FILED
Jul 27 2026, 8:51 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Susan S. McDermott,
Appellant-Plaintiff
v.
Sue Finkam and City of Carmel, Indiana,
Appellees-Defendants
July 27, 2026
Court of Appeals Case No.
25A-PL-3144
Appeal from the Hamilton Superior Court
The Honorable Jonathan M. Brown, Judge
Trial Court Cause No.
29D02-2504-PL-4705
Opinion by Judge Vaidik
Judges Altice and Foley concur.
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 1 of 11
Vaidik, Judge.
Case Summary
[1] Susan S. McDermott filed a complaint for defamation per se against the City of
Carmel (“the City”) and its mayor, Sue Finkam (“Mayor Finkam”), for
comments Mayor Finkam made at two Carmel City Council meetings about
financial documents the City had requested from McDermott when she was the
board chair of Carmel Christkindlmarkt, Inc. (“CCI”). The trial court dismissed
the complaint under Indiana Trial Rule 12(B)(6), and McDermott now appeals.
Because Mayor Finkam’s comments do not, on their face, attribute wrongdoing
to McDermott and are as consistent with mistake or incompetence as with
misconduct, we conclude as a matter of law that they do not constitute
defamation per se. We therefore affirm the trial court.
Facts and Procedural History
[2] The factual allegations in the complaint, which we accept as true for purposes
of a Trial Rule 12(B)(6) motion to dismiss, can be summarized as follows.
McDermott is a longtime Carmel resident with a decades-long career as a
financial professional for multiple nonprofit organizations. Mayor Finkam has
served as the City’s mayor since January 2024. Shortly after taking office,
Mayor Finkam appointed McDermott to the three-member board of directors
of CCI, a 501(c)(3) charitable organization and 509(a)(3) supporting
organization of the City. McDermott accepted the appointment in February
2024, and her fellow board members later elected her chair of the CCI board.
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 2 of 11 [3] Following her appointment, McDermott and the rest of the CCI board
undertook efforts to improve the organization’s governance, including revising
CCI’s bylaws, reviewing its compensation practices, and retaining new legal
counsel. At the same time, the City—through Mayor Finkam and the
corporation counsel, Samantha Karn—began working with CCI toward a new
operating agreement between the two entities.
[4] On July 3, 2024, Karn emailed McDermott requesting a current profit-and-loss
statement and an employee salary study for CCI. McDermott, who was on
vacation, responded the same day and said she would provide the records upon
her return; she supplied both documents on July 8. On July 11, Karn separately
asked CCI’s legal counsel for the same materials and was told they had already
been furnished by McDermott three days earlier. The complaint alleges that no
City representative thereafter requested any additional CCI financial
information from McDermott or followed up on what she had provided.
[5] Negotiations over the proposed operating agreement continued through the late
summer and into the fall of 2024. On September 11, McDermott received a
voicemail from Mayor Finkam stating that she wanted the operating agreement
finalized by September 30 and that she would not authorize the City’s street
department to install the Christkindlmarkt “until a new operating agreement
was finalized.” Appellant’s App. Vol. 2 p. 28. On September 17, CCI received a
proposed operating agreement from Karn, which, among other things,
contained a provision that the City “owned” “the Christkindlmarkt Festival and
the intellectual property of” CCI. Id. The next week, on September 24,
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 3 of 11
McDermott, CCI’s chief executive officer, Mayor Finkam, and Karn met and
agreed to terms for financial reimbursement for that year’s festival. But the next
day, Karn advised CCI that the City was unwilling to proceed with the
operating agreement unless CCI agreed to all of the City’s terms, including that
the City “owns” the festival. Id. at 29. On September 30, CCI sent a
“compromise operating agreement” to the City agreeing to the ownership term
demanded by the City while seeking to protect CCI’s nonprofit status. Id.
[6] On October 3, 2024, McDermott and other CCI representatives met at city hall
with Karn and Mayor Finkam’s chief of staff, Rebecca Carl; Mayor Finkam did
not attend. The complaint alleges that the meeting’s stated purpose—finalizing
the operating agreement—was a ruse, and that its true purpose was to replace
two of CCI’s three board members with appointees who would execute an
operating agreement on the City’s terms. See id. at 30. At the meeting, Karn and
Carl told the CCI representatives that Mayor Finkam was removing those two
board members, effective immediately, though McDermott was invited to
remain. Later that day, McDermott learned that the newly appointed board
members had called a special board meeting to execute an operating agreement
on the City’s terms. Upon learning this, McDermott submitted her resignation
from the CCI board.
[7] On October 7, 2024, four days after McDermott resigned, Mayor Finkam
addressed the Carmel City Council about her administration’s work with CCI.
According to McDermott, Mayor Finkam made the following statement (which
we quote exactly as it appears in the complaint): “we have repeatedly requested
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 4 of 11
comprehensive financials from the market leader, the attorney and the Board
chair [McDermott] for five (5) months…. [we] received some but not all [of the
financial information] …This is problematic.” Id. at 31-32. At a subsequent
Carmel City Council meeting on October 21, McDermott alleges that Mayor
Finkam made the following statement (which, again, we quote exactly as it
appears in the complaint): “The Board chair [McDermott] did give our attorney
the financial information the one time she was asked–it wasn’t everything
needed and she is still waiting for information.” Id. at 32. 1 Mayor Finkam
subsequently posted videos of both statements to her personal social media
account, the City’s social media account, and the City’s newsletter, and the
statements were also reported by several news outlets.
[8] In April 2025, McDermott filed suit against the City and Mayor Finkam, in
both her official and personal capacities, asserting a single count of defamation
per se. The defendants moved to dismiss under Indiana Trial Rule 12(B)(6).
During oral argument on the motion, McDermott withdrew her claim against
Mayor Finkam in her official capacity, leaving only the claims against Mayor
Finkam personally and against the City. In November 2025, the trial court
granted the motion and dismissed McDermott’s complaint.
[9] McDermott now appeals.
1
As McDermott recognizes, Mayor Finkam’s statements referred only to “the Board chair.” See Appellant’s
App. Vol. 2 p. 41 nn. 2-3. McDermott’s complaint added “[McDermott]” after “the Board chair”—
“apparently to clarify that ‘the Board chair’ referred to her.” Id. at 10 n.1.
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 5 of 11
Discussion and Decision
[10] McDermott appeals the trial court’s dismissal of her complaint. Under Indiana
Trial Rule 12(B)(6), a civil action may be dismissed for “failure to state a claim
upon which relief can be granted.” A 12(B)(6) motion “tests the legal
sufficiency of the plaintiff’s claim, not the facts supporting it.” Residences at Ivy
Quad Unit Owners Ass’n v. Ivy Quad Dev., LLC, 179 N.E.3d 977, 981 (Ind. 2022)
(quotation omitted). To overcome a 12(B)(6) motion, the complaint must allege
facts that show the “possibility of relief.” Id. at 980. We review a 12(B)(6)
motion de novo, taking the facts alleged in the complaint as true, considering all
allegations in the light most favorable to the nonmoving party, and drawing
every reasonable inference in that party’s favor. Id. at 981.
[11] Although the defendants sought dismissal of McDermott’s complaint on five
grounds, the trial court dismissed the complaint based on “one clearly
dispositive argument.” Appellant’s App. Vol. 2 p. 13. That is, the court
concluded, “as a matter of law,” that Mayor Finkam’s statements about
McDermott’s disclosure of financial records “do not constitute defamation per
se.” Id. at 14. We do the same. 2
[12] To state a claim for defamation per se, a plaintiff must allege a communication
that, “without reference to extrinsic evidence,” imputes (1) criminal conduct,
(2) a loathsome disease, (3) misconduct in the plaintiff’s trade, profession,
2
Although our review is de novo, we commend the trial court on its thorough, well-reasoned order.
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 6 of 11
office, or occupation, or (4) sexual misconduct. Trail v. Boys & Girls Clubs of Nw.
Ind., 845 N.E.2d 130, 136 (Ind. 2006); Kelley v. Tanoos, 865 N.E.2d 593, 596
(Ind. 2007). Because a plaintiff pursuing a per se theory receives the benefit of
presumed damages, the imputation must be obvious on the face of the
statement—it must constitute “a serious charge of incapacity or misconduct in
words so obviously and naturally harmful that proof of their injurious character
can be dispensed with.” In re Ind. Newspapers Inc., 963 N.E.2d 534, 549-50 (Ind.
Ct. App. 2012) (quotation omitted). “The offensiveness of the statements
cannot be determined by how the plaintiff views the statement; the defamatory
nature must be present in the nature of the words without any additional facts
or circumstances to give context.” Id. at 550. A plaintiff has “a high bar to
meet” to show that a communication unambiguously accuses her of
professional misconduct. Ducker v. Amin, No. 1:12-CV-01596, 2014 WL
1018050, at *8 (S.D. Ind. Mar. 14, 2014) (citing Levee v. Beeching, 729 N.E.2d
215, 220 (Ind. Ct. App. 2000)).
[13] Because the sufficiency of a defamation per se claim depends on the words
themselves rather than on facts outside the complaint, Indiana courts routinely
resolve the question at the pleading or summary-judgment stages. See, e.g., Trail,
845 N.E.2d at 137-38 (Supreme Court affirming a Trial Rule 12(B)(6)
defamation dismissal); Columbus Specialty Surgery Ctr. v. Se. Ind. Health Org., Inc.,
22 N.E.3d 665 (Ind. Ct. App. 2014) (Court of Appeals affirming a Trial Rule
12(B)(6) defamation dismissal); Baker v. Tremco Inc., 917 N.E.2d 650 (Ind. 2009)
(Supreme Court affirming grant of summary judgment to defendant on
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 7 of 11
defamation per se claim); Hrezo v. City of Lawrenceburg, 81 N.E.3d 1146 (Ind. Ct.
App. 2017) (Court of Appeals affirming grant of summary judgment to
defendant on defamation per se claim). We now turn to the statements at issue.
[14] McDermott’s complaint quotes two statements Mayor Finkam made at Carmel
City Council meetings in October 2024. The first, made on October 7, reads:
“we have repeatedly requested comprehensive financials from the market
leader, the attorney and the Board chair [McDermott] for five (5) months….
[we] received some but not all [of the financial information] …This is
problematic.” The second, made on October 21, reads: “The Board chair
[McDermott] did give our attorney the financial information the one time she
was asked–it wasn’t everything needed and she is still waiting for information.”
[15] Taking the statements on their face—without the interpretive gloss
McDermott’s complaint and briefing supply—we conclude they do not
obviously and unambiguously impute misconduct to anyone. The first
statement reports that three people associated with CCI—“the market leader,
the attorney and the Board chair [McDermott]”—were asked for records over a
period of months and that the City “received some but not all” of what it
sought, which Mayor Finkam described as “problematic.” This is, at most, a
report that a request to multiple people went partially unfulfilled. It does not say
why the records were incomplete, does not attribute fault to any particular
person, and does not suggest that the omission was wrongful or improper as
opposed to merely mistaken or incompetent. The second statement, if anything,
cuts in McDermott’s favor: it credits McDermott with providing information
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 8 of 11
“the one time she was asked” and identifies no wrongdoer for the information
that remained outstanding. Indeed, McDermott had already resigned from the
CCI board by the time either statement was made—four days before the first
statement and more than two weeks before the second—and so she could no
longer supply whatever CCI information remained outstanding.
[16] We find that this case is like Baker and Hrezo. In Baker, our Supreme Court held
that a supervisor’s statement that a salesperson had engaged in “inappropriate”
sales practices was not defamation per se because the word “inappropriate” was
too vague to establish, on its face, that the conduct amounted to misconduct
rather than something more benign. 917 N.E.2d at 658 (“Indeed, it may be
inferred from use of the word ‘inappropriate’ that the sales practice did not
amount to any misconduct.”). Mayor Finkam’s statements suffer from the same
problem: describing a request for records as having been partially fulfilled, and
characterizing that shortfall as “problematic,” conveys no more concrete an
accusation than the word “inappropriate” did in Baker. So too in Hrezo, where
we held that statements reporting performance deficiencies (such as that the
plaintiffs used more workers than necessary, overcharged, and did unnecessary
work) were not defamatory per se because the deficiencies described “could just
as easily have been caused by mistake or incompetence” as by misconduct, such
that a reader would need extrinsic facts to conclude otherwise. 81 N.E.3d at
1156. The same is true of Mayor Finkam’s report that the City received CCI’s
financial records only in part: an incomplete response is just as consistent with
mistake or incompetence as opposed to anything wrongful or improper by
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 9 of 11
McDermott. As the trial court aptly explained in its dismissal order, “Although
a seasoned, respected financial professional might understandably bristle at
Finkam’s comments, ‘[t]he offensiveness of the statements cannot be
determined by how the plaintiff views the statement . . . .’” Appellant’s App. Vol.
2 p. 19 (quoting Ind. Newspapers, 963 N.E.2d at 550). Because Mayor Finkam’s
statements, on their face, are not “so obviously and naturally harmful” as
defamation per se requires, we conclude as a matter of law that they do not
constitute defamation per se.
[17] McDermott resists this conclusion by arguing that her “fiduciary duties” as
CCI’s board chair transform Mayor Finkam’s otherwise vague characterization
into a “serious” charge of misconduct. Appellant’s Br. p. 20. She relies mainly
on Stanley v. Kelley, 422 N.E.2d 663 (Ind. Ct. App. 1981), overruled in part by
Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282, 284 (Ind. 1991),
and Glasscock v. Corliss, 823 N.E.2d 748 (Ind. Ct. App. 2005), reh’g denied, trans.
denied. 3 Neither case supports her position. Stanley does not discuss fiduciary
duties at all and, in any event, arose in an ordinary employment setting—not,
as here, a nonprofit board member’s duty to a municipality with which the
nonprofit was independently negotiating. 422 N.E.2d at 669. Glasscock is
likewise inapposite: the statements there specifically accused an employee of
3
McDermott also cites two out-of-state decisions, Stonebridge Health Systems, LLC v. Miller, 416 So. 3d 611
(La. Ct. App. 2025), and Tarter v. Bendt, No. 1 CA-CV 19-0703, 2021 WL 282265 (Ariz. Ct. App. Jan. 28,
2021). Neither applies Indiana law, and neither binds this Court. Tarter, moreover, is not even precedential in
Arizona, the jurisdiction that decided it.
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 10 of 11
using company money to purchase gifts for her family and friends for several
years and of discrepancies in her expense reports—concrete, particularized
misconduct far removed from a generalized report that a request for records
went only partially fulfilled. 823 N.E.2d at 753-54. Whatever fiduciary
obligations McDermott owed as a CCI board member, invoking them does not
supply the specificity that Mayor Finkam’s statements, on their face, lack.
[18] The trial court did not err in dismissing McDermott’s complaint under Trial
Rule 12(B)(6).
[19] Affirmed.
Altice, J., and Foley, J., concur.
ATTORNEYS FOR APPELLANT
F. Anthony Paganelli
Christopher Goff
Paganelli Law Group
Indianapolis, Indiana
ATTORNEYS FOR APPELLEES
Andrew Z. Soshnick
Stephanie L. Gutwein
Natalie W. Ditzler
Faegre Drinker Biddle & Reath LLP
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 25A-PL-3144 July 27, 2026 Page 11 of 11