                                                                                   FILED
                                                                              Apr 23 2019, 8:37 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
      James E. Ayers                                              Robert B. Thornburg
      Wernle, Ristine & Ayers                                     Maggie L. Smith
      Crawfordsville, Indiana                                     Frost Brown Todd LLC
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Kevin Pack,                                                 April 23, 2019
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  18A-PL-1742
              v.                                                  Appeal from the Elkhart Superior
                                                                  Court
      Truth Publishing Company, Inc.,                             The Honorable Kristine A.
      and John S. Dille III,                                      Osterday, Judge
      Appellees-Defendants.                                       Trial Court Cause No.
                                                                  20D01-1701-PL-15



      Najam, Judge.


                                         Statement of the Case
[1]   Kevin Pack appeals the trial court’s entry of summary judgment for the Truth

      Publishing Company and John S. Dille III, the owners of The Elkhart Truth

      newspaper (collectively, “the Newspaper”). The trial court entered summary

      judgment after the Newspaper moved to dismiss Pack’s defamation complaint

      Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019                               Page 1 of 23
      under Indiana’s Strategic Lawsuit Against Public Participation Act, Ind. Code

      §§ 34-7-7-1 to -10 (2018) (“the Anti-SLAPP statutes”). Pack raises five issues

      for our review, 1 which we consolidate and restate as the following two issues:


                1.      Whether the Newspaper’s publication was in connection
                        with a public issue.


                2.      Whether the Newspaper’s publication was taken in good
                        faith and with a reasonable basis in law and fact.


[2]   We affirm.


                                   Facts and Procedural History 2
[3]   In August of 2013, Kevin Pack, an atheist, began teaching German at

      Northridge High School (“NHS”) in Middlebury on a probationary contract.

      Shortly after beginning his employment, Pack became the subject of various

      complaints by parents, students, and faculty. The complaints alleged that Pack

      had used profanity in class and had utilized films and literature that contained

      sexual content. Additionally, students alleged that Pack’s lack of respect,

      organization, and guidance made it difficult to learn. Other NHS employees




      1
        Pack’s brief on appeal appears to be premised on the elements of his defamation claim rather than showing
      whether the Newspaper designated evidence to establish an affirmative defense under the Anti-SLAPP
      statutes, which has made the merits of his arguments on appeal difficult to discern. Further, several of Pack’s
      arguments on appeal appear to relate to damages. As the Newspaper points out, those arguments do not,
      even if true, “defeat application of the Anti-SLAPP” statutes. Appellees’ Br. at 40.
      2
          We held oral argument on March 28, 2019, in the Indiana Court of Appeals courtroom.

      Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019                                Page 2 of 23
      also complained of Pack’s tardiness and absences from school and school

      functions.


[4]   On February 24, 2014, Gerald Rasler, NHS’s principal, issued to Pack a

      “Notice of Preliminary Decision of Immediate Cancellation of Contract.”

      Appellant’s App. Vol. II at 33. That notice cited Pack’s alleged “immorality,

      insubordination, neglect of duty, and other just cause” as reasons to support the

      immediate cancellation of Pack’s contract. Id. On February 28, Pack requested

      a private conference with Jane Allen, NHS’s superintendent. Following that

      conference, Allen recommended the termination of Pack’s contract to the Board

      of Trustees of Middlebury Community Schools (“the School Board”), and Pack

      requested a hearing with the School Board.


[5]   On April 1, the School Board held a hearing at which Pack and his union

      representative were present. The next day, the School Board terminated Pack’s

      employment. The School Board explained its decision with more than seventy

      findings of fact, which included the following findings:


              19. Mr. Pack showed a movie titled “Lola Rennt” (“Run Lola
              Run”) to his Level One (1) German class, made up primarily of
              freshmen and sophomores who are under the age of seventeen
              (17).


              20. “Lola Rennt” is rated R in the United States.


              21. “Lola Rennt” features scenes which represent two (2)
              individuals engaging in sadomasochism. The individuals are
              wearing tiny leather costumes. The male is pictured bent over a

      Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 3 of 23
        sofa, wearing nothing but a dog collar and a leather thong. The
        female is wearing leather lingerie while holding the male on a
        leash and winding up to strike him with a whip.


        22. “Lola Rennt” contains multiple spoken swear words,
        including “F[**]k,” “F[*****]g B[***]h,” “D[**]n,” and “S[**]t.”


        23. Several students expressed concerns to building level
        administrators and [to] their parents about struggles with their
        command of the German language due to a lack of review/lack
        of proper teaching methods to become familiar with the German
        language . . . .


        24. Students expressed that they felt disrespected by Mr. Pack[]
        because he laughs at students’ answers.


        25. Students mentioned that Mr. Pack will occasionally yell or
        get angry if a student does not know the correct answer to a
        question.


        26. Students reported that Mr. Pack will occasionally interrupt
        the students, sometimes with a comment that is irrelevant to
        what is being discussed in class.


                                                  ***


        28. Students complained that Mr. Pack’s lack of organization
        and guidance often made it difficult to follow what was
        happening in class.


        29. Students stated that the curriculum is confusing[] because
        they are never sure what they are going to learn in class or when
        to take notes.


Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019          Page 4 of 23
        30. Students stated that Mr. Pack has created a negative
        atmosphere where many students do not plan on taking future
        German classes at NHS.


                                                  ***


        36. Several students complained that Mr. Pack tests and quizzes
        them over topics never covered in class.


        37. Students stated that Mr. Pack occasionally leaves the
        classroom during student presentations.


        38. Several students stated that Mr. Pack has used swear words
        in front of students, using the words “F[**]k” and “G[*]d
        D[**]n.”


        39. Students stated that Mr. Pack told the class an inappropriate
        Jewish joke during a lesson over the Holocaust.


        40. Several students stated that they received A’s and/or A+’s
        for work which they had never completed.


        41. Several students complained that Mr. Pack loses students’
        work.


        42. Several students complained that[,] when Mr. Pack gave the
        semester final exam, he allowed the students to grade their own
        exams. This exam was a common assessment that was required
        by NHS to be given to all Level Two (2) German students. The
        results of this exam were used to assess how well the students
        were performing in German class.




Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 5 of 23
        43. Parents expressed concern to Mr. Rasler that their children
        had fallen behind and would like a plan for those of Mr. Pack’s
        students who would like to continue taking German . . . with
        another teacher.


        44. Parents expressed concern to Jane Allen that their children
        had asked their permission to drop plans of taking future German
        classes due to their experiences in Mr. Pack’s class.


        45. Parents stated that they were forced to purchase Rosetta
        Stone German . . . for their children’s supplemental studies due
        to their lack of progress in Mr. Pack’s class.


                                                  ***


        50. On December 10, 2013, students brought a book down to
        [another NHS German teacher’s] classroom titled (in German),
        something along the lines of “All the German You Were Never
        Taught in School.” The book featured nude drawings, foul
        language, and sexual content (even involving animals). The
        students said that Mr. Pack had pointed the book out to them at
        the beginning of the year and leaves it out for perusal on his
        counter. . . .


                                                  ***


        58. On December 12, 2013, several students reported getting the
        mid-term exam with answers given to them.


Id. at 34-38 (citations omitted). Based on those and other findings, the School

Board concluded as follows:




Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019         Page 6 of 23
              1. Based on the statements of fact[], Mr. Pack’s actions
              constitute immorality.


              2. Based on the statements of fact[], Mr. Pack’s actions
              constitute insubordination.


              3. Based on the statements of fact[], Mr. Pack’s actions
              constitute neglect of duty.


              4. Based on the statements of fact[], other just cause justifies the
              immediate cancellation of Mr. Pack’s Contract.


      Id. at 40.


[6]   Following its decision to terminate Pack’s employment, the School Board

      authorized a press release to explain its decision. The press release stated that

      Pack “d[id] not meet [the School Board’s] expectations” of being “proficient

      and try[ing] to do [his] best when educating our students.” Id. at 43. The press

      release further stated that Pack was “a poor teacher[] whose overall

      performance regressed throughout the school year and showed no potential for

      improvement.” Id.


[7]   On January 15, 2015, Pack filed a lawsuit against the Middlebury School

      Corporation in federal district court in which he alleged that his employment

      had been terminated, in violation of his federal rights, based on his atheism.

      Jeff Parrott, a reporter for the Newspaper, learned of Pack’s federal complaint

      soon thereafter. He then reviewed Pack’s filings in the federal court and the

      School Board’s press release. He also requested the School Board’s findings

      Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019             Page 7 of 23
       from Allen pursuant to Indiana’s Access to Public Records Act, I.C. §§ 5-14-3-1

       to -10 (“APRA”), and Allen provided him with those findings. Parrott further

       interviewed Pack and Allen, and he received a written statement from Pack’s

       attorney.


[8]    On January 24, the Newspaper published on its website an article authored by

       Parrott and entitled, “Fired Northridge teacher, an atheist, sues Middlebury

       Community Schools for religious discrimination.” Appellant’s App. Vol. II at

       25. The article discussed the events leading up to Pack’s termination and

       Pack’s resulting federal lawsuit. The second sentence of the article stated that

       “the school corporation maintains it fired German teacher Kevin Pack for

       insubordination, immorality[,] and incompetence.” Id. (emphasis added).


[9]    After the article’s publication, Pack contacted Parrott and asserted that Parrott

       had incorrectly used the term “incompetence” as that specific word had not

       been recited by the School Board as one of its four reasons for terminating

       Pack’s employment. Pack further informed Parrott that “incompetence” as it

       relates to the termination of a high school teacher has a specialized meaning,

       and Parrott’s use of the word in an online article would make it harder for Pack

       to find reemployment. However, despite Pack’s request, the Newspaper refused

       to retract its use of the word “incompetence” as it related to the termination of

       Pack’s employment at NHS.


[10]   Pack then sued the Newspaper for defamation. In particular, he asserted that

       the article incorrectly challenged his competence as a teacher, that the


       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019         Page 8 of 23
       Newspaper “knew [the use of that word] to be untrue,” and that, in using that

       word, the Newspaper “calculated” that it would “cause great injury” to Pack.

       Id. at 15. In response, the Newspaper moved to dismiss Pack’s complaint under

       the Anti-SLAPP statutes.


[11]   The trial court directed the parties to engage in discovery on the Newspaper’s

       motion. Thereafter, the Newspaper designated the following evidence in

       support of its motion: the online article; an affidavit by Parrott; and an affidavit

       by Allen, to which she had attached the School Board’s findings in support of

       its termination decision as well as the press release. In his affidavit, Parrott

       stated:


                 In writing the Article, I interviewed Pack and . . . Allen and
                 received an email statement from Pack’s attorney . . . . I also
                 reviewed the documents filed with the Court in Pack’s federal
                 lawsuit, [the School Board’s] Findings of Facts and Conclusions
                 [terminating Pack’s employment,] and the Press Release . . . .


       Id. at 46-47. And, in her affidavit, Allen stated that she gave the School Board’s

       findings to Parrott “[i]n response to [his APRA] request . . . .” Id. at 31.


[12]   Pack designated his own affidavit as well as the affidavit of James A. Tucker,

       an expert on secondary education and employment. Tucker stated in relevant

       part as follows:


                 12. Any press release by [a] school corporation [explaining a
                 teacher’s dismissal] requires specificity. It is thereby[] the
                 obligation of the press to accurately restate and relay the specifics
                 for the stated reasons of a teacher’s dismissal. . . . Reasons for

       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019            Page 9 of 23
        dismissal are given in the language of the statute. This language
        is not open to interpretation from the press or generalizations of a
        reporter, such as Parrott’s thoughts and interpretations . . . .


                                                  ***


        14. The Middlebury School Corporation Superintendent[,
        Allen,] was wrong to release the confidential [findings]
        determined by the Board for Pack’s dismissal to Parrott, the
        reporter. But that release provides concrete and specific proof of
        the reasons for the dismissal. Parrott did not quote the reasons as
        stated. His article uses the term, incompetence. By so doing,
        Parrott has placed on the “web” as factual that Pack was
        dismissed for a specific statutory reason that was no[t] listed. As
        a result, any potential employer who googles Pack’s name will
        see from that article that Pack was found by the Board to be, and
        therefore, is an incompetent teacher. It displays to any potential
        employer that Mr. Pack is incompetent as so proven by
        Middlebury School Corporation.


                                                  ***


        16. . . . Since incompetence takes on a special meaning in the
        dismissal of any teacher, only the facts should be disseminated to
        the public. . . . Middlebury School Corporation did not find him
        to be incompetent, it did not seek to have Pack’s teaching license
        revoked. . . .


                                                  ***


        18. As a result of Parrott’s article, in my opinion, Mr. Pack’s
        teaching career is over. It is just as catastrophic as though the
        school corporation had sought and obtained revocation of Pack’s
        teaching license, which there is no basis in the Board’s records to

Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 10 of 23
               support. Educators do not view “incompetence” the same as
               “neglect of duty.” Being late for class, or entering by the wrong
               door is not incompetence, it is neglect of duty. Middlebury
               School Corporation made that conscious distinction by not using
               the term, incompetence.


                                                         ***


               24. . . . Parrott is an educated and experienced man, [and] it is
               my belief that he knew exactly what he was writing and the
               ramifications of that writing. Had Parrott quoted the school
               corporation materials, he would not have written the article in
               such a way as to declare Pack to be incompetent. It is not the
               place or right of the press to use language different than that
               which they are given by the school corporation, if that language
               has a specific meaning and is harmful to the person, and the
               reporter understands and intentionally writes such language. . . .


       Id. at 83-87.


[13]   After receiving the parties’ designated evidence and holding a hearing, the trial

       court entered summary judgment for the Newspaper under the Anti-SLAPP

       statutes. This appeal ensued.




       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019      Page 11 of 23
                                          Discussion and Decision
                         The Anti-SLAPP Statutes and Our Standard of Review

[14]   Indiana’s Anti-SLAPP statutes apply “to an act in furtherance of” a person’s 3

       “right of . . . free speech . . . in connection with a public issue or an issue of

       public interest . . . .” I.C. § 34-7-7-1(a). The statutes provide:


                  a defense in a civil action against a person that the act or
                  omission complained of is:


                           (1) an act or omission of that person in furtherance of the
                           person’s right of . . . free speech . . . in connection with a
                           public issue; and


                           (2) an act or omission taken in good faith and with a
                           reasonable basis in law and fact.


       I.C. § 34-7-7-5. Thus, the Anti-SLAPP statutes create an affirmative defense.

       To demonstrate that defense, the moving party must show: (1) that its

       complained-of act “was in furtherance of the person’s right of . . . free speech”; 4

       (2) that the act “was in connection with a public issue”; and (3) that the act

       “was taken in good faith and with a reasonable basis in law and fact.” Gresk ex

       rel. Estate of VanWinkle v. Demetris, 96 N.E.3d 564, 569 (Ind. 2018) (citations and

       quotation marks omitted).




       3
           “Person” under the Anti-SLAPP statutes includes “[a]ny . . . legal entity.” I.C. § 34-7-7-4.
       4
         There is no dispute in the instant appeal that the Newspaper’s publication of the article was an act in
       furtherance of the Newspaper’s right of free speech.

       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019                                 Page 12 of 23
[15]   Where, as here, a civil defendant moves to dismiss a pleading under the Anti-

       SLAPP statutes, the trial court “shall . . . [t]reat the motion as a motion for

       summary judgment” and establish an expedited schedule for discovery and

       argument on that motion. I.C. § 34-7-7-9(a). As our Supreme Court has made

       clear:


                [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
                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).




       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019         Page 13 of 23
       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

       alterations original to Hughley). Summary judgment in Indiana is an

       intentionally “high bar” that “consciously errs on the side of letting marginal

       cases proceed to trial on the merits[] rather than risk short-circuiting meritorious

       claims.” Id. at 1004.


[16]   Pack asserts that the trial court erred when it entered summary judgment for the

       Newspaper under the Anti-SLAPP statutes for two principal reasons. First, he

       asserts that the Anti-SLAPP statutes do not apply here because the

       Newspaper’s publication of the article was not in connection with a public

       issue. He also asserts that the designated evidence creates a genuine issue of

       material fact as to whether the Newspaper’s publication of the article was taken

       in good faith and with a reasonable basis in law and fact. We address each of

       Pack’s arguments in turn.


                           Issue One: Whether the Newspaper’s Publication
                          of the Article was in Connection with a Public Issue

[17]   We first address Pack’s assertion that “[t]his is a not a SLAPP situation”

       because no public issue is involved. Appellant’s Br. at 12. Our Supreme Court

       has held that “speech is in connection with a matter of public concern if it is

       addressed to any matter of political, social, or other concern to the community,

       as determined by its content, form, and context.” Gresk, 96 N.E.3d at 571

       (quotation marks omitted). In Gresk, the court held that the Anti-SLAPP

       statutes did not apply to a physician’s report of child abuse to the Indiana



       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 14 of 23
       Department of Child Services (“DCS”) because that report was premised on the

       physician’s legal obligations, not “any intent to facilitate debate.” Id. at 569-70.


[18]   The Newspaper’s designated evidence in support of its motion under the Anti-

       SLAPP statutes shows that its publication of the article addressed a matter of

       concern to the local community. In particular, the content, form, and context

       of the article demonstrate that the Newspaper published it to inform the

       community of a federal lawsuit filed against a local public school corporation,

       which lawsuit alleged that the school corporation had engaged in religious

       discrimination. As such, the Newspaper’s designated evidence established a

       prima facie showing that its publication of the article was in connection with a

       public issue.


[19]   In response, Pack asserts that a genuine issue of material fact exists as to

       whether the publication was in connection with a public issue for three reasons.

       First, he asserts that the publication was not in connection with a public issue

       because about nine months had passed between Pack’s termination from NHS

       and the Newspaper’s publication of the article. But Pack’s federal lawsuit

       against the Middlebury School Corporation, not his termination from NHS,

       was the impetus for the article, which the Newspaper published less than ten

       days after Pack had filed his federal lawsuit. Pack’s termination from NHS was

       simply context in the article for his federal lawsuit. Accordingly, we reject

       Pack’s first argument.




       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 15 of 23
[20]   Second, Pack asserts that the Newspaper’s publication of the article was not in

       connection with a public issue because, according to Pack, in writing the article

       Parrott relied in part on confidential information, namely, the School Board’s

       findings. We also reject this argument. Although we explain in Issue Two that

       Pack has failed to show on appeal that the School Board’s findings were

       confidential here, for purposes of whether the Newspaper published the article

       in connection with a public issue we need only note that whether the findings

       were or were not confidential is irrelevant. That is, whether Parrott relied on

       any confidential information in writing the article is neither here nor there with

       respect to whether the Newspaper’s publication of the article was in connection

       with a public issue. Cf. New York Times Co. v. United States (Pentagon Papers), 403

       U.S. 713, 714 (1971) (per curiam) (permitting the publication of classified

       information). Thus, this argument is a nonstarter.


[21]   Third, Pack asserts that the Anti-SLAPP statutes do not apply because the facts

       here are analogous to those in Gresk. But we do not see any meaningful

       comparisons between the instant facts and the facts in Gresk. In Gresk, our

       Supreme Court held that a physician’s legally mandated report of suspected

       child abuse to DCS was not a report protected by the Anti-SLAPP statutes. 96

       N.E.3d at 569-70. Nothing about a newspaper’s publication of an article

       regarding a federal religious-discrimination lawsuit against a local public school

       corporation is on par with the facts of Gresk, and we reject Pack’s argument

       accordingly. Hence, we hold that Pack failed to rebut the Newspaper’s showing

       that its publication of the article was in connection with a public issue.


       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019       Page 16 of 23
                           Issue Two: Whether the Newspaper’s Publication
                                 was Taken in Good Faith and with a
                                  Reasonable Basis in Law and Fact

[22]   We thus turn to whether the designated evidence demonstrates as a matter of

       law that the Newspaper’s publication was taken in good faith and with a

       reasonable basis in law and fact. “In the context of defamation law, ‘good

       faith’ has been defined as a state of mind indicating honesty and lawfulness of

       purpose; belief in one’s legal right; and a belief that one’s conduct is not

       unconscionable.” 401 Pub. Safety v. Ray, 80 N.E.3d 895, 900-01 (Ind. Ct. App.

       2017) (citing Nexus Grp., Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119, 122

       (Ind. Ct. App. 2011)), trans. denied. That standard can be shown by evidence

       that demonstrates that the Newspaper “did not entertain serious doubt

       regarding the truth” of its article; that the Newspaper “believed that the

       statements and opinions expressed in it were fair and reasonable” at the time of

       its publication; and that, in writing the article, the Newspaper based its

       information on “reliable sources.” CanaRx Servs., Inc. v. LIN Television Corp.,

       2008 WL 2266348, at *7 (S.D. Ind. 2008).


[23]   On the other hand, our Supreme Court has identified five scenarios in which

       the evidence will not demonstrate good faith:


               (1) where a story is fabricated by the defendant; (2) where the
               story is the product of defendant’s imagination; (3) where the
               story is based wholly on an unverified anonymous telephone call;
               (4) where the defendant’s allegations are so inherently
               improbable that only a reckless person would have put them in
               circulation; and (5) where there are obvious reasons to doubt the

       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 17 of 23
               veracity of the informant or the accuracy of the informant’s
               reports.


       Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 462 n.27 (Ind. 1999)

       (quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968)).


[24]   We hold that the Newspaper’s designated evidence established a prima facie

       showing that its publication of the article was taken in good faith and with a

       reasonable basis in law and fact. There is no dispute that, in writing the article,

       Parrott spoke to Pack and received an email statement from Pack’s attorney.

       See Appellant’s App. Vol. II at 88-89. Parrott’s affidavit also states that, in

       writing the article, he spoke to Allen; he relied on the School Board’s publicly

       available press release; he relied on the School Board’s findings, which he had

       obtained by way of an APRA request; and he relied on Pack’s filings in the

       federal district court. In other words, Parrott based the article on reliable

       sources; the article was not fabricated, the product of Parrott’s imagination,

       based on unverified anonymous sources, or based on sources wholly lacking in

       credibility.


[25]   The School Board’s press release, on which Parrott relied in part, stated that

       Pack had been terminated from his employment at NHS because Pack was not

       “proficient” and was “a poor teacher[] whose overall performance regressed

       throughout the school year and showed no potential for improvement.” Id. at

       43. And the School Board’s numerous findings, on which Parrott also relied in

       part and which were also designated to the trial court by the Newspaper


       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019        Page 18 of 23
       without objection, provided numerous examples that supported the School

       Board’s summary in the press release.


[26]   The Newspaper had no reason to and did not entertain serious doubts regarding

       the truth of its article. Indeed, the Newspaper had no reason to reach any

       conclusion other than the conclusion that the statements and opinions

       expressed in the article were fair and reasonable. “Incompetence” commonly

       means the “lack of ability to do something successfully or as it should be done.”

       Incompetence, Cambridge Advanced Learner’s Dictionary & Thesaurus, available

       at https://dictionary.cambridge.org/us/dictionary/english/incompetence (last

       visited April 16, 2019). The School Board’s press release expressly said that

       Pack had not been proficient, and “incompetence” is a well-accepted antonym

       for “proficient.” E.g., Roget’s Int’l Thesaurus 317, 319 (6th ed. 2001).


[27]   Parrott’s use of the word “incompetence” fairly characterized and summarized

       the School Board’s findings and decision to terminate Pack’s employment.

       And there was nothing about Parrott’s use of that word in the context of Pack’s

       termination “so inherently improbable that only a reckless person would” have

       used that word. See Journal-Gazette, 712 N.E.2d at 462 n.27. The School

       Board’s detailed findings underlying its termination decision support Parrott’s

       use of that word in writing the article. Accordingly, the Newspaper’s

       designated evidence in support of its motion under the Anti-SLAPP statutes

       established a prima facie showing that its publication of the article was taken in

       good faith and with a reasonable basis in law and fact.



       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019         Page 19 of 23
[28]   Nonetheless, Pack asserts that his designated evidence creates a genuine issue of

       material fact as to whether the Newspaper’s publication of the article was taken

       in good faith and with a reasonable basis in law and fact for three reasons.

       First, Pack asserts that the Newspaper lacked a reasonable basis in law to

       publish the article because the Newspaper should have known that the School

       Board’s findings were confidential. Pack likewise asserts that a reasonable fact-

       finder could infer that the Newspaper’s publication of an article premised at

       least in part on confidential information shows a lack of good faith.


[29]   Pack’s first argument assumes and then turns on the purported confidentiality

       of the School Board’s findings underlying its termination of Pack’s

       employment. 5 But Pack has not demonstrated in this appeal that the School

       Board’s findings were confidential, either as a matter of fact or as a matter of

       law. 6 Indeed, as noted above, the impetus for the article was Pack’s federal



       5
          The Newspaper asserts on appeal that Pack’s arguments regarding the confidentiality of the School Board’s
       findings were not raised in the trial court and, thus, are not available for appellate review. We disagree. At
       the hearing in the trial court on the Newspaper’s motion under the Anti-SLAPP statutes, Pack argued that
       Parrott’s reliance on apparently confidential materials in writing the article created a genuine issue of
       material fact as to whether the Newspaper had acted in good faith and with a reasonable basis in law and fact
       when it published that article. Tr. at 22-23.
       However, at the oral argument before our Court, Pack for the first time appeared to suggest that Parrott could
       not have relied on the School Board’s findings because those findings would not be admissible at trial.
       Insofar as Pack’s argument here is that the admissibility, or not, of the findings goes to the question of good
       faith, that argument has not been preserved for our review. Similarly, insofar as Pack’s argument here is that
       the trial court erred in permitting the Newspaper to designate the School Board’s findings in support of its
       motion under the Anti-SLAPP statutes, Pack did not object to that designation in the trial court and, thus, he
       may not raise that issue for the first time on appeal.
       6
         We need not decide in this appeal whether as a matter of law the School Board’s findings were
       confidential, but we note that Pack cites no authority for his proposition that they were. Instead, he cites
       Indiana Code Section 20-28-3-0.5, but that statute says only that “teacher evaluation results . . . [are]
       confidential and exempt from disclosure” under APRA. However, the School Board’s findings were issued
       pursuant to the termination proceedings described in Indiana Code Sections 20-28-7.5-1 to -3, which

       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019                               Page 20 of 23
       lawsuit in which he had alleged religious discrimination in the termination of

       his employment, and Parrott relied in part on Pack’s federal filings in writing

       the article. In other words, whether or not the School Board’s findings in

       terminating Pack’s employment were confidential, Pack put those findings at

       issue when he sued the Middlebury School Corporation for unlawful

       termination of his employment. Parrott’s reliance on the School Board’s

       findings thus does not create a genuine issue of material fact as to whether the

       Newspaper’s publication of the article was taken in good faith and with a

       reasonable basis in law and fact. To the contrary, it only reinforces the

       Newspaper’s showing that Parrott acted with reasonable diligence in writing the

       article.


[30]   Second, Pack asserts that Tucker’s affidavit creates a genuine issue of material

       fact as to whether the Newspaper’s publication of the article was in good faith

       when Parrott characterized and summarized the underlying documents from

       the School Board. In particular, in his affidavit Tucker stated that Parrott had

       no “right” to put the School Board’s findings into Parrott’s own words.

       Appellant’s App. Vol. II at 87. Tucker similarly stated that a local school

       corporation’s press releases are “not open to interpretation from the press or

       generalizations of a reporter,” and that Parrott was required to simply “quote[]

       the school corporation materials.” Id. at 83-84, 87. Tucker also said that he

       thought Parrott “knew exactly what he was writing and the ramifications of



       decisions are to be “evidenced by a signed statement in the minutes of the board” at the board’s next “public
       meeting” after the hearing with the teacher whose employment has been terminated. I.C. § 20-28-7.5-3.

       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019                              Page 21 of 23
       that writing” in doing so. Id. at 87. In other words, Tucker appears to

       challenge Parrott’s state of mind.


[31]   But Tucker is not competent to testify to Parrott’s state of mind. Tucker does

       not identify himself as having any experience as a journalist or training in

       journalism. See id. at 80-87. As such, he is in no position to comment on

       Parrott’s professionalism as a journalist. See Ind. Evidence Rules 701, 702.

       Tucker’s opinions as to how a journalist should do his job would not be

       admissible evidence at trial and, thus, we will not consider them on summary

       judgment. See, e.g., Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind. 2003) (citing

       Ind. Trial Rule 56(E)). We reject Pack’s second argument.


[32]   Third, and last, Pack asserts that the Newspaper’s refusal to retract the use of

       the word “incompetence” when confronted with the alleged mistake and its

       potentially adverse impact on Pack’s employment opportunities infers the

       Newspaper did not act in good faith. But Pack’s after-the-fact analysis is not

       relevant. The act at issue is the Newspaper’s initial publication of the article

       and whether that initial publication was in good faith. After-the-fact

       information that could not have played any part in the Newspaper’s initial

       publication decision does not matter to that analysis. Thus, we conclude that

       Pack’s designated evidence fails to rebut the Newspaper’s prima facie showing

       that its publication of the article was taken in good faith and with a reasonable

       basis in law and fact.




       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019       Page 22 of 23
                                                   Conclusion
[33]   In sum, we hold that the Newspaper’s designated evidence established a prima

       facie showing that it was entitled to judgment as a matter of law under the Anti-

       SLAPP statutes, and Pack’s designated evidence failed to create a genuine issue

       of material fact. Accordingly, the trial court properly entered summary

       judgment for the Newspaper, and we affirm the trial court’s judgment.


[34]   Affirmed.


       Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PL-1742 | April 23, 2019     Page 23 of 23
