Opinion
CAUSE NO. IP99-1725-C-M/S
March 31, 2004
ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This cause is now before the Court on the plaintiff's, Associates Financial Services Company, Inc. ("Associates"), Motion for Summary Judgment on the defendants', Bowman, Heintz, Boscia, Vician, P.C. and Glenn S. Vician (defendants collectively, "Bowman Heintz"), counterclaims of defamation, abuse of process and tortious interference with contracts. Associates contends that summary judgment on all three claims is appropriate because the basis for all three claims has been proved false. Moreover, Associates contends that each counterclaim taken individually is flawed. In contrast, Bowman Heintz contends that material issues of fact preclude summary judgment on each of its counterclaims. For the reasons stated herein, the Court GRANTS Associates' Motion for Summary Judgment.
I. BACKGROUND A. THE RELATIONSHIP BETWEEN ASSOCIATES BOWMAN HEINTZ
Some of the background facts set forth here are taken from prior orders on the various summary judgment motions filed by these parties in this cause. The Court declines Bowman Heintz's invitation to strike facts. It is unnecessary given the large number of facts that have been presented to the Court. Bowman Heintz's motion to strike undisputed material issues of fact as irrelevant is DENIED.
On November 13, 1996, Bowman Heintz received a collection referral from Associates and represented Associates on several other referrals. The parties negotiated a Collection Agreement that documented the attorney-client privilege. Both parties had signed the agreement by December 9, 1996. That agreement purports to outline the various rights and responsibilities between the parties. Associates caused the National Attorney Network, with which it had a signed agreement dated September 16, 1996, to place Associate accounts for collection with Bowman Heintz. Associates retained ownership of the accounts.
Bowman Heintz was solicited by Associates on September 27, 1996, in an effort to interest the shareholders of Bowman Heintz in the purchase of a block of charged off accounts. Negotiations began between the parties. In October of 1996 Vician notified Associates of a decision by the shareholders to form an investment company called American Assignment, L.L.C. (" American Assignment") for the purpose of purchasing charged off debt and that Bowman Heintz would be given the collection work.
On October 29, 1996, American Assignments was organized; the Articles of Incorporation were filed October 31, 1996. American Assignments' business plan called for the purchase of charged off loans at a discount with profit to be realized through the collection efforts of Bowman Heintz. Bowman Heintz and American Assignments entered into an Attorney Retention Agreement on October 31, 1996. That agreement provided that Bowman Heintz would handle all collection work and receive a 15% contingency fee thereon. The agreement gave Bowman Heintz an attorneys' lien on all American Assignment recoveries. The attorney retention agreement did not provide that American Assignment assigned any of its contract rights with consumer debtors to Bowman Heintz.
On November 1, 1996, Vician received two Financial Asset Sales Agreements from Associates. Vician signed the agreements as president of American Assignment and on November 5, 1996, Vician sent the signed Financial Asset Sales Agreements (the "October Agreements") along with American Assignment's check for payment. One of the agreements paid 0.03 cents on the dollar of outstanding debt and the other paid 0.06 cents. On November 27, 1996, Associates signed off on the October Agreements. Two additional Financial Asset Sales Agreements were negotiated and signed by the parties by December 3, 1996, and payment was made by American Assignment. American Assignment assigned all 804 accounts purchased to Bowman Heintz for collection.
On January 22, 1997, Vician complained to Associates after receiving the sold accounts. Vician raised several concerns about the accounts and requested refunds reflecting those concerns. Vician identified fifty-seven accounts in which some of the debtors had filed bankruptcy before the sale of the account, some were not living in Indiana, some were deceased, some had been created beyond the statute of limitations, some had been placed with other attorneys prior to their delivery to American Assignment, some were paid up, and some had been paid off with liquidated collateral. He identified 352 accounts as having a problem because no hard copy loan files had been transmitted.
Associates paid $43,503.78 to American Assignment by August 6, 1997. On June 18, 1997, Associates refunded to American Assignments $5,681.11, representing the fifty-seven files complained of. On August 6, 1997, Associated refunded to American Assignment $37,822.67 for the 352 files of which Vician had complained. Those checks were deposited by American Assignment.
Through mid-1997 Associates and Bowman Heintz negotiated several settlements regarding problems with the Sold Accounts. However, some debtors continued to pay Associates to settle their Sold Account, instead of American Assignment. Associates failed to pay American Assignment some of these amounts, as required by the October Agreements.
B. THE LAWSUITS FILED BY AMERICAN ASSIGNMENT
Sometime in 1997, American Assignment filed suit against Herman and Linda Gilliam in the Franklin County, Indiana Circuit Court to pursue the Gilliams' unpaid debt on their Sold Account. Apparently, American Assignment also obtained a default judgment against the Gilliams in that suit. On September 5, 1997, attorney Mike Back ("Back") filed his appearance for the Gilliams, together with a motion to set aside American Assignment's default against them and a motion to file a third-party claim against Associates and a counterclaim against American Assignment. The counterclaim and third-party complaint were filed in the Gilliam case on October 23, 1997. The third-party complaint and the corresponding summons were sent to Associates on November 10, 1997, and were received by Associates on November 13, 1997.
At Back's request, Vician met with Back over a period of seven or eight meetings in September, October and November 1997. During those meetings, Vician and Back reviewed documents relating to the Gilliams' Sold Account, and possibly other Sold Accounts, and reviewed Vician's file on Fair Debt Collection Practices Act ("FDCPA") cases.
On December 9, 1997, American Assignment filed its answer to the Gilliams' counterclaim. In it, American Assignment alleged that Associates owed it indemnification or contribution for any amounts that it sought against the Gilliams in error. Also on December 9, 1997, the Franklin Circuit Court entered a default judgment against Associates because it had failed to appear or plead in response to the third-party complaint. Vician, upon a subpoena by the Gilliams' attorney, Back, testified against Associates at the default hearing. Associates moved to set aside the default judgment on February 6, 1998. Apparently, one of Associates' attorneys had misplaced the complaint and summons. In addition, on the same date, American Assignment filed its cross-claim against Associates in the case.
On December 21, 1998, American Assignment filed a motion for partial summary judgment in the case, seeking a determination that Associates had violated the FDCPA. The Gilliams joined this motion on January 25, 1999. The Franklin Circuit Court denied this motion on July 27, 2000.
The Franklin Circuit Court set aside the default judgment against Associates on June 4, 2001. However, it has certified Gilliam as a class action as to three classes of plaintiffs against Associates. American Assignment's claims against Associates were settled by agreement dated July 30, 2002.
American Assignment also filed suit against Sold Account debtor Chris Troup ("Troup"), and received a default judgment against Troup when he failed to appear. Bowman Heintz instituted a wage garnishment against Troup to collect on the judgment. Apparently, Troup had also arranged to have the judgment paid; however, Associates, not American Assignment was paid. When Troup went to correct this matter, he received less from American Assignment than what he expected. Troup called American Assignment and learned he would not receive a refund of the entire amount garnished from his wages. Troup asked American Assignment for attorney referrals and American Assignment gave him three attorneys' names, including that of Back. Troup sued Associates, however, the case has since been dismissed.
C. COMMUNICATION THAT OCCURRED BETWEEN VICIAN AND ATTORNEY ERIC HAAB IN 1998
In November 1998, the attorney representing Associates in the Gilliam case, Eric Haab ("Haab"), was at the Bowman Heintz offices in Merrillville, Indiana, for a deposition in that case. Prelim. Inj. Hrg. Tr. at 62; Haab Dep. at 87. Shortly after the November 25, 1998, conversation, Vician wrote a letter to Haab and another attorney who represented Associates in the Gilliam case, Scott Liesz ("Liesz"), that read, in relevant part:
The purpose of this letter is to verify in writing certain issues that you raised at approximately 5:30 p.m. on Wednesday, November 25, 1998, following the deposition of Mr. James Burns. You had raised the following issues with me, to-wit:
1. That a potential conflict of interest had arisen due to the fact that Glenn Vician was representing American Assignment Co. in the above-described litigation, while the law firm of Bowman, Heintz, Boscia Vician, P.C. was representing Associates Financial Services Co., Inc. ("Associates" hereafter) in certain other collection cases.
2. That you believed that Glenn Vician and the law firm of Bowman, Heintz, Boscia Vician, P.C., would have to withdraw from the representation
of American Assignment Co. in the above-described litigation, due to the alleged conflict with Associates on the unrelated collection cases.
3. You also stated that American Assignment Co. should withdraw its claims against Associates due to the alleged conflict of interest that you had raised.
Pls.' Exh. 47, Letter, To: Eric Haab, Scott R Leisz, From: Glenn Vician, RE: American Assignment Co. vs. Gilliam, et al, Dec. 1, 1998, at 1. Vician also indicated in the letter that Bowman Heintz was withdrawing from representation in Associates' collection cases, and indicated the reasons why Bowman Heintz felt there was no conflict of interest. Id. at 1-4.
Vician sent another letter to Leisz dated December 3, 1998, in which he stated, in relevant part:
We believe that Associates is raising these claims of conflict against the principals of Bowman, Heintz, Boscia Vician, P.C. and American Assignment Company solely as a technique for harassment to delay the pending litigation and do not believe that there is a basis to disqualify the lawyers of Bowman, Heintz, Boscia Vician, P.C. from this case.
Pl.'s Exh. 48, Letter, To: Scott R. Leisz, From: Glenn S. Vician, RE: American Assignment Company vs. Herman Gilliam and Linda Gilliam, et al, Dec. 3, 1998, at 3.
Furthermore, during a hearing in the Gilliam case in which the judge in that case, Judge Cox, heard argument on Associates' motion to disqualify Bowman Heintz from representing American Assignment and argument on Haab's motion to appear pro-hac-vice on behalf of Associates in the case, Vician described his meeting with Haab after the November 25, 1998, deposition:
I would further note, for the record, that in the moments following the — the, uh, deposition of Mr. James Burris, the day before Thanks — uh, giving, uh — uh, holiday, Mr. — Mr. Haab asked Mr. Back to be excused from the depo — uh, the deposition conference room. He didn't want Mr. Back, who was one of the lawyer's [sic] involved with the Gilliam case, to be there, and after Mr. Haab excused Mr. Back from that conference room, he proceeded to advise myself, that in his opinion, I should be disqualifying myself and my firm from this case, because, in his opinion, he didn't think American Assignment Company should be pursuing a lawsuit in the Gilliam case. And, in fact, he said, because there were issues of ethics that went into this Motion to Disqualify, he expected American Assignment Company to withdraw its claims against Associates in the Gilliam matter, and I-I had to — I was so shocked by that, that I even sent a letter of confirmation regarding these issues to them, which I could produce for the court record, that they're — they've never object to, or responded to about that. So the point is, Mr. Haab, and his firm, who weren't supposed to be litigating this case, disregarded the Court's order completely and — and undertook legal representation of, uh, Associates in depositions, in discovery matters, and in drafting the, uh, proposed protective order. . . . [Y]our Honor, I think with all due respect, because Mr. Haab does seem to be a nice gentleman, and — and I personally don't have a problem with, uh — with the way he's carried himself. . . .
Pl.'s Exh. 49, Am. Assign. Co. v. Gilliam, Cause No. 24 C01-9702-CP-049, Trans. of Evid., (Franklin County Circuit Court Jan. 26, 1999), at 15-16.
However, Vician testified at the Preliminary Injunction Hearing in this cause that:
At the conclusion of [the November 25, 1998] deposition . . . [Haab] told me that unless I, Glenn Vician, dismissed all cases against Associates, and unless I insisted that another lawyer named Mike Bach [sic] dismiss a case that was filed against Associates, that Associates would pursue us with a vengeance. And he said, "We would be pursuing you, Mr. Vician, and we would be pursuing your law firm with a vengeance because of this conflict that we believe exists."
Prelim. Inj. Hrg. Tr. at 62.
At his deposition on Januarys, 2004, Haab testified that he had a conversation with Vician in which Haab suggested that Vician withdraw from representing American Assignment in the Gilliam case. Haab Dep. at 85. However, he denied having said or suggested to Vician that Associates would come after him with a vengeance or "anything of the sort." Id. at 85-86. Haab also testified that he has some involvement with preparing the malpractice complaint in this matter. Id. at 86.
D. ASSOCIATES FILES THE INSTANT SUIT
Associates filed its complaint in this cause on November 8, 1999. Among other things, the complaint alleged the following:
1. This action arises out of wilful acts of misconduct by attorneys directed against one of their clients. . . . Vician . . . knowingly and voluntarily disclosed confidential information concerning Associates to counsel for a putative class of consumer debtors for the purpose of facilitating the filing of class action litigation against Associates. Vician thereafter assisted on class member in obtaining an improper default judgment of over half a million dollars against Associates by providing the key (albeit inaccurate) testimony on both liability and damages, and by concealing the entire matter from Associates, in breach of fiduciary duties and express contractual obligations owed to Associates. Furthermore, in the same case, Bowman Heintz represented a collection agency (of which Vician and other Bowman Heintz attorneys were the owners) that had purchased non-performing loans from Associates and asserted claim directly against Associates without making the required disclosures or obtaining the necessary consent. Finally, in communications with another former consumer debtor whose loan had been sold to Bowman Heintz's collection agency, Vician falsely accused Associates of "intercepting" a loan payment by a that [sic] debtor and wrongfully encouraging him to pursue litigation against Associates. . . .
18. In its capacity as legal counsel for Associates, Bowman Heintz was entrusted with documents and other confidential information concerning Associates' business practices and delinquent loan accounts. Bowman Heintz thus became intimately familiar with Associates' policies and procedures, its approach to litigation, the typical contents of its loan files and supporting documentation, and its computer systems.
28. The Financial Assets Sale Agreements between American Assignment and Associates contemplated that some borrowers would inadvertently continue to make payments to Associates or its state affiliates on sold accounts instead of to American Assignment — just as the Gilliams had done — even after being advised of the sale of their loan. . . .
29. Bowman Heintz did not immediately inform Associates of Mr. Gilliam's contention that he had made full payment to Associates in March, 1997. When informed of the apparent mistake regarding the Gilliams' account in late August 1997, Associates investigated the matter, confirmed the Gilliams' payment and promptly remitted a check to Bowman Heintz, not only for the funds the Gilliams had transmitted to Associates, but also for the attorneys fees, court costs, and additional interest awarded in American Assignment's default judgment against the Gilliams. . . .
34. On or about August 28, 1997, [Michael W.] Back contacted Phil Lemere, an attorney with Bowman Heintz. Back advised Bowman Heintz that if Associates had continued to collect on the Gilliams' loan after selling it, the Gilliams might file a claim against Associates pursuant to the Fair Debt Collection Practices Act. Despite Bowman Heintz's professional duties to Associates, Bowman Heintz voluntarily (and falsely) advised the Gilliams' counsel that Associates had attempted on other occasions improperly to collect on loans that Associates had already sold. Back advised Attorney Lemere that he would talk to Vician about the matter further.
35. The next day, on August 29, Back wrote a letter to Vician advising that he had entered his appearance on behalf of the Gilliams and that he had heard from "other sources" that Associates had been selling or assigning accounts to different entities and then attempting to collect monies on those accounts. Back concluded:
Obviously I will need to get the details from you about the prior incidents with Associates and any information and documentation you can give me on disk or other similar cases. I would like to set up a meeting with you in the next two weeks to go over this. My secretary will contact you accordingly.
36. Bowman Heintz failed — promptly or otherwise — to inform Associates of this threatened litigation or Back's request for information concerning Associates. Moreover, rather than declining the requested meeting or refusing Back's request for the sensitive information concerning his client, Bowman Heintz cooperated in Back's efforts. During the course of the next several months, Vician and/or other Bowman Heintz lawyers engaged in no less than 25 total hours of meeting with Back during which they (i) falsely accused Associates of engaging in prohibited collection activities; (ii) collaborated, colluded, and strategized with Back regarding theories of potential liability against Associates; and (iii) provided Back access to records in Bowman Heintz's possession concerning Associates and its business practices.
37. Vician and Bowman Heintz intentionally concealed their dealings with Back from Associates, even though Associates was a current and active client of Bowman Heintz. Vician and Bowman Heintz failed to advise Associates that Back was threatening a claim against Associates, that he had requested and been provided documents and other information for the purpose of pursuing a claim against Associates, and that they had extensive meetings with Back regarding the filing of a lawsuit against Associates.
38. On September 5, 1997, Back entered his appearance for the Gilliams and requested leave to file a counterclaim against American Assignment and third party claims against Associates. The allegations of the motion and the proposed counterclaims and third-party claims made the interests of Associates and American Assignments with respect to the Gilliams adverse to one another. For example, American Assignment could attempt to defend the Gilliams' counterclaim by proving Associates' failure to make a timely transfer to American Assignment of the Gilliams' $394 payment to Associates. In addition, the proposed Third Party [sic] Complaint included a class action lawsuit against Associates — with Back appearing as class counsel and the Gilliams as representatives of the putative class — for alleged violations of the Fair Debt Collections Practices Act. The Third Party [sic] Complaint alleged falsely that, in over 100 instances, Associates had affirmatively sought to collect unauthorized charges from borrowers after selling such accounts or after such debts were already settled.
39. On September 6, 1997, the Gilliams filed a motion to set aside the default judgment that had been obtained against them by American Assignment. Bowman Heintz, acting as counsel for American Assignment, did not oppose the motion, and the Court granted the motion and set aside the default on October 23, 1997. On the same day, the Court also granted the Gilliams leave to file the Third Party Complaint against Associates, including the purported class action claims.
40. Despite its fiduciary and contractual duties to Associates, Bowman Heintz again failed to inform Associates about the proposed lawsuit against Associates when it received Back's proposed Third Party [sic] Complaint against. Associates. Bowman Heintz had also failed to contact Associates to obtain its consent ot act adversely to it on behalf of American Assignments in the lawsuit. To the contrary, Bowman Heintz disregarded those professional obligations — as it had throughout this period — and acted with intent to benefit American Assignment (and the partners of Bowman Heintz who owned the company) at the expense of Associates, all without the knowledge or consent of Associates.
41. On November 10, 1997, as the culmination of the improper, secret and collusive meetings between Bowman Heintz and Back, Back purported to serve the Gilliams' Third Party [sic] Complaint on Associates. But rather than serving the pleading on Associates' registered agent in Indiana, whose name and address were, or should have been, well known to Vician, Back merely addressed serve to "Highest Officer or Agent, Associates Financial Services Company, Inc., 300 Decker Drive, Irving TX [sic]." The address Back used was for an Associates building housing its collection department. Back did not address the envelope to 250 E. Carpenter Freeway, Irving TX [sic], Associates' corporate headquarters where its executive offices are located.
42. Despite internal procedures designed to ensure the appropriate routing of any legal documents — even those not properly served such as the Gilliams' pleadings — the Gilliams' Complaint was inadvertently misdirected and undetected for several weeks at Associates. The complaint was not discovered by a legal officer until January 13. At that time Associates promptly retained Indiana counsel, who filed their appearance on behalf of Associates on January 16, 1997.
45. Before the December 9[, 1997] hearing [in the Gilliamcase], Vician conferred with Back regarding Vician's anticipated role at the hearing. Vician and Back agreed that Vician would serve as witness at the hearing to provide testimony adverse to Associates, his client.
47. At the evidentiary hearing on December 9, Vidian testified in support of a significant damage award against Associates. Vician provided the sole evidence offered of an alleged pattern of intentional misconduct, in 5 or 6 purported instances, in which Associates was falsely accused of purposefully attempting to collect from or settle with debtors after Associates had already sold their accounts. Not only was such testimony false and misleading, but it was directly adverse to the interests of Associates.
48. Bowman Heintz and Vician, as counsel of record for American Assignment, also presented oral argument at the hearing. Vician advised that American Assignment "did not have any cause or ability to raise a defense to what Associates did." Mr. Vician further emphasized, and argued falsely that, while American Assignment had acted without fault, Associates had caused the harm to the Gilliams by collecting frm the Gilliams and then failing to turn over those sums to American Assignment — "they just kept the money in Dallas, apparently."
49. Clearly acting as an advocate for American Assignment and sharply adverse to Associates throughout the hearing, Vician omitted numerous exculpatory or mitigating facts favorable to Associates. As merely one example of facts omitted that would have been favorable to Associates, Vician failed to advise the Court that Associates had in fact sent a check in September 1997 [sic] to reimburse American Assignment for the amounts paid by Gilliam and had previously forwarded to American Assignment many similar payments from other debtors, in compliance with the Financial Assets Sales Agreements.
54. The sole source of any evidence presented to the court of such alleged intentional bad faith conduct was Vician's false and misleading testimony. The oral argument presented by Bowman Heintz at the hearing reinforced that alleged evidence.
62. In an apparent effort to conceal its role as counsel in the [Gilliam] matter (now that Associates had appeared), Vician and Bowman Heintz did not file any pleadings or documents on American Assignment's behalf from February through at least September 1998. Instead, Mr. [Melvin] Wilhelm signed all of the pleadings or other documents involved in the case during that period.
67. As Bowman Heintz is aware, Associates has legitimately, steadfastly, and successfully maintained over the course of many years that it is not subject to the FDCPA because Associates performs collection services only on behalf of affiliated entities — services which the FDCPA does not govern. Bowman Heintz's contrary arguments in the Franklin County case — in an effort to assist the putative class represented by Back — seeks to establish a ruling that would be adverse and injurious to the interests of Associates, not only in the Gilliam case, but in other contexts as well.
81. In flagrant breach of their fiduciary duties, Bowman Heintz and Vician engaged in a multitude of wrongful acts as more particularly described above, including:
• Disseminating false and/or confidential information to adversaries of Associates for the purpose of facilitating the filing or prosecution of legal actions against Associates;
• Consulting and strategizing with adversaries of Associates for the purpose of assisting those adversaries;
• Providing false and misleading testimony regarding Associates' business practices and failing to provide information to the Franklin County Court that would have been exculpatory and favorable for Associates;
• Failing to inform Associates of essential information, including the existence of secret meetings with adversaries, the dissemination of confidential client information, the existence of threatened and pending litigation, the appearance of Vician and Bowman Heintz at a hearing during which false and injurious testimony was offered regarding Associates, and the appearance of Vician and Bowman Heintz as counsel for American Assignment in an action directly adverse to Associates' interests; and
• Otherwise failing to exercise the good faith, trust, honesty, loyalty and candor required of fiduciaries in Indiana in the performance of their duties.
88. In flagrant breach of the duties identified in ¶¶ 85-87, above, Bowman Heintz and Vician engaged in a multitude of wrongful acts as more particularly described above, including:
• Disseminating false and/or confidential information to adversaries of Associates for the purpose of facilitating the filing or prosecution of legal actions against Associates;
• Consulting and strategizing with adversaries of Associates for the purpose of assisting those adversaries;
• Providing false and misleading testimony regarding Associates' business practices and failing to provide information to the Franklin County Court that would have been exculpatory and favorable for Associates;
• Failing to inform Associates of essential information, including the existence of secret meetings with adversaries, the dissemination of confidential client information, the existence of threatened and pending litigation, the appearance of Vician and Bowman Heintz at a hearing during which false and injurious testimony was offered regarding Associates, and the appearance of Vician and Bowman Heintz as counsel for American Assignment in an action directly adverse to Associates' interests; and
• Otherwise failing to exercise the good faith, trust, honesty, loyalty and candor required of fiduciaries in Indiana in the performance of their duties.
Compl. ¶¶ 1, 18, 28, 29, 34-42, 45, 47-49, 54, 62, 67, 81, 88.
E. EVENTS THAT OCCURRED AFTER THE INSTANT SUIT WAS FILED 1. Several Bowman Heintz Clients Receive the Complaint in this Cause
Ford Motor Credit Company ("Ford Credit"), a client of Bowman Heintz, received an unsolicited copy of the complaint in this cause on or about December 17, 1999. Prelim. Inj. Hrg. Tr., at 26-29; Prelim. Inj. Hrg. Exh. 8, Kammerman Aff. ¶ 5. According to the testimony of Ford Credit employees, Ford Credit received more than one unsolicited copy of the complaint, and it received other unsolicited pleadings that were filed in this cause. Godre Dep. at 15; Frank Dep. at 44. In particular, in May 2001, Ford Credit received a copy of the complaint with a typewritten note at the top indicating that Sears, another Bowman Heintz client, had terminated its relationship with Bowman Heintz. Frank Dep. at 45-46.Sears received an unsolicited copy of the complaint in this cause at some time prior to January 28, 2000. Olsen Dep. at 39-40. Sears terminated its relationship with Bowman Heintz by letter dated January 28, 2000, because of the content of the complaint. Id. at 42-43. Sometime in August 2000, Bowman Heintz published the information that Sears had terminated its relationship with the firm. Vician Aff. ¶ 35.
Chrysler Credit Corporation received an unsolicited copy of the complaint in this cause in either late 1999 or early 2000. McIntyre Dep. at 11-12. Chrysler Credit received the complaint in a "plain brown or white" business envelope with a return address, but no sender's name. McIntyre Dep. at 12.
The National Attorney Network also received at least one unsolicited copy of the complaint in an envelope with an Arizona postmark, but no return address. Kristian Knochel Dep. at 103-04; Prelim. Inj. Hrg. Tr. at 32-33.
2. Associates' In-House Counsel. Fietz, Talks with Bowman Heintz Clients About this Suit
During his deposition, John Godre ("Godre"), Counsel-Litigation Manager at Ford Credit, testified that Associates' in-house counsel, John Fietz ("Fietz"), called him to "discuss this lawsuit between Associates and Bowman Heintz." Godre Dep. at 12. By the time Fietz called Godre, Ford Credit had already received more than just the complaint in regard to this lawsuit, and Godre was not happy about it. Id. at 14-15. Godre and Fietz "talked about [Godre's] understanding of the case." Id. at 15. Godre shared with Fietz that Godre thought Associates had a weak case. Id. at 15-16. In addition, Godre testified to the following:
Q. During your phone call with Mr. Fietz did he make any negative comments about the Bowman firm or Mr. Vician?
A. I don't recall.
Q. Did Mr. Fietz say anything that would suggest to you that he was trying to affect the business relationship between the Bowman firm and Ford Credit?
A. Yes.
Q. How so?
A. He didn't like the firm.
Q. What did he say to you?
A. He — he — I don't recall exactly what he said.
Q. Well, if you don't' recall what he said, how can you arrive at the conclusion that he didn't like the firm?
A. I just recall the general tenor of the conversation, and he — can we go off —
Q. (Shakes head.)
A. — just for a second?
Q. I need you to finish your answer.
A. Well, I just recall that he didn't — he didn't like the firm, and he didn't think that — he felt they were in conflict.
Q. And how are you arriving at that conclusion? Do you know what he said to you?
A. Not exactly, no.
Q. I just want to make sure you and I are on the same page. You don't recall exactly what led you to conclude that he did not like the firm?
A. I don't recall exactly what he said, but I do recall that he did not like the firm.
Q. And the statements or this feeling that you have that he did not like the firm, did that have any impact on your investigation [of the allegations in the complaint relative to Ford Credit]?
A. No, it didn't.
Q. So is it fair to say that you disregarded the fact that he did not like the firm in your investigation?
A. No. I didn't disregard it.
Q. But it didn't have an impact?
A. It didn't change my conclusion.
Q. So the tone that you received, or your impression that you received that Mr. Fietz did not like the firm, did not affect your overall impression of the firm?
A. Mr. Fietz challenged the integrity of Glenn Vician and Bowman Heintz. After talking to him, having done my investigation, my conclusion was that this was a breach of contract type case. And that I didn't think that, even though there might have been a dispute between Associates and Bowman Heintz as to what that contract was, I didn't think it went to the integrity of the firm. And I disagreed with Mr. Fietz on that.
Q. Going back now to this Mr. Fietz's challenging the integrity of the firm. Do you remember what he said specifically?
A. I don't recall —
Q. Okay.
A. — the exact words.
Id. at 22-25.
Fietz also called Rosanne Frank ("Frank"), legal assistant to Godre at Ford Credit. Frank affirmed that Fietz called her to ask"whether anyone at Ford Credit had received a copy of Associates' complaint against Bowman Heintz yet." Frank Aff. ¶ 7. Frank also affirmed that Fietz "questioned whether Ford Credit would continue to use the law firm of Bowman Heintz based upon of what [sic] had happened to Associates." Id. ¶ 8. During her deposition, approximately two years later, Frank testified to the following with respect to her conversation with Fietz:
Q. What did [Fietz] tell you the reason why he was calling [sic]? Did he identify that for you?
A. Yes.
Q. What did he say?
A. He called and asked me if I had gotten a copy of the complaint, and I said yes, I had gotten that. And he asked if I'd reviewed it. I think he asked me if I read it. I said yes. And he asked me if Bowman Heintz did collection work for us, and I told him he [sic] did. And he asked if we were going to continue using him [sic] for collection, and I told him that's not up to me; I don't make that decision.
Q. Anything else you can remember about that telephone conversation?
A. Other thanhe was not very happy with specifically Glenn Vician. Didn't seem to like him very much.
Q. Tell me how you came to that conclusion.
A. He just said that he had done unethical things, that I can remember. The whole tone of the conversation, it was kind of like a — the tone of the conversation was like: Did you know that this guy was doing these things, and You [sic] shouldn't use him because he's bad. You know, that type of thing.
Q. Did he specifically say that?
A. No. Not that I'm aware of. But I'm just telling you what the tone of the conversation was. It's, like, why are you calling me to inform me ofa lawsuit that you have against somebody else? What do I care?
Q. Let's go back. I want to specifically separate what you think the tone of the conversation was.
A. To what he actually said?
Q. Yes, ma'am.
A. Okay. He told me that they had sued Glenn Vician and Bowman Heintz. And he asked me the strangest question, and that's I think why I remember, is are we going to continuing using them.
Q. Okay. Anything else?
A. I don't remember any other specifics. I know he asked me if I had gotten a copy and if I reviewed the copy.
Q. Did he specifically tell you that Mr. Vician had done unethical things? Not the tone. Did he specifically tell you that?
A. He told me something. I don't remember exactly what the words is. I don't remember if he said unethical, if he said he had done — oh, what word am I looking for — I can't think of the word. It's — it's not bad. Unethical . . .
Q. So the word you're trying to think of is not a bad word?
A. It's a negative — it's like — I'll think of it in a minute.
Q. So he did not use the word "unethical"? [sic]
A. I don't remember for sure if he used the word unethical.
A. I can't remember exactly what it was he said.Id. at 18-20.
Apparently, Fietz also spoke with Bowman Heintz client Stuart Wolpoff ("Wolpoff") of Wolpoff Abramson. Bowman Aff. ¶¶ 6, 9. Wolpoff told Bowman that some time in the year 2000, Fietz "had directly communicated with Stuart Wolpoff as to the fact that Associates had sued Bowman Heintz for breach of fiduciary duties and for other improper conduct that John Fietz stated was directed by Bowman Heintz against Associates." Id. ¶ 9. Wolpoff also told Bowman "that John Fietz had described certain facts and events to Stuart Wolpoff related to Associates' contentions of improper conduct of Bowman Heintz directed against Associates." Id. ¶ 10. Wolpoff testified during his deposition that Bowman's affidavit statements were accurate. Wolpoff Dep. at 24.
However, later in his deposition, Wolpoff testified to the following with respect to his conversation with Fietz:
Q. In fact, Mr. Wolpoff, when you had your discussion with Mr. Fietz the only thing that he told you during your conversation with him was that Associates had terminated its relationship with Bowman Heintz; isn't that true?
A. That's correct.
Q. Mr. Fietz never made any specific or any disparaging comments towards Bowman Heintz, did he?
A. Not to the best of my knowledge.
Q. And Mr. Fietz never told you during that conversation that Associates had sued Bowman Heintz, did he?
A. No, he did not.
Q. The only place you learned of the fact that a lawsuit existed was at a conference in Nevada. Correct?
A. That's correct.
Q. And you have no idea who told you about the fact that a lawsuit existed, do you?
A. Correct.
Q. And you've never seen the complaint, have you?
A. No, I have not.
Q. And during this conversation with Mr. Fietz he never made any reference to any improper conduct on the part of Bowman Heintz, did he?
A. Not to the best of my knowledge.
Q. So in other words, Mr. Wolpoff, his conversation was limited to the fact that Associates terminated the relationship with Bowman Heintz.
A. To the best of my knowledge, yes.
Wolpoff Dep. at 26-28.
3. Attorneys Not Involved in this Suit Receive Copies of the Complaint
Sommer Barnard, counsel for Associates, sent unsolicited copies of the complaint in this cause to the following non-party shareholders of Bowman Heintz: Gerald Bowman, James Boscia, George Heintz, Paul Ellison, Phillip LaMere, and Thomas Burris. Shockley Jan. 16, 2004, Dep. at 15; Shockley Mar. 18, 2003, Dep. at 17. All of these men are Vician's law partners and shareholders of Bowman Heintz. Vicain Feb. 21, 2001, Dep. at 119.
In addition, Sommer Barnard sent a copy of the complaint in this cause to attorney Lee McTurnan ("McTurnan") and Associates' in-house counsel, Fietz, sent a copy to attorney Eric Haab ("Haab"). Shockley Jan. 16, 2004, Dep. at 9-10, 14. McTurnan and Haab served as counsel to Associates in the Gilliam and Troup lawsuits. Badger Dep. at 5-9; Haab Dep. at 14-15, 57, 86. They also help draft the portions of the complaint that was premised on Vician's and Bowman Heintz' alleged misconduct in those cases. Id.
Sommer Barnard sent copies of the complaint in this cause on three occasions to Eichhorn Eichhorn attorneys David Jensen ("Jensen") and John Touhy ("Touhy"). Shockley Jan. 16, 2004, Dep. at 13-14, 18-19; Jensen Aff. ¶¶ 1-5; Shockley Aff. ¶ 9. In early December 1999, Jensen requested and received a copy of the complaint from William C. Barnard, of Sommer Barnard, because a plaintiff represented by Vician and Bowman Heintz had sued Jensen's law firm. Jensen Aff. ¶ 3. Jensen also received another copy of the complaint from Sommer Barnard when he was asked to represent attorney Clarence Borns ("Borns"), at a deposition regarding the instant counterclaims. Shockley Jan. 16, 2004, Dep. at 13-14; Shockley Aff. ¶ 9. A third copy of the complaint was sent by Sommer Barnard to Touhy at Touhy's request for a copy of the Sears 30(b)(6) deposition in this case, to which a copy of the complaint was made an exhibit. Shockley Aff. ¶ 9.
4. Conversation Between Fietz Vician on May 8. 2001
On May 8, 2001, Fietz approached Vician in a conference room and discussed matters involving this case and the other class action cases pending against Associates. Vician Aff. ¶ 26. At that time, Fietz stated to Vician that Associates would continue to protract this litigation, at significant expense to Bowman Heintz, unless Vician would finally cause to be dismissed other cases that Vician was litigating against Associates. Id. ¶ 26.F. FACTS RELATED TO BORNS HIS ASSOCIATION WITH THE PARTIES IN THIS SUIT
Borns is an attorney affiliated with the law firm Spangler Jernnings Dougherty, of Merrillville, Indiana. Borns Nov. 17, 2001, Dep. at 14, 56. Borns resides in southern California. Id.
Fietz testified during his February 8, 2000, deposition that he was somewhat familiar with Borns because "some years ago he had a case that I was part of, a small case, I believe; and then I was told the files were being transferred from Bowman Heintz to Clarence Borns and requested information from him." Fietz Dep. at 138. Apparently, when Bowman Heintz terminated its relationship with Associates, it sent any collection files it had in its possession to Spangler Jennings Dougherty, and Borns. Id. at 139. At the time of the transfer in late 1998, Bowman Heintz and Spangler Jennings Dougherty were the only two NAN-approved firms in Indiana. Knochel Dep. at 4-6.
Borns testified on November 17, 2001, that he did not know Fietz. Borns Nov. 17, 2001, Dep. at 41. However, he recalls Associates' collection account files being transferred from Bowman Heintz to Spangler Jennings Dougherty, but not the time frame in which the transfer occurred. Id. at 46.
Borns testified that he thought he learned about the instant lawsuit in the spring of 2000. Id. at 19, 85-86. Borns stated that he believed he had found reference to the case doing a search on the Southern District of Indiana website for Fair Debt Collection Practices Act cases. Id. at 88-89. Later, he received a copy of the complaint in this cause from Gregory Purvis, another attorney associated with Spangler Jennings Dougherty. Id. at 86.
Borns and Bowman Heintz have been, and apparently currently are, adverse parties in at least two lawsuits. See Pl.'s Exh. 9, Compl., Bowman, Heintz, Boscia McPhee, P.C. v. Spangler, Jennings, Dougherty, P.C., Cause No. 45C019307CP 1137 (Lake Superior Court, Hammond Ind. Nov. 21, 1995); Pl.'s Exh. 10, Compl. for Damages Jury Demand, Bowman, Heintz, Boscia Vician, P.C. v. Borns, Cause No. 45C010112CP01272 (Lake Superior Court, Hammond Ind. Dec. 13, 2001). Moreover, Borns has alleged that Bowman Heintz has been pursuing a disciplinary claim against him before the Indiana Supreme Court Disciplinary Commission. Pl.'s Exh. 11.
Gregory Purvis ("Purvis") testified that prior to his employment with Spangler Jennings Dougherty, Purvis was a private practitioner that sometimes made appearances in Indianapolis cases for that firm. Purvis Dep. at 12-16. Purvis testified that either Borns or someone else affiliated with Spangler Jennings Dougherty had asked him to obtain a copy of the complaint in this cause. Purvis Dep. at 16. Purvis does not recall the exact date of this request. Id. However, Purvis later identified a receipt dated November 29, 1999, for a copy of the complaint that he received from the United States District Court for the Southern District of Indiana, Indianapolis Division. Id. at 19. At the Preliminary Injunction Hearing in this cause, Mr. Clark Mercer ("Mercer") appeared as an expert on handwriting on behalf of Bowman Heintz. Prelim. Inj. Hrg. Tr. at 45, 50. Mercer examined two priority envelopes, Plaintiff's Exhibits 8 and 9, to identify who addressed those envelopes. Id. at 50-51. Based on his examination of the envelopes and examples of Borns' handwriting, Mercer concluded that Borns wrote the addresses on the envelopes. Id. at 51-52.
The return address on at least one of the envelopes had the same street address as that of Associates' real estate service center: 1111 Northpoint Drive, Coppell, Texas 75019. Fietz Dep. at 142. That envelope's return address also contained a suite address, Suite 100, which Fietz could not identify. Id. Fietz testified that he did not recognize the handwriting on the envelope. Id. at 144. Moreover, Fietz testified that he had no knowledge that Associates sent anything to Ford Credit, although he acknowledged that someone had sent the envelope there, because it had in fact shown up there. Id. at 143-44. In response to the question of why Associates' real estate services center's address appeared on the envelope, Fietz said "it makes no sense to me." Id. at 144.
Certified records from the clerk of the Lake County Circuit Court indicate that Borns filed new collection cases on behalf of Associates, or its corporate affiliates, subsequent to the date Associates filed its complaint against Bowman Heintz on November 8, 1999. Defs.' Exh. 37.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R Civ. P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Wollin v. Gondert, 192 F.3d 616, 620 (7th Cir. 1999); Schroeder v. Barth, Inc., 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco. Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. See Wollin, 192 F.3d at 621.
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Id.
III. DISCUSSION
Associates has moved for summary judgment on Bowman Heintz's three remaining counterclaims: defamation, abuse of process and tortious interference with contracts. The Court addresses each claim in turn.A. DEFAMATION
Bowman Heintz asserts that the facts and inferences drawn in its favor would lead a jury to conclude two separate acts of defamation: (1) Borns, on Associates' behalf, sent copies of the complaint in this cause to Bowman Heintz clients, with the intent to cause, and which actually caused at least one client, to terminate its relationship with Bowman Heintz; and (2) Fietz defamed Bowman Heintz to Ford Credit in his conversations with Godre and Frank when he discussed the content of the complaint in this cause with those individuals and asked them whether or not they intended to maintain Ford Credit's relationship with Bowman Heintz in light of the allegations therein, and defamed Bowman Heintz in a conversation with Wolpoff. Bowman Heintz asserts that the content of the complaint is defamatory as a matter of law.
Associates has moved for summary judgment because it asserts that there is no evidence to support Bowman Heintz's allegations of defamation with respect to either instance of communication. Associates contends that there is no evidence that Borns, if he sent copies of the complaint in this cause to third parties, acted as an agent of Associates such that Associates could be held liable for defamation. Associates also contends that Bowman Heintz has presented no evidence of a particular defamatory statement made by Fietz to either Godre, Frank or Wolpoff. Therefore, its claim for defamation must fail.
The Court agrees with Associates with respect to both instances of alleged defamation: there is no issue of fact and Associates is entitled to judgment as a matter of law that no defamation occurred. To maintain an action for defamation, Bowman Heintz must prove a communication with four elements: (1) defamatory imputation; (2) malice; (3) publication; and (4) damages. Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 522 (Ind.App. 2001), (citing N. Ind. Pub. Serv. Co. v. Dabagia, 721 N.E.2d 294, 301 (Ind.App. 1999), trans. denied (2000)). A communication is defamatory per se under well-settled common law rules 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. Id. In addition, the defamatory nature of the communication must appear without resort to extrinsic facts or circumstances. Id. The determination of whether a communication is defamatory is a question of law. Id. Of course, not all defamation is actionable. For example, true statements never give rise to liability for defamation. Id. Bowman Heintz alleges two types of defamation, libel and slander.
Associates' challenge to Bowman Heintz's defamation claims turns on the third element, publication. Associates contends that Bowman Heintz has not shown a material issue of fact on whether Borns published the complaint in this cause to third parties, or whether Fietz made a defamatory statement to Godre, Frank or Wolpoff. The Court addresses each type of alleged defamation in turn.
1. Allegations of Libel
With respect to Bowman Heintz's allegation that Associates, through Borns, improperly published to third parties the complaint in this cause, the Court finds that the facts do not support an inference that Borns' actions were taken on behalf of Associates. Bowman Heintz asserts that Borns had either actual, apparent or inherent authority to mail unsolicited copies of the complaint to Bowman Heintz's clients. Each of Bowman Heintz's agency theories is addressed in turn.
a. Actual Authority — There is no evidence that Borns had actual authority from Associates to mail complaints to Bowman Heintz clients. "Actual authority exists where the principal has in fact authorized the agent to enter into [an activity] on behalf of the principal." Carr v. Runyan, 89 F.3d 327, 331 (7th Cir. 1996) (citing TV. Assurance Co. of Am. v. Summers, 17 F.3d 956, 960 (7th Cir. 1994) (citing Ind. Dep't of Pub. Welfare v. Chair Lance Serv., Inc., 523 N.E.2d 1373, 1377 (Ind. 1988))). Such "authorization may be expressly conveyed orally or in writing, or it maybe implied by actions of the principal that would lead a reasonable agent to believe that he possessed such authority." Id. For purposes of this motion, Associates assumes that Borns sent at least two copies of the complaint to Ford Credit. Pl's Br. in Supp. at 12.
First, there is no evidence that Borns sent the complaint in this cause to Bowman Heintz clients other than Ford Credit. The only evidence presented to this Court that connects Borns to the mailing of any of the complaints at all is the testimony of Mercer at the Preliminary Injunction Hearing in this matter. See Prelim. Inj. Ffrg. Tr. at 50-52. Mercer testified that based on his examination of the two envelopes and samples of Borns' handwriting, he concluded that Borns wrote the address on the two envelopes. Id. at 51-52. The evidence cited to the Court suggests that at least one of those envelopes was received by Ford Credit. Fietz Dep. at 143-44. Therefore, publication of the complaint that is predicated on an agency theory that involves Borns' involvement must be limited to the copies of the complaint sent to Ford Credit.
Second, contrary to Bowman Heintz's assertion, there is no evidence that Borns found out about the lawsuit through Fietz or anyone else at Associates. Both Fietz and Borns testified that they had never spoken about this cause. Borns Nov. 17, 2001, Dep. at 41; Fietz Dep. at 18-19. Fietz's testimony reveals that any conversation that may have occurred between them was related to collection accounts, not this suit. Fietz Dep. at 138. In addition, whatever conversation the two men had, it could not have been memorable for Borns because he does not recall knowing Fietz at all. Borns Nov. 17, 2001, Dep. at 41.
Furthermore, nothing in the testimony of the two men corroborate the timing of a conversation between Fietz and Borns that Bowman Heintz asserts must have occurred. Fietz testified that he received copies of files from Borns after Bowman Heintz terminated its representation of Associates for certain collection accounts via Vician's letter dated December 1, 1998. Fietz Dep. at 138; Pls.' Exh. 47, Letter, To: Eric Haab, Scott R. Leisz, From: Glenn Vician, RE: American Assignment Co. vs. Gilliam, et al, Dec. 1, 1998, at 1. Fietz's testimony does not reveal any other time frame for his conversations with Borns. See Fietz Dep. at 138-39. Based on the date of the receipt from this Court for the copy of the complaint that Purvis signed for, and by inference, that Purvis forwarded to Borns shortly thereafter, Borns received the complaint in this cause sometime in late November or early December 1999, nearly a year later than transfer of Associates' collection accounts from Bowman Heintz to Borns' firm. Purvis Dep. at 19. There is no evidence that Borns and Fietz talked regularly enough to create an inference that Fietz communicated information to Borns about this lawsuit, either purposefully or in passing, that would have prompted Borns to obtain a copy of the complaint in this cause, then disseminate it to Bowman Heintz clients. In other words, there is no evidence that Fietz communicated an agency relationship to Borns, or that Borns accepted a role as agent based on the actions of Fietz.
Bowman Heintz makes much of the fact that the return address on at least one of the envelopes addressed by Borns uses an Associates affiliates' address. Apparently, Bowman Heintz wants a jury to infer actual authority from Borns' choice of return address. It asks too much. There is no evidence of other contact between Borns and Associates that would support such an inference, and without more, the leap in logic is too far.
For these reasons, the Court finds there is no question of material fact that Borns had actual authority to mail unsolicited copies of the complaint in this cause to Ford Credit. b. Apparent Authority — There is also no evidence that Borns had apparent authority to mail the complaint in this cause to Bowman Heintz clients. Apparent authority exists where the actions of the principal gives a third party who is the subject of action by the agent the reasonable impression that the agent has the authority to take the action on behalf of the principal. See Carr, 89 F.3d at 331. The existence of apparent authority turns on whether the principal's actions cause the third party to reasonably believe that the agent had authority to carry out the act. See id. at 331-32; see also Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000) (stating that "[a]pparent authority refers to a third party's reasonable belief that the principal has authorized the acts of its agent; it arises from the principal's indirect or direct manifestations to a third party and not from the representations or acts of the agent" (citations omitted)).
Bowman Heintz argues that Borns, as Associates' attorney in certain matters, was cloaked with authority to act on its behalf in sending out the complaint in this matter to Bowman Heintz clients. In other words, the nature of the attorney/client relationship between Borns and Associates, in addition to the other facts of when Borns apparently became aware of this lawsuit, gives rise to the inference that Borns' actions in sending the complaint to Ford Credit was authorized by Associates. Defs.' Mem. in Opp'n, at 34-37 (citing and discussing Am. Society of Mech. Eng'rs, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982); Dominion Investments v. Yasechko, 787 F. Supp. 1460 (N.D. Ind. 1991) Rothers Constr., Inc. v. Centurion Indus., Inc., 786 N.E.2d 644, 653 (Ill.Ct.App. 2003); Edelman Combs Latturner v. Hinsahwa and Culbertson, 748 N.E.2d 740 (Ill.Ct.App. 2003); Horwitz v. Holabird Root, 726 N.E.2d 632 (Ill.Ct.App. 2000)).
The problem with Bowman Heintz' argument is that it seems to miss the point of apparent authority. Apparent authority arises because the principal has manifested to a third party its intent to cloak the agent with authority. See Menard, 726 N.E.2d at 1210. In this case, there is no evidence that Associates manifested its intent to Ford Credit, or any other Bowman Heintz client, to cloak Borns with its authority to do anything on its behalf. In other words, there is no evidence that Godre or Frank at Ford Credit knew about any attorney/client relationship (or any other relationship) between Associates and Borns, which is necessary evidence to give rise to an inference of apparent authority. Moreover, there is no evidence that anyone at Bowman Heintz's clients knew who had sent the complaints to them, which again belies any claim that Associates manifested its intent to the clients that the person who did send the complaints did so on Associates' behalf.
For these reasons, the Court finds that there is no question of material fact that Borns was Associates' apparent agent when and/or if he sent the complaint in this cause to Bowman Heintz clients.
c. Inherent Authority — Finally, there is no evidence that Borns was Associates' inherent agent with respect to any alleged mailing of the complaint. In the year 2000, the Supreme Court of Indiana in Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210-13 (Ind. 2000), adopted the Restatement (Second) of Agency standards for liability of a principal for acts of an agent with inherent authority. Inherent agency authority arises from an agency relationship that already exists and protects persons harmed by or dealing with the agent. Id. at 1211 (citations omitted). The comment in the Restatement explains it best when it describes inherent authority as:
power held by an agent, the exercise of which [is] effective to subject the principal to liability in transactions in which the agent has neither authority nor apparent authority, but in which the agent derives his power wholly from his relation with the principal. [It is] called inherent agency power since there is no other common designation which adequately describes [it].
Restatement (Second) of Agency § 161 cmt. a (195 8). This is a status-based form of vicarious liability that "`rests upon certain important social and commercial policies,' primarily that the "`business enterprise should bear the burden of the losses created by the mistakes or overzealousness of its agents [because such liability] stimulates the watchfulness of the employer in selecting and supervising the agents.'"" Menard, 726 N.E.2d at 1211 (quoting In re Atl Fin. Mgmt., Inv., 784 F.2d 29, 32 (1st Cir. 1986) (alteration by the First Circuit) (quoting W. Seavey, Handbook of the Law of Agency § 91 (1964)), cert. denied, 481 U.S. 1072 (1987)). "[T]he concept of inherent authority . . . `originates from the customary authority of a person in the particular type of agency relationship so that no representation beyond the fact of the existence of the agency need be shown.'" Id. (quoting Cange v. Stotler Co., 826 F.2d 581, 591 (7th Cir. 1987) (citing Restatement (Second) of Agency § 161 cmt. b (1958))). An agent's inherent authority subjects his principal to liability for acts done on the principal's account that (1) accompany or are incidental to transactions that the agent is authorized to conduct, that (2) although they are forbidden by the principal, the other party reasonably believes that the agent is authorized to do them, and that (3) the other party has no notice that the agent is not so authorized. Id. at 1212 (citing Restatement (Second) of Agency § 161).
Bowman Heintz argues that inherent agency principles apply to Borns and Associates in this case. Specifically, Bowman Heintz points to the ongoing attorney/client relationship between Borns and Associates on collection cases that gives Borns agency authority. Bowman Heintz cites Horwitz v. Holabird Root, 726 N.E.2d 632 (Ill.Ct.App. 2000), for the proposition that "`anattorney's errors and misconduct are attributed to his clients; clients are principals, the attorney is an agent, and under the law of agency, the principal is bound by his chosen agent's deeds.'" Defs.' Mem. in Opp'n, at 34-35 (quoting Horwitz, 726 N.E.2d at 635). Bowman Heintz asserts that the manner in which Ford Credit, and the its other clients, received unsolicited copies of the complaint in this case is consistent with the manner in which other third parties received unsolicited copies of the complaint, including those sent to attorneys Haab and McTurnan, and those sent to Bowman Heintz's non-party shareholders. Moreover, Bowman Heintz asserts, sending the complaint to third parties is consistent with Haab's alleged threat to Vician in 1998, and with Fietz's threat to Vician in May 2001. According to Bowman Heintz, the May 2001 threat is particularly enlightening because it coincides with the May 2001 delivery of the complaint to Ford Credit upon which the note appeared informing the recipient that Sears had terminated its relationship with Bowman Heintz. These facts, Bowman Heintz contends, in conjunction with the return address on the envelopes to Ford Credit, and Associates' failure to repudiate the actions of Borns, leads to an inference that Borns, acting as Associates' attorney, mailed the unsolicited copies of the complaint to Bowman Heintz's clients.
Associates asserts that Bowman Heintz has not shown that Borns' actions were connected in any way to the cases for which Associates made him its agent. Under these circumstances, Associates contends, the rule in Horwitz cannot apply, but the rule espoused by Edelman, Combs Latturner v. Hinshaw Culbertson, 788 N.E.2d 740, 752 (Ill.Ct.App. 2003), would apply. Pl's Reply, at 10-11.
The Court agrees with Associates. First, Bowman Heintz relies upon the fact that Associates' counsel in this cause sent the complaint to three third-party attorneys as evidence that Associates' somehow ratified dissemination of the complaint to third-parties generally. However, the facts show that the third-party attorneys to whom Associates sent the complaint received it either because they had input into its contents and were engaged in litigation in opposition to Bowman Heintz(McTurnan and Haab as attorneys in Gilliam and Troup), the complaint was attached to another matter of relevance to a lawsuit (the copy to Touhy), the attorney had been sued by a plaintiff represented by Bowman Heintz and wanted more information about Bowman Heintz (the first copy to Jensen), or the attorney was representing Borns (the second copy to Jensen), the alleged "agent" of Associates' libel. These were all legitimate and/or privileged reasons for Associates' attorney-in-fact for this lawsuit to send out copies of the complaint. Moreover, the copies of the complaints sent to these parties were sent by an entirely different law firm than that of Borns. There is no evidence to support the inference that Associates directed all of the law firms with whom it dealt to send copies of complaints in this manner, or that this was the custom or practice of Borns' law firm as well.
The Court has already held in another order that sending the complaint to Bowman Heintz's non-party shareholders is privileged. Order on Cross-Motions for Summary Judgment, at 16.
Second, in the cases in which a client has been held responsible for the tortious acts of its attorney, the attorney was representing the client in the matter related to the tortious act. In Horwitz, a law firm represented a client against a debtor and obtained a judgment against the debtor. Id. at 633. In the course of obtaining payment on the judgment, the law firm obtained information about the debtor's limited partners and other investors. Id. The law firm sent letters to the debtor's limited partners and other investors in which it stated it represented the client "`who have a judgment against'" the debtor. Id. at 634 (quoting letter). In addition, the letters stated that the debtor had reported losses to the Internal Revenue Service in an amount greater than that to which it was entitled and suggested that the debtor had also under reported the limited partners' and investors' share of the loss. Id. The law firm did not recall if it had sent a copy of the letter to its client, but averred it was acting in the scope of its authority when it sent the letter. Id. The client denied seeing the letter. Id.
The debtor sued the client for defamation and tortious interference with business relationships claiming that the client was liable for the act of the law firm in sending out the letter in the course of its representation of the client. Id. The Horwitz court held that "an attorney's errors and misconduct are attributed to his clients; clients are principals, the attorney is an agent, and under the law of agency, the principal is bound by his chosen agent's deeds." Id. at 635 (citing Diersen v. Chi. Car Exch., 110 F.3d 481 (7th Cir. 1997) (omission of pinpoint citation in original)). The context of the Horwitz court's discussion of this issue is related to activity within the scope of the attorney's employment. See id. The Horwitz court went on to hold that if the act of the law firm was outside the scope of its authority, then the client could be held liable if it had ratified the law firm's conduct by acquiescence. Id. at 636. Generally, Indiana follows the rule that an attorney/client relationship is one of agent/principal. See United Farm Bureau Mut. Ins. Co. v. Groen, 486 N.E.2d 571, 573 (Ind.Ct.App. 1985) ("An attorney representing a client is not a party to the litigation, he acts on behalf of and in the name of the client. The attorney is the agent of the party employing him, and in court stands in his stead.") (citing Ferrara v. Genduso, 214 Ind. 99, 14 N.E.2d 580, 581 (1938)). However, the context in which the principal/client is held responsible for the acts of the attorney/agent relate to "all acts in or out of court necessary or incidental to the prosecution or management of the suit or defense or the accomplishment of the purpose for which he was retained." Id. (citing 7A CIS Attorney Client § 191).
The dissent in Horwitz concluded that an attorney/client relationship is not one of agency, but one of independent contractor. Id. at 637 (Hoffman, J. dissenting). Moreover, the dissent found that even if the law firm was the agent of the client when it sent the letters, the letters were sent without the client's knowledge and consent, or were outside the purpose for which the attorney was hired, therefore, without ratification, there should be no liability. Id. at 638.
In the case at bar, there is no evidence that Associates retained Borns to represent it in this lawsuit or in any suit against Bowman Heintz. Moreover, there is no evidence that Borns obtained the complaint in this cause at Associates' behest or because someone at Associates told Borns to obtain the copy. Bowman Heintz suggests that the facts that Fietz communicated with Borns about collection cases, that Borns testified that he "thought" he stumbled upon the suit doing a search on the internet in 2000 and testified that he did not know Fietz, coupled with Funds' testimony about obtaining a copy of the complaint at Borns' request, and the signed receipt dated in November of 1999, shows that Borns thought he would be furthering his representation of Associates on unrelated causes if he sent the complaint to Bowman Heintz's clients. Bowman Heintz would have a jury, or the Court, believe that Borns did this because of his attorney/client relationship with Associates on matters unrelated to this case or any case in which Bowman Heintz was involved. The Court finds that inference too far afield from the scope of Borns' attorney/client relationship with Associates to imply that Borns sent any complaint acting as Associates' attorney. There is no evidence that Associates would somehow benefit from having Bowman Heintz's clients know about the contents of the complaint. Therefore, the inference that Borns sent the complaints with "implied authority to do on behalf of the client all acts in or out of court necessary or incidental to the prosecution or management of the suit or defense or the accomplishment of the purpose for which he was retained" has no support. Groen, 486 N.E.2d at 573. Any action by Borns to send the complaint to third parties neither accompanied nor were incidental to transactions that he was authorized to conduct as required for liability under the Restatement's version of inherent authority. Cf. Edelman, Combs Latturner v. Hinshaw Culbertson, 788 N.E.2d 740, 752-53 (Ill.Ct.App. 2003). Moreover, there is no evidence that Ford Credit, or the other Bowman Heintz clients that received unsolicited copies of the complaint, knew or had reason to know the complaint was sent by an attorney who represented Associates in collection matters or that it was Borns who sent it. Therefore, there is no question of fact on whether or not the third parties reasonably believed Borns had authority from Associates to send the unsolicited copies of the complaint.
It is for this same reason that Bowman Heintz's attempt to create a ratification argument fails. In Indiana, ratification requires that the principal benefit from the action of its agent. See Dominion Investments v. Yasechko, 767 F. Supp. 1460, 1468 (N.D. Ind. 1991) (stating that the rule in Indiana is that "ratification does not occur unless it appears that the act was performed for and on behalf of another, and not on account of the actor himself). It is not enough to show that Bowman Heintz might have or actually did suffer a detriment. Moreover, there is evidence to suggest that Borns had his own reasons for wanting to discredit Bowman Heintz — he wanted their collection business for his own firm. Pl's Exh. 10, Compl. for Damages Jury Demand, Bowman, Heintz, Boscia Vician, P.C. v. Borns, Cause No. 45C010112CP01272, at 1-2 (Lake Superior Court, Hammond Ind. Dec. 13, 2001) (accusing Borns of using his knowledge of contracts Bowman Heintz had for collection business to attract business for another firm, Spangler, Jennings Dougherty).
For these reasons, the Court finds that there is no issue of material fact that Borns had inherent authority to send the complaints to Bowman Heintz's clients. Associates' motion for summary judgment on Bowman Heintz's libel claim should be GRANTED.
2. Allegations of Slander
With respect to Bowman Heintz's assertions that Fietz orally defamed Bowman Heintz to Godre, Frank and Wolpoff, the Court finds that Bowman Heintz has failed to evidence any defamatory statements that Fietzmade to any of these individuals; therefore, Bowman Heintz's allegations of slander do not survive summary judgment.Bowman Heintz contends that considering all the facts surrounding the conversations between Fietz and Godre, Frank or Wolpoff, the Court and the jury could conclude that Fietz made defamatory comments about Bowman Heintz to those parties. Bowman Heintz argues that the defamatory statement need not be made by direct language; rather, the defamatory statement may be implied. Defs.' Mem. in Opp'n, at 40-41 (citing Cochran v. Indianapolis Newspapers, Inc., 372 N.E.2d 1211, 1217 (Ind.Ct.App. 1978)). According to Bowman Heintz, "[t]here is no doubt from Godre and Frank's perspectives and impressions that the statements made by Fietz were derogatory in nature regarding the integrity and character of the law firm and Vician." Id. at 41. Specifically, Bowman Heintz asserts that Godre and Frank recall with sufficient specificity that Fietz challenged the integrity and character of Bowman Heintz and that Fietz questioned whether or not Ford Credit would continue to use Bowman Heintz. Bowman Heintz argues that the he said/she said arguments provided by Associates should go to the jury.
With respect to Fietz's conversation with Wolpoff, Bowman Heintz asserts that Bowman's affidavit sufficiently creates an issue of fact on whether or not Fietz's statement to Wolpoff were defamatory. In contrast, Associates contends that there is no evidence that Fietz defamed Bowman Heintz to Ford Credit or Wolpoff. Feitz denies he said anything defamatory. Fietz Aff. ¶¶ 1, 3, 5. The evidence Bowman Heintz points to, Associates asserts, is characterizations of what Fietz allegedly said, not Fietz's comments, or were Fietz's unverifiable opinions, neither of which may form the basis for defamation. Pl's Reply, at 14. Associates specifically points to the inability of either Godre or Frank to recall exactly what Fietz said to them about Bowman Heintz and avers that "`[f]ederal notice pleading, which governs here, requires a plaintiff to set forth the exact defamatory statement.'" Id. (quoting Levitt v. S. C. Food Serv., Inc., 820 F. Supp. 366, 368 (N.D. Ill. 1993)). In essence, Associates argues that with only fuzzy recollections of the conversations, Bowman Heintz cannot make its case for defamationas to Fietz's alleged comments to Godre and Frank.
With respect to Bowman Heintz's allegations that Fietz defamed Bowman Heintz to Wolpoff, Associates asserts that Bowman's affidavit, and Wolpoff's subsequent confirmation of it only prove that Wolpoff spoke with Bowman, not that Fietz defamed Bowman Heintz to Wolpoff. Moreover, Associates contends that Wolpoff testified that the only thing that Fietz said to him was factual: Associates had terminated its relationship with Bowman Heintz. In addition, Wolpoff testified that Fietz never made a disparaging remark about Bowman Heintz. Id. at 21-22.
The Court finds that there is no evidence that Fietz defamed Bowman Heintz in his conversations with Godre, Frank or Wolpoff. Whether or not a statement is defamatory is a question of law for the Court. See Dilworth v. Dudley, 75 F.3d 307, 309-10 (7th Cir. 1996) (finding the question a matter of federal procedural law, as well as a matter of law in Wisconsin); Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App. 1992) (finding the question a matter of law in Indiana). In Indiana, if the communication is "reasonably susceptible to either defamatory or non-defamatory interpretation," the determination is for a jury. Id.
Bowman Heintz asserts that Godre's and Frank's deposition testimony evidences that Fietz's comments to them were defamatory because they were left with a negative impression of Fietz's feelings about Bowman Heintz. The argument is something of a "slander in the air" argument because the testimony of both Godre and Frank evidence that neither of them could recall exactly what Fietz said. See Godre Dep. at 22-25; Frank Dep. at 18-20. Indiana case law, though old, suggests that "slander in the air" is not enough; the plaintiff seeking relief must plead the words used to recover for defamation. See Branaman v. Hinnkle, 137 Ind. 496, 37 N.E. 546, 548 (1894) (requiring that "the language employed . . . be set forth" to allow the court to determine the sufficiency of the statement to support a defamation claim); see also Ernst v. Ind. Bell Tele. Co., 475 N.E.2d 351, 354 (Ind.Ct.App. 1985) (affirming a trial court's dismissal of a defamation claim where the plaintiff could not tell the court "the precise statements made by [defendants], [and] . . . does not explain how they lied. Such broad generalizations, of and to themselves, are not actionable defamation."). This policy makes sense in light of a court's role to determine whether or not a statement is defamatory because without knowing the precise statement, there is no way to determine whether or not it is defamatory.
Bowman Heintz tries to avoid this rule by pointing to cases in which the court found that the libelous meaning was an inference to be drawn from the facts and circumstances surrounding the utterance. See Local 15 of Ind. Wkrs. v. Int'l Bro. of Elec. Wkrs., 273 F. Supp. 313, 320 (N.D. Ind. 1967) ("In determining whether words are actionable, the words allegedly used are to be given their natural and ordinary maeaning under the circumstances in which they were uttered, . . . according to the ideas they were intended to, or did, convey. . . . [T]he published words must be placed in context or connected with extrinsic facts or circumstances for the allegedly defamatory meaning to become apparent." (citations omitted)); Cochran v. Indianapolis Newspapers, Inc., 372 N.E.2d 1211, 1217 (Ind.Ct.App. 1978) (stating that "a defamatory charge does not have to be made indirect, positive language, but maybe implied . . . and the language relied on as libelous must be judged in light of facts known by those to whom it is addressed" (citations omitted)). But, in each of those cases, the plaintiffs had evidence of the libelous terms. In this case, there is no evidence of what defamatory remark Fietz uttered during his conversations with either Godre or Frank. Cf. Chestnut v. K-Mart Corp., 529 N.E.2d 131, 135-36 (Ind.Ct.App. 1988) (affirming summary judgment for the defendant on the plaintiff's defamation claim because the only testimony supporting her allegation of slander did not reveal any defamatory utterance to a third party). Moreover, the question in the cases that Bowman Heintz cites is one of whether or not the words published could possibly have a defamatory meaning. In this case, there is no evidence of what Fietz said; therefore, it is impossible for the Court to determine whether or not it was defamatory. Accord Branaman, 37 N.E. at 548.
Bowman Heintz's argument with respect to statements Fietz may have made to Wolpoff fails for much the same reason. Wolpoff specifically testified at his deposition that, to the best of his knowledge at the time, his conversation with Fietz was limited to the fact that Associates terminated its relationship with Bowman Hientz — a true fact — and not defamatory. Wolpoff Dep. at 28. Bowman's affidavit shows that Wolpoff spoke with Bowman about his conversation with Fietz; but it says little about what defamatory comment Fietz made to Wolpoff. Bowman Aff. ¶¶ 9-10. Paragraph 9 merely recites a true statement: that Associates had sued Bowman Heintz for breach of fiduciary duties and other improper conduct. See id. ¶ 9. Moreover, paragraph 10 also recites that "Fietz had described certain facts and events" to Wolpoff related to Associates' contentions of improper conduct. Id. ¶ 10 (emphasis added). Statements of fact are not actionable for defamation. See Bone v. City of Lafayette, Ind., 919 F.2d 64, 66 (7th Cir. 1990). A description of "events" is nothing but a series of facts that describe what happened. Without more information about how Fietz might have described those "facts and events," there is no evidence of an actionable defamatory statement that Fietz made to Wolpoff. Accord Chestnut, 529 N.E.2d at 135-36 (affirming the grant of summary judgment to defendant on the basis that plaintiff had failed to evidence a defamatory statement made by defendant to a third party). In other words, the statements contained in Bowman's affidavit that Bowman Heintz would attribute to Fietz are not defamatory because they are not "definite enough to allow a jury to determine if what [Fietz said was] true or false." Dilworth, 75 F.3d at 309.
For these reasons the Court finds that Bowman Heintz has failed to evidence a material question of fact on whether or not Fietz slandered the firm to Godre, Frank or Wolpoff. Associates' motion for summary judgment on Bowman Heintz's slander claim should be GRANTED.
B. ABUSE OF PROCESS
In its abuse of process counterclaim Bowman Heintz alleges that Associates filed this suit to obtain improper advantage over Bowman Heintz in other litigation that the law firm has pending against the company. Namely, the lawsuits over which Bowman Heintz contends that Associates seeks an advantage are Zimmerman, Gess v. Associates First Capital Corp., Cause No. 2:00 CV 565, American Assignment v. Gilliam, Cause No. 81 C01-0201-MF-5, and American Assignment v. Martin, Cause No. 45C01-9905-CP-1436. Bowman Heintz avers that the filing of the complaint was an abuse of process in itself as evidenced by the threats of Haab and Fietz to Vician. Bowman Heintz asserts that it has standing to bring this claim because Associates' business records show that in February 1999, Associates was treating American Assignment and "Bowman" as one and the same. Defs.' Exh. 30, Associates' 1999 RMS Contract Masters (noting on several records that the account was "Sold to Bowman." Id. But see Defs.' Exh. 31, Associates' 2001 RMS Contract Masters (not containing the same buyer for those records).In contrast, Associates contends that Bowman Heintz lacks standing to bring an abuse of process claim against it because Bowman Heintz is not a party to those actions. In addition, with respect to Martin, Associates asserts that neither Bowman Heintz or American Assignment has asserted a claim against Associates. Shockley Aff. ¶ 13. With respect to Zimmerman, Associates asserts that American Assignment's claims against Associates arose after the complaint in this cause was filed. Id. at 3. And, with respect to Gilliam, Associates asserts that Bowman Heintz is not a party, although American Assignment is a party. Id. at 3. Under these circumstances, Associates argues, Bowman Heintz has no interest in the litigation over which it claims Associates was using this action as leverage. Pl.'s Replay, at 23. In other words, Bowman Heintz simply has no injury with respect to any alleged abuse of process; therefore, it lacks standing.
The Court agrees with Associates that Bowman Heintz does not have a legal right or interest with respect to the three actions described by Bowman Heintz as the object of Associates' alleged abuse of process. Without that legal right or interest, Bowman Heintz lacks standing to bring an abuse of process claim based on those actions. Standing is a "threshold requirement intended to insure that the party before the court has the substantive right to enforce the claim being asserted." Fort Wayne Educ. Ass'n v. Ind. Dep't of Educ., 692 N.E.2d 902, 904 (Ind.Ct.App. 1998) (citations omitted, alteration by this Court). "`[T]o invoke a court's jurisdiction, a plaintiff must demonstrate a personal stake in the outcome of the lawsuit and must show that he or she has sustained or was in immediate danger of sustaining, some direct injury as a result of the conduct at issue.'" Schloss v. City of Indianapolis, 553 N.E.2d 1204, 1206 (Ind. 1990) (quoting Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985)).
Abuse of process has two elements: (1) an ulterior purpose, and (2) a willful act in the use of process not proper in the regular conduct of the proceeding. See Glass v. Trump Ind., Inc., 802 N.E.2d 461, 465 n. 2 (Ind.Ct.App. 2004) (citing Reichhart v. City of New Haven, 674 N.E.2d 27 (Ind.Ct.App. 1996), trans. denied). "Abuse of process requires a finding that the legal process has been utilized to achieve an end other than one which the process was designed to accomplish." Cent. Nat'l Bank of Greencastle v. Shoup, 501 N.E.2d 1090, 1095 (Ind.Ct.App. 1986).
In part, to support its argument that it does have standing, Bowman Heintz points to business documents that refer to the buyer of certain Associates accounts as "Sold to Bowman" when in actuality, they were sold to American Assignment. Bowman Heintz argues that this evidence shows that to Associates, Bowman Heintz and American Assignment are one and the same; therefore, pressure against Bowman Heintz was pressure against American Assignment. However, there is no dispute that Bowman Heintz and American Assignment are legally separate entities. The rights and liabilities of those two entities may be intertwined by the attorney/client privilege and by common shareholders, yet their rights vis-a-vis any litigation in which American Assignment is a party are clearly separate. Accord Conn v. Gabbert, 526 U.S. 286, 292-93 (1999) (finding that an attorney could not assert the civil rights of his client); Shoup, 501 N.E.2d at 1097 (stating that "[a] wrong against one party does not automatically constitute a wrong against another"). See also Swanson v. Bixler, 750 F.2d 810, 814 (10th Cir. 1984); Martel v. City of Newton, 6 F. Supp.2d 1243, 1247 (D. Kan. 1998). The alleged threats about dropping American Assignment's claims against Associates in Gilliam must be taken as willful acts against American Assignment rather than Bowman Heintz because Bowman Heintz, nor Vician, were parties in the Gilliam suit. For these reasons, the Court finds that Bowman Heintz lacks standing to bring an abuse of process counterclaim against Associates in this action; Associates' motion for summary judgment on Bowman Heintz' abuse of process claim should be GRANTED.
C. TORTIOUS INTERFERENCE WITH CONTRACT
Bowman Heintz has also brought a counterclaim against Associates for tortious interference with contract. Specifically, Bowman Heintz alleges that Associates intentionally interfered with Bowman Heintz's contracts with Chrysler, Sears and Ford Credit when Borns, or someone else affiliated with Associates, mailed the complaint in this case to those third-party entities.Associates contends that Bowman Heintz has not evidence that Borns mailed the complaint, if he mailed it, as an agent of, or with the authority of Associates. Therefore, there is no evidence that Associates intentionally induced any of those entities to breach its contract with Bowman Heintz.
The Court agrees with Associates that Bowman Heintz has not evidenced that Borns mailed the complaint as an agent of or with the authority of Associates and summary judgment on this claim is appropriate. To establish a claim for tortious interference with contract, Bowman Heintz must prove by a preponderance of the evidence the following elements: (1) the existence of a valid and enforceable contract; (2) Associates' knowledge of the existence of the contract; (3) Associates' intentional inducement of breach of contract; (4) the absence of justification; and (5) damages resulting from Associates' wrongful inducement of the breach. Levee v. Beeching, 729 N.E.2d 215, 221 (Ind.Ct.App. 2000) (citing Biggs v. Marsh, 446 N.E.2d 977, 983 (Ind.Ct.App. 1983)). As discussed in Section A.1.a. of this order, there is no evidence that Borns or anyone Associates mailed unsolicited copies of the complaint to Chrysler or Sears. Therefore, there is no evidence that Associates' intentionally induced either of those Bowman Heintz clients to breach their contracts with Bowman Heintz.
Moreover, with respect to Ford Credit, there is no evidence from which to draw an inference that Borns mailed unsolicited copies of the complaint as Associates' agent or as its attorney. See Sections A.I.a., b. c. Without this connection, there is no evidence that Associates intentionally induced Ford Credit to breach their contracts with Bowman Heintz. In addition, there is no evidence that has been presented to the Court that Ford Credit took any negative action with respect to its relationship with Bowman Heintz as a result of receiving the unsolicited copies of the complaint.
For these reasons, Associates' motion for summary judgment on Bowman Heintz' remaining tortious interference with contract claim should be GRANTED.
IV. CONCLUSION
For the foregoing reasons the Court GRANTS the plaintiff/counterclaim defendant's, Associates Financial Services Co., Inc., motion for summary judgment on the defendants/counterclaim plaintiffs', Bowman, Heintz, Boscia Vician, P.C. and Glenn S. Vician, counterclaims of defamation, abuse of process and tortious interference with contracts.Because the Court has granted the plaintiffs/counterclaim defendant's motion for summary judgment, the defendants/counterclaim plaintiffs' Motion for Rule 56(d) determinations is DENIED as moot. Moreover, the Court DENIES the defendants/counterclaim plaintiffs' Motion to Strike Undisputed Material Issues of Fact as Being Irrelevant.
IT IS SO ORDERED.