                                                                          Jun 30 2015, 8:19 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
      Swaray Edward Conteh                                       Craig M. Borowski
      The Law Office of Swaray Conteh, LLC                       Rozlyn M. Fulgoni-Britton
      Indianapolis, Indiana                                      Faegre Baker Daniels LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tikidanke Bah,                                             June 30, 2015

      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 49A02-1407-CT-512
              v.                                                 Appeal from the Marion Circuit
                                                                 Court

      Mac’s Convenience Stores, LLC                              The Honorable Louis Rosenberg,
      d/b/a Circle K and David                                   Judge
      Ruffin,
                                                                 Case No. 49C01-1004-CT-16980
      Appellees-Defendants




      Crone, Judge.


                                              Case Summary
[1]   Tikidanke Bah was a store manager for Mac’s Convenience Stores, LLC d/b/a

      Circle K (“Circle K”). Bah’s supervisor, David Ruffin, suspected that she had

      stolen money from the store, which she denied. Ruffin terminated Bah’s



      Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                    Page 1 of 25
      employment and contacted the police. The prosecutor charged Bah with theft.

      After a trial, the jury found her not guilty.


[2]   Bah filed a complaint against Circle K and Ruffin (collectively “Appellees”)

      asserting eight counts: false imprisonment, two counts of defamation,

      malicious prosecution, negligent supervision, vicarious liability, intentional

      infliction of emotional distress, and negligent infliction of emotional distress.

      Appellees filed a motion for summary judgment as to all eight counts as well as

      a motion to strike certain evidence designated by Bah.


[3]   The trial court granted Appellees’ motion to strike and motion for summary

      judgment. Bah filed a motion to correct error asserting that the trial court erred

      in granting the motion to strike and the motion for summary judgment. The

      trial court denied Bah’s motion to correct error.


[4]   On appeal, Bah first contends that the trial court erred in granting Appellees’

      motion to strike on procedural and substantive grounds. We conclude that Bah

      has waived these arguments because she failed to object on either basis and in

      fact consented to the procedure.


[5]   Bah also contends that the trial court erred in granting Appellees’ summary

      judgment motion. Bah has withdrawn her negligent supervision claim, and we

      conclude that her negligent infliction of emotional distress claim fails as a

      matter of law; therefore, we affirm the trial court’s grant of summary judgment

      in Appellees’ favor on those claims. We also affirm the trial court’s grant of

      summary judgment on Bah’s malicious prosecution claim. But we conclude

      Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015    Page 2 of 25
      that Appellees are not entitled to summary judgment on Bah’s remaining claims

      based on defenses requiring state-of-mind and credibility determinations.

      Therefore, we affirm in part, reverse in part, and remand for further

      proceedings.


                                  Facts and Procedural History
[6]   The relevant facts most favorable to Bah as the nonmoving party on summary

      judgment are as follows. In 2006, Bah started working for Circle K as a cashier.

      In 2007, she was promoted to manager of a store at 82nd Street and Allisonville

      Road in Indianapolis. Bah reported to Ruffin, the market manager. In 2008,

      over Bah’s objection, Ruffin transferred her to a smaller store at 86th Street and

      Ditch Road.


[7]   In June 2008, Ruffin received a job performance evaluation from Circle K

      stating that he needed “significant improvement” in implementing “loss

      prevention techniques.” Appellant’s App. at 126. Around the beginning of

      September 2008, Ruffin asked Bah if she would resign because he thought that

      Circle K was going to close her store. Bah said that she would prefer to assist

      other managers with their stores. Ruffin said that Bah “should instead resign

      and that the option [she] proposed was not viable.” Id. at 108 (Bah’s affidavit).


[8]   At that time, Bah was having problems with some of her employees “error

      correcting cigarettes” and, she believed, “stealing money.” Id. Bah informed

      Ruffin and asked him to come to her store. Ruffin refused. Since Bah “needed



      Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015   Page 3 of 25
       immediate action and [Ruffin] was not helping, [she] bypassed him and

       contacted [Ruffin’s] boss” on September 12, 2008. Id.


[9]    Ruffin received weekly sales reports from the stores that he managed and

       reviewed them for financial “irregularities that required investigation.”

       Appellees’ App. at 4 (Ruffin’s affidavit). In mid-September 2008, Ruffin

       “noticed a negative number for grocery/C-store sales” in a report from Bah’s

       store, which was “very unusual.” Id. He also “found that refunds totaling

       $1,500 were issued” at Bah’s store on September 12. Id.


[10]   On September 18, Ruffin went to Bah’s store to investigate, but she was not

       there. He looked for various “store financial reports” for September 12 but was

       unable to locate them, which he found “odd.” Id. 1 Ruffin used the store’s cash

       register to print the cashier’s report from September 12. “Each store employee

       who has access to the cash register and store funds has a unique cashier number

       that they [sic] are not to share with others.” Id. at 5. Sometimes, however, Bah

       “would give her code to the cashiers” to allow them to unlock the register if she

       was unavailable. Appellant’s App. at 109 (Bah’s affidavit). Ruffin also “had

       the codes for everyone in the store.” Id. The cashier’s report indicated that

       Bah’s

                cashier number was used to enter a total of $1,500.00 in refunds for
                non-tax grocery items on September 12, 2008, between 5:53 a.m. and



       1
         According to Ruffin, Bah said that she had “accidently [sic] thrown all of these reports away while
       cleaning.” Appellees’ App. at 6 (Ruffin’s affidavit). According to Bah, this claim is “completely false.”
       Appellant’s App. at 109 (Bah’s affidavit).

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                           Page 4 of 25
               6:07 a.m., and [Bah] was one of the employees on duty at this time.
               There was no grocery item for sale in the store at the time that cost
               $1,500.00. The majority of the items for sale in the store are grocery
               items, drinks, food items, and other miscellaneous goods that are far
               less expensive.
       Appellees’ App. at 5 (Ruffin’s affidavit).


[11]   The store’s cash register never had $1500 in it. Id. at 22 (Bah’s deposition).

       Refunding that amount would require opening the safe, and Bah was the only

       store-level employee with a key to the safe. Id. Ruffin also had a key. Id.

       Ruffin reviewed the store’s bank deposit slip from September 12, which was for

       $2047. According to Ruffin, this was “a much smaller amount than the store’s

       average deposits.” Id. at 5 (Ruffin’s affidavit). According to Bah, this amount

       was “normal” for the store. Appellant’s App. at 109 (Bah’s affidavit). Notably,

       the designated evidence does not indicate that Ruffin (or anyone else)

       determined that $1500 had actually been taken from the store’s safe.


[12]   Ruffin also reviewed “recorded footage from security video cameras that were

       positioned around the store.” Appellees’ App. at 4. He discovered a ten-

       minute period “when the camera was not recording,” due to either a power

       surge or someone pressing “the camera’s reset button, which is located in the

       store office.” Id. at 5. “The camera footage showed that [Bah] had entered the

       office immediately before the camera stopped recording.” Id. 2




       2
        Bah mentioned this footage in her deposition. Appellees’ App. at 21. Neither Ruffin’s affidavit nor Bah’s
       deposition specifies the date of the footage, but we presume from the context that it was recorded on
       September 12.

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                         Page 5 of 25
[13]   Ruffin met with Bah and asked her “whether she knew why the grocery/C-store

       sales results were negative, and she said no.” Id. at 6. He also asked her “about

       the $1,500.00 in refunds that were done using her cashier number, and she

       denied any involvement in the refunds.” Id. Ruffin terminated Bah’s

       employment.


[14]   “It is Circle K’s practice when discovering suspected theft of this level from its

       stores to report the suspected theft to the police.” Id. Ruffin contacted the

       Indianapolis Metropolitan Police Department (“IMPD”) and told them what

       he had found during his investigation. Ruffin was later “contacted by IMPD

       and the prosecutor and asked for additional information.” Id. He “cooperated

       with the IMPD and prosecutor’s office and answered their questions and

       requests for information[.]” Id.


[15]   The prosecutor charged Bah with theft. She received a warrant in the mail

       instructing her to report to the City-County Building for a mug shot and

       fingerprinting, which she did. She was not arrested or jailed pending trial. In

       March 2010, a jury found her not guilty of theft.


[16]   In April 2010, Bah filed a complaint against Appellees asserting eight counts:

       false imprisonment, two counts of defamation (slander per se and slander per




       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015   Page 6 of 25
quod), 3 malicious prosecution, negligent supervision, vicarious

liability/respondeat superior, intentional infliction of emotional distress, and

negligent infliction of emotional distress. Bah’s complaint contains the

following allegations:

         8. Slightly more than two (2) months after Plaintiff began managing
         the Ditch Road Store, [Ruffin] falsely accused Plaintiff of stealing
         $1500 from the Ditch Road Store sales for September 11, 2008. Ruffin
         informed individuals with the corporate office of Circle K and others
         not associated with management of Circle K and others not associated
         with Circle K that Plaintiff stole money from the company.

         9. On September 18, 2008, Ruffin reported to Officer Raymond
         Robinson, Jr. of the Indianapolis Metropolitan Police Department
         (IMPD) that on September 12, 2008, Plaintiff turned off an in-store
         security camera for approximately thirteen (13) minutes and stole
         money from the store. Around the same [sic] Ruffin also told
         detective Janice Aikman of IMPD that Plaintiff rebooted the security
         camera system and logged into the registers and performed three (3)
         refunds totaling $1500 and then took the money from the company
         safe for personal use. Ruffin further falsely insinuated to others,
         including the Marion County Prosecutor and his deputies that Plaintiff
         took the money to spend on a 7-day vacation.
Appellant’s App. at 9-10.




3
  “Defamation is that which tends to injure reputation or to diminish esteem, respect, good will, or
confidence in the plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Davidson v. Perron,
716 N.E.2d 29, 37 (Ind. Ct. App. 1999), trans. denied (2000). “To establish defamation, the plaintiff must
prove the following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication,
and (4) damages.” Id. An action for defamation per se “arises when the language of a statement, without
reference to extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a loathsome disease, (3)
misconduct in a person’s trade, profession, office, or occupation, or (4) sexual misconduct.” Dugan v. Mittal
Steel USA, Inc., 929 N.E.2d 184, 186 (Ind. 2010). “In contrast, if the words used are not defamatory in
themselves, but become so only when understood in the context of extrinsic evidence, they are considered
defamatory per quod.” Id.

Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                               Page 7 of 25
[17]   Appellees filed a motion for summary judgment as to all eight counts in which

       they set forth numerous “undisputed material facts,” including details from

       Ruffin’s affidavit regarding his investigation of the “suspected theft” and that he

       reported his findings to IMPD. Id. at 18, 20. Appellees also stated,

               The basis for Bah’s false imprisonment, malicious prosecution,
               intentional infliction of emotional distress, negligence, and, in part
               defamation claims is Ruffin’s communications with IMPD regarding
               the $1,500 loss at Bah’s store. However, a person’s communications
               with police in reporting a suspected crime are qualifiedly privileged so
               long as the person has a belief or grounds for belief in the truth of his
               report. Bah has no evidence to suggest that a police report was made
               without belief in its truth, and Ruffin’s testimony proves his well-
               founded belief in the truth of his report and that the report was
               consistent with Circle K policy and practice.
       Id. at 21-22.


[18]   In her response to Appellees’ summary judgment motion, Bah stated,

               On September 18, 2008, Ruffin as agent of Circle K contacted IMPD
               and reported that on September 12, 2008, Bah stole the sum of $1500
               from the store she was managing and thereafter sought Bah’s
               prosecution for theft. Before contacting the police, Ruffin spread this
               lie to other Circle K employees including one Rodney Blanton, Steve
               Ryan, Alhassan Seick, Brenda Anderson and Sidi Ndiaye. Aff[idavit]
               of Bah, ¶ 7. Defendants’ motion focused entirely on Ruffin’s
               publications to the police. This response will therefore not address
               publications made to others who are not law enforcement.
       Id. at 43. In alleging what Ruffin told IMPD, Bah relied on a police report and

       the probable cause affidavit filed in her criminal case. In their reply to Bah’s

       response, Appellees argued, “To the extent [Bah] tries to avoid summary

       judgment based on [communications to persons outside IMPD], the Court

       should disregard this attempt because the argument is entirely undeveloped and
       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015             Page 8 of 25
       the alleged communications are not supported by admissible evidence.” Id. at

       66.


[19]   The trial court held a hearing on Appellees’ summary judgment motion. At the

       beginning of the hearing, the court told the parties, “It would be helpful to me if

       you could file a Motion to Strike that would cover all of the […] items of

       designated evidence that you think are […] of questionable admissibility[.]” Tr.

       at 4. 4 At the conclusion of the hearing, the trial court said that it would accept

       responses to the motions to strike. Id. at 45. Bah’s counsel stated that he had

       “[n]o problem” with this arrangement. Id.


[20]   Appellees filed a motion to strike certain evidence designated by Bah, including

       paragraph 7 of her affidavit, the police report, and the probable cause affidavit,

       based on inadmissible hearsay and/or lack of personal knowledge. Without

       paragraph 7 of Bah’s affidavit, there is no designated evidence establishing that

       Ruffin made allegedly defamatory statements to anyone other than law

       enforcement authorities. Bah did not respond or object to Appellees’ motion

       and did not file her own motion.


[21]   In June 2014, the trial court issued an order granting Appellees’ motion to strike

       that reads in relevant part:




       4
         Bah has included a portion of the transcript in her appendix in violation of Indiana Appellate Rule 50(F),
       which states, “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties
       should not reproduce any portion of the Transcript in the Appendix.”

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                           Page 9 of 25
               The following submissions in [Bah’s] Designation of Evidence in
               Opposition to [Appellees’] Motion for Summary Judgment and all
               argument [Bah] has made in reliance thereon are stricken from the
               record: (1) all hearsay, speculation, statements contradicting prior
               sworn deposition testimony, statements lacking personal knowledge,
               and other inadmissible portions of Exhibit 1 [Bah’s affidavit], (2)
               Exhibit 7 [police report], and (3) Exhibit 8 [probable cause affidavit].
       Appellant’s App. at 78. The trial court also issued an order granting Appellees’

       summary judgment motion.


[22]   Bah filed a motion to correct error asserting that the trial court erred in granting

       Appellees’ motion to strike on procedural and substantive grounds and also

       erred in granting Appellees’ summary judgment motion. In July 2014, the trial

       court issued an order denying Bah’s motion to correct error that reads in

       pertinent part:

               At oral argument, the Court requested Motions to Strike from all
               parties so evidentiary issues could be further explored and briefed.
               The Court has discretion to invite further briefing and properly
               exercised that discretion here.

               …. [Bah] did not file her own Motion to Strike. [Bah] also did not
               respond to [Appellees’] Motion to Strike, thus waiving the substantive
               and procedural arguments she now attempts to make in her Motion to
               Correct Errors relating to [Appellees’] Motion to Strike. Moreover,
               the Court’s order granting [Appellees’] unopposed Motion to Strike
               was procedurally and substantively correct for all the reasons set forth
               in [Appellees’] Motion to Strike and Memorandum in Support of the
               same. This Court’s Order … granting [Appellees’] Motion to Strike
               was not in error.

               Further, the Court’s order granting [Appellees’] Motion for Summary
               Judgment was not in error. Even when considering inadmissible
               evidence submitted by [Bah], [Appellees’] Motion for Summary
               Judgment was properly granted for all the reasons set forth in

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015            Page 10 of 25
                 [Appellees’] Motion for Summary Judgment, Brief in Support of
                 Motion for Summary Judgment, and Reply in Support of Motion for
                 Summary Judgment. There is no basis to disturb the Court’s entry of
                 summary judgment in favor of [Appellees].
       Id. at 6-7. Bah now appeals.


                                       Discussion and Decision

                 Section 1 – Bah has waived her arguments regarding
                             Appellees’ motion to strike.
[23]   Bah first contends that the trial court erred in granting Appellees’ motion to

       strike on both procedural and substantive grounds. As did the trial court, we

       conclude that Bah has waived these arguments because she failed to object on

       either basis, and in fact she specifically consented to the procedure. See Yater v.

       Hancock Cnty. Bd. of Health, 677 N.E.2d 526, 530 (Ind. Ct. App. 1997) (finding

       issue waived where party raised it for first time in motion to correct error); see

       also Bunting v. State, 854 N.E.2d 921, 924 (Ind. Ct. App. 2006) (“A party may

       not sit idly by, permit the court to act in a claimed erroneous manner, and

       subsequently attempt to take advantage of the alleged error.”), trans. denied;

       Olcott Int’l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1077 (Ind. Ct.

       App. 2003) (“A party cannot invite error and then request relief on appeal based

       upon that ground; such an error cannot be reviewed by this court.”), trans.

       denied.


                 Section 2 – Summary Judgment/Standard of Review
[24]   Bah also contends that the trial court erred in granting Appellees’ summary

       judgment motion. We review such rulings de novo. Prancik v. Oak Hill United
       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015     Page 11 of 25
Sch. Corp., 997 N.E.2d 401, 403 (Ind. Ct. App. 2013), trans. denied (2014).

Pursuant to Indiana Trial Rule 56(C), a summary judgment movant must make

a prima facie showing that there are no genuine issues of material fact and that

it is entitled to judgment as a matter of law. Id. If the movant satisfies this

burden, “the nonmoving party may not rest on its pleadings, but must designate

specific facts demonstrating the existence of a genuine issue for trial.” Morris v.

Crain, 969 N.E.2d 119, 124 (Ind. Ct. App. 2012). “A ‘genuine issue’ is one

upon which the parties proffer differing accounts of the truth, or as to which

conflicting inferences may be drawn from the parties’ consistent accounts; a

‘material fact’ is one that affects the outcome of the case.” Lyons v. Richmond

Cmty. Sch. Corp., 19 N.E.3d 254, 259 (Ind. 2014). “We must construe all

evidence and resolve all doubts in favor of the non-moving party, so as to avoid

improperly denying that party’s day in court.” Prancik, 997 N.E.2d at 401.

Summary judgment is not a summary trial, and it is inappropriate merely

because the nonmoving party appears unlikely to prevail at trial. Hughley v.

State, 15 N.E.3d 1000, 1003-04 (Ind. 2014). “The party that lost in the trial

court has the burden of persuading the appellate court that the trial court erred.

Our review of a summary judgment motion is limited to those materials

designated to the trial court.” City of Bloomington v. Underwood, 995 N.E.2d 640,

644 (Ind. Ct. App. 2013) (citation omitted), trans. denied (2014). “An appellate

court may affirm summary judgment if it is proper on any basis shown in the

record.” Weist v. Dawn, 2 N.E.3d 65, 67 (Ind. Ct. App. 2014).




Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015   Page 12 of 25
          Section 2.1 – Bah has withdrawn her negligent supervision
        claim, and her negligent infliction of emotional distress claim
                           fails as a matter of law.
[25]   At the outset, we note that Bah has withdrawn her claim for negligent

       supervision. Appellant’s Br. at 31. And we also conclude that her claim for

       negligent infliction of emotional distress fails as a matter of law because she has

       never alleged, let alone established, a genuine issue of material fact regarding,

       the “direct physical impact” required by applicable Indiana precedent.

       Lachenman v. Stice, 838 N.E.2d 451, 460 (Ind. Ct. App. 2005), trans. denied

       (2006). Therefore, we affirm the trial court’s grant of summary judgment in

       Appellees’ favor on those claims.


        Section 2.2 – Appellees are entitled to summary judgment on
                     Bah’s malicious prosecution claim.
[26]   In a malicious prosecution claim, the plaintiff must establish that “(1) the

       defendant … instituted or caused to be instituted an action against the plaintiff

       …; (2) the defendant acted with malice in doing so; (3) the defendant had no

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

       in the plaintiff’s favor.” City of New Haven v. Reichhart, 748 N.E.2d 374, 378

       (Ind. 2001). Here, Appellees did not institute or cause to be instituted the

       criminal action against Bah; the prosecutor did. See Conwell v. Beatty, 667

       N.E.2d 768, 778 (Ind. Ct. App. 1996) (“[N]one of the Big R defendants

       instituted or caused to be instituted a prosecution against Conwell [for allegedly

       switching a price tag on an item that he purchased at a Big R store]. The


       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015   Page 13 of 25
       prosecution was instituted by the prosecutor who made an independent

       determination of whether to pursue criminal charges after reviewing all of the

       information obtained by the Sheriff's Department’s independent

       investigation.”). Therefore, we affirm the trial court’s grant of summary

       judgment in Appellees’ favor on Bah’s malicious prosecution claim.


           Section 2.3 – Appellees are not entitled to summary judgment
              on Bah’s remaining claims based on defenses requiring
                   state-of-mind and credibility determinations.
[27]   With respect to Bah’s remaining claims, Appellees make the following

       argument:

                Bah bases her entire case on alleged communications Ruffin made to
                IMPD[5] regarding the $1,500.00 in refunds that were issued in Bah’s
                store with Bah’s cashier code while Bah was working. But these
                communications are qualifiedly privileged, and Bah provides no
                evidence that any circumstances exist to overcome the privilege. For
                this reason, Bah’s false imprisonment, malicious prosecution,
                intentional infliction of emotional distress, negligence [i.e., vicarious
                liability/respondeat superior], and defamation claims fail as a matter
                of law.
       Appellees’ Br. at 12.


[28]   Our supreme court has explained that

                [a] qualified privilege applies to communications made in good faith
                on any subject matter in which the party making the communication



       5
        As indicated above, without paragraph 7 of Bah’s affidavit, which was stricken by the trial court, there is no
       designated evidence establishing that Ruffin made allegedly defamatory statements to anyone other than law
       enforcement authorities. Consequently, we limit our discussion to Ruffin’s statements to IMPD.

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                          Page 14 of 25
               has an interest or in reference to which he had a duty, either public or
               private, either legal, moral, or social, if made to a person having a
               corresponding interest or duty. As a defense to defamation, the
               qualified privilege operates not to change the actionable quality of the
               words published, but merely to rebut the inference of malice that is
               otherwise imputed. To merit its protection, the burden is upon the
               defendant in the first instance to establish the existence of a privileged
               occasion for the publication, by proof of a recognized public or private
               interest which would justify the utterance of the words. Then the
               plaintiff has the burden of overcoming that privilege by showing that it
               has been abused. When speaking of abuse, the essence of the concept
               is not the speaker’s spite but his abuse of the privileged occasion by
               going beyond the scope of the purposes for which privilege exists. And
               unless only one conclusion can be drawn from the evidence, the
               question of whether the privilege has been abused is for the jury.
[29]   Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009) (citations, quotation marks,

       and alterations omitted).


[30]   As in Williams, the privileged occasion implicated in this case relates to the

       public interest in encouraging private citizens to report crime. Id. “The chief

       benefit is investigation of suspected criminal activity.” Id. “[A] reporting

       citizen may, out of an excess of caution or even for a nefarious purpose, make

       false accusations, and our citizens’ equally valid interest in having reputations

       untarnished by false imputations of criminal misconduct has been a cornerstone

       of defamation law for hundreds of years.” Id. at 763.

               Because of the compelling public interest in encouraging citizens to
               report suspected wrongdoing, however, the law recognizes a limited
               defense to civil liability premised on erroneous reports of criminal
               conduct to police: “[I]t is well established that in Indiana,
               communications made to law enforcement to report criminal activity
               are qualifiedly privileged.” Kelley [v. Tanoos, 865 N.E.2d 593, 600
               (Ind. 2007)].… But the privilege is not without limits: a statement
               “may lose its privileged character upon a showing of abuse wherein:
       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015        Page 15 of 25
               (1) the communicator was primarily motivated by ill will in making
               the statement; (2) there was excessive publication of the defamatory
               statements; or (3) the statement was made without belief or grounds
               for belief in its truth.” Bals [v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.
               1992)].
       Id. at 763-64. The qualified privilege defense to defamation has also been

       applied to claims of false imprisonment, negligence, and intentional infliction of

       emotional distress. Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186

       (Ind. Ct. App. 2012).


[31]   Bah asserts that Ruffin was primarily motivated by ill will in making his

       statements to IMPD and that he “strung a web of lies to implicate [her] in

       criminal conduct.” Appellant’s Br. at 19. Appellees contend that “Bah’s beliefs

       are not factual support appropriate in defending summary judgment, and they

       all must be disregarded.” Appellees’ Br. at 14. It is well settled, however, that

       “[s]ummary judgment must be denied if the resolution hinges upon state of

       mind, credibility of the witnesses, or the weight of the testimony.” Nelson v.

       Jimison, 634 N.E.2d 509, 512 (Ind. Ct. App. 1994).


[32]   Bah and Ruffin had a contentious relationship; he transferred her to a smaller

       store over her objection, and she refused his request to resign. On September

       12, 2008, shortly after Ruffin received a negative evaluation for loss prevention

       techniques, Bah went over his head to report her concerns that her employees

       were stealing money. Bah’s employees and Ruffin had Bah’s cashier number,

       which was used on September 12, 2008, to enter the $1500 in refunds that

       formed the basis of the theft charge against Bah. The store’s cash register never

       had $1500 in it, and only Bah and Ruffin had keys to the safe. According to
       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015            Page 16 of 25
       Ruffin, that day’s bank deposit slip was for a “much smaller” than average

       amount. Appellees’ App. at 5. According to Bah, the amount was “normal.”

       Appellant’s App. at 109. No evidence has been designated that Ruffin (or

       anyone else) determined that $1500 was actually stolen from the safe, and Bah

       was ultimately acquitted of the theft charge. Viewing the designated evidence

       and resolving all doubts in favor of Bah as the nonmoving party, as we must,

       we conclude that a jury must determine whether Ruffin was primarily

       motivated by ill will in accusing Bah of the alleged theft, whether his

       accusations were made without belief or grounds for belief in their truth, or

       whether he made those accusations in good faith. In other words, we conclude

       that Appellees are not entitled to summary judgment on Bah’s remaining claims

       based on the qualified privilege defense. 6


[33]   For the same reason, we reject Appellees’ argument that they are entitled to

       summary judgment on Bah’s false imprisonment claim based on the judicial

       determination that probable cause existed to charge her with theft. See Street v.

       Shoe Carnival, Inc., 660 N.E.2d 1054, 1057-58 (Ind. Ct. App. 1996) (probable

       cause determination in criminal proceeding may constitute prima facie evidence

       of probable cause in subsequent action for false imprisonment, but “prima facie

       case may be rebutted by evidence that shows the finding of probable cause was




       6
        Appellees assert that to evaluate Bah’s claim that Ruffin was untruthful in reporting her alleged theft to
       IMPD, we “must determine what communications [he] made that are supported by designated evidence,”
       and the only evidence regarding what he told IMPD was properly stricken by the trial court. Appellees’ Br.
       at 14. But Ruffin’s affidavit, which was not stricken by the trial court, spells out the substance of what he told
       IMPD in reporting Bah’s alleged theft.

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                             Page 17 of 25
       induced by false testimony or fraud”; holding that genuine issue of material fact

       existed regarding whether defendants had probable cause to believe that

       plaintiffs committed or attempted to commit theft) (emphasis added). We

       likewise reject Appellees’ argument that they are entitled to summary judgment

       on Bah’s false imprisonment claim based on statutory immunity for store

       owners and agents. Cf. Ind. Code § 35-33-6-2(a) (“An owner or agent of a store

       who has probable cause to believe that a theft has occurred or is occurring on or

       about the store and who has probable cause to believe that a specific person has

       committed or is committing the theft … may … inform the appropriate law

       enforcement officers[.]”); Ind. Code § 35-33-6-4 (“A civil or criminal action

       against … an owner or agent of a store … may not be based on a detention that

       was lawful under section 2 … of this chapter. However, the defendant has the

       burden of proof that the defendant acted with probable cause under section 2 … of this

       chapter.”) (emphasis added). 7 In sum, Bah’s false imprisonment claim hinges on

       a credibility determination, and therefore Appellees are not entitled to summary

       judgment on that claim. Nelson, 634 N.E.2d at 512.


[34]   Finally, we address the parties’ arguments regarding Bah’s claim for intentional

       infliction of emotional distress (“IIED”). The elements of that tort are that the

       defendant “(1) engages in extreme and outrageous conduct (2) which




       7
        All that being said, we also reject Bah’s suggestion that her acquittal conclusively establishes that no
       probable cause existed to charge her with theft. See Wells v. Bernitt, 936 N.E.2d 1242, 1253 (Ind. Ct. App.
       2010) (“[T]he amount of evidence necessary to meet the probable cause requirement … is less than the level
       of proof necessary to establish guilt beyond a reasonable doubt.”), trans. denied (2011).

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                        Page 18 of 25
       intentionally or recklessly (3) causes (4) severe emotional distress to another.”

       Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). “It is the intent to

       harm the plaintiff emotionally which constitutes the basis for the tort of

       [IIED].” Lachenman, 838 N.E.2d at 457. “The requirements to prove this tort

       are ‘rigorous.’” Curry, 943 N.E.2d at 361 (quoting Cullison v. Medley, 570

       N.E.2d 27, 31 (Ind. 1991)).

               The cases thus far decided have found liability only where the
               defendant’s conduct has been extreme and outrageous. It has not been
               enough that the defendant has acted with an intent which is tortious or
               even criminal, or that he has intended to inflict emotional distress, or
               even that his conduct has been characterized by “malice,” or a degree
               of aggravation which would entitle the plaintiff to punitive damages
               for another tort. Liability has been found only where the conduct has
               been so outrageous in character, and so extreme in degree, as to go
               beyond all possible bounds of decency, and to be regarded as
               atrocious, and utterly intolerable in a civilized community. Generally,
               the case is one in which the recitation of the facts to an average
               member of the community would arouse his resentment against the
               actor, and lead him to exclaim, “Outrageous!”
       Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999) (quoting Restatement

       (Second) of Torts § 46 cmt. d (1965)). “What constitutes ‘extreme and

       outrageous’ conduct depends, in part, upon prevailing cultural norms and

       values.” Id. “IIED is found where conduct exceeds all bounds typically

       tolerated by a decent society and causes mental distress of a very serious kind.

       In the appropriate case, the question can be decided as a matter of law.” Curry,

       943 N.E.2d at 361 (citation omitted).


[35]   Appellees first assert that “[c]onducting an internal investigation, reporting

       possible theft to the police, and cooperating with police and prosecutors is not

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015       Page 19 of 25
       extreme and outrageous conduct.” Appellees’ Br. at 19. But this argument

       presupposes that Ruffin had belief or grounds for belief in the truth of his

       statements to IMPD, and we have already held that this is a matter for jury

       determination. Nelson, 634 N.E.2d at 512. 8


[36]   Next, Appellees argue that “Bah has not addressed what evidence supports a

       finding that Ruffin acted with intent to cause her severe emotional distress

       when he reported his investigation findings to police.” Appellees’ Br. at 20.

       We have already held that Ruffin’s state of mind is also a matter for jury

       determination. Nelson, 634 N.E.2d at 512.


[37]   Appellees further contend that

                Bah also has no meaningful evidence to show that she actually
                sustained severe emotional distress. Besides her conclusory testimony
                that the subject of this lawsuit affected her “very bad” and “really
                affected” her, Bah has no evidence of severe emotional distress. In
                fact, Bah continued to work a second job she held while employed
                with Circle K. Moreover, Bah admits she has not sought any kind of
                professional treatment for alleged emotional distress.
       Appellees’ Br. at 21 (citation to appendix omitted).


[38]   The record shows that Appellees have substantially minimized the alleged

       severity of Bah’s emotional distress. In her affidavit, she averred the following:




       8
         We note that Appellees do not argue that making a false police report can never be considered extreme or
       outrageous conduct as a matter of law. Cf. Williams v. Tharp, 889 N.E.2d 870, 880 (Ind. Ct. App. 2008)
       (“declin[ing] to hold as a matter of law that the filing of a false report can never amount to extreme or
       outrageous conduct”) (citing Gilman v. Gilman, 736 A.2d 199 (Conn. Super. Ct. 1999), and Adams v. Carlisle,
       630 S.E.2d 529 (Ga. Ct. App. 2006), cert. denied), trans. granted on other grounds, 914 N.E.2d 756 (Ind. 2009).

       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                            Page 20 of 25
        2. I am a native and citizen of the Republic of Sierra Leone, West
        Africa. I am the mother of three children. I entered the United States
        as derivative beneficiary of my ex-husband who was accorded asylum
        status by the Government of the United States.

        ….

        4. At the time of my arrest in 2008, I was the sole provider for my
        children.

        ….

        6. At the time I was arrested, I was not a permanent resident of the
        United States although I was lawfully present in the country and was
        lawfully employed. In fact, I just now attended an interview to
        become a permanent resident. My status here was precarious at the
        time because I was here on the status of my ex-husband as a person
        granted asylum. I talked to other foreign nationals and immigration
        attorneys regarding my status after my arrest. I learned that a
        conviction for any criminal act would adversely impact my ability to
        become a permanent resident. I found out that if I am convicted for
        theft, I might be deported and that I will remain in jail until I am
        deported. I was very scared and terrified to know this.… I totally
        freaked out when I was falsely accused of stealing $1500 from Circle
        K.

        7. I spent endless nights thinking about the impact of such allegations
        on my family and[] my children in particular. I was extremely
        concerned about the possibility of deportation and how that would
        affect my children because at the time I was solely responsible for my
        children. Although I did not consult with psychologist or
        psychiatrist,[9] I secretly battled depression and mental anguish. I was
        unable to disclose my arrest and the reason for the arrest to my
        children. It was only when the trial was close that I told my children
        when they observed serious changes in my attitudes toward them. My




9
 In her deposition, Bah testified that she did not seek treatment from doctors “because I don’t have money to
pay that.” Appellees’ App. at 24.

Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015                        Page 21 of 25
               social life diminished considerably while the criminal case against me
               was pending. I suffered in silence for nearly two (2) years until my
               acquittal on March 9, 2010.… When the case was given to the jury we
               waited outside the court for a verdict. Waiting for that verdict was
               suffocating. I felt like dying.
       Appellant’s App. at 105-06.


[39]   At the very least, Bah’s affidavit raises a genuine issue of material fact regarding

       whether Appellees’ conduct caused her severe emotional distress. See Hughley v.

       State, 15 N.E.3d 1000, 1004 (Ind. 2014) (holding that defendant’s “self-serving”

       affidavit was sufficient “to raise a factual issue to be resolved at trial”).

       Therefore, we reverse and remand for further proceedings on her IIED claim

       and the foregoing claims already discussed.


                                                   Conclusion
[40]   We affirm the trial court’s grant of summary judgment in Appellees’ favor on

       Bah’s claims for negligent supervision, negligent infliction of emotional distress,

       and malicious prosecution. As to the remaining claims, we reverse and remand

       for further proceedings.


[41]   Affirmed in part, reversed in part, and remanded.


       Pyle, J., concurs.


       Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015     Page 22 of 25
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Tikidanke Bah,
       Appellant-Plaintiff,

               v.

       Mac’s Convenience Stores, LLC
       d/b/a Circle K and David
       Ruffin,
       Appellees-Defendants.




       Brown, Judge, concurring in part and dissenting in part.

[42]   I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but

       respectfully dissent from its conclusion that the Appellees are not entitled to

       summary judgment on Bah’s remaining claims based on the qualified privilege

       defense.


[43]   If Circle K and Ruffin have demonstrated the absence of any genuine issue of

       fact as to a determinative issue, they are entitled to summary judgment unless

       Bah comes forward with contrary evidence showing a triable issue for the trier


       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015   Page 23 of 25
       of fact. See Williams v. Tharp, 914 N.E.2d 756, 761-762 (Ind. 2009). “[T]he trial

       court’s judgment arrives on appeal ‘clothed with a presumption of validity,’ and

       the challenging party ‘bears the burden of proving that the trial court erred in

       determining that there are no genuine issues of material fact and that the

       moving party was entitled to judgment as a matter of law.’” Id. at 762 (quoting

       Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993)).


[44]   The designated evidence included Ruffin’s affidavit in which he asserted:

               It is Circle K’s practice when discovering suspected theft of this level
               from its stores to report the suspected theft to the police. Consistent
               with that practice and after consulting my supervision [sic], I contacted
               the Indianapolis Metropolitan Police Department (“IMPD”) and
               provided truthful information regarding the events and what I had
               found in the course of my investigation to that point. After that initial
               report, I was contacted by IMPD and the prosecutor and asked for
               additional information. In response, I cooperated with the IMPD and
               prosecutor’s office and answered their questions and requests for
               information with entirely truthful information to the best of my
               knowledge. I did not take any action involving Ms. Bah with an intent
               to harm her or with motivations of ill will, and I have never shared
               false information about Ms. Bah with anyone to my knowledge.


       Appellee’s Appendix at 6.


[45]   Bah cites to her affidavit and asserts that Ruffin informed other Circle K

       employees about the “lie.” Appellant’s Brief at 14. However, the Appellees

       specifically requested that the trial court strike the statement that Ruffin spread

       the false allegations to others, and the trial court granted the Appellees’ motion.

       (Appellee’s Appendix at 30) Bah does not point to any designated evidence

       which had not been stricken to demonstrate what statements she asserts were
       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015       Page 24 of 25
       improperly made by Ruffin to the police. Therefore, based upon the designated

       evidence, I would conclude that the qualified privilege applies and would affirm

       on all issues. See Williams, 914 N.E.2d at 769 (finding that whether the

       defendant’s misperception was speculative, negligent, or even reckless, it was

       not so obviously mistaken to permit a reasonable inference that he lied, and

       holding that the trial court did not err in finding a qualified privilege was

       established as a matter of law and thereby precluding the plaintiffs’ claim for

       defamation); Kelley v. Tanoos, 865 N.E.2d 593, 602 (Ind. 2007) (holding that

       summary judgment in favor of the defendant was appropriate because the

       plaintiff failed to designate evidence that demonstrates that the defendant

       abused the qualified privilege).


[46]   For the foregoing reasons, I respectfully dissent in part and would affirm the

       trial court in all respects.




       Court of Appeals of Indiana | Opinion 49A02-1407-CT-512 | June 30, 2015   Page 25 of 25
