MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Dec 05 2018, 10:29 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES:
Gregory W. Black                                         ANGELA F. TRAPP AND TRAPP
Plainfield, Indiana                                      LAW, LLC
                                                         Alyssa C.B. Cochran
                                                         Kightlinger & Gray, LLP
                                                         New Albany, Indiana
                                                         Nicholas W. Levi
                                                         Kightlinger & Gray, LLP
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE:
                                                         LISA ALEXANDER
                                                         Zachary A. Smith
                                                         Trapp Law, LLC
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Valerie D. Alexander,                                    December 5, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-PL-1257
        v.                                               Appeal from the Marion Superior
                                                         Court
Angela F. Trapp; Trapp Law,                              The Honorable James A. Joven,
LLC; and Lisa Alexander,                                 Judge
Appellee-Defendants.                                     Trial Court Cause No.
                                                         49D13-1711-PL-042627


Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018                   Page 1 of 13
      Tavitas, Judge.


                                                 Case Summary

[1]   Valerie Alexander (“Valerie”) appeals the trial court’s order granting a motion

      for judgment on the pleadings under Indiana Trial Rule 12(C) filed by Angela

      Trapp, Trapp Law, LLC (“Trapp Law”), and Lisa Alexander (“Lisa”). We

      affirm.


                                                        Issues

[2]   Valerie raises many issues on appeal. 1 We consolidate and restate these issues

      as follows:


              I. Whether the trial court erred in granting the motion for
                 judgment on the pleadings filed by Trapp and Trapp Law.


              II. Whether the trial court erred in granting the motion for
                  judgment on the pleadings filed by Lisa.


                                                        Facts

[3]   Valerie and Lisa are sisters and the daughters of Wayne Alexander (“Wayne”).

      In 2016, Valerie became Wayne’s fiduciary and began caring for Wayne full-

      time. In June 2017, Lisa hired Trapp and Trapp Law to file an emergency

      petition for appointment of temporary guardianship of Wayne, whom Lisa



      1
        We find Valerie’s brief to be difficult to understand due to numerous errors and stream of consciousness
      arguments. In the future, we direct counsel to review Indiana Appellate Rule 46, which requires that “[t]he
      argument must contain the contentions of the appellant on the issues presented, supported by cogent
      reasoning.”

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018                 Page 2 of 13
      described as a “disabled adult.” Appellant’s App. Vol. II p. 46. Lisa’s petition

      alleged that Valerie spent a significant amount of Wayne’s money and that

      “Valerie is financially abusing Father, and causes waste to Father’s estate.” 2 Id.

      at 48. Lisa also alleged that Valerie has denied other members of the family

      access to the house to visit Wayne and the opportunity to communicate with

      Wayne via telephone. The trial court conducted a hearing on the guardianship

      matter on August 7, 2017.


[4]   During the hearing, the following exchange occurred between Valerie’s counsel,

      Trapp, and the trial court:


              [Valerie’s Counsel]: Your honor, I have a motion in limine.


              THE COURT: Okay.


              [Valerie’s Counsel]: I would like the court to bar any reference to
              murder or child death syndrome from this witness because there
              are [sic] no evidence of any of that.


              [Trapp]: Your honor, he is wishing to avoid a Rule 609
              impeachment of Valerie Alexander in 1977 her husband was
              killed, I believe the actual like [sic] investigation from the police
              was justifiable homicide, they were in the process of divorce, they



      2
       Lisa’s petition does not allege a specific amount that Valerie is abusing or wasting, but does allege, among
      other things, that: “Valerie spent $156,000.00 of money that was left to Father in trust after the death of
      Petitioner’s Mother”; “Petitioner personally observed Valerie use Father’s bank card without him present and
      withdraw funds from his bank account”; “Valerie has spent nearly $300,000.00 of Father’s money since
      2015”; and “Valerie pays herself an annual income of $35,000.00 per year to be Father’s caretaker, and she
      pays herself an additional $600.00 a month for his living expenses and she withdraws $200.00 a week for
      meals to feed Father and herself.” Appellant’s App. Vol. II p. 47.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018                Page 3 of 13
              were separating, she murdered him for lack of a better word with
              a gun . . . .


              [Valerie’s Counsel]: This is outrageous, your honor, it should be
              stricken.


              [Trapp]: Under Rule 609, we are allowed to bring that up, there’s
              no statute of limitations on it, it’s our position that the justifiable
              homicide is questionable, the only reason she wasn’t charged was
              because her daughter, [], was present and said that her mother
              did it in self-defense. Then there’s also another boyfriend that
              she financially benefited from him dying too who committed
              suicide and she inherited all this money from him too, so Wayne
              Alexander will be the third person she’s inheriting large sums of
              money from.


      Appellant’s App. Vol. II p. 20.


[5]   On November 15, 2017, Valerie filed a complaint for Count I, defamation;

      Count II, defamation per se; and Count III, defamation per quod against Trapp,

      Trapp Law, and Lisa based on the statements at the hearing. In her complaint,

      Valerie alleged that the words are “false [and] malicious.” Id. at 15. Valerie

      further alleged:


                                                    *****


              5. The statements of Angela Trapp, planted deliberately by Lisa,
              were intended to and did lower the esteem of Valerie in the eyes
              of the community such that among other things [t]he Judge and
              Guardian Ad Litem in the case have become biased against
              Valerie. This is just the tip of the iceberg. Damage is permanent,
              published to vital third parties by oral words from counsel to


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018   Page 4 of 13
                 client, both bent on damage to plaintiff, harm to her status,
                 emotion, property.


                 6. The statements at bar alternatively are false, defamatory,
                 malicious, defamatory per se, defamatory per quod. The
                 statements were made with reckless disregard of truth or
                 investigation, all of which could have been made easily. But
                 truth was not the goal of defense. Harm was. The defendants
                 were hell bent on placing Lisa in charge of her father, harming
                 Valerie in the process. Both defendants are responsible equally
                 for the malice, falsity, defamation, recklessness.


                 7. Lisa [and Trapp], had no basis for their case. The words of the
                 lawyer are the words of the client. Publication of the defamation
                 takes two forms here: Lisa to Angela, Angela to all in [t]he Court
                 of GU 64 and all who will read the Record at bar in GU 64 and
                 here. 3


      Id. at 16. 4


[6]   On January 16, 2018, Trapp and Trapp Law filed a motion for judgment on the

      pleadings. The trial court held a hearing on the motion filed by Trapp and

      Trapp Law on March 14, 2018. At the hearing, Lisa moved to join the motion

      for judgment on the pleadings filed by Trapp and Trapp Law based on the

      arguments at the hearing.




      3
          “GU 64” is a reference to the cause number in the underlying guardianship case.
      4
          All grammar, punctuation, spelling, and capitalization in original.


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018      Page 5 of 13
[7]   On March 29, 2018, the trial court entered an order granting judgment on the

      pleadings for Trapp and Trapp Law. The trial court concluded:


              The Court notes that the statements of Defendant Trapp, which
              Plaintiff Alexander challenges as defamatory per se, were
              statements made in the course of a judicial proceedings, [sic] a
              guardianship case. Defendant Trapp’s statements set forth the
              theory of the case she was presenting on behalf of her client,
              Defendant Alexander, in that judicial proceeding. As such,
              Defendant Trapp’s statements fall within the protection of an
              absolute privilege for relevant statements made during the course
              of judicial proceedings. Estate of Mayer v. Lax, Inc., 998 N.E.2d
              238, 247 (Ind. Ct. App. 2013). Plaintiff Alexander urges the
              Court to abrogate the absolute privilege for statements made
              during judicial proceedings. This Court cannot and will not
              ignore binding precedent of the Indiana Supreme Court and
              Indiana Court of Appeals.


      Id. at 8-9.


[8]   The trial court also ordered Valerie to show cause, within fifteen days of the

      order, why the trial court should not also grant the judgment on the pleadings

      filed by Lisa. 5 Valerie responded to the court’s show cause order, arguing that

      Lisa waived attorney-client privilege when Lisa “set[] in motion her lawyer’s

      utterances to a Public Court of Law [that] Valerie murdered Valerie’s husband




      5
       Presumably, Valerie was given additional time to respond to the motion for judgment on the pleadings filed
      by Lisa, as Lisa moved for the judgment orally in court at the end of the hearing on the motion for judgment
      on the pleadings filed by Trapp and Trapp Law.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018                Page 6 of 13
      when such is known not so.” Appellant’s App. Vol. II p. 41. Valerie did

      acknowledge there was “no publication” as to Lisa’s statements. Id.


[9]   On May 2, 2018, the trial court entered an order granting judgment on the

      pleadings for Lisa. The trial court determined that, because the statements

      “were made in the course of judicial proceedings,” the statements fell “within

      the protection of an absolute privilege . . . .” Id. at 11. The trial court

      concluded:


              [s]ignificantly, as Plaintiff Alexander notes in her response to the
              Court’s show cause order, Defendant Alexander “uttered nothing
              in Court . . . .” In fact, Plaintiff Alexander’s complaint for
              defamation contains no allegation that Defendant Alexander
              made any statement that could constitute a defamatory
              statement. Instead, in her response to the show cause order,
              Plaintiff Alexander would have the Court infer that Defendant
              Alexander made a defamatory statement to Defendant Trapp,
              her lawyer, causing Defendant Trapp to make that same
              statement in open court. Such an inference is unreasonable.
              Moreover, a plaintiff must specifically state the alleged
              defamatory statement in the complaint. Trail v. Boys & Girls
              Clubs, 845 N.E.2d 130, 136 (Ind. 2006). Plaintiff Alexander’s
              complaint is deficient in this respect. The Court concludes that
              allowing Plaintiff Alexander to replead the complaint to include
              the alleged defamatory statement would be futile, as any such
              statement would still fall within the protection of an absolute
              privilege for relevant statements made during the course of
              judicial proceedings.


      Id. at 11. Valerie now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018   Page 7 of 13
                                                    Analysis

[10]   Valerie appeals the trial court’s grant of motions for judgment on the pleadings

       filed by Trapp, Trapp Law, and Lisa. “A motion for judgment on the pleadings

       under Trial Rule 12(C) tests the sufficiency of a claim or defense presented in

       the pleadings and should be granted ‘only where it is clear from the face of the

       complaint that under no circumstances could relief be granted.’” KS&E Sports v.

       Runnels, 72 N.E.3d 892, 898 (Ind. 2017) (citing Veolia Water Indianapolis, LLC v.

       National Trust Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014)). Accordingly, we accept as

       true the facts alleged in Valerie’s complaint. See id. We review a Rule 12(C)

       ruling de novo. See id.


                  A. Trapp and Trapp Law’s motion for judgment on the pleadings

[11]   “The absolute privilege doctrine applies to defamation claims, torts related to

       defamation, and torts relying upon defamatory statements as proof of

       wrongdoing.” Eckerle v. Katz & Korin, P.C., 81 N.E.3d 272, 278 (Ind. Ct. App.

       2017) (citing Estate of Mayer v. Lax, 998 N.E.2d 238, 247 (Ind. Ct. App. 2013),

       trans. denied), trans. denied. In Hartman v. Keri, our supreme court explained:


               Indiana law has long recognized an absolute privilege that
               protects all relevant statements made in the course of a judicial
               proceeding, regardless of the truth or motive behind the
               statements . . . . The reason upon which the rule is founded is
               the necessity of preserving the due administration of justice, by
               providing actors in judicial proceedings with the freedom to
               participate without fear or future defamation claims.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018   Page 8 of 13
       883 N.E.2d 774, 777 (Ind. 2008) (citations omitted). There is no dispute these

       statements were made during a judicial proceeding. Instead, Valerie argues that

       these statements should not be protected by the absolute privilege that Indiana

       law affords to statements made at judicial proceedings because the statements

       were not “relevant” to the proceeding. Appellant’s Br. p. 12.


[12]   “For immunity from liability to exist based on absolute privilege, the statement

       in question must be ‘relevant and pertinent to the litigation or bear some

       relation thereto.’” Eckerle, 81 N.E.3d at 280 (quoting Estate of Mayer, 998

       N.E.2d at 247). “Courts favor a liberal rule in favor of finding statements to be

       relevant and pertinent.” Estate of Mayer, 998 N.E.2d at 247 (citing Miller v.

       Reinert, 839 N.E.2d 731, 735 (Ind. Ct. App. 2005)). “Statements in a judicial

       proceeding will not enjoy an absolute privilege only if they are so palpably

       irrelevant to the subject matter of the case that no reasonable person could

       doubt their irrelevancy and impropriety.” Id. “Lawsuits are not peace

       conferences. Feelings are often wounded and reputations are sometimes

       maligned.” Estate of Mayer, 998 N.E.2d at 247 (citing Briggs v. Clinton County

       Bank & Trust Co. of Frankfort, Ind., 452 N.E.2d 989, 998 (Ind. Ct. App. 1983)).


[13]   Here, the statements made by Trapp were relevant to the proceeding and

       protected by absolute privilege. First, it seems difficult for Valerie to argue that

       the statements were not relevant, when Valerie’s counsel sought to preclude




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018   Page 9 of 13
       references to “murder” and “child death syndrome” before they were even

       raised by Lisa or Trapp. 6 Appellant’s App. Vol. II p. 20.


[14]   Second, as discussed at the hearing on the motion for judgment on the

       pleadings, Trapp wanted to address the alleged murder as part of impeachment

       evidence under Indiana Rule of Evidence 609. Indiana Rule of Evidence 609(a)

       states:


                 [f]or the purpose of attacking the credibility of a witness,
                 evidence that the witness has been convicted of a crime or an
                 attempt of a crime must be admitted but only if the crime
                 committed or attempted is (1) murder, treason, rape, robbery,
                 kidnapping, burglary, arson, or criminal confinement; or (2) a
                 crime involving dishonesty or false statement, including perjury.


       It is not clear from the limited record before us whether Trapp or Lisa

       ultimately attempted to introduce any evidence related to Trapp’s statements,

       and, if so, whether the trial court allowed the evidence to be admitted. In fact,

       it is not clear whether Valerie has been convicted of a crime related to the death

       of her husband, much less a crime contemplated by Rule 609. However, the

       answers to these questions would not change our analysis because the

       statements still concerned potential impeachment evidence—even if that

       evidence was not ultimately introduced or admitted. We, therefore, cannot say




       6
         We draw this conclusion based on the limited record before us. Appellant’s appendix includes the
       transcript pages from the hearing that include the allegedly defamatory statements, but we do not have other
       pages of the transcript. From the record, it appears to us that Valerie was the first one to raise accusations of
       murder.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018                    Page 10 of 13
       the statements fail to meet the low threshold for relevancy under the absolute

       privilege doctrine. We find the statements are protected by absolute privilege

       because they were relevant to the proceeding.


[15]   Valerie also argues we should change the law from absolute privilege to

       qualified privilege for statements made in judicial proceedings as “[t]his

       extreme case makes what should be the law plain.” Appellant’s Br. Vol. II p.

       32. Valerie states:


                                                     *****


               For now, anyone enmeshed in our court system may concoct
               about anything he or she desires, when not “sworn in.” All you
               need do is imagine a circumstance tied by myth to matters under
               judicial scrutiny. This can be lethal. See suicide over a lie, The
               Children’s Hour, Shirley MacLaine. Words take a toll. Must the
               law be complicit? Not when the law can avoid it. Dickens wrote
               the law is an a**. It also can be a servant, a coat of armor. We
               decide as a profession which it shall be.


                                                    *****


               The solution: abandon absolute privilege for judicial proceedings.
               Forget broad latitude for relevance. Lies cannot be relevant. To
               say a lie is relevant is to say it is real. But it is not. One may as
               well say a rock has emotion or a thought has protein. The
               proposition is preposterous.


       Appellant’s Br. p. 33.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018   Page 11 of 13
[16]   To the extent Valerie is asking us to deviate from our clearly-settled precedent

       on this issue, we decline to do so. See Gill v. Gill, 72 N.E.3d 945, 949 (Ind. Ct.

       App. 2017) (finding that “as Indiana’s intermediate appellate court, we are

       bound to follow Indiana Supreme Court precedent”). We also disagree with

       Valerie’s assertion that lawyers would be able to say anything and defame

       another party under the veil of privilege. Our courts have already identified

       situations in which derogatory statements or allegations are not relevant to the

       judicial proceeding. See Stahl v. Kincade, 192 N.E.2d 493, 497 (Ind. Ct. App.

       1963) (finding that, in a suit to enjoin a property owner from maintenance of a

       basketball court, a counterclaim to enjoin the complaining party from certain

       immoral conduct was “not relevant or pertinent to the matter in controversy

       and had no relation thereto”). Accordingly, some speakers who make

       statements that do not meet the low “relevance” standard would not enjoy

       absolute privilege. This is not one of those cases.


                              B. Lisa’s motion for judgment on the pleadings

[17]   Lisa was entitled to judgment on the pleadings for the same reasons set forth

       above. See Eckerle, 81 N.E.3d at 282 (noting that absolute privilege “attaches to

       judges, attorneys, parties, and witnesses in connection with a judicial

       proceeding”) (citations omitted). We, therefore, do not address Valerie’s

       argument regarding the requirement that defamatory statements be specifically




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018   Page 12 of 13
       alleged, but we do note that Lisa does not actually say anything at the hearing,

       according to the transcript provided by Valerie. 7


                                                     Conclusion

[18]   For the foregoing reasons, we find that the trial court properly granted the

       motions for judgment on the pleadings under Indiana Trial Rule 12(C) filed by

       Trapp, Trapp Law, and Lisa. Accordingly, we affirm.


[19]   Affirmed.


       Brown, J., and Altice, J., concur.




       7
         We also reject Valerie’s argument regarding Lisa’s waiver of attorney-client privilege which is titled, “Lisa
       Waived Attorney Client Privilege With Ms. Trapp in Setting Ms. Trapp Out to Blare the Lie in Open Court.”
       Appellant’s Reply Br. p. 17. This argument is incorrect. Lisa has not waived attorney-client privilege by
       giving Trapp, Lisa’s attorney, information relevant to Lisa’s proceeding, which Trapp then used in the
       proceeding, even if the information turned out to be incorrect.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1257 | December 5, 2018                 Page 13 of 13
