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.)

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.
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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.
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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.
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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.
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[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.
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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.
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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
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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.
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[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.
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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.
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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.
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[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
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[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.
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[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.
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[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
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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.
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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
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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
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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
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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
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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
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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
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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,
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“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.
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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
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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
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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
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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.
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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
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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.
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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).
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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
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(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.
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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
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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
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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.
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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).
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[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
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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
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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
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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
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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.
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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
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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.
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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.
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