                                                                        FILED
                                                                   May 21 2020, 8:46 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                ATTORNEY FOR APPELLEES
William D. Beyers                                     Dane A. Mize
Buchanan & Bruggenschmidt, P.C.                       Skiles DeTrude
Zionsville, Indiana                                   Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Melvin Hall,                                               May 21, 2020
Appellant/Cross-Appellee/Plaintiff,                        Court of Appeals Case No.
                                                           19A-CT-2533
        v.                                                 Appeal from the Marion Superior
                                                           Court
Bradley Shaw, Giovanni                                     The Hon. John F. Hanley, Judge
Narducci, and Central Indiana                              The Hon. Ian Stewart, Magistrate
Protection Agency, Inc.,                                   Trial Court Cause No.
Appellees/Cross-Appellants/Defendants.                     49D11-1805-CT-19942



Friedlander, Senior Judge.




Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                            Page 1 of 25
[1]   Melvin Hall appeals from the trial court’s partial dismissal of his lawsuit against

      Bradley Shaw, Giovanni Narducci, and Central Indiana Protection Agency,

      Inc. (“CIPA”) (collectively, “Defendants”), in which he alleges defamation,

      abuse of process, malicious prosecution, and intentional infliction of emotional

      distress (“IIED”). Defendants cross-appeal from the trial court’s partial denial

      of their motion to dismiss Hall’s lawsuit. We affirm in part, reverse in part, and

      remand.

[2]   In August of 2011, Hall began working at CIPA as a security guard, eventually

      becoming a supervisor. Shaw is an owner, president, and employee of CIPA

      while Narducci is an owner, vice president, and employee. In June of 2013,

      Hall formed his own security company, Urban Tactical Response Agency,

      LLC, and resigned from CIPA to operate it. From June of 2013 to July of

      2015, Shaw and Narducci allegedly engaged in a coordinated campaign with

      others to defame Hall and drive him out of business. According to Hall, Shaw,

      Narducci, other CIPA employees, and/or others working at Shaw’s and/or

      Narducci’s direction made false allegations against Hall to the Attorney

      General’s office, various state licensing boards, Indianapolis television station

      WRTV, and local law enforcement. The alleged communications were mostly

      to the effect that Hall had been impersonating a police officer.

[3]   At some point, the Marion County Prosecutor’s Office charged Hall with

      multiple counts of impersonating a law enforcement officer, and he was

      arrested on June 15, 2015. On July 9, 2015, the Indiana Private Investigator

      and Security Guard Licensing Board revoked Urban Tactical’s professional


      Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020          Page 2 of 25
      license. On June 23, 2017, Hall’s criminal trial began, during which Gerald

      Alexander and Guillerma Lolla-Martinez testified for the State, allegedly at

      Defendants’ direction. Hall was acquitted of all charges.

[4]   On May 22, 2018, Hall filed suit against Defendants, alleging defamation,

      abuse of process, malicious prosecution, and IIED. On July 11, 2018, Narducci

      initiated a consumer complaint with the Attorney General’s office against Hall

      and his new security agency, Superior Tactical Response Agency, which was

      then operating under a probationary license. The consumer complaint was

      eventually dismissed. On July 31, 2018, Narducci left a voicemail for Hall, in

      which he allegedly made the following statements:


              “Guess what dumb*** you and your f****** probation license is
              going down the drain! Straight up. You suing me! I don’t give a
              f***! You know why because you engaged us into this bull****!
              You mother******* are done! For real. . . So when you play
              this f****** tape for your f****** lawyer, you let your lawyer
              know that this s*** ain’t going to be easy! Remember that. . . . If
              you think you mother******* know who I am you better go
              down to that city-county building and keep checking
              mother******…”


      Appellant’s App. Vol. II, p. 51.


[5]   On April 12, 2019, Hall amended his complaint, adding defamation and abuse

      of process claims based on Narducci’s July of 2018 consumer complaint, an

      IIED claim based on Narducci’s July of 2018 voicemail, and defamation claims

      based on Alexander’s and Lolla-Martinez’s allegedly false testimony and



      Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 3 of 25
      alleged out-of-court statements that they made before and after Hall’s criminal

      trial.

[6]   On May 8, 2019, Defendants moved to dismiss Hall’s amended complaint on

      the basis that he had failed to state a claim upon which relief could be granted,

      arguing that Hall’s claims of (1) defamation, abuse of process, and IIED based

      on events that occurred prior to May 22, 2016, were time-barred; (2)

      defamation based on Alexander’s and Lolla-Martinez’s trial testimony were

      barred by absolute privilege; (3) defamation based on alleged out-of-court

      statements by Alexander and Lolla-Martinez did not state a claim of civil

      conspiracy; (4) abuse of process and IIED based on Narducci’s alleged July of

      2018 consumer complaint with the Attorney General’s office and voicemail

      were insufficient as a matter of law; and (5) malicious prosecution were

      insufficient because Defendants did not institute or cause to be instituted any

      legal action against Hall. Defendants also requested attorney’s fees.

[7]   On June 26, 2019, the trial court (1) granted Defendants’ motion as to all claims

      against Shaw and CIPA; (2) denied Defendants’ motion as to defamation and

      abuse of process claims against Narducci based on his July of 2018 consumer

      complaint and the IIED claim based on his voicemail; and (3) denied

      Defendants’ request for attorney’s fees. Defendants contend that the trial court

      erred in denying their motion to dismiss in one respect, while Hall contends

      that the trial court erred in several respects in granting Defendants’ motion.

[8]   Both sides appeal from the trial court’s ruling on Defendants’ motion to

      dismiss, which was granted in part, denied in part, and issued pursuant to

      Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 4 of 25
      Indiana Trial Rule 12(B)(6), which allows dismissal for “[f]ailure to state a

      claim upon which relief can be granted[.]” Further,


              A motion to dismiss for failure to state a claim tests the legal
              sufficiency of the claim, not the facts supporting it. Magic Circle
              Corp. v. Crowe Horwath, LLP, 72 N.E.3d 919, 922 (Ind. Ct. App.
              2017). Our review of a trial court’s grant or denial of a motion
              based on Indiana Trial Rule 12(B)(6) is de novo. Id. When
              reviewing a motion to dismiss, we view the pleadings in the light
              most favorable to the nonmoving party, with every reasonable
              inference construed in the nonmovant’s favor. Id. Motions to
              dismiss are properly granted only “when the allegations present
              no possible set of facts upon which the complainant can recover.”
              Id. at 922-23 (quotations omitted).


      CRIT Corp. v. Wilkinson, 92 N.E.3d 662, 666 (Ind. Ct. App. 2018) (footnote

      omitted).


[9]           The principles of notice pleadings are utilized in Indiana. Ind.
              Trial Rule 8(A) merely requires “(1) a short and plain statement of
              the claim showing that the pleader is entitled to relief, and (2) a
              demand for the relief to which the pleader deems entitled....”
              Also, Ind. Trial Rule 8(F) provides that “all pleadings shall be so
              construed as to do substantial justice, lead to disposition on the
              merits, and avoid litigation of procedural points.” Notice pleading
              is designed to discourage battles over mere form of statement and
              to sweep away needless controversies that have occurred either to
              delay trial on the merits or to prevent a party from having a trial
              because of mistakes in statement.

              Under Indiana’s notice pleading system, a pleading need not
              adopt a specific legal theory of recovery to be adhered to
              throughout the case. Indiana’s notice pleading rules do not
              require the complaint to state all elements of a cause of action.
              Notice pleading merely requires pleading the operative facts so as

      Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 5 of 25
                to place the defendant on notice as to the evidence to be
                presented at trial. Therefore, under notice pleading the issue of
                whether a complaint sufficiently pleads a certain claim turns on
                whether the opposing party has been sufficiently notified
                concerning the claim so as to be able to prepare to meet it. A
                complaint’s allegations are sufficient if they put a reasonable
                person on notice as to why a plaintiff sues.


       Shields v. Taylor, 976 N.E.2d 1237, 1244-45 (Ind. Ct. App. 2012) (citations and

       some quotation marks omitted).


                                             Cross-Appeal Issue
                   1. Narducci’s July of 2018 Consumer Complaint
[10]   Defendants cross-appeal, contending that Narducci’s July of 2018 consumer
                                                                            1                            2
       complaint cannot be the basis of any defamation or abuse of process claims
                                                                     3
       because it is protected by absolute privilege. “Indiana law has long recognized

       an absolute privilege that protects all relevant statements made in the course of

       a judicial proceeding, regardless of the truth or motive behind the statements.”




       1
         “To establish a claim of defamation, a plaintiff must prove the existence of a communication with
       defamatory imputation, malice, publication, and damages.” Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184,
       186 (Ind. 2010) (citation omitted). “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. (citation omitted).
       2
         “A party claiming abuse of process must show a misuse or misapplication of process for an end other than
       that which it was designed to accomplish.” Waterfield v. Waterfield, 61 N.E.3d 314, 328 (Ind. Ct. App. 2016),
       trans. denied. “The two elements of abuse of process are: (1) ulterior purpose or motives; and (2) a willful use
       of process not proper in the regular conduct of the proceedings.” Id.
       3
         Defendants allege in their Appellees’/Cross-Appellants’ Brief that “Narducci filing a complaint with the
       Attorney General after Hall’s original Complaint was filed all occurred in the context of judicial proceedings
       and should be protected by absolute privilege.” Appellees’ Br. p. 17 n.3. Although Defendants do not
       specifically designate this claim as a cross-appeal issue, that is precisely what it is, and we treat it as such.

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                      Page 6 of 25
       Hartman v. Keri, 883 N.E.2d 774, 777 (Ind. 2008) (citing Wilkins v. Hyde, 142

       Ind. 260, 261, 41 N.E. 536 (1895); Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind.

       Ct. App. 1998)). “‘The reason upon which the rule is founded is the necessity

       of preserving the due administration of justice,’ Wilkins, 142 Ind. at 261, 41

       N.E. at 536, by providing actors in judicial proceedings with the freedom to

       participate without fear of future defamation claims.” Hartman, 883 N.E.2d at

       777 (citing Van Eaton, 697 N.E.2d at 494). “For the same reason, an absolute

       privilege has been extended to communications made in the course of

       proceedings, which may be characterized as quasi-judicial, including certain

       administrative proceedings.” Hartman, 883 N.E.2d at 779 (citing W. Page

       Keeton et al., Prosser & Keeton on the Law of Torts § 114, at 818-19 (5th ed. 1984))

       (Rucker, J., concurring in result). Because Hall does not dispute that the

       evaluation of a consumer complaint with the Attorney General’s office qualifies

       as a quasi-judicial proceeding, we consequently agree with Defendants that Hall

       may not pursue defamation or abuse of process claims against Narducci based

       on his July of 2018 consumer complaint.

                                         Direct Appeal Issues
                   2. Whether the Trial Court Properly Dismissed
                   Most of Hall’s Defamation Claims as Untimely
[11]   Hall contends that the trial court erred in concluding that all of his claims of

       defamation against Shaw and CIPA are time-barred and that most of those

       claims against Narducci are. Indiana Code section 34-11-2-4 (2013) provides,

       in part, that “[a]n action for […] injury to person or character […] must be

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020           Page 7 of 25
commenced within two (2) years after the cause of action accrues.” Section 34-

11-2-4 applies to claims of defamation, and the statute of limitations begins to

run at the point where the plaintiff “could have reasonably ascertained damage

resulting from the alleged defamation.” Burks v. Rushmore, 534 N.E.2d 1101,

1104 (Ind. 1989). There is no dispute that almost all of the alleged acts of

which Hall complains related to defamation occurred before May 22, 2016, or
                                                      4
more than two years before he filed suit. Hall does not claim that he failed to

ascertain the damage caused by any of the pre-May 22, 2016, statements until

after May 22, 2016, but, rather, that these alleged events are all part of

continuing wrongs extending past May 22, 2016.


        The doctrine of continuing wrong applies where an entire course
        of conduct combines to produce an injury. When this doctrine
        attaches, the statutory limitations period begins to run at the end
        of the continuing wrongful act. In order to apply the doctrine,
        the plaintiff must demonstrate that the alleged injury-producing
        conduct was of a continuous nature. The doctrine of continuing
        wrong is not an equitable doctrine; rather, it defines when an act,
        omission, or neglect took place.


Garneau v. Bush, 838 N.E.2d 1134, 1143 (Ind. Ct. App. 2005) (citations and

quotation marks omitted), trans. denied. As Defendants note, the continuing




4
  The only exceptions are allegations of events to support claims of (1) defamation and abuse of process
related to Narducci’s July of 2018 consumer complaint, (2) IIED related to Narducci’s July of 2018
voicemail, and (3) defamation related to Alexander’s and Lolla-Martinez’s testimony and alleged out-of-court
statements before and after Hall’s criminal trial. We have already concluded that Hall may not pursue
defamation and abuse of process claims against Narducci based on his 2018 consumer complaint and will
address the other alleged communications separately.

Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                               Page 8 of 25
       wrong doctrine is most often argued in medical malpractice cases, where it has

       sometimes been successful but “has met with less success in other types of

       cases.” C & E Corp. v. Ramco Indus., Inc., 717 N.E.2d 642, 645 (Ind. Ct. App.

       1999). We conclude that the continuing wrong doctrine will not help Hall in

       this case.


[12]   Hall’s amended complaint includes myriad allegations of false communications

       by Shaw, Narducci, Alexander, Lolla-Martinez, and others made to WRTV,

       the Attorney General’s office, local law enforcement, and others. These

       allegations, however, do not represent a course of conduct that led to one injury

       from defamation—they make out a course of conduct that, if true, led to several

       distinct injuries. See Van Eaton, 697 N.E.2d at 494 (citing Weenig v. Wood, 169

       Ind. App. 413, 430 n.2, 349 N.E.2d 235, 246 n.2 (1976)) (“Generally, each

       individual publication is a separate defamation.”). Because Hall has not pled a

       course of conduct that led to a single injury, we conclude that the continuing

       wrong doctrine will not benefit him here. The trial court properly dismissed all

       defamation claims based on allegations of communications made before May

       22, 2016.

                                        3. Malicious Prosecution5
[13]   Hall contends that the trial court erred in dismissing his malicious prosecution

       claim against all Defendants, while Defendants seem to argue that Hall’s claims



       5
         To establish a case for malicious prosecution, “the plaintiff must prove ‘(1) the defendant instituted or
       caused to be instituted an action against the plaintiff; (2) the defendant acted maliciously in so doing; (3) the
       defendant had no probable cause to institute the action; and (4) the original action was terminated in the

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                      Page 9 of 25
       of malicious prosecution are absolutely barred because it was the prosecutor

       who made the final decision to file criminal charges, not them. Defendants rely

       primarily on three recent cases from this Court to support this argument, Bah v.

       Mac’s Convenience Stores, LLC, 37 N.E.3d 539 (Ind. Ct. App. 2015), trans. denied,

       Ali v. Alliance Home Health Care, LLC, 53 N.E.3d 420 (Ind. Ct. App. 2016), and

       Donovan v. Hoosier Park, LLC, 84 N.E.3d 1198 (Ind. Ct. App. 2017). To the

       extent that the trial court may have interpreted these cases to bar a malicious

       prosecution claim against a private citizen who reports allegedly criminal

       activity to the authorities, we conclude that such an interpretation is overbroad.

       In our view, the three recent cases relied upon by Defendants are entirely

       consistent with earlier cases stating that such claims may proceed if the facts of

       the case warrant.

[14]   In 1927, this Court issued Western Oil Refining Co. v. Glendenning, 90 Ind. App.

       631, 156 N.E. 182 (1927), which was the first Indiana case to conclude that a

       private individual who provided information to authorities that led to criminal

       charges, even maliciously and without probable cause, could, under certain

       circumstances, be shielded from liability for malicious prosecution. The

       Western Oil court made the following observations:


                There can be nothing improper in the conduct of any citizen who
                without malice reports to the proper official any violations of the
                criminal law of the state, and, if thereafter such officer makes an




       plaintiff’s favor.’” Donovan v. Hoosier Park, LLC, 84 N.E.3d 1198, 1209 (Ind. Ct. App. 2017) (quoting Ali v.
       Alliance Home Health Care, LLC, 53 N.E.3d 420, 431 (Ind. Ct. App. 2016)).

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                 Page 10 of 25
               independent investigation of the matter reported to him, and
               following such investigation returns an indictment or information
               against the party charged, it cannot be said that the party so
               reporting to the prosecuting attorney conduct which he believes
               to be a violation of the law is liable in damages because of the
               prosecution growing out of such investigation.


       Western Oil, 156 N.E. at 184. With that in mind, the Western Oil court

       concluded that “it must affirmatively appear that the parties sought to be

       charged [with malicious prosecution] were the proximate and efficient cause of

       maliciously putting the law in motion” in order for a malicious prosecution

       claim based on a criminal prosecution to succeed. Id. at 184-85 (citing Malloy v.

       Chicago, Milwaukee & St. Paul Ry. Co., 34 S.D. 330 (1914)).


[15]   Western Oil was applied by this Court in Barrow v. Weddle, 161 Ind. App. 601,

       316 N.E.2d 845 (1974), in which we stated the following:


               In the case at bar, the record reveals at most an inference that
               appellee in some manner communicated information to the
               prosecuting attorney which ultimately led or contributed to the
               filing of a charge of forgery. This inference alone could not
               sustain a finding that appellee ‘caused the prosecution’ in a sense
               which could result in liability in case of failure of conviction.


       Id. at 613, 316 N.E.2d at 853. So, Western Oil and Barrow both stand for the

       proposition that a malicious prosecution claim can be sustained if the plaintiff

       can establish that the defendant did, in fact, cause the criminal prosecution on

       which the later civil suit is based. See also Conwell v. Beatty, 667 N.E.2d 768, 778

       (Ind. Ct. App. 1996) (“First, none of the Big R defendants instituted or caused


       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 11 of 25
       to be instituted a prosecution against Conwell. The 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.”). Contrary to Defendants’

       argument, three of our more recent cases are consistent with this approach.


[16]   In Bah, the plaintiff was a convenience store manager suspected of theft by her

       employer, Mac’s, who reported its suspicions to the Indianapolis Metropolitan

       Police Department (“IMPD”). 37 N.E.3d 539. IMPD and the Marion County

       prosecutor’s office conducted their own investigation, which involved

       interviewing Bah’s former supervisor, after which the prosecutor charged Bah

       with theft. Id. After Bah was found not guilty of theft, she sued Mac’s for, inter

       alia, malicious prosecution. Id. We affirmed the trial court’s grant of summary

       judgment in favor of Mac’s, concluding that “[h]ere, Appellees did not institute

       or cause to be instituted the criminal action against Bah; the prosecutor did.”

       Id. at 547.

[17]   Ali involved a home healthcare worker who was charged with two counts of

       Class D felony theft based on allegations that she had stolen jewelry from

       patients. 53 N.E.3d 420. Prior to filing charges,


               IMPD conducted an investigation of both thefts and interviewed
               numerous witnesses and suspects, including Ali. Alliance and
               [outside investigator Larry] Logsdon cooperated by providing
               IMPD with the information gathered during Logsdon’s
               investigation. IMPD Detective Michael Schollmeier executed a
               probable cause affidavit implicating Ali as the perpetrator of both
               thefts.

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 12 of 25
               Marion County Deputy Prosecutor Robert Reel reviewed the
               evidence submitted by IMPD and concluded that probable cause
               existed to charge Ali with both thefts. A Marion Superior Court
               judge made a determination of probable cause and issued a
               warrant for Ali’s arrest.


       Id. at 426-27. Following her acquittal, Ali sued her former employer for, inter

       alia, malicious prosecution. Id. We affirmed the trial court’s grant of summary

       judgment in favor of the former employer, stating that “[i]n short, the

       prosecutor, not Appellees, initiated the action based on IMPD’s

       investigation[.]” Id. at 432.


[18]   Finally, in Donovan, Donovan was arrested, charged with, and acquitted of,

       inter alia, Class B misdemeanor disorderly conduct after allegedly struggling

       with Indiana Gaming Commission agents who had been informed by a casino

       that he had been banned from its premises. 84 N.E.3d 1198. Although alerted

       to Donovan’s presence by the casino, the disorderly conduct charge, at least,

       had little to do with the information provided by the casino, as it was based on

       behavior allegedly witnessed by the agents who were attempting to detain

       Donovan. The trial court presiding over Donovan’s subsequent malicious

       prosecution claim granted summary judgment in favor of the defendant casino,

       and we affirmed, stating that “[h]ere, the Hoosier Park Appellees did not

       institute or cause to be instituted the criminal action against Donovan; the

       prosecutor did.” Id. at 1209.

[19]   In Bah, Ali, and Donovan, summary judgement was entered in favor of the

       defendants because designated evidence of an intervening investigation

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020          Page 13 of 25
       established that the authorities were the proximate cause of the prosecution, not

       the person or entity who initially alerted the authorities. None of the three

       cases stated, or was based on the proposition, that such claims are barred. We

       decline Defendants’ seeming invitation to adopt a rule that claims of malicious
                                                                                             6
       prosecution based on a criminal charge are absolutely barred.

[20]   With this in mind, we turn to Hall’s claim of malicious prosecution against

       Defendants. As mentioned, dismissal for failure to state a claim under which

       relief can be granted is appropriate only “‘when the allegations present no

       possible set of facts upon which the complainant can recover[,]’” CRIT, 92

       N.E.3d at 666 (quoting Magic Circle, 72 N.E.3d at 922-23), and we conclude that

       this is not one of those cases. Hall alleges that “Shaw and Narducci,

       individually, and in their capacity as agents of CIPA, maliciously caused the

       Marion County Prosecutor’s office to initiate a felony prosecution against Hall

       by conspiring with [            ] Alexander, [ ] Lolla-Martinez[, and others] to provide

       false testimony to try to incriminate Hall for impersonating a public servant.”

       Appellant’s App. Vol. II, p. 48. If this claim is true—and we stress that we




       6
         In recent years, there have been several other malicious prosecution cases that made their way to this Court
       based on claims that a private party was the cause of a criminal prosecution, at least two of which had
       resulted in judgments in favor of the plaintiff, and none of which was resolved on the basis that such claims
       are barred. See, e.g., Chalfant v. Lods, 994 N.E.2d 740 (Ind. Ct. App. 2013) (affirming the denial of defendant’s
       motion for summary judgment), trans. denied; Waldrip v. Waldrip, 976 N.E.2d 102 (Ind. Ct. App. 2012)
       (reversing the grant of defendant’s motion to dismiss); Glass v. Trump Ind., Inc., 802 N.E.2d 461 (Ind. Ct. App.
       2004) (affirming judgment, entered after trial, in favor of defendant); Kroger Food Stores, Inc. v. Clark, 598
       N.E.2d 1084 (Ind. Ct. App. 1992) (affirming judgment, entered after trial, in favor of plaintiff), trans. denied;
       Duvall v. Kroger Co., 549 N.E.2d 403 (Ind. Ct. App. 1990) (affirming grant of summary judgment in favor of
       defendant); Lazarus Dep’t Store v. Sutherlin, 544 N.E.2d 513 (Ind. Ct. App. 1989) (affirming judgment in favor
       of plaintiff), trans. denied.

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                   Page 14 of 25
       must assume as much at this stage—it is sufficient to allow a finding that

       Defendants were the “proximate and efficient cause” of Hall’s prosecution. See

       Western Oil, 156 N.E. at 184. We therefore conclude that the trial court erred in

       dismissing Hall’s malicious prosecution complaint.

        4. Alexander’s and Lolla-Martinez’s Testimony and Out-of-
                Court Statements Made After May 22, 2016
[21]   Hall’s amended complaint contains the following allegations related to the

       testimony given, and out-of-court statements made by, Alexander and Lolla-

       Martinez:


                      79. On June 23, 2017, Lolla-Martinez testified during
               Hall’s criminal trial and provided these same or substantially
               similar false statements in Court that Hall impersonated a police
               officer and falsely testified that she had no knowledge of CIPA.


                       80. On June 23, 2017, Alexander testified during Hall’s
               criminal trial and provided these same or substantially similar
               false statements in Court that Hall impersonated a police officer.


               […]


                     82. Lolla-Martinez and [Alexander] made these
               statements at the direction of Shaw, Narducci, and CIPA.


                      83. Upon information and belief, during June of 2017,
               before the court proceeding, Lolla-Martinez communicated to
               others in the community outside of Court that Hall had
               impersonated a police officer.



       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 15 of 25
              84. Upon information and belief, Alexander
        communicated to others in the community outside of Court
        during June of 2017 before the court proceeding that Hall had
        impersonated a police officer.


              85. Upon information and belief, Lolla-Martinez
        communicated to others in the community outside of Court after
        the court proceeding on June 23, 2017, that Hall had
        impersonated a police officer.


              86. Upon information and belief, Alexander
        communicated to others in the community outside of Court after
        the court proceeding on June 23, 2017, that Hall had
        impersonated a police officer.


        […]


               88. Upon information and belief, Shaw and Narducci also
        encouraged Lolla-Martinez and Alexander to continue to
        communicate to others in the community that Hall impersonated
        a police officer after the court proceeding on June 23, 2017.


        [….]


               123. Upon information and belief, Lolla-Martinez and/or
        Alexander continued to communicate to others in the
        community that Hall impersonated a police officer after the court
        proceeding on June 23, 2017, at Shaw and Narducci’s direction
        as part of the conspiracy to continue to defame him and
        eliminate his competitive business.


              124. Shaw and Narducci, individually, and in their
        capacity as agents of CIPA, conspired with [ ] Alexander, [ ]


Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020        Page 16 of 25
               Lolla-Martinez, [and others] to defame Hall’s reputation by
               written and oral means.


                       125. Shaw and Narducci, individually, and in their
               capacity as agents of CIPA, conspired with [       ] Alexander,
               [ ] Lolla-Martinez [and others] to maliciously defame Hall’s
               reputation for the purpose of eliminating his competitive security
               agency to benefit CIPA’s business interest.


               […]


                      128. The aforementioned statements were defamatory per
               se against Hall because they implied and/or directly stated that
               Hall was committing a crime by impersonating a police officer[.]


       Appellant’s App. Vol. II, pp. 40-41, 45-46.


[22]   Hall contends that the trial court erred in concluding that Alexander’s and

       Lolla-Martinez’s testimony and alleged out-of-court statements cannot support

       defamation claims against Shaw, CIPA, and Narducci as part of an alleged civil

       conspiracy. Defendants argue that (1) Alexander’s and Lolla-Martinez’s

       testimony cannot form the basis of any defamation action as it is covered by

       absolute privilege; (2) Hall has failed to state any of these defamation

       allegations with sufficient specificity in his amended complaint; and (3) Hall

       has failed to sufficiently plead a civil conspiracy as to their testimony or out-of-

       court statements.




       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020           Page 17 of 25
                                               A. Trial Testimony

[23]   It is undisputed that Alexander’s and Lolla-Martinez’s trial testimony cannot

       support a defamation action against them because it is protected by absolute

       privilege. As mentioned, “Indiana law has long recognized an absolute

       privilege that protects all relevant statements made in the course of a judicial

       proceeding, regardless of the truth or motive behind the statements.” Hartman,

       883 N.E.2d at 777 (citations omitted). Hall contends, however, that the

       privilege does not extend to cover Defendants because none of them testified at

       his criminal trial. The Indiana Supreme Court, however, has stated that the

       privilege covers all relevant statements made in the course of a judicial

       proceeding, not the persons who made them. Id. If the statement is protected,
                                                                                                                      7
       it follows that it cannot be used to support a defamation action against anyone.


                                          B. Out-of-Court Statements

                                                   1. Specificity

[24]   Defendants contend that Hall’s allegations of defamation based on Alexander’s

       and Lolla-Martinez’s out-of-court statements are insufficiently specific to

       survive a motion to dismiss. Defendants rely on the following language from

       Trail v. Boys and Girls Clubs of Northwest Ind., 845 N.E.2d 130 (Ind. 2006):




       7
         Because we have concluded that Alexander’s and Lolla-Martinez’s trial testimony is protected by absolute
       privilege, we need not address Defendants’ argument that Hall failed to sufficiently plead that they falsely
       testified as part of a civil conspiracy with Defendants.

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                Page 18 of 25
               But even under notice pleading, a plaintiff must still set out the
               operative facts of the claim. Indeed, hornbook law stresses the
               necessity of including the alleged defamatory statement in the
               complaint. There is sound reason for this policy, as the absence
               of a statement in the complaint works a detriment on both the
               court and the defendant. The court is handicapped without the
               statement since, without it, the court cannot actually determine if
               the statement is legally defamatory. The defendant is placed on
               an unfair footing since the absence of the statement denies her
               the opportunity to prepare appropriate defenses.


               [….]


               Permitting defamation actions to proceed without the inclusion
               of the alleged statement would sanction claims brought by
               individuals who allege nothing more than that someone must
               have said something defamatory about them, or else they would
               not have been terminated or unable to secure new employment.
               While many of these individuals might have an actual grievance,
               merely making such an accusation does not establish a claim
               sufficiently to permit courts to determine its legal legitimacy.
               When all is said and done, Trail’s complaint is little more than an
               allegation of this nature. Consequently, we affirm the trial
               court’s dismissal of this claim.


       Id. at 136-38 (citations omitted).


[25]   Defendants seem to argue that this language requires the alleged statements to

       be included verbatim, but we do not think that Trail goes quite that far. While

       Trail establishes “the necessity of including the alleged defamatory statement in

       the complaint[,]” id. at 136, it conspicuously lacks the terms “verbatim,”

       “quotation,” or “in haec verba.” If the Trail court had intended to impose such a


       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020         Page 19 of 25
       strict requirement, it could easily have done so. Moreover, we do not see how a

       verbatim recitation is absolutely necessary to address the Trail court’s concerns

       that (1) the trial court needs to be able to determine whether an alleged

       statement is legally defamatory and (2) defendants need to be able to prepare

       appropriate defenses. We believe that a paraphrased statement—if it is

       sufficiently specific—can address these concerns just as effectively as a direct

       quotation.

[26]   That said, we turn to the pleadings in this case and conclude that Hall’s

       allegations regarding out-of-court statements by Alexander and Lolla-Martinez

       are sufficiently specific to survive a Trial Rule 12(B)(6) motion to dismiss.

       “False defamatory words, if written and published, constitute a libel; if spoken,

       a slander.” Branaman v. Hinkle, 137 Ind. 496, 502, 37 N.E. 546, 548 (1894)

       (citation omitted). Defamation may further be characterized as per se or per

       quod. “In the case of slander, a communication is defamatory per se under well-

       settled common law rulings if it imputes: 1) criminal conduct; 2) a loathsome

       disease; 3) misconduct in a person’s trade, profession, office, or occupation, or;

       4) sexual misconduct.” Baker v. Tremco Inc., 890 N.E.2d 73, 83 (Ind. Ct. App.

       2008) (citation omitted), affirmed in part, vacated in part on other grounds by Baker v.

       Tremco Inc., 917 N.E.2d 650 (Ind. 2009).

[27]   Hall alleges that Alexander and Lolla-Martinez “communicated to others in the

       community outside of Court [before and] after the court proceeding on June 23,

       2017, that Hall had impersonated a police officer.” Appellant’s App. Vol. II,

       pp. 40-41. The lack of a quoted statement does not prevent us from


       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020             Page 20 of 25
       determining that the statements, as alleged, clearly impute criminal conduct and

       are therefore defamatory per se, if true. By the same token, we think that the

       allegations are specific enough to allow Defendants to formulate potential

       defenses. In the end, Hall’s claims regarding Alexander’s and Lolla-Martinez’s

       out-of-court statements go far beyond the sorts of claims which concerned the

       Trail court, i.e., “claims brought by individuals who allege nothing more than

       that someone must have said something defamatory about them[.]” Trail, 845
                           8
       N.E.2d at 137.


                                               2. Civil Conspiracy

[28]   Hall contends that the allegedly false out-of-court statements of Alexander and

       Lolla-Martinez were made at the direction of Defendants, allowing a

       defamation claim to proceed against Defendants under a theory of civil

       conspiracy. “‘A civil conspiracy is a combination of two or more persons who

       engage in a concerted action to accomplish an unlawful purpose or to

       accomplish some lawful purpose by unlawful means.’” Birge v. Town of Linden,

       57 N.E.3d 839, 845 (Ind. Ct. App. 2016) (quoting Miller v. Cent. Ind. Cmty.

       Found., Inc., 11 N.E.3d 944, 962 (Ind. Ct. App. 2014), trans. denied). Indiana

       has no separate civil cause of action for conspiracy; however, there is a civil

       cause of action for damages resulting from a conspiracy. Sims v. Beamer, 757




       8
         We think that an absolute requirement that the statement be pled verbatim would frequently present
       problems in slander cases, where the transitory nature of the communication could make accurate
       recollection of the exact wording difficult or impossible, even if the clearly defamatory character of the
       communication is recalled with clarity.

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                   Page 21 of 25
       N.E.2d 1021 (Ind. Ct. App. 2001). In other words, allegations of a civil

       conspiracy are just another way of asserting a concerted action in the

       commission of a tort. Boyle v. Anderson Fire Fighters Ass’n Local 1262, AFL-CIO,

       497 N.E.2d 1073 (Ind. Ct. App. 1986), trans. denied. The Indiana Supreme

       Court has summarized the evidentiary requirements as follows: “It is not

       necessary in order to establish a conspiracy that there be direct evidence of an

       agreement. Rather, a civil conspiracy may be asserted through circumstantial

       evidence or by averment of isolated or independent facts susceptible of an

       inference of concurrence of sentiment.” Lake Mortg. Co., Inc. v. Fed. Nat. Mortg.

       Ass’n, 159 Ind. App. 605, 612, 308 N.E.2d 739, 744 (1974) (citations omitted),

       trans. denied.

[29]   We conclude that Hall’s allegations are sufficient to support claims of a civil

       conspiracy to defame Hall based on Alexander’s and Lolla-Martinez’s allegedly

       false out-of-court statements. Hall alleges that Alexander and Lolla-Martinez

       falsely testified that he had impersonated a police officer and that their out-of-

       court statements were consistent with their testimony. Hall also alleges that

       Alexander and Lolla-Martinez made their out-of-court statements at the

       direction of Defendants as part of a conspiracy to defame him and destroy his

       business. Hall’s allegations—which, again, must be taken as true at this stage of

       the proceedings—are sufficient to support a claim that Alexander’s and Lolla-

       Martinez’s out-of-court statements were defamatory and made in furtherance of

       a conspiracy involving Defendants.




       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020          Page 22 of 25
                               5. Civil Conspiracy with Regard to
                                Narducci’s July of 2018 Voicemail
                                                                                       9
[30]   Hall contends that the trial court erred in dismissing IIED claims against Shaw

       and CIPA related to Narducci’s voicemail, which he argues should be able to

       proceed on a theory of civil conspiracy. Hall alleges the following related to the

       voicemail:


                      161. At all times herein Shaw, Narducci, [and others]
                were acting as agents of CIPA and were co-conspirators.


                [….]


                       165. Additionally, Narducci, as an agent of CIPA, in
                furtherance of the conspiracy to inflict extreme emotional
                distress, left a voice mail for [Hall] on July 31, 2018, in response
                to the lawsuit, and said, in part, in a rude and threatening
                manner, “Guess what dumb*** you and your f****** probation
                license is going down the drain! Straight up. You suing me! I
                don’t give a f***! You know why because you engaged us into
                this bull****! You mother******* are done! For real. . . So
                when you play this f****** tape for your f****** lawyer, you let
                your lawyer know that this s*** ain’t going to be easy!
                Remember that. . . . If you think you mother******* know who




       9
         “Our Supreme Court has defined the tort of IIED as ‘one who by extreme and outrageous conduct
       intentionally or recklessly causes severe emotional distress to another.’” Westminster Presbyterian Church of
       Muncie v. Yonghong Cheng, 992 N.E.2d 859, 870 (Ind. Ct. App. 2013) (quoting Cullison v. Medley, 570 N.E.2d
       27, 31 (Ind. 1991)), trans denied. “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.”
       Id.

       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020                                  Page 23 of 25
               I am you better go down to that city-county building and keep
               checking mother******…” (Exhibit 35).


                      166. All of these wrongful actions herein were made in
               furtherance of the conspiracy to intentionally inflict emotional
               distress for the purpose of eliminating Hall’s competitive security
               business and caused Hall to sustain severe emotional distress.


                       167. CIPA has responsibility for all of the injuries and
               damages caused by the extreme, outrageous, and illegal actions
               of its agents: Shaw, Narducci, [and others] because all of these
               persons were conspiring together to intentionally cause Hall to
               suffer emotionally in furtherance of CIPA’s business interests to
               eliminate Hall as a competitor.


       Appellant’s App. Vol. II, pp. 50–52.


[31]   As mentioned, direct evidence of an agreement is not necessary to establish a

       civil conspiracy, which “may be asserted through circumstantial evidence or by

       averment of isolated or independent facts susceptible of an inference of

       concurrence of sentiment.” Lake Mortg. Co., 308 N.E.2d at 744. We conclude

       that Hall has met this threshold here, as he did with claims related to

       Alexander’s and Lolla-Martinez’s out-of-court statements. Hall alleges that

       Narducci left the July of 2018 voicemail as part of a conspiracy with Shaw and

       others, as agents of CIPA, to intentionally inflict emotional distress on Hall in

       furtherance of their interest in eliminating Hall as a business competitor. We

       conclude that these allegations are sufficient to state a claim upon which relief

       may be granted.



       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020          Page 24 of 25
[32]   To summarize, we conclude that the trial court erred in denying Defendants’

       motion to dismiss Hall’s defamation and abuse of process claims based on

       Narducci’s July of 2018 consumer complaint with the Attorney General’s

       office. Moreover, we conclude that the trial court correctly dismissed Hall’s

       defamation claims based on (1) alleged events that occurred before May 22,

       2016, and (2) Alexander’s and Lolla-Martinez’s trial testimony. Finally, we

       conclude that the trial court erred in dismissing Hall’s (1) malicious prosecution

       claims against all Defendants based on his criminal prosecution, (2) defamation

       claims against all Defendants based on Alexander’s and Lolla-Martinez’s out-

       of-court statements made before and after Hall’s criminal trial, and (3) IIED

       claims against Shaw and CIPA based on Narducci’s July of 2018 voicemail.

       We remand for further proceedings consistent with this opinion.

[33]   The judgment of the trial court is affirmed in part and reversed in part, and we

       remand for further proceedings.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-2533 | May 21, 2020        Page 25 of 25
