      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                 Aug 08 2017, 8:21 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
      Gregory W. Black                                         Graham T. Youngs
      Gregory W. Black, P.C.                                   Steuerwald, Hannon & Witham,
      Plainfield, Indiana                                      LLP
                                                               Danville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Bradley K. Buchanan,                                     August 8, 2017
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               67A01-1704-PL-861
              v.                                               Appeal from the Putnam Circuit
                                                               Court
      Tina Fox,                                                The Honorable Joseph D. Trout,
      Appellee-Defendant                                       Special Judge
                                                               Trial Court Cause No.
                                                               67C01-1208-PL-332



      Najam, Judge.


                                       Statement of the Case
[1]   Bradley K. Buchanan appeals the trial court’s grant of Tina Fox’s motion for

      summary judgment on Buchanan’s complaint, in which Buchanan had alleged

      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017               Page 1 of 15
      malicious prosecution, abuse of process, and intentional infliction of emotional

      distress, among other theories of liability. Buchanan presents several issues for

      our review, but we address two dispositive issues:


              1.       Whether the trial court abused its discretion when it struck
                       portions of his affidavit.

              2.       Whether the trial court erred when it entered summary
                       judgment in favor of Fox.


[2]   We affirm.


                                  Facts and Procedural History
[3]   From approximately October 2004 until December 2007, Fox and Buchanan

      lived together in Greencastle and were engaged in a romantic relationship. In

      October 2008, Sargent Scott Stockton with the Indiana State Police White

      Collar Crime Section (“WCCS”) began investigating alleged insurance fraud by

      Buchanan, an insurance broker with Buck Insurance. In the course of that

      investigation, Sargent Stockton contacted Fox and questioned her about the

      alleged insurance fraud.1 In addition, Sargent Stockton asked Fox whether she

      had “any knowledge about Mr. Buchanan possessing what might be stolen or

      illegal firearms.” Appellant’s App. Vol. 3 at 152. In response to “the questions

      about firearms,” Fox “reported to Sargent Stockton that on one occasion Mr.




      1
        Our review of the record indicates that Fox may have worked in Buchanan’s office while they were living
      together.

      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017            Page 2 of 15
      Buchanan had commented that he believed that two handguns he had just

      purchased might well be ‘hot’ because he was able to buy them so cheaply.” Id.

      Fox “had no knowledge one way or another whether Mr. Buchanan was

      correct and [she] never told anyone that Mr. Buchanan did own or did possess

      stolen or illegal firearms.” Id. at 153.


[4]   In mid-2009, Detective Brent Gulinson, also with the WCCS, took over the

      investigation from Sargent Stockton. Detective Gulinson contacted Fox, and

      she told him what she had told Sargent Stockton about Buchanan’s alleged

      insurance fraud and possession of possibly stolen firearms. On November 12,

      2009, Detective Brent Gulinson submitted an affidavit of probable cause for a

      search warrant for Buchanan’s residence and alleged in relevant part that

      Buchanan possessed “stolen guns and ammunition as well as evidence of [sic]

      related to insurance fraud and theft[.]” Appellant’s App. Vol. 2 at 63.

      Detective Gulinson stated that a “source of information” (“SOI”) who had

      lived with Buchanan from October 2004 until December 2007 had reported that

      “on or about 2006” Buchanan bought two small handguns for $100 and stated

      to the SOI “‘I know these are stolen’ or some similar statement indicating that

      the weapons” were stolen. Id. at 64. Also on November 12, 2009, Detective

      Gulinson filed a second affidavit for probable cause requesting an arrest warrant

      based solely on the insurance fraud allegations against Buchanan. And the

      State charged Buchanan with corrupt business influence, as a Class C felony,

      and four counts of felony theft. A trial court issued both warrants.




      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 3 of 15
[5]   On November 13, Indiana State Police officers executed the warrants at

      Buchanan’s residence. Officers arrested Buchanan and, in the course of the

      search of his residence, they recovered “miscellaneous documents” and

      “firearms,” including approximately ten handguns, twelve shotguns, and

      multiple rifles. Appellant’s App. Vol. 3 at 183. On November 29, 2010,

      Buchanan pleaded guilty to one count of theft, as a Class D felony, based on

      one of the insurance fraud allegations.


[6]   On November 11, 2011, Buchanan filed a complaint for damages against

      multiple defendants including Fox, the State, the Indiana Department of

      Insurance, and the Putnam County Sheriff’s Department. Buchanan alleged

      multiple torts and “breach of contract” against the various defendants stemming

      from his arrest on November 13, 2009, during which he was allegedly “bound

      physically” with “police weapons . . . placed against his head and body in a

      rude and insolent manner.” Appellant’s App. Vol. 2 at 47. Buchanan alleged

      in part that he “was made to feel physical pain, discomfort, as well as emotional

      pain and suffering” as a result of “the ordeal of the search and apprehension”

      by law enforcement officers.” Id. With regard to Fox in particular, Buchanan

      alleged:

              The allegations as to firearms was a material contributing factor
              that led to the search warrant, search of Mr. Buchanan’s home
              and his arrest, for suspected wrongdoing as to firearms, and to
              the seizure and retention of such firearms, to this day, by state
              police. . . .

                                                      ***

      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 4 of 15
              Apparently no charges were preferred or brought against Mr.
              Buchanan related to the firearms, in any manner. . . .

              Allegations of Ms. Fox as to the firearms were a proximate cause
              and contributing or direct cause of the damages Mr. Buchanan
              has suffered at bar.

              Mr. Buchanan pleaded guilty to felony charges [related to
              insurance fraud] and is on probation as part of his sentence
              pursuant to such plea.

                                                      ***

              The plea is unrelated to the firearms. The allegations as to
              firearms remain false, malicious, permanently so, producing
              damage continuously.


      Id. at 48. On March 28, Buchanan filed an amended complaint to add

      additional plaintiffs and additional claims that pertained to defendants other

      than Fox.


[7]   On November 4, 2016, Fox filed a summary judgment motion and a

      memorandum and designated evidence in support of summary judgment. On

      January 9, 2017, Buchanan filed a response and designated evidence in

      opposition to summary judgment, including an affidavit. Fox filed a response

      and moved to strike portions of Buchanan’s designated evidence, including

      portions of his affidavit. The trial court granted Fox’s motion to strike in part

      and granted her summary judgment motion. Buchanan filed a motion to

      correct error, which the trial court denied. This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 5 of 15
                                     Discussion and Decision
                                            Issue One: Affidavit

[8]   Buchanan first contends that the trial court abused its discretion when it struck

      portions of his affidavit designated in opposition to summary judgment. Fox

      had moved the trial court to strike portions of Buchanan’s affidavit because she

      alleged that they constituted “improper affidavit testimony” under Trial Rule

      56(E).2 Appellant’s App. Vol. 4 at 65. For example, Fox moved to strike

      Buchanan’s opinions with regard to Fox’s motives in telling Sargent Stockton

      that Buchanan thought that two handguns he had purchased might have been

      stolen. The trial court granted the motion to strike the following excerpts from

      Buchanan’s affidavit:


              • “with malice ulterior purpose [sic]”

              • “Motives of Ms. Fox were revenge, malice, harm”

              • “She did so not for justice, but for revenge”

              • “Judge Smith did not believe the awful things she said about
              me. Her dishonesty in that case carried over into other
              situations”

              • “Yet Tina accuses me of wrongdoing”




      2
        Fox also moved to strike portions of other evidence Buchanan had designated in opposition to summary
      judgment, but Buchanan does not appeal the trial court’s ruling with respect to those matters.

      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017          Page 6 of 15
        • “I found out on & after my arrest in November 2009 Tina had
        told police I was a thief or participant of theft of firearms. Thus
        the police considered me dangerous”

        • “unlike the normal white collar criminal”

        • “The manner of Tina’s lies about firearms to police has
        contributed to my emotional damage, trauma”

        • “[Tina’s] lies about the firearms”

        • “Her lies caused my father deprivation of his firearms the rest
        of his life, me deprivation until 2016, from late 2009 until
        summer 2016, nearly seven years”

        • “Tina meant to harm me, far exceeding any privilege she had
        to discuss me with government officials. She had no reason to
        discuss me with government officials and knew that. Her
        friendship with Patty Buchanan led her to lie about me.”

        • “Tina Fox is guilty of false reporting. She did so out of
        hatred.”

        • “She says the police asked her whether I had stolen firearms.
        She is the only person who could have raised stolen firearms as
        an issue. No one else ever has done so, no other person I’ve ever
        lived with has done so.”


Appellant’s App. Vol. 2 at 39-41.


        [A] trial court has broad discretion in ruling on the admissibility
        of evidence. Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc.,
        773 N.E.2d 881, 886 (Ind. Ct. App. 2002). This discretion
        extends to rulings on motions to strike affidavits on the grounds
        that they fail to comply with the summary judgment rules. Id.


Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 7 of 15
              Indiana Trial Rule 56(E) provides in relevant part that affidavits
              submitted in support of or in opposition to a summary judgment
              motion “shall be made on personal knowledge, shall set forth
              such facts as would be admissible in evidence, and shall show
              affirmatively that the affiant is competent to testify to the matters
              stated therein.” Further, “[s]worn or certified copies not
              previously self-authenticated of all papers or parts thereof referred
              to in an affidavit shall be attached thereto or served therewith.”
              Id. “The requirements of T.R. 56(E) are mandatory—therefore, a
              court considering a motion for summary judgment should
              disregard inadmissible information contained in supporting or
              opposing affidavits.” Interstate Auction, Inc. v. Cent. Nat’l Ins.
              Group, Inc., 448 N.E.2d 1094, 1101 (Ind. Ct. App. 1983).


      Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005).


[9]   Further,


              [a]ffidavits must comply with Indiana Evidence Rule 701, which
              provides:

                       If a witness is not testifying as an expert, testimony in
                       the form of an opinion is limited to one that is:

                       (a) rationally based on the witness’s perception; and

                       (b) helpful to a clear understanding of the witness’s
                       testimony or to a determination of a fact in issue.

              The witness must set forth enough facts to allow the trial court to
              find, pursuant to Evidence Rule 104(a), that the opinion is
              rationally based on the witness’s personal perceptions. Ackles v.
              Hartford Underwriters Ins. Corp., 699 N.E.2d 740, 743 (Ind. Ct.
              App. 1998), trans. denied; 13 Robert Lowell Miller, Jr., Indiana
              Practice § 701.103 (3d ed. 2007). The witness need not identify
              all of the perceived facts on which the opinion is based, 13
      Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 8 of 15
               Robert Lowell Miller, Jr., at § 701.103; rather, the witness must
               merely provide a basis sufficient for the judge to determine that
               the opinion is rationally based on the perceptions of the witness.
               When a witness has not identified the objective bases for her opinion, the
               proffered opinion obviously fails to meet the requirements of Evidence
               Rule 701 because (1) there is no way for the court to assess whether it is
               rationally based on the witness’s perceptions and (2) the opinion does not
               help the factfinder but only tells it in conclusory fashion what it should
               find. Ackles, 699 N.E.2d at 743; see also Paramo v. Edwards, 563
               N.E.2d 595, 600 (Ind. 1990) (“Conclusory statements not
               admissible at trial should be disregarded when determining
               whether to grant or deny a summary judgment motion.”). The
               extent of the requisite detail varies from case to case, and lies
               within the trial court’s discretion. Ackles, 699 N.E.2d at 743; 13
               Robert Lowell Miller, Jr., at § 701.103. Courts require greater
               detail as the subject of the opinion draws nearer to a central issue
               in the case. 13 Robert Lowell Miller, Jr., at § 701.103.


       Whitlock v. Steel Dynamics, Inc., 35 N.E.3d 265, 269 (Ind. Ct. App. 2015)

       (emphasis added), trans. denied.


[10]   Buchanan’s argument on appeal is difficult to discern. In essence, Buchanan

       maintains that the stricken statements are admissible because they “are based

       on what any reasonable person would sense, conclude, from his own . . .

       rational perception under the circumstances [and] his familiarity with the topics

       reasonably inferred[.]” Appellant’s Br. at 23. He asserts that his personal

       knowledge of Fox’s motives are “readily inferred” and that he is permitted to

       testify about Fox’s state of mind. Id. at 21. Buchanan also states that his

       “romance” with Fox is the “foundation” for his statements. Id. at 22.




       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 9 of 15
[11]   But Buchanan has not identified the objective bases, the factual predicates,

       either for his opinion regarding Fox’s motives and veracity or for his statements

       regarding Judge Smith’s opinion of Fox and how a “normal” white collar

       criminal would be treated. Thus, the stricken portions of Buchanan’s affidavit

       are inadmissible opinions and conclusory statements. See Whitlock, 35 N.E.3d

       at 269. We hold that the trial court did not abuse its discretion when it struck

       portions of Buchanan’s affidavit.


                                       Issue Two: Summary Judgment

[12]   Buchanan contends that the trial court erred when it entered summary

       judgment in favor of Fox.3 Our standard of review is clear. “We first observe

       that a trial court’s order granting summary judgment comes to us ‘cloaked with

       a presumption of validity.’” DiMaggio v. Rosario, 52 N.E.2d 896, 903 (Ind. Ct.

       App. 2016) (internal citations omitted). Further,


                [w]e review summary judgment de novo, applying the same
                standard as the trial court: “Drawing all reasonable inferences in
                favor of . . . the non-moving parties, summary judgment is
                appropriate ‘if the designated evidentiary matter shows that there
                is no genuine issue as to any material fact and that the moving
                party is entitled to judgment as a matter of law.’” Williams v.
                Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting 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




       3
         The trial court entered judgment in favor of Fox under Trial Rule 54(B) and stated that “no just reason for
       delay of entry of Final Judgment exists.” Appellant’s App. Vol. 2 at 35.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017              Page 10 of 15
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). 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 he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley). However, we will affirm the “trial court’s entry of summary

       judgment if it can be sustained on any theory or basis in the record.” DiMaggio,

       52 N.E.3d at 904.


[13]   We emphasize that summary judgment is a “high bar” for the moving party to

       clear in Indiana. Hughley, 15 N.E.3d at 1004. “In particular, while federal

       practice permits the moving party to merely show that the party carrying the

       burden of proof [at trial] lacks evidence on a necessary element, we impose a

       more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at

       1003 (quoting Jarboe v. Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d

       118, 123 (Ind. 1994)).




       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 11 of 15
[14]   In his complaint, Buchanan alleged, in essence, that Fox was liable under the

       following theories: malicious prosecution, abuse of process, and intentional

       infliction of emotional distress. The trial court entered summary judgment in

       favor of Fox on all counts, but Buchanan appeals the entry of summary

       judgment only with respect to the malicious prosecution and abuse of process

       counts.4 The elements of a malicious prosecution action are: (1) the defendant

       instituted or caused to be instituted an action against the plaintiff; (2) the

       defendant acted maliciously in so doing; (3) the defendant had no probable

       cause to institute the action; and (4) the original action was terminated in the

       plaintiff's favor. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 249-50 (Ind. Ct.

       App. 2013), trans. denied. An abuse of process claim requires a showing that a

       defendant had: (1) an ulterior purpose or motives; and (2) a willful act in the

       use of process not proper in the regular conduct of a proceeding. Id. at 250.


[15]   In her summary judgment motion, Fox contended in relevant part that she was

       entitled to summary judgment on all counts, including Buchanan’s allegations

       of malicious prosecution and abuse of process, under the qualified privilege

       doctrine, which “protects ‘communications made in good faith on any subject

       matter in which the party making the communication has an interest or in

       reference to which he has a duty, either public or private, either legal, moral, or

       social, if made to a person having a corresponding interest or duty.’” Kelley v.




       4
         To the extent Buchanan contends that the trial court did not rule on his claim of intentional infliction of
       emotional distress, that claim is without merit.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017                Page 12 of 15
       Tanoos, 865 N.E.2d 593, 597 (Ind. 2007) (quoting Bals v. Verduzco, 600 N.E.2d

       1353, 1356 (Ind. 1992). As our Supreme Court has explained,

       “communications to law enforcement officers are protected by this qualified

       privilege” in order to “‘enhance[] public safety by facilitating the investigation

       of suspected criminal activity.’” Id. (quoting Holcomb v. Walter’s Dimmick

       Petroleum, Inc., 858 N.E.2d 103, 108 (Ind. 2006), abrogated on other grounds). In

       the absence of a factual dispute, the applicability of this “public interest

       privilege” is a question of law to be determined by the court. Id. Our courts

       have applied the qualified privilege doctrine to claims of malicious prosecution

       and abuse of process. See Brown v. Indpls. Housing Agency, 971 N.E.2d 181, 186

       (Ind. Ct. App. 2012) (malicious prosecution); Holcomb, 858 N.E.2d at 107

       (abuse of process).


[16]   In support of her summary judgment motion, Fox designated evidence showing

       that Sargent Stockton had contacted her to ask her questions about Buchanan’s

       alleged insurance fraud and, in the course of their conversations, Sargent

       Stockton had asked Fox whether she had “any knowledge about Mr. Buchanan

       possessing what might be stolen or illegal firearms.” Appellant’s App. Vol. 3 at

       152. In response to “the questions about firearms,” Fox “reported to Sargent

       Stockton that on one occasion Mr. Buchanan had commented that he believed

       that two handguns he had just purchased might well be ‘hot’ because he was

       able to buy them so cheaply.” Id. Fox designated evidence showing that she

       “had no knowledge one way or another whether Mr. Buchanan was correct and




       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 13 of 15
       [she] never told anyone that Mr. Buchanan did own or did possess stolen or

       illegal firearms.” Id. at 153.


[17]   On appeal, Buchanan concedes that Fox “had a duty to report” and “Trooper

       Gulinson had a duty to listen.” Appellant’s Br. at 30. Thus, Buchanan does

       not challenge the applicability of the qualified privilege asserted by Fox. Still,

       as he correctly points out, “the privilege is not without limits: a statement ‘may

       lose its privileged character upon a showing of abuse wherein: (1) the

       communicator was primarily motivated by ill will in making the statement; (2)

       there was excessive publication of the defamatory statements; or (3) the

       statement was made without belief or grounds for belief in its truth.’” Bah v.

       Mac’s Convenience Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (quoting

       Bals, 600 N.E.2d at 1356), trans. denied. And Buchanan maintains that Fox lost

       the privilege because, when she made the statements about his possible

       unlawful possession of firearms, she was “motiv[at]ed primarily by ill will” and

       made the statements “without belief or without grounds for belief in truth.”

       Appellant’s Br. at 30.


[18]   But Buchanan does not direct us to designated evidence, other than the stricken

       portions of his affidavit, in support of his contentions on this issue. Without

       any such evidence, Buchanan has not met his burden to establish a genuine

       issue of material fact to preclude summary judgment on the qualified privilege

       issue. See, e.g., Kelley, 865 N.E.2d at 602 (holding summary judgment on

       defamation claim appropriate because plaintiff did not designate evidence to

       establish a genuine issue of material fact to show that defendant had abused the

       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017   Page 14 of 15
       privilege). The trial court did not err when it entered summary judgment for

       Fox.5


[19]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       5
         We note that, as Fox correctly points out, Buchanan’s allegation of malicious prosecution also fails as a
       matter of law because Fox “did not institute or cause to be instituted the criminal action against [Buchanan];
       the prosecutor did.” Bah, 37 N.E.3d at 547. And Fox designated evidence showing that Buchanan’s abuse of
       process claim was barred by the applicable two-year statute of limitations. See Yoost v. Zalcberg, 925 N.E.2d
       763, 771 (Ind. Ct. App. 2010), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017             Page 15 of 15
