KAREN THOMPSON v. WILLIAM H. ARMSTRONG. , 134 A.3d 305 ( 2016 )

District of Columbia
Court of Appeals
No. 14-CV-792
APR - 7 2016
KAREN THOMPSON,
Appellant,
v. CAB-4137-09
WILLIAM H. ARMSTRONG,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: BLACKBURNE-RIGSBY and BECKWITH, Associate Judges; and
FARRELL, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby
ORDERED and ADJUDGED that the judgment for the appellee is
reversed, and the matter is remanded with instructions for the trial court to enter
judgment in favor of the appellant.
For the Court:
Dated: April 7, 2016.
Opinion by Senior Judge Michael W. Farrell.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CV-792 4/7/16
KAREN THOMPSON, APPELLANT,
v.
WILLIAM H. ARMSTRONG, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(CAB-4137-09)
(Hon. Stuart G. Nash, Trial Judge)
(Argued February 29, 2016 Decided April 7, 2016)
Joshua J. Fougere, with whom Joseph R. Guerra, Noah T. Katzen, and
Arthur B. Spitzer were on the brief, for appellant.
Kevin Byrnes for appellee.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
FARRELL, Senior Judge.
FARRELL, Senior Judge: A jury awarded William H. Armstrong sizable
damages in his suit alleging intentional interference with a prospective contractual
relationship by Karen Thompson. Before us is Ms. Thompson‟s appeal
contending, mainly, that she was erroneously denied judgment as a matter of law
because the suit, premised on true or non-provably false statements she had made
2
to a government agency about Mr. Armstrong‟s fitness for a law enforcement
position, was precluded by the First Amendment. In light of what we conclude
was Mr. Armstrong‟s status as a public official at the time, we agree with Ms.
Thompson and reverse the judgment in Mr. Armstrong‟s favor.1
I. Background
A.
The facts underlying Mr. Armstrong‟s multi-count suit against Ms.
Thompson are described in our earlier opinion, Armstrong v. Thompson, 80 A.3d
177 (D.C. 2013) (Armstrong I), as follows:
[Mr.] Armstrong, a former special agent with the
Treasury Inspector General for Tax Administration
(TIGTA), was on the verge of leaving TIGTA to take a
job at the United States Department of Agriculture
(USDA) when the USDA abruptly rescinded its offer of
employment after one of Mr. Armstrong‟s TIGTA
coworkers sent six then-anonymous letters to the USDA
avowing that the agency was making a “grave error” in
offering Mr. Armstrong a job because he was under
internal investigation for serious integrity violations and
1
We accordingly have no occasion to reach Ms. Thompson‟s alternative
claims of trial error.
3
other misconduct and would be a liability to the USDA.
Id. at 180 (footnote omitted.).2 On the basis of these letters, Mr. Armstrong
brought five tort claims against the letter writer, Ms. Thompson: defamation,
invasion of privacy (false light), invasion of privacy (publication of private facts),
intentional infliction of emotional distress, and intentional interference with
contractual relations. Following discovery, the trial court (Judge Epstein) granted
summary judgment to Ms. Thompson on each claim after applying the common-
law elements of each tort. On Mr. Armstrong‟s appeal, this court affirmed that
decision as to the first four claims. With particular focus on the defamation claim,
the court analyzed in detail Ms. Thompson‟s letters to the USDA and concluded
that “no reasonable juror could deny the substantial truth of each of the statements
[of fact] to which Mr. Armstrong objects,” and that the rest of the statements “were
assertions of opinion that were unverifiable and therefore not actionable as
defamation.” Id. at 185, 187.3
2
TIGTA is a division of the United States Department of Treasury.
3
The court‟s affirmance on the twin invasion of privacy counts rested on
the substantial overlap of the elements of those torts with the elements of
defamation, Armstrong I, 80 A.3d at 188-89, and on the principle that “a plaintiff
may not avoid the strictures of the burdens of proof associated with defamation by
resorting to a claim of false light invasion.” Id. at 188 (citations and internal
quotation marks omitted). Regarding the emotional distress claim, we concluded
(continued…)
4
This court reversed, however, as to Mr. Armstrong‟s claim of intentional
interference with contractual relations. As a defense to that tort, we recognized,
the defendant may seek “to prove that her interference was not wrongful,” id. at
190, and in determining whether that burden has been met courts, “following
settled law in the District of Columbia,” must weigh seven factors as spelled out in
the RESTATEMENT (SECOND) TORTS § 767 (1977). Id. at 191. Unlike the trial
judge, we concluded that on the evidence proffered by Mr. Armstrong, “reasonable
minds could differ on the outcome of this balancing test and on . . . whether Ms.
Thompson was legally justified in intentionally interfering with Mr. Armstrong‟s
prospective employment.” Id.
At the same time, we took note of the fact that in a post-argument
submission to this court Ms. Thompson had “argued for the first time that the
truthfulness of her allegations to the USDA should preclude liability for intentional
interference under § 772 (a) of the RESTATEMENT.” Id. at 191 n.28.4 But, we
___________
(…continued)
that “no reasonable juror could find that [Mr. Armstrong‟s] distress was so severe
as to satisfy the third [element] of the tort of intentional infliction.” Id. at 189.
4
RESTATEMENT § 772 (a) states that “[o]ne who intentionally causes a third
person . . . not to enter into a prospective contractual relation with another does not
interfere improperly with the other‟s contractual relation, by giving the third
person . . . truthful information.”
5
observed, “this court has never explicitly adopted § 772,” and we declined to
consider the issue — “not an uncomplicated one” — because Ms. Thompson had
not argued “in her appellate brief . . . or in the trial court that truthfulness was a
complete defense under RESTATEMENT § 772,” id., citing “Dyer v. William
Bergman & Assocs., 657 A.2d 1132, 1137 n.5 (D.C. 1995) (defendant waived his
contention that the court should adopt the „truthful statement‟ defense to an
intentional interference claim by failing to raise the issue before the trial court and
in his first appeal).” In Armstrong I, therefore, we “remanded [the case] for further
proceedings” limited to the intentional interference claim. Id. at 192.
B.
In moving originally for summary judgment, Ms. Thompson had argued
that, besides common law defenses entitling her to judgment as a matter of law, the
First Amendment shielded her completely from liability for truthful or not
provably false statements made to the USDA about Mr. Armstrong, a public
official, citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), and Cohen v.
Cowells Media Co., 501 U.S. 663 (1991). Judge Epstein did not reach the First
Amendment argument because of his resolution of each tort-claim on common law
grounds. After this court‟s partial reversal, Ms. Thompson renewed before the trial
6
court (now Judge Nash) the defense that her non-defamatory statements of fact and
opinion about a “public official” were fully protected by the First Amendment.
Judge Nash declined to consider the argument, however, because he deemed this
court to have held that both the common law (RESTATEMENT § 772) and First
Amendment defenses were waived. See JA 84-85 (finding no “possibility that this
court could, consistent with the Court of Appeals decision, grant summary
judgment to [Ms. Thompson] on the ground that the communications contained
exclusively truthful information”). At a later point, the judge reiterated that the
First Amendment defense “is one of the arguments that I‟ve found to have been
waived.” The case therefore proceeded to trial and verdict.
II. Discussion
A.
Ms. Thompson argues that both First Amendment and common law
principles, specifically the RESTATEMENT (SECOND) TORTS § 772 (a), barred her
liability as a matter of law for statements this court held were either substantially
true factually or, as expressions of opinion, not provably false. Mr. Armstrong
counters at the outset that both arguments are foreclosed by Armstrong I (Br. for
Appellee at 6). He is only partly right. In that appeal, this court rejected Ms.
7
Thompson‟s invitation for us to adopt § 772 (a) because neither in the trial court
nor on appeal had she argued, contrary to settled law in this jurisdiction, “that
truthfulness was a complete defense under Restatement § 772.” Id. at 191 n.28.
That ruling did not, as Ms. Thompson implies, merely postpone consideration of
the issue to the trial court on remand; instead, we cited Dyer v. William S. Bergman
& Assocs., supra, and its holding that the defendant there “waived” the § 772
argument “by failing to raise the issue before the trial court and in his first appeal.”
Id. Consequently, this holding of waiver by Armstrong I became the law of the
case, see, e.g., Lynn v. Lynn, 617 A.2d 963, 969 (D.C. 1992) (law of the case
“precludes reopening questions resolved by an earlier appeal in the same case”),
and Judge Nash correctly refused to consider the § 772 argument on remand.
Mr. Armstrong is mistaken, on the other hand, in arguing that Armstrong I
rejected Ms. Thompson‟s First Amendment defense. The court there said nothing
about potential First Amendment limits on Mr. Armstrong‟s ability to sue for
intentional interference, for the obvious reason that Ms. Thompson had not raised
it as an alternative ground for upholding the summary judgment granted by Judge
Epstein (who in turn had not reached the First Amendment defense). On appeal,
Mr. Armstrong takes no serious issue with Ms. Thompson‟s point that she was not
obliged to raise the alternative ground for affirmance. See, e.g., Crocker v.
8
Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C. Cir. 1995) (“forcing appellees
to put forth every conceivable alternative ground for affirmance might increase the
complexity and scope of appeals more than it would streamline the progress of the
litigation”). Instead, Mr. Armstrong points to a statement later by a motions
division of this court, in denying Ms. Thompson‟s motion for stay of judgment
after the jury‟s verdict, which Mr. Armstrong sees as tantamount to rejecting the
First Amendment defense on the merits.5 But in denying the stay request, the
motions division well knew that it was not deciding the merits of Ms. Thompson‟s
appeal but only, among other things, the likelihood of her succeeding on the
merits. Its ruling was thus consistent with the doctrine that a merits division of the
court may “depart[ ] from a motion division‟s ruling in the same case,” Kleinbart
v. United States, 604 A.2d 861, 867 (D.C. 1992), and that “law of the case is not
established” by “denial of a stay.” 18 B CHARLES ALAN WRIGHT, ARTHUR R.
MILLER, et al., FEDERAL PRACTICE & PROCEDURE § 4478.5 (2d ed. 2015).
Judge Nash therefore erred in concluding that Armstrong I foreclosed
consideration of Ms. Thompson‟s First Amendment defense. But because, as will
be apparent, no further development of the record is necessary to resolve the First
5
The motions division observed that Ms. Thompson had not cited “any case
binding in our jurisdiction that holds that the First Amendment precludes liability
for truthful statements involving private figures on matters of private concern.”
9
Amendment issues, a remand to the trial court for that purpose is unnecessary and
we proceed to consideration of them.
B.
It is axiomatic that “[t]he Free Speech Clause of the First Amendment . . .
can serve as a defense in state tort suits . . . .” Snyder v. Phelps, 562 U.S. 443, 451
(2011). Although the protections which the First Amendment affords speech have
been applied most prominently in suits for defamation, see, e.g., New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), their applicability to other torts has
repeatedly been recognized. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S.
46 (1988) (protections applied to intentional infliction of emotional distress);
Blodgett v Univ. Club, 930 A.2d 210, 222-23 (D.C. 2007) (“a plaintiff may not
avoid the strictures of the burdens of proof associated with defamation by resorting
to a claim of false light invasion”). Unsurprisingly, therefore, courts have
regularly held that First Amendment restrictions apply to suits for intentional
interference with contractual relations. See Farah v. Esquire Magazine, 736 F.3d
528, 540 (D.C. Cir. 2013); Jefferson City Sch. Dist. No. R-1 v. Moody’s Investor
Servs., Inc., 175 F.3d 848, 856-58 (10th Cir. 1999); Beverly Hills Foodland Inc. v.
United Food & Commercial Workers Union, Local 655, 39 F.3d 191, 196-97 (8th
10
Cir. 1994); Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990); cf.
Delloma v. Consol. Coal Co., 996 F.2d 168, 172 (7th Cir. 1993) (noting the
“significant First Amendment problems” that would be raised by “permitting
recovery for tortious interference based on truthful statements”). Mr. Armstrong‟s
argument that defamation and intentional interference protect very different
interests can be made regarding invasion of privacy or any of the other actions that
courts have refused to distinguish for First Amendment purposes. The point, and
the reason we align ourselves with the decisions just cited, is that “a plaintiff may
not use related causes of action to avoid the constitutional requisites of a
defamation claim.” Moldea v. New York Times Co., 22 F.3d 310, 319-20 (D.C.
Cir. 1994).
C.
The issue before us, then, is whether the First Amendment provides full
protection from liability to Ms. Thompson for her statements about Mr. Armstrong
to USDA that this court determined were either substantially true or not provably
false. We conclude that it does.
The First Amendment “prohibits a public official from recovering damages
11
for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with „actual malice.‟” New York Times, 376 U.S. at 279-80.
The reason is that, “where the criticism is of public officials and their conduct of
public business, the interest in private reputation is overborne by the larger public
interest, secured by the Constitution, in the dissemination of truth.” Garrison v.
Louisiana, 379 U.S. 64, 72-73 (1964). To prove “actual malice” in these
circumstances, the public official must show by clear and convincing evidence
“that the statement was made . . . with knowledge that it was false or with reckless
disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80.
And “actual malice” must be shown regardless of the speaker‟s motives. See
Garrison, 379 U.S. at 74 (rejecting, under New York Times Co., a Louisiana rule
“permitting a finding of malice based on an intent merely to inflict harm, rather
than an intent to inflict harm through falsehood”).
To decide whether Mr. Armstrong was required to prove actual malice on
Ms. Thompson‟s part, therefore, we must ask whether Mr. Armstrong, a
government employee, was a “public official” and, if so, whether Ms. Thompson‟s
statements to USDA “relat[ed] to his official conduct.” New York Times, supra.
Together these questions implicate the third and broader one of whether Ms.
Thompson‟s statements involved issues of public concern, because “[i]t is speech
12
on matters of public concern that is at the heart of the First Amendment‟s
protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
758-59 (1985) (plurality opinion) (citations and internal quotation marks omitted);
see Snyder, 562 U.S. at 451-52.
1.
Undisputed facts of record and relevant case authority, including a decision
of our own, teach us that Mr. Armstrong was a public official at the time in
question. He was an Assistant Special Agent in Charge (ASAC) at TIGTA,
supervising five to seven employees. As an ASAC, he was responsible for
managing a group of Special Agents investigating mainly fraud involving Internal
Revenue Service procurements. His unit presented the results of its investigations
either to an “adjudicator” or to the United States Attorney‟s Office if possible
criminal prosecution was warranted. His duties required him to carry a firearm and
federal law enforcement credentials, and gave him access to sensitive databases
and information. In TIGTA‟s own description, which Mr. Armstrong does not
question, he occupied “a position of heightened public trust and responsibility” as a
“[f]ederal law enforcement officer,” and “[a]s an ASAC [was] held to a higher
standard of conduct than non-supervisory employees . . . .”
13
Whether Mr. Armstrong was a public official “is a question of law to be
resolved by the court.” Moss v. Stockard, 580 A.2d 1011, 1029 (D.C. 1990).
Although the term “„public official‟ cannot „be thought to include all public
employees,‟” id. (quoting Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979)),
the designation “applies at the very least to those among the hierarchy of
government employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of governmental affairs.” Rosenblatt
v. Baer, 383 U.S. 75, 85 (1966) (emphasis added). Lower courts have consistently
held that this standard fits the responsibility of law enforcement officers,
particularly those with supervisory authority. This court is among them. In Beeton
v. District of Columbia, 779 A.2d 918 (2001), we considered whether the
plaintiff/appellant, a correctional officer at the District‟s then-prison facility in
Lorton, Virginia, was a public official “at the time the [alleged] defamatory article
[about her] appeared.” Id. at 920. In holding that she was, we pointed out that Ms.
Beeton was commonly addressed as “Corporal” and had recently been “named the
Officer in Charge . . . of the Facility‟s Control Center,” id., and we relied on
“several cases from other jurisdictions holding that law enforcement officers are
public officials.” Id. at 924. We found particularly instructive St. Amant v.
Thompson, 390 U.S. 727 (1968), in which, we said, “the Supreme Court [had]
14
concluded that a deputy sheriff was a public official and had the burden of proving
that the statements about his official conduct were made with actual malice.” Id.Although Mr. Armstrong points out that in St. Amant the Supreme Court actually
accepted, “[f]or purposes of this case” and without further discussion, the state
court‟s finding that the plaintiff was a public official, see 390 U.S. at 730, that
discrepancy is of no moment: Beeton‟s holding that a law enforcement officer, at
least one clothed with supervisory authority as Ms. Beeton was, is a public official
is unmistakable.
Many courts have gone further and held that, because “[l]aw enforcement is
a uniquely governmental affair,” an officer “of law enforcement, from ordinary
patrolman to Chief of Police, is a „public official‟ within the meaning of federal
constitutional law.” Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (collecting
cases).6 Here it is enough for us to conclude that Mr. Armstrong, a supervisory
6
See also Price v. Viking Penguin, Inc., 881 F.2d 1426, 1429-31 (8th Cir.
1989) (FBI Special Agent a public official); Gray v. Udevitz, 656 F.2d 588, 591
(10th Cir. 1981) (law enforcement officials “have uniformly been treated as public
officials within the meaning of New York Times”); Dixon v. Int’l Bhd. of Police
Officers, 504 F.3d 73, 88 (1st Cir. 2002) (police officers are public officials);
Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 288-89 & n.5 (collecting cases) (Mass.
2000) (police officers are public officials for purposes of defamation suit); Rattray
v. City of Nat’l City, 51 F.3d 793, 800 (9th Cir. 1994) (citing cases); Hildebrant v.
Meredith Corp., No. 13-CV-13972, 2014 WL 5420787, at *10 (E.D. Mich. Oct.
23, 2014) (law enforcement officers are public officials for purposes of
(continued…)
15
special agent in TIGTA investigating potential criminal fraud, with access to
confidential databases and occupying what TIGTA itself considered “a position of
heightened public trust and responsibility,” was a public figure within the First
Amendment when Ms. Thompson made her statements.
2.
Ms. Thompson‟s statements to USDA about Mr. Armstrong also “relate[d]
to his official conduct.” New York Times, 376 U.S. at 279-80. “[T]hat limitation,”
one Circuit Court has stated, “has been broadly construed to reach „anything which
might touch on . . . [the] official‟s fitness for office.‟” Dixon v. Int’l Bhd. of Police
Officers, 504 F.3d 73, 88 (1st Cir. 2007) (quoting Garrison, 379 U.S. at 77). And,
as the Supreme Court stated in Garrison, “[f]ew personal attributes are more
germane to fitness for office than dishonesty, malfeasance, or improper motivation,
even though these characteristics may also affect the official‟s private character.”
379 U.S. at 76. Ms. Thompson‟s letters to USDA, as we explained in Armstrong I,
___________
(…continued)
defamation, regardless of whether they set department policy); Young v. Gannett
Satellite Info. Network, Inc., 837 F. Supp. 2d 758, 763 (S.D. Ohio 2011) (“[A]s a
police officer, Young is a public figure for purposes of his defamation claim.”).
16
80 A.3d at 185-88, concerned a TIGTA investigation of Mr. Armstrong for
allegedly gaining unauthorized access to and improperly using information from
TIGTA databases. For instance, what Mr. Armstrong “contends . . . [was] the most
damning claim in Ms. Thompson‟s letters” was that USDA was offering Mr.
Armstrong employment at roughly the same time he “was under internal
investigation by his own agency for suspected violations of both a criminal and
investigative nature.” Id. at 185. These statements undeniably related to Mr.
Armstrong‟s fitness to hold another law enforcement position similar to that he
occupied at TIGTA.
It is also apparent to us that Ms. Thompson‟s statements to USDA involved
not just Mr. Armstrong as an individual, but matters of “public concern.” Dun &
Bradstreet, 472 U.S. at 758-59. At least as applied to a supervisory law
enforcement official, we agree that “the ethics of a government employee and thus
his fitness for office” are “quintessentially [a matter] of public concern.” Lewis v.
Elliott, 628 F. Supp. 512, 521 (D.D.C. 1986); see Ayala v. Washington, 679 A.2d
1057, 1067 (D.C. 1996) (“speech [that] concerns the conduct of government . . .
[is] properly treated as of „public concern‟”). Mr. Armstrong counters that Ms.
Thompson‟s letters were essentially the act of a disgruntled employee
masquerading as good-citizen whistleblowing; he cites for this the remarks of
17
judges in earlier related federal litigation that she was acting out of “personal
motives” or, “as far as anybody can tell, out of some sort of vendetta.”7 But
because no question of the First Amendment was before these judges, they had no
reason to be mindful of the “breathing space” it affords speech about the fitness of
public officials, even if motivated by “ill-will.” Garrison, 379 U.S. at 73-74. The
parties dispute Ms. Thompson‟s motives for reporting Mr. Armstrong‟s
embroilment to USDA, but ultimately they are beside the point.8 Judge Epstein,
while also not deciding First Amendment issues, correctly saw the matter of public
concern reflected in society‟s interest “in encouraging disclosure of” substantially
true information “to a federal agency regarding a prospective employee‟s prior
misconduct that is directly related to his fitness for the potential position.”
It remains for us to reject Mr. Armstrong‟s reliance on Connick v. Myers,
461 U.S. 138 (1983). There the speech at issue was an internal office
questionnaire that sought answers from co-employees about things like “office
morale” and “the level of confidence in supervisors.” Id. at 141. “[I]f released to
7
See Armstrong v. Thompson, 759 F. Supp. 2d 89, 95 (D.D.C. 2011).
8
Also beside the point is whether, as Mr. Armstrong contended at oral
argument, USDA was already aware of the information concerning the TIGTA
investigation through Mr. Armstrong and TIGTA‟s own disclosures. This has no
effect on whether Ms. Thompson‟s disclosures are protected by the First
Amendment.
18
the public,” the Supreme Court held, the questionnaire and answers “would convey
no information . . . other than the fact that a single employee [who circulated it] is
upset with the status quo.” Id. at 148. By contrast, Ms. Thompson‟s letters — in
Connick‟s distinguishing words — sought to inform USDA of “actual or potential
wrongdoing or breach of public trust” by a supervisory official, id., a disclosure
“touching upon a matter of public concern.” Id. at 147.
3.
For these reasons, to avoid summary judgment Mr. Armstrong had to show
that triable issues of fact existed as to Ms. Thompson‟s actual malice in sending the
letters. See Nader v. de Toledano, 408 A.2d 31, 50 (D.C. 1979) (“The question to
be resolved at summary judgment is whether plaintiff‟s proof is sufficient such that
a reasonable juror could find malice with convincing clarity . . . .”). In light of our
decision in Armstrong I, supra, he could not do so. The assertions of fact in Ms.
Thompson‟s letters, we held, were substantially true as a matter of law, 80 A.3d at
185, and the Supreme Court has “long held . . . that actual malice entails falsity.”
Air Wisconsin Airlines v. Hoeper, 134 S. Ct. 852, 861 (2014). For the rest, the
letters consisted of expressions of opinion that we concluded “were unverifiable
and therefore not actionable in defamation.” Id. at 187. The Supreme Court
19
similarly held in Milkovich v Lorain Journal Co., 479 U.S. 1 (1990), that “a
statement of opinion relating to matters of public concern which does not contain a
provably false factual connotation will receive full constitutional protection.” Id.
at 20. In sum, as a matter of law under the First Amendment, none of the
statements in Ms. Thompson‟s letters provided a basis for liability.
D.
Accordingly, we must reverse the judgment entered for Mr. Armstrong and
remand with directions for the trial court to enter judgment in favor of Ms.
Thompson.
So ordered.