Kathleen Suggs v. Dorothy J. Stanley ( 2003 )


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  •                     United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                      ___________
    
                                 Nos. 02-1832/02-1935
                                     ___________
    
    Kathleen Suggs,                       *
                                          *
                Plaintiff-Appellee /      *
                Cross-Appellant,          *
                                          * Appeal from the United States
          v.                              * District Court for the Eastern
                                          * District of Arkansas.
    Dorothy Stanley and                   *
    Betty Hendricks,                      *
                                          *
                Defendants-Appellants / *
                Cross-Appellees.          *
                                     ___________
    
                                Submitted: January 13, 2003
                                   Filed: March 31, 2003
                                    ___________
    
    Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER,1 District Judge.
                             ___________
    
    MURPHY, Circuit Judge.
    
          This defamation action was brought by Kathleen Suggs against Dorothy
    Stanley and Betty Hendricks, the sisters of her deceased companion. The jury ruled
    in favor of Suggs, and the sisters appeal from the judgment, contending that the
    
    
    
          1
           The Honorable James E. Gritzner, United States District Judge for the
    Southern District of Iowa, sitting by designation.
    district court2 erred by denying their motion for judgment as a matter of law and that
    it improperly admitted certain evidence. Suggs filed a cross appeal based on her
    unsuccessful attempt to assert a claim for intentional infliction of emotional distress.
    We affirm.
    
                                               I.
    
           Dorothy Stanley and Betty Hendricks had one brother, Gilbert Wicker, who
    was involved in a romantic relationship with Kathleen Suggs for approximately
    twelve years prior to his death. The father of the three siblings died in 1994, and the
    next year their mother, Mamie Wicker, transferred to Gilbert property which she had
    inherited from her husband. The property included a certificate of deposit for
    $10,000, a savings account of about $25,000, and a house in Stamps, Arkansas. Both
    the certificate of deposit and the savings account were payable to Mamie in the event
    of Gilbert’s death, and she continued to live in the home in Stamps. After the transfer
    in 1995, Gilbert executed a will which provided that if he died before Mamie, the
    properties would be placed in trust for her with Kathleen Suggs as trustee. Suggs was
    also made executrix of his estate.
    
           Evidence at trial indicated that the relationship between Gilbert and his sisters
    had deteriorated over the years. Gilbert suffered from renal failure for a long time
    and needed two kidney transplants. He had asked his sisters to consider donating a
    kidney before each transplant operation, and there was a conflict in the evidence
    about whether they were tested to see if they could qualify as donors. Suggs testified
    that they had not returned Gilbert’s phone calls, and they acknowledged on cross
    examination that they had not spoken to their brother for some ten years after he
    
    
    
          2
            The Honorable George Howard, Jr., United States District Judge for the
    Eastern District of Arkansas.
    
                                              -2-
    talked to them about his need for a transplant. Gilbert’s aunt, his lawyer, and his
    neighbor also testified that the sisters and Gilbert had become estranged.
    
           Dorothy Stanley obtained guardianship over the person and assets of Mamie
    in 1999, as well as power of attorney, and moved her mother from Stamps to
    Shreveport, Louisiana, where she lived. Dorothy also sued to recover the properties
    that Mamie had turned over to Gilbert. In her complaint Dorothy alleged that her
    mother had been incompetent when she signed over the property because she had
    been drugged by her doctor and Gilbert. Suggs contends that Mamie chose to transfer
    her property to Gilbert in order to prevent Dorothy and Betty from squandering it and
    leaving Mamie without adequate financial support, and Gilbert’s aunt testified that
    she had not supported Dorothy’s lawsuit because of worry about what would happen
    to the property given the costs incurred in the guardianship.3
    
          At the time Dorothy’s lawsuit was served, Gilbert was hospitalized because his
    second kidney transplant was failing. He did not file a responsive pleading, but on
    May 28, 1999, he told his attorney to draw up a new will leaving all his property to
    Suggs and naming her as his executrix. Mamie was not mentioned in the new will.
    On July 2, 1999, Gilbert was found dead.
    
           Suggs testified that she discovered Gilbert’s body after she had been unable to
    reach him on the phone and went to his house to check on him. After she found him
    dead, she called the Little Rock police who went to the house and started an
    investigation. They contacted Dorothy as next of kin to report Gilbert’s death and
    advised her to come to claim the body. Dorothy alerted her sister Betty, whose
    husband agreed to drive them to Little Rock. Dorothy also called her attorney who
    told her to videotape the contents of Gilbert’s house.
    
    
          3
            There was evidence that the chancery court had ordered Dorothy to file a
    report regarding guardianship expenditures of $41,000 for a sixteen month period.
    
                                             -3-
          After two hours on the scene, the police completed their investigation and
    determined that Gilbert’s death was a suicide. Before leaving, they instructed Suggs
    to secure the house, and she then contacted Gilbert’s lawyer. The lawyer advised
    Suggs to remove all valuables and to make sure the house was locked and soon
    arrived to help secure it. While at the house, Suggs received a call from Gilbert’s
    aunt who told her that Dorothy and Betty were on their way to Little Rock and
    suggested that she call them. Gilbert’s lawyer advised Suggs to tell the sisters that
    they did not have to drive all the way to Little Rock because his body could be
    released by fax to the funeral home in Stamps.
    
           Suggs called Dorothy’s cell phone and told her that the house was secure and
    the sisters did not need to come to Little Rock, but Dorothy replied that they were
    already underway. Suggs told Dorothy that she would be gone by the time they
    arrived. Before locking up the house, Suggs removed the most valuable items and
    Gilbert’s personal records for use in administering his estate. She then went over to
    the neighbor’s house.
    
            After Dorothy received the call from Suggs, a call was placed on Betty’s cell
    phone to the Little Rock Police Department. Although the sisters deny reporting that
    Suggs was in Gilbert’s house, they admit that one of them may have inquired as to
    whether it was appropriate for Gilbert’s girlfriend to be in the house before any of his
    relatives arrived. It is undisputed, however, that three minutes after the call from
    Betty’s cell phone, the police dispatcher broadcast a “burglary in progress” at
    Gilbert’s address, and officer Bill Bentley was sent to investigate. Officer Bentley
    testified at trial that the dispatcher had told him that a burglary had been reported by
    a woman who said she was Gilbert’s sister on the way to Little Rock.
    
          When Bentley arrived at Gilbert’s house, Suggs was standing in the neighbor’s
    yard. She went over to talk with Bentley, and he informed her that he was responding
    to a burglary call at that address. Suggs told him that she had her own key to the
    
                                              -4-
    house, and Bentley left after concluding that there had been no burglary. When
    Dorothy and Betty arrived in Little Rock, they attempted to get Suggs to open
    Gilbert’s house for them, but she refused and they sought assistance from the police.
    After hiring a locksmith, they gained entrance to the house and videotaped its
    contents.
    
            After Gilbert’s funeral, Dorothy began making phone calls to the Little Rock
    Police Department regarding his death. She told the police that she did not believe
    his death had been a suicide and that she thought Suggs had been involved. She
    mentioned a note found at the death scene which had been written and signed in block
    print and which mentioned love for a dog but nothing about Mamie. Dorothy said
    that Gilbert never printed his name, so it would have been uncharacteristic to do so
    in his final note. She added that when she and Betty went to Gilbert’s house after his
    death, all the papers found there had been signed by Gilbert in longhand rather than
    printed, and neither she nor Betty were able to find a notepad matching the paper used
    for the suicide note. Dorothy also stated that it was not possible that Gilbert would
    have thought of his dog before dying, but not his mother. Moreover, if his death had
    been a suicide, there must have been another note Suggs did not want anyone to see.
    Dorothy also reported that Gilbert’s personal papers had been removed from his
    house after his death.
    
          On July 22, 1999, Dorothy sent a letter to homicide detective Steve Moore
    which contained similar allegations. She also requested that the police check the
    suicide note to make sure Gilbert’s fingerprints were on it because she did not believe
    he had written it.4 In addition, she alleged that Suggs had tried to determine “how
    much time she had” before the sisters arrived at the house, suggesting she needed
    
    
          4
           The letter stated: “Please check the note to make sure [Gilbert’s] fingerprints
    were on it because I DO NOT believe he wrote this note. I believe there was a note
    but one that Ms. Suggs does not want anyone else to see.”
    
                                             -5-
    time to accomplish something before they got there. Dorothy attached copies of
    Gilbert’s wills to the letter to show that Suggs stood to benefit from his death. The
    copy of the most recent will indicated on its face that Betty had faxed it to Dorothy
    for inclusion with the letter. Detective Moore testified that he had received and
    considered the letter and then placed it in a police file.
    
           The Pulaski County Coroner was called as a rebuttal witness at trial after Betty
    had testified that she had had no contact with him. The coroner testified that he
    believed Betty was the woman who had accompanied Dorothy to his office to discuss
    facts related to Gilbert’s death. He positively identified Dorothy in the courtroom and
    said she had been his primary contact about Gilbert’s death but he was not absolutely
    certain that Betty had been the other woman who came to his office.
    
           When Dorothy discovered that a default judgment could not be obtained
    against Gilbert after he was deceased, she filed a new complaint naming his estate as
    the respondent. Suggs answered as executrix. The chancery court subsequently ruled
    that since Dorothy had not proven that Mamie was incompetent at the time she
    transferred her property or that Gilbert had used undue influence over her, the
    property had remained in Gilbert’s estate and later passed to Suggs as the designated
    heir.
    
           In her role as executrix of Gilbert’s estate, Suggs had contacted the Little Rock
    police before responding to Dorothy’s lawsuit. She was referred to detective Steve
    Moore who told her that Dorothy had alleged that Gilbert’s death was not a suicide.
    Suggs’ attorney obtained a copy of Dorothy’s letter to Moore through the Freedom
    of Information Act and later initiated this diversity action. In her complaint Suggs
    alleged that Dorothy had defamed her and caused her damage of more than $100,000.
    The alleged acts of defamation included statements made in the telephone call to the
    police the day of Gilbert’s death, Dorothy’s letter to detective Moore alleging that
    Gilbert’s death had not been a suicide and that Suggs had concealed his actual note,
    
                                              -6-
    and statements by Dorothy that Suggs had attempted to withdraw money from the
    estate which really belonged to Mamie. After discovery began, Suggs amended her
    complaint to include Betty as a defendant and to allege that the sisters had conspired
    in the defamatory acts.
    
            Suggs testified at trial that Dorothy’s letter to detective Moore and the
    statements made to the Little Rock police and the county coroner had damaged her
    reputation with the police department and with anyone else who heard the
    accusations. She also testified that the sisters had conspired against her for their gain
    and had hurt her during a very vulnerable time, that she had suffered great stress, and
    that she had been prevented from properly grieving Gilbert’s death. Detective Moore
    testified that the police had taken the allegations in the letter seriously and that this
    type of letter would affect a person’s reputation with the department. He stated that
    even though Gilbert’s death had been ruled a suicide, Dorothy’s letter would remain
    in the file indefinitely and could be reconsidered in the future. He also testified that
    he would not want a letter like that written about him.
    
          The jury found that both sisters had defamed Suggs and awarded her a total of
    $50,000 in damages ($10,000 compensatory and $30,000 punitive damages against
    Dorothy; $5,000 compensatory and $5,000 punitive damages against Betty).
    
           The sisters appeal from the judgment. They also contend that the district court
    erred by denying their motion for judgment as a matter of law because there had been
    insufficient evidence of damage to Suggs’ reputation, the claimed defamatory
    statements were opinions rather than statements of fact, and a case had not been made
    against Betty. They claim that the district court abused its discretion by allowing
    hearsay evidence from officer Bentley and irrelevant evidence about their relationship
    with their brother and about Dorothy’s lawsuit. In her cross appeal Suggs argues that
    the district court abused its discretion by not allowing an amendment to correct any
    pleading defect in her claim for intentional infliction of emotional distress.
    
                                              -7-
                                                II.
    
           Appellants argue they are entitled to judgment in their favor. They contend
    that the district court erred by denying their motion for judgment as a matter of law
    because the challenged statements were privileged, Suggs failed to establish required
    elements of defamation, and there was insufficient evidence to support a judgment
    against Betty. We review de novo the denial of a motion for judgment as a matter of
    law, see EFCO Corp. v. Symons Corp., 
    219 F.3d 734
    , 738 (8th Cir. 2000), consider
    the evidence in the light most favorable to the verdict, and will only reverse for
    insufficient evidence if no reasonable juror could have returned a verdict for the
    prevailing party. Id. The substantive law we must apply in this review is that of
    Arkansas. See Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938).
    
           In the alternative the sisters seek a new trial on the basis that the district court
    abused its discretion by allowing hearsay evidence from officer Bentley and other
    irrelevant and prejudicial evidence. We review the district court’s evidentiary rulings
    for a clear abuse of discretion. See United Fire & Cas. Co. v. Historic Preservation
    Trust, 
    265 F.3d 722
    , 726 (8th Cir. 2001).
    
                                                A.
    
           To prove defamation under Arkansas law, a plaintiff must show that she was
    defamed by a false statement of fact which referred to and damaged her and was
    published by the defendant. See Faulkner v. Arkansas Children’s Hospital, 
    69 S.W.3d 393
    , 402 (Ark. 2002). The defamatory statement of fact must have been
    communicated to others and must have detrimentally affected the plaintiff’s
    reputation. See Ellis v. Price, 
    990 S.W.2d 543
    , 547 (Ark. 1999). Although the
    plaintiff “must establish actual damage to his reputation, … the showing of harm is
    slight.” Id. The defamatory statement must also “imply an assertion of [any] objective
    verifiable fact.” Faulkner, 69 S.W.3d at 402.
    
                                               -8-
          Appellants argue that Suggs failed to prove that defamatory statements of fact
    were communicated to others which detrimentally affected her relations with them.
    They argue that the statements made in Dorothy’s letter and in the calls and visits to
    the police and coroner were covered by qualified privilege, that nothing more than
    opinions had been expressed, and that there was insufficient evidence of harm to
    Suggs’ reputation. Betty also argues that there was insufficient evidence to show that
    she took part in any defamatory act.
    
           Under Arkansas law a communication is covered by qualified privilege “when
    it is made in good faith upon any subject-matter in which the person making the
    communication has an interest … and to a person having a corresponding interest or
    duty, although it contains matters which, without such privilege, would be
    actionable.” Wal-Mart Stores, Inc. v. Lee, 
    74 S.W.3d 634
    , 653 (Ark. 2002).
    Qualified privilege must be exercised in a reasonable manner and is lost if abused.
    Thiel v. Dove, 
    317 S.W.2d 121
    , 123 (Ark. 1958). The privilege is abused “if the
    speaker is motivated by malice rather than by the public interest that calls the
    privilege into being.” Id. The question of whether malice has been established and
    the communication shown not to be privileged is a question of fact for the jury. Id.
    
           Suggs presented evidence that after Gilbert’s death the sisters shifted their
    animosity from him to her and that they were motivated by their desire for control
    over Mamie’s property. The jury was correctly instructed on defamation, and the
    verdict indicates that the jurors found that the statements made to the police and the
    coroner about Suggs had been motivated by spite and desire for personal gain, rather
    than good faith or public interest. After examining the record in the light most
    favorable to the verdict, we conclude there was sufficient evidence from which the
    jury could find that the sisters acted out of malice and that the statements to the police
    and coroner were therefore not covered by qualified privilege.
    
    
    
    
                                               -9-
           Appellants claim that their statements were only opinions, not statements of
    fact as required by Arkansas law. The Arkansas Supreme Court has explained,
    however, that “where the words, together with the attendant circumstances, are
    alleged to charge a crime, they are actionable.” Bland v. Verser, 
    774 S.W.2d 124
    ,
    125 (Ark. 1989). Whether the combination of words and related circumstances
    charge a crime is a question of fact for the jury. Id. The defendant in Bland, for
    example, had argued that he was only expressing his opinion by suggesting that the
    plaintiff was either very stupid or had colluded in converting funds. Because a “fair
    and reasonable inference” could be drawn from the defendant’s statements that the
    plaintiff was guilty of a criminal act, the statements were factual and actionable. See
    Bland, 774 S.W.2d at 125–26. Here, Suggs presented evidence that Dorothy’s letter
    to the police contained allegations which were also made during several phone calls
    and visits to the police and the coroner. The statements suggested that Suggs had
    been involved in Gilbert’s death for her own financial interest and that she had
    falsified Gilbert’s suicide note and hidden the authentic note. In these circumstances
    a “fair and reasonable inference,” id. at 125, could be drawn that the statements had
    alleged that Suggs was guilty of obstruction of justice or tampering with evidence,
    and had implied she might even be guilty of murder. Because of the allegations that
    Suggs had committed at least one crime, the letter and oral statements contained
    statements of fact, not merely opinion.
    
           Under Arkansas law a plaintiff’s testimony that her reputation has been injured
    by defamatory statements can be sufficient evidence of harm. See Hogue v. Ameron
    Inc., 
    695 S.W.2d 373
     (Ark. 1985). In Hogue, for example, a police officer claimed
    defamation by a letter to a state official reporting that he had driven in an unlicensed
    vehicle and yelled obscenities while on duty. He testified at trial that his reputation
    had been damaged by the resulting investigation, and another witness testified “rather
    vaguely” about the damage. See Hogue, 695 S.W.2d at 374. The Arkansas Supreme
    Court held that this was sufficient evidence of damage to submit the defamation claim
    to the jury. Id. The supreme court also held in a more recent case that harm to the
    
                                             -10-
    plaintiff’s reputation can be established by evidence that others think less of the
    plaintiff because of defamatory statements or believe that the plaintiff did what had
    been alleged. See Little Rock Newspapers, Inc. v. Fitzhugh, 
    954 S.W.2d 914
    , 920–21
    (Ark. 1997).
    
            After examining the trial record, we conclude that under Arkansas law there
    was sufficient evidence of damage to Suggs’ reputation. Suggs testified that she was
    very upset after learning that appellants had suggested to the police that she was
    involved in the death of Gilbert, with whom she had a close relationship for over
    twelve years, and that she had tampered with evidence and falsified a suicide note.
    She also testified that she believed their allegations had damaged her reputation with
    the Little Rock Police Department and with everyone who heard the accusations or
    read the letter. She added that her fear of how people were reacting was causing her
    immense stress at a particularly difficult time in her life. Officer Moore testified that
    a letter like Dorothy’s was taken seriously by the police, that it could definitely harm
    a person’s reputation with the department, and that he would not want such a letter
    written about him or placed in a police investigation file. Gilbert’s attorney testified
    that Dorothy’s letter would cause anyone to wonder whether the allegations were true,
    that the allegations could be devastating to Suggs’ reputation, and that the letter is
    readily available to anyone through the Freedom of Information Act. There was
    additional evidence to show how damaging the allegations in the letter could be since
    Suggs’ best friend testified that although the accusations seemed absurd, it was only
    human to have some doubt about whether the statements were true. Given this record,
    appellants were not entitled to prevail on their motion for judgment on the basis of
    insufficient evidence of damage to Suggs’ reputation.
    
           The final issue is whether Suggs made out a case that Betty had conspired with
    her sister in the acts of defamation. To succeed with this theory Suggs had to show
    that Betty and Dorothy “combined to accomplish a purpose that is unlawful or
    oppressive or to accomplish some purpose, not in itself unlawful, oppressive or
    
                                              -11-
    immoral, but by unlawful, oppressive or immoral means, to the injury of another.”
    Faulkner, 69 S.W.3d at 406. The initial phone call to the Little Rock police was
    shown to have been made on Betty’s cell phone, and this call initiated a series of
    contacts by the sisters about Gilbert’s death.5 There was evidence from which the
    jury could find that Betty was the other woman who went with Dorothy to the coroner
    to discuss concerns related to Gilbert’s death. There was also evidence that Betty
    provided Dorothy with the copy of Gilbert’s second will for attachment to her letter
    to the police. An inference could be drawn by the jury that the purpose of the
    attachment was to suggest Suggs had a motive for murder or at the very least, that
    Suggs knew she could benefit from Gilbert’s death. Other evidence also tended to
    show that the sisters had conspired together, motivated by animosity and the desire
    to recover their mother’s property, including evidence that Betty had encouraged her
    sister in the lawsuit to retrieve property from Gilbert and his estate, had accompanied
    Dorothy throughout, and had testified in support of Dorothy at the chancery court
    proceeding. Because of the way that the jury allocated damages, it obviously found
    Betty’s involvement to have been less than Dorothy’s, but we conclude there was
    sufficient evidence for the jury to find that Betty had knowingly combined with
    Dorothy to defame Suggs.
    
          In sum, the district court did not err by denying the motion for judgment as a
    matter of law on any of the asserted grounds.
    
    
    
    
          5
            Officer Bentley testified at trial about this first call, but the police dispatcher
    did not. The report of what was said to the dispatcher, by a woman representing
    herself as Gilbert’s sister on the way to Little Rock, would therefore be hearsay if
    offered to prove the truth of its content. Accordingly, we will not consider the
    content of statements reported to have been made to or by the dispatcher.
    
                                               -12-
                                               B.
    
           Officer Bentley testified that he had been directed to Gilbert’s residence by the
    dispatcher who reported that an “unknown caller called southwest substation and
    advised that there was a burglary in progress at her deceased brother’s residence” and
    that “the caller said that she was … en route from Louisiana.” The district court
    admitted this evidence over a hearsay objection to show the officer’s understanding
    of the nature of the call to which he was responding, and it admitted Bentley’s written
    report as a business record. While appellants concede the officer’s own observations
    in his report are admissible as a business record, they argue that repetition of the
    dispatcher’s statements was inadmissible hearsay. We review the district court’s
    evidentiary rulings for a clear abuse of discretion. See United Fire & Cas. Co., 265
    F.3d at 726.
    
            Officer Bentley’s evidence about what he was told by the dispatcher was not
    hearsay because it was not offered for the truth of the matter asserted. Fed. R. Evid.
    801, see also supra note 5. The statements were admitted in order to explain why
    Bentley went to Gilbert’s house even though police had already been there earlier that
    day to investigate his death. See United States v. Collins, 
    996 F.2d 950
    , 953 (8th Cir.
    1993) (out of court statement to officer not hearsay if offered to explain why
    investigation was undertaken); see also Nottingham v. Arkansas, 
    778 S.W.2d 629
    ,
    630 (Ark. App. 1989) (officer’s testimony concerning phone call not hearsay when
    offered to explain what prompted his investigation). The district court also instructed
    the jury that the statements were to be used only to show why the officer went to
    Gilbert’s house, not to prove that anything stated by the dispatcher or the caller was
    true. Since the evidence was thus not hearsay and the jury was properly instructed
    on its use, the district court did not abuse its discretion by allowing officer Bentley’s
    testimony and written report into evidence.
    
    
    
    
                                              -13-
           Appellants argue that the district court abused its discretion by allowing Suggs
    to present evidence that was prejudicial and irrelevant, including evidence relating
    to Gilbert’s illness, the lawsuit to recover the mother’s property, and Dorothy’s
    guardianship of their mother and her assets. They charge that this evidence was
    offered to show that they were persons of bad character and thus inadmissible under
    Fed. R. Evid. 404(b). Suggs responds that the evidence was relevant and necessary
    to her claims that the sisters conspired to defame her, for punitive damages, and to
    counter their defense of qualified privilege. She also says the evidence shows that
    she became the object of the sisters’ animosity because of the transfer of their
    mother’s property.
    
           A district court is afforded wide latitude in determining issues of relevancy,
    and we will only reverse if there is a clear abuse of discretion. See EFCO Corp., 219
    F.3d at 739. This evidence was not offered to prove character, but was relevant to
    explain the sisters’ hostile attitude toward Suggs and helped show that they had
    worked in concert to regain possession of their mother’s property, first from their
    brother and then later from Suggs. It also helped establish malice, which was
    necessary to overcome the sisters’ affirmative defense of qualified privilege and to
    obtain punitive damages. See Thiel, 317 S.W.2d at 123 (conditional privilege of
    providing information to police is lost if motivated by malice rather than the public
    interest); Flynn v. McIlroy Bank & Trust, 
    697 S.W.2d 114
    , 116 (Ark. 1985) (award
    of punitive damages in a private figure defamation case requires proof of ill will,
    malice, or bad intent). The district court did not abuse its discretion by finding the
    relevance of the evidence outweighed any prejudicial effect and admitting it.
    
                                             III.
    
          After a thorough review of the record, we conclude that the district court did
    not abuse its discretion in its evidentiary rulings and that there was sufficient
    evidence under the requirements of Arkansas law to support the jury findings that
    
                                             -14-
    Gilbert’s sisters had defamed his companion. Accordingly, we affirm the judgment
    of the district court and dismiss the cross appeal as moot.6
    
    GRITZNER, District Judge, dissenting.
    
          The essential elements of a cause of action for defamation in Arkansas have
    been outlined as follows:
    
          An action for defamation turns on whether the communication or
          publication tends or is reasonably calculated to cause harm to another’s
          reputation.
          ....
                 In order to establish a claim of defamation, a party must prove the
          following elements: (1) The defamatory nature of the statement of fact;
          (2) that statement’s identification of or reference to the plaintiff;
          (3) publication of the statement by the defendant; (4) the defendant’s
          fault in the publication; (5) the statement’s falsity; and (6) damages.
    
    Little Rock Newspapers, Inc. v. Fitzhugh, 
    954 S.W.2d 914
    , 918 (1997) (citations
    omitted). Because I believe the majority opinion essentially eliminates the sixth
    element, I must respectfully dissent.
    
           “A plaintiff must prove that the defamatory statement(s) have been
    communicated to others and that the statements have detrimentally affected those
    relations. The law does not require proof of actual out of pocket expenses.” Ellis v.
    Price, 
    990 S.W.2d 543
    , 546-47 (Ark. 1999). “A plaintiff must establish actual
    damage to his reputation, but the showing of harm is slight.” Id. (citing United Ins.
    Co. of Am. v. Murphy, 
    961 S.W.2d 752
    , 756 (Ark. 1998)).
    
    
          6
            Suggs argues in her cross appeal that if appellants succeed with their appeal,
    her claim for intentional infliction of distress should be reinstated because she pled
    such a claim and the district court abused its discretion by not allowing her to amend
    it.
    
                                            -15-
          The majority relies upon Hogue v. Ameron Inc., 
    695 S.W.2d 373
    , 374 (Ark.
    1985), for the principle that a plaintiff’s testimony that her reputation has been injured
    can be sufficient evidence of harm, and upon Little Rock Newspapers, Inc., 954
    S.W.2d at 920-21, for the concept that harm to a plaintiff’s reputation can be
    demonstrated by evidence that others think less of the plaintiff because of the
    defamatory statements. The Hogue court concluded that plaintiff had testified
    regarding harm to his reputation, but the court did not describe the nature of that
    evidence. Hogue, 695 S.W.2d at 374. The Fitzhugh court later observed “[n]ot
    withstanding the holding in Hogue, the question still remains as to what particular
    type of proof is sufficient to sustain a jury’s verdict in favor of a plaintiff in a
    defamation action.” Fitzhugh, 954 S.W.2d at 920-21 (emphasis added).
    
           In 1998, Arkansas abandoned the per se damages rule in defamation cases.
    United Ins. Co. of Am., 961 S.W.2d at 755. The Arkansas Supreme Court
    announced, “[f]rom the date of this opinion forward, we hold that a plaintiff in
    a defamation case must prove reputational injury in order to recover damages.” Id.
    at 755. Therefore, in cases in which a private plaintiff sues a private defendant and a
    defamatory statement is shown, the damage element could no longer be
    presumed.7 Id.
    
            What constitutes actual damages in an Arkansas defamation action is helpfully
    illustrated by the quality of evidence in Ellis v. Price. Ellis, 990 S.W.2d at 543. In
    Ellis, the plaintiff was three months pregnant when two women called her husband
    and told him the baby was not his. Id. at 545. Ellis brought a defamation suit
    alleging damages of “injury to her reputation, personal humiliation, embarrassment,
    weight loss, difficulty sleeping, and loss of appetite.” Id. The case proceeded to trial,
    
    
          7
           The doctrine of presumed damages had already been abolished in defamation
    cases where a private plaintiff sues a media defendant in Little Rock Newspapers, Inc.
    v. Dodrill, 
    660 S.W.2d 933
     (1983).
    
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    where defendants’ motion for a directed verdict at the close of evidence was denied
    and the jury awarded significant compensatory and punitive damages. Id.
    
           The Arkansas Supreme Court upheld the Ellis verdict on appeal. Id. at 546.
    The court emphasized that a showing of damages was required to recover in a
    defamation case and, although slight, Ellis had suffered damages. Id. at 547. The
    court pointed to Ellis’ testimony at trial detailing the damage to her relationship with
    her husband. Id. at 547-48. Ellis testified that although her husband said he did not
    believe the accusation, he treated her as if he believed it. Id. She testified that after
    receiving the phone call, her husband: (1) was angry; (2) did not sleep in the same
    room with her for two or three months; (3) doubted her and questioned her
    whereabouts; (4) would only have brief and infrequent conversations with her; and
    (5) would make efforts to avoid touching her when they passed each other. Id. at 548.
    Ellis also testified she went to her parents’ home in Memphis because there was really
    no reason to be in Little Rock since she and her husband did not have a relationship.
    Id. Ellis’ husband testified that he was disturbed by the allegation and questioned his
    wife’s honesty. Id. Thus, the harm in Ellis, while limited to her relationship with her
    spouse, was specific and based upon facts rather than fears, suspicions, or conclusions
    by the plaintiff. The Ellis court follows Hogue in allowing the plaintiff’s own
    testimony to be the source of the record evidence, Ellis, 990 S.W.2d at 547, but also
    requires that it demonstrate actual harm. Id.
    
           This analysis is further developed by the recent case of Faulkner v. Arkansas
    Children’s Hospital, wherein the Arkansas Supreme Court found the trial court
    properly dismissed a defamation action because the plaintiff failed to plead facts
    supporting actual damage to reputation. Faulkner v. Ark. Children’s Hosp., 
    69 S.W.3d 393
    , 403 (Ark. 2002). The lengthy facts in Faulkner detail a story of untrue
    retaliatory statements made about the plaintiff which contributed to her suspension
    and eventual demotion. Id. at 396-99. Faulkner was a nurse coordinator for a special
    mobile unit at Arkansas Children’s Hospital (ACH). Id. at 396. After two years at
    
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    ACH, members of the hospital staff engaged in conduct aimed at removing Faulkner
    from her position. Id. The conduct included letters, phone calls, and meetings with
    ACH administration, alleging Faulkner was unstable and blaming her for errors for
    which she was not responsible. Id. at 397. Ultimately, ACH determined Faulkner
    was unstable and demoted her from the coordinator position. Id. at 399. Faulkner
    sued the hospital and the certain staff on various counts including defamation. Id.
    The defendants moved to dismiss the case under Arkansas Rule of Procedure
    12(b)(6). Id.
    
           The court found Faulkner did not prove the necessary elements of defamation
    under Arkansas law and dismissal was proper. Id. at 402-03 (“Faulkner has not pled
    specific facts demonstrating that she has suffered actual damage to her reputation, but
    has only pled a conclusion to that effect. That is not enough to withstand a Rule
    12(b)(6) motion.”).
    
           In this case, Suggs did offer testimony that she believed the allegations had
    damaged her reputation and that she suffered substantial distress as a result of the
    conduct during this difficult time in her life. However, if the developing law in
    Arkansas has meaning, a plaintiff’s own conclusions or fears about injury to reputa-
    tion must be supported by evidence that those conclusions or fears have some basis
    in fact. For example, “[p]roof of damage to reputation may include: (1) proof that
    people believed the plaintiff to be guilty of the conduct asserted in the publication,
    or (2) proof that people thought less of the plaintiff as a result of the publication’s
    defamatory content.” Little Rock Newspapers, 954 S.W.2d at 921.
    
          It is axiomatic that no injury to reputation can result when the person receiving
    the communication knows it is not true. The report of a burglary in progress at the
    residence was, within minutes, determined by the police to be untrue. The various
    communications to the Little Rock Police Department may not have been protected
    by a qualified privilege under the circumstances of this case, but they were still made
    
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    by concerned family members questioning the conclusion of suicide and inviting
    further investigation by law enforcement. The record reflects this is commonly seen
    by the police in cases of suicide. Police utilize such information in the process of
    their investigation which by its essential nature withholds a determination of the
    accuracy of the allegations pending confirmation. In fact, the Little Rock Police
    Department concluded the death was a suicide and determined to close any further
    investigation. Thus, the only persons to whom the defendants published the allega-
    tions found them to be in all material respects, if not totally, false.
    
           The allegedly defamatory material is in the police files, only available pursuant
    to a Freedom of Information request and then possible disclosure. The only requests
    in the record came from attorneys for the plaintiff. There is no record of other
    publication from the police files. Even assuming a Freedom of Information request
    might allow for damaging publication, it has yet to occur.
    
          Officer Moore’s testimony that such a communication is taken seriously by the
    police could harm a person’s reputation, and that he would not want such a letter
    written about him or placed in a police file, does not alter the analysis. That such a
    communication is annoying or could harm a person’s reputation does not prove the
    element of damage. That police take an allegation seriously does not rise to
    defamation in the face of the investigatory process with a contrary conclusion.
    
           Other than Officer Moore, the only witness who read the letter was Suggs’
    friend Connie Tapp. Tapp only knew about the letter because Suggs showed it to her,
    and she testified the letter did not affect her opinion of Suggs.
    
          Suggs worries she lost her job because of the letter, yet she offers no proof
    anyone at Ryder ever saw the letter or knew of the accusations. In addition, she was
    terminated in June 2001, which was eleven months after the letter was sent to
    the LRPD.
    
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           Suggs testified her relationship with Mamie was noticeably affected the day
    before Gilbert’s funeral. This was weeks before the allegedly defamatory letter was
    sent. Furthermore, Suggs testified she had not seen Mamie for over a year and a half
    prior to Gilbert’s death.
    
           Proof of a claim of defamation requires a showing of damages. Little Rock
    Newspapers, 954 S.W.2d at 918. While the harm to reputation may be slight under
    Arkansas law, Ellis, 990 S.W.2d at 547, it must still meet that minimum. While a
    plaintiff’s own testimony may be the source of the evidence, the substance of the
    evidence must still demonstrate actual harm. Id. I believe the district court erred in
    not sustaining the Motion for Judgment as A Matter of Law, and I would reverse.
    
          A true copy.
    
                 Attest:
    
                         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    
    
    
    
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