IN THE
Court of Appeals of Indiana Rory Kerwood, FILED Appellant-Plaintiff Apr 10 2024, 8:56 am
CLERK v. Indiana Supreme Court Court of Appeals and Tax Court
Elkhart County Sheriff’s Department, Appellee-Defendant
April 10, 2024 Court of Appeals Case No. 23A-PL-2229 Appeal from the Elkhart Superior Court The Honorable Christopher J. Spataro, Judge Trial Court Cause No. 20D05-1906-PL-157
Opinion by Judge Brown Judges Riley and Foley concur.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 1 of 21 Brown, Judge.
[1] Rory Kerwood appeals from the trial court’s entry of summary judgment in
favor of the Elkhart County Sheriff’s Department. We affirm.
Facts and Procedural History
[2] On August 1, 2017, the trial court issued an order granting Kerwood’s petition
for expungement. The order stated Kerwood “was arrested and/or charged on
or about July 11, 2014 . . . for the offense of Impersonating a Law Enforcement
Officer, a Level 6 felony in multiple counts and Theft, a class A misdemeanor,”
the theft charge was dismissed, and the impersonation charges resulted in a jury
verdict of not guilty in October 2015. Appellant’s Appendix Volume V at 43.
The order stated that no information concerning the arrest or charges may be
retained in any state central repository or other system maintained by a local,
regional, or statewide law enforcement agency and that the records related to
the case shall be redacted and permanently sealed.
[3] On November 30, 2017, the Elkhart County Sheriff’s Department (the
“Sheriff’s Department”) received a report from loss prevention at a Walmart
regarding a radio which had been left in a cart. The radio “appeared to be a
police radio” and “had A227 written on it.” Appellant’s Appendix Volume III
at 4. Officer Eric Schuman was assigned to the call. Sergeant Adam Leeper,
the officer in charge, was informed that a video taken from a security camera
showed that the radio had been left by a person wearing a Concord Township
Fire Department (“Concord Fire”) shirt, and the officers contacted Concord
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 2 of 21 Fire Assistant Chief Sean Miller, who identified Kerwood as the person
wearing the shirt. Assistant Chief Miller indicated that Kerwood had been
recently hired as a volunteer, he was serving a probationary period, and during
that period he was not permitted to wear department-identifying clothing or
carry a radio when he was not on duty. According to Sergeant Leeper, “A227”
was “a unit number for then Sergeant Lanzen” with the Sheriff’s Department,
the officers contacted Sergeant Lanzen to check if he had his radio, he did have
his radio, and the concern was that the radio discovered at the Walmart had
been illegally obtained. 1 Id. Also on November 30, 2017, a meeting was held
at a Concord Fire station at which Kerwood, Assistant Chief Miller, Sergeant
Leeper, Officer Schuman, and other individuals were present. During the
meeting, Sergeant Leeper stated: “We have to be careful when it comes to you
because of your past.” Appellant’s Appendix Volume II at 147. Kerwood
asked “what history or past,” and Sergeant Leeper “said [his] arrest for the
police impersonation.” 2 Id. at 148. According to Kerwood, he was later forced
to resign from Concord Fire, and he signed a resignation letter dated May 28,
1 In his deposition, Kerwood stated that he had purchased the radio “from [his] deputy chief.” Appellant’s Appendix Volume II at 147. 2 In his deposition, when asked “[w]hy did you feel it necessary to raise the prior arrest of impersonation in this meeting,” Sergeant Leeper answered “[b]ecause he wanted to know why we were asking these questions, and I was just simply laying out the steps of our investigation that had lead [sic] us there.” Appellant’s Appendix Volume III at 7. When asked “[h]ow were you aware of the arrest for impersonation,” Sergeant Leeper said: “I heard about it through the grapevine, if you will, the law enforcement grapevine. Any time anyone gets arrested for police impersonation, it’s of note to all officers, because we don’t like that, and so that’s what I heard about it. That’s my only knowledge of it.” Id.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 3 of 21 2018. Kerwood later began a volunteer firefighter position at Kankakee
Township Fire Department (“Kankakee Fire”).
[4] At some point, Officer Schuman had a conversation with his father during
which he learned that Tom Thode was the Chief at Kankakee Fire. Officer
Schuman told his father: “This Rory Kerwood, they need to check him out.”
Appellant’s Appendix Volume III at 26. He may also have told his father to
“keep an eye out for him.” Id. at 46. He also told his father that Kerwood had
been arrested for impersonating a police officer and about Kerwood being
found in possession of a radio with police frequencies. 3 In August of 2018,
Officer Schuman had a phone conversation with Chief Thode during which
Officer Schuman stated that Kerwood “had been arrested for impersonating an
officer at some point,” id. at 71-72, and told him about the “incident where a
radio was found and it belonged to [Kerwood].” Id. at 47. Kankakee Fire
terminated Kerwood’s position as a volunteer firefighter. 4 Kerwood sought a
volunteer position with the Springfield Township Fire Department but was not
accepted due to its relationship with Kankakee Fire. He volunteered with the
3 Also, according to Captain Michael Culp with the Sheriff’s Department, Officer Schuman informed him that he had told his father “there were some character issues that could be concerning to . . . [Kankakee Fire].” Appellant’s Appendix Volume II at 219. 4 According to Kerwood, Chief Thode told him that, due to his police impersonation charges, his employment was being terminated. According to Chief Thode, Kerwood was terminated after he had three infractions “within 60 days of . . . his employment.” Appellant’s Appendix Volume III at 72. He testified the department’s policy was that, “if you’re not certified through LaPorte County EMS as a first responder, you cannot respond to medical calls,” “the final infraction where we decided that . . . he was going to be relieved of his duties was . . . there was a medical call” and “what he had done is he had gone to the fire station, got in the rescue truck and was driving single . . . to the scene of a medical call in which he was not certified to do driving and/or responding to a medical call.” Id. He did not remember the first and second infractions.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 4 of 21 New Carlisle Fire Department (“New Carlisle Fire”) but, after two or three
months, New Carlisle Fire received a letter from Kankakee Fire stating that he
was not allowed to respond to any mutual aid calls which originated in
Kankakee Township, and New Carlisle terminated his position.
[5] In June 2019, Kerwood filed a complaint alleging that he was found not guilty
for a prior criminal charge, the court ordered the Sheriff’s Department to
expunge and seal all records of the charge and arrest, the Sheriff’s Department
failed to comply with the order, employees of the Sheriff’s Department
disseminated information about his prior arrest, and as a result he was
terminated from Kankakee Fire. In August 2021, the Sheriff’s Department filed
a motion for judgment on the pleadings. On November 5, 2021, the court
issued an order stating that it would treat the Sheriff’s Department’s motion as a
Trial Rule 12(B)(6) motion, finding Kerwood did not have an implied private
right of action for the Sheriff’s Department’s alleged failure to properly expunge
or seal his records, stating “common law remedies exist and [the Sheriff’s
Department was] not entitled to judgment on the pleadings on this issue,” and
granting the Sheriff’s Department’s motion as to any claims for a private cause
of action based on an alleged violation of a court order of expungement and
denying the motion as to all other claims. Appellant’s Appendix Volume II at
86.
[6] On November 14, 2021, Kerwood filed an amended complaint alleging Count
I, defamation by libel; Count II, defamation by slander; Count III, tortious
interference with a business relationship; and Count IV, negligent training,
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 5 of 21 supervision, and retention. In April 2023, the Sheriff’s Department filed a
motion for summary judgment on all counts. Kerwood filed a response. On
August 1, 2023, the court held a hearing. On August 28, 2023, the court issued
a fifteen-page order granting the Sheriff’s Department’s motion for summary
judgment.
Discussion
[7] Kerwood asserts the trial court erred in concluding he did not have a private
right of action against the Sheriff’s Department and that it erred in entering
summary judgment on the claims in his amended complaint.
A. No Implied Right of Action
[8] Kerwood asserts that a private right of action is implied in the expungement
statute. He argues the statute “only contains an enforcement mechanism
against those who have directly discriminated against the person because of a
prior expunged record” and “[t]here is no independent enforcement mechanism
built into the statute for situations experienced by [him] wherein a law
enforcement agency tasked with expunging the records fails to abide by the
Order and as a result causes harm.” Appellant’s Brief at 15. The Sheriff’s
Department argues there is no private right of action under the expungement
statute and “[t]he expungement statutes provide one remedy, an infraction, and
expand the ability of the courts to provide a remedy by bringing third parties
under a court’s contempt power.” Appellee’s Brief at 18.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 6 of 21 [9] Whether a statute confers a private right of action is a question of law that we
review de novo. Shirey v. Flenar, 89 N.E.3d 1102, 1105 (Ind. Ct. App. 2017)
(citing Doe # 1 v. Ind. Dep’t of Child Servs., 81 N.E.3d 199, 201 (Ind. 2017)). The
parties do not disagree that the expungement provisions do not expressly
provide a private right of action. Rather, Kerwood asserts a private right of
action is implied. We examine the language of the statute to determine whether
the legislature intended to allow private actions. See id. (citing Doe # 1, 81
N.E.3d at 202 (explaining that whether a private cause of action exists is
“purely a question of legislative intent”)). “[W]e must be reluctant to find an
implied right of action.” Id. “Our General Assembly ‘often creates rights of
action using clear language,’ so its omission of such language is evidence that it
did not intend to create a private remedy.” Id. (quoting Doe # 1, 81 N.E.3d at
202 (citing statutes that expressly establish rights of action)). “When a statute
expressly provides one enforcement mechanism, courts may not engraft
another.” Doe # 1, 81 N.E.3d at 204. “Affirming this principle, Indiana courts
find no private right of action where the General Assembly has provided
independent enforcement—even if only an infraction.” Id. (citing Estate of
Cullop v. State, 821 N.E.2d 403, 409 (Ind. Ct. App. 2005) (no right of action
where a statute already provided independent enforcement through a class C
infraction)). See also Coons by Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind. Ct.
App. 1991) (“[W]hen legislation expressly provides a particular remedy or
remedies, courts should not expand the coverage of the statute to subsume other
remedies. When a statute limits a thing to be done in a particular mode, it
includes the negative of any other mode.”) (citing Nat’l R.R. Passenger Corp. v. Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 7 of 21 Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 459, 94 S. Ct. 690, 693-694 (1974)
(citation and quotations omitted)), reh’g denied; Borne v. Northwest Allen Cnty. Sch.
Corp., 532 N.E.2d 1196 (Ind. Ct. App. 1989) (no private cause of action where
statutory scheme provided a criminal penalty for the knowing failure to report
suspected child abuse), trans. denied.
[10] Ind. Code § 35-38-9-10(b) provides that it is unlawful discrimination for any
person to suspend, expel, refuse to employ, refuse to admit, refuse to grant or
renew a license, permit, or certificate necessary to engage in any activity,
occupation, or profession, or otherwise discriminate against any person because
of a conviction or arrest record expunged or sealed under the chapter.
[11] Ind. Code § 35-38-9-10(f) provides:
Any person that discriminates against a person as described in subsection (b) commits a Class C infraction and may be held in contempt by the court issuing the order of expungement or by any other court of general jurisdiction. Any person may file a written motion of contempt to bring an alleged violation of this section to the attention of a court. In addition, the person is entitled to injunctive relief.
Further, a public employee who knowingly or intentionally discloses
confidential information commits a class A infraction carrying a fine of up to
$10,000. See Ind. Code § 5-14-3-10(a); Ind. Code § 34-28-5-4(a).
[12] The Indiana legislature, in enacting Ind. Code § 35-38-9-10(f), set forth
mechanisms to enforce the expungement provisions, and we “may not engraft
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 8 of 21 another.” See Doe #1, 81 N.E.3d at 204. We cannot infer that the Indiana
legislature intended to create a private right of action beyond the mechanisms in
Ind. Code § 35-38-9-10(f). See id. at 202-204 (addressing whether, in enacting
another statute, Ind. Code § 31-33-18-2, the General Assembly intended for the
statute to create a right of action despite not saying so expressly; observing the
statute contained enforcement mechanisms, including Ind. Code § 5-14-3-10(a);
and concluding “our General Assembly might choose to impose a right of
action,” “[b]ut separation of powers requires us to leave that decision to the
legislature, rather than make it ourselves under the guise of statutory
interpretation,” and “[t]hus, we cannot infer that the General Assembly
intended [Ind. Code § 31-33-18-2] to impose civil liability”). 5 Reversal on this
basis is not warranted.
B. Summary Judgment on Amended Counts
[13] Kerwood contends the trial court erred in entering summary judgment on his
claims of defamation, tortious interference with a business relationship, and
negligent training, supervision, and retention. The party moving for summary
judgment bears the initial burden of making a prima facie showing that there
5 To the extent Kerwood asserts that a failure by the Sheriff’s Department to comply with the expungement order did not constitute discrimination but an improper release of information and thus that the enforcement mechanisms in Ind. Code § 35-38-9-10(f) are not directly applicable, he does not argue that he was not permitted to file a motion for contempt or seek injunctive relief related to any improper failure to expunge or seal records or that Ind. Code § 5-14-3-10(a) would be inapplicable. In any event, the legislature elected to set forth the enforcement mechanisms in Ind. Code § 35-38-9-10(f), and we cannot conclude, keeping in mind our reluctance to infer an unwritten intent, that the legislature intended to imply that a private right of action exists beyond the mechanisms set forth in Ind. Code § 35-38-9-10(f) with respect to the release of expunged or sealed records.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 9 of 21 are no genuine issues of material fact and that it is entitled to judgment as a
matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary
judgment is improper if the moving party fails to carry its burden, but if it
succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. We construe
all factual inferences in favor of the nonmoving party. Id. “Unsworn
statements and unverified exhibits do not qualify as proper Rule
56 evidence.” Stafford v. Szymanowski, 31 N.E.3d 959, 964 (Ind. 2015) (citation
omitted).
1. Defamation Claims
[14] “To establish a claim of defamation, a plaintiff must prove the existence of a
communication with defamatory imputation, malice, publication, and
damages.” Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010)
(citations and quotations omitted). A statement is defamatory if it tends “to
harm a person’s reputation by lowering the person in the community’s
estimation or deterring third persons from dealing or associating with the
person.” Id. (citation omitted). “One type of defamation action, alleging
defamation per se, arises when the language of a statement, without reference to
extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a
loathsome disease, (3) misconduct in a person’s trade, profession, office, or
occupation, or (4) sexual misconduct.” Id. (citations omitted). “In contrast, if
the words used are not defamatory in themselves, but become so only when
understood in the context of extrinsic evidence, they are considered defamatory
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 10 of 21 per quod.” Id. (citation omitted). “In actions for defamation per se, damages are
presumed, but in actions for defamation per quod, a plaintiff must prove
damages.” Id. “Whether a communication is defamatory is a question of law
for the court, unless the communication is susceptible to either a defamatory or
non-defamatory interpretation—in which case the matter may be submitted to
the jury.” Baker v. Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009).
[15] “For a statement to be actionable, it must be clear that it contains objectively
verifiable fact regarding the plaintiff.” Sasser v. State Farm Ins. Co., 172 N.E.3d
313, 321 (Ind. Ct. App. 2021) (citations omitted), trans. denied. “If the speaker is
merely expressing his subjective view, interpretation, or theory, then the
statement is not actionable.” Id. “Just because words may be insulting, vulgar
or abusive words do[] not make them defamatory.” Id. A false assertion of fact
is required for a statement to be actionable as defamation. Id. See also J.-Gazette
Co. v. Bandido’s, Inc., 712 N.E.2d 446, 457 (Ind. 1999) (to impose liability for
defamation, there must be a false statement of fact); Melton v. Ousley, 925
N.E.2d 430, 437 (Ind. Ct. App. 2010) (“To impose liability for defamation, a
false statement of fact is required. But truth is a complete defense in civil
actions for defamation.”) (citations omitted); Ind. Code § 34-15-1-2 (“In an
action for libel or slander, the defendant may allege . . . the truth of the matter
charged as defamatory . . . .”). “False defamatory words, if written and
published, constitute a libel; if spoken, a slander.” Hall v. Shaw, 147 N.E.3d
394, 407 (Ind. Ct. App. 2020) (citing Branaman v. Hinkle, 137 Ind. 496, 502, 37
N.E. 546, 548 (1894) (citation omitted)), trans. denied.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 11 of 21 [16] With respect to his claim of libel, Kerwood alleged in Count I of his amended
complaint that the Sheriff’s Department “maintained written arrest record
information that were [sic] allowed to be disseminated by anyone accessing
[his] criminal background maintained [within] the [Sheriff’s Department]
records” and “[t]he records had been ordered expunged on or about August 1,
2017, and therefore, [the Sheriff’s Department] knew the records were false as
disseminated.” Appellant’s Appendix Volume II at 89-90. In support of its
motion for summary judgment, the Sheriff’s Department argued there was no
evidence that any of its employees disseminated Kerwood’s criminal history
from its databases. In response, Kerwood argued “[t]he records that were not
properly expunged, were utilized by officers and disseminated to others
conveying a false impression that [he] had engaged in wrongful and criminal
acts.” Appellant’s Appendix Volume III at 142. He also argued a certain
“pass-down report” stated he had a history of police impersonation. 6 Id.
[17] In its summary judgment order, the trial court found that “Kerwood does not
identify what information retained in the [Sheriff’s Department’s] database was
defamatory,” “Kerwood’s criminal background information, likely consisting of
6 The “pass-down report,” dated November 30, 2017, stated:
Item Found 4024 Elkhart Rd- S59 reported finding a police radio at Walmart. Radio had A227s unit number written on it. A227 was found to have his radio. Investigation found it belonged to Rory Kerwood who has [a] history of police impersonation and is currently a cadet with Concord Fire. [Kerwood] provided documentation from FCC showing he is legally allowed to carry it, although CFD advised he cannot carry per their regulations. Radio taken to see if it ever belonged to us 10-25 (A277, A245, A272) Appellant’s Appendix Volume V at 31.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 12 of 21 arrest, booking, and charging information, is both objectively verifiable and
truthful information,” “Kerwood was, in fact, arrested and charged with
impersonating a law enforcement officer,” and “Kerwood has not shown that
there were any written, objectively verifiable, and false facts contained within
his records ordered expunged from the [Sheriff’s Department’s] records.”
Appellant’s Appendix Volume V at 179-180. It also found the “purported pass-
down report” met “neither the Trial Rule 56(E) requirements for affidavits, nor
the Trial Rule 56(C) requirements for admissibility of other designated
evidence.” Id. at 180. Kerwood did not present an affidavit regarding the
authenticity of the “pass-down report” or point to designated evidence showing
the report was published. Sergeant Leeper and Officer Schuman did not
indicate that they learned of Kerwood’s prior arrest from the report. Sergeant
Leeper indicated that he learned about Kerwood’s arrest for impersonation
“through the . . . law enforcement grapevine,” Appellant’s Appendix Volume
III at 7, and Officer Schuman indicated that he learned of the charges against
Kerwood from the media. Moreover, any written information in one of the
Sheriff’s Department’s databases stating that Kerwood was arrested and
charged with impersonating an officer did not constitute a false statement or
false assertion of fact. The court did not err in entering summary judgment in
favor of the Sheriff’s Department on Count I.
[18] With respect to his claim of slander, Kerwood alleged in Count II that
employees of the Sheriff’s Department made false statements implying he
engaged in criminal conduct or misconduct in his employment. In support of
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 13 of 21 its summary judgment motion, the Sheriff’s Department argued that Officer
Schuman’s warnings to “keep an eye out” or “check him out” and Sergeant
Leeper’s warning “we have to be careful” were not defamatory because they did
not assert objectively verifiable facts about Kerwood. Appellant’s Appendix
Volume III at 113. It argued Sergeant Leeper and Officer Schuman’s mentions
of Kerwood’s arrest for impersonation were true. In response, Kerwood argued
the statements “clearly imply Kerwood engaged in criminal activity which is
false.” Id. at 146. He argued the statement “because of your past” implied that
he engaged in provable acts in his past and the statement “they need to check
him out” implied provable facts of a negative nature. Id. at 148.
[19] The trial court found that Sergeant Leeper’s alleged statement “[w]e have to be
careful of you because of your past” was made while investigating the radio
found in a shopping cart, Sergeant Leeper clarified that he was referring to
Kerwood’s prior impersonation arrest, the reference to Kerwood’s arrest was an
objectively verifiable fact that was true, and the remainder of the statement was
a subjective view and not defamatory. Appellant’s Appendix Volume V at 181.
It also found Sergeant Leeper’s communications were shielded from liability by
Ind. Code § 34-13-3-3(a)(8). It found Officer Schuman’s alleged statements
about Kerwood’s arrest and finding the radio were true and his alleged
statements regarding the need to “keep an eye out for him” and “to check him
out” were “the subjective view, interpretation, or theory of [Officer] Schuman”
and not statements that contain objectively verifiable facts. Appellant’s
Appendix Volume V at 182.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 14 of 21 [20] On appeal, Kerwood argues that, in stating “[w]e have to be careful with you
because of your past,” Sergeant Leeper “directly implied that [he] believed
[Kerwood] stole the radio because of [his] past.” Appellant’s Brief at 21. He
also argues that, at the time of the meeting with Concord Fire, Sergeant Leeper
“was no longer enforcing any law” because “he confirmed with Lanzen that
[the radio] had not been stolen” and thus Ind. Code § 34-13-3-3(a)(8) was not
applicable. Id. at 23. He argues that Officer Schuman’s statements, in context,
were intended to convey that he committed criminal conduct. The Sheriff’s
Department argues Officer Schuman’s statements to Chief Thode were true and
that it was immune from any claim arising from Sergeant Leeper’s statement as
he was investigating whether the radio was stolen.
[21] The designated testimony reveals that a meeting was held at a Concord Fire
station at which Kerwood, Assistant Chief Miller, Sergeant Leeper, and Officer
Schuman were present. During his deposition, Kerwood was asked about the
reason for the meeting, and he answered: “I was interrogated about why I had
this radio and wanting to know if it came from the sheriff’s department. They
believed it was stolen.” Appellant’s Appendix Volume II at 147. He stated “I
don’t have any problem with them investigating that” and “I agree that they
were investigating a stolen radio, yes.” Id. He stated that Sergeant Leeper said
“[w]e have to be careful when it comes to you because of your past.” Id. When
asked “[h]e left the term ‘past’ ambiguous,” Kerwood testified: “It was history
or past. And when I asked what history or past, he said the -- my arrest for the
police impersonation.” Id. at 148. To the extent Sergeant Leeper’s statement
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 15 of 21 referred to Kerwood’s arrest for police impersonation, the statement did not
constitute a false assertion of fact. We agree with the trial court that the
remainder of the statement, including “[w]e have to be careful,” was Sergeant
Leeper’s subjective view. Similarly, Officer Schuman’s statements to his father
and later to Chief Thode regarding Kerwood’s prior arrest for police
impersonation and the discovered radio did not constitute false statements or
false assertions of fact, and his statements to his father that Kankakee Fire
“need[ed] to check [Kerwood] out,” Appellant’s Appendix Volume III at 26, or
“keep an eye out for him,” id. at 46, merely reflected his subjective view.
[22] The court also found Sergeant Leeper’s communications were shielded from
liability under Ind. Code § 34-13-3-3(a)(8). Ind. Code § 34-13-3-3(a) provides
“[a] governmental entity or an employee acting within the scope of the
employee’s employment is not liable if a loss results from . . . (8) The adoption
and enforcement of or failure to adopt or enforce . . . a law (including rules and
regulations) . . . unless the act of enforcement constitutes false arrest or false
imprisonment.” The trial court rejected Kerwood’s assertion that Sergeant
Leeper was not acting in a law enforcement capacity when he attended the
meeting. We agree with the trial court. Sergeant Leeper testified “[w]e called
Sergeant Lanzen to ask him if he had his radio, he did, so then the thought was
maybe he had switched it out for a different one but his unit number was still
written on this one, and if that was the case, if it was our radio, I wasn’t aware
that we ever sold radios to the public, so my concern was that it had been
illegally obtained.” Appellant’s Appendix Volume III at 4. Later, when asked
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 16 of 21 “at that time when you called on Mr. Kerwood, did you have any reason to
believe that the property was stolen,” Sergeant Leeper answered affirmatively,
and when asked “[w]hat was your reason,” he replied: “Well, the fact that it
had what would be our unit number on it. I didn’t have any indication of any
other agencies in the area that would have a unit number like that, and while
Sergeant Lanzen had his current radio, it’s not out of the question that he could
have needed to swap his radio out for a different one, and this was one that he
used to have.” Id. at 6. In his deposition, Kerwood agreed that Sergeant
Leeper was investigating whether the discovered radio had been stolen. The
entry of summary judgment on Count II was proper.
2. Tortious Interference with a Business Relationship
[23] Kerwood argues the court erred in granting summary judgment on his claim of
tortious interference with a business relationship. The elements of tortious
interference with a business relationship are: (1) the existence of a valid
relationship; (2) the defendant’s knowledge of the existence of the relationship;
(3) the defendant’s intentional interference with that relationship; (4) the
absence of justification; and (5) damages resulting from defendant’s wrongful
interference with the relationship. McCollough v. Noblesville Sch., 63 N.E.3d 334,
344 (Ind. Ct. App. 2016) (citing Felsher v. Univ. of Evansville, 755 N.E.2d 589,
598 n.21 (Ind. 2001)). Additionally, the Indiana Supreme Court has held that
“this tort requires some independent illegal action.” Id. (citing Brazauskas v. Fort
Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003)). Defamation,
however, “does not constitute illegal conduct for the purpose of determining
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 17 of 21 whether one tortiously interfered with the business relationship of another.” Id.
(citing Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 961 (Ind. Ct. App.
2014)). “The lack of justification is established only if the interferer acted
intentionally, without a legitimate business purpose, and the breach is malicious
and exclusively directed to the injury and damage of another.” Miller, 11
N.E.3d at 961 (citation and quotations omitted).
[24] Kerwood alleged in Count III that Officer Schuman, acting as a representative
of the Sheriff’s Department, made false statements to his employer with the
intent to interfere with the business relationship between him and Kankakee
Fire. The Sheriff’s Department argued that Kerwood did not identify an
independent illegal action by Officer Schuman and that Officer Schuman’s
communication with Chief Thode was justified. Kerwood argued it is
reasonable to infer that Officer Schuman accessed the Sheriff’s Department’s
records “in violation of the expungement statute to learn of [his] impersonation
charges” and “[t]his would constitute an illegal act.” Appellant’s Appendix
Volume III at 156-157. The court found that Officer Schuman’s statements
about Kerwood’s arrest and the radio incident were historical facts and that the
Sheriff’s Department was not liable for tortious interference in connection with
Officer Schuman’s conversation with Chief Thode. It found “there is no
evidence the Sheriff’s failure to fully expunge played a role in achieving Eric
Schuman’s purported end of tortiously interfering in Kerwood’s employment
with [Kankakee Fire], and cannot constitute the independent illegal action
necessary to support liability for that tort.” Appellants Appendix Volume V at
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 18 of 21 185. It also found that Officer Schuman’s communications to Chief Thode
were justified, “Kerwood was in a public safety role as a volunteer firefighter,”
and Officer Schuman, “as a police officer with a duty to protect and serve the
public, had a legitimate, non-malicious interest in making sure public safety
employers are aware of their employees’ backgrounds.” Id. at 186.
[25] Kerwood argues that Officer Schuman’s statements to Chief Thode, in context,
were intended to convey wrongful conduct on his part and thus were not
truthful, that “[a]ccessing and using the information that had been ordered
expunged constitutes an illegal act on the part of the [Sheriff’s Department] for
failing to comply with the statute,” and that “[t]here was no justification for
Schuman to go to [his] employer other than to maliciously interfere with his
job.” Appellant’s Brief at 28-29. The Sheriff’s Department maintains Officer
Schuman’s statements were justified and Officer Schuman committed no illegal
act to support the claim.
[26] We have found that Officer Schuman’s statements to Chief Thode regarding
Kerwood’s prior arrest for police impersonation and the discovered radio did
not constitute false statements or false assertions of fact. Further, defamatory
statements do not constitute illegal conduct for purposes of a claim for tortious
interference with a business relationship. See McCollough, 63 N.E.3d at 344.
Officer Schuman stated that he learned of the charges against Kerwood for
impersonating an officer from the media, and Kerwood did not designate
evidence showing that Officer Schuman accessed records related to him at the
Sheriff’s Department. Sergeant Leeper stated that he learned about Kerwood’s
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 19 of 21 arrest for impersonation “through the . . . law enforcement grapevine.”
Appellant’s Appendix Volume III at 7. The Sheriff’s Department did not
commit an independent illegal act for purposes of a claim for tortious
interference with a business relationship. The court did not err in granting
summary judgment in favor of the Sheriff’s Department on Count III.
3. Negligent Training, Supervision, and Retention
[27] Finally, Kerwood argues the court erred in entering summary judgment on his
claim of negligent training, supervision, and retention. Count IV of his
amended complaint alleged the Sheriff’s Department failed to properly train
and supervise its employees in protecting confidential and expunged records.
The Sheriff’s Department argued it had immunity under Ind. Code § 34-13-3-
3(a)(7). The trial court found that the Sheriff’s Department’s employees were
acting within the scope of their employment and that the Sheriff’s Department
had immunity under Ind. Code § 34-13-3-3(a)(7) and common law with respect
to Count IV. On appeal, Kerwood argues that, “while Schuman was acting
under the authority of the [Sheriff’s Department], he was not acting within the
scope of his employment” and the Sheriff’s Department “was negligent in
hiring Schuman and failed to properly train its employees.” Appellant’s Brief at
31.
[28] Ind. Code § 34-13-3-3(a) provides that “[a] governmental entity or an employee
acting within the scope of the employee’s employment is not liable if a loss
results from the following: . . . (7) The performance of a discretionary function .
. . .” The employment and supervision of employees in governmental offices is
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 20 of 21 a discretionary function. Foster v. Pearcy, 270 Ind. 533, 538, 387 N.E.2d 446,
450 (1979). We conclude that Ind. Code § 34-13-3-3(a)(7) applied to Kerwood’s
claim that the Sheriff’s Department did not properly train and supervise its
employees with respect to the protection of expunged or sealed records and that
the court did not err in entering summary judgment in favor of the Sheriff’s
Department on Count IV of Kerwood’s amended complaint.
[29] For the foregoing reasons, we affirm the trial court.
[30] Affirmed.
Riley, J., and Foley, J., concur.
ATTORNEY FOR APPELLANT Amy D. Griner Griner Legal, LLC Lakewood, Colorado
ATTORNEYS FOR APPELLEE Michael F. DeBoni Nathaniel M. Jordan Adrian D. Bottomley Yoder Ainlay Ulmer & Buckingham, LLP Goshen, Indiana
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 21 of 21