Zachariah B. Wright, Appellant-Defendant v. Fredrick Barnard, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Zachariah B. Wright, pro se, appeals the trial court's order granting a motion to dismiss filed by Fredrick Barnard. We reverse and remand.

Facts and Procedural History

[2] On March 21, 2025, Wright filed a Civil Complaint against Barnard for “Defamation by Way of Slander.” Appellant's Appendix Volume II at 6. He asserted that Barnard awoke in the early morning hours of June 18, 2017, to the sound of breaking glass, observed a smashed window, observed a “tall white male” next to his garage, and chased that person. Id. According to Wright's complaint, Barnard went home and called the police after being unable to catch the person. Wright asserted that police “falsely told [ ] Barnard that the incident at his house was connected to a murder that occurred a couple blocks away.” Id. Wright alleged that Barnard “learned the next day that [Wright] was a person of interest in a murder investigation and that [Wright] is not six foot,” and “changed his testimony to police that the assailant he seen [sic] was six foot to that it was a shorter person, with utter disregard to the truth.” Id. At a later time, police visited Barnard, “brought along with them a random set of keys,” and asked “where the keys came from,” and Barnard “stated that he would figure it out.” Id. at 7. “Days later with serious doubt as to the truth of his statements and with a high degree of their probable falsity,” Barnard “suggested to Adrienne Bonty that the keys were hers and that the plaintiff had broke into her car that was in Barnard's driveway and stole them.” Id.

[3] On June 23, 2025, Barnard filed a Motion to Dismiss, which asserted that dismissal of Wright's complaint was proper under Ind. Trial Rule 12(B)(6) because it failed to state a claim upon which relief could be granted.¹ Barnard asserted that Wright had been convicted under cause number 06D01-1706-MR-1078 of various counts including murder, criminal confinement with a deadly weapon, and burglary with a deadly weapon. Barnard also stated that Wright “essentially asks to re-litigate his conviction” and his claim “is barred by Res Judicata.” Id. at 8. He also argued that dismissal was proper because Sullivan County was an improper venue because he lived in Boone County and all of the acts underlying Wright's claim occurred in Boone County. On July 28, 2025, Wright filed a response.

[4] On July 30, 2025, the court entered an order granting Barnard's motion to dismiss. Specifically, the order states, “The Court having reviewed both the Defendant's Motion to Dismiss and the Plaintiff's response, the Court now GRANTS Defendant's Motion to Dismiss.” Id. at 18.

Discussion

[5] Before addressing Wright's arguments, we note that Barnard did not file an appellee's brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Bixler v. Delano, 185 N.E.3d 875, 877 (Ind. Ct. App. 2022). Prima facie is defined as “at first sight, on first appearance, or on the face of it.” Id. (citation omitted). This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id. at 878.

[6] Wright argues that dismissal under Ind. Trial Rule 12(B)(6) was erroneous because he stated a claim upon which relief could be granted. He also argues that Indiana law does not support the dismissal of a complaint because of improper venue.

[7] On appeal from a trial court's ruling on a 12(B)(6) motion, this Court applies a de novo standard of review and examines the pleadings in a light “most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor.” Ind. Land Tr. #3082 v. Hammond Redevelopment Comm'n, 274 N.E.3d 437, 441 (Ind. 2026) (quoting Charter One Mortg. Corp. v. Condra, 865 N.E.2d 602, 604 (Ind. 2007)). “ ‘A complaint may not be dismissed for failure to state a claim upon which relief can be granted unless it is clear on the face of the complaint that the complaining party is not entitled to relief’ under any circumstances.” Id. (quoting Charter One Mortg. Corp., 865 N.E.2d at 605).

[8] Ind. Trial Rule 8(A) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Ind. Trial Rule 8(E) provides that “[e]ach averment of a pleading shall be simple, concise, and direct.” Ind. Trial Rule 8(F) provides that “[a]ll pleadings shall be so construed as to do substantial justice, lead to disposition on the merits, and avoid litigation of procedural points.” The Indiana Supreme Court has held that Indiana is a notice-pleading state and that, “[i]n practice, this liberal standard merely requires that a ‘complaint ․ put the defendant on notice concerning why it is potentially liable and what it stands to lose.’ ” KS&E Sports v. Runnels, 72 N.E.3d 892, 901 (Ind. 2017) (quoting Noblesville Redev. Comm'n. v. Noblesville Assocs. Ltd. P'ship, 674 N.E.2d 558, 564 (Ind. 1996)).

[9] “To satisfy this standard, the plaintiff need not ‘state all the elements of a cause of action.’ ” NFI Interactive Logistics LLC v. Bruski, 239 N.E.3d 63, 69 (Ind. Ct. App. 2024) (quoting State v. Rankin, 260 Ind. 228, 294 N.E.2d 604, 606 (1973)), trans. denied. Rather, the plaintiff “need only plead the operative facts involved in the litigation.” Id. (quoting Rankin, 260 Ind. 228, 294 N.E.2d at 606). “We have a ‘heightened notice pleading standard’ for a claim of defamation.” Laux v. Baker, 238 N.E.3d 692, 699 (Ind. Ct. App. 2024) (quoting Taylor v. Antisdel, 185 N.E.3d 867, 874 (Ind. Ct. App. 2022), trans. denied), trans. denied. “Under this heightened standard, the plaintiff must specifically ‘set out the alleged defamatory statements[s] in the complaint[.]’ ” Id. (quoting Ali v. Alliance Home Health Care LLC, 53 N.E.3d 420, 428 (Ind. Ct. App. 2016)). As the Indiana Supreme Court explained, “[t]here is sound reason for this policy, as the absence of a statement in the complaint works a detriment on both the court and the defendant.” Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 137 (Ind. 2006). That is, “[t]he court is handicapped without the statement since, without it, the court cannot actually determine if the statement is legally defamatory.” Id. Moreover, “[t]he defendant is placed on an unfair footing since the absence of the statement denies her the opportunity to prepare appropriate defenses.” Id.

[10] Generally, “[t]o 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 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).

[11] In his complaint, Wright alleged that Barnard awoke in the early morning hours to the sound of breaking glass, observed a smashed window, and observed a “tall white male” next to his garage, and that, after learning that Wright was a person of interest in a murder investigation and was not six feet tall, Barnard “changed his testimony to police that the assailant he seen [sic] was six foot to that it was a shorter person, with utter disregard to the truth.” Appellant's Appendix Volume II at 6. At a later time, police visited Barnard, “brought along with them a random set of keys,” and asked “where the keys came from,” and Barnard “stated that he would figure it out.” Id. at 7. Wright also asserted that, “with serious doubt as to the truth of his statements and with a high degree of their probable falsity,” Barnard “suggested to Adrienne Bonty that the keys” presented by police “were hers and that [Wright] had broke into her car that was in Barnard's driveway and stole them.” Id. Examining the complaint in a light most favorable to the nonmoving party, we conclude that Wright has demonstrated prima facie error and conclude that we cannot say that it is clear on the face of the complaint that Wright is not entitled to relief under any circumstances.

[12] To the extent that Barnard's motion to dismiss asserted that dismissal was proper because Sullivan County was an improper venue and the trial court's order did not specify the basis for the dismissal, this Court has held that “the proper remedy for incorrect venue is not to dismiss the case, but to transfer it to the court where it should have been brought originally.” Banjo Corp. v. Pembor, 715 N.E.2d 430, 431 (Ind. Ct. App. 1999) (citing Hollingsworth v. Key Benefit Adm'rs, Inc., 658 N.E.2d 653, 655 (Ind. Ct. App. 1995), reh'g denied, trans. denied). See also Guzzo v. Goodrich Quality Theaters, Inc., 679 N.E.2d 166, 168 (Ind. Ct. App. 1997) (“When a motion brought under T.R. (B)(3) and T.R. 75 is granted, the remedy is not to dismiss the case, but rather to transfer it to the court where it should have been brought initially. T.R. 75(B).”), reh'g denied, trans. denied; Ind. Trial Rule 12(B)(3) (addressing incorrect venue under Trial Rule 75 as a basis for dismissal and providing that “[t]he disposition of this motion shall be consistent with Trial Rule 75”); Ind. Trial Rule 75(B)(1) (“Whenever a claim or proceeding is filed which should properly have been filed in another court of this state, and proper objection is made, the court in which such action is filed shall not then dismiss the action, but shall order the action transferred to the court in which it should have been filed.”).²

[13] For the foregoing reasons, we reverse the trial court's order granting Barnard's motion to dismiss Wright's complaint and remand for further proceedings.

[14] Reversed and remanded.

FOOTNOTES

1.   Indiana's Odyssey Case Management System indicates that Barnard filed a Motion for Extension of Time on April 22, 2025. On April 23, 2025, the court entered an Order on Motion for Extension of Time which granted the motion and stated, “It is therefore ordered, adjudged, and decreed that defendant shall respond to the Plaintiff's complaint on the _____ day of ____________, 2025.” April 23, 2025 Order at 1.

2.   We express no opinion as to whether venue was proper.

Brown, Judge.

Altice, J., and DeBoer, J., concur.