In this defamation case, appellant Richard Roeben appeals the Pulaski County Circuit Court's order granting summary judgment in favor of appellees BG Excelsior Limited Partnership d/b/a The Peabody Little Rock (BG), Tim Sneed, and Kerry Snellgrove. Roeben argues that the trial court erred in granting appellees summary judgment because (1) his claims are not barred by the statute of limitations; (2) there is evidence of damages; (3) there is evidence of publication; and (4) the defamation is not protected by the qualified privilege. We affirm summary judgment as to BG but reverse as to Sneed and Snellgrove.
On January 17, 2006, Roeben, who was the Director of Purchasing for BG, was terminated based on BG's belief that Roeben had unauthorized possession of hotel property. Roeben filed a complaint against BG on November 13, 2006, in the Circuit Court of Pulaski County, alleging age discrimination. BG removed the case to the United States District Court for the Eastern District of Arkansas, and thereafter, answered and counterclaimed against Roeben for conversion.
On December 28, 2006, Roeben filed a third-party complaint, pursuant to Federal Rule of Civil Procedure 14(a),
A motion to dismiss the third-party complaint was filed by third-party defendant Sneed, who alleged that the complaint was improper under Rule 14, because Roeben failed to allege that Sneed may be liable to Roeben for BG's claim of conversion against Roeben. The district court agreed with Sneed but held the motion to dismiss in abeyance, allowing Roeben to file an amended complaint adding his defamation claims against Wilcox, Sneed, Snellgrove, and Tutor as per Rule 15 of the Federal Rules of Civil Procedure.
On March 1, 2007, Roeben filed an amended complaint in federal court, adding the claims of defamation against Wilcox, Sneed, Snellgrove, and Tutor to the existing claim of age discrimination against BG. Roeben did not allege defamation against BG in the amended complaint. Thereafter, BG filed a motion for summary judgment on the age-discrimination claim, and the individual defendants filed motions for summary judgment on the defamation claims. On January 3, 2008, the district court granted BG's summary judgment on the age-discrimination claim, dismissed Roeben's defamation claims against the individual defendants without prejudice, and dismissed BG's counterclaim for conversion without prejudice.
On January 24, 2008, Roeben filed a complaint (giving rise to this appeal) in the Pulaski County Circuit Court against BG, Sneed, and Snellgrove alleging defamation. All three defendants moved for summary judgment. In an order granting summary judgment, the trial court found:
Roeben filed a timely notice of appeal from this order.
Ellis v. State Farm Bank, F.S.B., 2009 Ark.App. 569, at 3, 2009 WL 2877636 (citing Hanks v. Sneed, 366 Ark. 371, 377-78, 235 S.W.3d 883, 888 (2006)) (internal citations omitted).
Roeben's first point on appeal is that the trial court erred in finding that his claim against BG was barred by the statute of limitations.
Roeben argues that his claim against BG is not time-barred pursuant to the Arkansas savings statute.
Our supreme court in Carton v. Missouri Pacific Railroad Co., 295 Ark. 126, 128, 747 S.W.2d 93, 94 (1988), held that for the purposes of the savings statute, a dismissal of a complaint on a defendant's motion is the same as a nonsuit. While it could be considered that Roeben "suffer[ed] a nonsuit" as required in section 16-56-126(a)(1) of the savings statute, the statute does not apply because it also required that Roeben's slander action against BG be "commenced within the time respectively prescribed" for slander claims, which is one year. Ark.Code Ann. § 16-56-104(3). Roeben did not allege defamation against BG in either his discrimination complaint, his third-party complaint, or his amended complaint. His first allegations of defamation against BG are found in the January 24, 2008 Pulaski County Circuit Court complaint, well beyond the one-year statute-of-limitations period. As BG correctly argues, "Roeben cannot invoke the Arkansas savings statute to revive a claim that never existed."
In the alternative, Roeben argues that his amended complaint, filed in federal court on March 1, 2007, related back to the date of the timely filed discrimination complaint. Rule 15(c) of the Federal Rules of Civil Procedure provides that an amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading. Fed. R.Civ.P. 15(c)(1)(B).
Roeben's amended complaint for defamation did assert a claim that arose out of the conduct set out in the original discrimination complaint. However, because the amended complaint failed to state any allegations of defamation against BG, there were no allegations of defamation against BG that could relate back to the original complaint. Accordingly, we affirm the trial court's grant of summary judgment in favor of BG on the statute-of-limitations issue.
Roeben next argues that the trial court improperly granted summary judgment to appellees because there is evidence that he suffered damages as a result of the defamation. He claims that his and his wife's testimony established reputational injuries. He points to the testimony of Ernest Lipkins, an employee of BG, who testified that when he first heard the statement that Roeben had stolen from the hotel, Lipkins had doubts about and
A viable action for defamation turns on whether the communication or publication tends or is reasonably calculated to cause harm to another's reputation. Northport Health Servs., Inc. v. Owens, 356 Ark. 630, 641, 158 S.W.3d 164, 171 (2004). A plaintiff in a defamation case must prove reputational injury in order to recover damages. Ellis v. Price, 337 Ark. 542, 549, 990 S.W.2d 543, 547 (1999). A plaintiff must establish actual damage to his reputation, but the showing of harm is slight. Ellis, 337 Ark. at 549, 990 S.W.2d at 547. A plaintiff must prove that defamatory statements have been communicated to others and that the statements have detrimentally affected those relations. Id. at 549-50, 990 S.W.2d at 547. The law does not require proof of actual out-of-pocket expenses. Id., 990 S.W.2d at 547.
Summary judgment on the issue of damages was inappropriate in this case because we hold that there are facts in dispute. Roeben and his wife gave sworn statements that Roeben's reputation had been injured, that he had been unable to secure employment, and that he had suffered from stress, hives, marital stress, and insomnia. We hold that this is sufficient evidence to present to the jury on the issue of damages. Ellis v. Price, 337 Ark. at 550, 990 S.W.2d at 548 (affirming trial court's denial of directed-verdict motion based upon insufficient evidence of damages in defamation cause; supreme court held that the testimony of plaintiff and her husband about the detrimental effect caused by defendant's statement that plaintiff was having an affair was "more than sufficient" to establish harm to reputation); Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985) (reversing directed verdict in favor of appellee, where the appellant, a state trooper, sued appellee for defamation after appellee wrote to the director of the state police complaining that appellant had driven an unlicensed vehicle and had yelled obscenities at him; appellant's own testimony and the vague testimony of one other witness that appellant's reputation had been harmed by the ensuing investigation of the incident was sufficient to go to jury on the issue of damages).
Also, Lipkins's testimony provided more evidence on the issue of damages. While Lipkins did testify that he ultimately did not believe that Roeben was a thief, he did initially have doubts about Roeben and thought less of him. Even if the statement is disbelieved by the person to whom it is communicated, damages may be mitigated, but nevertheless awarded, to the plaintiff because the injury to the plaintiff's reputation has already occurred to some degree. Luster v. Retail Credit Co., 575 F.2d 609, 615 (8th Cir.1978) (decided under Arkansas law).
Roeben's third argument on appeal is that the trial court erred in granting summary judgment because there is evidence of publication of the defamatory statements. An essential element in any slander suit is an unprivileged publication of the slander to a third party. Wal-Mart v. Dolph, 308 Ark. 439, 441, 825 S.W.2d 810, 811 (1992) (citing Restatement (Second) of Torts § 558 (1977)).
The trial court erred in granting summary judgment on this point as there is a fact question as to whether the defamatory statements were published. Snellgrove testified that Sneed said that Roeben was fired for stealing hotel property. Michael Livingston (another BG employee) testified that Sneed told him that Roeben was terminated for theft of hotel property. Wilcox, employed by AKB Property Preservation, testified that Sneed told her that Roeben possessed BG's property without permission. There was evidence that Sneed told Andrew Bergwalk and Jennifer Mitchell the reasons behind Roeben's termination. While the record is unclear as to whom Bergwalk's employer was, there is evidence in the record that Mitchell was not employed with BG at the time she received the information. Finally, Lipkins and Hogan both testified that they first heard why Roeben was terminated while in the employee lunch room when Snellgrove loudly stated to twenty to thirty other co-workers, "Tim Sneed had went to [Roeben's] home in Heber Springs and raided it and had found computer equipment, items belonging to the Peabody, that it was enough furniture that he found that it would take two 18-wheelers to haul it off."
Sneed and Snellgrove, relying upon Ausler v. Arkansas Dep't of Education, 245 F.Supp.2d 1024, 1033 (E.D.Ark.2003), argue that because all of the statements were between employees of BG acting within the course and scope of their employment, they were not published to third parties; therefore, they are not actionable. We disagree. First, there is evidence that the defamatory statements were made to at least two people not employed with BG (Wilcox and Mitchell). Second, there is evidence in the record demonstrating that Sneed and Snellgrove repeated the defamatory statement outside the course and scope of their employment by BG. Snellgrove published the statement to a crowded lunch room. Evidence also shows that Sneed published the statement to Bergwalk and Mitchell for no known business purpose. Because there was sufficient evidence of publication, we reverse the trial court on this issue as it relates to Sneed and Snellgrove.
For his final point, Roeben argues that the trial court erred in granting summary judgment to BG and Sneed based upon the qualified privilege.
We hold that there are disputed facts as to whether the qualified privilege applies to Sneed. There are some facts that establish that Sneed made the allegedly defamatory statement to Wilcox, Snellgrove, and Livingston in his capacity as the director of engineering for BG— within the course and scope of his employment—and as part of BG's investigation of Roeben. However, there are other facts demonstrating that Sneed also told Bergwalk and Mitchell why Roeben was terminated. The record reveals that Mitchell was not an employee of BG at the time she received the information. Moreover, the record is void of facts establishing the purpose for which Sneed volunteered the allegedly defamatory information to Bergwalk and Mitchell. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Forrest City Mach. Works, Inc. v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443, 446 (1993). Because the record contains disputed facts on the issue of the applicability of the qualified privilege as to Sneed, we hold that the trial court erred in granting summary judgment in his favor, and we reverse on this point.
Affirmed in part; reversed in part.
ROBBINS and BAKER, JJ., agree.