MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Nov 15 2016, 7:15 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ronald E. Weldy                                         A. Richard M. Blaiklock
Barker Hancock & Cohron LLC                             Edward D. Thomas
Noblesville, Indiana                                    Lewis Wagner, LLP
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Vincent Morford,                                        November 15, 2016
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        49A02-1603-PL-642
        v.                                              Appeal from the Marion Superior
                                                        Court
TLC Express, LLC, d/b/a Indy                            The Hon. John Hanley, Judge
Expediting,                                             Trial Court Cause No.
Appellee-Defendant.                                     49D11-1406-PL-18563




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016       Page 1 of 9
                                          Case Summary
[1]   Appellant-Plaintiff Vincent Morford (“Morford”) brought suit against his

      former employer Appellee-Defendant TLC Express, LLC, d/b/a Indy

      Expediting (“Indy Expediting”) asserting various causes of action, including a

      wage claim, intentional interference with an economic relationship, and

      blacklisting. The trial court granted summary judgment for Indy Expediting on

      the intentional interference with an economic relationship and blacklisting

      claims, and certified its order for interlocutory appeal.


[2]   On appeal, Morford raises the following restated issues: whether the trial court

      erred in granting Indy Expediting’s motion for summary judgment on

      Morford’s intentional interference with an economic relationship and

      blacklisting claims. Because Indy Expediting was justified in its disclosures to

      Morford’s subsequent employer and the truthfulness of the content of such

      disclosures was supported by the record, we affirm.


                               Facts and Procedural History
[3]   Morford began working for Indy Expediting on or about March 7, 2013. Emily

      Reeves served as Morford’s co-driver while he worked for Indy Expediting

      delivering cargo. On March 22, 2013, Morford was terminated from his

      employment with Indy Expediting as a result of failing his pre-employment

      drug test.


[4]   On or about May 24, 2013, Morford filed a claim with the Equal Employment

      Opportunity Commission (“EEOC”) against Indy Expediting. On June 21,
      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 2 of 9
      2013, Morford wrote Indy Expediting a handwritten letter. In the letter,

      Morford admitted that after he was terminated from Indy Expediting for testing

      positive for cocaine, he was mad and “wanted to get even” so he “convinced

      Emily to file charges” against Indy Expediting.1 App. Vol. 2, p. 42. Morford

      went on to say that he “just became a Christian” and that he did not “want to

      be a part of any deception anymore.” App. Vol. 2, p. 42.


[5]   On or about August 5, 2013, Indy Expediting responded to a Performance

      History Records Request from Morford’s subsequent employer Towne Air

      Freight. In responding to this request, Indy Expediting disclosed that Morford

      had failed a drug test, “filed false filings on company,” and “lied to dispatcher.”

      App. Vol. 2, p. 44. Indy Expediting went on to state that it “never would rehire

      him” and warned Towne Air Freight to “[p]lease be careful – we are having

      him prosecuted for false allegations.” App. Vol. 2, p. 44.


[6]   On or about August 20, 2013, Morford filed a second EEOC charge against

      Indy Expediting. On February 11, 2014, Indy Expediting filed a Notice of

      Claim against Morford in the Perry Township Small Claims Court. The claim

      was based upon damages incurred as a result of the time Indy Expediting spent

      investigating and disputing Morford’s allegedly false EEOC claims. On

      February 19, 2014, Morford filed a counter-claim against Indy Expediting

      alleging lost wages and harassment. On June 4, 2014, the Perry Township



      1
       Based upon the record, it is unclear what became of the charges that Emily Reeves allegedly filed against
      Indy Expediting.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016           Page 3 of 9
      Small Claims Court ordered the agreed dismissal of the parties’ pending claims.

      Morford filed the present action later that day after the agreed dismissal.


[7]   On June 4, 2014, Morford filed a complaint alleging that Indy Expediting had

      violated the Wage Claims Statute, Indiana Code chapter 22-2-9; intentionally

      interfered with his economic relationship with his subsequent employer Towne

      Air Freight; and violated the Blacklisting Statute under Indiana Code chapter

      22-5-3. On August 3, 2015, Indy Expediting filed a motion for summary

      judgment. Morford filed his opposition on October 8, 2015. On December 21,

      2015, the trial court granted in part, and denied in part, the motion for

      summary judgment. The trial court granted summary judgment on Morford’s

      intentional interference with an economic relationship and blacklisting claims,

      but denied judgment on his wage claim.


[8]   On January 20, 2016, Morford filed a motion to correct error and motion to

      certify the trial court’s interlocutory order for appeal pursuant to Indiana

      Appellate Rule 15(B). Indy Expediting filed its opposition to the motion to

      correct error and motion to certify on February 9, 2016. Morford filed his reply

      in support of motion to correct error on February 15, 2016. The trial court

      denied Morford’s motion to correct error on February 16, 2016. On March 18,

      2016, Morford filed his motion to accept jurisdiction over interlocutory appeal

      with this Court. This Court granted the motion on April 22, 2016.



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 4 of 9
                                        Standard of Review
[9]    We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.2d 1000, 1003 (Ind. 2014). At the trial court, the

       summary judgment movant has the initial burden to demonstrate the absence of

       any genuine issue of material fact as to a determinative issue, at which point the

       burden shifts to the non-movant to present contrary evidence showing an issue

       for the trier of fact. Id. “A fact is material if its resolution would affect the

       outcome of the case and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth, or if the undisputed material

       facts support conflicting reasonable inferences.” Id. (internal quotations and

       citations omitted).


[10]   If the trial court grants summary judgment to the moving party, the non-moving

       party has the burden on appeal to demonstrate to us that the grant of summary

       judgment was in error. Id. During our review, “we carefully assess the trial

       court’s decision to ensure that the [non-moving party] was not improperly

       denied his day in court.” Id. Furthermore, we will only consider the

       evidentiary matter that the parties have designated to the trial court and will

       construe all reasonable inferences in favor of the non-moving party. Id.


[11]   Summary judgment is not intended to be a summary trial. Id. at 1003-04.

       Consequently, Indiana has a relatively high bar for summary judgment and

       “consciously errs on the side of letting marginal cases proceed to trial on the

       merits, rather than risk short-circuiting meritorious claims.” Id.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 5 of 9
                 I. Intentional Interference with an Economic
                                   Relationship
[12]   In Count II of his complaint, Morford alleged that Indy Expediting had caused

       “intentional interference with [an] economic relationship” between Towne Air

       Freight and him. The elements of tortious interference with a business or

       economic relationship are: “(1) the existence of a valid relationship; (2) the

       defendant’s knowledge of the existence of the relationship; (3) the defendant’s

       intentional interference with that relationship; (4) the absence of justification;

       and (5) damages resulting from defendant’s wrongful interference with the

       relationship.” Levee v. Beeching, 729 N.E.2d 215, 222 (Ind. Ct. App. 2000)

       (citing Bradley v. Hall, 720 N.E.2d 747, 750 (Ind. Ct. App. 1999)). Illegal

       conduct by the alleged wrongdoer is an essential element of tortious

       interference with a business relationship. Id. Further, the lack of justification is

       established “only if the interferer acted intentionally, without a legitimate

       business purpose, and the breach is malicious and exclusively directed to the

       injury and damage of another. Bilimoria Computer Sys., LLC v. Am. Online, Inc.,

       829 N.E.2d 150, 156-57 (Ind. Ct. App. 2005). However, “[t]he existence of a

       legitimate reason for the defendant’s actions provides the necessary justification

       to avoid liability.” Id. at 157.


[13]   Morford alleges that the trial court improperly granted summary judgment on a

       claim not brought by him. Specifically, Morford argues that his claim is

       contractual in nature because “[h]e began working for Towne Air Freight in

       April 2013” and therefore, the existence of a contractual relationship should

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 6 of 9
       have been inferred by the trial court. App. Vol. 2, p. 70; Appellant’s Br. p. 9.

       Nevertheless, Morford did not claim intentional interference with a contractual

       relationship in his complaint. Moreover, the mere existence of a prospective or

       actual employment relationship does not alter the claim that Morford himself

       chose to bring in his complaint. The trial court did not err when it did not infer

       a contractual relationship at summary judgment. Indeed, the trial court did

       nothing more or less than rule on the claim that Morford himself brought in his

       complaint.


[14]   As discussed below in the blacklisting claim, there is evidence to support a

       finding that Indy Expediting was justified in its disclosures to Towne Air

       Freight. Indy Expediting did not initiate contact with Morford’s subsequent

       employer. There is also no evidence that that Indy Expediting responded to the

       Performance Request with the intent to be malicious or to injure Morford. The

       pertinent information disclosed by Indy Expediting in the Performance Request

       had been admitted to by Morford. Consequently, Indy Expediting was justified

       in its disclosures which Morford claims to have caused interference with his

       economic relationship with Towne Air Freight. Because the trial court granted

       summary judgment on a claim that Morford himself made and uncontradicted

       designated evidence indicates that Indy Expediting was justified in its actions,

       we affirm the trial court’s ruling in this regard.


                                           II. Blacklisting
[15]   Under Indiana Code section 22-5-3-1(b),


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 7 of 9
                An employer that discloses information about a current or former
                employee is immune from civil liability for the disclosure and the
                consequences proximately caused by the disclosure, unless it is
                proven by a preponderance of the evidence that the information
                disclosed was known to be false at the time the disclosure was
                made.


       Additionally, the statute “does not prohibit a person from informing, in writing,

       any other person to whom the discharged employee has applied for

       employment a truthful statement of the reason for the discharge.” Ind. Code. §

       22-5-3-1(a). Moreover, when interpreting this statute in the past, we have

       recognized that “[e]mployers and their agents are immune from civil liability

       for the disclosure of truthful information to subsequent and potential

       employers.” Steele v. McDonald’s Corp., 686 N.E.2d 137, 142 (Ind. Ct. App.

       1997).


[16]   In the present case, Morford had the burden of proof by a preponderance of the

       evidence on his blacklisting claim. Consequently, Morford had to prove by a

       preponderance of the evidence that the information disclosed by Indy

       Expediting to Towne Air Freight was known to be false at the time the

       disclosure was made.


[17]   The disclosures at issue were made on or about August 5, 2013, in response to a

       Safety Performance History Records Request. App. Vol. 2, p. 44. Specifically,

       among other things, Indy Expediting disclosed Morford’s failed drug test. Indy

       Expediting was required to make such disclosure under 49 C.F.R. Section

       40.25(h) because his failed drug test was the reason for his termination.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 8 of 9
       Moreover, Morford himself admitted to failing the drug test in the letter he sent

       to Indy Expediting on June 21, 2013. App. Vol. 2, p. 42. In that same letter,

       Morford indicated that he “wanted to get even” and therefore “convinced

       Emily [Reeves] to file charges” against Indy Expediting. App. Vol. 2, p. 42.

       However, Morford went on to explain that he “just became a Christian” and

       that he “[did not] want to be a part of any deception anymore.” App. Vol. 2, p.

       42. Based on the evidence, Indy Expediting did not violate the Blacklisting

       Statute when it disclosed a truthful statement involving Morford’s discharge,

       nor was it a violation to disclose statements that Morford himself admitted to.

       Such statements were not “known to be false” by Indy Expediting. Morford

       did not meet his burden at the summary judgment phase and the trial court did

       not err when it granted Indy Expediting’s request for summary judgment on the

       Blacklisting claim, Count III of Morford’s complaint.


[18]   We affirm.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-PL-642 | November 15, 2016   Page 9 of 9
