Court of Appeals of Indiana | Memorandum Decision 67A01-1704-PL-861| August 8, 2017 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Gregory W. Black

Gregory W. Black, P.C.

Plainfield, Indiana

ATTORNEY FOR APPELLEE

Graham T. Youngs

Steuerwald, Hannon & Witham, 

LLP

Danville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Bradley K. Buchanan,

Appellant-Plaintiff,

v.

Tina Fox,

Appellee-Defendant

August 8, 2017

Court of Appeals Case No.

67A01-1704-PL-861

Appeal from the Putnam Circuit 

Court

The Honorable Joseph D. Trout, 

Special Judge

Trial Court Cause No.

67C01-1208-PL-332

Najam, Judge.

Statement of the Case

[1] Bradley K. Buchanan appeals the trial court’s grant of Tina Fox’s motion for 

summary judgment on Buchanan’s complaint, in which Buchanan had alleged 
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malicious prosecution, abuse of process, and intentional infliction of emotional 

distress, among other theories of liability. Buchanan presents several issues for 

our review, but we address two dispositive issues:

1. Whether the trial court abused its discretion when it struck 

portions of his affidavit.

2. Whether the trial court erred when it entered summary 

judgment in favor of Fox.

[2] We affirm.

Facts and Procedural History

[3] From approximately October 2004 until December 2007, Fox and Buchanan 

lived together in Greencastle and were engaged in a romantic relationship. In 

October 2008, Sargent Scott Stockton with the Indiana State Police White 

Collar Crime Section (“WCCS”) began investigating alleged insurance fraud by 

Buchanan, an insurance broker with Buck Insurance. In the course of that 

investigation, Sargent Stockton contacted Fox and questioned her about the 

alleged insurance fraud.1 In addition, Sargent Stockton asked Fox whether she 

had “any knowledge about Mr. Buchanan possessing what might be stolen or 

illegal firearms.” Appellant’s App. Vol. 3 at 152. In response to “the questions 

about firearms,” Fox “reported to Sargent Stockton that on one occasion Mr. 

 

1

 Our review of the record indicates that Fox may have worked in Buchanan’s office while they were living 

together.
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Buchanan had commented that he believed that two handguns he had just 

purchased might well be ‘hot’ because he was able to buy them so cheaply.” Id. 

Fox “had no knowledge one way or another whether Mr. Buchanan was 

correct and [she] never told anyone that Mr. Buchanan did own or did possess 

stolen or illegal firearms.” Id. at 153.

[4] In mid-2009, Detective Brent Gulinson, also with the WCCS, took over the 

investigation from Sargent Stockton. Detective Gulinson contacted Fox, and 

she told him what she had told Sargent Stockton about Buchanan’s alleged 

insurance fraud and possession of possibly stolen firearms. On November 12, 

2009, Detective Brent Gulinson submitted an affidavit of probable cause for a 

search warrant for Buchanan’s residence and alleged in relevant part that 

Buchanan possessed “stolen guns and ammunition as well as evidence of [sic] 

related to insurance fraud and theft[.]” Appellant’s App. Vol. 2 at 63. 

Detective Gulinson stated that a “source of information” (“SOI”) who had 

lived with Buchanan from October 2004 until December 2007 had reported that 

“on or about 2006” Buchanan bought two small handguns for $100 and stated 

to the SOI “‘I know these are stolen’ or some similar statement indicating that 

the weapons” were stolen. Id. at 64. Also on November 12, 2009, Detective 

Gulinson filed a second affidavit for probable cause requesting an arrest warrant 

based solely on the insurance fraud allegations against Buchanan. And the 

State charged Buchanan with corrupt business influence, as a Class C felony, 

and four counts of felony theft. A trial court issued both warrants.
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[5] On November 13, Indiana State Police officers executed the warrants at 

Buchanan’s residence. Officers arrested Buchanan and, in the course of the 

search of his residence, they recovered “miscellaneous documents” and 

“firearms,” including approximately ten handguns, twelve shotguns, and 

multiple rifles. Appellant’s App. Vol. 3 at 183. On November 29, 2010, 

Buchanan pleaded guilty to one count of theft, as a Class D felony, based on 

one of the insurance fraud allegations.

[6] On November 11, 2011, Buchanan filed a complaint for damages against 

multiple defendants including Fox, the State, the Indiana Department of 

Insurance, and the Putnam County Sheriff’s Department. Buchanan alleged 

multiple torts and “breach of contract” against the various defendants stemming 

from his arrest on November 13, 2009, during which he was allegedly “bound 

physically” with “police weapons . . . placed against his head and body in a 

rude and insolent manner.” Appellant’s App. Vol. 2 at 47. Buchanan alleged 

in part that he “was made to feel physical pain, discomfort, as well as emotional 

pain and suffering” as a result of “the ordeal of the search and apprehension” 

by law enforcement officers.” Id. With regard to Fox in particular, Buchanan 

alleged:

The allegations as to firearms was a material contributing factor 

that led to the search warrant, search of Mr. Buchanan’s home 

and his arrest, for suspected wrongdoing as to firearms, and to 

the seizure and retention of such firearms, to this day, by state 

police. . . .

* * *
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Apparently no charges were preferred or brought against Mr. 

Buchanan related to the firearms, in any manner. . . .

Allegations of Ms. Fox as to the firearms were a proximate cause 

and contributing or direct cause of the damages Mr. Buchanan 

has suffered at bar.

Mr. Buchanan pleaded guilty to felony charges [related to 

insurance fraud] and is on probation as part of his sentence 

pursuant to such plea.

* * *

The plea is unrelated to the firearms. The allegations as to 

firearms remain false, malicious, permanently so, producing 

damage continuously.

Id. at 48. On March 28, Buchanan filed an amended complaint to add 

additional plaintiffs and additional claims that pertained to defendants other 

than Fox.

[7] On November 4, 2016, Fox filed a summary judgment motion and a 

memorandum and designated evidence in support of summary judgment. On 

January 9, 2017, Buchanan filed a response and designated evidence in 

opposition to summary judgment, including an affidavit. Fox filed a response 

and moved to strike portions of Buchanan’s designated evidence, including 

portions of his affidavit. The trial court granted Fox’s motion to strike in part 

and granted her summary judgment motion. Buchanan filed a motion to 

correct error, which the trial court denied. This appeal ensued.
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Discussion and Decision

Issue One: Affidavit

[8] Buchanan first contends that the trial court abused its discretion when it struck 

portions of his affidavit designated in opposition to summary judgment. Fox 

had moved the trial court to strike portions of Buchanan’s affidavit because she 

alleged that they constituted “improper affidavit testimony” under Trial Rule 

56(E).2 Appellant’s App. Vol. 4 at 65. For example, Fox moved to strike 

Buchanan’s opinions with regard to Fox’s motives in telling Sargent Stockton 

that Buchanan thought that two handguns he had purchased might have been 

stolen. The trial court granted the motion to strike the following excerpts from 

Buchanan’s affidavit:

• “with malice ulterior purpose [sic]”

• “Motives of Ms. Fox were revenge, malice, harm”

• “She did so not for justice, but for revenge”

• “Judge Smith did not believe the awful things she said about 

me. Her dishonesty in that case carried over into other 

situations”

• “Yet Tina accuses me of wrongdoing”

 

2

 Fox also moved to strike portions of other evidence Buchanan had designated in opposition to summary 

judgment, but Buchanan does not appeal the trial court’s ruling with respect to those matters.
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• “I found out on & after my arrest in November 2009 Tina had 

told police I was a thief or participant of theft of firearms. Thus 

the police considered me dangerous”

• “unlike the normal white collar criminal”

• “The manner of Tina’s lies about firearms to police has 

contributed to my emotional damage, trauma”

• “[Tina’s] lies about the firearms”

• “Her lies caused my father deprivation of his firearms the rest 

of his life, me deprivation until 2016, from late 2009 until 

summer 2016, nearly seven years”

• “Tina meant to harm me, far exceeding any privilege she had 

to discuss me with government officials. She had no reason to 

discuss me with government officials and knew that. Her 

friendship with Patty Buchanan led her to lie about me.”

• “Tina Fox is guilty of false reporting. She did so out of 

hatred.”

• “She says the police asked her whether I had stolen firearms. 

She is the only person who could have raised stolen firearms as 

an issue. No one else ever has done so, no other person I’ve ever 

lived with has done so.”

Appellant’s App. Vol. 2 at 39-41.

[A] trial court has broad discretion in ruling on the admissibility 

of evidence. Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 

773 N.E.2d 881, 886 (Ind. Ct. App. 2002). This discretion 

extends to rulings on motions to strike affidavits on the grounds 

that they fail to comply with the summary judgment rules. Id.
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Indiana Trial Rule 56(E) provides in relevant part that affidavits 

submitted in support of or in opposition to a summary judgment 

motion “shall be made on personal knowledge, shall set forth 

such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the matters 

stated therein.” Further, “[s]worn or certified copies not 

previously self-authenticated of all papers or parts thereof referred 

to in an affidavit shall be attached thereto or served therewith.” 

Id. “The requirements of T.R. 56(E) are mandatory—therefore, a 

court considering a motion for summary judgment should 

disregard inadmissible information contained in supporting or 

opposing affidavits.” Interstate Auction, Inc. v. Cent. Nat’l Ins. 

Group, Inc., 448 N.E.2d 1094, 1101 (Ind. Ct. App. 1983).

Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005).

[9] Further,

[a]ffidavits must comply with Indiana Evidence Rule 701, which 

provides:

If a witness is not testifying as an expert, testimony in 

the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception; and

(b) helpful to a clear understanding of the witness’s 

testimony or to a determination of a fact in issue.

The witness must set forth enough facts to allow the trial court to 

find, pursuant to Evidence Rule 104(a), that the opinion is 

rationally based on the witness’s personal perceptions. Ackles v. 

Hartford Underwriters Ins. Corp., 699 N.E.2d 740, 743 (Ind. Ct. 

App. 1998), trans. denied; 13 Robert Lowell Miller, Jr., Indiana 

Practice § 701.103 (3d ed. 2007). The witness need not identify 

all of the perceived facts on which the opinion is based, 13 
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Robert Lowell Miller, Jr., at § 701.103; rather, the witness must 

merely provide a basis sufficient for the judge to determine that 

the opinion is rationally based on the perceptions of the witness. 

When a witness has not identified the objective bases for her opinion, the 

proffered opinion obviously fails to meet the requirements of Evidence 

Rule 701 because (1) there is no way for the court to assess whether it is 

rationally based on the witness’s perceptions and (2) the opinion does not 

help the factfinder but only tells it in conclusory fashion what it should 

find. Ackles, 699 N.E.2d at 743; see also Paramo v. Edwards, 563 

N.E.2d 595, 600 (Ind. 1990) (“Conclusory statements not 

admissible at trial should be disregarded when determining 

whether to grant or deny a summary judgment motion.”). The 

extent of the requisite detail varies from case to case, and lies 

within the trial court’s discretion. Ackles, 699 N.E.2d at 743; 13 

Robert Lowell Miller, Jr., at § 701.103. Courts require greater 

detail as the subject of the opinion draws nearer to a central issue 

in the case. 13 Robert Lowell Miller, Jr., at § 701.103.

Whitlock v. Steel Dynamics, Inc., 35 N.E.3d 265, 269 (Ind. Ct. App. 2015)

(emphasis added), trans. denied.

[10] Buchanan’s argument on appeal is difficult to discern. In essence, Buchanan 

maintains that the stricken statements are admissible because they “are based 

on what any reasonable person would sense, conclude, from his own . . . 

rational perception under the circumstances [and] his familiarity with the topics 

reasonably inferred[.]” Appellant’s Br. at 23. He asserts that his personal 

knowledge of Fox’s motives are “readily inferred” and that he is permitted to 

testify about Fox’s state of mind. Id. at 21. Buchanan also states that his 

“romance” with Fox is the “foundation” for his statements. Id. at 22.
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[11] But Buchanan has not identified the objective bases, the factual predicates,

either for his opinion regarding Fox’s motives and veracity or for his statements 

regarding Judge Smith’s opinion of Fox and how a “normal” white collar 

criminal would be treated. Thus, the stricken portions of Buchanan’s affidavit 

are inadmissible opinions and conclusory statements. See Whitlock, 35 N.E.3d 

at 269. We hold that the trial court did not abuse its discretion when it struck 

portions of Buchanan’s affidavit. 

Issue Two: Summary Judgment

[12] Buchanan contends that the trial court erred when it entered summary 

judgment in favor of Fox.3 Our standard of review is clear. “We first observe 

that a trial court’s order granting summary judgment comes to us ‘cloaked with 

a presumption of validity.’” DiMaggio v. Rosario, 52 N.E.2d 896, 903 (Ind. Ct. 

App. 2016) (internal citations omitted). Further,

[w]e review summary judgment de novo, applying the same 

standard as the trial court: “Drawing all reasonable inferences in 

favor of . . . the non-moving parties, summary judgment is 

appropriate ‘if the designated evidentiary matter shows that there 

is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” Williams v. 

Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A 

fact is ‘material’ if its resolution would affect the outcome of the 

case, and an issue is ‘genuine’ if a trier of fact is required to 

resolve the parties’ differing accounts of the truth, or if the 

 

3 The trial court entered judgment in favor of Fox under Trial Rule 54(B) and stated that “no just reason for 

delay of entry of Final Judgment exists.” Appellant’s App. Vol. 2 at 35.
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undisputed material facts support conflicting reasonable 

inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to 

“demonstrate [ ] the absence of any genuine issue of fact as to a 

determinative issue,” at which point the burden shifts to the nonmovant to “come forward with contrary evidence” showing an 

issue for the trier of fact. Id. at 761-62 (internal quotation marks 

and substitution omitted). And “[a]lthough the non-moving 

party has the burden on appeal of persuading us that the grant of 

summary judgment was erroneous, we carefully assess the trial 

court’s decision to ensure that he was not improperly denied his 

day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 

916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks 

omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to 

Hughley). However, we will affirm the “trial court’s entry of summary 

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

52 N.E.3d at 904.

[13] We emphasize that summary judgment is a “high bar” for the moving party to 

clear in Indiana. Hughley, 15 N.E.3d at 1004. “In particular, while federal 

practice permits the moving party to merely show that the party carrying the 

burden of proof [at trial] lacks evidence on a necessary element, we impose a 

more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at 

1003 (quoting Jarboe v. Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d 

118, 123 (Ind. 1994)).
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[14] In his complaint, Buchanan alleged, in essence, that Fox was liable under the 

following theories: malicious prosecution, abuse of process, and intentional 

infliction of emotional distress. The trial court entered summary judgment in 

favor of Fox on all counts, but Buchanan appeals the entry of summary 

judgment only with respect to the malicious prosecution and abuse of process 

counts.4 The elements of a malicious prosecution action are: (1) the defendant 

instituted or caused to be instituted an action against the plaintiff; (2) the 

defendant acted maliciously in so doing; (3) the defendant had no probable 

cause to institute the action; and (4) the original action was terminated in the 

plaintiff's favor. Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 249-50 (Ind. Ct. 

App. 2013), trans. denied. An abuse of process claim requires a showing that a 

defendant had: (1) an ulterior purpose or motives; and (2) a willful act in the 

use of process not proper in the regular conduct of a proceeding. Id. at 250.

[15] In her summary judgment motion, Fox contended in relevant part that she was 

entitled to summary judgment on all counts, including Buchanan’s allegations 

of malicious prosecution and abuse of process, under the qualified privilege 

doctrine, which “protects ‘communications made in good faith on any subject 

matter in which the party making the communication has an interest or in 

reference to which he has a duty, either public or private, either legal, moral, or 

social, if made to a person having a corresponding interest or duty.’” Kelley v. 

 

4

 To the extent Buchanan contends that the trial court did not rule on his claim of intentional infliction of 

emotional distress, that claim is without merit.
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Tanoos, 865 N.E.2d 593, 597 (Ind. 2007) (quoting Bals v. Verduzco, 600 N.E.2d 

1353, 1356 (Ind. 1992). As our Supreme Court has explained, 

“communications to law enforcement officers are protected by this qualified 

privilege” in order to “‘enhance[] public safety by facilitating the investigation 

of suspected criminal activity.’” Id. (quoting Holcomb v. Walter’s Dimmick 

Petroleum, Inc., 858 N.E.2d 103, 108 (Ind. 2006), abrogated on other grounds). In 

the absence of a factual dispute, the applicability of this “public interest 

privilege” is a question of law to be determined by the court. Id. Our courts 

have applied the qualified privilege doctrine to claims of malicious prosecution 

and abuse of process. See Brown v. Indpls. Housing Agency, 971 N.E.2d 181, 186 

(Ind. Ct. App. 2012) (malicious prosecution); Holcomb, 858 N.E.2d at 107

(abuse of process).

[16] In support of her summary judgment motion, Fox designated evidence showing 

that Sargent Stockton had contacted her to ask her questions about Buchanan’s 

alleged insurance fraud and, in the course of their conversations, Sargent 

Stockton had asked Fox whether she had “any knowledge about Mr. Buchanan 

possessing what might be stolen or illegal firearms.” Appellant’s App. Vol. 3 at 

152. In response to “the questions about firearms,” Fox “reported to Sargent 

Stockton that on one occasion Mr. Buchanan had commented that he believed 

that two handguns he had just purchased might well be ‘hot’ because he was 

able to buy them so cheaply.” Id. Fox designated evidence showing that she

“had no knowledge one way or another whether Mr. Buchanan was correct and 
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[she] never told anyone that Mr. Buchanan did own or did possess stolen or 

illegal firearms.” Id. at 153.

[17] On appeal, Buchanan concedes that Fox “had a duty to report” and “Trooper 

Gulinson had a duty to listen.” Appellant’s Br. at 30. Thus, Buchanan does 

not challenge the applicability of the qualified privilege asserted by Fox. Still,

as he correctly points out, “the privilege is not without limits: a statement ‘may 

lose its privileged character upon a showing of abuse wherein: (1) the 

communicator was primarily motivated by ill will in making the statement; (2) 

there was excessive publication of the defamatory statements; or (3) the 

statement was made without belief or grounds for belief in its truth.’” Bah v. 

Mac’s Convenience Stores, LLC, 37 N.E.3d 539, 548 (Ind. Ct. App. 2015) (quoting 

Bals, 600 N.E.2d at 1356), trans. denied. And Buchanan maintains that Fox lost 

the privilege because, when she made the statements about his possible 

unlawful possession of firearms, she was “motiv[at]ed primarily by ill will” and 

made the statements “without belief or without grounds for belief in truth.” 

Appellant’s Br. at 30.

[18] But Buchanan does not direct us to designated evidence, other than the stricken 

portions of his affidavit, in support of his contentions on this issue. Without 

any such evidence, Buchanan has not met his burden to establish a genuine 

issue of material fact to preclude summary judgment on the qualified privilege 

issue. See, e.g., Kelley, 865 N.E.2d at 602 (holding summary judgment on 

defamation claim appropriate because plaintiff did not designate evidence to 

establish a genuine issue of material fact to show that defendant had abused the 
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privilege). The trial court did not err when it entered summary judgment for 

Fox.5

[19] Affirmed.

Kirsch, J., and Brown, J., concur.

 

5

 We note that, as Fox correctly points out, Buchanan’s allegation of malicious prosecution also fails as a 

matter of law because Fox “did not institute or cause to be instituted the criminal action against [Buchanan]; 

the prosecutor did.” Bah, 37 N.E.3d at 547. And Fox designated evidence showing that Buchanan’s abuse of 

process claim was barred by the applicable two-year statute of limitations. See Yoost v. Zalcberg, 925 N.E.2d 

763, 771 (Ind. Ct. App. 2010), trans. denied.