CRONE, Judge.

Case Summary

Tikidanke Bah was a store manager for Mac's Convenience Stores, LLC d/b/a Circle K ("Circle K"). Bah's supervisor, David Ruffin, suspected that she had stolen money from the store, which she denied. Ruffin terminated Bah's employment and contacted the police. The prosecutor charged Bah with theft. After a trial, the jury found her not guilty.

Bah filed a complaint against Circle K and Ruffin (collectively "Appellees") asserting eight counts: false imprisonment, two counts of defamation, malicious prosecution, negligent supervision, vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees filed a motion for summary judgment as to all eight counts as well as a motion to strike certain evidence designated by Bah.

The trial court granted Appellees' motion to strike and motion for summary judgment. Bah filed a motion to correct error asserting that the trial court erred in granting the motion to strike and the motion for summary judgment. The trial court denied Bah's motion to correct error.

On appeal, Bah first contends that the trial court erred in granting Appellees' motion to strike on procedural and substantive grounds. We conclude that Bah has waived these arguments because she failed to object on either basis and in fact consented to the procedure.

Bah also contends that the trial court erred in granting Appellees' summary judgment motion. Bah has withdrawn her negligent supervision claim, and we conclude that her negligent infliction of emotional distress claim fails as a matter of law; therefore, we affirm the trial court's grant of summary judgment in Appellees' favor on those claims. We also affirm the trial court's grant of summary judgment on Bah's malicious prosecution claim. But we conclude that Appellees are not entitled to summary judgment on Ball's remaining claims based on defenses requiring state-of-mind and credibility determinations. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

The relevant facts most favorable to Bah as the nonmoving party on summary judgment are as follows. In 2006, Bah started working for Circle K as a cashier. In 2007, she was promoted to manager of a store at 82nd Street and Allisonville Road in Indianapolis. Bah reported to Ruffin, the market manager. In 2008, over Bah's objection, Ruffin transferred her to a smaller store at 86th Street and Ditch Road.

In June 2008, Ruffin received a job performance evaluation from Circle K stating that he needed "significant improvement" in implementing "loss prevention techniques." Appellant's App. at 126. Around the beginning of September 2008, Ruffin asked Bah if she would resign because he thought that Circle K was going to close her store. Bah said that she would prefer to assist other managers with their stores. Ruffin said that Bah "should instead resign and that the option [she] proposed was not viable." Id. at 108 (Bah's affidavit).

At that time, Bah was having problems with some of her employees "error correcting cigarettes" and, she believed, "stealing money." Id. Bah informed Ruffin and asked him to come to her store. Ruffin refused. Since Bah "needed immediate action and [Ruffin] was not helping, [she] bypassed him and contacted [Ruffin's] boss" on September 12, 2008. Id.

Ruffin received weekly sales reports from the stores that he managed and reviewed them for financial "irregularities that required investigation." Appellees' App. at 4 (Ruffin's affidavit). In mid-September 2008, Ruffin "noticed a negative number for grocery/C-store sales" in a report from Bah's store, which was "very unusual." Id. He also "found that refunds totaling $1,500 were issued" at Bah's store on September 12. Id.

On September 18, Ruffin went to Bah's store to investigate, but she was not there. He looked for various "store financial reports" for September 12 but was unable to locate them, which he found "odd." Id.1 Ruffin used the store's cash register to print the cashier's report from September 12. "Each store employee who has access to the cash register and store funds has a unique cashier number that they [sic] are not to share with others." Id. at 5. Sometimes, however, Bah "would give her code to the cashiers" to allow them to unlock the register if she was unavailable. Appellant's App. at 109 (Bah's affidavit). Ruffin also "had the codes for everyone in the store." Id. The cashier's report indicated that Bah's

Appellees' App. at 5 (Ruffin's affidavit).

The store's cash register never had $1500 in it. Id. at 22 (Bah's deposition). Refunding that amount would require opening the safe, and Bah was the only store-level employee with a key to the safe. Id. Ruffin also had a key. Id. Ruffin reviewed the store's bank deposit slip from September 12, which was for $2047. According to Ruffin, this was "a much smaller amount than the store's average deposits." Id. at 5 (Ruffin's affidavit). According to Bah, this amount was "normal" for the store. Appellant's App. at 109 (Bah's affidavit). Notably, the designated evidence does not indicate that Ruffin (or anyone else) determined that $1500 had actually been taken from the store's safe.

Ruffin also reviewed "recorded footage from security video cameras that were positioned around the store." Appellees' App. at 4. He discovered a ten-minute period "when the camera was not recording," due to either a power surge or someone pressing "the camera's reset button, which is located in the store office." Id. at 5. "The camera footage showed that [Bah] had entered the office immediately before the camera stopped recording." Id.2

Ruffin met with Bah and asked her "whether she knew why the grocery/C-store sales results were negative, and she said no." Id. at 6. He also asked her "about the $1,500.00 in refunds that were done using her cashier number, and she denied any involvement in the refunds." Id. Ruffin terminated Bah's employment.

"It is Circle K's practice when discovering suspected theft of this level from its stores to report the suspected theft to the police." Id. Ruffin contacted the Indianapolis Metropolitan Police Department ("IMPD") and told them what he had found during his investigation. Ruffin was later "contacted by IMPD and the prosecutor and asked for additional information." Id. He "cooperated with the IMPD and prosecutor's office and answered their questions and requests for information[.]" Id.

The prosecutor charged Bah with theft. She received a warrant in the mail instructing her to report to the City-County Building for a mug shot and fingerprinting, which she did. She was not arrested or jailed pending trial. In March 2010, a jury found her not guilty of theft.

In April 2010, Bah filed a complaint against Appellees asserting eight counts: false imprisonment, two counts of defamation (slander per se and slander per quod),3 malicious prosecution, negligent supervision, vicarious liability/respondeat superior, intentional infliction of emotional distress, and negligent infliction of emotional distress. Bah's complaint contains the following allegations:

Appellant's App. at 9-10.

Appellees filed a motion for summary judgment as to all eight counts in which they set forth numerous "undisputed material facts," including details from Ruffin's affidavit regarding his investigation of the "suspected theft" and that he reported his findings to IMPD. Id. at 18, 20. Appellees also stated,

Id. at 21-22.

In her response to Appellees' summary judgment motion, Bah stated,

Id. at 43. In alleging what Ruffin told IMPD, Bah relied on a police report and the probable cause affidavit filed in her criminal case. In their reply to Bah's response, Appellees argued, "To the extent [Bah] tries to avoid summary judgment based on [communications to persons out-side IMPD], the Court should disregard this attempt because the argument is entirely undeveloped and the alleged communications are not supported by admissible evidence." Id. at 66.

The trial court held a hearing on Appellees' summary judgment motion. At the beginning of the hearing, the court told the parties, "It would be helpful to me if you could file a Motion to Strike that would cover all of the [...] items of designated evidence that you think are [...] of questionable admissibility[.]" Tr. at 4.4 At the conclusion of the hearing, the trial court said that it would accept responses to the motions to strike. Id. at 45. Bah's counsel stated that he had "[n]o problem" with this arrangement. Id.

Appellees filed a motion to strike certain evidence designated by Bah, including paragraph 7 of her affidavit, the police report, and the probable cause affidavit, based on inadmissible hearsay and/or lack of personal knowledge. Without paragraph 7 of Bah's affidavit, there is no designated evidence establishing that Ruffin made allegedly defamatory statements to anyone other than law enforcement authorities. Bah did not respond or object to Appellees' motion and did not file her own motion.

In June 2014, the trial court issued an order granting Appellees' motion to strike that reads in relevant part:

Appellant's App. at 78. The trial court also issued an order granting Appellees' summary judgment motion.

Bah filed a motion to correct error asserting that the trial court erred in granting Appellees' motion to strike on procedural and substantive grounds and also erred in granting Appellees' summary judgment motion. In July 2014, the trial court issued an order denying Bah's motion to correct error that reads in pertinent part:

Id. at 6-7. Bah now appeals.

Discussion and Decision

Section 1 — Bah has waived her arguments regarding Appellees' motion to strike.

Bah first contends that the trial court erred in granting Appellees' motion to strike on both procedural and substantive grounds. As did the trial court, we conclude that Bah has waived these arguments because she failed to object on either basis, and in fact she specifically consented to the procedure. See Yater v. Hancock Cnty. Bd. of Health, 677 N.E.2d 526, 530 (Ind.Ct.App.1997) (finding issue waived where party raised it for first time in motion to correct error); see also Bunting v. State, 854 N.E.2d 921, 924 (Ind. Ct.App.2006) ("A party may not sit idly by, permit the court to act in a claimed erroneous manner, and subsequently attempt to take advantage of the alleged error."), trans. denied; Olcott Int'l & Co. v. Micro Data Base Sys., Inc., 793 N.E.2d 1063, 1077 (Ind.Ct.App.2003) ("A party cannot invite error and then request relief on appeal based upon that ground; such an error cannot be reviewed by this court."), trans. denied.

Section 2 — Summary Judgment/Standard of Review

Bah also contends that the trial court erred in granting Appellees' summary judgment motion. We review such rulings de novo. Prancik v. Oak Hill United Sch. Corp., 997 N.E.2d 401, 403 (Ind.Ct.App.2013), trans. denied (2014). Pursuant to Indiana Trial Rule 56(C), a summary judgment movant must make a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If the movant satisfies this burden, "the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial." Morris v. Crain, 969 N.E.2d 119, 124 (Ind.Ct.App.2012). "A `genuine issue' is one upon which the parties proffer differing accounts of the truth, or as to which conflicting inferences may be drawn from the parties' consistent accounts; a `material fact' is one that affects the outcome of the case." Lyons v. Richmond Cmty. Sch. Corp., 19 N.E.3d 254, 259 (Ind.2014). "We must construe all evidence and resolve all doubts in favor of the non-moving party, so as to avoid improperly denying that party's day in court." Prancik, 997 N.E.2d at 401. Summary judgment is not a summary trial, and it is inappropriate merely because the nonmoving party appears unlikely to prevail at trial. Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind.2014). "The party that lost in the trial court has the burden of persuading the appellate court that the trial court erred. Our review of a summary judgment motion is limited to those materials designated to the trial court." City of Bloomington v. Underwood, 995 N.E.2d 640, 644 (Ind.Ct.App. 2013) (citation omitted), trans. denied (2014). "An appellate court may affirm summary judgment if it is proper on any basis shown in the record." Weist v. Dawn, 2 N.E.3d 65, 67 (Ind.Ct.App.2014).

Section 2.1 — Bah has withdrawn her negligent supervision claim, and her negligent infliction of emotional distress claim fails as a matter of law.

At the outset, we note that Bah has withdrawn her claim for negligent supervision. Appellant's Br. at 31. And we also conclude that her claim for negligent infliction of emotional distress fails as a matter of law because she has never alleged, let alone established, a genuine issue of material fact regarding, the "direct physical impact" required by applicable Indiana precedent. Lachenman v. Stice, 838 N.E.2d 451, 460 (Ind.Ct.App. 2005), trans. denied (2006). Therefore, we affirm the trial court's grant of summary judgment in Appellees' favor on those claims.

Section 2.2 — Appellees are entitled to summary judgment on Bah's malicious prosecution claim.

In a malicious prosecution claim, the plaintiff must establish that "(1) the defendant ... instituted or caused to be instituted an action against the plaintiff...; (2) the defendant acted with malice in doing so; (3) the defendant had no probable cause to institute the action; and (4) the original action was terminated in the plaintiff's favor." City of New Haven v. Reichhart, 748 N.E.2d 374, 378 (Ind.2001). Here, Appellees did not institute or cause to be instituted the criminal action against Bah; the prosecutor did. See Conwell v. Beatty, 667 N.E.2d 768, 778 (Ind.Ct.App. 1996) ("[N]one of the Big R defendants instituted or caused to be instituted a prosecution against Conwell [for allegedly switching a price tag on an item that he purchased at a Big R store]. The prosecution was instituted by the prosecutor who made an independent determination of whether to pursue criminal charges after reviewing all of the information obtained by the Sheriffs Department's independent investigation."). Therefore, we affirm the trial court's grant of summary judgment in Appellees' favor on Bah's malicious prosecution claim.

Section 2.3 — Appellees are not entitled to summary judgment on Bah's remaining claims based on defenses requiring state-of-mind and credibility determinations.

With respect to Bah's remaining claims, Appellees make the following argument:

Appellees' Br. at 12.

Our supreme court has explained that

Williams v. Tharp, 914 N.E.2d 756, 762 (Ind.2009) (citations, quotation marks, and alterations omitted).

As in Williams, the privileged occasion implicated in this case relates to the public interest in encouraging private citizens to report crime. Id. "The chief benefit is investigation of suspected criminal activity." Id. "[A] reporting citizen may, out of an excess of caution or even for a nefarious purpose, make false accusations, and our citizens' equally valid interest in having reputations untarnished by false imputations of criminal misconduct has been a cornerstone of defamation law for hundreds of years." Id. at 763.

Id. at 763-64. The qualified privilege defense to defamation has also been applied to claims of false imprisonment, negligence, and intentional infliction of emotional distress. Brown v. Indianapolis Housing Agency, 971 N.E.2d 181, 186 (Ind.Ct. App.2012).

Bah asserts that Ruffin was primarily motivated by ill will in making his statements to IMPD and that he "strung a web of lies to implicate [her] in criminal conduct." Appellant's Br. at 19. Appellees contend that "Bah's beliefs are not factual support appropriate in defending summary judgment, and they all must be disregarded." Appellees' Br. at 14. It is well settled, however, that "[s]ummary judgment must be denied if the resolution hinges upon state of mind, credibility of the witnesses, or the weight of the testimony." Nelson v. Jimison, 634 N.E.2d 509, 512 (Ind.Ct.App.1994).

Bah and Ruffin had a contentious relationship; he transferred her to a smaller store over her objection, and she refused his request to resign. On September 12, 2008, shortly after Ruffin received a negative evaluation for loss prevention techniques, Bah went over his head to report her concerns that her employees were stealing money. Bah's employees and Ruffin had Bah's cashier number, which was used on September 12, 2008, to enter the $1500 in refunds that formed the basis of the theft charge against Bah. The store's cash register never had $1500 in it, and only Bah and Ruffin had keys to the safe. According to Ruffin, that day's bank deposit slip was for a "much smaller" than average amount. Appellees' App. at 5. According to Bah, the amount was "normal." Appellant's App. at 109. No evidence has been designated that Ruffin (or anyone else) determined that $1500 was actually stolen from the safe, and Bah was ultimately acquitted of the theft charge. Viewing the designated evidence and resolving all doubts in favor of Bah as the nonmoving party, as we must, we conclude that a jury must determine whether Ruffin was primarily motivated by ill will in accusing Bah of the alleged theft, whether his accusations were made without belief or grounds for belief in their truth, or whether he made those accusations in good faith. In other words, we conclude that Appellees are not entitled to summary judgment on Bah's remaining claims based on the qualified privilege defense.6

For the same reason, we reject Appellees' argument that they are entitled to summary judgment on Bah's false imprisonment claim based on the judicial determination that probable cause existed to charge her with theft. See Street v. Shoe Carnival, Inc., 660 N.E.2d 1054, 1057-58 (Ind.Ct.App.1996) (probable cause determination in criminal proceeding may constitute prima facie evidence of probable cause in subsequent action for false imprisonment, but "prima facie case may be rebutted by evidence that shows the finding of probable cause was induced by false testimony or fraud"; holding that genuine issue of material fact existed regarding whether defendants had probable cause to believe that plaintiffs committed or attempted to commit theft) (emphasis added). We likewise reject Appellees' argument that they are entitled to summary judgment on Bah's false imprisonment claim based on statutory immunity for store owners and agents. Cf. Ind.Code § 35-33-6-2(a) ("An owner or agent of a store who has probable cause to believe that a theft has occurred or is occurring on or about the store and who has probable cause to believe that a specific person has committed or is committing the theft ... may ... inform the appropriate law enforcement officers[.]"); Ind.Code § 35-33-6-4 ("A civil or criminal action against ... an owner or agent of a store ... may not be based on a detention that was lawful under section 2 ... of this chapter. However, the defendant has the burden of proof that the defendant acted with probable cause under section 2 ... of this chapter.") (emphasis added).7 In sum, Bah's false imprisonment claim hinges on a credibility determination, and therefore Appellees are not entitled to summary judgment on that claim. Nelson, 634 N.E.2d at 512.

Finally, we address the parties' arguments regarding Bah's claim for intentional infliction of emotional distress ("IIED"). The elements of that tort are that the defendant "(1) engages in extreme and outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe emotional distress to another." Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind.Ct.App.2011). "It is the intent to harm the plaintiff emotionally which constitutes the basis for the tort of [IIED]." Lachenman, 838 N.E.2d at 457. "The requirements to prove this tort are `rigorous.'" Curry, 943 N.E.2d at 361 (quoting Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991)).

Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct.App.1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). "What constitutes `extreme and outrageous' conduct depends, in part, upon prevailing cultural norms and values." Id. "IIED is found where conduct exceeds all bounds typically tolerated by a decent society and causes mental distress of a very serious kind. In the appropriate case, the question can be decided as a matter of law." Curry, 943 N.E.2d at 361 (citation omitted).

Appellees first assert that "[c]onducting an internal investigation, reporting possible theft to the police, and cooperating with police and prosecutors is not extreme and outrageous conduct." Appellees' Br. at 19. But this argument presupposes that Ruffin had belief or grounds for belief in the truth of his statements to IMPD, and we have already held that this is a matter for jury determination. Nelson, 634 N.E.2d at 512.8

Next, Appellees argue that "Bah has not addressed what evidence supports a finding that Ruffin acted with intent to cause her severe emotional distress when he reported his investigation findings to police." Appellees' Br. at 20. We have already held that Ruffin's state of mind is also a matter for jury determination. Nelson, 634 N.E.2d at 512.

Appellees further contend that

Appellees' Br. at 21 (citation to appendix omitted).

The record shows that Appellees have substantially minimized the alleged severity of Bah's emotional distress. In her affidavit, she averred the following:

Appellant's App. at 105-06.

At the very least, Bah's affidavit raises a genuine issue of material fact regarding whether Appellees' conduct caused her severe emotional distress. See Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014) (holding that defendant's "self-serving" affidavit was sufficient "to raise a factual issue to be resolved at trial"). Therefore, we reverse and remand for further proceedings on her IIED claim and the foregoing claims already discussed.

Conclusion

We affirm the trial court's grant of summary judgment in Appellees' favor on Bah's claims for negligent supervision, negligent infliction of emotional distress, and malicious prosecution. As to the remaining claims, we reverse and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

PYLE, J., concurs.

BROWN, J., dissents with opinion.

BROWN, Judge, concurring in part and dissenting in part.

I concur with the majority as to its conclusions in Sections 1, 2.1, and 2.2, but respectfully dissent from its conclusion that the Appellees are not entitled to summary judgment on Bah's remaining claims based on the qualified privilege defense.

If Circle K and Ruffin have demonstrated the absence of any genuine issue of fact as to a determinative issue, they are entitled to summary judgment unless Bah comes forward with contrary evidence showing a triable issue for the trier of fact. See Williams v. Tharp, 914 N.E.2d 756, 761-762 (Ind.2009). "[T]he trial court's judgment arrives on appeal `clothed with a presumption of validity,' and the challenging party `bears the burden of proving that the trial court erred in determining that there are no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law.'" Id. at 762 (quoting Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993)).

The designated evidence included Ruffin's affidavit in which he asserted:

Appellee's Appendix at 6.

Bah cites to her affidavit and asserts that Ruffin informed other Circle K employees about the "lie." Appellant's Brief at 14. However, the Appellees specifically requested that the trial court strike the statement that Ruffin spread the false allegations to others, and the trial court granted the Appellees' motion. (Appellee's Appendix at 30). Bah does not point to any designated evidence which had not been stricken to demonstrate what statements she asserts were improperly made by Ruffin to the police. Therefore, based upon the designated evidence, I would conclude that the qualified privilege applies and would affirm on all issues. See Williams, 914 N.E.2d at 769 (finding that whether the defendant's misperception was speculative, negligent, or even reckless, it was not so obviously mistaken to permit a reasonable inference that he lied, and holding that the trial court did not err in finding a qualified privilege was established as a matter of law and thereby precluding the plaintiffs' claim for defamation); Kelley v. Tanoos, 865 N.E.2d 593, 602 (Ind.2007) (holding that summary judgment in favor of the defendant was appropriate because the plaintiff failed to designate evidence that demonstrates that the defendant abused the qualified privilege).

For the foregoing reasons, I respectfully dissent in part and would affirm the trial court in all respects.