February 10, 2011
Today, the Indiana Court of Appeals issued a decision in
Nexus Group, Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119 (Ind. Ct. App. 2011), Case No. 46A03-1007-PL-418, which provides a lesson in how not to defend against an anti-SLAPP motion. To sum up, you must treat any motion under
I.C. Chapter 34-7-7-1 as a motion for summary judgment under
Trial Rule 56.
less..
Anti-SLAPP statutes are enacted in order to discourage "meritless suits aimed at silencing a plaintiff’s opponents, or at least diverting their resources." Under
Section 9 of Indiana's Anti-SLAPP statute, if a person files a motion to dismiss under the anti-SLAPP Statute, the trial court must treat the motion as a motion for summary judgment.
In this case, Nexus had contracted with LaPorte County to assist and consult in the assessment of property. Heritage was a business competitor of Nexus and had a previous relationship with LaPorte County. Heritage wrote a letter to a local reporter that criticized LaPorte County's relationship with Nexus and an article was published attributing certain statements to Heritage's owner. Nexus filed a claim for defamation and Heritage filed a motion to dismiss under the anti-SLAPP statute. The trial court granted that motion and Nexus appealed.
On appeal, neither party disputed whether the anti-SLAPP statute applied to the statements. Instead, the dispute was over whether Heritage made the statements in good faith and with a reasonable basis in law and fact. Heritage introduced evidence showing that each of the statements was made in good faith and the Court found that Nexus did not introduce any evidence to the contrary. Instead, it found the fact that Heritage was a competitor when it made the statements did not show that they were not made in good faith.
While this evidence, if true, tends to show that Heritage may not have been acting solely out of concern for the well-being of the community by sending the letter to the newspaper, we cannot conclude that it establishes that Heritage was not acting in good faith. To the contrary, the record reveals that Landing was genuinely concerned about the quality of the work being performed by Nexus and the fact that the county was footing the bill. That he also may have been motivated by self-interest makes him human, but does not necessarily mean that he acted in bad faith. With respect to each of these statements, the record shows that Landing genuinely believed that he was being factual and also believed that it would be best for his community to sever ties with Nexus. Consequently, we do not find that this evidence establishes that Landing acted in bad faith or without a reasonable basis in law and fact.
The language the Court used when ruling on this issue may be open to criticism -- some of the Court's language make it sound like it is making a factual conclusion, rather than determining that there is no genuine issue of material fact. However, its ultimate conclusion demonstrates that a party defending against an anti-SLAPP motion must do more than introduce evidence that a declarant has more than the public's interests at heart when it makes a statement; the party must show that the declarant did not have a good faith belief in what they were saying. A plaintiff will have to pay attorney's fees if it cannot make this showing.
Lessons:
- The anti-SLAPP statute is designed to discourage meritless suits aimed at silencing a plaintiff’s opponents, or at least diverting their resources.
- A motion to dismiss under the anti-SLAPP statute must be treated as a motion for summary judgment.
- When defending against a motion to dismiss under the anti-SLAPP statute, a party must show that the declarant did not have a good faith belief in the statements.
- A lack of good faith is not shown by proof that the declarant had both personal and public motives for making a statement.
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