Olsson v. Indiana University Board of Trustees
571 N.E.2d 585
Ind. Ct. App.
1991
Check Treatment

*1 OLSSON, Appellant L. Janet (Plaintiff Below),

INDIANA UNIVERSITY BOARD OF

TRUSTEES, Appellee

(Defendant Below).

No. 36A04-9009-CV-439. Appeals Indiana,

Court

Fourth District.

May23,

586 *2 affirm.

We issue for our review presents one Olsson restate as: which we granting the trial court erred whether summary judgment IU's motion libel claim. 1980-1981, During year of the school of was a student IU's School Olsson training, of her Olsson Education. As Elementary assigned to Ellettsville was supervis- Her as a student teacher. School (Stockton), ing was Janice Stockton teacher supervisor Linda university her was (Null). for Student According to ITU'sHandbook Teachers, biweekly to make visits Null was progress. majority to discuss Olsson's to be for instructional of the visits were and were to be the focus for observation post conferences. pre and observation semester, performed her During the nearly biweekly, person- required duties as teaching ally observing Olsson's three holding conference with Ols- times and one semester, At the end of the Stockton son. a final evaluation of Olsson's submitted University is- teaching Indiana abilities. grade in passing sued Olsson teaching. semester, Stock-

Toward the end of the hospitalized, and took over ton was for two weeks. her classroom applica- filed a written April, In teaching position with a full time tion for (Kain), superintendent Kain Steve Corpo- Blossom School the Richland-Bean May graduate in be- ration. She did not complete an art course Petri, P.C., needed to Petri, cause she J. Vernon J. Vernon teach qualified over the summer but Hanley, Hanley & Indianapolis, Michael L. fall semester. full time before the 1981 Moore, appellant. Indianapolis, for Cotner, Andrews, Chapman, Ronald L. Lundy (Lundy), July, In James appel- Chapman, Bloomington, for Mann & School, Elementary principal of Ellettsville lee. vacancy for a fourth of a became aware year. He next school grade teacher for the CONOVER, Judge. her for written telephoned Null and asked (Olsson) Janet Olsson stu- Plaintiff-Appellant and another evaluations of Olsson's ability. teacher's overall dent grant of motion for appeals the trial court's Defendant, a let- request, Null wrote response to this in favor of marginal as a described Olsson University Board of ter which Indiana Appellee did not recommend teacher. She (IU). Trustees teaching position. Olsson for a full-time against nonmoving party. The party Lundy did not hire Olsson or the other seeking summary judgment has the burden keep copy student teacher. IU did not establishing the lack disputed materi facts, al Boydston placement in its Chrysler Null's letter to files. Credit *3 (1987), Corp. 318, 511 N.E.2d 320. 1981, September, In Olsson asked Kain The burden to show reversible error on why an she did not receive interview or a appeal appellant. is on the indulge We all job corporation. in his school Kain then presumptions reasonable in favor of the showed Olsson the letter Null had written trial court. Madison County Bank & Lundy. (1987), Ind., Trust Kreegar Co. v. 514 apply Olsson has continued to for teach- N.E.2d reh. denied. ing positions at other schools but has been November, position. unable to obtain a In falsely Words written which tend 1982, action, a injure filed defamation prejudice any person or in her against on Null's trade, profession or business are defam based letter IU and the 1986, In April, State Indiana.1 the trial atory. Big Restaurants, Wheel Inc. v. granted judgment. court (1973), 422, Ind.App. Bronstein 158 302 granted the trial court Olsson's 876, N.E.2d 879. Libel is malicious def August, motion to correct errors 1986. expressed amation in writing. 18 LLE. 1990, May, granted Then in the trial court 1, (1959). Libel and Slander at 449 § summary judg- IU's motion to reinstate Whether a defamatory statement is appeals. ment. Olsson question is a of law for the court. Cock argues erroneously the trial court ran Indianapolis Newspapers, v. Inc. granted summary judgment because the (1978), 548, 1211, Ind.App. 175 372 N.E.2d following 1) material issues of fact exist: Only 1216. if the statement can be inter 2) whether Null's letter defamatory; preted having meanings, two one libel qualified whether IU has a privilege to not, go ous and one should the case defamatory disseminate information about jury. Cochran, supra, 372 N.E.2d at 1217. 8) teaching performance; wheth- Notwithstanding possible the de er, exists, if privilege such IU abused the famatory communication, nature of a a 4) privilege; alleged whether the defam- may protected by qual communication be a atory statement was made with malice or privilege ified if a need full exists for disregard reckless for the truth so as to regarding unrestricted communication mat negate any 5) privilege; defense of wheth- parties ters on which the have a common any right er Olsson waived of action duty. interest or Shallenberger Scog v. consenting publication when she enrolled (1982), Ind.App., gins-Tomlinson Inc. 439 Education, 6) in the School of and whether 699, 707. damages Olsson suffered as a result the alleged per letter when it was to be libelous qualified privilege rule Under se.2 (or rule), common interest a communication Summary judgment proper only is privileged good any when is if made in faith on genuine any subject party making there is no issue as to material matter which the moving party fact and the is entitled to the communication has an interest or as a matter of law. Ind.Trial duty reference to which he has a either 56(C). moral, Rule In public private, legal, order to determine whether or whether or social, having person if made to a corre genuine exists, issue of fact the court accepts alleged by sponding duty. Indianapolis as true all facts interest or nonmoving party any and resolves doubt as Patrol, (1966), 247 Ind. Horse Inc. v. Ward genuine 519, 626, to the existence privi- of a issue of fact 217 N.E.2d 628-629. This question 2. consent We need not address the 1. 1983, the trial court dismissed May, damages against or we have determined the letter action since the State of Indiana. qualified privi- protected from Null is under the lege rule. concerning lege applies to communications faith, Olsson's assertions bad exces- publication, grounds sive and lack of teacher. qualifications of a school McKinney Ind.App. in the truth of the letter are mischar- Puckett v. belief acterizations of the record. A nonmovant 373 N.E.2d summary judgment pro-

in a motion for qualified privi The existence of a ceeding may allegations not rest on or deni- court, lege is a matter of law for the unless als, affidavits, respond but must privilege are dis giving evidence, setting facts rise to specific other forth facts showing genuine dispute. there is a issue puted. Boydston, supra, at 820. is Willsey Peoples Federal & Loan privilege only be Sav. sue of abuse of should *4 jury if there is sufficient Chicago submitted East Ass'n trams. denied. issue, to raise the and if different evidence reasonably may inferences and conclusions argues by Null Olsson was motivated be drawn from the evidence. Shallenber- feelings of ill will. She asserts several ger, supra, at 707. prove instances Null was motivated mail- ice. Null in She claims was dishonest Null's letter described Olsson's representing letter in how much time she strengths and weaknesses. It described actually spent observing Olsson enthusiastic, work, willing her as to and classroom.3 The letter does not claim Null parents. comfortable with Her weakness spent biweekly one and one-half hours skills, faulty grammatical es included: lack spent approximately Olsson but rather Null organizing, planning, imple of skill in and toto, this much time in for all activities menting plans, poor discipline, in lesson including reviewing plans, Olsson's lesson (R. flexibility, and resistance to criticism. (R. 109). journals and other materials. 109). Olsson also infers bad faith on IU's there are no because other unfavorable responsibility preparing IU has a and evaluations. record reveals evaluating future schoolteachers. March, reports. several af- unfavorable has a common interest to select the best classroom, observing ter Olsson in the possible subject teachers. The matter of prepared criticizing a written evaluation duty the letter was information had a to IU scope the content and of the lessons and report to school administrators. made a IU techniques the instructional had Olsson showing qualified privilege in the trial (R. 276). used in class. In the final se- court. form, gave mester evaluation Stockton Ols- significantly average nu- son lower than question The final is whether IU (R. 217). satisfactory rating. merical qualified privilege. has abused its Once grade Olsson received the course cannot privilege the existence of such a is estab personal be assumed to be a recommenda- lished, plaintiff the burden is on the ability. of her tion Puckett, prove that it has been abused. presented no facts the trial material supra, Qualified 373 N.E.2d at 911-912. showing primarily court motivat- a) privilege may be lost if: there is a show by feelings ed ill will. ing primarily the communicator was moti urges will, b) Null made her statements by feelings vated of ill there is publication defamatory excessive of the grounds without for belief in their truth. grounds statement, c) "Lack of for has been belief" the statement is made grounds equated disregard without belief or for belief in its truth. to reckless Boydston, supra, Telephone truth.> at 320. Ernst Indiana Bell Co. pertinent part: journal, any prepared by letter read Janet. Null's materials University Supervisor I was Janet's I, also, instruction, observed actual classroom for Se- instruction, critiqued the and conferenced During II, mester 1980-81. this sixteen week happening I in the period, biweekly approximate- with Janet about what saw I made visits of ly length. one and one-half classroom.... to two hours in (R. 109). At each I visit reviewed lesson plans, (1985), Ind.App., 475 N.E.2d 356. As constitute an "educational record" under the act. There is no basis for concluding above, the record indicates Null discussed experience IU violated federal law in its handling of the letter based on her wrote personal an educator and her observations Null's letter.4 These facts support do not and interactions with Olsson. While Ols- an inference of bad faith. may dispute ability Null's to form an son IU has met its showing burden of opinion only accurate after three classroom lack of material fact as to the existence of visits, presented she no material facts from qualified privilege, and Olsson has made no reasonably which a trier of fact could infer showing of abuse of that privilege by IU as truth, disregard falsity reckless for the her. The trial court properly granted letter, or malice. summary judgment. Olsson claims there was excessive Affirmed. publication urges of the letter. Olsson permitted prospective employers to see the MILLER, J. concurs. letter. This assertion is based on the fact gave she the name of the school where she STATON, separate J. dissents with taught applied when she for vari opinion. *5 positions. ous there is no evi STATON, Judge, dissenting. Null, anyone except Lundy, dence that and Superintendent Kain saw the letter. respectfully I dissent. I believe the ma- keep (R. copy did not a of Null's letter. jority misreads the letter by written Null. 154). potential employer No has ever con during Where the letter states that the questions tacted about Olsson's semester, sixteen week Null "made biweek- (R. 859). teaching ability. ly approximately visits of one and one-half length," to two hours it is clear that Null pursuant also contends to represented spent she that one and one-half Rights the Privacy Educational and Act of visit, toto, to two hours each not in as the 1974, right a student has a determine majority asserts. Null admitted that she which recommendations will become spent nowhere near that much time in ob- placement of the files. She states IU vio servation of ex- right by using lated this Null's letter with perience. permission. out her She relies on the hand (R. 83). book's of federal law. Moreover, gave a evalua- favorable perusal A of the actual statute indicates no semester, midway through tion of the such violation. stating manage- that Olsson's classroom excellent, orga- ment that she was well Family Rights Pri- Educational and nized, presented and that she her lessons vacy 1974, Act at 20 U.S.C. extremely Olsson was issued a satis- well. 12832g(a)(1)(A),1282g(a)(2),1282g(b)(1)& § factory grade grade teaching, a (2), 1282g(d) and denies federal funds to responsibility assign- had the which Null policy educational institutions which a have ing. Finally, received rec- favorable denying right inspect students the ommendations from others. and review records" or of re- "education leasing such records without the student's Summary is not a substitute permission. 20 1282g(a)(4)(A) U.S.C. de- disputed a for trial of factual issues. fines "education materials records" as (1990), 550 Greives v. Greenwood by agency "maintained an educational granted N.E.2d 334. It should not be person acting institution or such for appears merely plaintiff because it that the agency or institution." at trial. mis will not succeed Id. Null's copy

IU did not of Null's letter, maintain a negative flavor statement letter, previ- of the and the fact that Null Thus, letter its files. does not the letter -- right private Family 4. No under of action exists ---, 1809, U.S. 110 S.Ct. 108 denied -- Rights Privacy Educational and Act. Tarka v. 940, ---, L.Ed.2d reh. denied U.S. 110 S.Ct. Franklin, (5th Cir.1989), F.2d certiorari 891 110 L.Ed.2d 285. ously gave Olsson favorable evaluation Baker, Cremer, Jr., L. F. Ronald Charles Cremer, Indianapolis, appel- for John A. ill very raise an inference of will could well lant. an of the triers of fact. Since in the minds determined, remains to be

issue of fact Duvall, Roger Scottsburg, appel- L. improper. I summary judgment was would lees. the mer- and remand for a trial on reverse CONOVER, Judge. its.

Plaintiff-Appellant Lorene Willman (Willman) appeals the dismissal of her sec- complaint to contest decedent Amanda ond will, years Moore's filed more than two probate. Moore's will was admitted to after We reverse. 6, 1986, on and her Moore died October days probate will was admitted later. WILLMAN, Appellant

Lorene complaint to contest Willman filed a (Plaintiff Below), proceedings in the Moore's will estate the sheriff did not serve March but appropriate parties required by as stat RAILING, Executor of the Robert B. change ute. After a of venue from the Moore, deceased, Amanda Estate taken, Seott Circuit Court was Jeffer Harmon, Anna David Harmon granted subsequent son Circuit Court n (Defe al., Mary Long, Appellees et appealed. motion to dismiss. Willman Below). dants *6 This court affirmed the dismissal Will (1988) Ind.App., 529 Railing, man v. No. 72A04-9004-CV-197. den'd., reh. trans. den'd. Indiana, Appeals of Court of Afterward, Willman tendered a will con- Fourth District. bond, proposed filed a amendment test cost May23,1991. original complaint, and asked the to the previous motion to

trial court to rule on a upon prior ruled amend which had not been thereon, appeal. ruling be- Without jurisdiction it it lacked to do cause believed so, original the trial court dismissed the summary judgment complaint and entered executor, the other Railing, parties-defendants. filed a new October Willman

On complaint Moore's will. The tri- to contest granted the defendants' mo- al court later February tion to dismiss appeals. Willman trial court erred first contends the She by dismissing the current action because filed, (a) timely original action was (b) of technical dismissed because it was errors, and (c) filed within 5 the second action was dismissal. years the first action's result these three factors She contends 34-1-2- timely filing under IND.CODE in a