MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Apr 05 2016, 9:40 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEES
Phillip Gray                                            Jeffrey D. Hawkins
Westfield, Indiana                                      Mark D. Gerth
                                                        Kightlinger & Gray, LLP
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Phillip Gray,                                           April 5, 2016
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        29A02-1510-CT-1623
        v.                                              Appeal from the Hamilton
                                                        Superior Court
YMCA of Greater Indianapolis,                           The Honorable William J. Hughes,
Stacy Meyers, Greg Hiland,                              Judge
Christopher Butler, and Aquatics
Coordinator of the Fishers                              The Honorable William P.
YMCA,                                                   Greenaway, Magistrate
                                                        Trial Court Cause No.
Appellees-Defendants.
                                                        29D03-1502-CT-894



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016      Page 1 of 11
                                       Statement of the Case
[1]   Phillip Gray appeals the trial court’s dismissal of his complaint. He raises one

      issue on appeal, namely, whether the trial court erred in dismissing his

      complaint for failure to state a claim of defamation upon which relief can be

      granted.


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                 Facts and Procedural History
[3]   On February 2, 2015, Gray filed, pro se, a lawsuit against the YMCA of

      Greater Indianapolis (“YMCA”) and four of its employees for alleged slander

      and/or libel against him. Gray’s complaint alleged that, in January 2014, Greg

      Hiland, a YMCA employee, had “verbally assaulted” him and called him a

      “liar” in “full view of other members and staff of the [YMCA].” Appellant’s

      App. at 10. The complaint further alleged that Hiland had “blocked the

      entrance to the YMCA to verbally abuse and accuse the Plaintiff,” and that

      Hiland had taken all these actions “in order to defame and humiliate” Gray.

      Id.


[4]   The complaint also alleged that, on July 23, 2014, Stacy Meyers, another

      YMCA employee, had written an e-mail to Gray in which Meyers had stated

      that Gray would not be permitted “to volunteer in assisting in teaching

      beginning swim classes because of the ‘hands on nature’ of teaching swimming

      to children.” Id. at 11. Gray further alleged that this statement was “in effect

      accusing [him] of being a [c]hild [m]olester.” Id. Gray alleged Meyers also had

      Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 2 of 11
      informed him that he could not volunteer to work at the YMCA summer day

      camp “because of the interaction of adults with children.” Id. Because Gray

      had never told Meyers that he was considering volunteering at the day camp, he

      stated he “could only conclude that his name was slandered at some of the staff

      meetings by Mr. Hiland and others to further harm [Gray’s] reputation.” Id.


[5]   In his complaint Gray also alleged that Christopher Butler, Operations Vice

      President of the YMCA, had informed Gray during a meeting that “the Fishers’

      YMCA Aquatics Coordinator” had communicated to Butler that Gray had

      “loomed over children in his speedos.” Id. Gray’s complaint alleged that,

      “again [this is] effectively accusing [Gray] of being a child molester.” Id. The

      complaint further alleged that Butler told Gray that the same Aquatics

      Coordinator stated that Gray had threatened to “push people in the pool” and

      had actually attempted to do so. Id.


[6]   Gray’s complaint also claimed that Butler wrote a letter to Gray in which he

      accused Gray of using “inappropriate language” and “making threats” as

      justification for suspending Gray’s YMCA membership for over thirty days. Id.

      Gray claimed “this action by Mr. Butler was solely intended to discredit [Gray]

      and to [libel him] before other staff of the YMCA.” Id. Gray asserted that

      Butler “committed [libel]” against him by “publishing falsehoods against

      [him].” Id.


[7]   Gray also alleged in his complaint that the YMCA “has done everything in its

      power to cover-up these unlawful actions by its employees.” Id. He also


      Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 3 of 11
      alleged that the individual named defendants, “[a]s agents of the YMCA . . . [,]

      conspired to defame the character of [Gray], making the YMCA . . . just as

      guilty of li[bel] and slander, in violation of Title 34 Article 15 of the Indiana

      Code, as the other respondents.” Id. at 11-12. He alleged the YMCA and its

      named employees “entered into a conspiracy to defame” his character. Id. at

      12.


[8]   Gray’s request for relief sought “just and proper relief against the Respondents,

      individually and collectively, in an amount that is acceptable to the Court and is

      acceptable under Indiana [l]aw.” Id. Gray also requested punitive damages “at

      10 times the amount of damages caused by the unlawful and intentional actions

      of the Respondents.” Id.


[9]   On March 23, 2015, YMCA timely filed an Answer and Affirmative Defenses.

      On July 14, YMCA filed a Motion to Dismiss or, in the Alternative, for

      Summary Judgment. After briefing by both parties, the trial court held a

      hearing on the motion to dismiss and, on September 2, the Judge Pro Tempore

      entered an order granting YMCA’s motion to dismiss. In its order, the court

      specifically noted that it had considered only Gray’s complaint in reaching its

      decision. On September 17, YMCA moved the court to enter a final judgment

      on the order to dismiss because Gray had not filed an amended complaint

      within ten days of the court’s order, as required under Indiana Trial Rule 12(B).

      On September 22, the trial court entered judgment for YMCA on its order

      dismissing the complaint. This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 4 of 11
                                      Discussion and Decision
                                             Standard of Review

[10]   Our standard of review of an order granting a motion to dismiss is well-settled:

               A motion to dismiss under Rule 12(B)(6) tests the legal
               sufficiency of a complaint: that is, whether the allegations in the
               complaint establish any set of circumstances under which a
               plaintiff would be entitled to relief. See Kitco, Inc. v. Corp. for Gen.
               Trade, 706 N.E.2d 581 (Ind. Ct. App. 1999). Thus, while we do
               not test the sufficiency of the facts alleged with regards to their
               adequacy to provide recovery, we do test their sufficiency with
               regards to whether or not they have stated some factual scenario
               in which a legally actionable injury has occurred.


               A court should “accept[ ] as true the facts alleged in the
               complaint,” Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App.
               1999), and should not only “consider the pleadings in the light
               most favorable to the plaintiff,” but also “draw every reasonable
               inference in favor of [the non-moving] party.” Newman v. Deiter,
               702 N.E.2d 1093, 1097 (Ind. Ct. App. 1998).


                                                      ***


               Under notice pleading, we review the granting of a motion to
               dismiss for failure to state a claim under a stringent standard, and
               affirm the trial court’s grant of the motion only when it is
               “apparent that the facts alleged in the challenged pleading are
               incapable of supporting relief under any set of circumstances.”
               McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct.
               App. 1999).


       Trail v. Boys and Girls Club of Northwest Indiana, 845 N.E.2d 130, 134 (Ind. 2006).


       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 5 of 11
                                                  Defamation

[11]   Gray alleges that YMCA and some of its employees defamed him. Our

       supreme court has clearly laid out the law of defamation:


               To establish a claim of defamation, a “plaintiff must prove the
               existence of ‘a communication with defamatory imputation,
               malice, publication, and damages.’” Trail . . . , 845 N.E.2d [at]
               136 . . . (quoting Davidson v. Perron, 716 N.E.2d 29, 37 (Ind. Ct.
               App. 1999), trans. denied). 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) (internal citation omitted). One type of
               defamation action, alleging defamation 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. Id.; see also
               Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind. Ct. App. 1992), trans.
               denied; Elliott v. Roach, 409 N.E.2d 661, 683 (Ind. Ct. App. 1980),
               trans. not sought. In contrast, if the words used are not
               defamatory in themselves, but become so only when understood
               in the context of extrinsic evidence, they are considered
               defamatory per quod. McQueen v. Fayette County Sch. Corp., 711
               N.E.2d 62, 65 (Ind. Ct. App. 1999), trans. denied. In actions for
               defamation per se, damages are presumed, but in actions for
               defamation per quod, a plaintiff must prove damages. Rambo,
               587 N.E.2d at 145-46.


       Dugan v. Mittal Steel USA, Inc., 929 N.E.2d 184, 186 (Ind. 2010).




       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 6 of 11
[12]   For a statement to be actionable as defamation per se, it must not only carry

       with it one of the four defamatory imputations—criminal conduct, loathsome

       disease, misconduct in profession, or sexual misconduct—but it also must


               constitute a serious charge of incapacity or misconduct in words
               so obviously and naturally harmful that proof of their injurious
               character can be dispensed with. The offensiveness of the statements
               cannot be determined by how the plaintiff views the statement; the
               defamatory nature must be present in the nature of the words
               without any additional facts or circumstances to give context.


       In re Indiana Newspapers Inc., 963 N.E.2d 534, 549-50 (Ind. Ct. App. 2012)

       (emphasis added) (citations and quotations omitted). “Whether a

       communication is defamatory or not is a question of law for the court, unless

       the communication is susceptible to either a defamatory or nondefamatory

       interpretation—in which case the matter may be submitted to the jury.” Kelley

       v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007), citing Rambo, 587 N.E.2d at 145.


[13]   If the statement is not defamatory per se, it may yet state a claim of defamation

       per quod if it alleges special damages from the defamation. See, e.g., Agnew v.

       Hiatt, 466 N.E.2d 781, 782-83 (Ind. Ct. App. 1984). “Special damages” or

       “special harm” is “the loss of something having economic or pecuniary value.”

       Rambo, 587 N.E.2dat 146.


               Special harm must result from the conduct of a person other than
               the defamer or the one defamed and must be legally caused by
               the defamation. . . . Loss of reputation alone is not enough to
               make the defamer liable under the rule stated in this Section
               unless it is reflected in some kind of economic or pecuniary loss.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 7 of 11
               So too, lowered social standing and its purely social
               consequences are not sufficient.


       Restatement (Second) of Torts: Slander Creating Liability Because of Special

       Harm § 575 (1977).


[14]   Here, the complaint contains no facts indicating that most of the alleged

       defamatory statements were published. A matter is “published” for purposes of

       defamation if it is “communicated to a third person or persons.” Turner v. Boy

       Scouts of America, 856 N.E.2d 106, 111 (Ind. Ct. App. 2006) (citing Bals v.

       Verduzco, 600 N.E.3d 1353 (Ind. 1992)). Gray’s complaint does not allege any

       facts showing publication of the following alleged defamatory statements: (1)

       Meyers’ statements in her e-mails to him that he could not assist in teaching

       swimming because of the “hands on nature” of it and could not volunteer at

       day camp “because of the interaction of adults and children”; and (2) Butler’s

       statements in his letter to Gray that Gray used “inappropriate language” and

       “[made] threats.” Appellant’s App. at 11. Gray does not even allege that

       Meyers’ statements were communicated to third persons and, while he alleges

       that Butler “published falsehoods” against him, he states no facts showing

       Butler’s letter to him was ever seen by anyone other than Gray himself.

       “Without publication of a defamatory statement, there can be no relief granted”

       as to that statement. Id.


[15]   Gray’s allegation that Hiland defamed him by calling him a “liar” in “full view

       of other members and staff of the YMCA” states facts that, if true, show

       publication of Hiland’s statement. Appellant’s App. at 10. However, this
       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016   Page 8 of 11
       allegation did not state a claim of defamation per se because Gray failed to

       allege facts showing this statement constituted an imputation of criminal

       activity, a loathsome disease, misconduct in his profession, or sexual

       misconduct. Moreover, calling someone a “liar” is not, by itself, defamatory

       per se. Although the word may have a defamatory imputation, it is not, as a

       matter of law, “so obviously and naturally harmful that proof of [its] injurious

       character can be dispensed with.” Levee v. Beeching, 729 N.E.2d 215, 220 (Ind.

       Ct. App. 2000). And Gray alleged no facts showing any economic or pecuniary

       loss as special harm; therefore, he has not stated a claim of defamation per quod

       as to Hiland’s alleged statement. See Rambo, 587 N.E.2d 146.


[16]   Finally, Gray alleges that “the Fishers’ YMCA Aquatics Coordinator”1

       defamed him by communicating to Butler that Gray had “loomed over children

       in his speedos” and had threatened, and attempted, to “push people in the

       pool.” Appellant’s App. at 11. He alleges facts showing that both of these

       statements were said to a third party; therefore, they were “published” for

       purposes of defamation law. Turner, 856 N.E.2d at 111. Moreover, the

       statement that Gray attempted to push people into the pool could be

       defamation per se; this statement, on its face, accuses Gray of criminal




       1
        Gray does not state the name of the Aquatics Coordinator because it is unknown to him, and he alleges
       YMCA has refused to reveal the name to him.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016          Page 9 of 11
       conduct—namely, attempted battery.2 Therefore, Gray has stated a claim upon

       which relief can be granted as to this statement.


[17]   It is less clear whether the statement that he “loomed over children in his

       speedo” is defamatory per se. Although Gray claims in his complaint that this

       statement “effectively accus[ed him] of being a child molester,” that is merely

       Gray’s view of the statement and, as such, is not sufficient to state a claim of

       defamation per se. In re Indiana Newspapers, 963 N.E.2d at 550. However, we

       believe that this statement is susceptible to either a defamatory or

       nondefamatory interpretation. On one hand, there is nothing illegal or sexually

       improper about standing next to people at a pool while wearing a speedo. On

       the other hand, the Aquatics Coordinator allegedly stated that Gray “loomed

       over” children in his speedo, and this particular language3 reasonably could be

       taken to mean that Gray stood over children in a frightening way while scantily

       clad, thus exhibiting sexually inappropriate behavior. Because this statement is

       susceptible to either a defamatory or nondefamatory interpretation, it must be

       submitted to the trier of fact. Kelley, 865 N.E.2d at 596. Therefore, the trial

       court erred in dismissing this claim.


[18]   Most of the factual allegations in Gray’s complaint do not allege facts

       supporting claims for either defamation per se or defamation per quod and




       2
           See Ind. Code § 35-42-2-1 (2015) (Battery); I.C. § 35-41-5-1 (Attempt).
       3
          Merriam-Webster’s “simple definition” of “loom” as a verb is “to appear in a large, strange, or frightening
       form often in a sudden way.” www.merriam-webster.com/dictionary/loom.

       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016             Page 10 of 11
       were, therefore, properly dismissed.4 However, because the facts set out in

       Gray’s complaint show that the statements allegedly made by the Aquatics

       Coordinator were published and may be defamatory per se, Gray’s claims as to

       those statements should not have been dismissed.


[19]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Robb, J., and Crone, J., concur.




       4
         Gray’s claim that YMCA and its employees conspired to commit defamation against him also fails to state
       a claim upon which relief can be granted and was, therefore, properly dismissed. “A corporation cannot
       conspire with an agent when that agent is acting within the scope of his authority.” Soft Water Utilities, Inc. v.
       LeFevre, 308 N.E.2d 395, 399 (Ind. Ct. App. 1974).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1510-CT-1623 | April 5, 2016                Page 11 of 11
