                                                                                     FILED
                                                                               08/22/2017, 10:42 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Corinne R. Finnerty                                       Susan M. Salyer
McConnell Finnerty PC                                     Patsfall, Yeager & Pflum
North Vernon, Indiana                                     Cincinnati, Ohio



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Hrezo and Hrezo                                    August 22, 2017
Engineering, Inc.,                                        Court of Appeals Case No.
                                                          15A01-1612-CT-2957
Appellants-Plaintiffs,
                                                          Appeal from the Dearborn/Ohio
        v.                                                Circuit Court
                                                          The Honorable Jon W. Webster,
                                                          Special Judge
City of Lawrenceburg,
                                                          Cause No. 15C01-0607-CT-23
Appellee-Defendant.




Bradford, Judge.




Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017                   Page 1 of 22
                                           Case Summary
[1]   Appellants-Plaintiffs Hrezo Engineering, Inc. (“HEI”), and Robert Hrezo

      (collectively, “Appellants”) appeal from the judgment entered in favor of

      Appellee-Defendant the City of Lawrenceburg (“the City”). Robert established

      HEI in 1983 and, from at least 1997 until 2005, HEI worked on several

      construction projects for the City and/or its agencies, billing several million

      dollars over that period. In 2003, Tom Steidel began his tenure as City

      Manager, charged with assisting the mayor and the City’s government.


[2]   Over the next couple of years, issues developed with HEI’s work for the City,

      and several projects were terminated or suspended. Among the issues were

      concerns about possible overbilling and overstaffing and substandard work. In

      March of 2005, City Manager Steidel prepared a memorandum summarizing

      his concerns about HEI’s work and distributed it to the Mayor, the City

      Council, the City’s Clerk-Treasurer, and the City’s Board of Works. Later in

      2005, the decision was made to stop using HEI for City projects.


[3]   In 2006, Appellants sued the City, alleging tortious interference, defamation,

      interference with prospective business advantage, and violations of Indiana’s

      RICO statutes. Ultimately, the trial court granted summary judgment in favor

      of the City on the tortious interference, interference with prospective business

      advantage, RICO, and defamation per se claims, leaving defamation per quod the

      only claim remining for trial. Following trial, the jury returned a verdict in

      favor of the City, and the trial court denied Appellants’ motion to correct error.


      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 2 of 22
[4]   Appellants contend that the trial court erred in (1) granting summary judgment

      in favor of the City on Appellants’ defamation per se claim, (2) granting

      summary judgment in favor of the City on Appellants’ tortious interference

      claim, (3) excluding proffered testimony regarding Appellants’ alleged damages,

      (4) refusing to deliver Appellants’ proposed jury instruction on publication, and

      (5) refusing to include several allegedly defamatory statements on a verdict form

      given to the jury. Because we conclude that Appellants’ claims are without

      merit, we affirm.



                             Facts and Procedural History
[5]   Robert is the sole owner of HEI, which he established in 1983 and whose

      operations he oversees. In 1997, Robert was appointed City Engineer for the

      City, and HEI worked on approximately ninety-five projects for the City from

      1997 to 2005, including such projects as the Lawrenceburg Police Station, three

      swimming pools, and work on the Lawrenceburg levy system. Altogether, HEI

      billed the City over $3.5 million from 1997 to 2005. During this time,

      Appellants also worked with Mel Davis, the City’s utilities director.


[6]   On January 1 or 2, 2003, City Manager Steidel began his tenure. City Manager

      Steidel’s job was to bring a “professional management process as a proponent

      to the City [and] assist the Mayor, and the Council[.]” Tr. Vol. II p. 136. City

      Manager Steidel was supposed to “manage contracts that the City was engaged

      in and in some cases develop contracts that the City would enter into.” Tr. Vol.

      II p. 136. In November of 2003, William Cunningham was elected Mayor of

      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 3 of 22
      the City and took office on January 1, 2004. On the first day of Mayor

      Cunningham’s tenure, City Manager Steidel decided that he was terminating or

      putting on hold fifteen of HEI’s thirty-three to thirty-five ongoing projects.


[7]   Among the projects HEI worked on for the City was Todd-Creech Park, which

      was a drainage basin that was to be converted into a recreational area. At the

      time, Mario Todd was an independent contractor working with HEI. Todd

      served as an inspector on the Todd-Creech project along with another inspector

      from HEI. City Manager Steidel told Robert that he only wanted one inspector

      on the Todd-Creech jobsite, because, in City Manager Steidel’s view, the park

      was not large enough to require two inspectors and there were “a lot of days I

      went over there, there was very little going on.” Tr. Vol. II p. 142. City

      Manager Steidel also told Hrezo to begin bringing one representative to Todd-

      Creech construction meetings when he had been bringing up to five. Director

      of engineering for the City Michael Clark noted later that there had been

      problems with HEI’s work on the Todd-Creech project, including “major de-

      watering issues” caused by a breached aquifer and baseball field that would not

      drain properly because it had been designed “table top flat[.]” Tr. Vol. II p.

      119.


[8]   In 2004, Todd was working with HEI performing inspections on City building

      projects, including those worked on by a company called Fortune Management,

      which was working with the City’s redevelopment commission to rehabilitate

      and sell older structures. In early 2004, it came to Todd’s attention that there

      were questions about one particular project that HEI had approved. HEI had

      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 4 of 22
      issued an American Institute of Architects (“AIA”) document for a house on 19

      Williams Street in the City indicating that new windows and cabinets had been

      installed. The address, however, was an empty lot. When Todd confronted

      Robert and his son Mike about the AIA document, Robert told him that City

      Manager Steidel had told him to sign it. Todd resigned from HEI that day and

      was later hired by the City to perform in-house inspections.


[9]   On March 3, 2005, in anticipation of an executive session meeting at which

      Robert was expected to complain about his mounting issues with the City, City

      Manager Steidel issued a memorandum to Mayor Cunningham, the City

      Council, the City’s Clerk-Treasurer, and the Board of Works (“the Steidel

      Memo”), which provides, in relevant part, as follows:

              To:               Mayor & City Council, Clerk-Treasurer, Bd. Of
              Works
              From:             Tom Steidel, City Manager
              Date:             March 3, 2005
              Subject:          Hrezo Engineering Billing Issues
              I must apologize for being absent for Tuesday night’s X-session
              but the beaches call. Mr. Hrezo is appearing before Council &
              The Board of Works to protest what he says is my refusal to pay
              his firm for services rendered. That is not exactly the case. I
              have called in to question several of his bills to the city while
              promptly paying others. I have asked him to consider amending
              some of his billings to reflect problems on the job that his firm
              has some responsibility for. So far he has failed to do so.
              Mr. Hrezo and I have been having discussions for quite some
              time about his billing tendencies. First he bills quarterly instead
              of monthly and only recently has submitted time cards.

      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017    Page 5 of 22
        Unfortunately, the review of the time cards only reinforces my
        view that he deploys way more employees to our jobs than is
        warranted. Todd[-]Creech Park is a classic example where he
        has insisted on deploying two inspectors day after day after day.
        The park just isn’t big enough to warrant that level of coverage
        nor was a lot of work being done. Sometimes there was none at
        all but the inspectors were there.
        Mr. Hrezo bills out his inspectors at $55 per hour I believe and
        pays approximately $25 per hour. For two inspectors at those
        rates Hrezo Engineering would collect $60 for every hour the two
        inspectors were deployed. In addition, he has continued to bring
        as many as five (5) persons to our construction meetings. I have
        discussed these issues with Mr. Hrezo on numerous occasions
        and I guess his most common response is that he needs these
        resources to get his work done.
        We have paid Hrezo engineering a total of $335,029 during 2004
        including a December bill for $86,141 for work on Todd-Creech
        Park. We now have a February bill for $51,577. The make up of
        those bills is as follows:
        December Billing
        Principal Engineer                 179.50 hrs        @ $85 Hr.       $15,257.50
        Chief Engineer                     397.50 hrs. @$75 Hr.              $29,812.50
        Engineer 2                         150 hrs.          @$65 Hr.        $9750.00
        Senior Field Tech                  477.5 hrs.        @355 Hr.        $26262.50
        Technician 2                       51 hrs.           @$50 Hr.        $2550.00
        Structural Consult                 22.50 hrs.        @5595 HI. $2,137.50
        Structural Consult                 3 hrs.            @$113 Hr. $339.00
        UPS Charges                                                          $32.40
                                                             Total           $86,141.40
        As I analyze this I have to wonder why we are still paying these
        huge engineering and design charges ($57,295) when the design
        was done a year ago. This billing period was for 82 days.

Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017                Page 6 of 22
        The February bill for Todd-Creech, covering only 64 days is
        $51,577. This bill contains 420 hours of Senior Field Inspection
        and 40.75 hours of Technician 2 time. Engineering services
        appear to cost $26,439. I remind [you] that this is a project that
        was basically designed in 2003 and supposed to be constructed in
        2004. Here we are in 2005 still paying for engineering services. I
        suspect that many of these engineering hours are to re-engineer,
        correct, add to, or amend his original plan. If that is true, Hrezo
        Engineering should take some responsibility for these expenses.
        In addition to the above bills Hrezo Engineering also billed the
        contractor for an additional $8000 for capping the w[e]lls at
        Todd-Creech Park. The contractor has refused to pay the bill
        and I assume it will fall to us if it is not paid. There were
        engineers with the well-capping companies and H.C. Nutting
        was the engineer in charge. I’m not exactly sure what Hrezo
        Engineering was doing for $8000.
        The Fire Station is another project that I asked Mr. Hrezo for
        clarification. Our bill for the December billing was $7141.75 of
        which $6333 was for engineering services and $440 for
        inspection. The February bill was for $2462 all of which appear
        to be engineering services. I had returned the December bill and
        asked Mr. Hrezo to critically review it. As you know we have
        some construction issues at this location. Problems such as the
        truss welds which I believe we are being charged to have Hrezo
        inspect when we have previously paid his inspector to been the
        site, and inspecting, the truss installation. We should not have to
        pay again.
        There were several other December bills that I questioned which
        have since been paid.
        Recently I received a bill for $18,492.94 for the Ivy Tech
        Retaining Wall. This invoice covers the period from 1/5/04 thru
        2/10/05. This billing is unusually [sic] since it covers 13 months
        as opposed to the normal quarterly billing cycle. This project
        was finished as of 12/31/03 when I told both the contractor Roy



Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 7 of 22
        A. Miller and Mr. Hrezo that work must stop as the project
        appeared to be finished.
        Since that time you may know that there are problems with the
        wall. I did not authorize Hrezo Engineering to do $18,492 worth
        of work on this project and have no clue what they accomplished
        except to throw the blame for the wall problems on others. It is a
        fact that the wall is failing to some degree and Hrezo Engineering
        was the principle [sic] representative of the City of
        Lawrenceburg. For him to fail to accept some measure of
        responsibility for this problem seems odd.
        Lately what I have asked Mr. Hrezo is to try to explain to me
        what work he has done that actually accomplishes objectives for
        the city. On all three of these projects, there is difficulty seeing
        any real production for the amount of money we are paying. The
        Fire Station continues to be a problem. Todd-Creech Park
        speaks for itself and the Ivy Tech wall problem could dwarf the
        other two issues in financial impact.
        Finally, I am ending our association with Hrezo Engineering on
        the Rte. 50 Gateway project. A review of the plans indicate that
        the project scope has gotten larger than what is appropriate.
        Therefore, after in-house discussion with Mike Clark, Mario
        Todd and Mel Davis, we have decided to handle the project in-
        house. Hrezo Engineering will be paid for the work they have
        done up to this point.
        I would suggest that any further work with Hrezo Engineering be
        assigned in writing and be very task and objective oriented. I
        would also put “not to exceed numbers” into the contract to
        guard against the kind of problems we are having on the three
        jobs outlined above. I have asked for additional, subjective
        information regarding these three projects and as of yet I haven’t
        been given anything that would change my mind that the
        numbers submitted are too high[.]
Appellant’s App. Vol. II 137–39.



Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 8 of 22
[10]   In July of 2005, City Manager Steidel allegedly stated in a City Council meeting

       that HEI did “bad work.” Tr. Vol. I p. 205. In August of 2005, after a

       development deal with the City for the renovation of a City-owned building fell

       through, Robert filed an unrelated complaint against the City. At that point,

       Clark decided to stop using HEI for any City projects.


[11]   On July 3, 2006, Appellants filed suit against the City, alleging tortious

       interference, defamation, interference with prospective business advantage, and

       violations of Indiana’s RICO statutes. On September 30, 2009, the City moved

       for summary judgment. On June 30, 2011, the trial court granted summary

       judgment in favor of the City on the tortious interference, interference with

       prospective business advantage, and RICO claims. On January 13, 2012, the

       City filed a second summary judgment motion. On March 9, 2012, the trial

       court granted the City’s summary judgment motion as it pertained to

       Appellants’ claim of defamation per se, leaving defamation per quod the only

       claim remining for trial.


[12]   On March 19, 2012, the City filed a motion in limine seeking to exclude

       testimony concerning the amount of HEI’s damages based on past income

       received from the City. On September 6, 2016, the trial granted the City’s

       motion in limine in part “to the extent Plaintiffs intend to present evidence,

       written and oral, from anyone other than Mr. Robert Hrezo.” Appellant’s App.

       Vol. IV p. 196.




       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 9 of 22
[13]   Jury trial was held on September 19, 20, 22, 23, and 26, 2016. During trial,

       Appellants made an offer of proof of testimony and a report prepared by CPA

       John Race regarding Appellants’ claimed damages. Appellants also tendered a

       proposed verdict form, which included nineteen allegedly defamatory

       statements for consideration by the jury. The trial court omitted ten of the

       nineteen statements from the verdict form. Appellants also tendered an

       instruction on publication which the trial court declined to give. On September

       26, 2016, the jury returned a verdict in favor of the City, finding that none of

       the communications about which it had been instructed were defamatory. The

       jury indicated its findings on the verdict form by circling “NO” for each of the

       communications:

               If you decide in favor of Hrezo Engineering, Inc., indicate the
               specific find to communications that you be defamatory by
               circling YES to indicate that you do find the communication to
               be defamatory or NO to indicate that you do not find the
               communication to be defamatory:
               YES NO            1. March 3, 2005 Memo (“memo”): “I have asked
                                 him to consider amending some of his billings to
                                 reflect problems on the job that this firm has some
                                 responsibility for. So far he has failed to do so.”
               YES NO            2. Memo: “Unfortunately, the review of the time
                                 cards only reinforces my view that he deploys way
                                 more employees to our jobs than is warranted.
                                 Todd Creech Park is a classic example where he has
                                 insisted on deploying two inspectors day after day
                                 after day. The park just isn’t big enough to warrant
                                 that level of coverage nor was a lot of Work being
                                 done. Sometimes there was none at all but the
                                 inspectors were there.”

       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 10 of 22
               YES NO            3. Memo: “Problems such as the truss welds which
                                 I believed we are being charged to have Hrezo
                                 inspect when we have previously paid his inspector
                                 to be on the site, and inspecting, the truss
                                 installation. We should not have to pay again.”
               YES NO            4. Memo: “On all three of these projects, there is
                                 difficulty seeing any real production for the amount
                                 of money we are paying. The Fire Station continues
                                 to be a problem. Todd-Creech Park speaks for itself
                                 and the Ivy Tech wall problem could dwarf the
                                 other two issues in financial impact.”
               YES NO            5. Tom Steidel reported $1,517,432.28 in additional
                                 charges at the December 13, 2004 MDF budget
                                 work session regarding the Ludlow Hill Street
                                 project.
               YES NO            6. March 3, 2005 Memo: “As I analyze this I have
                                 to wander why we are still paying these huge
                                 engineering and design charges ($57,295) when the
                                 design was done a year ago. The billing period was
                                 for 82 days.”
               YES NO            7. In a July 5, 2005 meeting of the City Council
                                 Tom Steidel stated in the presence of other Council
                                 members that Hrezo Engineering did bad work.
               YES NO            8. Hrezo Engineering was accused of calling
                                 FEMA. Hrezo denies making the call.
               YES NO            9. Mario Todd, Tom Steidel and Mel Davis all
                                 accused Hrezo Engineering of performing bad work
                                 at Todd-Creech Park. Hrezo denies this accusation.
[14]   Appellant’s App. Vol. II p. 42. On October 25, 2016, Appellants filed a motion

       to correct error, which the trial court denied on November 30, 2016.


                                  Discussion and Decision

       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 11 of 22
[15]   Appellants contend that the trial court erred in (1) granting summary judgment

       in favor of the City on Appellants’ defamation per se claim, (2) granting

       summary judgment in favor of the City on Appellants’ tortious interference

       claim, (3) excluding Race’s testimony regarding Appellants’ alleged damages,

       (4) refusing to deliver Appellants’ proposed jury instruction on publication, and

       (5) refusing to include several allegedly defamatory statements on the verdict

       form.


                     Standard of Review for Denial of Motion to Correct Error

[1]    Appellants appeal from the trial court’s denial of their motion to correct error.


               In general, we review a trial court’s ruling on a motion to correct
               error for an abuse of discretion. Hawkins v. Cannon, 826 N.E.2d
               658, 661 (Ind. Ct. App. 2005), trans. denied. However, to the
               extent the issues raised by the City are purely questions of law,
               our review is de novo. See Ind. BMV v. Charles, 919 N.E.2d 114,
               116 (Ind. Ct. App. 2009) (“Although rulings on motions to
               correct error are usually reviewable under an abuse of discretion
               standard, we review a case de novo when the issue … is purely a
               question of law.”)[.]
[2]    City of Indpls. v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct. App. 2010), trans. denied.

       Standards of review applicable to Appellants’ specific claims will be noted in

       the appropriate section.


                                  Standard of Review for Issues I and II

[3]    In issues I and II, Appellants contend that the trial court erred in granting

       summary judgment in favor of the City.



       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 12 of 22
              When reviewing a grant or denial of a motion for summary
              judgment our standard of review is the same as it is for the trial
              court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4 (Ind. 2010). The
              moving party “bears the initial burden of making a prima facie
              showing that there are no genuine issues of material fact and that
              it is entitled to judgment as a matter of law.” Gill v. Evansville
              Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012).
              Summary judgment is improper if the movant fails to carry its
              burden, but if it succeeds, then the nonmoving party must come
              forward with evidence establishing the existence of a genuine
              issue of material fact. Id. In determining whether summary
              judgment is proper, the reviewing court considers only the
              evidentiary matter the parties have specifically designated to the
              trial court. See Ind. Trial R. 56(C), (H). We construe all factual
              inferences in the non-moving party’s favor and resolve all doubts
              as to the existence of a material issue against the moving party.
              Plonski, 930 N.E.2d at 5. The fact that the parties have filed
              cross-motions for summary judgment does not alter our standard
              for review, as we consider each motion separately to determine
              whether the moving party is entitled to judgment as a matter of
              law. Hardy v. Hardy, 963 N.E.2d 470, 473 (Ind. 2012).
      Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).


                                             I. Defamation
[4]   Appellants argue that the trial court erred in granting summary judgment in

      favor of the City on their claim of defamation per se.


              To establish a claim of defamation, a “plaintiff must prove the
              existence of ‘a communication with defamatory imputation,
              malice, publication, and damages.’” Trail v. Boys & Girls Clubs of
              N.W. Ind., 845 N.E.2d 130, 136 (Ind. 2006) (quoting Davidson v.
              Perron, 716 N.E.2d 29, 37 (Ind. Ct. App. 1999), trans. denied). A
              statement is defamatory if it tends “to harm a person’s reputation
              by lowering the person in the community’s estimation or

      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 13 of 22
              deterring third persons from dealing or associating with the
              person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007)
              (internal citation omitted). One type of defamation action,
              alleging defamation per se, arises when the language of a
              statement, without reference to extrinsic evidence, constitutes an
              imputation of (1) criminal conduct, (2) a loathsome disease, (3)
              misconduct in a person’s trade, profession, office, or occupation,
              or (4) sexual misconduct. Id.; see also Rambo v. Cohen, 587 N.E.2d
              140, 145 (Ind. Ct. App. 1992), trans. denied; Elliott v. Roach, 409
              N.E.2d 661, 683 (Ind. Ct. App. 1980), trans. not sought. In
              contrast, if the words used are not defamatory in themselves, but
              become so only when understood in the context of extrinsic
              evidence, they are considered defamatory per quod. McQueen v.
              Fayette County Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999),
              trans. denied. In actions for defamation per se, damages are
              presumed, but in actions for defamation per quod, a plaintiff must
              prove damages. Rambo, 587 N.E.2d at 145–46.
      Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010). “Whether a

      communication is defamatory is a question of law for the court, unless the

      communication is susceptible to either a defamatory or non-defamatory

      interpretation-in which case the matter may be submitted to the jury.” Baker v.

      Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009).


[5]   Appellants argue that designated statements, including many drawn from the

      Steidel Memo, are per se defamatory. Appellants, however, do not identify any

      specific statements in their argument, noting only that “[t]he statements made

      by Steidel and others all related to Hrezo’s work for the City and falsely accused

      Hrezo of overcharging; using more workers than were necessary; being

      responsible for problems with the Ivy Tech wall; inappropriately expanding the

      scope of the Gateway project and doing unnecessary work.” Appellant’s Br. p.

      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 14 of 22
      28. Even assuming that such statements were made and that Appellants

      accurately characterize them, none of the above amounts to defamation per se.

      Put another way, none of the above constitutes an allegation of misconduct on

      its face, as all of it could just as easily have been caused by mistake or

      incompetence. Put another way, Appellants would have to depend on extrinsic

      evidence to establish that any of the above was defamatory, rendering it, at best,

      defamation per quod. The trial court did not err in this respect.


                                    II. Tortious Interference
[6]   Appellants also contend that the trial court erred in entering summary judgment

      in favor of the City on their tortious interference claim. Specifically, they argue

      that a utility service board is a separate entity from a municipality under

      Indiana law, they did work for the City’s utility service board, and several City

      agents interfered with that work.


              The elements of an action for tortious interference with a
              contract are: (1) the existence of a valid and enforceable contract;
              (2) defendant’s knowledge of the existence of the contract; (3)
              defendant’s intentional inducement of breach of the contract; (4)
              the absence of justification; and (5) damages resulting from
              defendant’s wrongful inducement of the breach.
      Levee v. Beeching, 729 N.E.2d 215, 221 (Ind. Ct. App. 2000). However, “[a]

      party cannot ‘interfere’ with its own contracts, so the tort itself can be

      committed only by a third party.” Trail, 845 N.E.2d at 138.


[7]   The City argues that Appellants raise this issue for the first time on appeal. It is

      well-settled that “[i]ssues not raised before the trial court on summary judgment

      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 15 of 22
      cannot be argued for the first time on appeal and are waived.” Dunaway v.

      Allstate Ins. Co., 813 N.E.2d 376, 387 (Ind. Ct. App. 2004). Appellants’ claim

      that they did work for the City’s utility service board was not raised or litigated

      below and is consequently waived for appellate consideration.


                          III. Exclusion of Expert Testimony
[8]   Appellants contend that the trial court abused its discretion in excluding the

      testimony of Race regarding their claimed damages.


              The admission and exclusion of evidence falls within the sound
              discretion of the trial court, and this court reviews those decisions
              only for an abuse of that discretion. See Wilson v. State, 765
              N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs
              when the trial court’s decision is against the logic and effect of
              the facts and circumstances before the court. Carpenter v. State,
              786 N.E.2d 696, 702–03 (Ind. 2003). When we review for an
              abuse of discretion, we do not reweigh the evidence. K.S. v.
              Marion County Dep’t of Child Servs., 917 N.E.2d 158, 162 (Ind. Ct.
              App. 2009).
      Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 38 (Ind. Ct. App. 2010), trans. denied.


[9]   We conclude that any error the trial court may have made in excluding Race’s

      evidence was harmless. “An error is harmless when the probable impact of the

      erroneously admitted or excluded evidence on the factfinder, in light of all the

      evidence present, is sufficiently minor so as not to affect a party’s substantial

      rights.” Kimbrough v. Anderson, 55 N.E.3d 325, 334 (Ind. Ct. App. 2016), trans.

      denied. Quite simply, the question of damages was rendered moot by the jury’s

      finding that none of statements alleged to be defamatory by Appellants were, in


      Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 16 of 22
       fact, defamatory. Without defamation, there can be no damages, rendering any

       evidence relating to the question, which would have included Race’s testimony

       and report, irrelevant.


                                        IV. Jury Instructions
[10]   Appellants contend that the trial court abused its discretion in declining to give

       a tendered jury instruction on publication.


               The giving of jury instructions is a matter within the sound
               discretion of the trial court, and we review the trial court’s refusal
               to give a tendered instruction only for an abuse of that discretion.
               See Control Techniques, Inc. v. Johnson, 737 N.E.2d 393 (Ind. Ct.
               App. 2000), trans. pending. Such an abuse of discretion occurs
               only when: 1) the instruction correctly states the law; 2) the
               evidence supports the instruction; and 3) the substance of the
               instruction is not covered by other instructions. Id. Further,
               even if refusal of a tendered instruction is error, we will not
               reverse unless the failure to give the instruction substantially and
               adversely affected the party’s substantial rights so as to likely
               have affected the result. Epperly v. Johnson, 734 N.E.2d 1066
               (Ind. Ct. App. 2000).
       Merida v. Cardinal, 749 N.E.2d 605, 607 (Ind. Ct. App. 2001).


[11]   Appellants proffered the following jury instruction on publication:

               The communication within the scope of his employment by one
               (1) agent to another agent of the same principal is a publication
               by the principal. Evaluation information communicated within
               the City of Lawrenceburg to management personnel may be
               considered published for purposes of this action.
       Tr. Vol. III pp. 70–71.


       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 17 of 22
[12]   While we agree with Appellants that publication (for purposes of defamation)

       can occur between agents of the same principal, see, e.g., Bals v. Verduzco, 600

       N.E.2d 1353, 1355 (Ind. 1992) (“When intracompany communications injure

       an employee’s occupational reputation, the result may be among the most

       injurious of defamations.”), that does not help them here. As mentioned, the

       jury specifically found that none of the statements submitted to it were

       defamatory, so it matters little who communicated them to whom. Even if we

       assume, arguendo, that the proffered instruction was proper, any error the trial

       court may have committed in this regard can only be considered harmless. See,

       e.g., Kimbrough, 55 N.E.3d at 334.


                         V. Allegedly Defamatory Statements
[13]   Appellants contend that the trial court abused its discretion in refusing to

       include six additional, allegedly defamatory statements on the verdict form,

       which, as given to the jury, contained nine.

               It is a question of law for the court to decide whether a statement
               considered in its entirety is capable of possessing a defamatory
               meaning or implication. [Woods v. Evansville Press Co., 791 F.2d
               480, 485 (7th Cir. 1986)] (citing Rose v. Indianapolis Newspapers,
               Inc., 213 F.2d 227, 229 (7th Cir.1954)). If a statement is
               susceptible to both defamatory and non-defamatory meanings,
               the matter of interpretation should be left to the jury. Id. In
               order to impose liability for defamation, the United States
               Constitution requires a false statement of fact. [Heeb v. Smith, 613
               N.E.2d 416, 421 (Ind. Ct. App. 1993) (citing Hustler Magazine v.
               Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed.2d 41 (1988)), trans.
               denied.]


       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 18 of 22
       Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 457 (Ind. 1999). We

       address the allegedly defamatory statements in turn.


                                             A. Statement #3
[14]           3.     Memo: Ivy Tech retaining wall; [“]I did not authorize
               Hrezo Engineering to do $18,492 worth of work on this project
               and have no clue what they accomplished except to throw blame
               for the wall problems on others.”…. Memo: “For him to fail to
               accept some measure of responsibility for this problem seems
               odd.”
       Appellant’s App. Vol. II pp. 68.


[15]   Robert himself testified that City Manager Steidel told him to stop work on the

       Ivy Tech wall but that he did not. Robert also testified that he learned at some

       point that another company who issued an incorrect report on pressures exerted

       on the wall from soil was felt to be responsible for design problems with the

       wall and admitted that he brought that to the City’s attention. In other words,

       Appellants did, in fact, “throw blame” on others for problems with the wall.

       Robert also admitted that he did not accept responsibility for problems with the

       wall, testifying that “[w]e had no[] responsibility for those failures.” Tr. Vol. I

       p. 188. Steidel’s statement that this refusal seemed “odd” is an opinion that is

       not capable of being false.


                                              B. Statement #5
[16]           5.     Memo: “In addition to the above bills Hrezo Engineering
               also billed the contractor for an additional $8,000 for capping the
               w[e]lls at Todd-Creech Park.[”]
       Appellant’s App. Vol. II pp. 68.
       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 19 of 22
[17]   Robert testified that he did, in fact, bill this amount for capping the wells at

       Todd-Creech Park, saying, “We turned the bill over to the contractor who

       refused to pay it.” Tr. Vol. I p. 177. Robert conceded that this statement was

       not false.


                                             C. Statement #9
[18]           9.     Memo: re: Gateway; “A review of the plans indicate that
               the project scope has gotten larger than what is appropriate.”
       Appellant’s App. Vol. II pp. 68.


[19]   We conclude that this statement is far too vague to be defamatory. It is

       sufficient to note that it does not identify a cause for the enlargement of the

       Gateway project’s scope, much less attempt to blame Appellants.


                                    D. Statements #17 and #18
[20]           17. July 11, 2005 minutes of the meeting of the Lawrenceburg
               Redevelopment Commission. Page 3, Tom Steidel represents to
               the Commission and others at the meeting that Bob Hrezo has
               “no absolute plans”, that he “keeps changing his deals” and that
               “he was okay with $21,000.00 for the roof repair and now he
               wants more.” Bob Hrezo will testify that those representations
               were false and that Mr. Steidel was well aware of their falsity.
               18. July 27, 2005 minutes of the meeting of the Lawrenceburg
               Redevelopment Commission, Page 4, Mr. Steidel once again
               misrepresented concerning the roof at McCullough Drug
               Building and the $21,000.00 cost for the roof repair. Bob Hrezo
               was present at the meeting when this was presented to the
               Commission.
       Appellant’s App. Vol. II pp. 69.


       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 20 of 22
[21]   The above apparently relates to the redevelopment project that gave rise to the

       unrelated lawsuit Appellants filed against the City in 2005. See Hrezo v. City of

       Lawrenceburg, 934 N.E.2d 1221, 1226 (Ind. Ct. App. 2010), trans. denied. As the

       City points out, however, the minutes of the City’s Redevelopment

       Commission were not entered into evidence during this trial. The only evidence

       at all relating to a $21,000 payment for roof repair was the following exchange

       during Robert’s testimony:


               [Appellants’ Counsel]. The issue was with regard to the roof and
               in one (1) of the statements that Mr. Steidel made about the roof
               during a meeting of the LRC (Lawrenceburg redevelopment)[.]
               [W]hat was false about that statement that he made in that public
               meeting?
               [Robert]. That the twenty-one thousand ($21,000) dollars for the
               roof had been on all the development agreements to this point,
               which was incorrect, it only came up on the development
               agreement.
       Tr. Vol. I p. 209. This evidence falls far short of supporting the inclusion of

       statements 17 and 18 on the verdict form.


                                             E. Statement #19
[22]           19. Memo from Tom Steidel to Bob Hrezo dated September
               16, 2005. Mr. Steidel questions an invoice for Roy A. Miller &
               Sons, dated January, 2004. Mr. Steidel states the following:
                        “I am not sure why you would approach us at this late
                        date to pay this amount. In addition, you have billed us
                        for $127.50 which I assume relates to preparing this bill.
                        That sum cannot be paid either since the work cannot be
                        verified.”
       Appellant’s App. Vol. II pp. 69.

       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017    Page 21 of 22
[23]   Put simply, the proffered statement indicates that it is taken from a

       memorandum from City Manager Steidel to Robert, and there is no evidence

       that anyone else received it. Because there is no evidence of publication,

       inclusion of the statement was not supported by the record. Appellants have

       failed to establish that the trial court erred in refusing the include the six

       proffered statements on the verdict form.



                                                Conclusion
[24]   We conclude that the trial court did not err in granting summary judgment in

       favor of the City on Appellants’ tortious interference and defamation per se

       claims. We further conclude that the trial court did not abuse its discretion in

       disallowing Race’s proffered evidence on damages and that any error it may

       have committed in instructing the jury on publication can only be considered

       harmless. Finally, we conclude that the trial court did not err in refusing the

       include six allegedly defamatory statements on the verdict form distributed to

       the jury.


[25]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 15A01-1612-CT-2957 | August 22, 2017   Page 22 of 22
