Roeben v. BG Excelsior Ltd. P'ship
Annotate this Case
Download PDF
Cite as 2009 Ark. App. 646
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA08-1111
Opinion Delivered
RICHARD ROEBEN
APPELLANT
October 7, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[No. CV-08-882]
V.
BG EXCELSIOR LIMITED
PARTNERSHIP, THE PEABODY
LITTLE ROCK, TIM SNEED, and
KERRY SNELLGROVE
APPELLEES
HONORABLE JAMES MOODY, JR.,
JUDGE
AFFIRMED IN PART; REVERSED IN
PART
LARRY D. VAUGHT, Chief Judge
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
1
Cite as 2009 Ark. App. 646
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),1 adding Norma Wilcox, Tim Sneed, Kerry Snellgrove, and Brenda
Tutor as third-party defendants and alleging that these individuals defamed him by falsely
reporting that he had stolen property from the hotel or by republishing the false statement. BG
was not named as a third-party defendant, and no allegations of defamation were made against
it.
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
Rule 14(a) of the Federal Rules of Civil Procedure provides that a defending party
may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be
liable to it for all or part of the claim against it. Fed. R. Civ. P. 14(a).
1
2
Cite as 2009 Ark. App. 646
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 agediscrimination 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:
With respect to BG, and for the reasons argued at the Oral Argument and in BG’s
briefs, the Court holds that [Roeben’s] claims are barred by the applicable statute of
limitations.
With respect to BG, Tim Sneed, and Kerry Snellgrove, and for the reasons argued
at the Oral Argument and in the Defendants’ briefs, the Court holds that summary
judgment is appropriate on the merits of [Roeben’s] claims.
Specifically, the Court holds that there is no genuine issue of material fact with
respect to a necessary element of [Roeben’s] defamation claims; actual harm to
reputation proximately caused by the conduct of the Defendants. In the absence of proof
of reputational injury, proximately caused by the conduct of the Defendants, [Roeben]
cannot prevail on his defamation claim.
In addition, and as a separate and independent basis of its ruling, the Court holds
that there is no genuine issue of material fact with respect to another element necessary
to [Roeben’s] defamation claims: publication to a third party. A corporation cannot
publish a defamatory statement to itself, and [Roeben] has adduced no admissible
evidence to establish that the allegedly defamatory statements were communicated to a
third-party outside BG’s corporate sphere. In the absence of proof of publication to a
third party, [Roeben] cannot prevail on his defamation claim.
3
Cite as 2009 Ark. App. 646
In addition, and as a separate and independent basis of its ruling, the Court holds
that [with respect to BG and Tim Sneed] the allegedly defamatory statements were
subject to a qualified privilege. And statements concerning the termination of [Roeben]
occurred within the course of BG’s business and among its employees.
Roeben filed a timely notice of appeal from this order.
The applicable standard of review is as follows:
Summary judgment is appropriate when there are no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law. Once the moving party has
established a prima facie entitlement to summary judgment, the opposing party must
meet proof with proof and demonstrate the existence of a material issue of fact. On
appellate review, this court determines if summary judgment was appropriate based on
whether the evidentiary items presented by the moving party in support of the motion
leave a material fact unanswered. This court views the evidence in a light most favorable
to the party against whom the motion was filed, resolving all doubts and inferences
against the moving party. Our review focuses not only on the pleadings, but also on the
affidavits and other documents filed by the parties.
Ellis v. State Farm Bank, F.S.B., 2009 Ark. App. 569, at 3, ___ S.W.3d ____, ____ (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.2 The statute of limitations for defamation in the
form of slander is one year. Ark. Code Ann. § 16-56-104(3) (Repl. 2005). The statute begins to
run at the time of publication of the alleged slander. Milam v. Bank of Cabot, 327 Ark. 256, 262,
937 S.W.2d 653, 656 (1997). Roeben’s complaint, filed on January 24, 2008, alleged that the
slanderous statements were made on or about January 15, 2006. Because the complaint was filed
more than one year after the occurrence of the allegedly slanderous statements, Roeben’s
Because the only party to which the trial court granted summary judgment based on
the statute of limitations was BG, we do not address arguments on this issue as to any other
party.
2
4
Cite as 2009 Ark. App. 646
defamation claim against BG is barred by the statute of limitations.
Roeben argues that his claim against BG is not time barred pursuant to the Arkansas
savings statute.3 Specifically, he contends that the dismissal of his third-party complaint in
federal court on January 3, 2008, triggered the application of the savings statute, giving him one
additional year to re-file his defamation claim against BG. He claims that because his defamation
complaint against BG was filed in Pulaski County Circuit Court on January 24, 2008, it was
timely.
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
The Arkansas savings statute, found at Arkansas Code Annotated section
16-56-126(a)(1) (Repl. 2005), provides:
3
If any action is commenced within the time respectively prescribed in this act, in §§
16-116-101–16-116-107, in §§ 16-114-201–16-114-209, or in any other act, and the
plaintiff therein suffers a nonsuit, or after a verdict for him or her the judgment is
arrested, or after judgment for him or her the judgment is reversed on appeal or writ of
error, the plaintiff may commence a new action within one (1) year after the nonsuit
suffered or judgment arrested or reversed.
5
Cite as 2009 Ark. App. 646
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 the testimony of him and his wife 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 thought less of
Roeben. Finally, Roeben cites the testimony of BG employees that Roeben will face barriers in
securing employment in the hotel industry. Appellees counter by arguing that Roeben suffered
6
Cite as 2009 Ark. App. 646
no damages because Lipkins also testified that “. . . at no time . . . that [sic] I believe that Dick
Roeben was a thief.” Further, appellees argue that Roeben’s proof of “hypothetical” barriers in
obtaining employment in the hotel industry is nothing more than speculation and conjecture.
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 affect caused by defendant’s statement that plaintiff was having
7
Cite as 2009 Ark. App. 646
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).4 As such, we
reverse the trial court’s grant of summary judgment on the issue of damages as to Sneed and
In reversing summary judgment on the issue of damages, we are not relying upon
Roeben’s self-serving statement that he will face barriers in securing other employment in the
hotel industry or the testimony of BG employees Sherrise Stephens and Juanita Hogan, who
testified that Roeben would have difficulty finding employment in the hotel industry.
Stephens and Hogan did not provide specific testimony that other potential employers were
discouraged from hiring Roeben because of the alleged defamatory statement. See Addington v.
Wal-Mart, 81 Ark. App. 441, 455, 105 S.W.3d 369, 379 (2003) (affirming summary judgment
on issue of damages where there was no evidence presented, other than appellant’s assertion,
that his reputation was harmed by the defamation among those with whom he did business).
Further, Stephens and Hogan were not experts in the hospitality field. Owens, 356 Ark. at
642, 158 S.W.3d at 172 (affirming judgment in defamation claim on issue of damages, where
there was evidence from appellees and a nursing consultant, who testified that she would not
hire someone for a nursing home who had been reported for adult abuse or neglect).
4
8
Cite as 2009 Ark. App. 646
Snellgrove.
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 was Bergwalk’s employer, 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 18wheelers to haul it off.”
Sneed and Snellgrove, relying upon Ausler v. Arkansas Dep’t of Education, 245 F. Supp. 2d
9
Cite as 2009 Ark. App. 646
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.5 A qualified privilege is
recognized in many cases where the publisher and the recipient have a common interest, and the
communication is of a kind reasonably calculated to protect or further it. Navorro-Monzo v.
Hughes, 297 Ark. 444, 449–50, 763 S.W.2d 635, 637 (1989) (citing W. Keaton, Prosser and Keeton
on the Law of Torts, § 115 (5th ed. 1984)). It is a condition and qualification of the privilege that
the utterance must be exercised in a reasonable manner and for a proper purpose. NavorroMonzo, 297 Ark. at 450, 763 S.W.2d at 637. Therefore, if the person making the statement steps
outside the bounds of the privilege or abuses the privilege, the qualified privilege is lost. Id., 763
Because we have affirmed summary judgment as to BG on other grounds, we only
address Roeben’s argument as it relates to Sneed.
5
10
Cite as 2009 Ark. App. 646
S.W.2d at 637. The immunity does not extend to a publication of irrelevant defamatory
statements which have no relation to the interest entitled to protection. Id., 763 S.W.2d at 637.
The qualified privilege is lost if the publication is not made for the purpose of furthering the
common interest. Id., 763 S.W.2d at 637 (citing Restatement (Second) of Torts, § 603 (1977)).
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.
11
Cite as 2009 Ark. App. 646
12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.