                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2030
                              Filed April 15, 2020


ROBERT GANNON,
    Plaintiff-Appellant,

vs.

JOHN HALFERTY, JASPER COUNTY SHERIFF, acting in his individual and
official capacities, and JASPER COUNTY, IOWA,
       Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Martha L. Mertz,

Judge.



      Plaintiff appeals the district court decision granting summary judgment to

defendants on his claims of defamation and false light invasion of privacy.

AFFIRMED.



      Michael Keller of Mike Keller Law, PLLC, Windsor Heights, for appellant.

      Jason C. Palmer and Thomas M. Boes of Bradshaw, Fowler, Proctor &

Fairgrave, P.C., Des Moines, for appellees.



      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.

       A sheriff conducted an investigation into possible destruction of graves at a

Jasper County cemetery. When Robert Gannon, a neighboring landowner, made

remarks about the site’s alleged neglect at a county meeting, the sheriff responded

that Gannon “had his tenant farmers and people come in to do work and actually

destroy grave sites.” Gannon initiated a suit for defamation and false light against

the sheriff in both his individual and official capacities, the Jasper County Attorney,

and Jasper County, Iowa.       Gannon was defeated by a motion for summary

judgment and then appealed. We affirm the grant of summary judgment.

Factual Background and Procedural History

       Gannon owns property in rural Jasper County abutting a cemetery known

as Sams Cemetery.1        Gannon took an interest in the cemetery beginning

approximately in 2011, highlighting his concerns over the cemetery’s maintenance

to various boards and organizations.

       Until 2015, Gannon was unaware who owned the cemetery property.

However, through comments made that year by county and state officials, Gannon

came to believe he owned the cemetery. An attorney subsequently produced a

preliminary abstract reflecting the same in March 2016. Poweshiek Township filed

a quiet title action, the appeal of which is still pending.2 In 2016, the cemetery

gained the designation of “pioneer cemetery” pursuant to Iowa Code sections



1  The record leaves unclear whether an apostrophe is properly included in the
cemetery’s name. Because “Sams” is a surname of several of the interred, we
follow the convention of plaintiff’s petition and omit the apostrophe.
2 In January 2018, the district court ruled in favor of Poweshiek Township, quieting

title to Sams Cemetery in favor of Poweshiek Township. EQCV120035 (Jasper).
                                         3


523I.316 and 523I.102 (2016). Under both the title opinion and the designation as

a pioneer cemetery, Poweshiek Township was responsible for the upkeep and

maintenance of the cemetery.

       Following receipt of the title opinion, Gannon made numerous controversial

modifications to the cemetery grounds. Gannon believed his actions enhanced

the cemetery and honored those buried within the cemetery, while his critics

argued the modifications disrupted a historical and serene site. Actions taken by

Gannon or executed at his direction included: installation of a new tombstone for

a civil war veteran; installation of a flag pole and angel statue; installation of a

commemorative monument; trash removal; perimeter fence removal; straightening

of old tombstones; adding dirt fill to sunken graves; spraying and tilling unmowed

prairie; installation of wind chime sets; and, most controversially, moving and in

some cases unearthing tombstones. The parties fiercely debate the significance

of this final action.

       In April 2016, Jasper County Attorney Michael Jacobsen called Jasper

County Sheriff John Halferty to advise him of a complaint of possible defacing and

destruction of property at Sams Cemetery. Sheriff Halferty visited the cemetery to

investigate and interviewed contractors who had recently performed work on the

cemetery grounds at Gannon’s direction.

       On June 7, 2016, the Jasper County Board of Supervisors met, with Gannon

allotted time on the agenda to raise his concerns regarding Sams Cemetery. At

this meeting, Gannon was critical of the county. He alleged that Sheriff Halferty

trespassed on his land, the township trustees failed to adequately maintain the

cemetery, and the township trustees had illegally sold burial plots on the land,
                                            4


which he now believed he owned. After giving his remarks, Gannon left. Sheriff

Halferty then made the following statement, in which he used the phrase “actually

destroy grave sites” to characterize the actions of Gannon and the contractors he

hired:

                 For the record, if [Gannon] is so concerned about the
         cemetery upkeep, our investigation has shown that he has actually
         staked out where he thought the cemetery was. He has then had his
         tenant farmers and people come in to do work and actually destroy
         grave sites. And we know that because Mr. Gannon took a video
         himself, posted it on YouTube in 2015. We were able to compare
         that video with what has been done now. That information has been
         turned over to Mr. Jacobsen. I have taken additional complaints
         about harassment and work. Harassing the people that are taking
         care of the cemetery and work that he has had done which he just
         admitted. I’m a little confused because he said it’s his property but
         it’s not his property. I’m a little confused ‘cause he says you can go
         on my property but you can’t trespass. I’m gonna respectfully notify
         the Board I will not charge anybody who goes on Sams Cemetery
         property to visit grave sites. It is a beautiful property but I can tell
         you one corner of the property has been permanently destroyed;
         native prairie grass and some headstones that Mr. Gannon
         authorized. So, I’m a little unsure what his complaint is. He’s done
         the most damage.
                 I will take [a] report from [Gannon] today but I am going to
         refer that information to Mr. Jacobsen for a legal determination on
         who actually has the right . . . to sell grave sites or whatever the
         proper term is. I don’t normally talk about that, but . . . he’s made
         threats of legal liability and other things. And I am just telling you we
         are going to try work with him, but I’m not really sure where he is
         coming from. So I have pictures, too. If anybody would like to go out
         and look at what’s been done at the cemetery I would really
         encourage you guys to do that. Thank you, unless you have
         questions.

         A representative from the Newton Daily News was present during Halferty’s

statement, and the paper quoted Halferty’s statement in part the following day:

         “For the record, if he is so concerned about the cemetery upkeep,
         our investigation has shown that he has actually staked out where
         he thought the cemetery was. He has then had his tenant farmers
         and people come in to do work and actually destroyed grave sites.
         We know that because Mr. Gannon took a video himself last year
                                            5


         and we were able to compare that video with what has been done
         now,” Halferty said. “I am a little unsure what his complaint is, he
         has done the most damage.”

         Gannon then sued Sheriff Halferty, Jasper County, and Jasper County

Attorney Michael Jacobsen for defamation, false light invasion of privacy, and

conspiracy. Defendants motioned for summary judgment in January 2018, which

the trial court later granted as to all three claims. Plaintiff and defendants motioned

to amend and enlarge, and defendants motioned to strike the plaintiff’s June 25

attempt to supplement the record after the summary judgment order entered. The

court granted the motion to strike and affirmed its ruling on the motion for summary

judgment. Plaintiff timely appealed.3

Standard and Scope of Review

         We review a district court’s decision granting summary judgment for

corrections of errors of law. Jones v. Univ. of Iowa, 836 N.W.2d 127, 139 (Iowa

2013).

         A court should grant summary judgment if the pleadings,
         depositions, answers to interrogatories, and admissions on file,
         together with the affidavits, if any, show 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. In other words, summary judgment is
         appropriate if the record reveals a conflict only concerns the legal
         consequences of undisputed facts. When reviewing a court's
         decision to grant summary judgment, we examine the record in the
         light most favorable to the nonmoving party and we draw all
         legitimate inferences the evidence bears in order to establish the
         existence of questions of fact.

3 On February 21, 2019, plaintiff voluntarily dismissed his appeal against defendant
Michael Jacobsen, Jasper County Attorney, in both his individual and official
capacities. We therefore only consider Gannon’s claims against Sheriff Halferty.
Because we affirm the district court’s grant of summary judgment, we have no
occasion to address the applicability of the Iowa Municipal Tort Claims Act, as the
failure of Gannon’s claim against Sheriff Halferty is fatal to his claim against Jasper
County.
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Id. at 139–40 (quoting Pitts v. Farm Bureau Life Ins. Co., 818 N.W.2d 91, 96–97

(Iowa 2012)). “Even if the facts are undisputed, summary judgment is not proper

if reasonable minds could draw different inferences from them and thereby reach

different conclusions.” Hedlund v. State, 930 N.W.2d 707, 715 (Iowa 2019).

       A district court’s ruling on a motion for a continuance under Iowa Rule of

Civil Procedure 1.981(6) is reviewed for abuse of discretion.        Good v. Tyson

Foods, Inc., 756 N.W.2d 42, 46 (Iowa Ct. App. 2008).

Discussion

       Gannon challenges the district court’s grant of summary judgment on his

defamation and false light claims against Sheriff Halferty. We must therefore

determine whether the district court correctly found no genuine issue of material

fact with regard to either Gannon’s claims or Sheriff Halferty’s affirmative defenses.

See C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 79–80 (Iowa 2011)

(finding a genuine issue of material fact existed as to an element of an affirmative

defense). In brief, we find that Sheriff Halferty’s statements were substantially true

and were protected by qualified privilege. Thus, the grant of summary judgment

was proper.

       To prevail on claims of false light invasion of privacy and defamation, a

plaintiff must prove falsity. Bierman v. Weier, 826 N.W.2d 436, 465 (Iowa 2013);

Yates v. Iowa West Racing Ass’n, 721 N.W.2d 762, 768 (Iowa 2006). Thus,

Gannon must prove it was false for Sheriff Halferty to state that Gannon “had his

tenant farmers and people come in to do work and actually destroy grave sites.”

The truth or falsity of that statement also bears on defendants’ affirmative defenses
                                         7

of truth, statement of opinion, and qualified privilege. See Yates, 721 N.W.2d at

769–70, 772–73; Barreca v. Nickolas, 683 N.W.2d 111, 118 (Iowa 2004). While

the parties agree that Gannon conducted a variety of activities at Sams Cemetery,

including digging and tilling, the parties disagree as to whether Gannon actually

destroyed grave sites.

       Sheriff Halferty cites two locations as evidence that Gannon’s actions

caused the destruction of grave sites. The first is located in the northeast corner

of Sams Cemetery and the second on the cemetery’s west side.

       Present at the northeastern site was a tombstone and base, both of which

protruded from the ground while remaining partially buried in dirt. Gannon initially

believed the northeastern site was a grave, referring to such as a “mystery grave,”

so he arranged for a visit by the Bioarcheology Director of the Office of the State

Archeologist, who recommended using ground-penetrating radar to search for

interred remains. The Director also mentioned the possibility of using a prod to

search the spot. Gannon then excavated at least one foot of dirt and used a prod

on the site. After he failed to identify remains at the site, Gannon alone concluded

there were none.      He subsequently removed the grave marker found at this

location, which was somewhat apart from the other tombstones in the cemetery.

       The western site lies approximately fifty feet west of the then-current grass

line of the cemetery. In this area, Gannon had enlisted a contractor to clear a

grove of trees the year prior to Sheriff Halferty’s investigation.      During the

investigation, Sheriff Halferty found pieces of stone he determined to be remnants

of a grave marker. He also found a nearby indentation he believed to be the former

site of the stones.
                                            8


       If an allegedly defamatory statement is substantially true, the substantial

truth of the statement is a complete defense against the defamation action. Wilson

v. IBP, Inc., 558 N.W.2d 132, 140 (Iowa 1996). Literal truth is no longer required.

Instead, a defendant gains the protection of the substantial truth defense when

“the ‘sting’ or ‘gist’ of the defamatory charge is substantially true.” Id.

       Gannon’s actions severely affected the character of this small cemetery.

He removed the perimeter fence, tilled land and planted crop, mowed a prairie

remnant, and relocated a number of tombstones.               Some of the relocated

tombstones were duplicates that were discarded and replaced following a

vandalism incident. The stone at the northeastern site was unrelated to that

incident and so much resembled a gravesite that Gannon had a state official come

out to investigate. These major modifications came in the wake of Gannon’s

removal of an immediately adjacent tree grove on his property, disturbing the

western gravesite.     Gannon’s sister reported his actions “totally changed the

serene landscape that once was present,” describing the modifications as a

“violation of reverence.”

       Gannon’s defamation and false light claims focus on Sheriff Halferty’s

statement that Gannon or his agents “actually destroyed grave sites.” In light of

the sum of Gannon’s actions and his actions at the northeastern site in particular,

we find the “sting” or “gist” of Sheriff Halferty’s statements to be substantially true.

At the Board of Supervisors meeting, Sheriff Halferty said an investigation had

shown destruction of grave sites. This is substantially true. The evidence also

demonstrates that Gannon made sufficient modifications so as to change the

natural character of the site as a whole.
                                          9


       Furthermore, Gannon admitted to probing the earth at a site he initially

identified as a gravesite, later going so far as to remove the headstone entirely

from its resting place. That Gannon enlisted the Bioarcheology Director of the

Office of the State Archeologist to evaluate the northeastern site only serves to

underscore his initial perception of the site as a likely gravesite. All parties agree

the stone present at the northeastern site was at one point a grave marker, and by

moving the partially interred grave marker from its resting location, Gannon

destroyed that gravesite, even if the site was a second or subsequent home for the

marker.

       Supporting    the   conclusion    that   Sheriff   Halferty’s   statement   was

substantially true is the legislature’s decision to equate the disturbing of gravesites

with the destruction of gravesites for purposes of criminal sanctions. See Iowa

Code § 523I.316(2) (“A person who knowingly and without authorization damages,

defaces, destroys, or otherwise disturbs an interment space commits criminal

mischief in the third degree.” (emphasis added)). Multiple deponents in this case

felt Gannon had disturbed the cemetery, and the legislature’s equivalence leads

to the conclusion that Gannon would suffer the same amount of injured reputation

irrespective of any distinction between disturbing and destroying the sites.

       On appeal, Gannon maintains a narrow focus. He centers his false light

and defamation claims on Sheriff Halferty’s comment that gravesites were “actually

destroyed,” arguing that no removed tombstone was taken from its purposeful site

and any dirt removed or disturbed was not home to a burial. We think this analysis

is not in accord with the “gist” and “sting” analysis as expounded in Iowa cases on

the substantial truth. See Wilson, 558 N.W.2d at 140–41 (citing Behr v. Meredith
                                         10

Corp., 414 N.W.2d 339, 342 (Iowa 1987)). Given Gannon’s substantial actions at

the cemetery, which included the removal of a headstone from a site that appeared

at first to be an interment space, Sheriff Halferty’s comment that Gannon and his

agents “actually destroyed” gravesites was substantially true. We therefore find

that summary judgment was proper on the ground of substantial truth.

       Though the district court granted summary judgment solely based on the

defendants’ substantial truth defense, we also find that Sheriff Halferty established

the elements of the affirmative defense of qualified privilege.

       To prove a statement is protected by qualified privilege, a defendant must

show: (1) the statement was made in good faith, (2) the defendant had an interest

to uphold, (3) the scope of the statement was limited to the identified interest, and

(4) the statement was published on a proper occasion, in a proper manner, and to

proper parties only. Jones, 836 N.W.2d at 149 (quoting Theisen v. Covenant Med.

Ctr., Inc., 636 N.W.2d 74, 84 (Iowa 2001)). The privilege may be lost “if the

speaker acts with actual malice, or exceeds or abuses the privilege through, for

example, excessive publication or through publication to persons other than those

who have a legitimate interest in the subject of the statements.” Theisen, 636

N.W.2d at 84. In this context, “actual malice” means the defendant “published the

statement with a knowing or reckless disregard of its truth.” Barreca, 683 N.W.2d

at 121–23.

       An evaluation of the four-factor test leads to the conclusion that Sheriff

Halferty’s statement is protected by qualified privilege. First, his statement was

made in good faith. He had personally observed two sites where grave markers

had been disturbed from their resting places at apparent grave sites. Additionally,
                                         11


his statement was based upon observations stemming from his investigation of the

cemetery, and Iowa cases have found thorough investigations to be indicative of

good faith. See Theisen, 636 N.W.2d at 84; Jones, 836 N.W.2d at 150–51 (finding

no jury question on the issue of qualified privilege where an investigatory report

did not exceed its mandate).

       Sheriff Halferty’s statement upheld the appropriate interest of faith in Jasper

County governmental institutions and representatives. Sheriff Halferty sought to

provide a counter narrative against Gannon’s incendiary comments, which

included accusations of illegal burial plot sales, fraudulent deeding, and trespass.

His comment that Gannon or his agents “actually destroyed gravesites” was based

on an investigation he had conducted in his official capacity, through which he

made the reasonable conclusion that the western and northeastern sites at Sams

Cemetery were home to disturbed gravesites and such information was shared

with those who had heard Gannon’s allegations.

       Finally, Sheriff Halferty’s statement was uttered to the same group to which

Gannon had directed his comments. The scope and audience of Sheriff Halferty’s

statement were thus proportionate to that of Gannon’s statement.           While the

statement was made at a public hearing, this fact does not change our analysis.

For instance, in Cowman v. LaVine, 234 N.W.2d 114, 125 (Iowa 1975), the Iowa

Supreme Court found statements made by a city councilman at a public meeting

of the city council to be qualifiedly privileged. Because Sheriff Halferty’s statement

was made in the same venue on the same subject as Gannon’s comments, his

statement was published in a proper manner, on a proper occasion, and to proper

parties.
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       We conclude there was no “knowing or reckless disregard for the truth”

here. See Barreca, 683 N.W.2d at 123. Thus, Sheriff Halferty’s defense of

qualified privilege protects his statement, and we affirm summary judgment on this

affirmative defense in addition to substantial truth.

       Gannon also argues the district court abused its discretion when it denied

his motion to continue for discovery. We find no abuse of discretion. The court

had previously granted a motion to continue at Gannon’s request. The court’s

ruling denying Gannon’s second continuance motion was without prejudice,

leaving open the possibility of further discovery if needed.     However, further

discovery was not needed as to the issue of substantial truth, the sole ground upon

which the court granted summary judgment. Ample uncontested facts in the record

support the conclusion that Sheriff Halferty’s statement was substantially true. Of

the requests in Gannon’s continuance motion, only the opportunity to search the

northeastern site with ground-penetrating radar is relevant and material to the

affirmative defense of substantial truth. Yet because ample uncontested facts

demonstrate the substantial truth of Sheriff Halferty’s statement, as discussed

above, it was not an abuse of discretion to deny Gannon’s motion despite his

request to use ground-penetrating radar to search for remains.

Conclusion

       Because we find Sheriff Halferty’s statement at the Board of Supervisors

meeting to be substantially true and qualifiedly privileged, we affirm the district

court’s grant of summary judgment.

       AFFIRMED.
