Victoria Robinson v. 21st Century Charter School at Gary, Angela West, in her official and individual capacity, Dana (Johnson) Teasley, in her official and individual capacity (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 31, 2018
• Docket: 45A04-1710-CT-2441
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 5:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Brenda J. Marcus Alexandra M. Curlin Merrillville, Indiana Curlin & Clay Law Association of Attorneys Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Victoria Robinson, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 45A04-1710-CT-2441 v. Appeal from the Lake Superior Court 21st Century Charter School at The Honorable Gary, Angela West, in her Bruce D. Parent, Judge official and individual capacity, Trial Court Cause No. Dana (Johnson) Teasley, in her 45D04-1202-CT-65 official and individual capacity, Board of Directors of 21st Century Charter Schools, and Greater Educational Opportunities Foundation, Appellees-Plaintiffs.

Kirsch, Judge. Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 1 of 46 [1] Victoria Robinson (“Robinson”), an office manager with 21st Century Charter

School at Gary (“the School”), was fired from her position in March 2009, after

the School found that public funds under Robinson’s control were missing. In

July 2010, the Indiana Attorney General filed suit against Robinson to recover

the missing public funds. In August 2012, Robinson filed a separate, but

related, ten-count amended complaint against the School; the School’s

Principal, Angela West (“West”); the School’s Treasurer, Dana Johnson

Teasley (“Johnson”); the School’s Board of Directors (“the Board”); and

Greater Educational Opportunities Foundation (“GEO Foundation”)

(collectively, “School Appellees”), alleging multiple claims, including breach of

employment contract, indemnity, interference with employment contract,

wrongful termination, defamation, defamation per se, breach of duty by the

Board, negligence, and intentional infliction of emotional distress. In August

2014, Senior Judge Thomas Webber, Sr., summarizing the issues as being either

employment-related issues or defamation-related issues, granted summary

judgment in favor of School Appellees on the employment-related issues but

denied summary judgment on the defamation-related issues (“2014 Order”).1

In September 2017, following discovery and in response to School Appellees’

second motion for summary judgment, Judge Bruce Parent decided all pending

1 The defamation-related issues included claims of libel, slander, defamation, defamation per se, breach of duty by the Board, negligence, and intentional infliction of emotional distress.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 2 of 46 motions and granted summary judgment to School Appellees on the remaining

defamation-related issues (“2017 Order”).

[2] On appeal, Robinson raises the following consolidated and restated issues:

I. Whether the trial court abused its discretion when it denied Robinson’s motion to strike School Appellees’ second motion for summary judgment, thereby allowing the trial court to modify the non-final 2014 Order and grant summary judgment in favor of School Appellees on a previously denied motion for summary judgment on the defamation-related claims;

II. Whether the trial court abused its discretion when it struck a police Offense Report, which School Appellees had attached as an exhibit to their 2017 motion for summary judgment;

III. Whether the trial court abused its discretion when it struck two affidavits that supported Robinson’s defamation-related claims;

IV. Whether the trial court abused its discretion when it denied Robinson’s motion for leave to file a second amended complaint; and

V. Whether the trial court erred in granting summary judgment in favor of School Appellees on Robinson’s ten-count complaint.

[3] We affirm.2

2 We thank Judge Parent for the thoroughness of his 2017 Order, which aided in our understanding and analysis of this case.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 3 of 46 Facts and Procedural History3 [4] GEO Foundation runs the School. From late August 2007 through March

2009, the School employed Robinson. In connection with her employment,

Robinson entered into a contract (“the Employment Contract”) with the

School. As Office Manager, Robinson’s responsibilities included collecting

money for extra-curricular activities (“ECA”), recording such amounts in a

ledger, and depositing that money into the School’s ECA bank account (“the

ECA Account”).

[5] During Robinson’s employ, School Principal West and Treasurer Johnson

found that money was missing from the ECA Account. On February 23, 2009,

West filed an “Offense Report” with the police, reporting that public funds

under Robinson’s control were missing. Appellant’s App. Vol. X at 182. On

March 23, 2009, the School terminated Robinson’s employment, “either

because funds received into the [ECA Account] had not been properly

deposited or for the broader allegation of mismanagement of funds.” Appellant’s

App. Vol. III at 2. Four days after the School terminated Robinson, she filed a

3 The procedural history of this case was complicated, in part, by the fact that a series of judges presided over the proceedings, which School Appellees described as follows: A complicating factor in this matter is the progression of judges that have presided over this case. The State’s action was presided over by Judge Pera. Robinson’s action against [School Appellees] was originally presided over by Judge Svetanoff. Right around the time [School Appellees] filed their first motion for summary judgment, Judge Svetanoff fell ill, and Senior Judge Webber took on some of Judge Svetanoff’s docket. At some point in time, after the very unfortunate death of the most Honorable Svetanoff, Judge Parent became the presiding judge in Superior 4. By the time Judge Parent became judge, Robinson had filed voluminous pleadings and had attached what she believed supported her claims. Appellees’ Br. at 5 n.2.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 4 of 46 claim with the Gary Human Rights Commission. Appellant’s App. Vol. IV at 87.

In June 2009, the Indiana State Board of Accounts (“SBOA”) performed an

audit at the School and “concluded that money was missing . . . and that

Robinson had been responsible for depositing the missing funds.” Appellant’s

App. Vol. III at 2. The SBOA reported the missing funds to the Indiana

Attorney General.

[6] In October 2009, a local newspaper article reported that the School “began to

suspect in March that someone was stealing money,” and that an Offense

Report had been filed with the police, “but no further action had been taken.”

Appellant’s App. Vol. VI at 165. The article also noted, “Auditors said they

found Victoria Robinson, the [S]chool office manager, failed between August

2007 and March 2009 to deposit $11,841.12,” and Ayanna Burns (“Burns”) did

not deposit $1,461.12 between August 2006 and August 2007. 4 Id. The article

reported that Johnson stated that Burns should not have to repay the money

because the School did not have formal cash handling policies until Burns left.

Appellant’s App. Vol. VI at 165. Robinson believed that she was defamed by the

article and was again defamed at a School staff meeting, held at the start of the

2009-2010 school year, when West told the staff that she “saw [Robinson] in

Walmart ‘spending the [S]chool’s money.’” Appellant’s App. Vol. IV at 90.

4 Ayanna Burns, who was the School’s Office Manager from August 16, 2006 to August 22, 2007, was also accused of mismanaging public funds. Appellant’s App. Vol. IX at 232.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 5 of 46 [7] In July 2010, the Attorney General filed a collection action5 (“AG Action”)

against Robinson and Burns6 to recover missing public funds. The AG Action

alleged that Robinson and Burns had a duty to account for and deposit all funds

into the ECA Account, assure that the expenditure therefrom was authorized

by law, and “commit no acts of misfeasance, malfeasance, or nonfeasance.”

Appellant’s App. Vol. IX at 237. In March 2011, Robinson filed a counterclaim

in the AG Action against School Appellees. However, because School

Appellees were not parties to the AG Action, the trial court dismissed the

counterclaim without prejudice in January 2012. Appellant’s App. Vol. II at 32.7

Rather than pursue her claims against School Appellees as part of the AG

Action, on August 22, 2012, Robinson filed her first amended ten-count

complaint8 against School Appellees in the instant action and attached thereto,

as Exhibit A, pertinent portions of the Employment Contract, which stated that

Robinson’s employment was at will and that the School could modify its

policies at any time. Appellant’s App. Vol. IV at 114-15.

[8] Robinson’s allegations centered around her belief that School Appellees

mismanaged the School, that she was wrongfully terminated, that the

5 The AG Action was initially filed as a civil collection case, Cause No. 45D10-1008-CC-223. Thereafter, the designation of the case changed to civil plenary and the cause number changed to 45D10-1011-PL-111. 6 Burns, however, is not a party to the instant action. 7 Mediation among the parties in the AG Action resulted in Robinson settling the case with the Attorney General and agreeing to repay an undisclosed amount to the State. 8 Robinson’s filed her first complaint in February 2012. The trial court dismissed that complaint without prejudice, and with the trial court’s permission, Robinson filed the first amended complaint in August 2012.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 6 of 46 newspaper and West’s comments constituted defamation, and that School

Appellees had caused the State to file the AG Action against her in an effort to

retaliate against her for telling them about financial mismanagement.

Specifically, Robinson raised: Count I, Breach of Employment Contract;

Count II, Indemnity; Count III, Interference with Employment Contract;

Count IV, Wrongful Discharge; Count V, Retaliation; Count VI; Defamation;

Count VII, Defamation Per Se; Count VIII, Breach of Duty by the Board; Count

IX, Negligence; and Count X, Infliction of Emotional Distress. Appellant’s App.

Vol. X at 17-30. In October 2012, School Appellees filed their response and

nothing more was filed until March 2013.

[9] A June 2013 telephonic status conference was held, during which School

Appellees, who had already responded to the first amended complaint, were

granted the right to file a motion for summary judgment, which they did on

August 5, 2013. Appellant’s App. Vol. VII at 179-92. Citing to the terms in the

Employment Contract, School Appellees summarized their argument as

follows:

[Robinson]’s claims are nothing more than restatements of her previous claims which have now twice been dismissed. [Her] claims have no merit because (1) [Robinson] was an at will employee who could be terminated at any time with or without cause; (2) [School Appellees] owed [Robinson] no fiduciary duty; (3) [Robinson has] not plead[ed] any facts that would merit relief even if true; and (4) [Robinson] has settled her case with the State of Indiana and is now paying back funds to [the State], therefore[,] any claim [Robinson] may have had is now moot. For all these reasons, this case should be dismissed with prejudice.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 7 of 46 Appellant’s App. Vol. VII at 182 (emphasis added).

[10] On January 8, 2014, Robinson responded to School Appellees’ motion for

Summary Judgment regarding School Appellees’ position that Robinson had

failed to state a claim. Appellant’s App. Vol. IV at 150-79. That same day,

Robinson also responded to School Appellees’ motion for summary judgment,

attaching thereto designated evidence, including a copy of the Employment

Contract and of the Employee Handbook. Appellant’s App. Vol. IV at 181-221.

The Employee Handbook included the following language, which was

capitalized and underlined:

Our School is an at-will employer. This means that regardless of any provision in this Employee Handbook, either you or the School may terminate the employment relationship at any time for any reason with or without cause or notice. Nothing in this Employee Handbook or in any document or statement written or oral, shall limit the right to terminate employment-at-will. No officer, employee, or representative of the School is authorized to enter into an agreement -- express or implied – with any employee for employment other than at-will.

Appellant’s App. Vol. VI at 222 (emphasis added).

[11] After the parties filed additional pleadings, the trial court entered the 2014

Order on August 22, 2014. As to the defamation claim, Senior Judge Webber

noted: (1) Johnson had not informed the newspaper that financial issues were

the responsibility of the Treasurer; (2) Johnson “did not believe Robinson stole

money”; and (3) sometime in 2009-2010, during a staff meeting, West said that

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 8 of 46 she saw Robinson in Walmart, “spending the school’s money.” Appellant’s App.

Vol. III at 19. Entering its order, the trial court reasoned:

It appears from the superfluous voluminous pages of paper submitted by the parties that there are many issues for the court to consider. However, even with the pounds of paper the court had to read through, the issues remain, in this court’s view, to wit:

1. Whether Robinson can maintain her defamation complaint against the [School Appellees]?

2. Whether [School Appellees], pursuant to the [E]mployment [C]ontract, can terminate Robinson’s employment by reason of her status as an “at will” employee?

Appellant’s App. Vol. III at 18-19.9 Pertaining to the claim of “wrongful

discharge and or [t]ermination of [Robinson’s] employment,” the trial court

granted School Appellees’ motion for summary judgment, finding that

Robinson “was an employee ‘at will’ pursuant to her contract of employment,”

and that her termination was not a breach of contract.” Id. at 20. The trial

court denied summary judgment as to the defamation-related claims, finding

issues of material fact. Id. In October 2014, the trial court denied Robinson’s

motion to reconsider or correct error.

9 Senior Judge Webber’s categorization of the claims created confusion for the parties about which issues survived for purposes of discovery. In December 2015, in response to the parties’ motions for clarification, Judge Bruce Parent entered an order to provide guidance; however, that order appeared to resurrect some of the previously-decided employment-related issues. Appellant’s App. Vol. III at 15-17.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 9 of 46 [12] Robinson took no further action until June 2015, when she requested a case

management conference. At that point in the proceedings, the parties had not

exchanged discovery. In September 2015, following a hearing, the trial court

ordered that discovery would be cut off by December 31, 2015 with a

dispositive motion deadline of January 29, 2016. Appellant’s App. Vol. III at 37.

Immediately, the parties began to argue about discovery. Robinson wanted to

depose individuals from the State, with the goal of determining what prompted

the financial audits. In other words, Robinson wanted to explore whether the

School had retaliated against her, arguing that School Appellees had prompted

the State to file the AG Action. School Appellees, however, argued that the

trial court had disposed all employment-related issues, so only Robinson’s

defamation allegations had yet to be resolved. Accordingly, on November 30,

2015, School Appellees filed a motion to quash any discovery pertaining to

Robinson’s employment-related issues. Appellees’ Amended Vol. 2 at 5-6.10 After

a hearing on the matter, Judge Parent entered his December 21, 2015 order

(“2015 Order”), stating his then-understanding regarding the issues that

remained unresolved after the 2014 Order that could be the subject of discovery.

Neither party sought interlocutory appeal.

[13] On November 3, 2016, more than four years after Robinson filed her first

amended complaint, Robinson sought leave to file a second amended complaint

10 This document is titled, Appellees’ Amended App. and does not have a volume number. However, because there is an index volume, for ease of reference we will refer to it as Appellees’ App. Vol. 2.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 10 of 46 to both add new claims and to add Kevin Teasley (“Teasley”) as a defendant.

School Appellees objected, claiming that they would be unduly prejudiced. The

trial court agreed and denied Robinson’s motion. Appellant’s App. Vol. III at 10.

[14] In March 2017, the trial court ordered that any motions pertaining to

outstanding discovery be filed by June 2017. Over Robinson’s objection,

School Appellees filed their second motion for summary judgment on May 30,

2017. Robinson responded by filing two motions on June 29, 2017—one to

strike School Appellees’ second motion for summary judgment and a separate

motion to strike the four exhibits attached thereto. Robinson also filed a

response to School Appellees’ second motion for summary judgment, and

School Appellees filed their reply.

[15] On August 29, 2017, the trial court held a hearing on the second motion for

summary judgment. Robinson’s argument centered around her belief that

School Appellees had prompted the AG Action and that, but for School

Appellees’ mismanagement of the School, the State would not have brought the

AG Action. School Appellees argued that Robinson should have raised those

allegations in the AG Action. Furthermore, School Appellees argued that no

facts had been discovered that would substantiate Robinson’s allegations, even

when viewed in a light most favorable to her. Agreeing with School Appellees,

the trial court entered the 2017 Order, granting them summary judgment on the

remaining counts. Robinson now appeals.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 11 of 46 Discussion and Decision [16] The issues before us arise from: (1) the 2014 Order’s grant of summary

judgment in favor of School Appellees on Counts I through V, the employment-

related issues; (2) the 2017 Order’s grant of summary judgment in favor of

School Appellees on Counts VI through X, the defamation-related issues; and

(3) the trial court’s ruling on certain pleadings. At the start of August 2017

hearing, the trial succinctly summarized the pleadings in this third category:

I have us set today on [School Appellees’] Motion for Summary Judgment, which was filed May 30th of this year [2017]. I have a response from [Robinson]. I have a reply [from School Appellees].

I also have us set for [Robinson]’s Motion to Strike [School Appellees’] Motion for Summary Judgment filed on June 29[, 2017] to which [School Appellees] ha[ve] filed a response in opposition. I have [Robinson]’s Motion to Strike [School Appellees’] Exhibits filed on June 29[, 2017]. I have [School Appellees’] Motion to Strike [Robinson]’s Exhibits filed on August 11[, 2017]. And finally, I have [School Appellees’] Motion for Sanctions filed on August 11[, 2017] and [Robinson]’s response filed on August 25th.11

Tr. at 4 (emphasis added).

11 School Personnel filed a motion for sanctions on August 11, 2017, and Robinson filed a motion for sanctions on August 25, 2017. Appellant’s App. Vol. II at 5. The trial court denied both motions for sanctions in its 2017 Order. The parties do not raise that issue on appeal.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 12 of 46 [17] Here, the trial court issued findings of fact and conclusions on the 2014 Order

and 2017 Order. Special findings are neither required nor binding on appeal of

a summary judgment. New Albany Historic Preserv. Comm’n v. Bradford Realty,

Inc., 965 N.E.2d 79, 84 (Ind. Ct. App. 2012), trans. denied. However, the

findings offer valuable insight into the trial court’s rationale and help facilitate

our review. Id.

I. Robinson’s Motion to Strike Summary Judgment Motion [18] Robinson first contends that it was error for the trial court to grant summary

judgment in favor of School Appellees on Robinson’s defamation-related claims

in the 2017 Order, when Senior Judge Webber had denied summary judgment

on those same claims in the 2014 Order. Specifically, Robinson argues that the

2017 Order improperly reflected the consideration of evidence that had not

been before the trial court when the 2014 Order was entered. Robinson made

the same argument in her motion to strike School Appellees’ second motion for

summary judgment. As such, Robinson is claiming that Judge Parent erred

when he denied her motion to strike School Appellees’ second motion for

summary judgment. Then, as now, Robinson argues that by ruling on School

Appellees’ second motion for summary judgment, the trial court “interfered

with and vacated the clear ruling of the prior senior judge who determined that

genuine issues of material fact precluded the granting of summary judgment to

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 13 of 46 [School Appellees] on [Robinson’s] cause of actions for defamation and

defamation per se.”12 Appellant’s Br. at 18.

[19] In support of her claim that a second motion for summary judgment was

improper, and therefore the trial court erred in denying her motion to strike that

motion, Robinson cites to Trial Rules 54(B) and 56(C) and our Supreme

Court’s holding in Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967, 973 (Ind.

2014). In Mitchell, a commercial landlord, 10th and the Bypass (“LLC”),

brought an environmental legal action against a dry-cleaning business and its

owner, Mitchell, alleging that defendants had caused or contributed to the

release of a hazardous substance into the subsurface soil or groundwater. 3

N.E.3d at 969. Mitchell, individually, moved for partial summary judgment

and designated an affidavit swearing that he had not caused or contributed to

the release of a hazardous substance. LLC did not respond to Mitchell’s

motion for summary judgment; instead, LLC filed its own motion for summary

judgment. Finding no evidence that Mitchell caused the spill, the trial court

granted partial summary judgment in Mitchell’s favor. Id. at 969-70.

12 In the 2017 Order, Judge Parent, noting his improper expansion of issues available for discovery, provided a “mea culpa” and set forth the issues that actually had survived summary judgment. Appellees’ App. Vol. 2 at 39-49. On appeal, Robinson argues that she was caused “caustic harm” when the litigation “ended with the trial court’s words ‘Mea Culpa’ in regard to the court’s prior ruling. Appellant’s Br. at 17. We disagree with Robinson’s contention. In the 2017 Order, Judge Parent’s mea culpa pertained to discovery issues only. Judge Parent was apologizing for nothing more than allowing Robinson to pursue discovery on already settled issues. The 2015 Order had no negative impact on the case and, in fact, that Order allowed Robinson to pursue discovery on issues that had already been settled by the 2014 Order.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 14 of 46 [20] About one year later, but prior to the order being final, Mitchell’s employee

swore an affidavit stating that she had seen Mitchell spill a hazardous substance

at his place of business. Relying on this “newly discovered inculpatory

evidence establish[ing] Mitchell’s individual liability,” and recognizing that the

order was not final, LLC filed a motion pursuant to Indiana Trial Rule 54(B) to

vacate the trial court’s order granting partial summary judgment in Mitchell’s

favor and attached the employee’s affidavit thereto. Id. at 970. Mitchell did not

refute the veracity of the allegations in the employee’s affidavit; instead, he

argued that the affidavit could not be considered because “pursuant to Trial

Rule 56 newly discovered evidence must be properly designated and timely

submitted—neither of which, according to Mitchell, was done in this case.” Id.

[21] Our Supreme Court explained how Trial Rule 54 and Trial Rule 56 work

together. Trial Rule 54 allows courts to modify any non-final order. Id. at 973.

However, Trial Rule 56 and the case law interpreting it, strictly prohibit trial

courts from considering any evidence submitted later than thirty days after the

request for summary judgment has been submitted. Id. The question presented

in Mitchell was: If the court has the power to modify a non-final summary

judgment order but it cannot consider evidence submitted outside the thirty-day

timeline to respond, how does it follow that the court has absolute authority to

modify non-final orders? The Supreme Court answered that question by

specifying that a non-final summary judgment order can be modified as long as

the evidence considered in modifying it is the same evidence that was

considered when the summary judgment order was made in the first place. Id.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 15 of 46 [22] Here, we find Mitchell to be distinguishable from the present case and, therefore,

disagree with Robinson’s contention that School Appellees’ second motion for

summary judgment allowed the improper modification of a non-final order.

Unlike Mitchell, Senior Judge Webber did not rely on any evidence outside the

pleadings when he granted summary judgment in favor of School Appellees on

the employment-related claims. School Appellees, initially, filed a motion to

dismiss. In support of their motion to dismiss the employment-related claims,

School Appellees relied on the at-will language in the Employment Contract, a

copy of which Robinson had attached to her first amended complaint. In

response, Robinson filed innumerable exhibits; however, because discovery had

not commenced, none of those exhibits were the product of discovery. Here,

the trial court could have granted School Appellees’ motion to dismiss on the

employment-related claims without relying on any evidence outside the

complaint. See Ind. Trial Rule 12(B) (a motion to dismiss for failure to state a

claim shall be treated as a motion for summary judgment when “matters

outside the pleading are presented to and not excluded by the court”).

Nevertheless, apparently recognizing the voluminous filings before the court,

the trial court captioned the 2014 Order as a grant of summary judgment on the

employment-related issues.

[23] Following the entry of the 2014 Order, discovery commenced, and School

Appellees filed their second motion for summary judgment only after discovery

had closed. At the hearing on the second motion for summary judgment,

School Appellees made clear that the second motion for summary judgment

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 16 of 46 related only to the defamation-related issues.13 We agree with Judge Parent’s

conclusion that, “Robinson improperly viewed the present motion for summary

judgment as a request for the [trial court] to reconsider a motion for summary

judgment that had been granted in part and denied in part by Judge Webber in

2014.” Appellant’s App. Vol. III at 7. From 2014, when Senior Judge Webber

entered his order, until discovery closed in September 2016, there was

consistent discovery back and forth between the parties. Appellant’s App. Vol. III

at 7. Notably, Robinson herself supports her defamation-related claims using

affidavits obtained after the 2014 Order. We find no error in Judge Parent’s

decision to deny Robinson’s motion to strike School Appellees’ second motion

for summary judgment. Accordingly, considering the evidence found during

discovery, the trial court did not err when it granted summary judgment in

favor of School Appellees on the defamation-related claims.

II. Robinson’s Motion to Strike Exhibits [24] Attached to School Appellees’ second motion for summary judgment were four

exhibits: (1) a February 2009 police “Offense Report” filed by West, setting

forth that money was missing from the School’s ECA Account; (2) West’s

13 During the hearing on the second motion for summary judgment, counsel for School Appellees made the following clarification: I’m not filing a Motion for Summary Judgment on the issues that have already been disposed of by this Court. I’m filing a Motion for Summary Judgment on the issues that the Court said remained in its [2015 Order]. Those issues remained after discovery and this case is ripe for summary judgment at this point because summary judgment has been closed. There are no pending summary judgment issues. There are no pending summary judgment motions and so therefore this case, in our opinion and pursuant to our response, is ripe for summary judgment. Tr. Vol. II at 6-7.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 17 of 46 affidavit, stating that she did not say during a staff meeting that she saw

Robinson spending the School’s money in Walmart; and (3) portions of

Robinson’s February 2016 deposition, in which Robinson said she learned that

a friend of a friend had heard West say in a staff meeting that Robinson was

fired because she stole money. Appellees’ App. Vol. 2 at 34-36. The fourth

exhibit consisted of portions of interrogatories, completed by Robinson’s

counsel, which pertained to defamation, libel, slander, and defamation per se.

On June 29, 2017, Robinson filed a motion to strike those exhibits. The trial

court granted Robinson’s motion, in part, and struck the Offense Report, but

denied her motion on the remaining three exhibits.

[25] On appeal, Robinson only challenges the trial court’s grant of her motion to

strike the Offense Report. Claiming that her motion was based on “the failure

of defendant[s] to authenticate the document,” she now contends that “[g]iven

other evidence referencing the Offense Report the content or the substance of

the report was capable of being presented in a form that would be admissible at

trial.” Appellant’s Br. at 45. Robinson now urges the admission of this report,

saying, it was “a ‘key’ document which, despite the finding of a lack of probable

cause by the Gary Police Department, served as a critical basis for the AG’s

[A]ction against Robinson.” Id. Assuming without deciding that the trial court

abused its discretion when it granted Robinson’s motion to strike the police

report, we can provide no relief on Robinson’s invited error. “‘A party may not

invite error, then later argue that the error supports reversal, because error

invited by the complaining party is not reversible error.’” Booher v. State, 773

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 18 of 46 N.E.2d 814, 822 (Ind. 2002) (citing Ellis v. State, 707 N.E.2d 797, 803 (Ind.

1999) (quoting Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995), trans. denied),

trans. denied). Robinson cannot now complain that the trial court abused its

discretion by granting her motion to strike the Offense Report.

III. School Appellees’ Motion to Strike Affidavits [26] Robinson next contends that the trial court abused its discretion when it granted

School Appellees’ motion to strike Robinson’s affidavits in support of her

defamation-related claims. “A trial court has broad discretion in granting or

denying a motion to strike.” Auto-Owners Ins. Co. v. Bill Gaddis Chrysler Dodge,

Inc., 973 N.E.2d 1179, 1182 (Ind. Ct. App. 2012), trans. denied. “The trial

court’s decision will not be reversed unless prejudicial error is clearly shown.”

Id.

[27] Robinson argues that the trial court should not have stricken the affidavits of

Lawrence Keilman and Leslie Christian; two affidavits that Robinson

designated to oppose West’s affidavit, where West denied saying that Robinson

was spending the School’s money. During the 2017 hearing on School

Appellees’ second motion for summary judgment, School Appellees asserted

that the affidavits should be stricken because School Appellees had asked

“question by question about each of her claims . . . what were the witnesses,

what were the claims, what were the statements, whether they were made, who

made them, how often were they made; all of those things.” Tr. at 46;

Appellant’s App. Vol. XI at 124. School Appellees asserted that they “ended up

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 19 of 46 having to file a motion to compel on that and we got that information. And

still it wasn’t the whole story.” Id.

[28] Following the hearing, the trial court found:

Counsel for Robinson conceded that the identification of the witnesses Lawrence Keilman and Leslie Christian and the substance of their respective affidavits was known to her and purposefully not provided to counsel for [School Appellees] during the period of discovery. [Robinson’s counsel] indicated to the Court that she was hoping to keep these witnesses/employees of [the School] out of it for fear of reprisals.

Appellee’s App. Vol. 2 at 40-41. We note that, although Christian stopped

working for the School in 2010, and Keilman stopped working for the School

on July 31, 2011, discovery did not close until September 2016. Appellant’s App.

at Vol. XI at 83, 202. It is hard to imagine how Christian and Keilman could be

subject to the School’s reprisal more than five years after they were no longer in

the School’s employ. Based on this evidence, the trial court did not abuse its

discretion when it struck the affidavits of Christian and Keilman.

IV. Motion for Leave to file Second Amended Complaint [29] Robinson contends that the trial court abused its discretion when it denied her

motion for leave to file a second amended complaint. Indiana “Trial Rule

15(A) provides that a party ‘may amend [her] pleading once as a matter of

course’ if within a certain time frame.” Rusnak v. Brent Wagner Architects, 55

N.E.3d 834, 842 (Ind. Ct. App. 2016), trans. denied. “‘Otherwise a party may

amend [her] pleading only by leave of court or by written consent of the adverse

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 20 of 46 party; and leave shall be given when justice so requires.’” Id. (quoting Ind.

Trial Rule 15(A)). “Amendments to pleadings are to be liberally allowed, but

the trial court retains broad discretion to grant or deny motions to amend

pleadings.” Id. (citing Hilliard v. Jacobs, 927 N.E.2d 393, 398 (Ind. Ct. App.

2010), trans. denied). We will reverse only upon an abuse of that discretion,

which occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before the court or when the trial court has

misinterpreted the law. Id. “We judge an abuse of discretion by evaluating

several factors, including ‘undue delay, bad faith, or dilatory motive on the part

of the movant, repeated failure to cure deficiency by amendment previously

allowed, undue prejudice to the opposing party by virtue of the amendment,

and futility of the amendment.’” Id. (quoting Hilliard, 927 N.E.2d at 398).

[30] Here, Robinson filed a motion for leave to file a second amended complaint to

add new claims and to add Teasley as a defendant in the action. Robinson filed

her motion about thirty days after the close of discovery, but more than four

years after she filed her first amended complaint. School Appellees responded

that Teasley, who was the President and Chief Executive Officer of GEO

Foundation and Superintendent of the School, was in the same position he had

been in when Robinson filed her first amended complaint and that discovery

had unearthed nothing to support such late amendment to the complaint.

Appellant’s App. Vol. IX at 185. The trial court denied Robinson’s motion,

agreeing with School Appellees’ assessment that it “would be unduly prejudiced

because the amendment would require additional discovery without providing

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 21 of 46 any new avenues of relief. Therefore, the monetary and time costs of the

litigation would go up exponentially without providing any new liability,

damages, or avenues for relief.” Appellant’s Br. Vol. IX at 177. In General Motors

Corp. v. Northrop Corp., 685 N.E.2d 127, 142 (Ind. App. Ct. 1997), trans. denied,

our court found no abuse of discretion in denying leave for plaintiff to file a

second amended complaint four years after filing the original complaint and

two years after filing first amended complaint, when: (1) there is no

justification for delay in adding claims; (2) defendant would be prejudiced by

the delay; and (3) amendment would be futile. The facts in the case before us

are in line with those in that case. Accordingly, the trial court did not abuse its

discretion when it denied Robinson’s motion for leave to file the second

amended complaint.

V. Summary Judgment [31] Robinson contends that the trial court erred when it granted summary judgment

in favor of School Appellees on her ten-count complaint. We review a grant of

summary judgment de novo, applying the same standard as the trial court and

drawing all reasonable inferences in favor of the nonmoving party. Ali v. All.

Home Health Care, LLC, 53 N.E.3d 420, 427 (Ind. Ct. App. 2016) (citing Hughley

v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)). In conducting our review, we

consider only those matters that were properly designated to the trial court. Id.

(citing Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind. Ct. App. 2011)).

Summary judgment is appropriate if the designated evidence shows that there is

no genuine issue as to any material fact and that the moving party is entitled to

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 22 of 46 judgment as a matter of law. T.R. 56(C). A fact is “material” if its resolution

would affect the outcome of the case, and an issue is “genuine” if a trier of fact

is required to resolve the parties’ differing accounts of the truth or if the

undisputed material facts support conflicting reasonable inferences. Williams v.

Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

[32] Under Indiana law, the moving party “must demonstrate that ‘the designated

evidence raises no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law.’” AM Gen. LLC v. Armour, 46 N.E.3d

436, 439 (Ind. 2015) (quoting Ind. Restorative Dentistry, P.C. v. Laven Ins. Agency,

Inc., 27 N.E.3d 260, 264 (Ind. 2015)). “Upon this showing, the nonmoving

party then has the burden to demonstrate that there is a genuine issue of

material fact.” Id. All reasonable inferences will be construed in favor of the

nonmoving party. Id. “And ‘[a]lthough the non-moving party has the burden

on appeal of persuading us that the grant of summary judgment was erroneous,

we carefully assess the trial court’s decision to ensure that [appellant] was not

improperly denied [her] day in court.’” Hughley, 15 N.E.3d at 1003 (quoting

McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind.

2009) (internal quotation marks omitted)). We will affirm upon any theory or

basis supported by the designated materials. FLM, LLC v. Cincinnati Ins. Co.,

973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012), trans. denied.

A. Count I -- Breach of Contract

[33] Robinson asserts that School Appellees breached the Employment Contract by

terminating her from their employ. “Summary judgment is especially Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 23 of 46 appropriate in the context of contract interpretation because the construction of

a written contract is a question of law.” TW Gen. Contracting Servs., Inc. v. First

Farmers Bank & Trust, 904 N.E.2d 1285, 1287-88 (Ind. Ct. App. 2009).

When the language of a written contract is not ambiguous, its meaning is a question of law for which summary judgment is particularly appropriate. In interpreting an unambiguous contract, we give effect to the intentions of the parties as expressed in the four corners of the instrument. Clear, plain, unambiguous terms are conclusive of that intent. We will neither construe clear and unambiguous provisions nor add provisions not agreed upon by the parties.

Kaghann’s Korner, Inc. v. Brown & Sons Fuel Co., 706 N.E.2d 556, 565 (Ind. Ct.

App. 1999) (citations omitted), clarified on reh’g on other grounds. A contract is

not ambiguous merely because the parties disagree as to its proper construction;

rather, a contract will be found to be ambiguous only if reasonable persons

would differ as to the meaning of its terms. Trs. of Ind. Univ. v. Cohen, 910

N.E.2d 251, 257 (Ind. Ct. App. 2009). “We interpret a written contract by

reading the contract as a whole, and we attempt to construe the language so as

to not render any words, phrases, or terms ineffective or meaningless.” DLZ

Ind., LLC v. Greene Cty., 902 N.E.2d 323, 327 (Ind. Ct. App. 2009).

[34] On appeal, Robinson contends that her breach of contract claim should have

survived summary judgment. Robinson argues that an employee, like her,

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 24 of 46 “who [was] discharged for improper book[keep]ing14 of the ECA” has a cause

of action against School Appellees because, since the School had entered into a

“Corrective Action Plan” with the SBOA to provide training on the ECA

Account, the School breached its contract by: (1) not providing notice that

Robinson was deficient in her job performance; and (2) not allowing her to

participate in a “Progressive Improvement Plan.” Appellant’s Br. at 53.

Robinson’s claim for breach of contract rests on her assumption that School

Appellees had a duty under the Employment Contract to provide Robinson

with a “Progressive Improvement Plan,” and that such language superseded the

Employment Contract’s terms that Robinson was an at-will employee.

Reviewing the plain meaning of the Employment Contract, we disagree.

[35] “Indiana has historically recognized two basic forms of employment: (1)

employment for a definite or ascertainable term, and (2) employment at will.”

Vincennes Univ. ex rel. Bd. of Trs. of Vincennes v. Sparks, 988 N.E.2d 1160, 1166-67

(Ind. Ct. App. 2013), trans. denied. If an employment contract makes no

reference to a term of employment, there is a presumption that the employment

is at will and can be terminated at any time, with or without cause, by either

party. Id. Here, the Employment Contract said in at least three separate places

that Robinson’s employment was at will and that she did not have an

14 Robinson’s argument on this issue was confusing because she used the word “booking.” Appellant’s Br. at 53. Our review of underlying documents reveals that she intended to use the word “bookkeeping. Appellant’s App. Vol. VII at 120 n.1.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 25 of 46 expectation of continued employment. Appellant’s App. Vol. IV at 114-15.

Those provisions included:

C.2.3. Employee acknowledges and understands that notwithstanding any other provision of this Agreement, Employee’s employment by Employer shall be “at will” and no guarantee of employment, either express or implied is provided by this agreement or any other verbal or written commitment.

1. While legally the Employer may terminate Teacher’s employment at any time, without notice, without cause, and without further recourse by Employee, it is the Employer’s policy that, in the event of failure of job performance, Employer will work with Employee to develop a Progressive Improvement Plan to help Employee, prior to any steps toward termination.

....

C.3. No other conditions of employment, express or implied, shall be construed as part of this Agreement. Employee’s signature represents his/her acknowledgment that this Agreement does not provide a right or guarantee to future employment.

Appellant’s App. Vol. IV at 114-15 (emphasis added).

[36] We agree with Robinson that the Employment Contract set forth the School’s

policy that, in the event of failure of job performance, the School would work

with “Employee to develop a Progressive Improvement Plan.” Id. at 114. That

language, however, provided no additional job security for Robinson. The

implementation of the Progressive Improvement Plan was just a policy and, as

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 26 of 46 the Employment Contract clearly stated, “Nothing herein shall be construed as

limiting employer’s ability to amend or modify its policies, rules, and directives at any

time. . . .” Id. at 115. Robinson’s employment under the Employment Contract

was clearly at will. School Appellees did not breach the Employment Contract

when they terminated Robinson, an at-will employee, from her position.

B. Count II -- Indemnity

[37] In her first amended complaint, Robinson alleged that School Appellees,

“having breached the [E]mployment [C]ontract for the failure to disclose and

[for] breach of the duty to give information, are responsible to indemnify

[Robinson] for all sums required to pay the [S]tate for public funds alleged to

have been owed and sought after on behalf of [School Appellees].” Appellant’s

App. Vol. IV at 94-95. Robinson’s argument regarding indemnification rests on

a successful claim for breach of contract. Because we find as a matter of law

that School Appellees did not breach the Employment Contract and, therefore,

acted properly in terminating Robinson’s employment as an at will employee, the

indemnity claim must also fail. On appeal, Robinson contends that she has a

right to indemnity pursuant to her “employers Articles of Incorporation” and

because her employers failed to give her notice of “the breach of this duty.”

Appellant’s Br. at 44. Because these issues are being raised for the first time on

appeal, they are waived. See Messmer v. KDK Fin. Servs., Inc., 83 N.E.3d 774,

781 (Ind. Ct. App. 2017) (quoting Dunaway v. Allstate Ins. Co., 813 N.E.2d 376,

388 (Ind. Ct. App. 2004)) (“Issues not raised before the trial court on summary

judgment cannot be argued for the first time on appeal[.]”). Even if Robinson

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 27 of 46 had previously raised these arguments, she has not designated the School’s

Articles of Incorporation or any other evidence to support her general assertion.

The trial court did not err in granting summary judgment in favor or School

Appellees on Robinson’s indemnity claim.

C. Count III -- Interference with Employment Contract

[38] Robinson argues that the trial court erred in granting School Appellees’ motion

for summary judgment on her claim of interference with employment contract.

Robinson is correct that a claim of interference with an employment contract is

not defeated because the employee is at will. Appellant’s Br. at 43. “The parties

in an employment-at-will relationship have no less of an interest in the integrity

and security of their contract than do the parties in any other type of contractual

relationship.” Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282, 284

(Ind. 1991). The mere label “contract terminable at will” presupposes that the

durational element of the contract has been left open. Id. at 285. This open-

endedness, however, does not affect the legitimacy of the agreement itself or the

amount of protection available to employees against interference by third

parties. Id. at 285. “Thus any intentional, unjustified interference with such a

contract by third parties is actionable.” Id. at 284-85.

[39] Tortious interference with a contractual relationship consists of the following

elements: “(1) the existence of a valid and enforceable contract; (2) the

defendant’s knowledge of the existence of the contract; (3) the defendant’s

intentional inducement of breach of the contract; (4) the absence of justification;

and (5) damages resulting from the defendant’s wrongful inducement of the Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 28 of 46 breach.” Mourning v. Allison Transmission, Inc., 72 N.E.3d 482, 488 (Ind. Ct.

App. 2017) (citing Duty v. Boys & Girls Club of Porter Cty., 23 N.E.3d 768, 774

(Ind. Ct. App. 2014)).

In order to adequately plead the fourth element—the absence of justification—the plaintiff must state more than a mere assertion that the defendant’s conduct was unjustified. That is, the plaintiff must set forth factual allegations from which it can reasonably be inferred that the defendant’s conduct was unjustified. In this context, “unjustified” means “malicious and exclusively directed to the injury and damage of another.”

Id. (internal citations omitted). Robinson was terminated from her position

when Principal West and Treasurer Johnson discovered that Robinson could

not account for money missing from the ECA Account. Robinson was not

charged with a crime, and she did not admit to wrongdoing; yet, money was

missing from the ECA Account without explanation. As a matter of law, we

cannot say that School Appellees’ actions of terminating Robinson from her

position as Office Manager, with oversight over the ECA Account, was

malicious or intended to injure her. The trial court did not err when it granted

summary judgment on Robinson’s claim for interference with Employment

Contract.15

15 Robinson does not appeal the trial court’s grant of summary judgment in favor of School Appellees on Count IV -- wrongful discharge. However, like Robinson’s indemnity claim, the success of that claim rested on a finding that School Appellees acted improperly when they dismissed Robinson. Because Robinson was terminated as an at will employee, the trial court did not err in granting summary judgment in favor of School Appellees on Robinson’s wrongful discharge claim.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 29 of 46 D. Count V -- Retaliation

[40] On appeal, Robinson contends that she was retaliated against by School

Appellees. Where “retaliation is at issue, summary judgment is only

appropriate when the evidence is such that no reasonable trier of fact could

conclude that a discharge was caused by a prohibited retaliation.” Markley

Enters. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct. App. 1999). “In general, an

employment contract of indefinite duration is presumptively terminable at the

will of either party.” Best Formed Plastics, LLC v. Shoun, 51 N.E.3d 345, 351

(Ind. Ct. App. 2016) (quoting Stillson v. St. Joseph Cty. Health Dep’t, 22 N.E.3d

671, 679 (Ind. Ct. App. 2014), trans. denied), trans. denied. However, it is well

settled in Indiana that an action for retaliatory discharge exists when an

employee is discharged for exercising a statutorily conferred right, such as filing

a worker’s compensation claim. Purdy v. Wright Tree Serv., Inc., 835 N.E.2d 209,

212 (Ind. Ct. App. 2005), trans. denied. In Frampton v. Central Indiana Gas Co.,

260 Ind. 249, 251-53, 297 N.E.2d 425, 427-28 (1973), our Supreme Court held

that an employee-at-will who was discharged for filing a worker’s compensation

claim could file an action for retaliatory discharge against her employer because

the Worker’s Compensation Act was designed for the benefit of employees, and

as such, its humane purpose would be undermined if employees were subject to

reprisal without remedy solely for exercising that statutory right.

[41] In her complaint, Robinson claimed that School Appellees retaliated against her

by interfering with her “non-waivable right to file a charge with the EEOC.”

Appellant’s App. Vol. IV at 99. She also claimed that School Appellees’ action of

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 30 of 46 causing the Attorney General to bring a collection action against her to recover

public funds was done in retaliation for Robinson having reported financial

irregularities to the officers of the School. Id. at 99-100. We find no evidence

to support Robinson’s claims of retaliation.

[42] The parties agree that Robinson filed a claim with the Gary Human Rights

Commission; however, that was done four days after she was let go. Appellant’s

App. Vol. IV at 87. We find no evidence, though, regarding if or when

Robinson filed a charge with the EEOC. Accordingly, this claim fails.

Furthermore, we find no evidence that the AG Action was filed in retaliation

for Robinson’s actions. Mary Jo Small (“Small”), a member of the SBOA audit

team, testified in a deposition that the account examiners and SBOA play no

role in determining what action, if any, is pursued after an audit is certified and

forwarded to the Attorney General and prosecutor’s office. Appellant’s App. Vol.

XI at 125, 126. It is the prosecutor who determines whether there is a criminal

action to pursue, and the Attorney General who determines whether to pursue

a civil action for any misappropriation of assets. Tr. Vol. II at 15-16; Appellant’s

App. Vol. XI at 125-26. Because the AG Action could not have been ordered by

School Appellees, that action did not constitute retaliatory action on the part of

School Appellees. The trial court did not err in granting summary judgment on

the claim of retaliation.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 31 of 46 E. Counts VI and VII –Defamation and Defamation Per Se

[43] Robinson also argues that the trial court erred when it granted summary

judgment in favor of School Appellees on her defamation claims.16

“Defamation is that which tends to injure reputation or to diminish esteem,

respect, good will, or confidence in the plaintiff, or to excite derogatory feelings

or opinions about the plaintiff.” Ali, 53 N.E.3d at 428 (internal quotation

marks omitted). “To recover in an action for defamation, that which caused the

alleged defamation must be both false and defamatory. Id. (internal quotations

omitted). “Moreover, a plaintiff must establish the basic elements of

defamation: (1) a communication with a defamatory imputation; (2) malice; (3)

publication; and (4) damages.” Id. The determination of whether a

communication is defamatory is a question of law for the court. Id.

[44] In an action for defamation, the defamatory meaning of words can be apparent

on the face of the words (per se) or apparent only by reference to extrinsic facts

and circumstances (per quod). Other times, the terms per se and per quod are used

16 Robinson uses the terms libel, slander, and defamation. As explained in the Indiana Model Civil Jury Instructions: Defamation is an attack upon the reputation or character of another that results in injury. A communication is defamatory if it tends to harm the reputation of another so as to lower him in the eyes of the community or to deter third persons from associating or dealing with him. The law of defamation historically has been divided into libel and slander, which are methods of defamation. Libel is a written defamation while slander is an oral or spoken defamation of character or reputation. Libel can be expressed either in writing or by print, signs, pictures, effigies, or the like. Historically, different legal standards have been applied to libel and slander in some circumstances. Unless those circumstances are present in a case, the committee recommends that the generic term “defamation” be used in jury instructions. 2700 Introduction, Ind. Model Civ. Jury Inst. 2700 INTRO (footnotes omitted).

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 32 of 46 in reference to whether a defamatory statement falls into one of four categories.

Defamation per se involves a communication imputing: “(1) criminal conduct;

(2) a loathsome disease; (3) misconduct in a person’s trade, profession, office, or

occupation; or (4) sexual misconduct.” Baker v. Tremco, Inc., 917 N.E.2d 650,

657 (Ind. 2009). The communication must be made with malice, publication,

and damage. Id. The plaintiff is entitled to presume damages as a natural and

probable consequence of defamation per se. Kelley v. Tanoos, 865 N.E.2d 593,

597 (Ind. 2007). This is so because the words imputing one of those conditions

are so naturally and obviously harmful that one need not prove their injurious

character. Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223, 1230 (Ind. Ct.

App.2005). The defamatory nature of the communication must appear without

reference to extrinsic facts or circumstances. Id. A person alleging defamation

per quod must demonstrate the same elements without reference to extrinsic

facts or circumstances but must additionally demonstrate special damages. Id.

[45] “[A] plaintiff who sues for defamation must set out the alleged defamatory

statement[s] in the complaint.” Ali, 53 N.E.3d at 428. “‘When specific

statements that are alleged to be defamatory have not been sufficiently

identified in a plaintiff’s complaint, an award of summary judgment for the

defendant is proper.’” Id. (quoting Miller v. Cent. Ind. Cmty. Found., Inc., 11

N.E.3d 944, 956 (Ind. Ct. App. 2014), trans. denied). In her complaint,

Robinson alleged that: (1) School Appellees caused the Attorney General to file

the AG Action; (2) the local paper, Northwest Indiana Times, reported that the

School suspected Robinson of theft and had reported that theft to police; and

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 33 of 46 (3) sometime during a staff meeting, held during the 2009-2010 school year,

West told the staff that she saw Robinson in Walmart, “spending the [S]chool’s

money.” Appellant’s App. Vol. IV at 89-90. The first two claims are defamation

claims, while the claim about West is a claim of defamation per se.

1. Defamation

a. The AG Action

[46] Robinson’s claim about the AG Action fails because Robinson did not include

in her first amended complaint the statement, if any, that School Appellees

allegedly said to trigger the filing of the AG Action. See Miller, 11 N.E.3d at

956 (“When specific statements that are alleged to be defamatory have not been

sufficiently identified in a plaintiff’s complaint, an award of summary judgment

for the defendant is proper.”). Furthermore, even if a statement had been

included, Indiana courts have recognized a common interest privilege that

protects communication made in connection with membership qualifications,

employment references, intracompany communications, and the extension of

credit. Kelley, 865 N.E.2d at 597. This privilege “is intended to facilitate full

and unrestricted communication on matters in which the parties have a

common interest or duty.” Id. at 598 (internal quotation marks and citation

omitted). Under the facts of this case, any communication between School

Appellees and the SBOA or Attorney General would have been protected by

the common law interest privilege. The trial court did not err in granting

summary judgment on this claim.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 34 of 46 b. The Newspaper Article

[47] Regarding the article, Robinson further complains that she was defamed

because: (a) Johnson said Burns should not have to pay back missing funds

(since ECA procedures were not in place until after Burns separated from

employment), yet failed to say the same for Robinson; (b) the article excluded

information that the School treasurer was responsible for overseeing the

collection, retention, or deposit of public funds; and (c) that the article did not

say that the School failed to comply with SBOA requirements pertaining to the

ECA Account and that Johnson “did not believe Robinson stole money.” Id.

[48] Robinson’s claims that she was defamed by information printed in the local

newspaper fail. Robinson takes issue with the article’s statements that (1)

“[m]ore than $13,000 in cash payments for student lunches and extracurricular

activities at [the School] never made it to the bank, state auditors determined.”; (2)

the School filed a police report, but no further action has been taken, according to

the audit; (3) auditors said they found [Robinson] . . . failed between August 2007

and March 2009 to deposit $11,841.12; and (4) School officials asked the SBOA

to run an audit after the School suspected in March that someone was stealing

money. Appellant’s App. Vol. VI at 165 (emphasis added).

[49] Regarding claims (1), (2), and (3), the newspaper reported that the auditor was

the source of its information. It was the auditor who said that money never

made it to the bank and that Robinson failed to deposit more than $11,000 over

a two-year period. Appellant’s App. Vol. VI at 165. Likewise, it was the auditor’s

audit that provided information that a police report had been filed and no Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 35 of 46 further action had been taken. Robinson cannot hold School Appellees

responsible for the independent statements of the auditor; accordingly, those

claims must fail.

[50] Claim (4), that Robinson was defamed when School Appellees asked the SBOA

to run an audit because they suspected someone was stealing money, also fails.

The statement to which Robinson refers makes no claim that Robinson was

stealing the money or even that money was definitely being taken. Finally, and

laying aside the question of whether the statements could even be considered

defamatory, Robinson has designated no evidence that School Appellees made

any false statements. See Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446,

457 (Ind. 1999) (“In order to impose liability for defamation, the United States

Constitution requires a false statement of fact.”), cert. denied, 528 U.S. 1005

(1999). Robinson’s defamation claim fails as a matter of law. The trial court

did not err in granting summary judgment in favor of School Appellees on these

four claims.

[51] Robinson also takes issue with omissions from the article, specifically, that

Johnson did not say: (a) the School treasurer is responsible for public money,

(b) she did not believe Robinson stole the money, and (3) the School did not

comply with SBOA requirements.

[52] In Town of West Terre Haute v. Roach, 52 N.E.3d 4 (Ind. Ct. App. 2016), Roach

was an at-will employee who was fired by the Town of West Terre Haute after

the SBOA informed the Town Council President that it had discovered, during

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 36 of 46 a preliminary review, that public funds were missing. Id. at 6. Ultimately, it

was found that Roach had not stolen any public funds. A newspaper article

reported on a press conference, attended by the Town Council President, during

which the allegations against Roach were discussed, but the President made no

comment in exoneration of Roach. Roach filed a complaint but did not set

forth any defamatory statement. Instead, she alleged that the President’s

omission of supporting statements resulted in defamation. Our court, granting

summary judgment in favor of the Town found, “‘It would be an odd use of the

defamation doctrine to hold that silence constitutes actionable speech.’” Id. at

11 (quoting Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 136 (Ind.

2006)).

[53] Like Roach, Robinson did not identify a defamatory statement made by

Johnson. Instead, Robinson claims that in light of her termination from

employment, she was defamed by Johnson’s failure to include in the article

statements that supported Robinson. Following our court’s reasoning in Roach,

we conclude that the trial court did not err in granting summary judgment in

favor of School Appellees on this issue.17

17 Robinson cites to Glasscock v. Corliss in support of her claim. 823 N.E.2d 748 (Ind. Ct. App. 2005), trans. denied. However, the facts before us, like those in Roach, differ from Glasscock. There, the defamatory statements were that Corliss had been fired because of discrepancies in her expense reports and had bought gifts for her family and friends. The only fair inference was that Corliss had committed misconduct by purchasing gifts for her family with company funds, thereby constituting a defamatory communication. Id. at 753. Here, Johnson’s “statements” about which Robinson objects were omissions, not commissions.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 37 of 46 2. Defamation Per Se

[54] Finally, Robinson’s claim regarding West’s statements also fails. Robinson

contends that the trial court erred when it granted summary judgment in favor

of School Appellees on her claim that she was defamed per se by a statement

made by West during a staff meeting. In her complaint, Robinson described the

defamation as follows: “The Plaintiff was again defamed sometime around the

convening of the 2009-2010 school year, during a 21st century staff meeting,

when [West] told the staff that she saw [Robinson] in Walmart ‘spending the

school’s money.’” Appellant’s App. Vol. IV at 90.

[55] Robinson contends that there was a genuine issue of material fact created by the

affidavit executed by Patricia Tatum, an affidavit that Robinson contends was

not the subject of School Appellees’ motion to strike. In that affidavit, Tatum

said: “During my employment [with the School] . . . I personally heard Angela

West make negative comments about Victoria Robinson, once at a staff

meeting . . . .”18 Appellant’s App. Vol. XI at 81. Tatum added that the staff

meeting occurred after Robinson was no longer employed at the school and that

“[d]uring the staff meeting, Mrs. West stated, “‘she saw Victoria Robinson at

Walmart spending our money.’” Id.

18 Tatum also stated that, while she and West were having lunch together, West make a negative statement about Robinson. Appellant’s App. Vol. XI at 81. Because this is the first time that such an allegation has been made in this case, that issue is waived. See Messmer v. KDK Fin. Servs., Inc., 83 N.E.3d 774, 781 (Ind. Ct. App. 2017).

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 38 of 46 [56] Regarding defamation per se, our court recently noted:

Recent Indiana decisions clarify that defamation per se as to one’s profession involves actual misconduct as opposed to a generalized opinion. In Levee v. Beeching, 729 N.E.2d 215 (Ind. Ct. App. 2000), a school principal sued a teacher’s union and the union representation for defamation per se. The union representative had called the principal a “liar” and stated that she “favored some staff.” Id. at 218. A panel of this Court concluded that the words were not “so obviously and naturally harmful that proof of their injurious character can be dispensed with.” Id. at 220. The Court also observed that the statements were not defamatory on their own, but were only defamatory with reference to the union representative’s pattern of personal attacks against the principal. Id.

Sheets v. Birky, 54 N.E.3d 1064, 1071 (Ind. Ct. App. 2016). Following the Sheets

reasoning, we cannot say that West’s statements were defamatory per se. Here,

the defamatory nature of the communication does not appear “without resort to

extrinsic facts or circumstances.” McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d

62, 65 (Ind. Ct. App. 1999), trans. denied. If West made the alleged statement

during a staff meeting, only teachers who knew of Robinson’s circumstances

would find “defamatory imputation.” Sheets, 54 N.E.3d at 1070. Accordingly,

we find no error in the trial court’s grant of summary judgment in favor of

School Appellees on this claim of defamation per se.

F. Counts VIII and IX –Board’s Breach of Duty and Negligence

[57] Robinson’s claims that she was harmed by the Board’s breach of fiduciary duty

and School Appellees’ negligent actions are related issues. To recover under a

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 39 of 46 theory of negligence, a plaintiff must show “‘(1) duty owed to plaintiff by

defendant; (2) breach of duty by allowing conduct to fall below the applicable

standard of care; and (3) compensable injury proximately caused by defendant’s

breach of duty.’” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386

(Ind. 2016) (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)).

“Absent a duty there can be no negligence or liability based upon the breach.”

Id. (citing Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004)).

[58] To prevail on a motion for summary judgment, defendants must show that the

undisputed material facts negate at least one of the elements essential to

plaintiff’s claim or that the claim is barred by an affirmative defense. Severance

v. New Castle Cmty. Sch. Corp., 75 N.E.3d 541, 546 (Ind. Ct. App.), trans. denied.

“Summary judgment is rarely appropriate in negligence cases because they are

particularly fact-sensitive and are governed by a standard of the objective

reasonable person, which is best applied by a jury after hearing all the

evidence.” Kramer v. Catholic Charities of Diocese of Ft. Wayne-S. Bend, Inc., 32

N.E.3d 227, 231 (Ind. 2015). However, the element of duty is generally a

question of law to be determined by the court. Smith v. Walsh Constr. Co. II,

LLC, 95 N.E.3d 78, 84 (Ind. Ct. App. 2018) trans. denied. Accordingly, our

review is de novo.

1. Breach of Board’s Duty

[59] Robinson contends that the Board had a statutory duty to comply with Indiana

law and that the Board breached its duty of loyalty to her by negligently

managing the School. Appellant’s Br. at 30, 31. Robinson’s theory appears to be Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 40 of 46 that, but for the Board’s failure to implement and monitor internal controls and

comply with the SBOA’s uniform guidelines, she would not have been subject

to a civil collection action by the Indiana Attorney General. Robinson claims

that her damages arose, in part, from “being unlawfully held accountable for

the difference between receipts collected and funds deposited into the ECA

[Account].” Id. at 32.

[60] Robinson fails to point to any specific evidence or caselaw to support her

contention that the Board owed her either a statutory duty to comply with the

law or a duty of loyalty. Moreover, even if the Board did owe Robinson a duty,

its failure to comply with that duty was not the proximate cause of the AG

Action. There was uncontroverted evidence before the trial court that the State

prosecutor decides whether there is a criminal action to pursue, and the

Attorney General decides whether to pursue a civil action for any

misappropriation of assets. Tr. Vol. II at 15-16. Regardless of whether the

Board acted or did not act, as a matter of law, the Board could not have been

responsible for the initiation of the AG Action to recover public funds from

Robinson. See Collins v. J.A. House, Inc., 705 N.E.2d 568, 576 (Ind. Ct. App.

1999) (affirming grant of summary judgment because, as a matter of law,

defendant’s alleged negligent act was not a proximate cause of defendant’s

injuries), trans. denied.

2. Negligence

[61] Robinson also asserts that the trial court erred in granting summary judgment

on her claim of negligence. Robinson contends that she incurred damages from Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 41 of 46 School Appellees’ negligence because School Appellees: (1) failed to have an

independent investigation regarding the financial irregularities; (2) failed to

adequately train Robinson regarding her bookkeeping duties; (3) persisted in

causing the special investigation by the SBOA, when they should have known

that Robinson did not steal or misappropriate public funds; (4) persisted in

causing the AG Action to continue, when they knew that they lacked policies,

procedures, and financial controls, which caused the financial irregularities; (5)

failed to have proper policies, procedures, and financial controls in place and

failed to comply with SBOA rules, which resulted in the foreseeable loss of

money. Appellant’s App. Vol. IV at 108

[62] Here, Robinson was hired as an officer manager, and her relationship with

School Appellees was created by the Employment Contract. Although

Robinson designated volumes of evidence, none of that evidence created a

genuine issue of material fact regarding whether School Appellees would, or

even could, by statute or under the terms of the contract, initiate an

independent financial investigation to clear Robinson’s name, stop an SBOA

audit, or dissuade the Attorney General from filing a collection action. School

Appellees had no duty to Robinson to take any of these actions on her behalf.

Furthermore, even if School Appellees had a duty to ensure that (1) Robinson

was properly trained and (2) proper policies, procedures, and financial controls

were in place, any injury that Robinson sustained was not the proximate cause

of that breach. Robinson did not contend that she knew where the missing

money was but had been unable to deposit it because she had been improperly

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 42 of 46 trained or had used the improper form or procedure; the State filed suit against

Robinson because public money could not be accounted for. From the

designated evidence, we find no genuine issue of material fact. The trial court

properly granted summary judgment in favor of School Appellees on the

negligence claim.

H. Count X -- Intentional Infliction of Emotional Distress

[63] Robinson finally contends that she was subjected to intentional infliction of

emotional distress (“IIED”) when outrageous acts by School Appellees invaded

her legal right to be free from false accusations regarding the missing money

and free from the ensuing AG Action. “The tort of [IIED] occurs when the

defendant (1) engages in extreme and outrageous conduct (2) which

intentionally or recklessly (3) causes (4) severe emotional distress to another.”

McCollough v. Noblesville Sch., 63 N.E.3d 334, 341-42 (Ind. Ct. App. 2016)

(internal quotation marks omitted), trans. denied. “The requirements to prove

this tort are rigorous, and at its foundation is ‘the intent to harm the plaintiff

emotionally.’” Id. at 342 (quoting Bah v. Mac’s Convenience Stores, LLC, 37

N.E.3d 539, 550 (Ind. Ct. App. 2015)), trans. denied. “As often quoted from

Comment (d) of the Restatement (Second) of Torts Section 46 (1965),”

The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 43 of 46 Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

McCollough, 63 N.E.3d at 342. “The question of what amounts to extreme and

outrageous conduct depends in part on prevailing cultural norms and values,

and [i]n the appropriate case, the question can be decided as a matter of law.”

Id. This is one of those cases.

[64] In her first amended complaint, Robinson alleged: “But for the deception, false

statements and unfounded representation of material fact to the SBOA and

police there would have been no litigation to recover the public funds and

therefore no defaming reports in the local newspaper.” Appellant’s App. Vol. IV

at 109. The crux of Robinson’s argument is that her emotional distress and

injuries arose from the AG Action, which, she claims, was prompted by “false

reports and statements that employees made to the SBOA.” Appellant’s Br. at

51. In her motion in opposition to School Appellees’ motion for summary

judgment, Robinson argues that it was West’s intention that Robinson be

prosecuted; therefore, when West’s report to the police did not result in

prosecution, West told the SBOA and field examiners that Robinson had stolen

the School’s funds. Appellant’s App. Vol. X at 190. Robinson asserts that there is

a genuine issue of material fact, arguing that it is necessary to determine West’s

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 44 of 46 state of mind to prove that West either intentionally or recklessly made

statements about Robinson that led to her distress.

[65] Here, it is unnecessary to investigate what West’s state of mind was when she

made the statements about Robinson’s suspected theft19 because, contrary to

Robinson’s assertion, those statements are not material to her IIED claim.

Robinson argues that West’s statements triggered the AG Action, which

resulted in her emotional distress. However, in a deposition, a member of the

audit team, Small, testified20 that the account examiners and SBOA play no role

in determining what action, if any, is pursued after an audit is certified and

forwarded to the Attorney General and prosecutor’s office. Appellant’s App. Vol.

XI at 125, 126. It is the prosecutor who decides whether there is a criminal

action to pursue, and the Attorney General who decides whether to pursue a

civil action for any misappropriation of assets. Tr. at 15-16; Appellant’s App. Vol.

XI at 125-26. This testimony was not disputed.21 Because discovery produced

no facts to support Robinson’s claim that School Appellees had subjected her to

IIED, School Appellees presented the trial court with a prima facia case that

summary judgment should be granted in their favor, and Robinson presented

19 Robinson also makes arguments regarding her damages. An argument about damages is also unnecessary if there is no causation between West’s statements and the Attorney General’s determination to bring the AG Action. 20 Mary Jo Small’s testimony was transcribed in a deposition, which was attached as Exhibit D to School Appellees’ reply in support of their motion for summary judgment. Appellant’s App. Vol. XI at 125, 126. 21 Robinson suggested that she was targeted because the School did not properly follow the SBOA protocol. Tr. at 30. We disagree. Here, Robinson was not charged for improper use of forms and procedures; instead she was charged for missing money that could not be accounted for under any form of accounting.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 45 of 46 no evidence to produce a genuine issue of material fact on that claim.

Furthermore, even if West intended to trigger the AG Action, as a matter of

law, we cannot say that her statements were so outrageous in character or

extreme in degree that her actions can be regarded as atrocious or utterly

intolerable in a civilized community.22 See Jaffri v. JPMorgan Chase Bank, N.A.,

26 N.E.3d 635, 640 (Ind. Ct. App. 2015) (holding that even assuming defendant

intentionally mishandled mortgage-related documents, such conduct is not “the

type of beyond-the-pale, ‘outrageous’ conduct that may be covered by an IIED

claim”); cf. Mitchell v. Stevenson, 677 N.E.2d 551 (Ind. Ct. App. 1997) (holding

that evidence that decedent’s second wife secretly decided to disinter decedent’s

remains, rather than maintain a grave with a headstone pursuant to an

agreement with family members, sufficiently established that wife’s actions

were deliberate and extreme and outrageous for purposes of establishing an

IIED claim), trans. denied. The trial court did not err in granting summary

judgment in favor of School Appellees on Robinson’s IIED claim

[66] Affirmed.

Vaidik, C.J., and Riley, J., concur.

22 Robinson also makes arguments regarding her damages. Because we conclude as a matter of law that Robinson cannot establish that West triggered the AG Action or that School Appellees engaged in extreme and outrageous conduct, we need not address Robinson’s claims regarding the other elements of her IIED claim.

Court of Appeals of Indiana | Memorandum Decision 45A04-1710-CT-2441 | December 31, 2018 Page 46 of 46