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LLC v. Ray

Court of Appeals of Indiana

July 5, 2017

401 Public Safety and Lifeline Data Centers, LLC, Appellants-Defendant,
v.
David Ray and the Committee to Elect David Ray, Appellees-Plaintiff

         Appeal from the Marion Superior Court The Honorable John F. Hanley, Judge Trial Court Cause No. 49D11-1511-PL-37914

          ATTORNEYS FOR APPELLANTS Daniel D. Bobilya Conor S. Slocum Bonahoom & Bobilya, LLC Fort Wayne, Indiana

          ATTORNEYS FOR APPELLEES John J. Thar Dustin J. Moloy Katzman & Katzman, P.C. Indianapolis, Indiana

          Baker, Judge.

         [¶1] 401 Public Safety (401) and Lifeline Data Centers, LLC (Lifeline) (collectively, the Appellants), appeal the trial court's order dismissing their defamation complaint against David Ray and the Committee to Elect David Ray (the Committee) (collectively, the Appellees) based on the Anti-SLAPP Statute.[1]Finding no error, we affirm.

         Facts[2]

         [¶2] 401 is an Indiana limited liability company that owns a portion of what used to be the Eastgate Mall, located on North Shadeland Avenue in Indianapolis (the Property). Lifeline is an Indiana limited liability company that leases a portion of the Property. Alex Carroll is the managing member of both 401 and Lifeline; it is unclear whether Carroll also has an ownership interest in the companies. Carroll, through Lifeline, supported the campaign of Ben Hunter, who was the incumbent City-County Councilman running against Ray.

         [¶3] In 2010 and 2013, Lifeline made political contributions of $800 and $500, respectively, to Hunter's campaign committee; at that time, Hunter was a member of the Indianapolis City-County Council. On May 20, 2011, 401 entered into a twenty-five-year lease agreement (the Lease) with the City of Indianapolis (the City), pursuant to which 401 leased a portion of the Property to the City. Hunter strongly advocated in favor of the Lease. The portion leased by the City is commonly referred to as the "Regional Operations Center" (ROC).

         [¶4] Beginning in September 2013, the Indianapolis media began investigating and reporting about the physical state of the property that housed the ROC. Specifically, there were media reports that the building was unfit and unsafe for people to work in. In 2014, media reports indicated an ongoing City-County Council investigation into the Lease, which was described as a bad deal for the City and its taxpayers. Carroll admitted to receiving notices of violation from the City.

         [¶5] Ray is a lifelong resident of the east side of Indianapolis. In 2015, Ray ran as a candidate for the office of the 19th District of the Indianapolis City-County Council. The Committee was established to assist with Ray's campaign, and Ray served as the Committee's chairperson.

         [¶6] Tim Henderson volunteered as a general consultant for Ray's campaign. Henderson conceptualized a series of flyers to be mailed to eastside constituents. The third flyer (the Flyer), which is the subject of this litigation, can be described as follows:

• The first side contains reproductions of two reports of the 2010 and 2013 contributions made by Lifeline to Hunter's campaign committee.
• That side states, "What will $1, 300 from a political insider buy? A contract with the City. A contract Ben Hunter pushed for. On November 3rd vote NO to sweetheart deals for political insiders."
• Additionally, that side includes two media quotations. First, from FOX-59 on September 12, 2013, "Contract for ROC locks city into 25-year deal." Second, from the Indianapolis Star on September 13, 2013, "The [ROC] is in Hunter's district, and Hunter was a champion of the project. He filled committee meetings with supporters and organized a public campaign to send emails to council members."
• The text on the second side is superimposed over a photograph of the Property.
• The second side contains the following original text: "When it came to protecting the Eastside's interests, Ben Hunter let us down. Ben Hunter cut a sweetheart deal for a political insider. A deal that cost the city millions and ties up the former Eastgate site for 25 years. Code enforcement violations. Fire and safety hazards. Investigations. Lawsuits. A building so unsafe, it was evacuated. It's a mess. A mess that the Eastside is left to clean up. Vote David Ray for City-County Council on November 3rd."
• Additionally, the second side includes two media quotations, both from the same September 13, 2013, Indianapolis Star article. First, "The building was so dangerous that the fire department placed it on 'fire watch, ' which meant a fire marshal had to be on the premises 24 hours a day to handle any emergency." Second, "'I cannot have people in this facility that is deemed unsafe, ' Riggs[3] said."

         Appellees' App. Vol. II p. 2-3. At no point does the Flyer mention or implicitly refer to 401.

         [¶7] On November 13, 2015, 401 and Lifeline filed a defamation complaint against Ray and the Committee based solely on the Flyer. On February 12, 2016, Ray and the Committee filed an answer and affirmative defenses, including an affirmative defense based on the Anti-SLAPP Statute. On June 6, 2016, Ray and the Committee filed a motion to dismiss based, in relevant part, on the Anti-SLAPP Statute. Following briefing and a hearing, on August 23, 2016, the trial court entered an order summarily granting the motion to dismiss based on the Anti-SLAPP Statute. Lifeline and 401 now appeal.

         Discussion ...


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