Miller v. Danz, No. 49A05–1401–PL–45.

• Docket Nº: No. 49A05–1401–PL–45.
• Citation: 27 N.E.3d 774
• Case Date: February 11, 2015
• Court: Court of Appeals of Indiana

27 N.E.3d 774

Jeffrey M. MILLER and Cynthia S. Miller, Appellants
v.
Kristine C. DANZ, Appellee.

No. 49A05–1401–PL–45.

Court of Appeals of Indiana.

Feb. 11, 2015.

27 N.E.3d 776

Kevin W. Betz, Sandra L. Blevins, Jamie A. Maddox, Betz+Blevins, Indianapolis, IN, Attorneys for Appellants.

Daniel D. Trachtman, Erica K. Drew, Wooden & McLaughlin, LLP, Indianapolis, IN, Attorneys for Appellee.

Opinion

FRIEDLANDER, Judge.

1] Jeffrey M. Miller and Cynthia S. Miller (the Millers) appeal the grant of summary judgment in favor of Kristine C. Danz on their complaint for damages resulting from defamation per se, defamation per quod, invasion of privacy-false light, tortious interference with a business relationship, intentional infliction of emotional distress, and loss of consortium. The Millers present several issues for our review, which we consolidate and restate as: Did the trial court properly grant summary judgment in favor of Danz?

[2] We affirm.

[3] Jeffrey Miller was president and CEO of Junior Achievement of Central Indiana, Inc. (JACI) from September 1994 until his retirement on December 31, 2008.

[27 N.E.3d 777

Jennifer Burk succeeded Miller as President and CEO of JACI. After his retirement from JACI, Miller continued in the role of President of the Experiential Learning and Entrepreneurship Foundation (the Foundation), a separate organization that supports JACI, until February 2010.

4] In May 2008, during Miller's tenure as president of JACI, a three-way collaborative project was announced between JACI, the Foundation, and Ivy Tech Community College for the Foundation to construct a $4–million culinary school on the JACI campus to be financed in part by a $2–million grant from the Central Indiana Community Foundation/Eugene Glick family (CICF). As a result of this collaboration, Ivy Tech would lease the culinary school from the Foundation once the school was fully constructed and furnished with the latest culinary equipment. Construction began in August 2009 but was suspended in January 2010 because CICF stopped paying for the invoices submitted by the Foundation even though there was sufficient money in the fund that had been allocated for the culinary project. Apparently, CICF had concerns about how the funds for the culinary project were being handled.

[5] Kristine Danz is a partner at Ice Miller, LLP. In January/February 2010, Danz's then-husband was a board chairman for JACI. According to Danz's deposition testimony, sometime in January/February 2010, Mr. Danz was “upset and angry” and in a “venting manner” communicated to her that there had been or was going to be an audit of JACI and the culinary project because there was a belief that funds allocated thereto may not have been managed properly. Appellants' Appendix at 551, 547–48, respectively. Danz also stated that Mr. Danz seemed surprised that Miller was being considered for a position with the City of Indianapolis because Mr. Danz “felt like [Miller's] performance at Junior Achievement wasn't very strong.” Id. at 550.

[6] During January or February 2010, Danz inquired of Sarah Cotterill (Ms. Cotterill),¹ an associate partner at Ice Miller and then-wife of Chris Cotterill, the Chief of Staff for the Mayor of Indianapolis, whether Miller was in fact being considered for a position with the Mayor's office.² Danz communicated to Ms. Cotterill the information she had received from Mr. Danz concerning an audit of the culinary project and Miller's involvement therein. Danz told Ms. Cotterill that she did not know the outcome of the audit, but indicated that Ms. Cotterill may want to inform Mr. Cotterill that he may want to inquire further into the matter before hiring Miller to work in the Mayor's office. In turn, Ms. Cotterill relayed the information she received from Danz to Mr. Cotterill. Danz admitted that the information she relayed to Ms. Cotterill was the kind of information that “would cause one to pause in wanting to deal with a person.” Id. at 556.

[7] Prior to Danz's conversation with Ms. Cotterill, Miller at least had a job opportunity with the Mayor's office. Beginning in August of 2009 and continuing through approximately March of 2010, Miller engaged in several discussions with Mr. Cotterill regarding the position of Senior Policy Advisor to the Mayor. Miller maintains that these discussions encompassed what Miller could bring to the position of Senior Policy Advisor, that the purpose of

[27 N.E.3d 778

the position was to connect the business community to the Mayor's office and to tie the not-for-profit community closer together, a start date (being the end of February 2010), and a salary range. In a follow-up conversation, Mr. Cotterill told Miller that an announcement regarding Miller's position with the Mayor's office would be made toward the end of February 2010.

8] Ultimately, however, Miller did not receive the position as Senior Policy Advisor with the Mayor's office. On March 19, 2010, Miller recorded a telephone conversation he had with Mr. Cotterill in which Mr. Cotterill told Miller that a lawyer had contacted his wife and informed her that Miller or JACI “were going to be sued by the CICF for misappropriation of funds.” Id. at 477. During this conversation, Miller identified Danz as a possible source of the comments made to Ms. Cotterill.³ Mr. Cotterill continued, informing Miller that his name was also associated with a conversation regarding concerns about “how the money moved around” for the culinary project in which JACI was involved. Id. at 478. In light of this information, Mr. Cotterill told Miller that part of his “professional responsibility is to do a 10–foot–pole rule” between the Mayor's Office and Miller. Id. at 481.

[9] The Millers filed their complaint on March 31, 2010, asserting claims for defamation per se, defamation per quod, invasion of privacy—false light, tortious interference with a business relationship, intentional infliction of emotional distress, loss of consortium, and damages resulting from each. Initially, JACI, CICF, Jennifer Burk, and Brian Payne were named as defendants. The Millers thereafter filed a series of amended complaints by which multiple persons and entities were added as defendants. Eventually, on February 27, 2012, the Millers filed their Fourth Amended Complaint in which they named “John Doe # 8, a partner, employee or agent of Ice Miller, LLP” (John Doe # 8) as a defendant in the action and alleged that John Doe # 8 told Ms. Cotterill, who in turn told Mr. Cotterill, that “CICF was planning to sue Mr. Miller for misappropriation of funds.” Id. at 236.

[10] On February 28, 2013, the Millers filed a Fifth Amended Complaint in which they substituted Danz for John Doe # 8, claiming that they first learned of Danz's identity as John Doe # 8 through the deposition of Ms. Cotterill taken on January 18, 2013. Specifically, the Millers claimed in the Fifth Amended Complaint that it was Danz who told Ms. Cotterill that “CICF was planning to sue Mr. Miller for misappropriation of funds.” Id. at 262. The Fifth Amended Complaint pleads multiple theories against Danz, including defamation, invasion of privacy—false light, tortious interference with business or contractual relationships, intentional infliction of emotional distress, and conspiracy or concerted action.

[11] Danz filed a motion for summary judgment, a brief in support of her motion for summary judgment, and a designation

[27 N.E.3d 779

of evidence on August 30, 2013. Danz's primary argument⁴ in support of summary judgment in her favor was that the claims asserted by the Millers accrued no later than March 19, 2010,⁵ and thus, the Millers' filing of the Fifth Amended Complaint against her nearly three years later was barred by the applicable two-year statute of limitation.⁶ The Millers filed their response to Danz's motion for summary judgment on October 4, 2013. The Millers argued that pursuant to Ind. Trial Rule 15(C), Danz was properly substituted for John Doe # 8, even though such substitution occurred after the expiration of the applicable two-year statute of limitation, because Danz had constructive notice of the lawsuit before the statute of limitation expired. On October 22, 2013, Danz filed a reply brief in support of her motion for summary judgment in which she specifically asserted that the substitution of her as a defendant did not satisfy the requirements of T.R. 15(C). The trial court held a summary judgment hearing on November 21, 2013.⁷ During this hearing, the Millers argued that Ind. Trial Rule 17(F), in conjunction with T.R. 15(C), permitted the insertion of Danz's name for John Doe # 8. After the submission of post-argument briefs, the trial court granted Danz's motion for summary judgment and directed that final judgment be entered in an order dated January 10, 2014.⁸ The Millers timely filed a Notice of Appeal on January 29, 2014.

[12] “When reviewing a trial court's ruling on a motion for summary judgment, this court stands in the shoes of the trial court and applies the same standards in deciding whether to affirm or reverse the ruling.” In doing so, we must construe all factual inferences in the nonmoving party's favor and resolve all doubts as to the existence of a genuine issue against the moving party. Chang v. Purdue Univ., 985 N.E.2d 35 (Ind.Ct.App.2013), trans. denied. A trial court's grant of...