                                                             FILED
                                                         Mar 15 2017, 5:45 am

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Steven T. Fulk                                             Andrew J. Miroff
Fulk & Associates, LLC                                     Emmanuel V. Boulukos
Indianapolis, Indiana                                      Derek R. Molter
                                                           Ice Miller LLP
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Virginia E. Mourning,                                      March 15, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A02-1608-MI-1822
        v.                                                 Appeal from the Marion Superior
                                                           Court
Allison Transmission, Inc.,                                The Honorable James A. Joven,
Appellee-Defendant                                         Judge
                                                           Trial Court Cause No.
                                                           49D13-1504-MI-12620



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017              Page 1 of 16
                                           Case Summary
[1]   This case involves the interplay between Indiana Trial Rules 12(C) and 12(B).

      A Trial Rule 12(C) motion for judgment on the pleadings is typically directed

      toward a determination of the substantive merits of the controversy. A Trial

      Rule 12(B) motion to dismiss, in contrast, is directed solely toward procedural

      defects or the statement of the plaintiff’s claim for relief and does not seek to

      determine the substantive merits of the controversy. However, a defense of

      failure to state a claim upon which relief can be granted can be raised under

      either Trial Rule 12(B)(6) or Trial Rule 12(C). When raised in a Trial Rule

      12(C) motion, the court must treat the motion pursuant to Trial Rule 12(B)(6)

      and, if granted, give the plaintiff ten days to amend the complaint once as of

      right.

[2]   Here, Virginia Mourning sued Allison Transmission, Inc. claiming that it

      played a role in getting her fired from her long-time employer, Ternes

      Packaging. Mourning alleged tortious interference with an employment

      contract and defamation. Allison Transmission then filed an ambiguously

      worded “12(C) Motion to Dismiss” alleging that Mourning “failed to state a

      claim upon which relief may be granted” and that her claims failed “as a matter

      of law.” The trial court granted Allison Transmission’s motion and entered

      final judgment in its favor. Applying the above principles here, we find that

      Mourning sufficiently pled her defamation claim but not her tortious-

      interference claim. We therefore reverse and remand this case to the trial court

      to give Mourning an opportunity to amend her complaint once as of right.

      Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 2 of 16
                             Facts and Procedural History
[3]   In accordance with our standard of review for judgments on the pleadings, our

      review is confined to the pleadings, accepting well-pled material facts in the

      complaint as true. Mourning became an at-will employee with Ternes

      Packaging in 1997. Ternes provides supply-chain-management services to

      Allison Transmission.

[4]   From early February 2013 to late March 2013, Mourning took time off under

      the federal Family and Medical Leave Act (FMLA). While Mourning was on

      medical leave, a group of employees under her supervision filed a complaint

      against her. Mourning’s manager at the time assisted these employees in

      making their complaint. The complaining employees were further assisted in

      making their complaint by individuals at Allison Transmission.

[5]   Mourning was first informed of the complaint when she returned from medical

      leave on April 1, 2013, at which point she was suspended for two weeks and

      then terminated on April 16, 2013.

[6]   In May 2014, Mourning sued Ternes in federal court alleging violations of Title

      VII of the Civil Rights Act of 1964 and FMLA. Mourning later added state-law

      claims against Allison Transmission for tortious interference with an

      employment contract and defamation, but these claims were dismissed for lack

      of subject-matter jurisdiction. For the claims against Ternes, the district court




      Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 3 of 16
      granted summary judgment in its favor. See Mourning v. Ternes Packaging—Ind.,

      Inc., 1:14-cv-00772-SEB-DML (S.D. Ind. Feb. 22, 2016).1


[7]   Mourning then filed a complaint against Allison Transmission in Marion

      Superior Court in September 2015. Mourning made the same claims that she

      had made in federal court: tortious interference with an employment contract

      and defamation. The tortious-interference count (Count I) specifically alleges:

                 16. During the period of Plaintiff’s medical leave from early
                 February, 2013, until her return on or about April 1, 2013, and
                 during her suspension upon her return to work until her
                 termination on or about April 16, 2013, Defendant Allison by
                 and through its agents including without limitation Ron Sauer,
                 Senior Director of Global Parts and Customization Centers, and
                 Dennis Nicholas, Director of Orders Administration,
                 intentionally induced the breach of the employment contract
                 between Ternes and Plaintiff by communicating with Ternes
                 (specifically beginning at a meeting initiated by Sauer and
                 Nicholas on February 26, 2013, and continuing through
                 Plaintiff’s termination on April 16, 2013) that Plaintiff was not
                 competent to continue working in her position with Ternes in
                 their provision of bundled services to Allison, and that Plaintiff
                 was not to continue in her position of employment with Ternes.


                 17. Defendant Allison had no justification for inducing the
                 breach of the employment contract between Ternes and Plaintiff,
                 as Defendant willfully failed to abide by established procedure
                 regarding staffing requests or complaints/discipline directed to
                 Ternes Packaging, and as Defendant leveraged its continued
                 business relationship with Ternes (which was at that time in re-



      1
          Mourning has appealed that decision, and the appeal is pending.


      Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017       Page 4 of 16
        bid negotiations) to demand the termination of Plaintiff’s
        employment.


Appellant’s App. Vol. II pp. 10-11. The defamation count (Count II)

specifically alleges:

        20. During the period of Plaintiff’s medical leave from early
        February, 2013, until her return on or about April 1, 2013, and
        during her suspension upon her return to work until her
        termination on or about April 16, 2013, agent(s) for Defendant
        Allison by and through its agents including without limitation
        Ron Sauer, Senior Director of Global Parts and Customization
        Centers, and Dennis Nicholas, Director of Orders
        Administration, made defamatory communications regarding
        Plaintiff and her job to Ternes (specifically beginning at a
        meeting initiated by Sauer and Nicholas on February 26, 2013,
        and continuing through Plaintiff’s termination on April 16, 2013)
        stating that Plaintiff did not embrace change, was not data-
        driven, had performance issues in her position, was not
        competent to continue working in her position managing staff or
        providing bundled services to Allison, and should not . . .
        continue in her position of employment with Ternes.


        21. The communications made by Defendant Allison regarding
        Plaintiff during this period were false, were made with malice (as
        Defendant leveraged its continued business relationship with
        Ternes—which was at that time in re-bid negotiations—to
        defame Plaintiff and secure her termi[n]ation), and were
        published through inter-company communications between
        Allison and Ternes (including in-person communications
        between Sauer and Nicholas and employees at Ternes beginning
        on February 26, 2013), and through intra-company
        communications within Ternes itself.




Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 5 of 16
       Id. at 11-12. Allison Transmission filed its answer in October 2015.2


[8]    In January 2016, Allison Transmission filed a “12(C) Motion to Dismiss”

       Mourning’s complaint in which it alleged that Mourning “failed to state a claim

       upon which relief may be granted” and that her claims failed “as a matter of

       law.” Id. at 15-16. Mourning responded that she sufficiently alleged her claims

       and, in the alternative, because Allison Transmission’s Trial Rule 12(C) motion

       alleged failure to state a claim, it should be treated like a Trial Rule 12(B)(6)

       motion, which meant that she would have a right to amend her complaint and

       fix any defects if the motion were granted. In March 2016, the trial court

       granted Allison Transmission’s motion and entered final judgment in its favor.


[9]    Mourning now appeals.



                                     Discussion and Decision
[10]   This case involves the relationship between Trial Rules 12(C) and 12(B).

       According to Trial Rule 12(C), after the pleadings are closed but within such

       time as not to delay the trial, any party may move for judgment on the

       pleadings. A motion for judgment on the pleadings is typically directed toward

       a determination of the substantive merits of the controversy. Davis ex rel. Davis

       v. Ford Motor Co., 747 N.E.2d 1146, 1149 (Ind. Ct. App. 2001) (citing 5C

       Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1369 (3d




       2
           The answer is not included in the record on appeal.


       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 6 of 16
       ed. 2004)), trans. denied. Such motions should be granted “only where it is clear

       from the face of the complaint that under no circumstances could relief be

       granted.” Woodruff v. Ind. Family & Soc. Servs. Admin., 964 N.E.2d 784, 789

       (Ind. 2012) (quotation omitted); see also ESPN, Inc. v. Univ. of Notre Dame Police

       Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (judgment on the pleadings should be

       granted only “where it is clear from the face of the pleadings that one party is

       entitled to prevail as a matter of law”). “[A] judgment on the pleadings is, in

       reality, a summary judgment minus affidavits and other supporting

       documents.” 1A William F. Harvey, Indiana Practice, Rules of Procedure

       Annotated, Trial Rule 12(C) Civil Code Study Commission Comments (3d ed.

       1999).

[11]   Trial Rule 12(B), on the other hand, provides for certain defenses to be raised

       by motion before an answer is filed. In contrast to a typical Trial Rule 12(C)

       motion for judgment on the pleadings, a Trial Rule 12(B) motion is directed

       solely toward procedural defects or the statement of the plaintiff’s claim for

       relief and does not seek to determine the substantive merits of the controversy.

       Davis, 747 N.E.2d at 1149; 5C Wright & Miller, § 1369. One of the defenses

       that can be raised is failure to state a claim upon which relief can be granted.

       See Ind. Trial Rule 12(B)(6). The basic purpose of a Trial Rule 12(B)(6) motion

       to dismiss is to test the legal sufficiency of the complaint to state an actionable

       claim, not to test the truth of the facts alleged in the complaint. Davis, 747

       N.E.2d at 1149. This defense is typically used in one of three situations: (1) the

       allegations in the complaint are so insufficient that the pleader has stated no

       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 7 of 16
       claim for relief; (2) the pleader has alleged sufficient facts to state a claim for

       relief but has also alleged facts that disclose a bar to the suit or claim (such as

       when the complaint establishes a statute-of-limitations defense); and (3) the

       pleader has made an allegation that is not recognized in the law as a basis for

       recovery. 22 Stephen E. Arthur, Indiana Practice, Civil Trial Practice § 15.19 (2d

       ed. 2007). Importantly, when a motion to dismiss is sustained for failure to

       state a claim under 12(B)(6), “the pleading may be amended once as of right

       pursuant to Rule 15(A) within ten [10] days after service of notice of the court’s

       order . . . .” T.R. 12(B).

[12]   However, a motion under Trial Rule 12(B)(6) is not the only way to raise a

       defense of failure to state a claim upon which relief can be granted. This

       defense can also be made in a Trial Rule 12(C) motion or at trial. T.R. 12(H).

       We have previously explained the relationship between Trial Rule 12(C) and

       Trial Rule 12(B) as follows: “a T.R. 12(B) motion is essentially procedural,

       while a T.R. 12(C) motion is substantive unless it is brought on T.R. 12(B)

       grounds.” Davis, 747 N.E.2d at 1150 (emphasis added). Accordingly, where a

       motion for judgment on the pleadings raises a defense of failure to state a claim

       upon which relief can be granted, the motion for purposes of that defense

       should be treated in the same manner as a Trial Rule 12(B)(6) motion to dismiss

       for failure to state a claim. See Columbus Specialty Surgery Ctr. v. Se. Ind. Health

       Org., 22 N.E.3d 665, 669 (Ind. Ct. App. 2014); Gregory & Appel, Inc. v. Duck, 459

       N.E.2d 46, 49 (Ind. Ct. App. 1984) (“We agree that where a 12(B)(6) defense is

       raised by a 12(C) motion for judgment on the pleadings, the court must treat the

       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017    Page 8 of 16
       motion pursuant to 12(B)(6) and accord the non-moving party ten days to

       amend as a matter of right.”); Anderson v. Anderson, 399 N.E.2d 391, 405 (Ind.

       Ct. App. 1979); see also 22 Stephen E. Arthur, § 15.24 (“When a motion under

       Trial Rule 12(C) challenges the sufficiency of a plaintiff’s complaint because of

       the failure to state a claim upon which relief can be granted, that motion should

       be determined by the same standard that is applicable to a motion under Trial

       Rule 12(B)(6).”). The rationale for this rule is that a plaintiff’s right to amend a

       complaint should not be based on whether the defendant’s challenge to its

       sufficiency is brought under the guise of Trial Rule 12(B)(6) or Trial Rule 12(C).

       Davis, 747 N.E.2d at 1151. “There is no principled reason why the fact of

       closed pleadings should be determinative of the plaintiff’s right to amend his or

       her complaint when the basis of the motion for judgment on the pleadings is the

       failure of the complaint to state a claim.” Id.


[13]   Here, Mourning contends that the trial court erred by not treating Allison

       Transmission’s Trial Rule 12(C) motion as a Trial Rule 12(B)(6) motion, which

       would have given her an opportunity to amend her complaint and fix any

       defects. Allison Transmission responds that the trial court properly treated it as

       a substantive Trial Rule 12(C) motion. It argues that “[a] customer complaint

       does not constitute tortious interference or defamation as a matter of law.”

       Appellee’s Br. p. 24. But Allison Transmission fails to cite any authority in

       support of its position that a customer or client can never be held liable for

       tortious interference or defamation based on statements it makes to a service

       provider about one of the service provider’s employees, and we are aware of


       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 9 of 16
       none. Accordingly, the trial court’s judgment on the merits in Allison

       Transmission’s favor cannot be affirmed on this basis.

[14]   As for whether Mourning failed to state a claim upon which relief can be

       granted, which is a defense that may be made in a “procedural” Trial Rule

       12(C) motion and is subject to Trial Rule 12(B)(6) standards, Allison

       Transmission first argues that Mourning did not sufficiently plead the operative

       facts to support her claim of tortious interference with an employment contract.

       See State v. Am. Family Voices, Inc., 898 N.E.2d 293, 296 (Ind. 2008) (noting that

       although Indiana’s notice-pleading rules do not require the complaint to state

       all elements of a cause of action, the plaintiff must still plead the operative facts

       necessary to set forth an actionable claim).

[15]   Tortious interference with a contractual relationship consists of the following

       elements: (1) the existence of a valid and enforceable contract; (2) the

       defendant’s knowledge of the existence of the contract; (3) the defendant’s

       intentional inducement of breach of the contract; (4) the absence of justification;

       and (5) damages resulting from the defendant’s wrongful inducement of the

       breach. Duty v. Boys & Girls Club of Porter Cty., 23 N.E.3d 768, 774 (Ind. Ct.

       App. 2014). In order to adequately plead the fourth element—the absence of

       justification—the plaintiff must state more than a mere assertion that the

       defendant’s conduct was unjustified. Id. at 775. That is, the plaintiff must set

       forth factual allegations from which it can reasonably be inferred that the

       defendant’s conduct was unjustified. Morgan Asset Holding Corp. v. CoBank,

       ACB, 736 N.E.2d 1268, 1272 (Ind. Ct. App. 2000). In this context,

       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 10 of 16
       “unjustified” means “malicious and exclusively directed to the injury and

       damage of another.” Duty, 23 N.E.3d at 775; see also Bochnowski v. Peoples Fed.

       Sav. & Loan Ass’n, 571 N.E.2d 282, 285 (Ind. 1991) (“The plaintiff bringing [an

       action for tortious interference] must be prepared to show that the defendant

       interferer acted intentionally and without a legitimate business purpose.”).

[16]   To support the absence-of-justification element, Mourning alleged the following

       facts:

                17. Defendant Allison had no justification for inducing the
                breach of the employment contract between Ternes and Plaintiff,
                as Defendant willfully failed to abide by established procedure
                regarding staffing requests or complaints/discipline directed to
                Ternes Packaging, and as Defendant leveraged its continued
                business relationship with Ternes (which was at that time in re-
                bid negotiations) to demand the termination of Plaintiff’s
                employment.


       Appellant’s App. Vol. II pp. 10-11. As Allison Transmission points out on

       appeal, Mourning’s factual allegations “address how Allison allegedly went

       about causing [her] to get fired, not why it did so.” Appellee’s Br. p. 16. In

       other words, just because Allison Transmission may not have gone through the

       correct channels or may have been in contract negotiations with Ternes does

       not mean that it acted unjustifiably, i.e. with malice, when it made the

       statements about Mourning. Accordingly, Mourning’s complaint fails to state a

       claim for tortious interference. Cf. Duty, 23 N.E.3d at 775 (concluding that

       plaintiff stated a claim for tortious interference by alleging that defendant’s



       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017   Page 11 of 16
       actions were “vindictive,” because “[v]indictiveness is, by its nature,

       malicious”).

[17]   Allison Transmission next argues that Mourning did not sufficiently plead the

       operative facts to support her claim of defamation. The general elements of

       defamation are: (1) a communication with defamatory imputation, (2) malice,

       (3) publication, and (4) damages.3 Trail v. Boys & Girls Clubs of Nw. Ind., 845

       N.E.2d 130, 136 (Ind. 2006). Mourning alleged the following facts to support

       her defamation claim:

                20. [Defendant Allison stated] that Plaintiff did not embrace
                change, was not data-driven, had performance issues in her
                position, was not competent to continue working in her position
                managing staff or providing bundled services to Allison, and
                should not . . . continue in her position of employment with
                Ternes.[4]




       3
         The parties proceed as if malice is a required element of Mourning’s defamation claim; indeed,
       Mourning’s complaint alleges malice. While private individuals must show actual malice when the
       communication in question relates to an issue of public concern, if the matter does not concern the
       public, then malice is not a required element. See 23 James R. Fisher & Debra H. Miller, Indiana
       Practice, Personal Injury Law and Practice, § 3:21 (2d ed. 2007); see also Brewington v. State, 7 N.E.3d 946,
       962 (Ind. 2014) (“Determining whether a controversy is of public or general concern is a question of
       law for the court. . . . Out of an abundance of caution, though, we will assume arguendo that if a
       psychologist actually were abusing his position of trust to give corrupt expert testimony or for personal
       gratification, it would be a matter of public or general concern. Under that assumption, the actual-
       malice standard would apply . . . .” (emphasis added)), reh’g denied. It is not clear why the parties treat
       malice as a required element in this seemingly private matter. However, because they do, we do the
       same.
       4
         Allison Transmission argues that “[n]one of th[e]se statements are false statements of verifiable fact.”
       Appellee’s Br. p. 18. Even a statement that on first blush appears to constitute an opinion may still be
       legally defamatory if “a reasonable fact finder could conclude that the statement implies facts which
       may be proven true or false.” McQueen v. Fayette Cty. Sch. Corp., 711 N.E.2d 62, 66 (Ind. Ct. App.
       1999), trans. denied. Accordingly, we find that Mourning’s allegations are sufficient. See id. (“Miller’s
       statement [that McQueen destroyed the girls’ basketball program] implies verifiable facts regarding
       McQueen’s performance and conduct as a basketball scout and coach. The statement at issue was not
       uttered by an irate fan during a hotly contested basketball game or by a sports commentator, but by

       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                            Page 12 of 16
                21. The communications made by Defendant Allison regarding
                Plaintiff during this period were false, were made with malice
                (as Defendant leveraged its continued business relationship
                with Ternes—which was at that time in re-bid negotiations—
                to defame Plaintiff and secure her termi[n]ation), and were
                published through inter-company communications between
                Allison and Ternes . . . and through intra-company
                communications within Ternes itself.


                22. Defendant Allison . . . made these communications without
                belief or grounds for belief in their truth, as at the time Plaintiff
                went on leave she had no disciplinary record or pending
                complaints whatsoever regarding her performance in the
                provision of bundled services to Allison.


       Appellant’s App. Vol. II pp. 11-12 (emphasis added).

[18]   Allison Transmission specifically challenges the malice element of Mourning’s

       defamation claim. Allison Transmission makes the same argument that it did

       with respect to the absence-of-justification element of Mourning’s tortious-

       interference claim, that is, it argues that Mourning’s factual allegations for the

       malice element address “how Allison allegedly caused M[s]. Mourning’s

       termination, not why,” which is not enough. Appellee’s Br. p. 19.




       another coach, a professional colleague. At this early stage in the litigation, we must infer there was a
       factual predicate for Miller’s statement of McQueen’s job performance and that those within earshot
       understood his statement to be grounded in fact. Thus, McQueen’s complaint is sufficient on its face,
       and it would be premature to dismiss the complaint [pursuant to Trial Rule 12(B)(6)].”).



       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                          Page 13 of 16
[19]   But malice for purposes of tortious interference is different than malice for

       purposes of defamation. In the defamation context, the actual-malice element

       is not to be confused with the ordinary definition of malice as “an evil intent or

       motive arising from spite or ill will.” McCollough v. Noblesville Schs., 63 N.E.3d

       334, 348 (Ind. Ct. App. 2016) (quotation omitted), trans. denied. Rather, actual

       malice as an element of defamation exists when the defendant publishes a

       defamatory statement “with knowledge that it was false or with reckless

       disregard of whether it was false or not.” Id. (quotations omitted). Here,

       Mourning included parenthetical information after it alleged that Allison

       Transmission made the defamatory statements with “malice”:

               21. The communications made by Defendant Allison regarding
               Plaintiff during this period . . . were made with malice (as
               Defendant leveraged its continued business relationship with
               Ternes—which was at that time in re-bid negotiations—to
               defame Plaintiff and secure her termi[n]ation) . . . .


       Appellant’s App. Vol. II p. 12 (emphasis added). Although this parenthetical

       information does not address the “actual malice” standard for defamation,

       Mourning alleged in Paragraph No. 22 that Allison Transmission made the

       false communications “without belief or grounds for belief in their truth.”5 This




       5
        Anticipating that Allison Transmission would claim the common-interest privilege, see McCollough, 63
       N.E.3d at 348 (explaining that this privilege applies to communications made in good faith on any subject
       matter in which the party making the communication has an interest if made to a person having a
       corresponding interest), Mourning alleged in Paragraph No. 22 that Allison Transmission abused this
       privilege as follows:

       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                      Page 14 of 16
satisfies the specificity required for stating actual malice in a defamation suit

under our notice-pleadings rules, and the parenthetical information about

Allison Transmission leveraging its business relationship is mere surplusage.

See Miller by Miller v. Mem’l Hosp. of S. Bend, Inc., 679 N.E.2d 1329, 1332 (Ind.

1997) (the notice-pleading rule “is designed to discourage battles over mere

form of statement and to sweep away needless controversies that have occurred

either to delay trial on the merits or to prevent a party from having a trial

because of mistakes in statement” (quotation omitted)); see also Ind. Trial Rule

8(F) (“All pleadings shall be so construed as to do substantial justice, lead to

disposition on the merits, and avoid litigation of procedural points.”).




         22. Defendant Allison made the foregoing defamatory communications in bad faith (as
         Defendant willfully failed to abide by established procedure regarding staffing requests or
         complaints/discipline directed to Ternes Packaging, and as Defendant leveraged its
         continued business relationship with Ternes which was at that time in re-bid
         negotiations), excessively published them through numerous conversations over the
         period of Plaintiff’s medical absence, and/or made these communications without belief
         or grounds for belief in their truth, as at the time Plaintiff went on leave she had no
         disciplinary record or pending complaints whatsoever regarding her performance in the
         provision of bundled services to Allison.


Appellant’s App. Vol. II p. 12; see McCollough, 63 N.E.3d at 348 (explaining that plaintiff can show
an abuse of this privilege in one of three ways: (1) the communicator was motivated primarily by
ill will (absence of good faith); (2) the communication was published excessively; or (3) the
communication was made without belief or grounds for belief in its truth). Mourning’s allegation
that Allison Transmission published the communications excessively through numerous
conversations is sufficient to withstand Allison Transmission’s Trial Rule 12(B)(6) challenge. See
Appellee’s Br. p. 24 (Allison Transmission explaining that whether its statements are subject to the
privilege is a “typical Rule 12(B)(6) analysis”).



Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                         Page 15 of 16
[20]   We reverse the dismissal of Mourning’s defamation claim and remand this case

       to give Mourning an opportunity to amend her tortious-interference claim once

       as of right pursuant to Trial Rule 15(A).6 See T.R. 12(B).


[21]   Reversed and remanded.

       Bradford, J., and Brown, J., concur.




       6
         Allison Transmission argues that giving Mourning an opportunity to amend her complaint would be a
       “fleeting victory” because collateral estoppel “would then bar her suit based on the recent summary judgment
       in federal court . . . .” Appellee’s Br. p. 25. Because Allison Transmission does not list the elements of
       collateral estoppel or explain how they apply to the facts in this case, this argument is waived.

       Court of Appeals of Indiana | Opinion 49A02-1608-MI-1822 | March 15, 2017                     Page 16 of 16
