                                                                          FILED
                                                                      Dec 31 2018, 5:37 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
F. Anthony Paganelli                                      Brian P. Williams
Thomas D. Perkins                                         Patrick C. Thomas
Stephanie L. Grass                                        Kahn, Dees, Donovan & Kahn
Indianapolis, Indiana                                     LLP
                                                          Evansville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Benjamin P. Ingram and Ben’s                              December 31, 2018
Quarry, LLC,                                              Court of Appeals Case No.
Appellants-Plaintiffs,                                    18A-CT-15
                                                          Appeal from the Vanderburgh
        v.                                                Superior Court
                                                          The Honorable Mary Margaret
Diamond Equipment, Inc.,                                  Lloyd, Judge
Appellee-Defendant.                                       Trial Court Cause No.
                                                          82D05-1510-CT-5582



Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018                           Page 1 of 18
[1]   Benjamin P. Ingram (“Ingram”) and Ben’s Quarry, LLC (“Ben’s Quarry”)

      brought this cause of action for malicious prosecution and now appeal the entry

      of summary judgment in favor of Diamond Equipment, Inc. (“Diamond”). We

      affirm.


                                       Facts and Procedural History

[2]   In 2005, Diamond sold Ingram Enterprises, LLC (“Ingram Enterprises”) heavy

      equipment at a purchase price in excess of $1.2 million, and Ingram Enterprises

      later defaulted on its payment obligations. In 2007, Ingram Enterprises sold its

      business to Ingram Quarry, LLC (“Ingram Quarry”), and Ingram Quarry

      assumed Ingram Enterprises’ debt to Diamond. On September 29, 2009,

      Diamond filed suit against Ingram Quarry in Marion County in cause number

      49D03-0909-CT-44859 (the “Marion County Lawsuit”) to recover the unpaid

      balance from the 2005 sale. On October 19, 2010, Diamond filed a motion for

      summary judgment against Ingram Quarry, which filed a cross-motion for

      summary judgment on December 6, 2010.


[3]   On January 18, 2011, Ingram filed papers with the Indiana Secretary of State to

      form Ben’s Quarry, and the following day Ingram purchased certain assets from

      Ingram Quarry for approximately $1.4 million. According to the operating

      agreement of Ben’s Quarry, Ingram was a founding member. In February

      2011, a closing for the sale of assets took place at the office of Title Plus! in

      Bloomington “roughly three days before [a] hearing on the motion[s] for

      summary judgment.” Appellants’ Appendix Volume VI at 237.



      Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018          Page 2 of 18
[4]   In late March and early April 2011, Diamond retrieved the heavy equipment

      from the property of Ben’s Quarry, the “original site of Ingram Quarry’s quarry

      operation,” and sold it in August or September 2011 for salvage value.

      Appellants’ Appendix Volume V at 37. In September 2011, the court entered

      summary judgment in favor of Diamond and against Ingram Quarry and

      entered a monetary judgment of $907,889.81 in favor of Diamond.


[5]   On October 6, 2011, Diamond filed a motion for proceedings supplemental to

      execution against Ingram Quarry, which alleged that the judgment remained

      wholly unsatisfied and outstanding, as well as interrogatories and requests for

      production that contained Interrogatory No. 10, which inquired into “any liens

      or security interests against any of the foregoing inventory, accounts, equipment

      or assets.” Appellants’ Appendix Volume VIII at 22. On October 12, 2011,

      Diamond filed an Amended Verified Motion for Proceeding Supplemental to

      Execution, which “added Garnishee Defendant, [Ben’s Quarry]. The purpose

      of the amendment was that Ingram Quarry was no longer a viable business and

      [Diamond] had knowledge that Ingram Quarry was being sold to Ben’s

      Quarry.” Id. at 193. In January 2012, the Marion Superior Court granted a

      motion to compel Ben’s Quarry to fully respond to Interrogatory No. 10.




      Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018      Page 3 of 18
[6]   On April 5, 2012, Diamond filed a complaint for fraudulent transfer in the

      Marion County Lawsuit against various defendants,1 including “Garnishee

      Defendants, [Ingram and Ben’s Quarry],” which sought assets fraudulently

      transferred to Ingram and Ben’s Quarry “while Diamond’s motion for

      summary judgment was fully-briefed and pending the Court’s entry of summary

      judgment.” Id. at 29-30. On August 19, 2013, Diamond filed its first amended

      complaint against Ingram and Ben’s Quarry, alleging violations of the Indiana

      Uniform Fraudulent Transfer Act and which sought to hold Ben’s Quarry liable

      for Diamond’s judgment against Ingram Quarry “under the ‘de facto merger’

      and ‘mere continuation’ doctrines of successor corporation liability.” Id. at 89.


[7]   On February 24 and 25, 2014, the court held a bench trial. At the conclusion of

      the trial, the court stated that “quite honestly, I have followed the evidence very

      closely, I think I understand the issues” and that “these kind of cases” are “not

      easy because the issues are obviously complicated, but you guys were very

      well[-]prepared.” Appellants’ Appendix Volume VI at 66-67. On May 11,

      2015, the court issued Findings of Fact, Conclusions of Law, and Judgment for

      Garnishee Defendants, in which it found in favor of Ingram and Ben’s Quarry

      on all counts. The court found that there was “no basis to deem this sale to be a

      fraudulent conveyance of assets” and that the effort by Diamond to “position

      this case into the narrow de facto merger doctrine must fail.” Appellants’



      1
       The court’s May 11, 2015 judgment indicates the court entered default judgment by November 1, 2012,
      against the named defendants other than Ingram and Ben’s Quarry. See Appellants’ Appendix Volume VIII
      at 193 n.1.

      Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018                        Page 4 of 18
Appendix Volume VIII at 208, 213. The court also found in part that Ingram

Quarry entered into a purchase agreement “to sell some (but not all) of its assets

to [Ingram] or his assignee for a purchase price of $1,246,000” and under the

same contract, Ingram Quarry sold stone inventory to Ingram or his assignee

for a purchase price of $104,000. It found that Ingram and Ben’s Quarry

“applied with German American Bank for loans to finance the purchase of

equipment and stone from Ingram Quarry”; that a closing took place at the

offices of Title Plus! in Bloomington, Indiana, on February 25, 2011, in which

Ingram Quarry was represented by its lawyer, Michael Carmin; that Carmin

did not represent Ingram or Ben’s Quarry in the transaction; and that,

according to Carmin, Ingram Quarry became defunct some time in the Summer

of 2011. Id. at 198. The order further states:


        This Court concludes that the only “badge of fraud” present in
        this case is Item No. 1 on the above-quoted list: “the transfer of
        property by a debtor during the pendency of a suit.” It is true
        that this transaction occurred while the lawsuit was pending, and
        that [Ingram] knew about the lawsuit. . . . Specifically, the
        transaction was executed in January 2011 and closed in February
        2011, just after cross-motions for summary judgment by both
        Diamond and by Ingram Quarry had been fully briefed. The
        cross-motions would remain under advisement for another seven
        months before the prior court issued its summary judgment order
        in September 2011. . . . However, the transaction between
        Ingram Quarry and Ben’s Quarry specifically excluded the assets at
        issue in the lawsuit. In other words, Ben’s Quarry did not buy
        from Ingram Quarry any of the assets that were the subject of
        Diamond’s claim against Ingram Quarry.


Id. at 206.

Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018      Page 5 of 18
[8]   On October 30, 2015, Ingram and Ben’s Quarry filed a complaint with the

      Vanderburgh Superior Court in cause number 82D05-1510-CT-5582 (the

      “Vanderburgh County Lawsuit”), the cause from which this appeal arises,

      which alleged that Diamond “acted with malice in instituting and prosecuting”

      the Marion County Lawsuit against Ingram, “had no probable cause to institute

      and/or maintain” the Marion County Lawsuit against Ingram and Ben’s

      Quarry, and “failed to make a reasonable or suitable inquiry and lacked any

      probable cause” to hold Ingram and Ben’s Quarry personally liable.

      Appellants’ Appendix Volume II at 42. On June 16, 2017, Diamond filed a

      motion for summary judgment, and Ingram and Ben’s Quarry filed a motion

      for partial summary judgment.


[9]   On September 8, 2017, the trial court held a hearing on the summary judgment

      motions in the Vanderburgh County Lawsuit and, on December 5, 2017,

      granted Diamond’s summary judgment motion, finding as a matter of law that

      Ingram and Ben’s Quarry could not prove their malicious prosecution claim

      because Diamond “had probable cause in initiating the underlying lawsuit

      against [them]” and it did not act maliciously.2 Id. at 32. The order states in

      part that the Marion Superior court’s conclusion in finding a badge of fraud

      “exceeds the threshold for probable cause and therefore [Ingram and Ben’s

      Quarry] cannot prove that Diamond lacked probable cause” and that several



      2
        The court additionally denied Ben’s Quarry and Ingram’s motion for partial summary judgment with regard
      to Diamond’s affirmative defense of the advice of counsel and found it moot with regard to Diamond’s other
      affirmative defenses.

      Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018                           Page 6 of 18
connections between Ingram and Ben’s Quarry and the original debtor, Ingram

Enterprises, and the judgment debtor, Ingram Quarry, established probable

cause. Id. at 23. With regard to the malice element of the malicious

prosecution claim, the order states:


        Diamond and its attorneys made a reasonable inquiry by
        thoroughly investigating and discovering the facts above before
        filing the underlying lawsuit. . . . On October 17, 2011 Diamond
        served interrogatories on Ben’s Quarry. Diamond had already
        filed for a proceeding supplemental against Ingram Quarry and a
        hearing was scheduled for November 29, 2011. Diamond had to
        file two motions to compel against [Ingram and Ben’s Quarry] in
        order to obtain information regarding the asset sale. When
        Diamond received the information, Diamond discovered that the
        sale between [Ingram and Ben’s Quarry] and Ingram Quarry had
        occurred just three days before the hearing on Diamond’s Motion
        for Summary Judgment against Ingram Quarry. Diamond and its
        counsel made a reasonable inquiry into the facts before filing suit
        against [Ingram and Ben’s Quarry] on April 5, 2012. Diamond
        chose to pursue the underlying action not out of animosity but out
        of an honest belief that [Ingram and Ben’s Quarry] had acted
        fraudulently in the transfer of Ingram Quarry’s assets.

        37. Diamond voluntarily dismissed one of its counts against
        [Ingram and Ben’s Quarry] prior to trial because Diamond did
        not believe it could prove the claim at trial. Chronological Case
        Summary attached to [Diamond’s] Response in Opposition to
        [the Motion for Partial Summary Judgment by Ingram and Ben’s
        Quarry] as Exhibit C, p. 10. This further displays that Diamond
        acted in good faith in the underlying lawsuit against [Ingram and
        Ben’s Quarry].

        38. There was no evidence [sic] personal animosity between
        Diamond and [Ingram and Ben’s Quarry]. There is nothing in the



Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018       Page 7 of 18
               record that indicates that Diamond or its representatives had any
               sort of ill feeling or bad history toward [Ingram and Ben’s Quarry].

       Id. at 30-31.


                                                     Discussion

[10]   The issue is whether the trial court erred in entering summary judgment in

       favor of Diamond and against Ingram and Ben’s Quarry. The purpose of

       summary judgment is to terminate litigation about which there can be no

       factual dispute and which may be determined as a matter of law. Sheehan Const.

       Co., Inc. v. Continental Cas. Co., 938 N.E.2d 685, 689 (Ind. 2010) (citing Bushong

       v. Williamson, 790 N.E.2d 467, 474 (Ind. 2003)), reh’g denied. Once the moving

       party has sustained its initial burden of proving the absence of a genuine issue

       of material fact and the appropriateness of judgment as a matter of law, the

       party opposing summary judgment must respond by designating specific facts

       establishing a genuine issue for trial. Id. (citing Stephenson v. Ledbetter, 596

       N.E.2d 1369, 1371 (Ind. 1992)). If the opposing party fails to meet its

       responsive burden, the court shall render summary judgment. Id. (citing

       Bushong, 790 N.E.2d at 474). We construe all factual inferences in the

       nonmoving party’s favor and resolve all doubts as to the existence of a material

       issue against the moving party. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).

       “The fact that the parties have filed cross-motions for summary judgment does

       not alter our standard for review.” Asklar v. Gilb, 9 N.E.3d 165, 167 (Ind. 2014)

       (citing Reed, 980 N.E.2d at 289). Instead, we must consider each motion

       separately to determine whether the moving party is entitled to judgment as a

       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018          Page 8 of 18
       matter of law. Id. A trial court’s grant of summary judgment is clothed with a

       presumption of validity, and the party who lost in the trial court has the burden

       of demonstrating that the grant of summary judgment was erroneous. Webb v.

       City of Carmel, 101 N.E.3d 850, 861 (Ind. Ct. App. 2018) (citing Henderson v.

       Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied). We will affirm upon any theory or basis supported by the designated

       materials. Id.


[11]   Ingram and Ben’s Quarry argue that the findings of probable cause and lack of

       malice as a matter of law are fact-sensitive inquiries and inappropriate for

       resolution on summary judgment. They also argue that, in finding Diamond

       had probable cause to initiate the Marion County Lawsuit, the trial court

       improperly decided issues of fact that had already been determined and contend

       that collateral estoppel applies. Diamond responds that it needs only to

       affirmatively negate one of the elements of the malicious prosecution claim and

       contends the undisputed evidence both establishes it had probable cause to

       initiate its lawsuit and affirmatively negates the malice element of malicious

       prosecution.


[12]   The essence of malicious prosecution rests on the notion that the plaintiff has

       been improperly subjected to legal process. City of New Haven v. Reichhart, 748

       N.E.2d 374, 378 (Ind. 2001) (citing Ziobron v. Crawford, 667 N.E.2d 202, 208

       (Ind. Ct. App. 1996), trans. denied). There are four elements of a malicious

       prosecution claim: (1) the defendant instituted or caused to be instituted an

       action against the plaintiff; (2) the defendant acted with malice in doing so; (3)

       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018       Page 9 of 18
       the defendant had no probable cause to institute the action; and (4) the original

       action was terminated in the plaintiff’s favor. Id. (citing Trotter v. Ind. Waste

       Sys., 632 N.E.2d 1159, 1164 (Ind. Ct. App. 1994).


[13]   We note initially that collateral estoppel is applicable “when a particular issue is

       adjudicated and then is put into issue in a subsequent suit on a different cause

       of action between the same parties or those in privity with them.” Ind. Gas Co.,

       Inc. v. Ind. Util. Regulatory Comm’n, 75 N.E.3d 568, 580 (Ind. Ct. App. 2017)

       (citing Watson Rural Water Co., Inc. v. Ind. Cities Water Corp., 540 N.E.2d 131,

       135 (Ind. Ct. App. 1989), trans. denied, reh’g denied). We have previously held,

       however, that “[c]ollateral estoppel does not extend to matters that were not

       expressly adjudicated or to matters that can be inferred from the prior

       adjudication only by argument.” Id. (quoting MicroVote Gen. Corp. v. Ind.

       Election Comm’n, 924 N.E.2d 184, 197 (Ind. Ct. App. 2010)). At the time of the

       Marion County Lawsuit, Ind. Code § 32-18-2-14, which governs fraudulent

       transfer, provided:


               A transfer made or an obligation incurred by a debtor is
               fraudulent as to a creditor, whether the creditor’s claim arose
               before or after the transfer was made or the obligation was
               incurred, if the debtor made the transfer or incurred the
               obligation:

               (1) with actual intent to hinder, delay, or defraud any creditor of
                   the debtor; or

               (2) without receiving a reasonably equivalent value in exchange
                   for the transfer or obligation, and the debtor:



       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018        Page 10 of 18
                 (A) was engaged or was about to engage in a business or a
                 transaction for which the remaining assets of the debtor
                 were unreasonably small in relation to the business or
                 transaction; or

                 (B) intended to incur or believed or reasonably should
                 have believed that the debtor would incur debts beyond the
                 debtor’s ability to pay as the debts became due.


(Subsequently amended by Pub. L. No. 61-2017 § 13, eff. July 1, 2017). We

also note the Indiana Supreme Court’s statement in Cooper Industries, LLC v. City

of South Bend that:


        Courts sometimes treat asset transfers as de facto mergers where
        the economic effect of the transaction makes it a merger in all but
        name. Some pertinent findings might include continuity of the
        predecessor corporation’s business enterprise as to management,
        location, and business lines; prompt liquidation of the seller
        corporation; and assumption of the debts of the seller necessary
        to the ongoing operation of the business.


899 N.E.2d 1274, 1288 (Ind. 2009). Contrary to the argument by Ingram and

Ben’s Quarry, the court’s findings in the Marion County Lawsuit – that there

was “no basis to deem this sale to be a fraudulent conveyance of assets” and

that the effort by Diamond to “position this case into the narrow de facto merger

doctrine must fail” – do not equate to an adjudication that Diamond acted with

malice in instituting or causing to be instituted an action against Ingram and

Ben’s Quarry or had no probable cause to institute the action. Appellants’

Appendix Volume VIII at 208, 213. The elements required to be shown to

obtain a judgment of fraudulent transfer under Ind. Code § 32-18-2-14 or of

Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018      Page 11 of 18
       liability under the de facto merger doctrine are not identical to the elements to be

       shown to prove a malicious prosecution claim.


[14]   To the extent that Ingram and Ben’s Quarry argue that Diamond had no

       probable cause to institute an action against them, we note that probable cause

       exists “when a reasonably intelligent and prudent person would be induced to

       act as did the person who is charged with the burden of having probable cause.”

       City of New Haven, 748 N.E.2d 374 at 379 (quoting Maynard v. 84 Lumber Co.,

       657 N.E.2d 406, 409 (Ind. Ct. App. 1995), trans. denied). More simply stated,

       the inquiry is whether the defendant acted reasonably in believing the plaintiff

       was somehow responsible for the tortious actions. See Satz v. Koplow, 397

       N.E.2d 1082, 1085 (Ind. Ct. App. 1979).


[15]   We observe that the court in the Marion County Lawsuit found the “transfer of

       property by a debtor during the pendency of a suit” present and concluded that

       “this transaction occurred while the lawsuit was pending” and “was executed in

       January 2011 and closed in February 2011, just after cross-motions for

       summary judgment by both Diamond and by Ingram Quarry had been fully

       briefed.” Appellants’ Appendix Volume VIII at 206. On October 12, 2011,

       when Diamond filed an Amended Verified Motion for Proceeding

       Supplemental to Execution which added Ben’s Quarry as a Garnishee

       Defendant, it had “knowledge that Ingram Quarry was being sold to Ben’s

       Quarry.” Id. at 193. We further note that the fact that a party is ultimately

       proven wrong in his interpretation of the law, does not lead to the conclusion

       the party had no probable cause to file suit. Willsey v. Peoples Fed. Sav. and Loan

       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018       Page 12 of 18
       Ass’n of E. Chicago, 529 N.E.2d 1199, 1206 (Ind. Ct. App. 1988), trans. denied.

       “To hold otherwise, would have a chilling effect on all litigation.” Id. (citing

       Wong v. Tabor, 422 N.E.2d 1279, 1285 (Ind. Ct. App. 1981)). The designated

       evidence supports the trial court’s determination that Diamond had probable

       cause to believe a fraudulent transfer had occurred between Ingram Quarry and

       Ingram and Ben’s Quarry.


[16]   Further, the designated materials that Diamond submitted in support of its

       motion for summary judgment are dispositive of the malice element of the tort.

       “Malice ‘in fact’ must be shown here; malice ‘in law’ such as is required in

       defamation actions is not sufficient.” Satz, 397 N.E.2d at 1085 (quoting

       PROSSER TORTS (4th ed. 1971)). Malice may be inferred from a total lack of

       probable cause necessary to bring suit. Kroger Food Stores, Inc. v. Clark, 598

       N.E.2d 1084, 1087 (Ind. Ct. App. 1992), trans. denied. Personal hatred or a

       desire for revenge is not necessary to establish malice, though neither is such

       evidence precluded from consideration. Satz, 397 N.E.2d at 1085. The failure

       of the defendant in the original suit giving rise to the action for malicious

       prosecution to make a suitable and reasonable inquiry into the facts underlying

       the original action is not enough in itself to sustain an action for malicious

       prosecution. Mirka v. Fairfield of Am., Inc., 627 N.E.2d 449, 451-452 (Ind. Ct.




       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018       Page 13 of 18
       App. 1994), trans. denied. Rather, that failure must be culpable, that is, malice

       that rises above the level of mere negligence.3 Id.


[17]   Along with its June 16, 2017 motion for summary judgment, Diamond

       designated the deposition of Michael Cork, an attorney from the law firm of

       Bamberger, Foreman, Oswald & Hahn, LLP (“Bamberger”) who filed

       Diamond’s September 29, 2009 complaint against Ingram Quarry to recover the

       unpaid balance from the 2005 sale in the Marion County Lawsuit, which later

       led to Diamond obtaining a monetary judgment of $907,889.81 in its favor.

       Cork’s deposition indicated that following the grant of judgment against Ingram

       Quarry “one of the first things we did was attempt to contact Ingram Quarry,”

       that it was not until “that point when we started to look for Ingram Quarry that

       we discovered that Ben’s Quarry existed,” and that “[w]e called the phone

       number where [Ingram Quarry] had existed and it was answered Ben’s




       3
        To the extent Ingram and Ben’s Quarry cite Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind.
       Ct. App. 2012), for the proposition that a failure to make a reasonable or suitable inquiry can be used to infer
       malice, we find instructive this Court’s observation in Mirka:
                At least one other case, F.W. Woolworth Co., Inc. v. Anderson (1984), Ind.App., 471 N.E.2d 1249,
                1254, trans. denied, has noted that malice may be inferred from the failure to conduct a reasonable or
                suitable investigation. To the extent that F.W. Woolworth implies that no culpability (malice in this
                context) is required before a failure to reasonably investigate can be considered evidence of malice,
                we disagree. A mere failure to make a reasonable investigation smacks of negligence. The use of
                the word “reasonable” betrays this. To allow negligence to serve as evidence of malice in a cause of
                action for malicious prosecution is to, as a practical matter, create a cause of action for negligent
                prosecution. That would allow through the back door that which we have refused to allow through
                the front door. Any allegation that a defendant has failed to reasonably investigate, therefore, before
                it can be considered to be evidence of malice, must be linked to evidence that the failure was done
                with the required level of culpability-here malice. Standing alone a mere failure of this sort cannot
                allege the necessary intent.
       627 N.E.2d at 451 n.5.



       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018                                Page 14 of 18
       Quarry.” Appellants’ Appendix Volume VI at 203-204. Cork stated in his

       deposition that “we checked to see when Ben’s Quarry was formed and

       obtained that information through the Secretary of State” in response to a

       question about whether certain information was provided by Diamond or by his

       primary contact with Diamond, Dan Hengen. Id. at 205. Cork further stated

       that “[w]hen we found out about [Ingram], it was because I did not know

       [Ingram] previously” and that Hengen “said [Ingram] is a relative of the

       Ingrams who were involved with Ingram Enterprises, and [Ingram] is

       somebody that we dealt with when Diamond picked up certain scrap

       equipment for salvage value and [Ingram] worked as a manager at Ingram

       Quarry.” Id.


[18]   Diamond also designated an affidavit by Hengen indicating that he was

       Diamond’s chief financial officer and that, before filing suit against Ingram and

       Ben’s Quarry, Bamberger “discovered that Ingram Quarry had sold almost all

       of its assets to Ben’s Quarry while summary judgment motions were pending in

       [Diamond’s] lawsuit against Ingram Quarry.” Appellants’ Appendix Volume II

       at 80. The affidavit also states in part:


               11. Although having never spoken to [Ingram] prior to filing the
               underlying lawsuit, the undersigned had familiarity with
               [Ingram] being involved with Ingram Quarry.

               12. In communicating with [Cork] about [Ingram], discussions
               included knowing [Ingram] had worked at Ingram Quarry, that
               he was related to the original owners of Ingram Enterprises, and
               that [Diamond] dealt with [Ingram] when [Diamond] picked up
               the equipment that Ingram Quarry had defaulted on.

       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018    Page 15 of 18
        13. Through discussions with my legal counsel, it was decided
        that attorney [Cork] ought to continue to investigate Ben’s
        Quarry and [Ingram’s] connection to Ingram Quarry.

        14. [Cork] learned through depositions and other discovery
        efforts and informed me of the following:

                 a. Ingram Quarry’s name remained on the fax machine
                 legend at Ben’s Quarry for nearly two years after the asset
                 sale;

                 b. Ingram Quarry’s name remained on the Indiana
                 Department of Environmental Management permits for
                 two years after the asset sale;

                 c. The asset sale took place three days before the hearing
                 on the motions for summary judgment in the Diamond
                 Equipment v. Ingram Quarry case.

                 d. The asset sale took place very quickly and involved
                 multiple loans being signed at once.

                 e. [Ingram] was not represented by counsel during the
                 transaction.

                 f. Ben’s Quarry was located at the same address where
                 Ingram Quarry had been located.

                 g. Ben’s Quarry used the same telephone number and fax
                 number that Ingram Quarry had used.

                 h. When [Cork], or other [Bamberger] members called
                 Ingram Quarry’s former telephone number, it was
                 answered “Ben’s Quarry.” [Bamberger] asked about
                 Ingram Quarry’s status and the Ben’s Quarry employees
                 stated they did not know what happened to Ingram
                 Quarry.

        15. Attorney [Cork] called me with the results of the call to
        Ingram Quarry, now Ben’s Quarry and recommended that Cork

Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018           Page 16 of 18
        contact [Carmin], attorney for Ingram and indicate the need to
        take [Ingram’s] deposition or the deposition of a Ben’s Quarry
        representative. . . . I was aware and approved of these steps in
        conversation with my attorneys and before filing suit. A copy of
        my attorney’s correspondence to Attorney [Carmin] was attached
        to the Complaint as an Exhibit. I recall that [Cork] told me
        Carmin did not respond. The day before [Bamberger] filed suit
        on [Diamond’s] behalf against [Ingram] and Ben’s Quarry,
        Carmin sent an email offering documents only, provided
        [Diamond] agreed they were all confidential and proprietary.
        Cork emailed me this information and forwarded the Carmin
        email. In conversation with [Cork], we decided it was more
        stalling, and decided to file suit.

        16. Based on attorney [Cork’s] report and in my opinion, there
        were simply too many coincidences surrounding the asset sale.


Id. at 81-82. We further note the Marion Superior court found that, on October

12, 2011, Diamond filed an Amended Verified Motion for Proceeding

Supplemental to Execution which added “Garnishee Defendant, [Ben’s

Quarry].” Appellants’ Appendix Volume VIII at 193. The record includes a

copy of the chronological case summary in the Marion County Lawsuit that

contains a November 17, 2011 entry which states “Interrogatories: Ben’s

Quarry.” Appellants’ Appendix Volume IX at 33. Ingram’s deposition

includes an “Exhibit D 12/5/11 Letter from Mr. Cork” addressing Hengen,

indicating that Ingram Quarry, Ben’s Quarry, and Carmin did not appear at a

November 29, 2011 Proceedings Supplemental hearing and stating in part

“Additional discovery is needed to find out where the money went and how the

distribution of that money and equipment impacts a fraudulent transfer claim.”

Appellants’ Appendix Volume VI at 74, 182. The record also contains copies of

Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018      Page 17 of 18
       the Marion Superior court’s January 3, 2012 Order Granting Motion to Compel

       Ben’s Quarry, LLC to Fully Respond to Interrogatory No. 10 4 and October 16,

       2012 “Order Granting Motion to Compel Garnishee Defendants – Benjamin P.

       Ingram and Ben’s Quarry, LLC – To Produce Documents.” Appellants’

       Appendix Volume IX at 27-28.


[19]   Even construed in a light most favorable to Ingram and Ben’s Quarry as the

       nonmovants, this evidence satisfied Diamond’s burden of proving the absence

       of a question of material fact as to any intended malicious prosecution of

       Ingram and Ben’s Quarry. Further, when considering all the designated

       evidence together and in a light most favorable to Ingram and Ben’s Quarry, we

       cannot conclude that they then provided materials which demonstrated the

       existence of a genuine issue of material fact.


[20]   For the foregoing reasons, we affirm the trial court’s grant of Diamond’s

       motion for summary judgment.


[21]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       4
        We note Diamond’s October 6, 2011 proceedings supplemental interrogatories included an “Interrogatory
       No. 10” which inquired into “any liens or security interests against any of the foregoing inventory, accounts,
       equipment or assets.” Appellants’ Appendix Volume VIII at 22.

       Court of Appeals of Indiana | Opinion 18A-CT-15 | December 31, 2018                              Page 18 of 18
