Kathleen G. Babchuk v. Kirk J. Daniels - State of Indiana

this burden, the plaintiff then has the burden of overcoming that privilege by showing
that it has been “abused.” In this sense, the essence of the concept of “abuse” is not the
speaker’s spite but his abuse of the privileged occasion by going beyond the scope of the
purposes for which privilege exists. Id.
A jury should determine as questions of fact whether a defendant acted in good
faith, whether the privilege was abused by excessive publication, whether the defendant
used the occasion for an improper purpose, or whether the defendant lacked grounds for
belief in the truth of the statement. Cortez, 827 N.E.2d at 1234. If different inferences
and conclusions could reasonably be drawn from the evidence, then the question of abuse
of privilege must be submitted to the jury. Id.; see also Williams, 914 N.E.2d at 762
(“Unless only one conclusion can be drawn from the evidence, the question of whether
the privilege has been abused is for the jury.”) (quoting Kelley, 865 N.E.2d at 601).
Kathleen notes that she designated evidence indicating that she did act in good
faith, i.e. she wrote the letter to inform authorities regarding what she believed to be
Daniels’s unethical and illegal behavior. This, she claims, is unrefuted evidence of her
good faith. But Daniels notes that, given the timing of the various events at issue, and the
content of the letter, and construing all reasonable inferences in his favor, there was a
genuine issue of material fact regarding Kathleen’s good faith. Given our standard of
review, we must agree with Daniels.
Daniels did not violate a restraining order by transferring the $500,000, and the
mediation agreement contains no explicit prohibition against transferring this money out
of the particular A.G. Edwards account. Further, the letter accuses Daniels of printing
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