MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Oct 24 2017, 10:28 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT
James C. Spencer
Thomas M. Dattilo
Dattilo Law Office
Madison, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zerlie Charles,                                          October 24, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         72A01-1706-SC-1252
        v.                                               Appeal from the Scott Superior
                                                         Court
Vickie Vest,                                             The Honorable Andrew Adams,
Appellee-Defendant.                                      Special Judge
                                                         Trial Court Cause No.
                                                         72D01-1611-SC-387



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017             Page 1 of 9
                                          Case Summary
[1]   Zerlie Charles (“Charles”) appeals the trial court’s ruling, following a bench

      trial, against her in her complaint against Vickie Vest (“Vest”) for defamation.

      On appeal, she raises only one issue, namely, whether the trial court’s ruling on

      her defamation claim was contrary to law. We hold that it was, and we reverse.



                            Facts and Procedural History
[2]   Vest cohabitated with Charles’ son, Robert (“Robert”), for approximately three

      years. Robert owned a 2002 Chevrolet Silverado pick-up truck. On February

      10, 2015, Robert died. About ten days later, Vest made a police report with

      Scott County that the 2002 Chevrolet Silverado pick-up truck had been stolen.

      A short time later, the police recovered the truck in a church parking lot.


[3]   On February 28, 2015, Vest posted the following message on her Facebook

      page:


              Just have to say [a]ll the talk that’s being said about Robert[’s]
              things being stolen[,] [i]f it was stolen I don’t know but I do know my
              truck was and[,] yes[,] Zerlie Charles had everything to do with it[,]
              that’s facts [sic]. I didn’t even get all my personal things out of the
              house before his mom went physco [sic]. Butt [sic] that’s OK[.] I
              will be OK[.] I lost my soul mate[,] thrown out of his house[,]
              and had my truck stolen all in 2 weeks. So I really don’t give a
              DAM! [sic] what Zerlie Charles has to say. I was there for
              Robert[.] [S]he had to have control[.] [W]ell she got it all now.
              And still ain’t happy. Life goes on and will be great. She can
              talk all she wants and we all know she will because that how it


      Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 2 of 9
              is[.] I have our memories and a lot of wonderful ones that no
              one can take away! Not even Zerlie Charles!!!!!!!!!


      Exhibits at 2 (emphasis added). Eleven people “liked” that message, and eight

      people posted comments in response to the message. Id.


[4]   On November 30, 2016, Charles filed in the Small Claims Division of the Scott

      County Superior Court a complaint against Vest “for defamation per se.”

      Appellant’s App. at 7. Specifically, Charles contended that Vest defamed

      Charles when Vest stated in a Facebook post: “I do know my truck was [stolen]

      and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts [sic].” Id.;

      Exhibits at 2. Charles also claimed that Vest “intimated” to the Scott County

      Sheriff’s Office that Charles had stolen the truck. Exhibits at 2. On December

      29, Vest filed a counter-claim for defamation against Charles.


[5]   The trial court held a trial on the parties’ claims on April 7, 2017. At the trial,

      Vest admitted that, in a different case, she had pled guilty to forging the title of

      the 2002 Chevrolet Silverado pick-up truck from Robert’s name to her own

      name. Vest admitted that she had stolen the truck she had reported as stolen to

      the police. Vest further admitted that she sold the truck to a third party in June

      of 2016. Charles testified that she (Charles) had not stolen the truck. And

      Charles admitted into evidence, without objection, as Plaintiff’s Exhibit 2 an

      order of the Jefferson Circuit Court in a civil collection case involving Robert’s

      estate in which the court concluded that Vest had “unlawfully converted the

      2002 Chevrolet Silverado to her own use,” and granted Robert’s estate $5,000

      for the value of the truck and $5,000 in exemplary damages. Exhibits at 4-5.
      Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 3 of 9
[6]   Charles testified that, because of the allegation posted on Facebook that she had

      stolen the truck, she could no longer sleep at night, her reputation had been

      “ruined,” and some of her good friends did not “come around anymore.” Tr.

      at 22-23. Kevin Zehner, Robert’s “best friend” and a registered nurse

      specializing in behavioral health and anxiety issues, testified that he had

      observed in Charles anxiety, depression, tears, pain, and emotional distress

      caused by the death of her son and “being called a thief.” Tr. at 28, 30.


[7]   On May 12, 2017, the trial court issued the following written order:


              Comes now the Court[,] having heard testimony [and] reviewed
              pleadings and case law[,] and finds as follows:


              1.       That the Plaintiff failed to meet her case for defamation
                       per se as the evidence presented did not meet the standard
                       for per se or per quod.


              2.       That the Defendant fail[ed] to meet her burden on [her]
                       counter claim.


      Appellant’s App. at 30. This appeal ensued.



                                 Discussion and Decision
                                        Standard of Review
[8]   Charles alleges that Vest defamed her. As an initial matter, we note that Vest

      has not filed an appellee’s brief; therefore, we apply a less stringent standard of

      review and may reverse the trial court if Charles has shown prima facie error.


      Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 4 of 9
       Ind. Appellate Rule 45(D). “Prima facie error” is error at first sight, at first

       appearance, or on the face of it. See, e.g., Progressive Ins. Co. v. Harger, 777

       N.E.2d 91, 92 (Ind. Ct. App. 2002).


[9]    We also note that Charles appeals from a negative judgment.


               A judgment entered against a party who bore the burden of proof
               at trial is a negative judgment. Garling v. Ind. Dep’t of Natural Res.,
               766 N.E.2d 409, 411 (Ind. Ct. App. 2002). On appeal, we will
               not reverse a negative judgment unless it is contrary to law.
               Mominee v. King, 629 N.E.2d 1280, 1282 (Ind. Ct. App. 1994).
               To determine whether a judgment is contrary to law, we consider
               the evidence in the light most favorable to the appellee, together
               with all the reasonable inferences to be drawn therefrom. J.W. v.
               Hendricks Cnty. Office of Family & Children, 697 N.E.2d 480, 482
               (Ind. Ct. App. 1998). A party appealing from a negative
               judgment must show that the evidence points unerringly to a
               conclusion different than that reached by the trial court.
               Mominee, 629 N.E.2d at 1282.


       Smith v. Dermatology Associates of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct.

       App. 2012).


                                                Defamation
[10]   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 v. Boys & Girls Clubs of
               N.W. Ind., 845 N.E.2d 130, 136 (Ind. 2006) (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

       Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 5 of 9
               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). Moreover,

       “[a]ny statement actionable for defamation must not only be defamatory in

       nature, but also false.” Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 956

       (Ind. Ct. App. 2014), trans. denied. “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).


[11]   Here, Charles has shown that Vest’s statement—“I do know my truck was

       [stolen] and[,] yes[,] Zerlie Charles had everything to do with it[,] that’s facts

       [sic]”—is defamation per se. Exhibits at 2. The statement quite clearly imputes

       Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 6 of 9
       to Charles criminal conduct—i.e., stealing a truck. See Ind. Code § 35-43-4-2.5

       (making auto theft a Level 6 felony). Moreover, the statement was clearly

       published on Vest’s Facebook page, where at least eleven people read it and

       “liked” it, Exhibits at 2. See, e.g., Sch. City of Hammond Dist. v. Rueth, 71 N.E.3d

       33, 43 (Ind. Ct. App. 2017) (noting that, within the context of defamation,

       “publish” means to communicate the statement to a third person or persons),

       trans. denied.


[12]   Furthermore, there was no evidence that Vest’s Facebook statement was true.

       Charles testified that she did not steal the truck and there was no evidence in

       the record indicating otherwise. See I.C. § 34-15-1-2 (providing a defendant in a

       libel or slander action may allege truth of the allegedly defamatory statement as

       a defense); see also, e.g., Melton v. Ousley, 925 N.E.2d 430, 437 (Ind. Ct. App.

       2010) (“[T]ruth is a complete defense in civil actions for defamation.”).

       Although Vest said in her opening statement that the only person who could

       have stolen the truck was someone with a key and Charles had a key, that

       statement was not evidence. And Vest did not testify at any point that her

       statement that Charles stole the truck was true; in fact, she repeatedly noted that

       she had never used the word “thief” in reference to Charles and that she only

       said Charles “was involved” because Charles had a key to the truck. Tr. at 47.

       Moreover, Vest admitted it was not legally her truck because she had forged the

       title to the vehicle over to herself; thus, her statement that “her” truck was

       stolen was false.




       Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 7 of 9
[13]   And Charles was not required to prove “malice” as part of her defamation

       claim. Malice is not a required element of a defamation claim between private

       individuals unless the alleged defamatory statement relates to a matter of public

       concern. Mourning v. Allison Transmission, Inc., 72 N.E.3d 482, 489 n.3 (Ind. Ct.

       App. 2017) (citing 23 James R. Fisher & Debra H. Miller, Indiana Practice,

       Personal Injury Law and Practice, § 3:21 (2d ed. 2007) (footnotes and citations

       omitted) (“Private persons must also show ‘actual malice’ when the

       communication in question relates to an issue of public concern. Malice is not

       otherwise a required element of a defamatory action.”)). Here, Vest’s statement

       related to a private matter, not a matter of public concern; therefore, she did not

       need to show that Vest acted with malice. Mourning, 72 N.E.3d at 489.


[14]   Nor was Charles required to prove damages. In an action for defamation per

       se—as opposed to defamation per quod—a “plaintiff is entitled to presumed

       damages ‘as a natural and probable consequence’ of the per se defamation.[]”

       Baker v. Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009) (internal quotations and

       citations omitted).



                                               Conclusion
[15]   Charles has not only shown prima facie error, but she has also shown that the

       evidence points unerringly to a conclusion that Vest committed defamation per

       se against her. The trial court’s decision was contrary to law and we must

       reverse it.



       Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 8 of 9
[16]   Reversed and remanded for a determination of the amount of damages.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 72A01-1706-SC-1252 | October 24, 2017   Page 9 of 9
