THURSTON SPRINGER MILLER HERD TITAK INC v. HIGGINS (2026)

MEMORANDUM DECISION

Case Summary

[1] This case involves the potential liability of an attorney and a law firm for defamation, abuse of process, and malicious prosecution, for actions taken in the representation of a client. Thurston, Springer, Miller, Herd & Titak, Inc. (Thurston Springer), James Titak, Richard Parker, Brian Sweeney, J. Keith Stucker, and Jenna Spurrier (collectively, the Appellants) sued attorney John Higgins, the law firm of Stoll Keenon Ogden PLLC (SKO) and its predecessor firm, Katz Korin Cunningham PC n/k/a 334 N. Senate PC (KKC) (collectively, the Attorney Appellees), regarding their representation of Kelli Dugan in connection with litigation that she brought against Thurston Springer and her financial advisors. The Appellants also sued Dugan.

[2] The Appellants contend that the trial court improperly dismissed their malicious prosecution, abuse of process, and defamation claims under Ind. Trial Rule 12(B)(6) against the Attorney Appellees. The Appellants further contend that the trial court erred in granting Dugan's motion for judgment on the pleadings (MJOP) in accordance with T.R. 12(C). The Appellants maintain that they properly pled all elements of their claims, and that their causes of action established that actionable injuries had occurred.

[3] We affirm.¹

Facts and Procedural History

[4] Stucker is a licensed financial advisor, and Senior Vice President of Investments with Thurston Springer. Spurrier is also a licensed investment advisor, and a vice president at Thurston Springer. Sweeney is a lawyer who previously worked as a compliance attorney for Thurston Springer.

[5] Fred Knipscheer and Dugan were in a romantic relationship from 2015-2020 and lived together in Indianapolis for about two years. Knipscheer had worked in the restaurant business for nearly twenty years and was responsible for several restaurant “start-ups.” Appellants’ Appendix Vol. II at 18.

[6] Sometime in late 2015 or early 2016, Dugan—a commercial realtor—opened an account with Thurston Springer, and Stucker and Spurrier were her investment advisors. Higgins, who was initially with KKC,² represented Dugan in a related matter (the underlying action).

[7] In 2018, Knipscheer and Dugan approached Stucker and Steve Churchill about opening new seafood restaurants in the Indianapolis area. Knipscheer wanted to have seafood flown in directly from his family's boats in Maine. Knipscheer, Dugan, Stucker, and Churchill then founded a restaurant partnership (the Restaurant Partners) with no formal agreement. It was understood, however, that the Restaurant Partners were all to have an equal voice in the development of the restaurants, with Knipscheer and Dugan taking the lead in moving forward. The Restaurant Partners signed a ten-year lease for a location at “The Yard” in Fishers under the name of “FK Restaurant Group LLC” (FK Restaurant). Id. at 19. They also signed a ten-year lease in the spring of 2018, per Stucker's advice, for an additional restaurant start-up called Pier 48 Indy, LLC (Pier 48) that was to be located at the then future Hyatt Place Hotel in downtown Indianapolis.

[8] The Restaurant Partners applied for an SBA loan to provide capital for Pier 48. Dugan's, Stucker's, and Churchill's homes were pledged as collateral for the loan. From the summer of 2018 to the opening of the restaurant in September 2019, Knipscheer and Dugan worked daily with architects and designers to develop and launch the restaurants. Stucker routinely provided Dugan with positive financial projections as to the likelihood of Pier 48's success.

[9] Knipscheer filed for bankruptcy in November 2018 and four months later, the Restaurant Partners signed Pier 48 and FK Restaurant's operating agreements. In August 2019, the Restaurant Partners closed on the SBA loan for Pier 48. Following the opening of Pier 48, the Restaurant Partners met weekly to discuss financial issues and other matters regarding the restaurant.

[10] When substantial operating losses began to occur at Pier 48, Higgins suggested that Dugan and Knipscheer could threaten Stucker and Spurrier's careers so long as Dugan agreed to say that she did not know what she was doing and that Stucker had solicited her to invest in his restaurants. Higgins also devised a plan to send a threat letter and a draft complaint to Stucker that gave him a short deadline to pay Dugan the funds that she had contributed to Pier 48 and to relieve her of any financial obligation under the SBA loan and leases. Higgins told Knipscheer and Dugan that companies like Thurston Springer had insurance policies that would pay settlements to avoid lawsuits. While Knipscheer refused to be part of the plan, Higgins convinced Dugan to go along with his idea by telling her that she would likely lose her home if she refused to participate.

[11] On February 26, 2020, Higgins sent the threat letter and proposed complaint to Stucker that gave him only a few days to respond with an “adequate settlement offer” to avoid lawsuits that would be filed against him and others, including Thurston Springer, Stucker and his wife, Titak, Parker, and Spurrier. Appellants’ Appendix Vol. II at 68.

[12] On October 30, 2020, TTRG Fishers District, LLC (TTRG) filed a complaint against FK Restaurant, Stucker, Churchill, and Dugan, asserting claims for breach of lease and breach of guarantee. Two months later Dugan—represented by Higgins—filed her answer along with a third-party complaint against Thurston Springer, Titak, Parker, Sweeney, Stucker, and Spurrier, alleging securities fraud under the Indiana Uniform Securities Act (IUSA), constructive fraud, malpractice, breach of fiduciary duty, indemnification, and a demand for an accounting against Thurston Springer and Stucker.

[13] Sometime in 2021, the Indianapolis Business Journal (IBJ) interviewed Higgins where he stated, among other things, that

a. Knipscheer and Dugan were introduced through Stucker.

b. Stucker had no information indicating that Knipscheer and Dugan were in a romantic relationship.

c. [Dugan] is a single mother who trusted someone to handle her funds, and at the end of the day, she has no funds and no idea what happened to them.

d. Sweeney's December 23, 2019, letter, sent to clarify that Thurston Springer was not involved in any way in the investment, was an after-the-fact effort “to exculpate themselves from their misconduct.”

Id. at 69-70.

[14] Dugan's initial third-party complaint was partially terminated pursuant to a summary judgment order on December 22, 2021. More particularly, the trial court granted summary judgment in favor of Titak, Parker, Sweeney, and Spurrier on all claims. The trial court granted summary judgment in favor of Thurston Springer and Stucker on Dugan's claims for securities fraud, indemnification, and accounting, but left standing counts for constructive fraud, breach of fiduciary duty, and malpractice against Thurston Springer and Stucker.

[15] In summary, the trial court found that

a. The third-party defendants in the underlying matter were all entitled to summary judgment on Dugan's claim for securities fraud under the Indiana Uniform Securities Act [IUSA] because Dugan's self-serving affidavit–which indicated she was not actively involved in the Pier 48 enterprise – was contradicted by her representations to the IRS in her 2019 tax return that her interest in Pier 48 was not passive. The Court held she “[could] not have it both ways.”

b. Titak, Parker, and Sweeney were all entitled to summary judgment on Dugan's claims for constructive fraud and fiduciary duty because there was “no dispute that these individual defendants did not make any representations or omissions to Dugan.”

c. Titak, Parker, and Sweeney were not alleged – nor had it been shown – that they owed individual duties to Dugan.

d. The Plaintiffs ․ were all entitled to summary judgment on Dugan's demand for an accounting because Dugan “provided no argument or citation supporting the position that those individual members who [were] also third-party defendants in [the] action [were] obligated to act on behalf of Pier 48 to provide an accounting, let alone those third-party defendants who [were] not members.”

Id. at 71-72.

[16] On March 2, 2022, Dugan filed an amended third-party complaint against Thurston Springer, Stucker, and Spurrier, alleging constructive fraud, breach of fiduciary duty, and malpractice. The trial court dismissed the complaint on September 21, 2022, concluding that Dugan failed to state a claim upon which relief could be granted because her claims related to events and circumstances outside the period of limitations and Dugan knew or should have known of the alleged injuries and violations by Spurrier of the fiduciary duties allegedly owed to her. The trial court determined that Dugan chose not to assert the counts in the original complaint that survived the previous dismissal order against Spurrier until after the period of limitations had already expired. Dugan therefore had waived her right to do so.

[17] In a summary judgment order dated March 18, 2024, the trial court found that the designated evidence reflected that Stucker never abused Dugan's confidence by improperly influencing her so as to obtain an unconscionable advantage. It further found that Dugan's conflicting arguments – that Pier 48 has led to unjust gains by Stucker while also being a worthless enterprise—could not both be true.

[18] On April 16, 2024, Dugan appealed the order.³ In a memorandum decision dated January 28, 2025, a panel of this court affirmed the trial court's dismissal as to Spurrier as well as the summary judgment order in Stucker's favor. Dugan v. Stucker, Cause No. 24A-CC-919 (Ind. Ct. App. Jan. 28, 2025).⁴

[19] Meanwhile, the Appellants filed the instant action on June 25, 2024 against the Appellee Attorneys, alleging abuse of process, defamation, malicious prosecution, attorney deceit and collusion. Sweeney, Stucker, and Spurrier also asserted similar claims against Dugan in the complaint. The substance of the claims against Dugan were that: (i) Dugan had hired Higgins to defend her in the underlying cause; (ii) Higgins had convinced Dugan to threaten and pursue third-party litigation against Stucker initially, but eventually against all of the parties in the underlying case; and (iii) Dugan's stated objective in the underlying case was to “walk away from her ownership” in a restaurant venture in exchange for being released of certain financial obligations related to that venture. The complaint also alleged that Dugan—through Higgins—purportedly made various defamatory statements to the IBJ.

[20] The abuse of process claims alleged that the Attorney Appellees unlawfully colluded with Dugan in bringing the initial suit against them and that they “continued to prosecute [those claims] with an [improper] ulterior motive.” Appellants’ Appendix Vol. II at 29.

[21] The malicious prosecution counts claimed that Dugan and the Appellee Attorneys brought the action with “no probable cause” because the actions terminated in their favor and they acted with malice in continuing to “prosecute the actions even though [Dugan] was aware of facts demonstrating her contradictions and conflicting arguments.” Id. at 35. That count also alleges that the Appellee Attorneys’ conduct violated Ind. Code § 33-43-1-8, the Attorney Deceit and Collusion Statute.

[22] On October 28, 2024, Dugan answered the complaint and subsequently filed her MJOP, alleging that there was no set of circumstances under which relief could be granted: (i) on the defamation claim because the only specific statements identified by the amended complaint (those to the IBJ) were attributed to Higgins, so the “publication” element was missing; (ii) on the abuse of process claim, because the complaint did not identify any improper use of process; and (iii) on the malicious prosecution claim, because the underlying litigation remained pending on appeal so it had not been terminated adversely to Dugan.

[23] The Appellee Attorneys moved to dismiss the complaint pursuant to T.R. 12(B)(6) because no facts were pled demonstrating that the elements of malicious prosecution were satisfied or that they did anything “other than utilize the judicial process to adjudicate a claim on their client's behalf.” Appellants’ Appendix Vol. II at 6. The Appellee Attorneys further maintained that they were entitled to dismissal on the defamation count because, among other things, the statements that Higgins made were not defamatory and the Appellants “failed to plead that they were made with actual malice.” Id. at 7.

[24] Following a hearing on February 5, 2025, the trial court summarily granted Dugan's MJOP and the Attorney Appellees’ motion to dismiss, thereby eliminating all claims set forth in the amended complaint.

[25] This appeal ensued.

Standard Of Review

[26] A motion for judgment on the pleadings pursuant to T.R. 12(C) attacks the legal sufficiency of the pleadings. Kaur v. Amazon, Inc., 243 N.E.3d 1161, 1165 (Ind. Ct. App. 2024), trans. denied. In reviewing a trial court's decision on a motion for judgment on the pleadings, we conduct a de novo review. Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010). We only examine the pleadings and any facts of which we may take judicial notice, with all well-pleaded material facts alleged in the complaint taken as admitted. Kaur, 243 N.E.3d at 1165.

[27] The test to be applied when ruling on a T.R. 12(C) motion is whether, viewed in a light most favorable to the non-moving party and “with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim.” Id. at 1165-66 (emphasis added). We will affirm the trial court's judgment on a T.R. 12(C) motion when it is clear from the face of the pleadings that one of the parties cannot in any way succeed under the operative facts and allegations made therein. Id. at 1166.

[28] We also review the trial court's dismissal of all claims against the Attorney Appellees de novo, applying the same standard as the trial court. Anonymous Physician 1 v. White, 153 N.E.3d 272, 277 (Ind. Ct. App. 2020). We will affirm the trial court's ruling if it is sustainable on any basis found in the record. Minks v. Pina, 709 N.E.2d 379, 381 (Ind. Ct. App, 1999), trans. denied. A motion to dismiss under T.R. 12(B)(6) tests the legal sufficiency of a complaint: that is, “whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006). For purposes of a 12(B)(6) motion to dismiss, we must accept the facts stated in the Appellants’ complaint as true. See Crouch v. State, 147 N.E.3d 1026, 1029 (Ind. Ct. App. 2020).

[29] We note that while claims in Indiana are typically pled under the notice pleading standard, “a plaintiff must still set out the operative facts of the claim.” Trail, 845 N.E.2d at 136. And under Indiana Trial Rule 9(B) certain claims—including those made here for fraud and deceit—must be pled with specificity:

Indiana Trial Rule 9(B) states that all averments of fraud must be pled with specificity as to the “circumstances constituting fraud.” In order to meet this burden, the party alleging fraud must specifically allege the elements of fraud, the time, place, and substance of false reports, and any facts that were misrepresented, as well as the identity of what was procured by fraud. Failure to comply with the rule's specificity requirements constitutes a failure to state a claim upon which relief may be granted ․ These requirements are not limited to common law fraud but extend to all actions that “sound in fraud.”

Payday Today, Inc. v. Hamilton, 911 N.E.2d 26, 33–34 (Ind. Ct. App. 2009), trans. denied.

Discussion and Decision

I. Defamation

[30] The Appellants claim that the trial court erred in granting Dugan's MJOP and the Attorney Appellees’ motion to dismiss as to the defamation claims. The Appellants assert that Higgins's statements to the IBJ were defamatory because they were not privileged and were made with malice and a legally actionable injury had occurred. They further maintain that the defamation count against Dugan should proceed because Higgins was “acting as her agent” when he made the defamatory statements. Appellants’ Brief at 19.

[31] To establish a claim of either per se or per quod defamation,⁵ 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). 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.” Kelley, 865 N.E.2d at 596.

[32] Defamation actions require the statement(s) at issue to have been communicated to a third person or persons by the defendant to have satisfied the publication element. Turner v. BSA, 856 N.E.2d 106, 111-12 (Ind. Ct. App. 2006). The plaintiff is also required to plead actual malice to succeed on a defamation claim, and the alleged defamatory statements must be specifically stated in the complaint. Ali v. Alliance Home Health Care, 53 N.E.3d 420, 428 (Ind. Ct. App. 2016); Haegert v. McMullan, 953 N.E.2d 1223, 1230 (Ind. Ct. App. 2011).

[33] In support of the defamation claim against the Attorney Appellees and Dugan, the Appellants direct us to the four statements quoted above that Higgins made during the IBJ interview in 2021.⁶ Higgins's statements that “Knipscheer and Dugan were introduced through Stucker” and “He [Stucker] had no information indicating Knipscheer and Dugan were in a romantic relationship,” have little—if nothing—to do with the Appellants. In short, these statements do not impute anything defamatory to the Appellants. Further, Higgins's statement that “[Dugan] is a single mother who trusted someone to handle her funds, and at the end of the day, she has no idea what happened to them” is similarly non-defamatory, and Higgins's statement regarding Sweeney's December 2019 letter is simply an opinion that described Dugan's position in the underlying litigation.

[34] Finally, the Appellants have failed to plead actual malice, which is required to sustain a claim for defamation. Ali, 53 N.E.3d at 428. Even accepting the statements that the Appellants set forth in the complaint as true, they were inconsequential statements about when and how Dugan became involved with Knipscheer. As the Appellants failed to properly plead that Higgins's statements constituted defamation, we conclude that the trial court properly dismissed that claim.⁷

II. Abuse of Process

[35] The Appellants contend that the trial court erred in granting their motion to dismiss and in granting Dugan's MJOP on their allegations of abuse of process. The Appellants contend that their claims should be permitted to advance because the amended complaint “suggests that Dugan and Higgins had an improper motive in bringing Dugan's underlying claims,” i.e., “to threaten the plaintiffs’ careers.” Appellants’ Brief at 28-29.

[36] The elements of abuse of process are (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.” Est. of Mayer v. Lax, Inc., 998 N.E.2d 238, 256 (Ind. Ct. App. 2013), trans. denied. The gravamen of abuse of process “is not the wrongfulness of the prosecution but some extortionate perversion of lawfully initiated process to illegitimate ends.” Waterfield v. Waterfield, 61 N.E.3d 314, 319 (Ind. Ct. App. 2016), trans. denied. There must be evidence that the attorney knowingly initiated proceedings for a clearly improper purpose that requires “more than evidence of a questionable belief to the merits of a case, or the failure to fully investigate all facts before filing suit.” Nat'l City Bank v. Shortridge, 689 N.E.2d 1248, 1253 (Ind. 1997).

[37] The proper inquiry is whether the litigation positions taken are so outrageous that “no competent and reasonable attorney familiar with the law of the forum” would have brought the action. See id. (summary judgment was deemed inappropriate on an abuse of process claim because the defendants wrongly used the lis pendens procedure by filing two such notices in a pending personal injury lawsuit, despite an “abundance of authority” showing that lis pendens should only be used to give notice to third parties of litigation affecting a piece of property or a judgment lien against property, neither of which conditions existed in those circumstances). Put another way, there is a triable issue of fact on an abuse of process claim where the underlying action is so “legally unsound” that an improper purpose may be reasonably inferred. Estate of Mayer, 998 N.E.2d at 256-58.

[38] In this case, the Appellants’ abuse of process claim against the Attorney Appellees is based on the legal representation of Dugan in the underlying litigation and on appeal. The allegations in the amended complaint merely indicate that the Attorney Appellees were seeking to assist Dugan in recouping her investment in the failing restaurant venture by encouraging her investment advisor and advisory firm to proceed through the normal channels and negotiate for a potential resolution.

[39] And contrary to the Appellants’ contentions, Dugan's securities claims against Spurrier and Sweeney in the underlying litigation were permitted under Indiana law. More particularly, the IUSA provides for liability for not only the person who sells a security (Stucker in the underlying litigation), but also jointly and severally for: (1) persons who directly or indirectly control the seller; (2) executive officers and directors of the seller; (3) persons associated with the seller that materially aid in the sale of the security in question; and, (4) investment advisers that materially aid in the sale of the security in question. See I.C. §§ 23-19-5-9(d)(1)-(4).

[40] Spurrier was an investment adviser with Thurston Springer, and the underlying complaint alleged that she materially aided Stucker in the sale of securities in Pier 48 to Dugan. Sweeney was a compliance officer with Thurston Springer, and it was alleged in the complaint that he could directly or indirectly control Stucker's actions in that capacity. Even though the action was ultimately unsuccessful, Dugan's IUSA claim against Spurrier and Sweeney was permitted under Indiana law because the statute allows for the vicarious liability that Dugan sought to impose. See I.C. §§ 23-19-5-9(d)(1)-(4).

[41] Additionally, the question of whether Stucker solicited Dugan to invest in Pier 48 through his role as her financial advisor at Thurston Springer was a contested issue of fact in the underlying case. Accordingly, the allegation that Stucker was involved in Pier 48 only as an owner—that he provided no investment services related to the restaurant—does not satisfy the impropriety element of an abuse of process claim, inasmuch as the underlying litigation reflected a dispute about the truth of this statement. Abuse of process requires “more than evidence of a questionable belief as to the merits of a case.” Estate of Mayer, 998 N.E.2d at 257. Put another way, even if the amended complaint's allegation that Stucker was involved in Pier 48 only as an owner was true (as must be assumed for purposes of this appeal), Dugan still did not abuse the legal process because she made a colorable argument to the contrary in the underlying litigation.

[42] The same is also true with respect to the allegation that Dugan was not a “passive investor” in Pier 48 due to the election on her 2019 federal tax return. Dugan presented testimony in the underlying case that she mistakenly made that election and subsequently filed amended tax returns to correct it. Again, the existence of conflicting evidence on this point leads to – at most – a questionable belief about the merits of the underlying case. Such is not enough to demonstrate the impropriety necessary to support an abuse of process claim. See id.

[43] In sum, the amended complaint fails to articulate an improper or ulterior motive on behalf of the Attorney Appellees or how they allegedly misused the legal process to achieve an “illegitimate end.” See Waterfield, 61 N.E.3d at 319. We therefore conclude that the trial court properly granted Dugan's MJOP and the Appellees’ motion to dismiss with respect to the Appellants’ abuse of process claims.

III. Malicious Prosecution

[44] The Appellants argue that the trial court erred in granting Dugan's MJOP and the Attorney Appellees’ motion to dismiss the malicious prosecution claims. The Appellants maintain that they satisfied all the elements of that claim “because the original action had terminated in their favor ․” Appellants’ Brief at 40-41.

[45] The elements of a malicious prosecution claim 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, 998 N.E.2d at 249-50. Malicious prosecution claims are “not generally favored in our legal system, and thus its requirements are construed strictly against the party bringing the action.” Wong v. Tabor, 422 N.E.2d 1279, 1283 (Ind. Ct. App. 1981). It is an attorney's duty to seek “any and all possible relief” for their client and courts confronted with malicious prosecution claims brought against an attorney should be “ever mindful that an attorney's role is to facilitate access to our judicial system for any person seeking legal relief.” Id. at 1289.

[46] A prior action is not terminated if an appeal in the prior action is still pending. See Snider v. Lewis, 276 N.E.2d 160, 170 (Ind. Ct. App. 1972). In this case, the underlying action was decided adversely to Dugan only when our Supreme Court denied transfer in the case on September 4, 2025. To be sure, the underlying action was still pending before our Supreme Court when the Appellants filed their amended complaint and initial briefs. Thus, the Appellants pursued the action for malicious prosecution prematurely.

[47] In addition, we note that the Appellants failed to adequately plead the remaining necessary requirements with regard to the malicious prosecution claim. More specifically, the Appellants pled only generally—without supporting facts—that Dugan and the Appellee Attorneys lacked “probable cause” to initiate the actions and that they “continued to prosecute them even though she was aware of facts demonstrating her contradictions and conflicting arguments.” Appellants’ Appendix Vol. II at 35. Those conclusory averments are not sufficient to allege that the Attorney Appellees and Dugan brought the action with malice and without probable cause. Moreover, as noted above, malicious prosecution is a claim that is highly disfavored and construed strictly against the claimant, particularly when it threatens the ability of an attorney to effectively represent his client.

[48] In short, the Appellants have failed to argue they met the remaining elements of the claim in their initial appellate briefs, and they are precluded from doing so for the first time in their reply briefs. See, e.g., Lockerbie Glove Co. Town Home Owner's Ass'n, Inc. v. Indianapolis Historic Pres. Comm'n, 194 N.E.3d 1175, 1184 n.7 (Ind. Ct. App. 2022) (holding that an argument raised for the first time in a reply brief is waived). For these reasons, we conclude that the trial court properly granted the Attorney Appellees’ motion to dismiss and Dugan's MJOP on the malicious prosecution claim.

[49] Judgment affirmed.

FOOTNOTES

1.   On August 29, 2025, Dugan filed a verified motion for judicial notice with respect to the salient filings, orders, chronological case summaries, and the trial court's conclusions from the proceedings. We grant Dugan's verified motion contemporaneously with this decision.

2.   KKC and SKO combined to form SKO in July 2022.

3.   Sweeney subsequently filed a pro se motion to dismiss himself from the appeal because, among other things, Dugan had previously abandoned any claims against him, and she asserted no claims against him in the amended complaint.

4.   Our Supreme Court denied transfer in this case on September 4, 2025.

5.   Defamation per se involves a communication imputing: “(1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person's trade, profession, office, or occupation; or (4) sexual misconduct.” Baker v. Tremco, Inc., 917 N.E.2d 650, 657 (Ind. 2009). The communication must be made with malice, publication, and damage. Id. The plaintiff is entitled to presumed damages as a natural and probable consequence of defamation per se. Kelley v. Tanoos, 865 N.E.2d 593, 597 Ind. 2007). The defamatory nature of the communication must appear without reference to extrinsic facts or circumstances. Id. A person alleging defamation per quod must demonstrate the same elements without reference to extrinsic facts or circumstances and must demonstrate special damages. Id. Here, the Appellants alleged defamation per se.

6.   The Appellants specifically set forth those statements in their complaint.

7.   As the trial court properly dismissed the Appellants’ defamation claim against the Appellee Attorneys because the statements were not defamatory, we likewise conclude that the trial court correctly granted Dugan's MJOP on that claim. We therefore need not address the Appellants’ contention that Dugan could be liable for defamation under the theory that Higgins was acting as her agent when he made the statements.

Altice, Judge.

May, J. and Foley, J., concur.