Virginia E. Mourning v. Allison Transmission, Inc. ( 2017 )


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  •                                                              FILED
    Mar 15 2017, 5:45 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    Steven T. Fulk                                             Andrew J. Miroff
    Fulk & Associates, LLC                                     Emmanuel V. Boulukos
    Indianapolis, Indiana                                      Derek R. Molter
    Ice Miller LLP
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Virginia E. Mourning,                                      March 15, 2017
    Appellant-Plaintiff,                                       Court of Appeals Case No.
    49A02-1608-MI-1822
    v.                                                 Appeal from the Marion Superior
    Court
    Allison Transmission, Inc.,                                The Honorable James A. Joven,
    Appellee-Defendant                                         Judge
    Trial Court Cause No.
    49D13-1504-MI-12620
    Vaidik, Chief Judge.
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017              Page 1 of 16
    Case Summary
    [1]   This case involves the interplay between Indiana Trial Rules 12(C) and 12(B).
    A Trial Rule 12(C) motion for judgment on the pleadings is typically directed
    toward a determination of the substantive merits of the controversy. A Trial
    Rule 12(B) motion to dismiss, in contrast, is directed solely toward procedural
    defects or the statement of the plaintiff’s claim for relief and does not seek to
    determine the substantive merits of the controversy. However, a defense of
    failure to state a claim upon which relief can be granted can be raised under
    either Trial Rule 12(B)(6) or Trial Rule 12(C). When raised in a Trial Rule
    12(C) motion, the court must treat the motion pursuant to Trial Rule 12(B)(6)
    and, if granted, give the plaintiff ten days to amend the complaint once as of
    right.
    [2]   Here, Virginia Mourning sued Allison Transmission, Inc. claiming that it
    played a role in getting her fired from her long-time employer, Ternes
    Packaging. Mourning alleged tortious interference with an employment
    contract and defamation. Allison Transmission then filed an ambiguously
    worded “12(C) Motion to Dismiss” alleging that Mourning “failed to state a
    claim upon which relief may be granted” and that her claims failed “as a matter
    of law.” The trial court granted Allison Transmission’s motion and entered
    final judgment in its favor. Applying the above principles here, we find that
    Mourning sufficiently pled her defamation claim but not her tortious-
    interference claim. We therefore reverse and remand this case to the trial court
    to give Mourning an opportunity to amend her complaint once as of right.
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 2 of 16
    Facts and Procedural History
    [3]   In accordance with our standard of review for judgments on the pleadings, our
    review is confined to the pleadings, accepting well-pled material facts in the
    complaint as true. Mourning became an at-will employee with Ternes
    Packaging in 1997. Ternes provides supply-chain-management services to
    Allison Transmission.
    [4]   From early February 2013 to late March 2013, Mourning took time off under
    the federal Family and Medical Leave Act (FMLA). While Mourning was on
    medical leave, a group of employees under her supervision filed a complaint
    against her. Mourning’s manager at the time assisted these employees in
    making their complaint. The complaining employees were further assisted in
    making their complaint by individuals at Allison Transmission.
    [5]   Mourning was first informed of the complaint when she returned from medical
    leave on April 1, 2013, at which point she was suspended for two weeks and
    then terminated on April 16, 2013.
    [6]   In May 2014, Mourning sued Ternes in federal court alleging violations of Title
    VII of the Civil Rights Act of 1964 and FMLA. Mourning later added state-law
    claims against Allison Transmission for tortious interference with an
    employment contract and defamation, but these claims were dismissed for lack
    of subject-matter jurisdiction. For the claims against Ternes, the district court
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 3 of 16
    granted summary judgment in its favor. See Mourning v. Ternes Packaging—Ind.,
    Inc., 1:14-cv-00772-SEB-DML (S.D. Ind. Feb. 22, 2016).1
    [7]   Mourning then filed a complaint against Allison Transmission in Marion
    Superior Court in September 2015. Mourning made the same claims that she
    had made in federal court: tortious interference with an employment contract
    and defamation. The tortious-interference count (Count I) specifically alleges:
    16. During the period of Plaintiff’s medical leave from early
    February, 2013, until her return on or about April 1, 2013, and
    during her suspension upon her return to work until her
    termination on or about April 16, 2013, Defendant Allison by
    and through its agents including without limitation Ron Sauer,
    Senior Director of Global Parts and Customization Centers, and
    Dennis Nicholas, Director of Orders Administration,
    intentionally induced the breach of the employment contract
    between Ternes and Plaintiff by communicating with Ternes
    (specifically beginning at a meeting initiated by Sauer and
    Nicholas on February 26, 2013, and continuing through
    Plaintiff’s termination on April 16, 2013) that Plaintiff was not
    competent to continue working in her position with Ternes in
    their provision of bundled services to Allison, and that Plaintiff
    was not to continue in her position of employment with Ternes.
    17. Defendant Allison had no justification for inducing the
    breach of the employment contract between Ternes and Plaintiff,
    as Defendant willfully failed to abide by established procedure
    regarding staffing requests or complaints/discipline directed to
    Ternes Packaging, and as Defendant leveraged its continued
    business relationship with Ternes (which was at that time in re-
    1
    Mourning has appealed that decision, and the appeal is pending.
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017       Page 4 of 16
    bid negotiations) to demand the termination of Plaintiff’s
    employment.
    Appellant’s App. Vol. II pp. 10-11. The defamation count (Count II)
    specifically alleges:
    20. During the period of Plaintiff’s medical leave from early
    February, 2013, until her return on or about April 1, 2013, and
    during her suspension upon her return to work until her
    termination on or about April 16, 2013, agent(s) for Defendant
    Allison by and through its agents including without limitation
    Ron Sauer, Senior Director of Global Parts and Customization
    Centers, and Dennis Nicholas, Director of Orders
    Administration, made defamatory communications regarding
    Plaintiff and her job to Ternes (specifically beginning at a
    meeting initiated by Sauer and Nicholas on February 26, 2013,
    and continuing through Plaintiff’s termination on April 16, 2013)
    stating that Plaintiff did not embrace change, was not data-
    driven, had performance issues in her position, was not
    competent to continue working in her position managing staff or
    providing bundled services to Allison, and should not . . .
    continue in her position of employment with Ternes.
    21. The communications made by Defendant Allison regarding
    Plaintiff during this period were false, were made with malice (as
    Defendant leveraged its continued business relationship with
    Ternes—which was at that time in re-bid negotiations—to
    defame Plaintiff and secure her termi[n]ation), and were
    published through inter-company communications between
    Allison and Ternes (including in-person communications
    between Sauer and Nicholas and employees at Ternes beginning
    on February 26, 2013), and through intra-company
    communications within Ternes itself.
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 5 of 16
    Id. at 11-12. Allison Transmission filed its answer in October 2015.2
    [8]    In January 2016, Allison Transmission filed a “12(C) Motion to Dismiss”
    Mourning’s complaint in which it alleged that Mourning “failed to state a claim
    upon which relief may be granted” and that her claims failed “as a matter of
    law.” Id. at 15-16. Mourning responded that she sufficiently alleged her claims
    and, in the alternative, because Allison Transmission’s Trial Rule 12(C) motion
    alleged failure to state a claim, it should be treated like a Trial Rule 12(B)(6)
    motion, which meant that she would have a right to amend her complaint and
    fix any defects if the motion were granted. In March 2016, the trial court
    granted Allison Transmission’s motion and entered final judgment in its favor.
    [9]    Mourning now appeals.
    Discussion and Decision
    [10]   This case involves the relationship between Trial Rules 12(C) and 12(B).
    According to Trial Rule 12(C), after the pleadings are closed but within such
    time as not to delay the trial, any party may move for judgment on the
    pleadings. A motion for judgment on the pleadings is typically directed toward
    a determination of the substantive merits of the controversy. Davis ex rel. Davis
    v. Ford Motor Co., 
    747 N.E.2d 1146
    , 1149 (Ind. Ct. App. 2001) (citing 5C
    Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1369 (3d
    2
    The answer is not included in the record on appeal.
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 6 of 16
    ed. 2004)), trans. denied. Such motions should be granted “only where it is clear
    from the face of the complaint that under no circumstances could relief be
    granted.” Woodruff v. Ind. Family & Soc. Servs. Admin., 
    964 N.E.2d 784
    , 789
    (Ind. 2012) (quotation omitted); see also ESPN, Inc. v. Univ. of Notre Dame Police
    Dep’t, 
    62 N.E.3d 1192
    , 1195 (Ind. 2016) (judgment on the pleadings should be
    granted only “where it is clear from the face of the pleadings that one party is
    entitled to prevail as a matter of law”). “[A] judgment on the pleadings is, in
    reality, a summary judgment minus affidavits and other supporting
    documents.” 1A William F. Harvey, Indiana Practice, Rules of Procedure
    Annotated, Trial Rule 12(C) Civil Code Study Commission Comments (3d ed.
    1999).
    [11]   Trial Rule 12(B), on the other hand, provides for certain defenses to be raised
    by motion before an answer is filed. In contrast to a typical Trial Rule 12(C)
    motion for judgment on the pleadings, a Trial Rule 12(B) motion is directed
    solely toward procedural defects or the statement of the plaintiff’s claim for
    relief and does not seek to determine the substantive merits of the controversy.
    Davis, 
    747 N.E.2d at 1149
    ; 5C Wright & Miller, § 1369. One of the defenses
    that can be raised is failure to state a claim upon which relief can be granted.
    See Ind. Trial Rule 12(B)(6). The basic purpose of a Trial Rule 12(B)(6) motion
    to dismiss is to test the legal sufficiency of the complaint to state an actionable
    claim, not to test the truth of the facts alleged in the complaint. Davis, 
    747 N.E.2d at 1149
    . This defense is typically used in one of three situations: (1) the
    allegations in the complaint are so insufficient that the pleader has stated no
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 7 of 16
    claim for relief; (2) the pleader has alleged sufficient facts to state a claim for
    relief but has also alleged facts that disclose a bar to the suit or claim (such as
    when the complaint establishes a statute-of-limitations defense); and (3) the
    pleader has made an allegation that is not recognized in the law as a basis for
    recovery. 22 Stephen E. Arthur, Indiana Practice, Civil Trial Practice § 15.19 (2d
    ed. 2007). Importantly, when a motion to dismiss is sustained for failure to
    state a claim under 12(B)(6), “the pleading may be amended once as of right
    pursuant to Rule 15(A) within ten [10] days after service of notice of the court’s
    order . . . .” T.R. 12(B).
    [12]   However, a motion under Trial Rule 12(B)(6) is not the only way to raise a
    defense of failure to state a claim upon which relief can be granted. This
    defense can also be made in a Trial Rule 12(C) motion or at trial. T.R. 12(H).
    We have previously explained the relationship between Trial Rule 12(C) and
    Trial Rule 12(B) as follows: “a T.R. 12(B) motion is essentially procedural,
    while a T.R. 12(C) motion is substantive unless it is brought on T.R. 12(B)
    grounds.” Davis, 
    747 N.E.2d at 1150
     (emphasis added). Accordingly, where a
    motion for judgment on the pleadings raises a defense of failure to state a claim
    upon which relief can be granted, the motion for purposes of that defense
    should be treated in the same manner as a Trial Rule 12(B)(6) motion to dismiss
    for failure to state a claim. See Columbus Specialty Surgery Ctr. v. Se. Ind. Health
    Org., 
    22 N.E.3d 665
    , 669 (Ind. Ct. App. 2014); Gregory & Appel, Inc. v. Duck, 
    459 N.E.2d 46
    , 49 (Ind. Ct. App. 1984) (“We agree that where a 12(B)(6) defense is
    raised by a 12(C) motion for judgment on the pleadings, the court must treat the
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017    Page 8 of 16
    motion pursuant to 12(B)(6) and accord the non-moving party ten days to
    amend as a matter of right.”); Anderson v. Anderson, 
    399 N.E.2d 391
    , 405 (Ind.
    Ct. App. 1979); see also 22 Stephen E. Arthur, § 15.24 (“When a motion under
    Trial Rule 12(C) challenges the sufficiency of a plaintiff’s complaint because of
    the failure to state a claim upon which relief can be granted, that motion should
    be determined by the same standard that is applicable to a motion under Trial
    Rule 12(B)(6).”). The rationale for this rule is that a plaintiff’s right to amend a
    complaint should not be based on whether the defendant’s challenge to its
    sufficiency is brought under the guise of Trial Rule 12(B)(6) or Trial Rule 12(C).
    Davis, 
    747 N.E.2d at 1151
    . “There is no principled reason why the fact of
    closed pleadings should be determinative of the plaintiff’s right to amend his or
    her complaint when the basis of the motion for judgment on the pleadings is the
    failure of the complaint to state a claim.” 
    Id.
    [13]   Here, Mourning contends that the trial court erred by not treating Allison
    Transmission’s Trial Rule 12(C) motion as a Trial Rule 12(B)(6) motion, which
    would have given her an opportunity to amend her complaint and fix any
    defects. Allison Transmission responds that the trial court properly treated it as
    a substantive Trial Rule 12(C) motion. It argues that “[a] customer complaint
    does not constitute tortious interference or defamation as a matter of law.”
    Appellee’s Br. p. 24. But Allison Transmission fails to cite any authority in
    support of its position that a customer or client can never be held liable for
    tortious interference or defamation based on statements it makes to a service
    provider about one of the service provider’s employees, and we are aware of
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 9 of 16
    none. Accordingly, the trial court’s judgment on the merits in Allison
    Transmission’s favor cannot be affirmed on this basis.
    [14]   As for whether Mourning failed to state a claim upon which relief can be
    granted, which is a defense that may be made in a “procedural” Trial Rule
    12(C) motion and is subject to Trial Rule 12(B)(6) standards, Allison
    Transmission first argues that Mourning did not sufficiently plead the operative
    facts to support her claim of tortious interference with an employment contract.
    See State v. Am. Family Voices, Inc., 
    898 N.E.2d 293
    , 296 (Ind. 2008) (noting that
    although Indiana’s notice-pleading rules do not require the complaint to state
    all elements of a cause of action, the plaintiff must still plead the operative facts
    necessary to set forth an actionable claim).
    [15]   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
    breach. 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. Id. at 775. That is, the plaintiff must set
    forth factual allegations from which it can reasonably be inferred that the
    defendant’s conduct was unjustified. Morgan Asset Holding Corp. v. CoBank,
    ACB, 
    736 N.E.2d 1268
    , 1272 (Ind. Ct. App. 2000). In this context,
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 10 of 16
    “unjustified” means “malicious and exclusively directed to the injury and
    damage of another.” Duty, 23 N.E.3d at 775; see also Bochnowski v. Peoples Fed.
    Sav. & Loan Ass’n, 
    571 N.E.2d 282
    , 285 (Ind. 1991) (“The plaintiff bringing [an
    action for tortious interference] must be prepared to show that the defendant
    interferer acted intentionally and without a legitimate business purpose.”).
    [16]   To support the absence-of-justification element, Mourning alleged the following
    facts:
    17. Defendant Allison had no justification for inducing the
    breach of the employment contract between Ternes and Plaintiff,
    as Defendant willfully failed to abide by established procedure
    regarding staffing requests or complaints/discipline directed to
    Ternes Packaging, and as Defendant leveraged its continued
    business relationship with Ternes (which was at that time in re-
    bid negotiations) to demand the termination of Plaintiff’s
    employment.
    Appellant’s App. Vol. II pp. 10-11. As Allison Transmission points out on
    appeal, Mourning’s factual allegations “address how Allison allegedly went
    about causing [her] to get fired, not why it did so.” Appellee’s Br. p. 16. In
    other words, just because Allison Transmission may not have gone through the
    correct channels or may have been in contract negotiations with Ternes does
    not mean that it acted unjustifiably, i.e. with malice, when it made the
    statements about Mourning. Accordingly, Mourning’s complaint fails to state a
    claim for tortious interference. Cf. Duty, 23 N.E.3d at 775 (concluding that
    plaintiff stated a claim for tortious interference by alleging that defendant’s
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 11 of 16
    actions were “vindictive,” because “[v]indictiveness is, by its nature,
    malicious”).
    [17]   Allison Transmission next argues that Mourning did not sufficiently plead the
    operative facts to support her claim of defamation. The general elements of
    defamation are: (1) a communication with defamatory imputation, (2) malice,
    (3) publication, and (4) damages.3 Trail v. Boys & Girls Clubs of Nw. Ind., 
    845 N.E.2d 130
    , 136 (Ind. 2006). Mourning alleged the following facts to support
    her defamation claim:
    20. [Defendant Allison stated] that Plaintiff did not embrace
    change, was not data-driven, had performance issues in her
    position, was not competent to continue working in her position
    managing staff or providing bundled services to Allison, and
    should not . . . continue in her position of employment with
    Ternes.[4]
    3
    The parties proceed as if malice is a required element of Mourning’s defamation claim; indeed,
    Mourning’s complaint alleges malice. While private individuals must show actual malice when the
    communication in question relates to an issue of public concern, if the matter does not concern the
    public, then malice is not a required element. See 23 James R. Fisher & Debra H. Miller, Indiana
    Practice, Personal Injury Law and Practice, § 3:21 (2d ed. 2007); see also Brewington v. State, 
    7 N.E.3d 946
    ,
    962 (Ind. 2014) (“Determining whether a controversy is of public or general concern is a question of
    law for the court. . . . Out of an abundance of caution, though, we will assume arguendo that if a
    psychologist actually were abusing his position of trust to give corrupt expert testimony or for personal
    gratification, it would be a matter of public or general concern. Under that assumption, the actual-
    malice standard would apply . . . .” (emphasis added)), reh’g denied. It is not clear why the parties treat
    malice as a required element in this seemingly private matter. However, because they do, we do the
    same.
    4
    Allison Transmission argues that “[n]one of th[e]se statements are false statements of verifiable fact.”
    Appellee’s Br. p. 18. Even a statement that on first blush appears to constitute an opinion may still be
    legally defamatory if “a reasonable fact finder could conclude that the statement implies facts which
    may be proven true or false.” McQueen v. Fayette Cty. Sch. Corp., 
    711 N.E.2d 62
    , 66 (Ind. Ct. App.
    1999), trans. denied. Accordingly, we find that Mourning’s allegations are sufficient. See 
    id.
     (“Miller’s
    statement [that McQueen destroyed the girls’ basketball program] implies verifiable facts regarding
    McQueen’s performance and conduct as a basketball scout and coach. The statement at issue was not
    uttered by an irate fan during a hotly contested basketball game or by a sports commentator, but by
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                            Page 12 of 16
    21. The communications made by Defendant Allison regarding
    Plaintiff during this period were false, were made with malice
    (as Defendant leveraged its continued business relationship
    with Ternes—which was at that time in re-bid negotiations—
    to defame Plaintiff and secure her termi[n]ation), and were
    published through inter-company communications between
    Allison and Ternes . . . and through intra-company
    communications within Ternes itself.
    22. Defendant Allison . . . made these communications without
    belief or grounds for belief in their truth, as at the time Plaintiff
    went on leave she had no disciplinary record or pending
    complaints whatsoever regarding her performance in the
    provision of bundled services to Allison.
    Appellant’s App. Vol. II pp. 11-12 (emphasis added).
    [18]   Allison Transmission specifically challenges the malice element of Mourning’s
    defamation claim. Allison Transmission makes the same argument that it did
    with respect to the absence-of-justification element of Mourning’s tortious-
    interference claim, that is, it argues that Mourning’s factual allegations for the
    malice element address “how Allison allegedly caused M[s]. Mourning’s
    termination, not why,” which is not enough. Appellee’s Br. p. 19.
    another coach, a professional colleague. At this early stage in the litigation, we must infer there was a
    factual predicate for Miller’s statement of McQueen’s job performance and that those within earshot
    understood his statement to be grounded in fact. Thus, McQueen’s complaint is sufficient on its face,
    and it would be premature to dismiss the complaint [pursuant to Trial Rule 12(B)(6)].”).
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                          Page 13 of 16
    [19]   But malice for purposes of tortious interference is different than malice for
    purposes of defamation. In the defamation context, the actual-malice element
    is not to be confused with the ordinary definition of malice as “an evil intent or
    motive arising from spite or ill will.” McCollough v. Noblesville Schs., 
    63 N.E.3d 334
    , 348 (Ind. Ct. App. 2016) (quotation omitted), trans. denied. Rather, actual
    malice as an element of defamation exists when the defendant publishes a
    defamatory statement “with knowledge that it was false or with reckless
    disregard of whether it was false or not.” 
    Id.
     (quotations omitted). Here,
    Mourning included parenthetical information after it alleged that Allison
    Transmission made the defamatory statements with “malice”:
    21. The communications made by Defendant Allison regarding
    Plaintiff during this period . . . were made with malice (as
    Defendant leveraged its continued business relationship with
    Ternes—which was at that time in re-bid negotiations—to
    defame Plaintiff and secure her termi[n]ation) . . . .
    Appellant’s App. Vol. II p. 12 (emphasis added). Although this parenthetical
    information does not address the “actual malice” standard for defamation,
    Mourning alleged in Paragraph No. 22 that Allison Transmission made the
    false communications “without belief or grounds for belief in their truth.”5 This
    5
    Anticipating that Allison Transmission would claim the common-interest privilege, see McCollough, 63
    N.E.3d at 348 (explaining that this privilege applies to communications made in good faith on any subject
    matter in which the party making the communication has an interest if made to a person having a
    corresponding interest), Mourning alleged in Paragraph No. 22 that Allison Transmission abused this
    privilege as follows:
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                      Page 14 of 16
    satisfies the specificity required for stating actual malice in a defamation suit
    under our notice-pleadings rules, and the parenthetical information about
    Allison Transmission leveraging its business relationship is mere surplusage.
    See Miller by Miller v. Mem’l Hosp. of S. Bend, Inc., 
    679 N.E.2d 1329
    , 1332 (Ind.
    1997) (the notice-pleading rule “is designed to discourage battles over mere
    form of statement and to sweep away needless controversies that have occurred
    either to delay trial on the merits or to prevent a party from having a trial
    because of mistakes in statement” (quotation omitted)); see also Ind. Trial Rule
    8(F) (“All pleadings shall be so construed as to do substantial justice, lead to
    disposition on the merits, and avoid litigation of procedural points.”).
    22. Defendant Allison made the foregoing defamatory communications in bad faith (as
    Defendant willfully failed to abide by established procedure regarding staffing requests or
    complaints/discipline directed to Ternes Packaging, and as Defendant leveraged its
    continued business relationship with Ternes which was at that time in re-bid
    negotiations), excessively published them through numerous conversations over the
    period of Plaintiff’s medical absence, and/or made these communications without belief
    or grounds for belief in their truth, as at the time Plaintiff went on leave she had no
    disciplinary record or pending complaints whatsoever regarding her performance in the
    provision of bundled services to Allison.
    Appellant’s App. Vol. II p. 12; see McCollough, 63 N.E.3d at 348 (explaining that plaintiff can show
    an abuse of this privilege in one of three ways: (1) the communicator was motivated primarily by
    ill will (absence of good faith); (2) the communication was published excessively; or (3) the
    communication was made without belief or grounds for belief in its truth). Mourning’s allegation
    that Allison Transmission published the communications excessively through numerous
    conversations is sufficient to withstand Allison Transmission’s Trial Rule 12(B)(6) challenge. See
    Appellee’s Br. p. 24 (Allison Transmission explaining that whether its statements are subject to the
    privilege is a “typical Rule 12(B)(6) analysis”).
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                         Page 15 of 16
    [20]   We reverse the dismissal of Mourning’s defamation claim and remand this case
    to give Mourning an opportunity to amend her tortious-interference claim once
    as of right pursuant to Trial Rule 15(A).6 See T.R. 12(B).
    [21]   Reversed and remanded.
    Bradford, J., and Brown, J., concur.
    6
    Allison Transmission argues that giving Mourning an opportunity to amend her complaint would be a
    “fleeting victory” because collateral estoppel “would then bar her suit based on the recent summary judgment
    in federal court . . . .” Appellee’s Br. p. 25. Because Allison Transmission does not list the elements of
    collateral estoppel or explain how they apply to the facts in this case, this argument is waived.
    Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                     Page 16 of 16
    

Document Info

Docket Number: Court of Appeals Case 49A02-1608-MI-1822

Judges: Vaidik, Bradford, Brown

Filed Date: 3/15/2017

Precedential Status: Precedential

Modified Date: 11/11/2024