United States District Court, S.D. Indiana, Indianapolis Division
MARSHALL G. WELTON, Plaintiff,
OFFICER SHANI J. ANDERSON, individually. Defendant.
ENTRY ON MOTION FOR SUMMARY JUDGMENT
WALTON PRATT, JUDGE
matter is before the Court on a Motion for Summary Judgment
filed pursuant to Federal Rule of Civil Procedure 56 by
Defendant Shani J. Anderson (“Det. Anderson”)
(Filing No. 98). Following a dispute between Michael L.
Thompson (“Thompson”) and Plaintiff Marshall G.
Welton (“Welton”) regarding the conveyance of
property located in Indianapolis, Indiana, Thompson lodged a
criminal complaint against Welton, which led to an
investigation and filing of criminal charges against Welton.
After dismissal of his criminal case in state court, Welton
filed this malicious prosecution case against
Thompson and Det. Anderson. Det. Anderson filed a
motion for summary judgment, asserting that the evidence
negates elements of Welton’s malicious prosecution
claims thereby entitling her to judgment. For the following
reasons, the Court GRANTS Det. Anderson’s Motion for
following material facts are not necessarily objectively
true; but, as required by Federal Rule of Civil Procedure 56,
the facts are presented in the light most favorable to Welton
as the non-moving party. See Zerante v. DeLuca, 555
F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
is an Indianapolis businessman who has a bachelor’s
degree in business, an MBA, and a J.D. He was a manager for
Wong Ventures V, LLC (“Wong Ventures”) and WGO
Investments, Inc. (“WGO”), which were businesses
engaged in buying, selling, and renting residential real
estate. As a manager for Wong Ventures and WGO, Welton had
authority to conduct the business of the two companies and
sign documents on their behalf. However, Welton was not an
owner of either Wong Ventures or WGO (Filing No. 107-31 at
purchased a house located at 3508 Ireland Drive in
Indianapolis (the “house”) in 1978, and after
living there with his wife for two years, he began renting it
to other people in 1980 (Filing No. 100-2 at 5). He continued
renting out the house until his last tenant died in 2008.
Id. at 6. The following year, a fire destroyed much
of the house on June 9, 2009. Id. at 11.
August 2009, Thompson received an advertising postcard from
one of Welton’s companies that helps reduce property
taxes (Filing No. 100-2 at 22). Thompson called and spoke to
Welton on September 24, 2009. Welton emailed Thompson the
following day. Id. Thompson contends that about
three or four days after they talked, he and Welton met at
the house. Id. at 23. Welton informed Thompson that
he would like to buy the house, and Thompson told Welton that
he would like to sell the house after he settled his fire
claim with his insurance company. Id. at 25-26.
Welton says this conversation about selling and buying the
house occurred during the September 24, 2009 telephone call
and that the two men did not meet at the house until November
2009. (Filing No. 108-1 at 2 ¶4.)
November 2009, Thompson received a check for the actual cash
value of the house from the insurance company in the amount
of approximately $66, 000.00 (Filing No. 100-2 at 4, 16). An
additional approximately $15, 000.00 was available in
replacement cost insurance coverage if the house was
repaired. Id. at 16. Thompson alleges that he called
Welton again to ask if Welton was still interested in
purchasing the house (Filing No. 100-3 at 7). During the
telephone call, Welton informed Thompson that he had
completed significant work on the house-removing drywall,
rewiring the electrical system, and other work. Id.
Thompson previously had provided the lock combination to the
house to Welton (Filing No. 108-2 at 52). After this
telephone call, Thompson went to the house near the end of
November and discovered that he could not get into the house
because the locks had been changed. Id.
provides a different version of the events. In mid-November
2009, Welton was contacted by Thompson to discuss selling and
buying the house. Thompson told Welton that the insurance
proceeds had been paid and they could now discuss him
purchasing the house. Soon after the telephone call, Welton
and Thompson met at the house and agreed that Wong Ventures
would repair the residence. Thompson would then try to
recover the additional replacement cost insurance coverage.
If he was successful, Thompson would pay Wong Ventures $5,
000.00 and convey the house to Wong Ventures. Alternatively,
if Thompson’s insurer did not pay additional insurance
proceeds, Wong Ventures would pay $5, 000.00 to Thompson, and
Thompson would then convey the house to Wong Ventures.
Thompson and Wong Ventures would share the cost of cleaning
up the debris in the house, which Wong Ventures would cap at
$2, 400.00. Welton started repairing the house in early
December 2009. When renovation started in December, Wong
Ventures’ contractors replaced the doors and locks to
the house and placed a combination lockbox on the front door.
Welton provided the lockbox combination to Thompson so that
he could review the work as it was being completed (Filing
No. 108-1 at 2-4). Whether Thompson learned of the repair
work in November or December, the parties do not dispute that
he consented to Welton’s work on the house (Filing No.
108-2 at 51).
placed a “Rent to Buy” sign at the house when the
repairs were under way, and the sign listed Wong
Ventures’ telephone number. The repairs were almost
complete in the early spring of 2010. At that time, Welton
asked Thompson to close on their agreement to convey the
house to Wong Ventures. However, Thompson refused to convey
the house and asked instead that Wong Ventures provide an
invoice in excess of $85, 000.00 (even though Wong
Ventures’ repair work was approximately $44, 000.00) to
assist in obtaining additional insurance money, which Welton
refused to do (Filing No. 108-1 at 4).
explains that, a number of months after his November
telephone call with Welton and after learning that Welton had
changed the locks to the house thereby prohibiting him
access, Thompson received a notice from the water company
that someone had moved into the house (Filing No. 100-3 at
8). Thompson contacted the Indianapolis Metropolitan Police
Department and then went to the house. Id. at 11. He
discovered that Alfred and Jackie White (“the
Whites”) were living in the house and that Welton had
entered into a contract with the Whites to sell the house to
them. Id. at 11, 16. This surprised and impressed
Thompson since he had not conveyed the house to Wong Ventures
explains that the Whites entered into a “Lease with
Option to Purchase” with WGO, a company that manages
some of Wong Ventures’ properties, on March 28, 2010.
Then on March 31, 2010, the Whites entered into a “Land
Contract” with Wong Ventures to purchase the house,
contingent on Wong Ventures securing the deed to the house
and the Whites securing a first-time homeowner tax credit
from the IRS. However, these contingencies were noted in the
“Lease with Option to Purchase, ” not in the
“Land Contract, ” Filing No. 108-1 at 6. The
“Land Contract” represented that “[Wong
Ventures] has good and merchantable title to the Real Estate,
free and clear of any and all liens, leases, restrictions and
encumbrances.” (Filing No. 107-8 at 3 ¶4.) Welton
asserts that he informed Thompson that he had rented the
house to the Whites during their periodic telephone calls
(Filing No. 108-1 at 6). In May 2010, an attorney for the
Whites notified Wong Ventures that Mr. White was mentally
incapacitated and incompetent to execute contracts, thereby
voiding the “Lease with Option to Purchase” and
the “Land Contract.” Welton, Wong Ventures and
WGO agreed and cancelled the contracts and sent a
cashier’s check to the Whites’ attorney.
Id. at 6-7. Welton explains that the contingencies
of the “Land Contract” were never met, and thus,
it was as though the contract never existed.
made several requests to Thompson to convey the house to Wong
Ventures, but Thompson failed to cooperate. Welton obtained a
cashier’s check on two different occasions in May and
June 2010, provided the cashier’s check to Wong
Ventures’ attorney, and asked Thompson to pick up the
cashier’s check and deliver the deed for the house, but
Thompson refused to convey the house (Filing No. 108-1 at 5).
other hand, Thompson contends that he tried on many occasions
to communicate with Welton but did not get any response
(Filing No. 108-2 at 65). In talking with the Whites,
Thompson learned that many of the repairs were completed
below standard, so Thompson called the Permitting Services
office for the City of Indianapolis and discovered that no
permits had been pulled to do any repair work at the house.
Id. at 66. Thompson maintains that he called Welton
and tried to get him to “settle on the house.”
(Filing No. 100-3 at 9.) Since Welton had moved someone into
the house, Thompson insisted that Welton needed to agree to a
price and purchase the house. Welton responded that he
expected Thompson to sign over the deed to him but that he
would not pay anything for the conveyance. Id.
Thompson and Welton exchanged emails on May 26, 27, 28, and
June 2, 2010, regarding permits for the repair work,
conveyance of the house, deeds, and the purchase price
(Filing No. 107-26 at 1-3).
the parties’ impasse and shortly before June 6, 2010,
Thompson lodged a criminal complaint against Welton with the
Marion County Prosecutor’s Office. Also on June 6,
2010, Thompson forwarded all of his emails with Welton to
Deputy Prosecutor Mary Hutchison (Filing No. 108-2 at 33-34).
The complaint against Welton was referred to Sgt. Judy
Phillips, and on June 7, 2010, Sgt. Phillips took a recorded
statement from Thompson via a telephone interview (Filing No.
108-23 at 19). During the telephone interview, Thompson
reported the series of events as they are described above
from Thompson’s vantage-Thompson and Welton talked,
Welton began working on repairs without any agreement, they
talked again, Welton moved the Whites into the house and
purported to sell the house to them, Thompson discovered the
Whites, and Thompson unsuccessfully tried to sell the house
8, 2010, Sgt. Phillips interviewed Jackie White at the house
and recorded the interview (Filing No. 108-23 at
17). Mrs. White described signing papers at the end of
March 2010 and moving into the house mid-April. By the time
of the June 8, 2010 interview, the Whites’ already were
moving out of the house. Mrs. White explained that the house
was not safe because of poor repair work (Filing No. 107-27
at 4). She described paying money upfront to get into the
house, and nobody came back to repair the house after the
money was paid. She explained to Sgt. Phillips that she
learned from her sister and neighbors that Wong Ventures was
doing “fraudulent” things, so she started
investigating for herself. Id. at 3. Mrs. White told
Sgt. Phillips that she learned later that Thompson owned the
house, but she was initially told that Welton
“owned” the house through his work with Wong
Ventures. Id. at 4-5.
White explained to Sgt. Phillips that she met Welton at a
Hardee’s restaurant where the papers were signed, and
she “gave him five at the restaurant, and then we gave
him a check for 875 that was supposed to go to another place,
but nobody gave our deposit back. . . . They took that, put
some more money down, so it was about two thousand,
twenty-five hundred down.” (Filing No. 107-27 at 5-6.)
She described paying another $500.00 in rent and incurring
expenses for further repairs on the house. When Sgt. Phillips
reviewed the “Land Contract” with Mrs. White,
Mrs. White explained that she had a power of attorney for her
husband because of his mental incapacitation, and yet Mr.
White had been directed “to go ahead and sign it and be
done with it.” Id. at 7. Mrs. White discussed
the lease agreement and noted that it was not in the
paperwork because Welton kept it. Id. She also
discussed the paperwork that she completed with Welton for
the first-time homeowner tax credit and explained that it too
was fraudulent, which she discovered after talking with tax
professionals. Id. at 7-8. Mrs. White told Sgt.
Phillips that Welton and his “attorney buddies”
asked Mr. White to sign paperwork for the tax credit, and she
told them, “‘No, ’ because I was the Power
of Attorney, everything was going on too quick. They told me
to sign it, or the deal was done. So they kind of forced him
real quick to go ahead and sign it.” (Filing No. 107-27
after completing the interview with Mrs. White, Sgt. Phillips
picked up documents related to the matter from the Marion
County Recorder’s Office, Auditor’s Office, and
Assessor’s Officer on June 9, 2010. She noted that
there were no recorded land contracts for the house. After
interviewing Thompson and Mrs. White and collecting some
documents, Sgt. Phillips assigned the case to Det. Shani
Anderson, the defendant in this case, on June 9, 2010 (Filing
No. 108-23 at 23).
Anderson was employed by the Indianapolis Metropolitan Police
Department, assigned as an investigator for the Grand Jury
Division of the Marion County Prosecutor’s Office to
investigate financial crimes and schemes of deception.
(Filing No. 100-7 at 2). For her investigation in this
matter, Det. Anderson gathered and reviewed statements and
documents, talked with people on the telephone, and met with
prosecutors from the Grand Jury Division who guided the
investigation (Filing No. 100-1 at 12-13). Det. Anderson met
frequently with the prosecutor’s office to seek input
and direction. On June 17, 2010, Det. Anderson spoke with
Thompson, who asserted that he owned the house (Filing No.
100-7 at 2). Thompson told Det. Anderson about his
interactions with Welton and explained that Welton tried to
sell the house without first purchasing the house from him.
He explained to Det. Anderson the same series of events that
he described to Sgt. Phillips as they are described above.
Thompson also explained to Det. Anderson his interactions
with the Whites.
Anderson met with Grover Davis (“Davis”), an
attorney for Wong Ventures, on June 24, 2010. He explained to
Det. Anderson that Welton was a property manager for Wong
Ventures, and he did not represent Welton. His comments to
Det. Anderson corroborated some of the statements that Mrs.
White had made to Sgt. Phillips earlier in the investigation.
Davis explained that Thompson owned the house, that Wong
Ventures had not purchased the house, that Wong Ventures
intended to purchase the house, and that the intended
purchase was never finalized. He told Det. Anderson that he
learned after the land contract was executed that ...