Timothy Stabosz and Shaw Friedman appear to be political adversaries. Stabosz was the elected Auditor of LaPorte County in November of 2020, and Friedman serves, at the request of the LaPorte County Commissioners, as the LaPorte County Attorney. In an effort to convince the LaPorte County Commissioners to decline to retain Friedman as County Attorney, in the months following the 2020 election, Stabosz made a number of public comments about Friedman suggesting that Friedman had engaged in illegal and unethical behavior. In February of 2021, Friedman filed the underlying lawsuit, alleging that Stabosz’s statements constituted defamation per se. Claiming that Friedman’s lawsuit was a strategic lawsuit against public participation (“SLAPP”), Stabosz subsequently moved to dismiss the lawsuit under the procedure set forth in Indiana’s anti-SLAPP laws. The trial court denied Stabosz’s motion. Stabosz contends on appeal that the trial court erred in doing so. Because we conclude otherwise, we affirm.
When a person invokes and moves to dismiss under Indiana’s anti-SLAPP statute, the motion “is treated as a motion for summary judgment.” Id. at 567….
The crux of Stabosz’s argument on appeal is that Indiana’s summary judgment standard is too onerous to further anti-SLAPP policies. Stabosz asserts that in order to balance this allegedly onerous standard against the public interest in protecting against SLAPP lawsuits, Indiana courts should “adopt a judicial attitude more favorable to summary judgment in SLAPP cases.” Appellant’s Br. p. 27. Stabosz also asserts that the trial court erred by finding that Friedman was not required to prove actual malice by clear and convincing evidence at the summary judgment stage. In support of both of these assertions, Stabosz cites to Heeb v. Smith, 613 N.E.2d 416 (Ind. Ct. App. 1993), trans. denied.
The trial court determined that given that it was “aware of no other cases that have applied Heeb’s unique burden of proof,” “Heeb is not persuasive in this regard.” Appellant’s App. Vol. II p. 20. The trial court also differentiated the Indiana Supreme Court’s decision in Love v. Rehfus, 946 N.E.2d 1 (Ind. 2011), noting that “the Indiana Supreme Court held the parties to the same summary judgment burden of proof as in any other case.” Appellant’s App. Vol. II p. 21. For these reasons, the trial court found that
[i]n this case, the Court will apply the traditional summary judgment standard-to the extent this case is ripe for Trial Rule 56 summary judgment-which requires the movant, not the nonmovant, to demonstrate there is no genuine issue of material fact, and he is entitled to judgment as a matter of law.
Appellant’s App. Vol. II p. 21.
Like the trial court, our research has uncovered no cases applying Heeb’s unique burden of proof where summary judgment has been sought in defamation cases. We have, however, found a number of cases applying the general summary judgment standard to anti-SLAPP motions to dismiss….
We agree with the trial court that there appears to be no material dispute that Stabosz’s statements were made (1) in furtherance of his right of free speech and (2) in connection with a public issue. We therefore turn our attention to whether the designated evidence demonstrates as a matter of law that Stabosz’s actions were taken in good faith and with a reasonable basis in law and fact.
In denying Stabosz’s motion, the trial court found that Stabosz had “not submitted sufficient evidence to show that his defamatory statements had a reasonable basis in law and fact,”… For these reasons, the trial court concluded that Stabosz’s designated evidence “simply does not prove that Stabosz’s defamatory comments have any basis whatsoever in law or fact, let alone a reasonable basis.” Appellant’s App. Vol. II p. 19.
Upon our review of the record, we agree with the trial court that Friedman has designated evidence which is sufficient to create a genuine issue of material fact as to whether Stabosz’s statements were made in good faith and with a reasonable basis in law and fact. The designated evidence indicates that Stabosz had previously been told that, given his position as an elected official, if he had a reasonable belief that Friedman had committed illegal or unethical acts or if he had any evidence of illegal or unethical behavior by Friedman, then he should report the alleged wrongdoing to the appropriate authorities. The record does not reflect that Stabosz has ever done so. Further, in objecting to Friedman’s motion for summary judgment, Stabosz did not designate any evidence, beyond his alleged personal belief, that any illegal or unethical behavior actually occurred. “If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper.” Brandom, 975 N.E.2d at 388. As such, given the record before us on appeal, we conclude that the trial court did not err in denying Stabosz’s motion to dismiss.
The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.