Date: 02-28-2002

Case Style: Richard Beeching and National Education Assoc. v. Carol Levee

Case Number: 71A03-0103-CV-66

Judge: Mathias

Court: Court of Appeals for Indiana

Plaintiff's Attorney: Sean E. Kenyon and Margot F. Reagan of Konopa, Reagan & Kenyon, P.C., South Bend, Indiana

Defendant's Attorney: Richard J. Darko and Eric M. Hylton of Lowe, Gray, Steele & Darko, L.L.P., Indianapolis, Indiana

Description: Carol Levee ("Levee"), the principal of Eggleston Elementary School in South Bend, Indiana, sued Richard Beeching, the UNISERV Director, See footnote and the National Education Association–South Bend ("Beeching") for defamation and tortious interference with a contractual relationship. After a jury trial, the trial court granted Levee's motion for mistrial because it determined that the jury had reached an inconsistent verdict. Beeching appeals raising two issues, which we restate as: Whether the trial court abused its discretion when it admitted into evidence the teachers' grievances filed against Levee by Beeching; and, Whether the trial court abused its discretion when it granted Levee's motion for a mistrial.

In addition, Levee cross-appeals raising one issue, which we restate as two:

Whether the trial court erred when it determined, with regard to the defamation claim, that Levee was a public official and/or public figure; and,

Whether the trial court erred when it determined, with regard to the defamation claim, that the issues involved were matters of public interest.

We affirm in part, reverse in part, and remand.

Facts and Procedural History

This is the second appeal in this litigation. Many of the pertinent facts are found in Levee v. Beeching, 729 N.E.2d 215 (Ind. Ct. App. 2000), as follows: Levee has been the principal of Eggleston School in South Bend since the Fall of 1994. Beeching is the UNISERV Director for the NEA-South Bend, and he is married to Elaine Beeching ("Elaine"), a teacher at Eggleston. During the Spring and Fall of 1995, Levee took some actions which upset Elaine. During the Fall of 1995, Kelly Reygaert, another teacher at Eggleston, heard Elaine discussing Levee and concluded that Elaine wanted to force Levee to leave Eggleston.

Between August, 1995 and November, 1995, Elaine filed six grievances against Levee and conferred with other teachers who filed two grievances. Beeching, as the UNISERV Director, acted upon those grievances. On October 19, 1995, Beeching placed a document in each Eggleston School teacher's box stating that Levee "couldn't be trusted." These events led Bruce Stahly, Executive Director of Support Services for the South Bend Community School Corporation ("SBCSC"), Jan Putz, Executive Director of Instruction and Curriculum for the SBCSC, and Myrtle Wilson, Director of Elementary Secondary Education for the SBCSC to write a joint letter to the Executive Committee of the NEA-South Bend expressing concern that Beeching was apparently using his office "to conduct what appears to be a personally motivated attack" against Levee.

On January 23, 1996, Beeching met with Eggleston School teachers regarding the cancellation of an Internet training session that Levee had scheduled. During that meeting, Beeching called Levee a "liar" and stated that Levee "favored some staff." Thereafter, on March 6, 1996, Stahly, Putz and Wilson wrote a letter to the President of the Indiana State Teachers Association complaining about Beeching's continued personal attacks on Levee.

At the conclusion of the 1995-96 school year, Levee received a 1.5% merit increase. She had received a 3% merit increase at the close of each of the previous three school years. Levee's supervisor, Myrtle Wilson, told her that the decrease in her merit pay was due to the turmoil at Eggleston during the 1995-96 school year.

On March 20, 1996, Levee filed a complaint against Beeching and the NEA. She sought damages for defamation, tortious interference with a contractual relationship, and intentional infliction of emotional distress. On November 3, 1997, Beeching and the NEA moved for partial summary judgment on the issues of defamation and intentional infliction of emotional distress. The trial court granted partial summary judgment in favor of Beeching and the NEA on the issues of defamation per se and intentional infliction of emotional distress but ruled that the issue of whether Levee could recover on a theory of defamation per quod should go to a jury.

On November 3, 1998, Beeching and the NEA moved for partial summary judgment on the issue of tortious interference with a business or contractual relationship. Following oral argument, the trial court entered partial summary judgment in favor of Beeching and the NEA. Levee was allowed to proceed to trial on the issue of defamation per quod. Following Levee's presentation of evidence on her claim, Beeching and the NEA moved for judgment on the evidence. After hearing arguments on the motion, the trial court entered judgment on the evidence in favor of Beeching and the NEA.

Id. at 218-19 (internal record citations omitted).

On appeal, we affirmed the trial court's entry of partial summary judgment on the issues of defamation per se and tortious interference with a business relationship. However, we reversed the trial court's entry of partial summary judgment on the issue of tortious interference with a contractual relationship and the trial court's entry of judgment on the evidence on Levee's claim of defamation per quod. Id. at 224. The case was remanded back to the trial court for proceedings consistent with our opinion.

A jury trial was held on Levee's claims of tortious interference with a contractual relationship and defamation on January 29, 2001, through February 2, 2001. Prior to trial, Beeching filed two motions in limine requesting that the trial court exclude from evidence the teachers' grievances filed against Levee. The motions were denied. At trial, the trial court admitted the grievances into evidence. Beeching objected on several grounds, including that the Indiana Education Employment Relations Board ("IEERB") had previously ruled that the filing of a grievance is a protected activity.

During the final instructions, the jury was instructed that Levee had to prove actual malice in order to prevail on her claim of defamation. Levee objected to this instruction because she disagreed with the trial court's finding that she was a public official and/or public figure or that the issues involved were matters of public interest.

The jury found in favor of Levee on her claim of tortious interference with a contractual relationship and awarded $850 plus attorney fees and court costs, but zero punitive damages. However, the jury also signed a verdict form, which stated "We, the jury, find for the defendants Richard Beeching and National Education Association –South Bend, and Plaintiff, Carol Levee take nothing by way of her complaint." Appellant's App. p. 10-c. Levee therefore argued that the verdict was inconsistent and asked the trial court to declare a mistrial. Levee's motion for a mistrial was granted. Beeching appeals. Additional facts will be provided as necessary.

I. Admission of Grievances

Beeching argues that the trial court abused its discretion when it admitted the teachers' grievances filed against Levee into evidence over his objection. The admission or exclusion of evidence is a determination entrusted to the discretion of the trial court. Paullus v. Yarnelle, 633 N.E.2d 304, 307 (Ind. Ct. App. 1994), trans. denied. We will only reverse a trial court's decision for an abuse of that discretion, which occurs when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before it. Id.

Beeching argues that the grievances were inadmissible at trial because the IEERB has ruled that the filing of grievances, even if baseless, is a protected activity. See footnote He also contends that "Levee's attempt to use the grievances as evidence for her tort claims is preempted by the Certificated Educational Employee Bargaining Act ("the CEEBA")."See footnote Br. of Appellant at 11-12. Finally, he argues that allowing the teachers' grievances to be used as evidence could have an extreme "chilling effect" on a teacher's right to file grievances.

Levee argues that Beeching has waived this issue because he moved to admit five of the grievances into evidence. In fact, Beeching obtained admission of five grievances into evidence before Levee attempted to offer any of the grievances. Tr. pp. 188, 194, 196-98. A party cannot invite error and then request relief on appeal based upon that ground. See Crowl v. Berryhill, 678 N.E.2d 828, 830 (Ind. Ct. App. 1997). An error invited by the complaining party is not subject to review by this court. Id.; see also, City of Lake Station v. Rogers, 500 N.E.2d 235, 239 (Ind. Ct. App. 1986) (holding that error in the admission of evidence at trial is waived on appeal when the complaining party submits evidence to substantially the same effect). By seeking and obtaining admission of five grievances into evidence, Beeching invited error and waived this issue for appeal. However, waiver notwithstanding, we will consider this issue on its merits because of its importance when or if this case is retried and to school employees in general. The CEEBA provides that [t]he citizens of Indiana have a fundamental interest in the development of harmonious and cooperative relationships between school corporations and their certificated employees. Recognition by school employers of the right of school employees to organize, and acceptance of the principle and procedure of collective bargaining between school employers and school employee organizations, can alleviate various forms of strife and unrest.

Ind. Code § 20-7.5-1-1(a) & (b) (1998). The IEERB has determined that under the CEEBA, "[t]he filing of grievances, whether or not baseless, is a protected activity under [section] 6(a) of the Act." Appellant's App. p. 37. Section 6(a) provides: School employees shall have the right to form, join, or assist employee organizations, to participate in collective bargaining with school employees through representatives of their own choosing, and to engage in other activities, individually or in concert for the purpose of establishing, maintaining, or improving salaries, wages, hours, salary and wage related fringe benefits, and other matters as defined in sections 4 and 5 of this chapter.

Ind. Code § 20-7.5-1-6(a) (Supp. 2000). A protected activity is "conduct that is permitted or encouraged by statute or constitutional provision, and for which the actor may not be legally retaliated against." Blacks Law Dictionary 1238 (7th ed. 1999). Under this statutory and regulatory structure, an Indiana school teacher, who has the benefit of a grievance structure, cannot be sued for intentional interference with a contractual relationship for filing a grievance, without broader publication of its content, because that conduct is a "protected activity." In his position as UNISERV director, part of Beeching's job description is to receive and file grievances for the teachers of Eggleston Elementary School and to represent their interests. A union representative might become reluctant to file a grievance on behalf of a teacher, if the grievance could later be used against him as evidence as the trial court allowed in this case. Also, a teacher noting the union representative's reluctance to file a grievance and represent his or her interests, might determine that attempting to file a grievance would be a pointless endeavor. This would be contrary to the intent of CEEBA, which establishes that teachers have the right to file grievances. See Ind. Code §§ 20-7.5-1-4 & -6(a) (1998 & Supp. 2000). If courts allow grievances to be used as evidence against the filing teacher or union representative without proof of broader publication, in effect, the teacher may be penalized for exercising his or her right to file the grievance under CEEBA, and this could have a "chilling effect" on the filing of grievances. We therefore find that, absent waiver or proof of broader publication of the content of the grievances at issue, the trial court abused its discretion when it admitted any of the grievances into evidence.

II. Mistrial

Beeching also argues that the trial court erred when it granted Levee's motion for a mistrial because the trial court determined that the verdicts were inconsistent. Granting a mistrial lies within the sound discretion of the trial court, and we afford the trial court's decision great deference on appeal. Archer v. Grotzinger, 680 N.E.2d 886, 888 (Ind. Ct. App. 1997). However, mistrial is an extreme remedy and should be granted only when no other less drastic measure can rectify the perilous situation. Stone. v. Stakes, 749 N.E.2d 1277, 1279 (Ind. Ct. App. 2001). At trial, the jury returned the following verdicts:

VERDICT FOR PLAINTIFF TORTIOUS INTERFERENCE WITH CONTRACT CLAIM

We, the jury, find for the Plaintiff, Carol Levee and against the Defendants, Richard Beeching and the National Education Association–South Bend, on her claim for tortious interference with her contractual relationship with her employer, in the sum of $850 plus attorneys' fees and court costs.

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Click the case caption above for the full text of the Court's opinion.

Outcome: We affirm in part, reverse in part, and remand.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None