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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: WILLIAM H. TOBIN South Holland, Illinois

ATTORNEY FOR APPELLEES: MICHAEL V. KNIGHT Barnes & Thornburg LLP South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA
SPRING LAKE CHAPTER of the IZAAK WALTON LEAGUE OF AMERICA, INC., Appellant-Plaintiff, vs. INDIANA DIVISION of the IZAAK WALTON LEAGUE OF AMERICA, INC., CHARLES SIAR, and EMIL GARCIA, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 45A03-0705-CV-232

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable John R. Pera, Judge Cause No. 45D10-0506-CT-119

November 29, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Appellant-Plaintiff Spring Lake Chapter of the Izaak Walton League of America, Inc. ("Spring Lake") appeals a grant of summary judgment in favor of Appellees-Defendants Indiana Division of the Izaak Walton League of America, Inc., President Charles Siar, and Treasurer Emil Garcia (collectively, "the Indiana Division") upon Spring Lake's complaint for malicious prosecution and abuse of process. We affirm in part and reverse in part. Issues Spring Lake presents five issues for appeal, which we consolidate and restate as the following two issues: I. Whether summary judgment was properly granted in favor of the Indiana Division upon the malicious prosecution claim; and Whether summary judgment was properly granted in favor of the Indiana Division upon the abuse of process claim. Facts and Procedural History The Izaak Walton League of America, Inc. is a national not-for-profit organization devoted to the promotion of conservation and ecological programs and practice. In 1988, Indiana Division revoked the charter of the Hobart/MacJoy chapter of the organization because of misconduct. During November of 1988, Spring Lake was granted a charter by the national organization and took possession of the real property located at 4700 West 49th Avenue in Hobart, Indiana, formerly possessed by the Hobart/MacJoy chapter ("the Hobart property"). On May 22, 1989, the Newton Superior Court granted Indiana Division control of the Hobart/MacJoy chapter's assets including title to the Hobart property. However, Spring 2

II.

Lake was appointed as "receiver" and remained in possession of the Hobart property. Indiana Division set up a management account into which Spring Lake deposited the income from bingo games, tent camping and "other operations." (App. 141.) With these funds, Spring Lake paid mortgage installments, insurance premiums and other expenses in connection with the Hobart property. Spring Lake also issued checks to "reimburse Division for its payment of attorney's fees, security guards and other such expenses in connection with the suspension of the Hobart chapter, the recovery of its assets, and the Hobart property." (App. 141-42.) Bank One, the mortgagee of the Hobart property, threatened a foreclosure action unless the Indiana Division transferred ownership of the Hobart property to Spring Lake. At that time, the Hobart property was scheduled for a tax sale (for recovery of $38,959.42 in real estate taxes and penalties). 1 Mary Wilusz, President of the Spring Lake chapter and also a member of the Board of Directors of Indiana Division, drafted a resolution providing that the Indiana Division would deed the Hobart property to Spring Lake without consideration. On September 13, 1993, the Indiana Division's Board of Directors adopted a resolution with the additional language as follows: In recognition of this deed SLC agrees to make the Division whole by repaying all monies expended by Division in the management and resolution of this issue to date and in the future. (App. 13.) Indiana Division deeded the Hobart property to Spring Lake for a stated nominal price of $10.00.

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On November 3, 1998, the Indiana Division sought reimbursement from Spring Lake for claimed expenses in connection with the defunct chapter and requested that Spring Lake representatives attend a board meeting to discuss making the Indiana Division whole. On November 25, 1998, Spring Lake's attorney requested documentation of expenses. On November 27, 1999, Spring Lake rejected the Indiana Division's request for reimbursement. On February 14, 2003, the Indiana Division filed a complaint against Spring Lake for breach of contract and unjust enrichment. On May 13, 2005, following a two-day bench trial, judgment was entered for Spring Lake. The trial court entered findings of fact and conclusions of law, providing in relevant part that: the claims were time-barred; the Indiana Statute of Frauds barred the breach of contract claim; there was no agreement (written or parol) mandating payment by Spring Lake in exchange for the deed; Spring Lake was not present at the adoption of the second resolution and thus could not have agreed to its terms; the requirement that Spring Lake "make Division whole" is too indefinite for enforcement; there was no corporate authority for the second resolution; the Indiana Division failed to provide supporting documentation of claimed expenses; summaries of expenses contained errors; and the Indiana Division failed to prove damages "to any degree of certainty." (App. 148.) However, the trial court declined to award Spring Lake attorney's fees for the Indiana Division's alleged prosecution or continuation of a frivolous, groundless, or unreasonable lawsuit. On June 20, 2005, Spring Lake filed a complaint against the Indiana Division, alleging malicious prosecution, abuse of process, and criminal deception. On October 2, 2006, the
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At some point, the charitable tax exemption had apparently been revoked.

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Indiana Division moved for summary judgment. On November 3, 2006, Spring Lake filed its memorandum in opposition to summary judgment. The Indiana Division was granted leave to substitute evidentiary exhibits and Spring Lake was granted leave to file an affidavit in response to one of the exhibits. On March 13, 2007, the trial court conducted a summary judgment hearing. On May 2, 2007, the trial court granted summary judgment in favor of the Indiana Division. Spring Lake now appeals. Discussion and Decision I. Malicious Prosecution A. Summary Judgment Standard When reviewing the propriety of a ruling on a motion for summary judgment, we apply the same standard as the trial court. See Atlantic Coast Airlines v. Cook, 857 N.E.2d 989, 994 (Ind. 2006). Our review of a summary judgment motion is limited to the materials designated to the trial court. Id. A party seeking summary judgment bears the burden to make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Am. Mgmt., Inc. v. MIF Realty L.P., 666 N.E.2d 424, 428 (Ind. Ct. App. 1996). Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id. The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party. Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind. 2002). 5

On appeal, the appellant bears the burden of persuasion, but we will assess the trial court's decision to ensure that the parties were not improperly denied their day in court. Ind. Health Ctrs., Inc. v. Cardinal Health Sys., Inc., 774 N.E.2d 992, 999 (Ind. Ct. App. 2002). A factual issue is genuine if it is not capable of being conclusively foreclosed by reference to undisputed facts. Am. Mgmt, Inc., 666 N.E.2d at 428. B. Analysis Malicious prosecution consists of the following elements: prosecution, without probable cause, with malice, termination in favor of the original defendant, and damages to the defendant. 19 Indiana Law Encyclopedia, Malicious Prosecution

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