                                                                                  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


      Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015                  Page 1 of 13
      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.

      Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015       Page 2 of 13
      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

      Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015   Page 3 of 13
      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.



      Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015   Page 4 of 13
      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.


      Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015          Page 5 of 13
       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.

       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015             Page 6 of 13
               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).

       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015    Page 7 of 13
[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.
       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015         Page 8 of 13
       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.



       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015   Page 9 of 13
[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:




       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015   Page 10 of 13
               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

       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015   Page 11 of 13
       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.


       Court of Appeals of Indiana | Opinion 02A03-1503-PL-81 | December 7, 2015   Page 12 of 13
       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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