FOR PUBLICATION

APPELLANT PRO SE:                            ATTORNEYS FOR APPELLEE:

KELVIN T. BROWN                              KATHLEEN A. DeLANEY
Indianapolis, Indiana                        AMANDA COUTURE
                                             DeLaney & DeLaney
                                             Indianapolis, Indiana
                                                                      FILED
                                                                   Jul 24 2012, 9:11 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                              CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
                                                                                tax court




KELVIN T. BROWN,                             )
                                             )
      Appellant-Plaintiff,                   )
                                             )
             vs.                             )      No. 49A05-1111-CT-648
                                             )
INDIANAPOLIS HOUSING AGENCY,                 )
                                             )
      Appellee-Defendant.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable David A. Shaheed, Judge
                           Cause No. 49D01-0709-CT-37992



                                    July 24, 2012


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                           Case Summary

        Kelvin Brown was employed by the Indianapolis Housing Agency (“IHA”). After an

investigation by an IHA officer, IHA concluded that Brown had been conducting personal

business during work hours and terminated Brown‟s employment. Thereafter, Brown was

charged with ghost employment, official misconduct, and deception, but the charges were

ultimately dismissed voluntarily by the prosecutor. Brown then sued IHA for malicious

prosecution and intentional infliction of emotional distress. The trial court granted summary

judgment for IHA.

        We conclude that IHA had a qualified privilege to report Brown‟s suspected criminal

conduct. The designated evidence does not show that the privilege was abused, and the

privilege bars Brown‟s claim for both malicious prosecution and intentional infliction of

emotional distress. Much of the same evidence also negates elements of Brown‟s claims.

Therefore, we affirm the judgment of the trial court.

                                  Facts and Procedural History

        In 1999, Brown began working for IHA as a Section 8 housing inspector.1 Brown‟s

job was to inspect properties that were receiving public funds to insure that the properties

were in compliance with the Department of Housing and Urban Development‟s housing


        1
         IHA Officer Stephen Golden described the Section 8 program as follows:
       The Indianapolis Section 8 program is designed to help low income families rent apartments
       or homes in the private market in both Marion County Indiana and in a certain radius of the
       contiguous counties to Marion County. Under this program, HUD [Department of Housing
       and Urban Development] provides funds to IHA for rent subsidy on behalf of eligible
       families, pursuant to Section 8 of the United States Housing Act of 1937 (42 United States
       Code 1437f).
Appellee‟s App. at 42.

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quality standards. Inspectors spent most of their work day in the field. IHA provided

inspectors with a car to use during work hours. Inspectors were not allowed to take the cars

home at night or use them for personal business. In May 2002, IHA installed GPS devices in

the cars.

       In addition to being an inspector, Brown owned some rental properties, including one

on Winthrop Street and one on South Harris Street in Indianapolis. These properties were

not part of the Section 8 program and had nothing to do with Brown‟s work for IHA.

       IHA has its own police officers. Beginning in 2002, IHA officers were conducting an

ongoing investigation into Section 8 inspectors. In 2004, a series of events occurred that led

IHA to believe that Brown was conducting personal business related to his rental properties

during work hours.

       On June 7, 2004, Brown appeared in the Marion County Small Claims Court, located

in the City-County Building, for a case relating to one of his rental properties. Brown

submitted a form requesting leave dated June 8, 2004. Brown asserts that he wrote down the

wrong date and actually submitted the form on or before June 7. His request was not granted

by June 7, so he reported to work that day. During his lunch break, he drove to the 300 block

of East Market Street. He quickly got something to eat and then walked to the City-County

Building for his court hearing.

       GPS data confirms that Brown‟s car was stopped in the 300 block of East Market

Street from 1:25 p.m. to 1:53 p.m., which is within the time frame that he was permitted to

take a lunch break. IHA‟s inspection log also shows that Brown conducted five inspections


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on June 7. Brown‟s supervisor, Dorothy Henderson, approved Brown‟s request for leave

after the fact. Despite having actually worked on June 7, Brown stated on his time card that

he was “Off” that day. Appellee‟s App. at 45.

       Later, IHA received an anonymous tip that Brown had been in small claims court on

June 29, 2004. Brown‟s time card states that he worked from 8:00 a.m. to 12:00 p.m. and

1:00 p.m. to 5:00 p.m. that day. GPS data shows that he did not start driving his car until

9:39 a.m. He then drove to the area of his rental property on South Harris Street. IHA‟s

Inspection Status Report shows that no inspections were scheduled in that area. Brown

asserts that IHA had an informal policy of conducting “drive-by” inspections to check on the

exterior condition of Section 8 properties. He further claims that they were not required to

make reports on drive-by inspections unless there was a problem. Brown claims that he was

doing a drive-by inspection on South Harris Street that day and did not stop at his rental

property.

       In September 2004, IHA suspended Brown for five days. Based on the events of June

7 and 29, the IHA found that he had violated the following rules: failure to devote full

attention to duties for the entire work period; abuse, misuse, or destruction of equipment,

facilities, supplies, records, or funds; unauthorized use of equipment, facilities, supplies,

records, or funds; leaving the work area during work hours without prior authorization from a

supervisor; and making a false report or statement related to the job.

       On October 25, 2004, Brown again had a hearing in small claims court. Brown signed

in to work at 8:00 a.m. Henderson was not at work. Brown asserts that when Henderson was


                                             4
gone, Danitra Alexander was the acting supervisor. Brown claims that he asked Alexander

for permission to go to court, that she gave her approval, and that she saw him place his

request for leave on Henderson‟s desk. Brown did not sign out when he left to attend his

court hearing. Alexander confirmed that she remembered Brown asking for permission to

attend court.

       A few days later, Brown was terminated. The Corrective Action Form indicates that

IHA found that his conduct on October 25 was in violation of the rules about devoting full

attention to duties, leaving work, and making a false statement. Brown filed a union

grievance on the ground that his discipline was not progressive. On November 24, 2004, the

grievance was denied because Brown had previously been disciplined for similar misconduct.

       IHA‟s investigation of Brown culminated in a probable cause affidavit, which was

written by Officer Stephen Golden. On January 6, 2005, Brown was charged in Marion

Superior Court with ghost employment, official misconduct, and two counts of deception.

The charges were based on allegations that he conducted personal business during work

hours, used an IHA vehicle for personal reasons, and made false statements on his time cards.

On December 15, 2006, the State filed a motion to dismiss the charges. The form filed by the

prosecutor listed “evidentiary problems” as the reason for dismissal. Id. at 59. An affidavit

by Mary Ann Fleetwood, a deputy prosecutor who had been assigned to Brown‟s case, says

that the State “had every intention of prosecuting Kelvin Brown,” and that “as a result of

evidentiary issues, including the unavailability of essential witnesses,” the case was

dismissed. Id. at 62.


                                             5
       On September 7, 2007, Brown sued IHA for malicious prosecution and intentional

infliction of emotional distress. On April 11, 2011, IHA filed a motion for summary

judgment, a brief in support, and designated evidence. Brown filed a response and

designation of evidence on May 31, 2011. On July 15, 2011, the trial court granted summary

judgment for IHA. Brown filed a motion to correct error, which the trial court denied.

Brown now appeals.

                                 Discussion and Decision

       Summary judgment is appropriate only when there are no genuine issues of material

fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C).

Our standard of review is well settled:

       In reviewing a trial court‟s ruling on summary judgment, this court stands in
       the shoes of the trial court, applying the same standards in deciding whether to
       affirm or reverse summary judgment. Thus, on appeal, we must determine
       whether there is a genuine issue of material fact and whether the trial court has
       correctly applied the law. In doing so, we consider all of the designated
       evidence in the light most favorable to the non-moving party. The party
       appealing the grant of summary judgment has the burden of persuading this
       court that the trial court‟s ruling was improper.

Perryman v. Motorist Mut. Ins. Co., 846 N.E.2d 683, 687 (Ind. Ct. App. 2006) (citations

omitted). “In reviewing a trial court‟s ruling on a motion for summary judgment, we may

affirm on any grounds supported by the Indiana Trial Rule 56 materials.” Kozlowski v. Lake

Cnty. Plan Comm’n, 927 N.E.2d 404, 408 (Ind. Ct. App. 2010), trans. denied.

       IHA advances several reasons why summary judgment was appropriate, one of which

we find to be dispositive of both Brown‟s malicious prosecution claim and his intentional

infliction of emotional distress claim: whether IHA had a qualified privilege to make a

                                              6
criminal complaint against Brown.

       In Williams v. Tharp, our supreme court stated:

       A qualified privilege “applies to communications made in good faith on any
       subject matter in which the party making the communication 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.”

914 N.E.2d 756, 762 (Ind. 2009) (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.

1992)). The court further noted that it is “well established that in Indiana, communications

made to law enforcement to report criminal activity are qualifiedly privileged.” Id. (quoting

Kelley v. Tanoos, 865 N.E.2d 593, 601 (Ind. 2007)). The purpose of the privilege is to

enhance public safety by facilitating the investigation of suspected criminal activity. Id. at

762-63. The defendant, here IHA, has the burden of showing that its statements fall within

the privilege. Id. at 762. The plaintiff then has the burden of overcoming the privilege by

showing that it has been abused. Id. “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.‟” Id. (quoting Holcomb v. Walter’s Dimmick

Petroleum, Inc., 858 N.E.2d 103, 106 (Ind. 2006)). The privilege has been abused if: “(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.” Id. at 763-64.

       The privilege has been applied to claims of defamation, false imprisonment,

intentional infliction of emotional distress, and negligence. Id. at 769. We conclude that the

privilege also applies to malicious prosecution, which is analogous to the defamation claim at

                                               7
issue in Williams. In Williams, the plaintiffs, Sanford Kelsey and Thomas Williams, went to

a Papa John‟s restaurant to pick up an order. Kelsey was wearing a black fanny pack with

silver reflective material, and he reached into the fanny pack to retrieve his wallet. Kelly

Tharp, a Papa John‟s employee, saw Kelsey reach for his waist and believed that he saw

Kelsey pull out a gun. Tharp exited the building and told a passerby that someone inside had

pulled out a gun. The passerby called the police, who detained Kelsey and Williams, but did

not find a gun in their possession. Kelsey and Williams sued Papa John‟s and Tharp for a

variety of torts, including defamation.      Our supreme court stated, “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.” Id. at

762 (quoting Holcomb, 858 N.E.2d at 106).

       Like the defamation claim in Williams, Brown‟s malicious prosecution claim arises

out of the reporting of suspected criminal conduct. As with defamation, malice is an element

of malicious prosecution:

       There are four elements of a malicious prosecution claim: (1) the defendant
       [in this case, IHA] instituted or caused to be instituted an action against the
       plaintiff [Brown]; (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). Malice may be inferred

from a total lack of probable cause, the failure to make a reasonable or suitable inquiry, or a

showing of personal animosity. Kroger Food Stores, Inc. v. Clark, 598 N.E.2d 1084, 1089

(Ind. Ct. App. 1992). These grounds for inferring malice are similar to the grounds for


                                               8
finding that the privilege to report suspected criminal conduct has been abused. Therefore,

we conclude that the privilege applies equally to Brown‟s claim of malicious prosecution.

       We turn then to whether the designated evidence raises a genuine issue of material

fact regarding whether the privilege was abused. We conclude that it does not. Brown does

not contend that there was excessive publication of his allegedly criminal conduct. As to ill

will, Brown believes that IHA‟s attorney, Pat Chavis, harbored ill will toward him because he

“had complained about perceived nepotism involving … Chavis.” Appellant‟s Br. at 12.

The probable cause affidavit does not mention Chavis. There is no indication that Officer

Golden or the prosecutor conferred with Chavis. Brown‟s assertion that Chavis would have

been the only person with authority to initiate criminal charges against him is pure

speculation.

       Brown also argues that IHA harbors ill will against him because after he was

terminated, he “sent an e-mail to the agency voicing his displeasure for being terminated and

revealing unethical practices by management.” Id. In support, Brown cites a document that

appears to be a taped statement that Officer Golden made to his attorney in the criminal case.

Regarding the e-mail, Officer Golden states:

       The only other thing that [I] didn‟t include in that was a[n] email that was
       forwarded to me after he left, after Mr. Brown left his employment…. I didn‟t
       include it in the evidence inventory[;] frankly it hurts him more than it helps
       him[. It‟s] just a lot of wild ramblings and allegations.

Appellee‟s App. at 77. This evidence undermines rather than supports Brown‟s argument.

According to Officer Golden, the agency forwarded the e-mail to him to determine whether it

should be part of his investigation, and Officer Golden decided not to include it even though

                                              9
he felt that it was damaging to Brown.

       As to whether the report of alleged criminal conduct was made without belief or

grounds for belief in its truth, our supreme court stated that “merely arguing about what the

speaker should have known is insufficient to show that the speaker made a statement

„without belief … in its truth.‟” Williams, 914 N.E.2d at 766 (quoting Bals, 600 N.E.2d at

1356). The privilege can be rebutted by showing that the speaker told “a deliberate lie.” Id.

This may be proven circumstantially if there is an “absence of any discernible basis for the

truth of the matter.” Id.

       Brown asserts that “[i]n the instance of October 25, 2004 the probable cause affidavit

stated that Mr. Brown never turned in a benefit leave slip[;] however it turns out that this

evidence was withheld deliberately.” Appellant‟s Br. at 10. In his brief, Brown quotes a

lengthy passage purportedly from Alexander‟s deposition in which she states that she placed

the form on Henderson‟s desk and saw her pick it up. Brown also references a taped

statement given by Henderson in which she supposedly denied ever seeing the form. From

this evidence, Brown infers that Henderson lied about receiving the form and withheld it

from Officer Golden. Brown did not file an appendix. IHA did file an appendix, but it does

not include a taped statement by Henderson or the portion of Alexander‟s deposition that

Brown relies on. The appellee‟s appendix does include the probable cause affidavit

completed by Officer Golden, which states, “Brown claimed to his supervisor, Dorothy

Henderson, that he had left a benefit leave form on her desk prior to leaving. No such

document was found, and any excuse from work must be approved in advance.” Appellee‟s


                                             10
App. at 47. Thus, Officer Golden did not allege that Brown had not turned in a slip, but

merely stated that the document had not been found; in other words, Brown‟s contentions

could not be confirmed.

       Brown accuses Officer Golden of saying in his taped statement that “he felt that there

was no need to speak with my supervisor or anybody in my department” and that it was not

“important for him … to investigate the allegations that he was making against me.”

Appellee‟s App. at 29, 31. A review of the transcript of the taped statement indicates that

Officer Golden said no such thing. The pages to which Brown cites establish, at worst, that

Officer Golden failed to elicit some information that might have supported Brown‟s claim

that some of the personal business was conducted during breaks that he was authorized to

take. This evidence does not show that Officer Golden deliberately lied, was so obviously

mistaken that he could not have believed that the statements in the probable cause affidavit

were true, or failed to conduct a reasonable investigation.

       The probable cause affidavit reflects that Officer Golden took the following steps in

investigating Brown‟s conduct: (1) reviewed GPS data from the vehicle that Brown drove

for work; (2) researched Brown‟s criminal record; (3) reviewed previous incidents that

resulted in corrective administrative action against Brown; (4) confirmed that Brown had

signed a form indicating that he had received the IHA employee policies and procedures

manual; (5) confirmed that Brown had signed a form indicating his understanding that IHA

vehicles were not to be used for personal purposes; (6) reviewed a complaint against Brown

made via IHA‟s fraud hotline; (7) confirmed that Brown had been in court on June 7, June


                                             11
29, and October 25, 2004, by obtaining court records; (8) reviewed Brown‟s timecards; (9)

reviewed Section 8 inspection log reports to determine which properties he had inspected;

(10) reviewed Section 8 inspection status reports to determine which properties Brown was

assigned to inspect; (11) reviewed sign-in sheets; (12) attempted to locate the leave request

form that Brown claimed that he left on Henderson‟s desk; and (13) reviewed a complaint

made against Brown via the Mayor‟s Action Center. Brown does not appear to contest any

of this evidence, but merely offers an alternative explanation for his conduct. That IHA did

not reach the same conclusion about Brown‟s conduct is insufficient to show that it abused

the privilege for reporting suspected criminal conduct. Therefore, we conclude that the

privilege bars Brown‟s claims for malicious prosecution and intentional infliction of

emotional distress.

       For essentially the same reasons, Brown cannot establish the element of malice in his

claim for malicious prosecution. Nor can he establish the elements of intentional infliction of

emotional distress.

       The elements of the tort are that the defendant: (1) engages in extreme and
       outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe
       emotional distress to another. The requirements to prove this tort are
       “rigorous.” We quoted the following comment from the Restatement with
       approval in Bradley v. Hall:

              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 by 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

                                              12
             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!”

      720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999) (quoting Restatement (Second)
      of Torts § 46 cmt. d (1965)). IIED is found where conduct exceeds all bounds
      typically tolerated by a decent society and causes mental distress of a very
      serious kind.

Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). We conclude that, as a matter

of law, the designated evidence does not establish that IHA‟s conduct rose to the level of

extreme and outrageous. Therefore, we affirm the trial court‟s grant of summary judgment

for IHA.

      Affirmed.

VAIDIK, J., and BRADFORD, J., concur.




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