Indiana Court Sets Aside $250K Default Judgment in Lawyer's Libel Case Related to "Scathing Google Review"

From Thursday's decision in Gillikin v. Mattingly, decided by Indiana Court of Appeals Chief Judge Robert Altice, joined by Judges Rudolph Pyle and Mary DeBoer:

Amy Gillikin appeals the trial court's denial of her motion to set aside a $250,000 default judgment entered against her for defamation, which was based on a scathing Google review that she posted online about Janice Mandla Mattingly and Mattingly's law firm, Janice Mandla Mattingly, P.C., D/B/A Carmel Family Law (collectively, Mattingly)….

In June 2024, Mattingly and Gillikin did not personally know each other, but Mattingly represented the former spouse of Gillikin's fiancé in a pending legal matter involving child custody and parenting time. Around the middle of that month, Gillikin posted a review on Mattingly's Google review page.

In the post, Gillikin described Mattingly as a corrupt attorney and a monster, who exploits abused children for her own monetary gain, and who would soon be disbarred. Gillikin suggested that Mattingly colludes with the Hamilton County magistrates, among others, and that Mattingly knows that her clients continue to abuse their children. She concluded her post: "We pray that the Attorney General can stop this racket before anymore children are affected by her unethical conduct." …

Mattingly got a default judgment against Gillikin, because Gillikin didn't timely respond to the lawsuit. But the appellate court concluded that the trial court should have set aside the judgment:

We first address whether Gillikin alleged a meritorious defense to the defamation action. Her defense was that the statements she made in the post were true, and she testified as such and that she looked forward to proving it all true at a trial on the merits. When she attempted to provide the basis for her belief that the statements were true, she was cut off by Mattingly with an improper hearsay objection and then the court redirected the parties to Gillikin's procedural failure to respond to the complaint.

In any case, Gillikin asserted a meritorious defense, as "[t]ruth is an absolute defense to a claim of defamation." And her testimony, despite its self-serving nature, was sufficient to clear the low bar of making a prima facie showing of a meritorious defense. Contrary to Mattingly's claim on appeal, Gillikin was not required at this stage to provide evidence that proved the truth of the defamatory statements.

We now turn to Gillikin's claim that the trial court abused its discretion by refusing to set aside the default judgment based on T.R. [Rule of Trial Procedure] 60(B)(8)…. Our Supreme Court has cautioned:

[T]he important and even essential policies necessitating the use of default judgments—maintaining an orderly and efficient judicial system, facilitating the speedy determination of justice, and enforcing compliance with procedural rules—should not come at the expense of professionalism, civility, and common courtesy. An extreme remedy, a default judgment is not a trap to be set by counsel to catch unsuspecting litigants and should not be used as a gotcha devi[c]e when an email or even a phone call to the opposing party inquiring about the receipt of service would prevent a windfall recovery and enable fulfillment of our strong preference to resolve cases on their merits….

Here, just over a month after Gillikin posted the allegedly defamatory Google review and only twenty-five days after service of the complaint and summons, Mattingly sought a default judgment against Gillikin and damages of $250,000. This was the quintessential gotcha maneuver, which worked when the very next day the trial court granted Mattingly's motion and awarded $250,000 without holding a hearing.

Gillikin quickly sought to set aside the judgment, filing her motion twelve days after the default judgment was entered. At the hearing on Gillikin's motion, Gillikin testified that everything she stated in the review was a fact, thus asserting the meritorious defense of truth. Gillikin also challenged the amount of damages and the fact that a hearing was not held to determine the reasonableness of the $250,000 requested by Mattingly in the motion for default judgment. Gillikin argued that because the damages sought by Mattingly were not liquidated or for a sum certain, the trial court should have held a hearing on damages. See Allstate Ins. Co. v. Love (Ind. Ct. App. 2011) (holding that because damages were unliquidated—not a sum certain or able to be reduced to fixed rules and mathematical precision—trial court erroneously entered the $225,000 damages award along with the default judgment without holding a damages hearing); Stewart v. Hicks (Ind. Ct. App. 1979) (affirming, on the basis of T.R. 60(B)(8), trial court's setting aside of $50,000 award entered in a default judgment without a hearing where damages were unliquidated).

Given the meritorious defense, the magnitude of the damages award issued without a hearing, the promptness in which Gillikin sought to set aside the default judgment, and the lack of any demonstrated prejudice to Mattingly, we hold that the trial court abused its discretion by refusing to set aside the default judgment on equitable grounds under T.R. 60(B)(8). Accordingly, we reverse the trial court's order denying the motion to set aside the default judgment, instruct the trial court to vacate the default judgment, and remand for further proceedings before a different judicial officer, as requested by Gillikin.

{While we do not agree with Gillikin that Magistrate [Erin] Weaver was constitutionally required to sua sponte recuse herself, we observe that some of Magistrate Weaver's actions during the very brief hearing were problematic. She abruptly stopped Gillikin from presenting evidence related to excusable neglect, prevented inquiry into the reasonableness of the damages award, and conducted a sua sponte Google search of the alleged defamatory statement during the hearing.}

Nathan Vining represents Gillikin.

Comments

[SRG2]

Sounds like an attempted stitch-up by the trial court.

[Life of Brian]

And as the opinion noted, courts generally save default judgments for a last resort. Granting a $250k motion for default that was jammed in barely 30 days following the offending action itself, much less granting it in 24 hours sans hearing, might not have been the pitch-perfect play in a case involving an allegation that the attorney and magistrates were working hand in glove.

[Stupid Government Tricks]

Makes me wonder if Mattingly deserved that nasty review, and another one to follow.

[LawTalkingGuy]

Maybe. But it’s also pretty common for some judges to quickly take any opportunity to remove a case from their docket to keep their numbers low. There’s a decent possibility there are a lot of defaults granted and dismissals granted by that judge the second it appears technically allowed. Bad judging obviously, but not necessarily openly corrupt.

[David Nieporent]

Admittedly I practice mostly in federal court (and never in any court in Indiana), but I have never seen a default judgment granted within 24 hours. It's hard to get anything but, "I need an adjournment of tomorrow's conference because I'm in the hospital" granted with that short a turnaround.

It's possible that this judge just literally rubber stamps every such application, but given the other irregularities noted by the court, I wouldn't be so quick to assume that.

[LawTalkingGuy]

I have some experience with some state court judges (in a state next door to Indiana so YMMV) who are so obsessed with their docket numbers that they make sure anything dispositive of a case is processed very quickly, whether it’s a default, a dismissal, or a summary judgment.

I also wouldn’t be surprised by favoritism or collusion as alleged by the defendant here. But it strikes me as sadly common that default judgments are rubber stamped.

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[santamonica811]

"I will not buy this record. It is scratched."
"My hovercraft . . . is full of eels."

[Jack Jordan]

The plaintiff, the trial court and the court of appeals apparently failed to see the bigger picture and apply the appropriate legal standard. Truth is a defense, but a far greater truth is that the plaintiff must prove facts establishing HOW criticism was false. That greater truth necessarily is more important when a person is being criticized for purportedly violating his oath to support our Constitution ("corrupt attorney" who maybe "colludes with the Hamilton County magistrates, among others").

Every attorney who practices law before any court is an officer of such court, and regarding all conduct as such court officer he necessarily acknowledged (as Article VI requires) that his first, foremost and constant duty is "to support" our "Constitution." The criticism of any officer of a court for his conduct as an officer of the court clearly is protected by our Constitution and SCOTUS precedent construing it.

New York Times Co. v. Sullivan in 1964 did not focus only on "actual malice." It focused on the plaintiff's burden to prove facts to show how criticism was "false." This is crucial because people who seek to attack and undermine our freedom of speech actually try to deceive people about the significance of the words "reckless disregard for the truth."

Judges, lawyers and law professors far too often presume or pretend that the words "reckless disregard for the truth" somehow can shift the burden of proof onto the speaker to prove the speech was true. Such presumption or pretense is exactly what SCOTUS unanimously said in Sullivan was unconstitutional.

"The constitutional guarantees require" a "federal rule that prohibits a public official from recovering damages" unless he proves the statement was a "falsehood." "A rule compelling the critic" to "guarantee the truth of all his factual assertions—and to do so on pain of libel judgments virtually unlimited in amount—leads" to "self-censorship." "Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker."

Mere months after unanimously issuing Sullivan, SCOTUS unanimously issued Garrison v. Louisiana in 1964. In Garrison, SCOTUS re-emphasized its emphasis in Sullivan that “speech concerning public affairs” is “the essence of self-government,” and it “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.”

Garrison (an attorney who was actually employed by the government) publicly stated eight judges were at least inexcusably lazy and he publicly implied they might be criminally corrupt. Even so, SCOTUS emphasized that the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including judges’ “dishonesty, malfeasance, or improper motivation.”

“Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” factual “statements” that have been proved to be “false” may be punished with “either civil or criminal sanctions.” Our Constitution “absolutely prohibits” any content-based “punishment of truthful criticism” of any public servant’s public service.

The foregoing constitutional standard protects attorneys who criticize the official conduct of judges. It also should be acknowledging as protecting people who criticize the conduct of attorneys performed as officers of a court.

[Hvacengineer]

Jack, are you licensed in Hamilton County Indiana? Could use some legal help, I too have gone up against this Magestrate and judge combo.

Mattingly and the judge are also Facebook friends.