MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Apr 27 2018, 7:19 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
James E. Ayers                                            Andrew B. Miller
Wernle, Ristine & Ayers                                   Starr Austen & Miller, LLP
Crawfordsville, Indiana                                   Logansport, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Birge,                                            April 27, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          54A01-1709-PL-2298
        v.                                                Appeal from the Montgomery
                                                          Circuit Court
Barton W. Maxwell, Jr., and                               The Honorable Samuel A. Swaim,
Maxwell Farm Drainage, Inc.,                              Special Judge
Appellees-Defendants                                      Trial Court Cause No.
                                                          54C01-1501-PL-7



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 54A01-1709-PL-2298 | April 27, 2018            Page 1 of 6
[1]   Darrell Birge appeals the trial court’s order granting summary judgment in

      favor of Barton W. Maxwell, Jr., and Maxwell Farm Drainage, Inc.

      (collectively, Maxwell) on Birge’s defamation claim. Finding no error, we

      affirm.


                                                     Facts
[2]   Birge and Maxwell are farm drainage contractors in Montgomery County. In

      2007, Birge was hired by the Montgomery County Drainage Board to

      reconstruct the James Sanders Drain, which is located on both sides of and

      underneath Interstate 74 in Montgomery County. The project, which was a

      public project under public bid, was intended to improve drainage in that area.

      Birge’s work, which took place in 2007 and 2008, consisted of laying new drain

      tile.


[3]   In the years following the completion of the project, problems with drainage in

      that area were reported. A remote-controlled camera inspection of the James

      Sanders Drain revealed that the tile that had been laid by Birge was off-grade,

      with “bellies” and “rises” in it, and that there were spots of standing water in

      the tile. Supplemental Appellees’ App. Vol. II p. 2. Birge believes that these

      problems were a result of maintenance and design, while Maxwell believes that

      they stem from Birge’s installation errors.


[4]   Maxwell had multiple clients that were adversely affected by persistent drainage

      problems near the James Sanders Drain following the Birge construction work.

      Maxwell and another entity, which manufactures and supplies drainage tile,

      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-PL-2298 | April 27, 2018   Page 2 of 6
      developed a plan to remedy the problems—essentially, the drain would be

      replaced with a new one laid next to the one installed by Birge. The

      manufacturer agreed to donate the new replacement tile and Maxwell agreed to

      donate the labor to install the new tile.


[5]   While the project would be free of charge, because a public drain was involved,

      approval had to be obtained from the Montgomery County Drainage Board.

      At the January 7, 2013, Drainage Board meeting, Maxwell and the tile

      manufacturer made their offer. During that meeting, Maxwell made the

      following statement to explain why, in his opinion, the proposed project was

      needed:


              [The James Sanders Drain] goes up on to some customers of
              mine, . . . and they’ve had to spend quite a bit on camera work
              and trying to figure out and the contractor that was put in was
              incompetent. Put it in off grade and it’s been a real problem for
              my—my customers.


      Appellees’ App. Vol. II p. 206 (emphasis added). 1 Maxwell did not identify

      Birge by name. The Drainage Board ultimately approved the project proposed

      by Maxwell and the tile manufacturer.




      1
        Birge directs our attention to three other statements made by Maxwell at the meeting. But only the
      statement set forth above was included in his complaint. When making a defamation claim, it is essential to
      include the alleged defamatory statement(s) in the complaint. Trail v. Boys and Girls Clubs of Nw. Ind., 845
      N.E.2d 130, 136 (Ind. 2006). As the other three statements were not included in the complaint, we will not
      consider them on appeal.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-PL-2298 | April 27, 2018             Page 3 of 6
[6]   On January 7, 2015, Birge filed a defamation complaint against Maxwell and

      multiple other defendants. Maxwell filed a motion for summary judgment on

      February 3, 2017, which the trial court summarily granted on August 28, 2017.2

      Birge now appeals.


                                   Discussion and Decision
[7]   Birge argues that the trial court erred by granting summary judgment in favor of

      Maxwell. Our standard of review on summary judgment is well settled:


              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence
              of a genuine issue by setting forth specifically designated
              facts. Id. Any doubt as to any facts or inferences to be drawn
              therefrom must be resolved in favor of the non-moving
              party. Id. Summary judgment should be granted only if the
              evidence sanctioned by Indiana Trial Rule 56(C) shows there is
              no genuine issue of material fact and that the moving party
              deserves judgment as a matter of law. Freidline v. Shelby Ins.
              Co., 774 N.E.2d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).




      2
       The other defendants likewise sought and received summary judgment. Birge has not appealed those
      orders.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1709-PL-2298 | April 27, 2018        Page 4 of 6
[8]    In this case, there is no genuine issue of material fact, as Maxwell admits that

       he made the statement at issue. What we must determine, therefore, is whether

       the trial court properly determined that Maxwell is entitled to judgment as a

       matter of law. A defendant in a defamation case is entitled to summary

       judgment if he demonstrates that the undisputed material facts negate at least

       one element of the plaintiff’s claim. Sheets v. Birky, 54 N.E.3d 1064, 1069 (Ind.

       Ct. App. 2016).


[9]    To prevail on a defamation claim, a litigant must prove the existence of “(1) a

       communication with defamatory imputation, (2) malice, (3) publication, and

       (4) damages.” Id. at 1070. A statement is defamatory if it “tends ‘to harm a

       person’s reputation by lowering the person in the community’s estimation or

       deterring third persons from dealing or associating with the person.’” Id.

       (quoting Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007)).


[10]   Here, Maxwell went out of his way to avoid naming Birge. Instead, in making

       his proposal to the Drainage Board, Maxwell simply referred in general terms

       to the prior contractor. See Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 261 (Ind.

       1994) (holding that defamatory words “are not actionable unless they refer to

       some ascertained or ascertainable person, and that person must be the

       plaintiff”). Furthermore, Maxwell did not allege any verifiable misconduct;

       instead, he merely expressed his opinion that the prior contractor had been

       incompetent and made mistakes. See Sheets, 54 N.E.3d at 1071 (holding that

       statements of opinion cannot be the predicate of a defamation per se claim and

       that for a statement concerning someone’s employment to be defamatory the

       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-PL-2298 | April 27, 2018   Page 5 of 6
       statement must impute some type of occupational misconduct without resort to

       extrinsic evidence). Under these circumstances, the statement at issue was not

       defamatory.


[11]   Moreover, even if we gave Birge the benefit of the doubt on the defamatory

       nature of the statement, he would not prevail on the issue of actual malice.

       “Actual malice” means that the defendants knowingly made a false statement

       or made a statement with reckless disregard of its truth or falsity. Poyser v.

       Peerless, 775 N.E.2d 1101, 1107 (Ind. Ct. App. 2002). To make this showing,

       Birge would have to “designate ‘sufficient evidence to permit the conclusion

       that the defendant in fact entertained serious doubts as to the truth of his

       publication.’” Id. (quoting Ratcliff v. Barnes, 750 N.E.2d 433, 437 (Ind. Ct. App.

       2001)). There is simply no evidence in the record that Maxwell knowingly

       made a false statement or entertained serious doubts as to the truth of the

       statement. As Maxwell has negated multiple elements of Birge’s claim, the trial

       court did not err by granting summary judgment in favor of Maxwell.


[12]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 54A01-1709-PL-2298 | April 27, 2018   Page 6 of 6
