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Welton v. Anderson

United States District Court, S.D. Indiana, Indianapolis Division

August 17, 2016

OFFICER SHANI J. ANDERSON, individually. Defendant.



         This 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[1] 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 Summary Judgment.

         I. BACKGROUND

         The 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).

         Welton 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 1).

         Thompson 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.

         In 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.)

         In 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.

         Welton 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).

         Welton 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).

         Thompson 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 or Welton.

         Welton 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.

         Welton 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).

         On the 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).

         After 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 to Welton.

         On June 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.

         Mrs. 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 at 8.)

         The day 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).

         Det. 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.

         Det. 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 ...

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