                                                                                FILED
                                                                            Aug 28 2019, 8:52 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
      Jonathan D. Harwell                                        David J. Jurkiewicz
      Harwell Legal Counsel LLC                                  Nathan T. Danielson
      Indianapolis, Indiana                                      Christina M. Bruno
                                                                 Bose McKinney & Evans LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      SWL, L.L.C. and Scott Lollar,                              August 28, 2019
      Appellants-Defendants/Counterclaim                         Court of Appeals Case No.
      Plaintiffs,                                                18A-CC-2955
                                                                 Appeal from the Hamilton
              v.                                                 Superior Court
                                                                 The Honorable Steven R. Nation,
      NextGear Capital, Inc.,                                    Judge
      Appellee-Plaintiff/Counterclaim                            The Honorable Darren J. Murphy,
      Defendant.                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 29D01-1608-CC-6680



      Najam, Judge.


                                        Statement of the Case
[1]   SWL, LLC (“SWL”) and Scott Lollar (collectively, “Dealer”) appeal the trial

      court’s grant of summary judgment for NextGear Capital, Inc. (“NextGear”)


      Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019                           Page 1 of 21
      on NextGear’s complaint, which alleged that SWL had breached a contract

      with NextGear and that Lollar had breached a guaranty, and on Dealer’s

      counterclaims against NextGear, which included claims for defamation and

      tortious interference with a business relationship. Dealer presents one issue for

      our review, namely, whether the trial court erred when it entered summary

      judgment for NextGear on its complaint and on Dealer’s counterclaims.


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                  Facts and Procedural History
[3]   On August 13, 2013, NextGear entered into a demand promissory note and

      loan and security agreement (“the Contract”) with SWL in which NextGear

      agreed to extend to SWL a revolving line of credit or floor plan of up to

      $400,000, which SWL would use to purchase vehicles from auctions. 1 SWL

      and NextGear also entered into an advance schedule, which outlined the

      payment schedule and amounts that SWL was required to pay to NextGear for

      each vehicle that SWL had purchased using funds from NextGear. On that

      same day, Lollar, who operated SWL, executed an individual guaranty in

      which he agreed to “voluntarily, unconditionally, and absolutely” guarantee the

      liabilities of SWL under the Contract. Appellant’s App. Vol. II at 39. After the




      1
        The Contract originally provided that NextGear would extend a line of credit in the amount of up to
      $120,000, but the parties amended the Contract to increase the line of credit to $400,000.

      Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019                            Page 2 of 21
      parties executed the loan documents, NextGear advanced funds to SWL for the

      purchase of vehicles.


[4]   Sometime thereafter, Lollar contacted Karen Lee, an account executive with

      NextGear, by phone in order to inform NextGear that SWL wanted to liquidate

      its inventory and pay off its balances. 2 In response, Lee proposed a plan that

      would continue SWL’s business relationship with NextGear. On February 24,

      2016, Lee forwarded to Lollar a copy of an email that contained the terms of

      the proposed plan. In that email (“the February email”), which Lee had

      previously sent to other employees of NextGear, Lee wrote:


                Dealer has been selling units, he’s been paying off consistently
                through retail sales and auction sales[. H]e’s gone from
                outstanding of $203k down to 97k balance.


                . . . We are going to pay off [stock] #510 tomorrow . . . for full
                [purchase price], putting the funds in unapplied funds. By Friday
                am, dealer will have enough cash to go with the unapplied funds
                to pay off [stock] #513.[ 3] I am going to refloor #513 for full
                [purchase price]. This will reset the counter for the dealer to have
                the engine in #513 done, he has a [credit card] with available
                balance on it to pay for engine, he has a buyer on the unit and
                unit should be repaired and gone off floor plan before the next 30
                days. . . .




      2
        It is not clear when Lollar contacted Lee. The record simply indicates that Lollar called Lee sometime
      “[p]rior to February 24, 2016[.]” Appellant’s App. Vol. II at 119.
      3
          Stock number 510 and stock number 513 refer to vehicles in Dealer’s inventory.


      Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019                             Page 3 of 21
                Given with the speed the dealer is moving the units and with
                dealer staying on track, as well as the lengthy impeccable history
                with this dealer, . . . we need to move this direction & continue
                working with dealer to get back current. Of course, if any of this
                falls through we will have to reconvene with dealer and go a
                different direction.


      Id. at 140. Lee later informed Lollar that “the plan had been approved by the

      ‘front end risk manager’” for NextGear.” Id. at 136.


[5]   The day after Lollar had received the email from Lee, Dealer paid NextGear

      $7,562.86 to pay off stock number 510. Dealer then paid off stock number 513. 4

      Lee continued to assure Lollar “that [Dealer’s] previous payments pursuant to

      her plan would be placed in [its] unapplied funds account” for Dealer to use to

      make the next curtailment payments. Id. at 137. However, NextGear did not

      place any funds in Dealer’s unapplied funds account. As a result, Dealer was

      unable to make the next scheduled payments for the remaining vehicles.

      NextGear then repossessed the remaining cars in Dealer’s inventory that

      NextGear had financed. Thereafter, NextGear informed Dealer’s other lenders

      that Dealer had defaulted on the loan documents, and Dealer’s other lenders

      then repossessed Dealer’s remaining vehicles.


[6]   On August 4, NextGear filed a complaint against Dealer. In its complaint,

      NextGear alleged that Dealer had not repaid the funds that NextGear had




      4
          The record does not indicate how much Dealer paid toward unit 513.


      Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019        Page 4 of 21
      advanced to Dealer in accordance with the loan documents. Accordingly,

      NextGear asserted that SWL had breached the Contract and that Lollar had

      breached the guaranty. In response, Dealer filed its answer and affirmative

      defenses. Specifically, Dealer asserted that it did not breach the Contract

      because the February email had “modified the terms” of the Contract, that

      Dealer had “performed all obligations required of [it] pursuant to the terms” of

      the modified contract when it submitted the payments for the two units, and

      that NextGear had “breached the terms of the parties[’] modified agreement”

      when it failed to place those payments in Dealer’s unapplied funds. Id. at 51.

      In addition, Dealer filed two counterclaims against NextGear. Dealer asserted

      that NextGear had committed defamation and tortious interference with a

      business relationship when it wrongfully informed other lenders that Dealer had

      defaulted on the loan documents.


[7]   On February 16, 2018, NextGear filed a motion for summary judgment. In that

      motion, NextGear asserted that SWL had breached the terms of the Contract

      when it failed to make payments due under the Contract and that Lollar had

      breached the guaranty when it failed to pay SWL’s debt. NextGear also

      asserted that it had not modified the Contract. As for Dealer’s counterclaims,

      NextGear asserted that the Contract authorized NextGear to share information

      regarding Dealer’s financial status with other lenders and that its statements to

      the other lenders were true. In support of its motion for summary judgment,

      NextGear designated the Contract and the affidavit of Greg Hidbrader,

      NextGear’s Supervisor of Risk and Recovery, in which Hidbrader stated that


      Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019      Page 5 of 21
      NextGear’s advances to Dealer “have not been fully repaid as agreed.” Id. at

      113.


[8]   In response, Dealer asserted that there were genuine issues of material fact with

      respect to NextGear’s affirmative defenses of modification and promissory

      estoppel. Specifically, Dealer asserted that a question of fact exists concerning

      whether Dealer “was induced to make certain payments” pursuant to Lee’s

      statements and the February email and whether NextGear had “failed to

      comply with the terms of that agreement[.]” Id. at 125. In essence, Dealer

      argued that a genuine issue of material fact existed regarding whether NextGear

      had “caused [Dealer] to follow a plan which may have resulted in Dealer’s

      alleged breach of the exact terms” of the Contract. Id. Dealer further asserted

      that there was a genuine issue of material fact with respect to whether

      NextGear had provided false information to Dealer’s other lenders such that

      summary judgment was inappropriate on Dealer’s counterclaims. In support of

      its opposition to NextGear’s motion for summary judgment, Dealer designated

      the February email and Lollar’s affidavit, in which Lollar stated that NextGear,

      through Lee, had proposed a plan to modify the Contract and that Lee had

      provided “assurances” to Lollar regarding the new plan. Id. at 137.


[9]   NextGear then filed a reply and supplemental evidence in support of its motion

      for summary judgment. In its reply, NextGear asserted that Dealer’s

      affirmative defenses must fail because NextGear did not modify the Contract.

      It further asserted that there was no genuine issue of material fact regarding

      whether Dealer had breached the Contract because, as of March 30, 2016,

      Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019       Page 6 of 21
       Dealer’s payments were “delinquent” on seven vehicles. Id. at 149. NextGear

       also reiterated its assertion that, because its statements to Dealer’s other lenders

       were true and authorized by the Contract, Dealer did not raise a genuine issue

       of material fact as to either counterclaim. Following a hearing, the trial court

       entered summary judgment in favor of NextGear on NextGear’s complaint and

       on Dealer’s counterclaims. This appeal ensued.


                                       Discussion and Decision
                                               Standard of Review

[10]   Dealer contends that the trial court erred when it entered summary judgment

       for NextGear. Our standard of review is clear. The Indiana Supreme Court

       has explained that


               [w]e review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019        Page 7 of 21
               issue for the trier of fact. Id. at 761–62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909–10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

       alterations original to Hughley). We may affirm an entry of summary judgment

       “if it can be sustained on any theory or basis in the record.” DiMaggio v.

       Rosario, 52 N.E.3d 896, 904 (Ind. Ct. App. 2016).


[11]   Further, this appeal requires us to interpret the Contract. The interpretation

       and construction of contract provisions are questions of law. Barker v. Price, 48

       N.E.3d 367, 370 (Ind. Ct. App. 2015). As such, “cases involving contract

       interpretation are particularly appropriate for summary judgment.” Id.


[12]   Here, the trial court entered findings of fact and conclusions thereon in its

       summary judgment order. While such findings and conclusions are not

       required in a summary judgment and do not alter our standard of review, they

       are helpful on appeal for us to understand the reasoning of the trial court. See

       Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). On appeal,

       Dealer asserts that the trial court erred when it entered summary judgment in

       favor of NextGear because there are genuine issues of material fact regarding

       Dealer’s affirmative defenses to NextGear’s complaint and Dealer’s

       counterclaims. We address each argument in turn.

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019        Page 8 of 21
                                              Affirmative Defenses

[13]   Dealer first asserts that its designated evidence establishes genuine issues of

       material fact with regard to its affirmative defenses. As this Court has stated:


               In summary judgment proceedings, as at trial, the burden of
               establishing the existence of material affirmative defenses is on
               the defendant. In order to meet this burden, a defendant must
               show that a genuine issue of material fact exists as to each
               element of the asserted affirmative defense. We will affirm a
               grant of summary judgment if the defendant, in opposition to the
               plaintiff’s summary judgment motion, failed to designate any
               evidence from which the trial court could infer the elements of
               the asserted affirmative defense.


       Paint Shuttle, Inc. v. Continental Cas. Co., 733 N.E.2d 513, 519 (Ind. Ct. App.

       2000), trans. denied (internal citations omitted).


[14]   Dealer does not dispute that, following Lollar’s receipt of the February email

       and Dealer’s subsequent actions, Dealer “could not make the next scheduled

       curtailment payment.” Appellant’s Br. at 8. However, despite the missed

       payments, Dealer contends that the trial court erred when it entered summary

       judgment in favor of NextGear on NextGear’s breach of contract claim because

       there are genuine issues of material fact concerning Dealer’s affirmative

       defenses of modification and promissory estoppel.


                                                   Modification

[15]   Dealer first contends that the trial court erred when it entered summary

       judgment in favor of NextGear on NextGear’s breach of contract claim because


       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019       Page 9 of 21
       there are genuine issues of material fact with respect to Dealer’s affirmative

       defense that NextGear had modified the Contract such that any breach was not

       due to any fault of Dealer. “As a general rule, ‘[q]uestions regarding the

       modification of a contract are ones of fact.’” Gerdon Auto Sales, Inc. v. John Jones

       Chrysler Dodge Jeep Ram, 98 N.E.3d 73, 80 (Ind. Ct. App. 2018), trans. denied

       (quoting Skweres v. Diamond Craft Co., 512 N.E.2d 217, 221 (Ind. Ct. App.

       1987)).


[16]   Dealer asserts that genuine issues of material fact exist as to whether the parties

       modified the terms of the Contract through their conduct when Lee spoke with

       Lollar and sent Lollar the February email, and when NextGear accepted

       Dealer’s payments on two vehicles in accordance with the email. 5 NextGear

       responds and asserts that there are no questions of fact and that summary

       judgment was appropriate because the Contract “can be modified only by the

       ‘written consent’ of both parties” and because any conduct suggesting that the

       Contract was modified “should not prevail” over that provision of the Contract.

       Appellee’s Br. at 46.


[17]   NextGear is correct that the plain language of the Contract states that it “may

       be modified or amended only upon the written consent” of NextGear and

       Dealer. Appellant’s App. Vol. II at 26. However, “it is well settled that ‘[e]ven




       5
        Other than Dealer’s statement that the email “is a written instrument” that was “signed through normal e-
       mail signature,” Dealer does not argue that the February email constituted a written modification to the
       Contract. Appellant’s Br. at 11.

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019                           Page 10 of 21
       a contract providing that any modification thereof must be in writing may

       nevertheless be modified orally.’” Gerdon Auto Sales, Inc., 98 N.E.3d at 80

       (quoting City of Indianapolis v. Twin Lakes Enters., Inc., 568 N.E.2d 1073, 1084-85

       (Ind. Ct. App. 1991)). “Further, the modification of a contract can be implied

       from the conduct of the parties.” Id. (quotation marks omitted). Accordingly,

       we must rely on the designated evidence to determine whether the conduct of

       the parties supports more than one inference of their intent. “The intent

       relevant in contract matters is not the parties’ subjective intents but their

       outward manifestations of it.” Id. In order to determine a party’s intent, “a

       court does not examine the hidden intentions secreted in the heart of a person

       but should examine the final expression of that intent found in conduct.” Id.


[18]   Here, Dealer’s designated evidence demonstrates that Lollar contacted Lee in

       order to terminate Dealer’s business with NextGear. In response, Lee proposed

       a plan that would allow NextGear to keep Dealer’s business. Specifically, in his

       affidavit, Lollar stated that the February email contained the “basic terms” of

       Lee’s proposed plan, which called for SWL to pay off two vehicles and, in

       exchange, NextGear would “refinance” those two units and “deposit those

       funds in [Dealer’s] unapplied funds account.” Appellant’s App. Vol. II at 136.

       Lollar also stated in his affidavit that Lee had informed him that the new plan

       “had been approved by the ‘front end risk manager’” for NextGear. Id.

       Further, Lollar stated that, in response to his phone call with Lee and his

       receipt of the February email, Dealer paid off stock numbers 510 and 513.




       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019        Page 11 of 21
[19]   Based on that designated evidence, we hold that the conduct of the parties is

       subject to more than one inference. In other words, Dealer designated evidence

       to raise a genuine issue of material fact with respect to whether NextGear

       intended to modify the terms of the Contract when Lee spoke with Lollar and

       sent Lollar the February email. Because the parties’ conduct is subject to more

       than one reasonable inference, we cannot say as a matter of law that the parties

       did not modify the Contract. Rather, a genuine issue of material fact exists as

       to whether the parties modified the Contract through their conduct.

       Accordingly, the trial court erred when it found that the Contract had not been

       modified.


                                              Promissory Estoppel

[20]   Dealer also asserts that the trial court erred when it entered summary judgment

       on NextGear’s claim for breach of contract because there are genuine issues of

       material fact concerning Dealer’s affirmative defense of promissory estoppel.

       Promissory estoppel “is a judicial doctrine sounding in equity.” Brown v.

       Branch, 758 N.E.2d 48, 51 (Ind. 2001). Promissory estoppel is based on the

       underlying principle that “one who by deed or conduct has induced another to

       act in a particular manner will not be permitted to adopt an inconsistent

       position, attitude, or course of conduct that causes injury to such other.” Id. at

       52. That is, where the parties may have believed they had a contract but in fact

       did not, promissory estoppel may apply to hold the parties to their

       representations to each other. See Ind. Bureau of Motor Vehicles v. Ash, Inc., 895

       N.E.2d 359, 367 (Ind. Ct. App. 2008). To demonstrate that the doctrine of

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019       Page 12 of 21
       promissory estoppel applies, Dealer must show: (1) a promise by the

       promissor; (2) made with the expectation that the promisee will rely thereon; (3)

       which induces reasonable reliance by the promisee; (4) of a definite and

       substantial nature; and (5) injustice can be avoided only by enforcement of the

       promise. Hinkle v. Sataria Dist. & Packaging, Inc., 920 N.E.2d 766, 771 (Ind. Ct.

       App. 2010).


[21]   Here, again, in support of its opposition to NextGear’s motion for summary

       judgment, Dealer designated the February email and Lollar’s affidavit. In the

       February email, Lee stated that NextGear was “going to pay off” stock

       numbers 510 and 513, “putting the funds in unapplied funds.” Appellant’s

       App. Vol. II at 140. And in his affidavit, Lollar stated that Lee had proposed “a

       plan” to keep SWL’s business, which plan called for SWL to pay off two

       vehicles and, in exchange, NextGear would refinance those vehicles and place

       the funds in Dealer’s unapplied funds account for Dealer to use to make the

       next curtailment payments. Id. at 136. Lollar also stated that Lee had told him

       that “the plan had been approved by the ‘front end risk manager’” for NextGear

       and that he “had received assurances” from Lee about her plan. Appellant’s

       App. Vol. II at 136, 137. Lollar further stated that he had “accepted” Lee’s

       proposed plan and that Dealer paid off the two cars “pursuant to” the plan but

       that NextGear failed “to follow through on [its] promise to refinance those

       units,” which caused Dealer to be “unable to make the next scheduled

       curtailments payments, which resulted in NextGear’s repossession of the

       vehicles. Id. at 136, 137. Based on the February email and Lollar’s affidavit,


       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019     Page 13 of 21
       Dealer designated evidence that shows that genuine issues of material fact exist

       as to whether NextGear made Dealer a promise, that it made that promise with

       the expectation that Dealer would rely on it, and that Dealer actually relied on

       that promise to its own detriment.


[22]   Still, NextGear asserts that Dealer has not demonstrated that NextGear made

       Dealer “a promise of a ‘definite and substantial nature.’” Appellee’s Br. at 48.

       Specifically, NextGear contends that, because Dealer’s payments were

       delinquent on several vehicles at the time Lee emailed Lollar and because Lee’s

       email only addressed two of those vehicles, “there is no evidence in the record

       addressing how [Dealer] intended to pay the other” delinquent payments.

       Appellee’s Br. at 49 (emphasis in original). In essence, NextGear contends that

       any purported promise by Lee was not definite and substantial because Dealer

       was in default on other vehicles not addressed by Lee’s email.


[23]   We agree with NextGear that it designated evidence to demonstrate that

       Dealer’s “payments were delinquent” on several vehicles prior to the date Lee

       sent Lollar the email. Appellant’s App. Vol. II at 149. However, in response to

       NextGear’s motion, Dealer designated Lollar’s affidavit as evidence. In that

       affidavit, Lollar affirmed that Dealer “was not in default” prior to the date that

       NextGear repossessed its vehicles. Id. at 138. Additionally, Lollar stated that

       Lee had proposed the plan to keep Dealer in business after Lollar had informed

       Lee that Dealer wanted to liquate its stock and pay off its debt. Lollar’s

       affidavit is sufficient to raise a factual issue regarding whether Dealer was in

       default prior to Lee’s email. See Hughley, 15 N.E.3d at 1004.

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019      Page 14 of 21
[24]   NextGear also contends that the February email demonstrates that Dealer was

       in default at the time Lee sent it to Lollar. In support of that contention,

       NextGear relies on the language in the email that Dealer has “gone from

       outstanding of $203k to 97 balance” and that NextGear “need[s] to move this

       direction and continue working with dealer to get back current.” Appellant’s

       App. Vol. II at 140. However, Lollar’s affidavit is sufficient evidence to create a

       genuine issue of material fact concerning whether Dealer was in default when

       Lee sent Lollar the February email. And even if Dealer were in default as of

       February 24, 2016, the designated evidence suggests that, because Dealer had a

       “lengthy impeccable history,” NextGear proposed a course of action to cure

       any default and for Dealer to maintain its good standing. Id. We therefore

       cannot say as a matter of law that NextGear did not make a definite and

       substantial promise to Dealer. Rather, Dealer designated evidence in its

       opposition to NextGear’s motion for summary judgment to show that genuine

       issues of material fact exist as to its affirmative defense of detrimental reliance

       and promissory estoppel.


[25]   In sum, Dealer designated evidence to demonstrate that genuine issues of

       material fact exist with respect to both of its affirmative defenses. Accordingly,

       the trial court erred when it entered summary judgment for NextGear on its

       breach of contract claim. We therefore reverse the trial court’s grant of

       summary judgment for NextGear on that claim. And because there is a

       question of fact regarding Dealer’s affirmative defenses and whether SWL

       breached the Contract, there is also a genuine issue of material fact as to


       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019        Page 15 of 21
       whether Lollar breached the individual guaranty. 6 Accordingly, we also reverse

       the trial court’s grant of summary judgment in favor of NextGear on its breach

       of guaranty claim. 7


                                                      Defamation

[26]   Dealer next asserts that the trial court erred when it entered summary judgment

       in favor of NextGear on Dealer’s counterclaim that NextGear had defamed

       Dealer. To establish defamation, Dealer must prove communication with

       defamatory imputation, malice, publication, and damages. See Miller v. Cent.

       Ind. Cmty. Found., Inc., 11 N.E.3d 944, 956 (Ind. Ct. App. 2014). NextGear is

       entitled to summary judgment on Dealer’s defamation counterclaim if it

       demonstrates that the undisputed material facts negate at least one element of

       Dealer’s counterclaim. See Shine v. Loomis, 836 N.E.2d 952, 956 (Ind. Ct. App.

       2005).


[27]   NextGear contends that summary judgment was appropriate on Dealer’s

       defamation counterclaim because “any communications made by [NextGear]

       reflecting [Dealer’s] negative Loan status would have been true.” Appellee’s

       Br. at 57. NextGear is correct that “[a]ny statement actionable for defamation

       must not only be defamatory, but false.” Miller, 11 N.E.3d at 956. However,




       6
         The parties do not dispute that NextGear’s breach of guaranty claim is derivative of its breach of contract
       claim.
       7
         Because we reverse the trial court’s grant of summary judgment for NextGear on NextGear’s claims for
       breach of contract and breach of guaranty, we need not address Dealer’s arguments concerning NextGear’s
       damages.

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019                              Page 16 of 21
       we have determined that there is a genuine issue of material fact regarding

       Dealer’s affirmative defense of promissory estoppel and, thus, there is also a

       genuine issue of material fact concerning whether Dealer was in default as a

       result of its own actions or whether Dealer was not in default because it only

       missed the payments after it paid off two vehicles based on NextGear’s promise

       that it would place those funds in Dealer’s unapplied funds account, which

       NextGear did not do. Because there is a question of fact as to whether Dealer

       was in default on the Contract, there is a genuine issue of material fact with

       regard to whether NextGear’s statements that Dealer had defaulted on the

       Contract were true.


[28]   Still, NextGear asserts that summary judgment was appropriate because Dealer

       failed to designate any facts “of a particular time or place of communication or

       publication by [NextGear], the specific content of any [NextGear]

       communications, the exact recipient of any [NextGear] communications, or

       any specific facts to support malice.” Appellee’s Br. at 56. In other words,

       NextGear asserts that summary judgment was appropriate on this counterclaim

       because “it is not possible for the Court to examine any particular

       communication by [NextGear] ‘in context’ while giving it ‘its plain and natural

       meaning.’” Id. at 57 (quoting Branham v. Celadon Trucking Servs. Inc., 744

       N.E.2d 514, 522 (Ind. Ct. App. 2001)).


[29]   However, in his affidavit, Lollar stated that “NextGear had falsely told the

       lender for the automobiles for sale on [SWL’s] lot, that [Dealer] had defaulted

       on [its] obligations to NextGear.” Appellant’s App. Vol. II at 137. Lollar

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019     Page 17 of 21
       further stated that NextGear told the other lenders that Dealer had defaulted on

       the Contract “[e]ven though NextGear knew that [Dealer] was performing

       under the terms” of the February email. Id. Accordingly, contrary to

       NextGear’s assertions, Dealer’s designated evidence indicates that NextGear

       made statements regarding Dealer’s loan status with NextGear to Dealer’s

       other lenders even though NextGear knew Dealer was acting in reliance upon

       NextGear’s promises and representations. As such, Dealer’s designated

       evidence indicates to whom NextGear made its statements, what NextGear

       stated, and that NextGear allegedly made those statements even though

       NextGear knew the statements were false. Accordingly, Dealer provided

       sufficient information for a trier of fact to consider whether NextGear’s

       statements amounted to defamation, especially given that we are required to

       indulge every inference in favor of the nonmoving party.


[30]   On this counterclaim, the designated evidence demonstrates that there are

       genuine issues of material fact regarding whether NextGear’s statements to

       Dealer’s other lenders were true and whether NextGear defamed Dealer. The

       trial court therefore erred when it entered summary judgment for NextGear on

       Dealer’s defamation counterclaim.


                          Tortious Interference with a Business Relationship

[31]   Finally, Dealer contends that the trial court erred when it entered summary

       judgment in favor of NextGear on Dealer’s counterclaim that NextGear had




       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019     Page 18 of 21
       tortiously interfered with a business relationship. 8 To prove that NextGear had

       interfered with Dealer’s business relationship, Dealer was required to show: (1)

       the existence of a valid relationship; (2) NextGear’s knowledge of the existence

       of the relationship; (3) NextGear’s intentional interference with that

       relationship; (4) the absence of justification; and (5) damages resulting from

       NextGear’s wrongful interference with the relationship. McCollough v.

       Noblesville Sch., 63 N.E.3d 334, 344 (Ind. Ct. App. 2016). “Additionally, our

       Supreme Court has held that ‘this tort requires some independent illegal

       action.’” Id. (quoting Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796

       N.E.2d 286, 291 (Ind.2003)).


[32]   On appeal, Dealer contends that the trial court erred when it entered summary

       judgment in favor of NextGear on Dealer’s counterclaim for tortious

       interference with a business relationship because “NextGear does not dispute

       their contact” with the other lenders and because NextGear “falsely claimed

       that [Dealer] was in default when he was not.” Appellant’s Br. at 15 (emphasis

       removed). In essence, Dealer contends that NextGear had defamed Dealer,

       which defamation interfered with Dealer’s relationships with other lenders and

       caused the other lenders to repossess the remainder of its inventory.




       8
         In its motion for summary judgment and on appeal, Dealer frames its counterclaim as tortious interference
       with a prospective business advantage, but Dealer provides the same elements as a cause of action for
       tortious interference with a business relationship.

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019                           Page 19 of 21
[33]   “Defamation, however, does not constitute illegal conduct for the purpose of

       determining whether one tortiously interfered with the business relationship of

       another.” McCollough, 337 N.E.3d at 344 (quotation marks omitted). Thus,

       even if Dealer prevails on its defamation counterclaim, NextGear’s defamation

       of Dealer would not support Dealer’s claim for tortious interference with a

       business relationship. Because Dealer did not designate any evidence to

       demonstrate that NextGear committed any illegal conduct other than

       defamation, Dealer has not met its burden to demonstrate a genuine issue of

       material fact on this issue. As such, the trial court did not err when it entered

       summary judgment for NextGear on Dealer’s counterclaim for tortious

       interference with a business relationship.


                                                     Conclusion

[34]   In sum, Dealer’s designated evidence demonstrates that genuine issues of

       material fact exist regarding its affirmative defense of modification and its

       affirmative defense of detrimental reliance and promissory estoppel.

       Accordingly, we hold that the trial court erred when it entered summary

       judgment in favor of NextGear on NextGear’s breach of contract claim. And

       because there is a genuine issue of material fact regarding whether SWL

       breached the Contract, there is also a genuine issue of material fact as to

       whether Lollar breached the individual guaranty. We also hold that the trial

       court erred when it entered summary judgment in favor of NextGear on

       Dealer’s counterclaim for defamation because there is a genuine issue of

       material fact concerning whether NextGear’s statements to Dealer’s other

       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019      Page 20 of 21
       lenders were true. But we hold that the trial court did not err when it entered

       summary judgment for NextGear on Dealer’s counterclaim for tortious

       interference with a business relationship because Dealer has not alleged that

       NextGear committed any illegal action other than defamation to support its

       claim. Accordingly, we affirm in part, reverse in part, and remand for further

       proceedings.


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


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CC-2955 | August 28, 2019    Page 21 of 21
