Mario L. Sims v. Emily Taylor (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 11 2018, 8:42 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE
Mario L. Sims
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mario L. Sims, May 11, 2018
Appellant-Plaintiff, Court of Appeals Case No.
71A03-1708-CT-2026
v. Appeal from the St. Joseph
Superior Court
Emily Taylor, The Honorable Jenny Pitts Manier,
Appellee-Defendant. Judge
Trial Court Cause No.
71D05-1609-CT-448
Mathias, Judge.
[1] Mario L. Sims (“Sims”) filed a complaint in St. Joseph Superior Court against
Emily Taylor (“Taylor”) alleging defamation per se for statements Taylor wrote
on Facebook. The trial court granted summary judgment in favor of Taylor.
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Sims now appeals and raises four issues for review which we restate as the
following three issues:
I. Whether the trial court erred when it granted Taylor’s
motion for summary judgment?
II. Whether the trial court erred when it denied Sims’s motion
for change of judge?
III. Whether the trial court erred when it awarded Taylor
attorney fees?
[2] We affirm the trial court in all respects except for the amount awarded in
attorney fees. On that issue, we remand with instructions to the trial court to
correct its order as discussed in this opinion.
Facts and Procedural History1
[3] On September 15, 2016, Taylor read a post in a private Facebook forum which
stated that “Pastor Mario Sims of Duolos Chapel has given leaders of the Nu
Black Power Movement of South Bend access to the entire church building in
hopes to clean and renovate the building,” and “[w]e are in need of sponsors
and donations to help pay for the building renovations.” Appellant’s App. p.
99. Taylor responded with the following post of her own:
1
The “Statement of Facts” section of Sims’s brief presents the facts in a manner that emphasizes specific
facts, credentials, and assertions irrelevant to the case before us. Mr. Sims has also been an active litigant at
the trial and appellate levels for quite some time. We remind Sims of Indiana Appellate Rule 46(A)(6)(b),
which states in pertinent part that “[t]he facts shall be stated in accordance with the standard of review
appropriate to the judgment.”
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I’m going to be honest here . . . I think Mario Sims is far from a
Christian as you can get and is the LAST person I would trust to
lead a congregation. He is in this for fame and glory, the exact
things the Bible warns people against. He is vindictive, cruel, and
unwilling to listen to any viewpoint that might contradict the
story he wants to peddle to the media. He is interested in stirring
up trouble, but more than likely to disappear when the time
comes to figure out how, as a community, we can make things
work.
This is probably the wrong place to shill for him in other words.
***
[] it is a scam. I am inclined to believe he started his chapel for
tax exempt status.
Appellant’s App. p. 13.
[4] On September 24, Sims was made aware of Taylor’s comments on Facebook.
Sims republished Taylor’s comments in a public Facebook forum, and he also
stated:
Emily Taylor, you have until 5:00 p.m., today to produce
evidence that supports your post below, apologize, or I will file
suit against you by Wednesday of next week without further
notice. This is your only warning. Just because you phrase
something as a statement of opinion -- “I think” or “I believe” --
does not automatically protect you from a defamation claim.
These are false statements. Here is some free advice: If you are
blogging or writing on your Facebook page, or submitting
comments on someone else’s blog or Facebook page, make sure
that you have all of your facts absolutely straight before posting
your statement to the internet. Once you have clicked “send,”
you can’t take it back. In submitting posts or comments online or
on social media, it is a good idea to exercise the utmost caution
and avoid making any “gray area” statements that could be
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construed as defamation. Emily Taylor, you have until 5:00 p.m.,
today to produce evidence that supports the post.
Appellant’s App. pp. 13–14. Taylor did not retract her statements, nor did she
issue Sims an apology.
[5] On September 30, Sims filed a complaint against Taylor alleging defamation per
se. Taylor filed a motion to dismiss the complaint under Indiana’s Anti-SLAPP2
laws on March 24, 2017. Because the motion to dismiss was filed under the
anti-SLAPP statute, the court was required to “[t]reat the motion as a motion
for summary judgment.” Ind. Code § 34-7-7-9(a)(1).
[6] The trial court held a hearing on the summary judgment motion on May 23.
And on June 5, the trial court granted Taylor’s motion. A week later, Taylor’s
counsel filed a motion for attorney fees in the amount of $4,375.50 with an
accompanying affidavit. The next day, Sims filed: (1) a motion to correct error;
(2) a petition for change of judge; and (3) an opposition to Taylor’s counsel’s
motion for attorney fees. On July 5, the trial court issued its final order denying
Sims’s motion for change of judge, and the court awarded Taylor’s counsel
attorney fees in the amount of $4,735.50.
[7] Sims now appeals.
2
SLAPP stands for “strategic lawsuits against public participation,” which are described as “meritless suits
aimed at silencing a plaintiff’s opponents, or at least diverting their resources.” Nexus Group, Inc. v. Heritage
Appraisal Serv., 942 N.E.2d 119, 122 (Ind. Ct. App. 2011) (citation omitted). Indiana adopted the anti-SLAPP
statute in order to discourage such lawsuits from being brought. Id.Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CT-2026| May 11, 2018 Page 4 of 15
Discussion and Decision
[8] We initially note that Taylor did not file an appellee's brief. In such cases, we
will not develop arguments for the appellee, and we apply a less stringent
standard of review. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind. Ct. App. 2017).
“We may reverse if the appellant is able to establish prima facie error, which is
error at first sight, on first appearance, or on the face of it.” Wharton v. State, 42
N.E.3d 539, 541 (Ind. Ct. App. 2015). “The appellee’s failure to provide
argument does not relieve us of our obligation to correctly apply the law to the
facts in the record in order to determine whether reversal is required.” Id.I. Summary Judgment Under the Anti-SLAPP Statute
[9] Sims first argues that the trial court erred when it granted Taylor’s motion for
summary judgment. As stated above, Taylor’s motion was filed as a motion to
dismiss the complaint against her under Indiana’s anti-SLAPP statute. And the
anti-SLAPP statute requires the court to “[t]reat the motion as a motion for
summary judgment.” I.C. § 34-7-7-9(a)(1); see also Ind. Trial Rule 12(C)
(converting to summary judgment a motion that includes facts outside the
pleading). To the extent that Trial Rule 56—which governs summary judgment
motions—conflicts with the anti-SLAPP statutes, Trial Rule 56 controls. Nexus
Group, Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119, 122 (Ind. Ct. App. 2011).
[10] We review a summary judgment de novo, applying the same standard as the trial
court and drawing all reasonable inferences in favor of the nonmoving party.
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In conducting our review,
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we consider only those matters that were designated at the summary judgment
stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind. Ct. App. 2011).
Summary judgment is appropriate if the designated evidence shows that there is
no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Hughley, 15 N.E.3d at 1003; T.R. 56(C). If there is
any doubt as to the conclusion a jury could reach, then summary judgment is
improper. Nexus Group, Inc., 942 N.E.2d at 122.
[11] Our State’s anti-SLAPP statute provides:
It is a defense in a civil action against a person that the act or
omission complained of is:
(1) an 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 and with a
reasonable basis in law and fact.
Ind. Code § 34-7-7-5. The party seeking to dismiss a claim under the anti-
SLAPP statute “must state with specificity the public issue or issue of public
interest that prompted the act in furtherance of the person’s right of petition or
free speech[.]” I.C. § 34-7-7-9(b). And the trial court shall grant the motion “if
the court finds that the person filing the motion has proven, by a preponderance
of the evidence, that the act upon which the claim is based is a lawful act in
furtherance of the person’s right of petition or free speech[.]” Id. at (d). If a party
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is successful in having a claim dismissed under the act, the defendant is entitled
to reasonable attorney fees. Ind. Code § 34-7-7-7.
[12] The first question is whether or not Taylor sufficiently stated with specificity the
public issue that prompted her Facebook comment. In Taylor’s affidavit, she
explained the important public issue as, “should donations be given to Pastor
Mario Sims and the Doulos Chapel?” Appellant’s App. p. 99.
[13] Our supreme court has explained that generally, “[s]peech is on a matter of
public concern if it is addressed to ‘any matter of political, social, or other
concern to the community,’ as determined by its content, form, and context.”
Love v. Rehfus, 946 N.E.2d 1, 9 (2011) (quoting Connick v. Myers, 461 U.S. 138,
146 (1983)). Our courts have not spoken “at length” regarding whether speech
relates to a matter of public concern in the anti-SLAPP context, but we have
noted with approval the analysis of California courts on that topic. Brandom v.
Coupled Products, LLC, 975 N.E.2d 382, 386 (Ind. Ct. App. 2012) (citing Cross v.
Cooper, 127 Cal. Rptr. 3d 903 (Cal. Ct. App. 2011)).
[14] We explained in Brandom that California courts have recognized three non-
exclusive categories of statements that have been given anti-SLAPP protection:
(1) “cases where the statement or activity precipitating the underlying cause of
action was ‘a person or entity in the public eye’”; (2) “cases where the statement
or activity precipitating the underlying cause of action ‘involved conduct that
could affect large numbers of people beyond the direct participants’”; and (3)
“cases where the statement or activity precipitating the claim involved ‘a topic
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of widespread, public interest.’” Id. at 387 (quoting Cross, 127 Cal. Rptr. 3d 903at 914 (citations omitted)).
[15] Based on the facts and circumstances before us, Taylor’s comments fall within
the first Cross category, i.e., where the underlying statement precipitating the
cause of action was a person or entity in the public eye. In his complaint, Sims
states that he “gained the highest public profile of any non-elected official”
before becoming a pastor. Appellant’s App. p. 15. He also notes that “[h]e
currently has a weekly cable television Bible Study titled ‘Duolos Chapel’ that
airs on public access channel 99.” Id. at 18. Moreover, he founded Duolos
Chapel in 2013 and “is currently seeking to expand the church capabilities to
serve a growing number of needy individuals and has made a public appeal for
assistance from the public, and grants.” Id. Thus, Taylor’s comments about
Sims and whether or not people should donate to Duolos Chapel are, by Sims’s
own statements, an issue of public importance as both Sims and the church are
in the public eye.3
[16] While Taylor’s statements were made “in connection with a public issue,” I.C.
§ 34-7-7-5, Taylor must also show that her statements did not amount to
defamatory per se as a matter of law for summary judgment to be proper. Our
3
Sims also notes in his reply to Taylor’s motion for summary judgment, “As a result of the public interest,
under Indiana defamation law, Pastor Sims was required to show that Emily Taylor acted with actual malice
in publishing the statement.” Appellant’s App. p. 124 (emphasis added).
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supreme court has explained what is required to establish a claim of defamation
and defamation per se:
To establish a claim of defamation, a plaintiff must prove the
existence of a communication with defamatory imputation,
malice, publication, and damages. 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. 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. 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.
Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010) (internal
citations and quotations omitted).
[17] Here, Sims only alleged defamation per se. Therefore, it is his burden to prove
that the language of Taylor’s statement constitutes an imputation of a criminal
act or misconduct in his profession, as the other two categories are inapplicable.
We have previously explained that “[f]or a statement to be actionable [as
defamation per se], it must be clear that it contains [an] 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)
(citation omitted).
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[18] Sims asserts that Taylor’s comments “alleged criminal conduct and misconduct
in [his] trade, profession, office, or occupation.” Appellant’s Br. at 20. He cites
to our supreme court’s decision in Dugan to support his claim. In that case,
Dugan’s supervisor made statements to other employees alleging, in part, that
Dugan was: (1) stealing time from the company; and (2) working on a scheme
with her boss in an attempt to defraud the company. Dugan, 929 N.E.2d 184 at
186. The Dugan court held that these comments qualified for consideration as
defamation per se because they were clearly “statements imputing criminal
conduct or occupational misconduct.” Id. at 187. Sims argues that like the
supervisor in Dugan, here Taylor “made similar statements imputing criminal
conduct or occupational misconduct in [p]astoring.” Appellant’s Br. at 20. We
disagree.
[19] In Wartell v. Lee, 47 N.E.3d 381, 387 (Ind. Ct. App. 2015), trans. denied, we
noted that the comments noted above in Dugan “were not subjective opinion
but rather were objectively verifiable and defamatory on their face.” In Wartell,
Lee expressed his concerns about Wartell, the Indiana Purdue University Fort
Wayne chancellor at the time, in a letter to the president of Purdue University
alleging that: (1) Wartell’s word did not always serve as his bond; (2) Wartell
had “broken faith” with certain people and in certain situations; (3) Wartell
lacked integrity; (4) Wartell’s character was frequently at issue in the
community; (5) it would be hard to raise funds for the university if Wartell
remained president; and (6) the university deserved a chancellor with
“impeccable integrity” and the willingness to cooperate with others. Id. at 383–
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84. On appeal, we found that although Lee’s comments “were arguably
defamatory, the vagueness with which they are stated prevents them from
imputing misconduct and rising to the level of defamation per se.” Id. at 387.
We also explained that “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.” Id. at 387–88.
[20] Taylor’s comments here, while unflattering, do not allege criminal activity or
any specific actual misconduct on the part of Sims that could be understood or
uncovered without reference to extrinsic facts for context. Taylor made general
opinionated statements about Sims’s character and his motives in raising
money for his church. See Baker v. Tremco Inc., 917 N.E.2d 650, 658 (Ind. 2009)
(alleging that a former employer took part in inappropriate sales practices did
not impute the requisite misconduct for defamation per se); Hamilton v. Prewett,
860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007) (holding that a false statement of
fact is required to impose liability for defamation), trans. denied; Levee v.
Beeching, 729 N.E.2d 215, 220 (Ind. Ct. App. 2000) (calling a principal a liar
and asserting that she favored some staff were not defamatory per se). Although
Taylor’s comments had a defamatory imputation, her words were not “so
obviously and naturally harmful that proof of their injurious character can be
dispensed with,” Moore v. University of Notre Dame, 968 F. Supp. 1330, 1334
(N.D. Ind. 1997) (quotation and citation omitted), and thus they were not
defamatory per se.
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[21] For all of these reasons we conclude that Taylor’s comments were related to an
issue of public importance and that no genuine issues of material fact exist as to
whether her statements were defamatory per se. Accordingly, the trial court did
not err in granting Taylor’s motion for summary judgment.4
II. Denial of the Motion for Change of Judge
[22] Sims next argues that the trial court erred when it denied his motion for change
of judge after the trial court had issued its order. We review the trial court’s
denial of Sims’s motion for an abuse of discretion. Carter v. Knox Cnty. Office of
Family & Children, 761 N.E.2d 431, 434 (Ind. Ct. App. 2001); see also Ind. Trial
Rule 76 (C)(6). It is an abuse of discretion if the trial court's ruling “is against
the logic and effect of the facts and circumstances before it.” In re Guardianship
of Hickman, 805 N.E.2d 808, 814 (Ind. Ct. App. 2004), trans. denied. Regarding a
trial court’s denial of a motion for a change of venue from judge, we will find
an abuse of discretion only where the “record discloses actual bias and
prejudice against a party.” Carter, 761 N.E.2d at 434. “In ruling on a motion
for change of judge, the trial court must determine whether the facts alleged . . .
support a rational inference of bias or prejudice.” Morris v. Bank One, Ind., N.A.,
789 N.E.2d 68, 73 (Ind. Ct. App. 2003), trans. denied. And reversal is only
4
Sims also alleges that the trial court abused its discretion by not granting his motion to correct errors for the
same reasons he provided as to why the trial court erred in granting Taylor’s motion for summary judgment.
See Appellant’s Br. at 20–21. Because we find the trial court did not err when it granted Taylor’s motion for
summary judgment, we also find that the trial court did not abuse its discretion when it implicitly denied his
motion to correct errors.
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appropriate where the record discloses actual bias and prejudice against the
party. Carter, 761 N.E.2d at 434.
[23] Sims’s entire argument that Judge Manier showed bias or prejudice is centered
on the alleged beliefs of her husband, Edward Manier, a Notre Dame Professor.
See Appellant’s Br. at 24–28. He contends that Judge Manier should have
disclosed her husband’s alleged outspoken beliefs pertaining to the legal defense
Sims presented. Id. at 28. But it is unclear what “legal defense” Sims is referring
to. Each example of alleged bias he imputes on Mr. Manier concerns his
purported views on issues of abortion. And the bias or prejudice necessary for a
change of judge “exists only where there is an undisputed claim or the judge
has expressed an opinion on the merits of the controversy before [her].” Carter,
761 N.E.2d at 435. Moreover, prejudice must be shown by the judge’s conduct
during a hearing, not from her subjective views. Id. Sims’s claims relate to
Judge Manier’s husband’s subjective views, and not to any bias or prejudice
during the proceeding.5 Accordingly, the trial court did not abuse its discretion
when it denied Sims’s motion for change of judge.
5
Sims asserts that Judge Manier violated both “Indiana Judicial Conduct Canons 2(A) and 3(E)(1).”
Appellant’s Br. at 29. However, the proper citation for 3(E)(1) based on the language Sims uses in his brief
appears to be to Indiana Judicial Conduct Rule 2.11(A) which states that “[a] judge shall disqualify himself
or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but
not limited to . . . [where] [t]he judge has a personal bias or prejudice concerning a party or a party's
lawyer[.]” And for 2(A), it appears the proper citation would be to Indiana Judicial Conduct Rule 2.2 and its
accompanying comments which call for judicial impartiality and fairness to all parties involved. But Sims
provides no evidence to explain how Judge Manier violated either of these rules, nor do we find even a
scintilla of judicial bias or prejudice in our review of the record.
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III. Attorney Fees
[24] Finally, Sims contends that the trial court abused its discretion when it awarded
$4,735.50 in attorney fees to Taylor’s counsel. We initially note that based on
Taylor’s counsel’s affidavit requesting $4,375.50 in attorney fees, and the trial
court’s order stating that the amount is “reasonable both in terms of the hourly
rate assessed and the time expended by [Taylor’s] counsel,” a scrivener’s error
was made transposing the seven and the three. Thus, the proper amount of
attorney fees here is the requested $4,375.50, and on remand the trial court
should amend its order accordingly
[25] However, Sims also argues that Taylor’s counsel provided inadequate
documentation regarding the amount of attorney fees. Appellant’s Br. at 22–23.
On appeal, we review the trial court’s decision in determining a reasonable
amount of attorney fees for an abuse of discretion. Kitchell v. Franklin, 26
N.E.3d 1050, 1056 (Ind. Ct. App. 2015), trans. denied. A trial court abuses its
discretion if its decision clearly contravenes the logic and effect of the facts and
circumstances before it or if the trial court has misinterpreted the law. Id.[26] Under Indiana Code section 34-7-7-7, “[a] prevailing defendant on a motion to
dismiss made under [the anti-SLAPP statute] is entitled to recover reasonable
attorney’s fees and costs.” Here, Taylor’s counsel submitted an affidavit which
explained that he “spent 24.9 hours in the defense of [Taylor],” listed what his
time was spent on, provided a reasonable hourly rate, and included a
calculation of the total amount owed.
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[27] Sims cites to our supreme court’s decision in Galanis v. Lyons & Truitt, 715
N.E.2d 858 (Ind. 1999) to support his position that Taylor’s counsel did not
exercise proper judgement in documenting his requested fees. However, Galanis
involved a contingent fee, a discharged lawyer, and an order in which it was
unclear what the trial court meant when it held one of the attorneys was entitled
to a reasonable fee. Id. at 860–64. None of these issues are before us here.
Taylor’s counsel provided the hours he worked, what he worked on, a
reasonable fee, and he multiplied the two to reach the amount he was owed.
The trial court did not abuse its discretion when it awarded Taylor’s counsel
attorney fees. However, it did err when it awarded $4,735.50 instead of
$4,375.50, and this needs to be corrected on remand.
Conclusion
[28] Based on the facts and circumstances before us, the trial court did not err when
it granted summary judgment in favor of Taylor, it did not abuse its discretion
when it denied Sims’s motion for a change of judge, and it did not abuse its
discretion when it awarded Taylor’s counsel attorney fees. However, the trial
court did err in the amount it awarded Taylor’s counsel. Thus, we remand
solely for the trial court to amend its order to reflect the proper amount of
attorney fees awarded to Taylor’s counsel as $4,375.50. In all other respects, we
affirm.
Riley, J., and May, J., concur.
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