that would sufficiently connect or identify Glover and Valles as known business agents of the Union in the community.
[¶17] The Appellants also argued that they were entitled to summary judgment because the statement that Union representatives had been stalking Marc's wife and children was true. They designated evidence to the trial court that they claimed proved, as a matter of law, that Union representatives had in fact stalked Tanya and the children. For their part, the Appellees designated evidence that they claimed created an issue of material fact as to whether they had stalked Tanya and the children. Considering the parties' designated evidence, the trial court determined that an issue of material fact remained as to whether the Union representatives had stalked Tanya and the children.
[¶18] In the criminal context, the General Assembly has defined the word "stalk" as
a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a
reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened. The term does not include statutorily or constitutionally protected activity.Ind. Code § 35-45-10-1.
"[H]arassment" means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.Ind. Code § 35-45-10-2.
[¶19] The parties acknowledge that at all relevant times, the Union and its representatives were engaged in ambulatory picketing of the Business. The Appellants argue that while the Union's actions were potentially lawful as it related to the Business and business principals, the act of following of Tanya and the children was not protected activity as they were "not proper targets." Appellants' Br. p. 16. Despite the statutory definition of stalking in the criminal context referring to knowing or intentional conduct, the Appellants assert that, given the general nature of the allegedly defamatory statement at issue in this case, the Appellees' actions could potentially qualify as stalking even if the Appellees had acted recklessly rather than knowingly or intentionally.
[¶20] Again, in support of their motion for summary judgment, the Appellants' designated Tanya's affidavit in which she averred that she was not, and had never been, involved with the Business but rather that she had had other, nonrelated, full-time employment. She also outlined two instances when she believed that Union representatives had followed her and the children and an instance where a Union representative had allegedly posted a strike notice to her and Marc's vacation home. The Appellants argue that their designated evidence establishes that the Appellees behavior was, at the very least, reckless.
While the Appellants refer to the vacation home in their brief as belonging to Tanya, Tanya's affidavit establishes that the home belonged to both Tanya and Marc.
[¶21] For their part, the Appellees designated the affidavits of both Glover and Wetzel, in which both averred that they had not knowingly or intentionally followed Tanya and the children. Both averred that Marc and Tanya drove similar vehicles; sometimes drove each other's vehicles; and Tanya had, at times, interfered with their ambulatory picket "by interjecting and positioning her vehicle between the vehicle driven by [Marc] and vehicles driven by" Union agents and would block the Union agents from following Marc. Appellants' App. Vol. II pp. 51, 55. Glover and Wetzel both also averred that they had not been responsible for placing a strike notice on Marc and Tanya's vacation home, with both claiming that they had not known that Marc and Tanya owned a vacation home until after the fact.
[¶22] In denying the Appellants' motion for summary judgment, the trial court found that issues of material fact existed as to whether the Appellants had defamed the Appellees. Given that the parties' designated evidence presented contradicting accounts, we must agree with the trial court. On remand, the trier-of-fact will be in the best position to determine whether the allegedly defamatory statement was true.
[¶23] In sum, the trial court did not err in finding that the Appellees' summaryjudgment submissions were timely filed or in denying the Appellants' motion for summary judgement as it relates to the Union. However, we conclude that summary judgment was appropriate as it relates to Glover and Valles. On remand, we instruct the trial court to enter summary judgment in favor of the Appellants on the claims raised by Glover and Valles in their individual capacities.
[¶24] The judgment of the trial court is affirmed in part, reversed in part, and remanded with instructions for further proceedings.
Altice, C.J., and Kenworthy, J., concur.