Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 1 of 21

 

IN THE

Court of Appeals of Indiana

Rory Kerwood,

Appellant-Plaintiff

v.

Elkhart County Sheriff’s Department,

Appellee-Defendant

April 10, 2024

Court of Appeals Case No.

23A-PL-2229

Appeal from the Elkhart Superior Court

The Honorable Christopher J. Spataro, Judge

Trial Court Cause No.

20D05-1906-PL-157

Opinion by Judge Brown

Judges Riley and Foley concur.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 2 of 21

Brown, Judge.

[1] Rory Kerwood appeals from the trial court’s entry of summary judgment in 

favor of the Elkhart County Sheriff’s Department. We affirm. 

Facts and Procedural History

[2] On August 1, 2017, the trial court issued an order granting Kerwood’s petition 

for expungement. The order stated Kerwood “was arrested and/or charged on 

or about July 11, 2014 . . . for the offense of Impersonating a Law Enforcement 

Officer, a Level 6 felony in multiple counts and Theft, a class A misdemeanor,” 

the theft charge was dismissed, and the impersonation charges resulted in a jury 

verdict of not guilty in October 2015. Appellant’s Appendix Volume V at 43. 

The order stated that no information concerning the arrest or charges may be 

retained in any state central repository or other system maintained by a local, 

regional, or statewide law enforcement agency and that the records related to 

the case shall be redacted and permanently sealed. 

[3] On November 30, 2017, the Elkhart County Sheriff’s Department (the 

“Sheriff’s Department”) received a report from loss prevention at a Walmart 

regarding a radio which had been left in a cart. The radio “appeared to be a 

police radio” and “had A227 written on it.” Appellant’s Appendix Volume III

at 4. Officer Eric Schuman was assigned to the call. Sergeant Adam Leeper, 

the officer in charge, was informed that a video taken from a security camera

showed that the radio had been left by a person wearing a Concord Township 

Fire Department (“Concord Fire”) shirt, and the officers contacted Concord 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 3 of 21

Fire Assistant Chief Sean Miller, who identified Kerwood as the person 

wearing the shirt. Assistant Chief Miller indicated that Kerwood had been 

recently hired as a volunteer, he was serving a probationary period, and during 

that period he was not permitted to wear department-identifying clothing or 

carry a radio when he was not on duty. According to Sergeant Leeper, “A227” 

was “a unit number for then Sergeant Lanzen” with the Sheriff’s Department, 

the officers contacted Sergeant Lanzen to check if he had his radio, he did have 

his radio, and the concern was that the radio discovered at the Walmart had 

been illegally obtained.1

 Id. Also on November 30, 2017, a meeting was held 

at a Concord Fire station at which Kerwood, Assistant Chief Miller, Sergeant 

Leeper, Officer Schuman, and other individuals were present. During the 

meeting, Sergeant Leeper stated: “We have to be careful when it comes to you 

because of your past.” Appellant’s Appendix Volume II at 147. Kerwood 

asked “what history or past,” and Sergeant Leeper “said [his] arrest for the 

police impersonation.”2

 Id. at 148. According to Kerwood, he was later forced 

to resign from Concord Fire, and he signed a resignation letter dated May 28, 

1 In his deposition, Kerwood stated that he had purchased the radio “from [his] deputy chief.” Appellant’s 

Appendix Volume II at 147. 

2 In his deposition, when asked “[w]hy did you feel it necessary to raise the prior arrest of impersonation in 

this meeting,” Sergeant Leeper answered “[b]ecause he wanted to know why we were asking these questions, 

and I was just simply laying out the steps of our investigation that had lead [sic] us there.” Appellant’s 

Appendix Volume III at 7. When asked “[h]ow were you aware of the arrest for impersonation,” Sergeant 

Leeper said: “I heard about it through the grapevine, if you will, the law enforcement grapevine. Any time 

anyone gets arrested for police impersonation, it’s of note to all officers, because we don’t like that, and so 

that’s what I heard about it. That’s my only knowledge of it.” Id. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 4 of 21

2018. Kerwood later began a volunteer firefighter position at Kankakee

Township Fire Department (“Kankakee Fire”). 

[4] At some point, Officer Schuman had a conversation with his father during 

which he learned that Tom Thode was the Chief at Kankakee Fire. Officer 

Schuman told his father: “This Rory Kerwood, they need to check him out.” 

Appellant’s Appendix Volume III at 26. He may also have told his father to 

“keep an eye out for him.” Id. at 46. He also told his father that Kerwood had 

been arrested for impersonating a police officer and about Kerwood being 

found in possession of a radio with police frequencies.3

 In August of 2018, 

Officer Schuman had a phone conversation with Chief Thode during which

Officer Schuman stated that Kerwood “had been arrested for impersonating an 

officer at some point,” id. at 71-72, and told him about the “incident where a 

radio was found and it belonged to [Kerwood].” Id. at 47. Kankakee Fire 

terminated Kerwood’s position as a volunteer firefighter.4

 Kerwood sought a 

volunteer position with the Springfield Township Fire Department but was not 

accepted due to its relationship with Kankakee Fire. He volunteered with the 

3 Also, according to Captain Michael Culp with the Sheriff’s Department, Officer Schuman informed him 

that he had told his father “there were some character issues that could be concerning to . . . [Kankakee

Fire].” Appellant’s Appendix Volume II at 219. 

4 According to Kerwood, Chief Thode told him that, due to his police impersonation charges, his 

employment was being terminated. According to Chief Thode, Kerwood was terminated after he had three 

infractions “within 60 days of . . . his employment.” Appellant’s Appendix Volume III at 72. He testified the 

department’s policy was that, “if you’re not certified through LaPorte County EMS as a first responder, you 

cannot respond to medical calls,” “the final infraction where we decided that . . . he was going to be relieved 

of his duties was . . . there was a medical call” and “what he had done is he had gone to the fire station, got 

in the rescue truck and was driving single . . . to the scene of a medical call in which he was not certified to 

do driving and/or responding to a medical call.” Id. He did not remember the first and second infractions. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 5 of 21

New Carlisle Fire Department (“New Carlisle Fire”) but, after two or three 

months, New Carlisle Fire received a letter from Kankakee Fire stating that he 

was not allowed to respond to any mutual aid calls which originated in 

Kankakee Township, and New Carlisle terminated his position. 

[5] In June 2019, Kerwood filed a complaint alleging that he was found not guilty 

for a prior criminal charge, the court ordered the Sheriff’s Department to 

expunge and seal all records of the charge and arrest, the Sheriff’s Department 

failed to comply with the order, employees of the Sheriff’s Department 

disseminated information about his prior arrest, and as a result he was 

terminated from Kankakee Fire. In August 2021, the Sheriff’s Department filed 

a motion for judgment on the pleadings. On November 5, 2021, the court 

issued an order stating that it would treat the Sheriff’s Department’s motion as a 

Trial Rule 12(B)(6) motion, finding Kerwood did not have an implied private 

right of action for the Sheriff’s Department’s alleged failure to properly expunge 

or seal his records, stating “common law remedies exist and [the Sheriff’s 

Department was] not entitled to judgment on the pleadings on this issue,” and 

granting the Sheriff’s Department’s motion as to any claims for a private cause 

of action based on an alleged violation of a court order of expungement and 

denying the motion as to all other claims. Appellant’s Appendix Volume II at 

86. 

[6] On November 14, 2021, Kerwood filed an amended complaint alleging Count 

I, defamation by libel; Count II, defamation by slander; Count III, tortious 

interference with a business relationship; and Count IV, negligent training, 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 6 of 21

supervision, and retention. In April 2023, the Sheriff’s Department filed a 

motion for summary judgment on all counts. Kerwood filed a response. On 

August 1, 2023, the court held a hearing. On August 28, 2023, the court issued 

a fifteen-page order granting the Sheriff’s Department’s motion for summary 

judgment. 

Discussion

[7] Kerwood asserts the trial court erred in concluding he did not have a private 

right of action against the Sheriff’s Department and that it erred in entering 

summary judgment on the claims in his amended complaint. 

A. No Implied Right of Action 

[8] Kerwood asserts that a private right of action is implied in the expungement 

statute. He argues the statute “only contains an enforcement mechanism 

against those who have directly discriminated against the person because of a 

prior expunged record” and “[t]here is no independent enforcement mechanism 

built into the statute for situations experienced by [him] wherein a law 

enforcement agency tasked with expunging the records fails to abide by the 

Order and as a result causes harm.” Appellant’s Brief at 15. The Sheriff’s 

Department argues there is no private right of action under the expungement 

statute and “[t]he expungement statutes provide one remedy, an infraction, and 

expand the ability of the courts to provide a remedy by bringing third parties 

under a court’s contempt power.” Appellee’s Brief at 18.
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 7 of 21

[9] Whether a statute confers a private right of action is a question of law that we 

review de novo. Shirey v. Flenar, 89 N.E.3d 1102, 1105 (Ind. Ct. App. 2017)

(citing Doe # 1 v. Ind. Dep’t of Child Servs., 81 N.E.3d 199, 201 (Ind. 2017)). The 

parties do not disagree that the expungement provisions do not expressly 

provide a private right of action. Rather, Kerwood asserts a private right of 

action is implied. We examine the language of the statute to determine whether 

the legislature intended to allow private actions. See id. (citing Doe # 1, 81 

N.E.3d at 202 (explaining that whether a private cause of action exists is 

“purely a question of legislative intent”)). “[W]e must be reluctant to find an 

implied right of action.” Id. “Our General Assembly ‘often creates rights of 

action using clear language,’ so its omission of such language is evidence that it 

did not intend to create a private remedy.” Id. (quoting Doe # 1, 81 N.E.3d at 

202 (citing statutes that expressly establish rights of action)). “When a statute 

expressly provides one enforcement mechanism, courts may not engraft 

another.” Doe # 1, 81 N.E.3d at 204. “Affirming this principle, Indiana courts 

find no private right of action where the General Assembly has provided 

independent enforcement—even if only an infraction.” Id. (citing Estate of 

Cullop v. State, 821 N.E.2d 403, 409 (Ind. Ct. App. 2005) (no right of action 

where a statute already provided independent enforcement through a class C 

infraction)). See also Coons by Coons v. Kaiser, 567 N.E.2d 851, 852 (Ind. Ct. 

App. 1991) (“[W]hen legislation expressly provides a particular remedy or 

remedies, courts should not expand the coverage of the statute to subsume other 

remedies. When a statute limits a thing to be done in a particular mode, it 

includes the negative of any other mode.”) (citing Nat’l R.R. Passenger Corp. v. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 8 of 21

Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 459, 94 S. Ct. 690, 693-694 (1974)

(citation and quotations omitted)), reh’g denied; Borne v. Northwest Allen Cnty. Sch. 

Corp., 532 N.E.2d 1196 (Ind. Ct. App. 1989) (no private cause of action where 

statutory scheme provided a criminal penalty for the knowing failure to report 

suspected child abuse), trans. denied. 

[10] Ind. Code § 35-38-9-10(b) provides that it is unlawful discrimination for any 

person to suspend, expel, refuse to employ, refuse to admit, refuse to grant or 

renew a license, permit, or certificate necessary to engage in any activity, 

occupation, or profession, or otherwise discriminate against any person because 

of a conviction or arrest record expunged or sealed under the chapter. 

[11] Ind. Code § 35-38-9-10(f) provides: 

Any person that discriminates against a person as described in 

subsection (b) commits a Class C infraction and may be held in 

contempt by the court issuing the order of expungement or by 

any other court of general jurisdiction. Any person may file a 

written motion of contempt to bring an alleged violation of this 

section to the attention of a court. In addition, the person is 

entitled to injunctive relief. 

Further, a public employee who knowingly or intentionally discloses 

confidential information commits a class A infraction carrying a fine of up to 

$10,000. See Ind. Code § 5-14-3-10(a); Ind. Code § 34-28-5-4(a). 

[12] The Indiana legislature, in enacting Ind. Code § 35-38-9-10(f), set forth 

mechanisms to enforce the expungement provisions, and we “may not engraft 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 9 of 21

another.” See Doe #1, 81 N.E.3d at 204. We cannot infer that the Indiana 

legislature intended to create a private right of action beyond the mechanisms in 

Ind. Code § 35-38-9-10(f). See id. at 202-204 (addressing whether, in enacting 

another statute, Ind. Code § 31-33-18-2, the General Assembly intended for the 

statute to create a right of action despite not saying so expressly; observing the 

statute contained enforcement mechanisms, including Ind. Code § 5-14-3-10(a); 

and concluding “our General Assembly might choose to impose a right of 

action,” “[b]ut separation of powers requires us to leave that decision to the 

legislature, rather than make it ourselves under the guise of statutory 

interpretation,” and “[t]hus, we cannot infer that the General Assembly 

intended [Ind. Code § 31-33-18-2] to impose civil liability”).5

 Reversal on this 

basis is not warranted. 

B. Summary Judgment on Amended Counts 

[13] Kerwood contends the trial court erred in entering summary judgment on his 

claims of defamation, tortious interference with a business relationship, and 

negligent training, supervision, and retention. The party moving for summary

judgment bears the initial burden of making a prima facie showing that there 

5 To the extent Kerwood asserts that a failure by the Sheriff’s Department to comply with the expungement 

order did not constitute discrimination but an improper release of information and thus that the enforcement 

mechanisms in Ind. Code § 35-38-9-10(f) are not directly applicable, he does not argue that he was not 

permitted to file a motion for contempt or seek injunctive relief related to any improper failure to expunge or 

seal records or that Ind. Code § 5-14-3-10(a) would be inapplicable. In any event, the legislature elected to set 

forth the enforcement mechanisms in Ind. Code § 35-38-9-10(f), and we cannot conclude, keeping in mind 

our reluctance to infer an unwritten intent, that the legislature intended to imply that a private right of action 

exists beyond the mechanisms set forth in Ind. Code § 35-38-9-10(f) with respect to the release of expunged or 

sealed records. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 10 of 21

are no genuine issues of material fact and that it is entitled to judgment as a 

matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

judgment is improper if the moving party fails to carry its burden, but if it 

succeeds, then the nonmoving party must come forward with evidence 

establishing the existence of a genuine issue of material fact. Id. We construe 

all factual inferences in favor of the nonmoving party. Id. “Unsworn 

statements and unverified exhibits do not qualify as proper Rule 

56 evidence.” Stafford v. Szymanowski, 31 N.E.3d 959, 964 (Ind. 2015) (citation 

omitted). 

1. Defamation Claims 

[14] “To establish a claim of defamation, a plaintiff must prove the existence of a 

communication with defamatory imputation, malice, publication, and 

damages.” Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010)

(citations and quotations omitted). A statement is defamatory if it tends “to 

harm a person’s reputation by lowering the person in the community’s 

estimation or deterring third persons from dealing or associating with the 

person.” Id. (citation omitted). “One type of defamation action, alleging 

defamation per se, arises when the language of a statement, without reference to 

extrinsic evidence, constitutes an imputation of (1) criminal conduct, (2) a 

loathsome disease, (3) misconduct in a person’s trade, profession, office, or 

occupation, or (4) sexual misconduct.” Id. (citations omitted). “In contrast, if 

the words used are not defamatory in themselves, but become so only when 

understood in the context of extrinsic evidence, they are considered defamatory 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 11 of 21

per quod.” Id. (citation omitted). “In actions for defamation per se, damages are 

presumed, but in actions for defamation per quod, a plaintiff must prove 

damages.” Id. “Whether a communication is defamatory is a question of law 

for the court, unless the communication is susceptible to either a defamatory or 

non-defamatory interpretation—in which case the matter may be submitted to 

the jury.” Baker v. Tremco Inc., 917 N.E.2d 650, 657 (Ind. 2009). 

[15] “For a statement to be actionable, it must be clear that it contains objectively 

verifiable fact regarding the plaintiff.” Sasser v. State Farm Ins. Co., 172 N.E.3d 

313, 321 (Ind. Ct. App. 2021) (citations omitted), trans. denied. “If the speaker is 

merely expressing his subjective view, interpretation, or theory, then the 

statement is not actionable.” Id. “Just because words may be insulting, vulgar 

or abusive words do[] not make them defamatory.” Id. A false assertion of fact 

is required for a statement to be actionable as defamation. Id. See also J.-Gazette 

Co. v. Bandido’s, Inc., 712 N.E.2d 446, 457 (Ind. 1999) (to impose liability for 

defamation, there must be a false statement of fact); Melton v. Ousley, 925 

N.E.2d 430, 437 (Ind. Ct. App. 2010) (“To impose liability for defamation, a 

false statement of fact is required. But truth is a complete defense in civil 

actions for defamation.”) (citations omitted); Ind. Code § 34-15-1-2 (“In an 

action for libel or slander, the defendant may allege . . . the truth of the matter 

charged as defamatory . . . .”). “False defamatory words, if written and 

published, constitute a libel; if spoken, a slander.” Hall v. Shaw, 147 N.E.3d 

394, 407 (Ind. Ct. App. 2020) (citing Branaman v. Hinkle, 137 Ind. 496, 502, 37 

N.E. 546, 548 (1894) (citation omitted)), trans. denied. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 12 of 21

[16] With respect to his claim of libel, Kerwood alleged in Count I of his amended 

complaint that the Sheriff’s Department “maintained written arrest record 

information that were [sic] allowed to be disseminated by anyone accessing 

[his] criminal background maintained [within] the [Sheriff’s Department] 

records” and “[t]he records had been ordered expunged on or about August 1, 

2017, and therefore, [the Sheriff’s Department] knew the records were false as 

disseminated.” Appellant’s Appendix Volume II at 89-90. In support of its 

motion for summary judgment, the Sheriff’s Department argued there was no 

evidence that any of its employees disseminated Kerwood’s criminal history 

from its databases. In response, Kerwood argued “[t]he records that were not 

properly expunged, were utilized by officers and disseminated to others 

conveying a false impression that [he] had engaged in wrongful and criminal 

acts.” Appellant’s Appendix Volume III at 142. He also argued a certain 

“pass-down report” stated he had a history of police impersonation.6

 Id. 

[17] In its summary judgment order, the trial court found that “Kerwood does not 

identify what information retained in the [Sheriff’s Department’s] database was 

defamatory,” “Kerwood’s criminal background information, likely consisting of 

6 The “pass-down report,” dated November 30, 2017, stated: 

Item Found 4024 Elkhart Rd- S59 reported finding a police radio at Walmart. Radio had 

A227s unit number written on it. A227 was found to have his radio. Investigation found it 

belonged to Rory Kerwood who has [a] history of police impersonation and is currently a

cadet with Concord Fire. [Kerwood] provided documentation from FCC showing he is 

legally allowed to carry it, although CFD advised he cannot carry per their regulations. 

Radio taken to see if it ever belonged to us 10-25 (A277, A245, A272)

Appellant’s Appendix Volume V at 31. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 13 of 21

arrest, booking, and charging information, is both objectively verifiable and 

truthful information,” “Kerwood was, in fact, arrested and charged with 

impersonating a law enforcement officer,” and “Kerwood has not shown that 

there were any written, objectively verifiable, and false facts contained within 

his records ordered expunged from the [Sheriff’s Department’s] records.” 

Appellant’s Appendix Volume V at 179-180. It also found the “purported passdown report” met “neither the Trial Rule 56(E) requirements for affidavits, nor 

the Trial Rule 56(C) requirements for admissibility of other designated 

evidence.” Id. at 180. Kerwood did not present an affidavit regarding the 

authenticity of the “pass-down report” or point to designated evidence showing 

the report was published. Sergeant Leeper and Officer Schuman did not 

indicate that they learned of Kerwood’s prior arrest from the report. Sergeant 

Leeper indicated that he learned about Kerwood’s arrest for impersonation 

“through the . . . law enforcement grapevine,” Appellant’s Appendix Volume 

III at 7, and Officer Schuman indicated that he learned of the charges against 

Kerwood from the media. Moreover, any written information in one of the 

Sheriff’s Department’s databases stating that Kerwood was arrested and 

charged with impersonating an officer did not constitute a false statement or 

false assertion of fact. The court did not err in entering summary judgment in 

favor of the Sheriff’s Department on Count I. 

[18] With respect to his claim of slander, Kerwood alleged in Count II that 

employees of the Sheriff’s Department made false statements implying he 

engaged in criminal conduct or misconduct in his employment. In support of 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 14 of 21

its summary judgment motion, the Sheriff’s Department argued that Officer 

Schuman’s warnings to “keep an eye out” or “check him out” and Sergeant 

Leeper’s warning “we have to be careful” were not defamatory because they did 

not assert objectively verifiable facts about Kerwood. Appellant’s Appendix 

Volume III at 113. It argued Sergeant Leeper and Officer Schuman’s mentions 

of Kerwood’s arrest for impersonation were true. In response, Kerwood argued

the statements “clearly imply Kerwood engaged in criminal activity which is 

false.” Id. at 146. He argued the statement “because of your past” implied that 

he engaged in provable acts in his past and the statement “they need to check 

him out” implied provable facts of a negative nature. Id. at 148. 

[19] The trial court found that Sergeant Leeper’s alleged statement “[w]e have to be 

careful of you because of your past” was made while investigating the radio 

found in a shopping cart, Sergeant Leeper clarified that he was referring to 

Kerwood’s prior impersonation arrest, the reference to Kerwood’s arrest was an 

objectively verifiable fact that was true, and the remainder of the statement was 

a subjective view and not defamatory. Appellant’s Appendix Volume V at 181. 

It also found Sergeant Leeper’s communications were shielded from liability by

Ind. Code § 34-13-3-3(a)(8). It found Officer Schuman’s alleged statements 

about Kerwood’s arrest and finding the radio were true and his alleged 

statements regarding the need to “keep an eye out for him” and “to check him 

out” were “the subjective view, interpretation, or theory of [Officer] Schuman” 

and not statements that contain objectively verifiable facts. Appellant’s 

Appendix Volume V at 182. 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 15 of 21

[20] On appeal, Kerwood argues that, in stating “[w]e have to be careful with you 

because of your past,” Sergeant Leeper “directly implied that [he] believed

[Kerwood] stole the radio because of [his] past.” Appellant’s Brief at 21. He 

also argues that, at the time of the meeting with Concord Fire, Sergeant Leeper 

“was no longer enforcing any law” because “he confirmed with Lanzen that 

[the radio] had not been stolen” and thus Ind. Code § 34-13-3-3(a)(8) was not 

applicable. Id. at 23. He argues that Officer Schuman’s statements, in context,

were intended to convey that he committed criminal conduct. The Sheriff’s 

Department argues Officer Schuman’s statements to Chief Thode were true and 

that it was immune from any claim arising from Sergeant Leeper’s statement as 

he was investigating whether the radio was stolen. 

[21] The designated testimony reveals that a meeting was held at a Concord Fire 

station at which Kerwood, Assistant Chief Miller, Sergeant Leeper, and Officer 

Schuman were present. During his deposition, Kerwood was asked about the 

reason for the meeting, and he answered: “I was interrogated about why I had 

this radio and wanting to know if it came from the sheriff’s department. They 

believed it was stolen.” Appellant’s Appendix Volume II at 147. He stated “I 

don’t have any problem with them investigating that” and “I agree that they 

were investigating a stolen radio, yes.” Id. He stated that Sergeant Leeper said 

“[w]e have to be careful when it comes to you because of your past.” Id. When 

asked “[h]e left the term ‘past’ ambiguous,” Kerwood testified: “It was history 

or past. And when I asked what history or past, he said the -- my arrest for the 

police impersonation.” Id. at 148. To the extent Sergeant Leeper’s statement 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 16 of 21

referred to Kerwood’s arrest for police impersonation, the statement did not 

constitute a false assertion of fact. We agree with the trial court that the 

remainder of the statement, including “[w]e have to be careful,” was Sergeant 

Leeper’s subjective view. Similarly, Officer Schuman’s statements to his father 

and later to Chief Thode regarding Kerwood’s prior arrest for police 

impersonation and the discovered radio did not constitute false statements or 

false assertions of fact, and his statements to his father that Kankakee Fire 

“need[ed] to check [Kerwood] out,” Appellant’s Appendix Volume III at 26, or 

“keep an eye out for him,” id. at 46, merely reflected his subjective view. 

[22] The court also found Sergeant Leeper’s communications were shielded from 

liability under Ind. Code § 34-13-3-3(a)(8). Ind. Code § 34-13-3-3(a) provides 

“[a] governmental entity or an employee acting within the scope of the 

employee’s employment is not liable if a loss results from . . . (8) The adoption 

and enforcement of or failure to adopt or enforce . . . a law (including rules and 

regulations) . . . unless the act of enforcement constitutes false arrest or false 

imprisonment.” The trial court rejected Kerwood’s assertion that Sergeant 

Leeper was not acting in a law enforcement capacity when he attended the 

meeting. We agree with the trial court. Sergeant Leeper testified “[w]e called 

Sergeant Lanzen to ask him if he had his radio, he did, so then the thought was 

maybe he had switched it out for a different one but his unit number was still 

written on this one, and if that was the case, if it was our radio, I wasn’t aware 

that we ever sold radios to the public, so my concern was that it had been 

illegally obtained.” Appellant’s Appendix Volume III at 4. Later, when asked 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 17 of 21

“at that time when you called on Mr. Kerwood, did you have any reason to 

believe that the property was stolen,” Sergeant Leeper answered affirmatively, 

and when asked “[w]hat was your reason,” he replied: “Well, the fact that it 

had what would be our unit number on it. I didn’t have any indication of any 

other agencies in the area that would have a unit number like that, and while 

Sergeant Lanzen had his current radio, it’s not out of the question that he could 

have needed to swap his radio out for a different one, and this was one that he 

used to have.” Id. at 6. In his deposition, Kerwood agreed that Sergeant 

Leeper was investigating whether the discovered radio had been stolen. The 

entry of summary judgment on Count II was proper. 

2. Tortious Interference with a Business Relationship

[23] Kerwood argues the court erred in granting summary judgment on his claim of 

tortious interference with a business relationship. The elements of tortious 

interference with a business relationship are: (1) the existence of a valid 

relationship; (2) the defendant’s knowledge of the existence of the relationship; 

(3) the defendant’s intentional interference with that relationship; (4) the 

absence of justification; and (5) damages resulting from defendant’s wrongful 

interference with the relationship. McCollough v. Noblesville Sch., 63 N.E.3d 334, 

344 (Ind. Ct. App. 2016) (citing Felsher v. Univ. of Evansville, 755 N.E.2d 589, 

598 n.21 (Ind. 2001)). Additionally, the Indiana Supreme Court has held that 

“this tort requires some independent illegal action.” Id. (citing Brazauskas v. Fort 

Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003)). Defamation, 

however, “does not constitute illegal conduct for the purpose of determining 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 18 of 21

whether one tortiously interfered with the business relationship of another.” Id. 

(citing Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 961 (Ind. Ct. App.

2014)). “The lack of justification is established only if the interferer acted 

intentionally, without a legitimate business purpose, and the breach is malicious 

and exclusively directed to the injury and damage of another.” Miller, 11 

N.E.3d at 961 (citation and quotations omitted). 

[24] Kerwood alleged in Count III that Officer Schuman, acting as a representative 

of the Sheriff’s Department, made false statements to his employer with the 

intent to interfere with the business relationship between him and Kankakee 

Fire. The Sheriff’s Department argued that Kerwood did not identify an 

independent illegal action by Officer Schuman and that Officer Schuman’s 

communication with Chief Thode was justified. Kerwood argued it is 

reasonable to infer that Officer Schuman accessed the Sheriff’s Department’s

records “in violation of the expungement statute to learn of [his] impersonation 

charges” and “[t]his would constitute an illegal act.” Appellant’s Appendix 

Volume III at 156-157. The court found that Officer Schuman’s statements 

about Kerwood’s arrest and the radio incident were historical facts and that the 

Sheriff’s Department was not liable for tortious interference in connection with 

Officer Schuman’s conversation with Chief Thode. It found “there is no 

evidence the Sheriff’s failure to fully expunge played a role in achieving Eric 

Schuman’s purported end of tortiously interfering in Kerwood’s employment 

with [Kankakee Fire], and cannot constitute the independent illegal action 

necessary to support liability for that tort.” Appellants Appendix Volume V at 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 19 of 21

185. It also found that Officer Schuman’s communications to Chief Thode 

were justified, “Kerwood was in a public safety role as a volunteer firefighter,” 

and Officer Schuman, “as a police officer with a duty to protect and serve the 

public, had a legitimate, non-malicious interest in making sure public safety 

employers are aware of their employees’ backgrounds.” Id. at 186. 

[25] Kerwood argues that Officer Schuman’s statements to Chief Thode, in context, 

were intended to convey wrongful conduct on his part and thus were not 

truthful, that “[a]ccessing and using the information that had been ordered

expunged constitutes an illegal act on the part of the [Sheriff’s Department] for 

failing to comply with the statute,” and that “[t]here was no justification for

Schuman to go to [his] employer other than to maliciously interfere with his 

job.” Appellant’s Brief at 28-29. The Sheriff’s Department maintains Officer 

Schuman’s statements were justified and Officer Schuman committed no illegal 

act to support the claim. 

[26] We have found that Officer Schuman’s statements to Chief Thode regarding 

Kerwood’s prior arrest for police impersonation and the discovered radio did 

not constitute false statements or false assertions of fact. Further, defamatory 

statements do not constitute illegal conduct for purposes of a claim for tortious 

interference with a business relationship. See McCollough, 63 N.E.3d at 344. 

Officer Schuman stated that he learned of the charges against Kerwood for 

impersonating an officer from the media, and Kerwood did not designate 

evidence showing that Officer Schuman accessed records related to him at the 

Sheriff’s Department. Sergeant Leeper stated that he learned about Kerwood’s 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 20 of 21

arrest for impersonation “through the . . . law enforcement grapevine.” 

Appellant’s Appendix Volume III at 7. The Sheriff’s Department did not 

commit an independent illegal act for purposes of a claim for tortious 

interference with a business relationship. The court did not err in granting 

summary judgment in favor of the Sheriff’s Department on Count III. 

3. Negligent Training, Supervision, and Retention

[27] Finally, Kerwood argues the court erred in entering summary judgment on his 

claim of negligent training, supervision, and retention. Count IV of his 

amended complaint alleged the Sheriff’s Department failed to properly train 

and supervise its employees in protecting confidential and expunged records. 

The Sheriff’s Department argued it had immunity under Ind. Code § 34-13-3-

3(a)(7). The trial court found that the Sheriff’s Department’s employees were 

acting within the scope of their employment and that the Sheriff’s Department 

had immunity under Ind. Code § 34-13-3-3(a)(7) and common law with respect 

to Count IV. On appeal, Kerwood argues that, “while Schuman was acting 

under the authority of the [Sheriff’s Department], he was not acting within the 

scope of his employment” and the Sheriff’s Department “was negligent in 

hiring Schuman and failed to properly train its employees.” Appellant’s Brief at 

31. 

[28] Ind. Code § 34-13-3-3(a) provides that “[a] governmental entity or an employee 

acting within the scope of the employee’s employment is not liable if a loss 

results from the following: . . . (7) The performance of a discretionary function . 

. . .” The employment and supervision of employees in governmental offices is 
Court of Appeals of Indiana | Opinion 23A-PL-2229 | April 10, 2024 Page 21 of 21

a discretionary function. Foster v. Pearcy, 270 Ind. 533, 538, 387 N.E.2d 446, 

450 (1979). We conclude that Ind. Code § 34-13-3-3(a)(7) applied to Kerwood’s 

claim that the Sheriff’s Department did not properly train and supervise its

employees with respect to the protection of expunged or sealed records and that 

the court did not err in entering summary judgment in favor of the Sheriff’s 

Department on Count IV of Kerwood’s amended complaint. 

[29] For the foregoing reasons, we affirm the trial court. 

[30] Affirmed. 

Riley, J., and Foley, J., concur. 

ATTORNEY FOR APPELLANT

Amy D. Griner 

Griner Legal, LLC 

Lakewood, Colorado 

ATTORNEYS FOR APPELLEE

Michael F. DeBoni

Nathaniel M. Jordan 

Adrian D. Bottomley 

Yoder Ainlay Ulmer & Buckingham, LLP 

Goshen, Indiana