                                                                          FILED
                                                                     Nov 02 2016, 7:49 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
S. Matthew Cook                                              Andrew A. Manna
Stephen W. Cook                                              Alexander P. Pinegar
Noblesville, Indiana                                         Brent R. Borg
                                                             Noblesville, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

David McCollough,                                            November 2, 2016
Appellant-Defendant, Cross-Appellee                          Court of Appeals Case No.
                                                             29A02-1512-CT-2181
         v.                                                  Appeal from the Hamilton Circuit
                                                             Court
Noblesville Schools and Jeff                                 The Honorable Paul A. Felix,
Bryant,                                                      Judge
Appellees-Plaintiffs.                                        Trial Court Cause No.
                                                             29C01-1409-CT-8761



Altice, Judge.


                                            Case Summary1




1
  We heard oral argument in this cause on October 5, 2016, at Clinton Prairie High School. We would like
to extend our gratitude to the staff, faculty, and students for their hospitality. We also commend counsel for
their excellent written and oral advocacy.

Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016                        Page 1 of 25
[1]   David McCollough filed a complaint against Noblesville Schools and Jeff

      Bryant, Principal of Noblesville High School (Bryant) (collectively, the

      Defendants) in which he asserted claims for defamation, intentional infliction of

      emotional distress, negligence, breach of contract, and tortious interference with

      a contract/business relationship. McCollough also claimed that his due process

      rights were violated. The Defendants filed a motion for summary judgment.

      The trial court held a hearing and thereafter denied summary judgment as to

      McCollough’s defamation claim, but granted summary judgment in favor of the

      Defendants on all remaining claims. In this interlocutory appeal, McCollough

      challenges the grant of summary judgment while the Defendants cross-appeal

      the denial of summary judgment with regard to the defamation claim.


[2]   We affirm.


                                        Facts & Procedural History


[3]   McCollough was the head boys basketball coach for Noblesville High School

      for twenty years, and for each year, he executed and worked under a coaching

      contract with a fixed term. During basketball practice on January 28, 2014,

      players were engaged in a drill when McCollough called a foul on one of them.

      As described by witnesses, the player then threw a basketball more forcefully

      than appropriate at McCollough. McCollough admits that “out of frustration”

      he threw the ball back toward the player. Appellant’s Appendix at 297. Some of

      those who witnessed the incident indicated that the player reached high for the




      Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 2 of 25
      ball and the ball grazed his fingertips. Those same witnesses indicated that had

      the player not reached for the ball, the ball would not have touched the player.


[4]   According to McCollough, on January 29, 2014, Bryant notified him that “a

      disgruntled player . . . had alleged that [McCollough] threw a basketball in the

      manner of a baseball throw at [him] in anger and intentionally struck [him] in

      the head with a ball. . . .” Id. at 296. McCollough claims that he “promptly

      denied that [he] ever threw a basketball at any player in the manner of a

      baseball pass, threw a pass in anger, or ever hit a player in the head or face with

      a ball.” Id. According to Bryant, he and McCollough watched a video

      recording of the incident, which apparently shows that the ball stopped when it

      reached the player indicating that it did indeed hit the player in some fashion.2

      McCollough did not respond to Bryant’s observation, but continued to

      maintain that he was not aware the ball hit the player. McCollough claims that

      Bryant stated he would conduct further investigation into the matter.


[5]   McCollough asserts that Bryant failed to conduct a thorough investigation in

      that he did not interview witnesses to the incident. Rather, McCollough claims

      that Bryant relied solely on the information conveyed to him by the basketball

      player. McCollough further claims that Bryant led administrators and others to

      believe that he had conducted a thorough investigation, including interviewing

      players and assistant coaches who were present and/or witnessed the incident.




      2
          The video itself was not designated as evidence for purposes of summary judgment.


      Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016             Page 3 of 25
      Bryant, on the other hand, asserts that given McCollough’s admission that he

      threw a ball toward the player and a player’s description of what occurred, there

      was sufficient evidence to inform him of what had transpired and thus, no

      further investigation was necessary.


[6]   On January 31, 2014, Bryant advised McCollough that he was being placed on

      administrative leave for five days as a result of the incident. McCollough was

      also asked to attend a press conference on the morning of February 1, 2014, to

      address the incident involving the player. He could not attend however because

      he became physically ill as a result of the suspension. Instead, McCollough

      agreed to work with a public relations director for Noblesville Schools to draft a

      statement that would be released to the public. The statement to which

      McCollough agreed provides:

              An incident occurred at basketball practice earlier this week in
              which, out of frustration during a drill, I threw a basketball and
              the ball allegedly hit a player. My actions were unacceptable, and
              I greatly regret that I allowed this to happen. I am sorry and
              publicly apologize to my players, families, and fans. This is not
              the behavior that I want to model for my players, and it will not
              happen again.


      Id. at 297 (emphasis supplied). Later that day, Noblesville Schools sent the

      above statement to media outlets in Central Indiana and elsewhere. However,

      the word “allegedly”, which McCollough claims he was adamant about

      including, had been removed without McCollough’s knowledge or consent.

      McCollough maintains that the word “allegedly” was removed at the direction


      Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 4 of 25
      of Bryant3 and that its removal completely changed the meaning of

      McCollough’s statement such that it read as an admission by McCollough to

      hitting a player with a basketball.


[7]   On February 4, 2014, McCollough was called into a meeting with Bryant and

      an assistant superintendent and was instructed to sign a memo, the substance of

      which McCollough claims he did not agree with. 4 McCollough maintains that

      he was told that his signature was required before he could return to teaching

      and coaching the basketball team. McCollough asserts that he signed the

      memo as an acknowledgment of what was alleged and with the further

      understanding that he could submit a letter for his file that contained his version

      of events. On February 18, 2014, McCollough did just that and submitted to

      Noblesville Schools a “[s]tatement for file - to be attached to signed paper from

      suspension letter” that set forth his version of what transpired during practice

      on January 28, 2014. Id. at 76.


[8]   McCollough’s written contract for his position as the head basketball coach

      expired by its own terms on March 24, 2014. After that date, McCollough

      maintains that he continued to act as the head basketball coach as he had done

      for the previous nineteen years by identifying himself as the head coach,



      3
        McCollough directs us to the deposition of the public relations director in which she states that Bryant,
      although not explicitly, “made it very clear” that he wanted the word allegedly removed from McCollough’s
      statement. Id. at 184. In contrast, Bryant maintains that he never told the public relations director to remove
      the word allegedly from McCollough’s statement.
      4
       The memo provided that McCollough “threw a ball at a student/athlete in a state of anger” and that “[t]he
      ball hit the student/athlete.” Id. at 302.

      Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016                        Page 5 of 25
       corresponding with others in his capacity as head coach, working with

       returning players, and talking to college basketball coaches and scouts.

       McCollough also notes that at a school board meeting on April 15, 2014, he

       was introduced as the head coach of the boys basketball team.


[9]    On April 16, 2014, Bryant handed McCollough a letter that informed

       McCollough that he was not being recommended for the head coaching

       position for the following school year. McCollough claims that he appealed the

       decision in writing and asked the Noblesville School Board to review the

       matter. However, a hearing was never held. Thereafter, McCollough claims

       that he applied for approximately thirty-one basketball coaching positions at

       high schools and colleges around Indiana. McCollough asserts that the main

       reason he did not receive any of the coaching positions is directly related to the

       public statement issued by Noblesville Schools that read as an admission by

       him to throwing a ball at and hitting a player.


[10]   On September 4, 2014, McCollough filed his complaint against the Defendants,

       asserting claims for defamation, intentional infliction of emotional distress,

       negligence, breach of contract, and tortious interference with a

       contract/business relationship.5 McCollough also claimed the Defendants

       violated his due process rights. On December 22, 2014, the Defendants filed a

       motion for summary judgment. The trial court held a hearing on October 29,




       5
           McCollough had previously filed a timely tort claim notice.


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 6 of 25
       2015, and issued its order on November 17, 2015, granting the Defendants’

       motion for summary judgment as to all of McCollough’s claims except for

       defamation. McCollough filed a motion to reconsider or in the alternative a

       motion to certify the court’s summary judgment order for interlocutory appeal.

       After a hearing, the trial court denied the motion to reconsider, but granted the

       request for certification. This court accepted jurisdiction on February 1, 2016.


                                            Discussion & Decision


[11]   In this interlocutory appeal, we are asked to consider the appropriateness of the

       trial court’s summary judgment ruling. We begin by noting that Indiana

       follows a heightened summary judgment standard. As our Supreme Court has

       recently recognized:


               Summary judgment “is a desirable tool to allow the trial court to
               dispose of cases where only legal issues exist.” But it is also a
               “blunt ... instrument” by which “the non-prevailing party is
               prevented from having his day in court”. We have therefore
               cautioned that summary judgment “is not a summary trial”; and
               the Court of Appeals has often rightly observed that it “is not
               appropriate merely because the non-movant appears unlikely to
               prevail at trial.” In essence, Indiana consciously errs on the side
               of letting marginal cases proceed to trial on the merits, rather
               than risk short-circuiting meritorious claims.


       Hughley v. State, 15 N.E.3d 1000, 1003-04 (Ind. 2014) (citations omitted).


[12]   Summary judgment is appropriate if, after reviewing the designated evidence,

       “there is no genuine issue as to any material fact and ... the moving party is

       entitled to a judgment as a matter of law.” T.R. 56(C). A fact is material if its
       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 7 of 25
       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. Williams v.

       Tharp, 914 N.E.2d 756, 761 (Ind. 2009). When the trial court has granted

       summary judgment, the nonmoving party has the burden on appeal of

       persuading us that the grant of summary judgment was in error. Adams v.

       ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind. Ct. App. 2015). We review an order

       granting summary judgment de novo. Id.


                             Intentional Infliction of Emotional Distress


[13]   The tort of intentional infliction of emotional distress (IIED) occurs when the

       defendant “(1) engages in extreme and outrageous conduct (2) which

       intentionally or recklessly (3) causes (4) severe emotional distress to another.”

       Bah v. Mac’s Convenience Stores, LLC, 37 N.E.3d 539, 549 (Ind. Ct. App. 2015)

       (quoting Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011)), trans.

       denied. The requirements to prove this tort are rigorous, and at its foundation is

       “the intent to harm the plaintiff emotionally.” Id. at 550. As often quoted from

       Comment (d) of the Restatement (Second) of Torts Section 46 (1965),

               The cases thus far decided have found liability only where the
               defendant’s conduct has been extreme and outrageous. It has not
               been enough that the defendant has acted with an intent which is
               tortious or even criminal, or that he has intended to inflict
               emotional distress, or even that his conduct has been
               characterized by “malice,” or a degree of aggravation which
               would entitle the plaintiff to punitive damages for another tort.
               Liability has been found only where the conduct has been so

       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 8 of 25
               outrageous in character, and so extreme in degree, as to go
               beyond all possible bounds of decency, and to be regarded as
               atrocious, and utterly intolerable in a civilized community.
               Generally, the case is one in which the recitation of the facts to
               an average member of the community would arouse his
               resentment against the actor, and lead him to exclaim,
               “Outrageous!”


[14]   Id. The question of what amounts to extreme and outrageous conduct depends

       in part on prevailing cultural norms and values, and “[i]n the appropriate case,

       the question can be decided as a matter of law.” Id. This is the case here.


[15]   McCollough argues that Bryant’s conduct in failing to thoroughly investigate

       the incident, leading others to believe that he had fully investigated the incident

       when he had not, and in directing that McCollough’s statement be altered so

       that it read as a purported admission by McCollough was outrageous, or at the

       very least, is a matter to be determined by the trier of fact. He also points to

       Noblesville Schools and argues that its intentional publication of an altered

       statement that was attributed to McCollough as an admission that he hit a

       player with a ball, an allegation that McCollough adamantly denied, was

       extreme and outrageous conduct.


[16]   We agree with the Defendants that even accepting the facts as presented by

       McCollough, we cannot say that the Defendants’ conduct, even if intentional,

       qualifies as being so outrageous in character or extreme in degree that it is to be

       regarded as atrocious or utterly intolerable in a civilized community. See Jaffri

       v. JPMorgan Chase Bank, N.A., 26 N.E.3d 635, 640 (Ind. Ct. App. 2015) (holding


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 9 of 25
       that even assuming defendant intentionally mishandled mortgage-related

       documents, such conduct is not “the type of beyond-the-pale, ‘outrageous’

       conduct that may be covered by an IIED claim”); cf. Mitchell v. Stevenson, 677

       N.E.2d 551 (Ind. Ct. App. 1997) (holding that evidence that decedent’s second

       wife secretly decided to disinter decedent’s remains rather than maintain a

       grave with a headstone pursuant to an agreement with family members

       sufficiently established that wife’s actions were deliberate and extreme and

       outrageous for purposes of establishing an IIED claim), trans. denied. Because

       we conclude as a matter of law that McCollough cannot establish the

       Defendants engaged in extreme and outrageous conduct, we need not address

       McCollough’s claims regarding the other elements of his IIED claim. The trial

       court did not err in granting summary judgment in favor of the Defendants on

       McCollough’s IIED claim.


                                              Breach of Contract


[17]   McCollough argues that the trial court erred in granting summary judgment on

       his claim for breach of contract. The essential elements of a breach of contract

       claim are the existence of a contract, the defendant’s breach of the contract, and

       damages. Murat Temple Ass’n, Inc. v. Live Nation Worldwide, Inc., 953 N.E.2d

       1125, 1128-29 (Ind. Ct. App. 2011), trans. denied. It is undisputed that

       McCollough’s coaching contract was a term contract that expired by its own

       terms on March 24, 2014. McCollough nevertheless argues that his tenure as

       head basketball coach continued after March 24, 2014, under an implied

       contract, which McCollough claims indicates the intentions of the parties that

       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 10 of 25
       he would be awarded a new term coaching contract for the following season.

       McCollough relies on the following:


               A contract implied in fact derives from the ‘presumed’ intention
               of the parties as indicated by their conduct. When an agreement
               expires by its terms, if, without more, the parties continue to
               perform as theretofore, an implication arises that they have
               mutually assented to a new contract containing the same
               provisions as the old. Ordinarily, the existence of such a new
               contract is determined by the ‘objective’ test, i.e., whether a
               reasonable man would think the parties intended to make such a
               new binding agreement—whether they acted as if they so
               intended.


[18]   JKL Components Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 951 (Ind. Ct. App.

       1992) (quoting Martin v. Campanaro, 156 F.2d 127, 129 (2nd Cir. 1946)), trans.

       denied. McCollough maintains that even after the term of his coaching contract

       expired, he continued to act as head coach in the same manner as he had during

       each of the previous nineteen years, and each time, he was presented with a

       new term coaching contract. McCollough also notes that he was even

       acknowledged as head coach by the school board after his coaching contract

       had expired and asserts that he continued working with players, speaking with

       college coaches, and using stationery that identified him as head coach, among

       other coaching duties, after March 24.


[19]   We begin by addressing the applicability of JKL Components, the case upon

       which McCollough relies. In that case, the court was asked to consider the

       existence of an implied contract under California law. Further, the facts in that


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 11 of 25
       case are inapposite to the case before us. In JKL Components, the parties were

       unaware that the term of the contract had ended and yet each acted as if the

       written contract was still in effect. Under these circumstances, we held that the

       trial court correctly determined an implied contract existed between the parties.

       Here, however, all parties were aware that the coaching contract was a term

       contract and that it expired on March 24, 2014.


[20]   Although not directly on point, we find Vincennes Univ. v. Sparks, 988 N.E.2d

       1160 (Ind. Ct. App. 2013), instructive. In Sparks, the basketball coach was

       investigated for falsifying information on a basketball recruit’s application. In

       lieu of facing disciplinary proceedings, the coach agreed to forfeit his tenure and

       be subject to a zero-tolerance policy. The university manual provided that a

       faculty member who forfeited tenure was then employed on a year-to-year

       contract and the university was free to renew or not renew the contract each

       year as it saw fit. The coach also signed a contract “for a period commencing

       on August 15, 2004, and ending on May 15, 2005.” Id. at 1167. At the

       conclusion of the 2004-2005 academic year, the coach was notified that his

       contract would not be renewed for the following academic year. There was no

       allegation that the coach had violated the zero-tolerance policy. This court was

       reluctant to infer a promise of continued employment that was not clearly

       expressed in the contract. See Sparks, 988 N.E.2d at 1167 (citing Orem v. Ivy

       Tech State College, 711 N.E.2d 864, 871 (Ind. Ct. App. 1999), trans. denied).

       Thus, looking to the university’s policy and the defined term of Sparks’s written




       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 12 of 25
       contract, the court concluded that Sparks had no reasonable expectation of

       continued employment after the term of his contract expired. Id. at 1168.


[21]   Here, McCollough’s coaching contracts for the nineteen years preceding the

       2013-2014 season were term contracts with a defined start and end date.

       Indeed, the coaching contract at issue expired by its own terms on March 24,

       2014. None of the coaching contracts contained a promise of continued

       employment beyond the expiration of the term. Even if we accept

       McCollough’s claim that he continued as head coach under an implied contract

       after March 24, 2014,6 McCollough has not established that such implied

       contract contained a promise that he would be retained as head coach for the

       next season. As in Sparks, supra, we will not infer a promise of continued

       employment that was not clearly expressed in the contract, express or implied.

       We therefore conclude that the trial court did not err in granting summary

       judgment on McCollough’s breach of contract claim.


                  Tortious Interference with a Business/Contract Relationship


[22]   The elements of tortious interference with a business 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




       6
         Presumably, McCollough would then continue to act as the head coach of the basketball team under an
       implied contract until such time as he was presented with and executed a term contract for the following
       season.

       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016                    Page 13 of 25
       defendant’s wrongful interference with the relationship. Felsher v. Univ. of

       Evansville, 755 N.E.2d 589, 598 n.21 (Ind. 2001) (citing Levee v. Beeching, 729

       N.E.2d 215, 222 (Ind. Ct. App. 2000)). Additionally, our Supreme Court has

       held that “this tort requires some independent illegal action.” Brazauskas v. Fort

       Wayne–South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003). Defamation,

       however, “does not constitute illegal conduct for the purpose of determining

       whether one tortiously interfered with the business relationship of another.”

       Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 961 (Ind. Ct. App. 2014).

       The elements of an action for tortious interference with a contract are the same

       as the elements for interference with a business relationship except that there is

       a requirement for a valid and enforceable contract. See Levee, 729 N.E.2d at

       221.


[23]   McCollough’s tortious interference claim is two-fold. First, he argues that

       Bryant interfered with his business and contractual relationship with

       Noblesville Schools. Specifically, McCollough asserts that Bryant interfered

       with his status as head coach by failing to thoroughly investigate the incident

       that McCollough claims led to his firing. In his second claim, McCollough

       argues that the Defendants tortiously interfered with his business and

       contractual relationship with the thirty-one schools to which he applied for a

       coaching position. McCollough maintains that the primary reason he was

       passed over for such positions was due to his purported admission to hitting a

       player with a ball that came about after Bryant directed that McCollough’s

       statement be altered before being published by Noblesville Schools.


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 14 of 25
[24]   With regard to McCollough’s claims of tortious interference with a business

       relationship, McCollough has not alleged any independent illegal action on

       Bryant’s part. As noted above, even assuming Bryant’s conduct is deemed to

       constitute defamation, such does not satisfy this element of a claim for tortious

       interference with a business relationship. This claim therefore fails as a matter

       of law and the trial court did not err in granting summary judgment in favor of

       the Defendants.


[25]   Turning to McCollough’s claims of tortious interference with a contract,

       McCollough must establish that a valid contract exists. With respect to his

       interference claim involving Noblesville Schools, it is undisputed that

       McCollough’s coaching contract was a term contract that expired by its own

       terms on March 24, 2014. Moreover, as we concluded above, McCollough was

       never promised continued employment as the head boys basketball coach in a

       written contract or an implied contract if, in fact, one existed. Thus, the fact

       that McCollough was not retained as the coach for the following year was not

       the result of interference with a valid and enforceable contract that provided

       him with a promise of continued employment. Likewise, McCollough’s

       interference claim involving the thirty-one schools at which he applied for a

       coaching position fails because McCollough cannot satisfy the element that a

       valid and enforceable contract existed between him and any one of the thirty-

       one schools. The trial court therefore did not err in granting summary

       judgment on McCollough’s claims of tortious interference with a business

       relationship and/or contract.


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 15 of 25
                                                    Negligence


       Negligence requires a plaintiff to prove (1) that the defendant owed the plaintiff

       a legal duty; (2) that the defendant breached the duty, and (3) that the plaintiff’s

       injury was proximately caused by the breach. Jeffrey v. Okolocha, 972 N.E.2d

       941, 945 (Ind. Ct. App. 2012). McCollough argues that the trial court erred in

       granting summary judgment on his negligence claim, which is based on his

       claim that the Defendants failed to adequately investigate the incident.

       McCollough’s claim in this regard is based on an assumption-of-duty theory,

       which he contends presents a question of fact. Indeed, McCollough argues that

       Bryant expressly assumed a duty to investigate by telling McCullough and

       members of the administration that he was going to investigate the matter.

       McCollough maintains that Bryant breached his duty by failing to interview

       any of the witnesses, including coaches and students, present during the

       incident at issue. The Defendants maintain that there can be no assumption of

       duty under the circumstances because the assumption of duty doctrine applies

       only in instances where there is a risk of physical harm.


[26]   Our Supreme Court has elaborated on the concept of assumption of duty:

               [A] duty may be imposed upon one who by affirmative conduct .
               . . assumes to act, even gratuitously, for another to exercise care
               and skill in what he has undertaken. It is apparent that the actor
               must specifically undertake to perform the task he is charged with
               having performed negligently, for without actual assumption of
               the undertaking there can be no correlative legal duty to perform
               the undertaking carefully.


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 16 of 25
       South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 910 (Ind. 2014). In

       addition, our Supreme Court has adopted the language of The Restatement

       (Third) of Torts section 42, which provides:

                An actor who undertakes to render services to another and who
                knows or should know that the services will reduce the risk of
                physical harm to the other has a duty of reasonable care to the
                other in conducting the undertaking if:


                (a) the failure to exercise such care increases the risk of harm
                beyond that which existed without the undertaking, or


                (b) the person to whom the services are rendered or another relies
                on the actor’s exercising reasonable care in the undertaking.


       See id. Where there is no duty, there can be no breach, and thus the party

       cannot be found negligent. Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind.

       2014).


[27]   We have found no cases that support McCollough’s position that the

       assumption of duty doctrine applies in the instant case. The alleged assumed

       duty was a duty to investigate the incident between McCollough and the player.

       Here, the duty to investigate was not tied to an undertaking of services to

       reduce the risk of physical harm to McCollough. We decline to extend the

       assumption of duty doctrine to situations involving non-physical harm, such as

       harm to one’s reputation. The trial court did not err in granting summary

       judgment in favor of Bryant on McCollough’s negligence claim.


                                                   Due Process
       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 17 of 25
[28]   McCollough argues that “[s]ome of the facts relating to [his] negligence claim

       also support his claim under 42 U.S.C. § 1983.” Appellant’s Brief at 28.

       Specifically, McCollough claims that he was denied his right to due process as a

       result of Bryant’s failure to conduct a reasonable investigation and Bryant’s

       failure to accurately report to school administrators regarding the incident.

       McCollough, however, does not develop his due process claim with cogent

       argument or cite relevant authority. He has therefore waived this issue for our

       review. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002),

       trans. denied; Ind. Appellate Rule 46(A)(8)(a).


                                        Cross-Appeal: Defamation


[29]   The Defendants cross-appeal and argue that the trial court erred in denying

       their motion for summary judgment on McCollough’s claim for defamation. In

       order to establish a claim of defamation, a plaintiff must prove (1) a

       communication with defamatory imputation, (2) malice, (3) publication, and

       (4) damages. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010).

       The first two elements are at issue here.


[30]   The Defendants concede that McCollough’s statement was revised without his

       knowledge and consent such that the word “allegedly” was removed and that

       the revised statement, which was clearly attributed to McCollough, was

       published in a press release. Notwithstanding their alteration of McCollough’s

       statement, the Defendants argue that McCollough cannot establish a

       defamatory imputation or that they acted with malice in publishing the revised


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 18 of 25
       statement. In response, McCollough argues that the published statement

       clearly lowered his reputation in the community and that there is at least a

       question of fact as to whether the Defendants acted with malice.

                                             Defamatory Imputation


[31]   Defendants argue that the published statement is incapable of defamatory

       meaning. A statement is defamatory if it tends “to harm a person’s reputation

       by lowering the person in the community’s estimation or deterring third persons

       from dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593,

       596 (Ind. 2007). Initially, the determination of whether a communication is

       defamatory is a question of law for the court. N. Ind. Pub. Serv. Co. v. Dabagia,

       721 N.E.2d 294, 301 (Ind. Ct. App. 1999). The issue becomes a question of fact

       only if the statement can reasonably be interpreted as having either a

       defamatory or non-defamatory meaning. Id.


[32]   The Defendants point to McCollough’s admissions in his statement that he

       threw a ball toward a player out of frustration, that his behavior was

       unacceptable and not the type he wanted to model, and that he wanted to

       publicly apologize. They assert that such admissions do more to harm his

       reputation in the community than “a misquote that boils down to whether he

       had bad aim” and actually hit the player. Appellees’ Brief a 31.


[33]   McCollough, on the other hand, asserts that he was adamant about using the

       word allegedly in his statement because of the meaning it conveyed. Indeed, as

       he has throughout, McCollough denies that he hit a player with a ball and the

       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 19 of 25
       word allegedly conveyed his version of the incident. McCollough argues that

       removal of “allegedly” from his statement “conveyed a completely different

       meaning to the average person” in that the revised statement read as an

       admission by him that he hit a player with a ball. McCollough’s Brief in Response

       to Cross-Appeal at 10.


[34]   The parties’ arguments demonstrate quite clearly that there is a genuine issue of

       material fact as to the defamatory imputation of the altered statement that was

       published. The true implication of the statement necessarily requires

       consideration of extrinsic evidence by the trier of fact.


[35]   The Defendants also argue that the statement cannot be defamatory because it

       accurately states what occurred. See Gatto v. St. Richard School, Inc., 774 N.E.2d

       914, 924 (Ind. Ct. App. 2002) (holding that truth is a complete defense to

       defamation). They point to affidavits of witnesses who stated that the player

       toward whom McCollough threw the ball outstretched his arm and the ball

       grazed his fingertips and thus, assert there is no dispute that the ball hit the

       player, regardless of what McCollough believed. McCollough continues to

       deny that the ball hit the player. Having reviewed the record, we find that the

       issue is not so much whether the ball hit the player, but the manner in which it

       hit the player. Although this distinction is subtle, we conclude that the

       accuracy of the statement is an issue for the trier of fact to decide in light of the

       circumstances. Use of the word “allegedly” went to the heart of this issue.




       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 20 of 25
[36]   Based on the forgoing, we conclude that the extent, if any, to which the

       alteration impacted the defamatory nature of the McCollough’s statement is a

       genuine issue of material fact to be decided by the trier of fact.

                                                       Malice


[37]   Both a public figure and a private individual bringing a defamation action over

       a matter of public or general concern must prove by clear and convincing

       evidence that the defendant made the alleged defamatory statement with

       “actual malice.” Journal–Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452

       (Ind. 1999). The actual malice element required by the United States Supreme

       Court and our state courts is not to be confused with the ordinary definition of

       “malice” as “an evil intent or motive” arising from spite or ill will. See Masson

       v. New Yorker Magazine, Inc., 501 U.S. 496 (1991). Actual malice, as an element

       of the tort of defamation, exists when the defendant publishes a defamatory

       statement “with knowledge that it was false or with reckless disregard of

       whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-

       80 (1964); Bandido’s, 712 N.E.2d at 456.


[38]   The Defendants argue that no reasonable inference can be drawn that Bryant

       harbored ill will toward McCollough based on an incident between the two that

       occurred ten years earlier when Bryant was a basketball coach under

       McCollough or a separate incident involving Bryant and another individual

       Bryant never knew was friends with McCollough. McCollough argues that

       malice is implicit in the fact that the Defendants knowingly or with reckless


       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 21 of 25
       disregard of whether it was false published McCollough’s statement. Indeed,

       the Defendants acknowledge that McCollough’s statement was changed

       without his knowledge or permission in order to convey the incident as they

       saw fit. The alteration changed the meaning of what McCollough intended to

       convey. We find that the designated evidence presents a genuine issue of fact as

       to whether the Defendants acted with malice.

                                           Common Interest Privilege


[39]   Insofar as they relate to the defamation claim, the Defendants argue that their

       communications regarding the incident in question are protected by the

       common interest privilege. This privilege applies to “communications made in

       good faith on any subject matter in which the party making the communication

       has an interest or in reference to which he has a duty, either public or private,

       either legal, moral, or social, if made to a person having a corresponding

       interest or duty.” Kelly, 865 N.E.2d at 597 (quoting Bals v. Verduzco, 600 N.E.2d

       1353, 1356 (Ind. 1992)). The privilege arises out of the necessity for full and

       unrestricted communication on matters in which the parties have a common

       interest or duty. Chambers v. Am. Trans. Air, Inc., 577 N.E.2d 612, 615 (Ind. Ct.

       App. 1991). Application of the privilege is a question of law. Id. If the

       privilege applies, it can be disregarded upon a showing by the plaintiff of

       “abuse,” which is demonstrated in one of three ways: (1) the communicator

       was primarily motivated by ill will; (2) the communication was published

       excessively; or (3) the communication was made without belief or grounds for

       belief in its truth. Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 262 (Ind. 1994).

       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 22 of 25
[40]   The Defendants argue that they have an interest in communicating with

       parents, the local media, and other community members about the conduct of

       its coaches. See Gatto v. St. Richard Sch., Inc., 774 N.E.2d 914, 925, 26 (Ind. Ct.

       App. 2002) (recognizing a subset of the common interest privilege as “[p]arents

       and schools have a ‘corresponding interest’ in the free flow of information

       about administrators and faculty members”). In other words, the Defendants

       maintain that they have an obligation to tell the community and other

       stakeholders about the incident between McCullough and a player. Further,

       the Defendants again note their position that the altered statement with the

       word “allegedly” removed was an accurate account of what occurred. The

       Defendants assert that McCollough has failed to present any evidence from

       which an inference of abuse can be made.


[41]   In response, McCollough argues that the Defendants cannot assert the common

       interest privilege so as to defeat his defamation claim. McCollough first notes

       his continued denial that the ball hit the player. Further, McCollough asserts

       that the Defendants published a statement that had been revised without

       McCollough’s knowledge or permission and that the altered statement

       attributed to McCollough an admission to hitting a player with a basketball.

       McCollough maintains that the statement had a fundamentally different

       meaning without the word “allegedly.” McCollough also argues that the

       common interest privilege exists only for the purposes of communicating the

       facts to persons who need to know. McCollough asserts that an area-wide press




       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 23 of 25
       release containing the purported admission by him was excessive and published

       to more individuals than needed to know.


[42]   We begin by noting that the Defendants cited no authority to support expansion

       of the common interest privilege to cover communications between schools and

       the general public regarding coaching staff. We further disagree with

       Defendants’ contention that simply because “high school basketball reaches its

       zenith in the Hoosier state,” important stakeholders include the media.

       Defendants’ Brief in Reply and in Support of Cross-Appeal at 37. The Defendants

       have not demonstrated that in the present case, there is a corresponding interest

       or duty between them or the media and general public. In a situation such as

       this, the corresponding duty for unrestricted communication would more

       appropriately be between the Defendants and the players and their parents

       and/or guardians.


[43]   This notion carries over to the scope of the publication. We agree with

       McCollough that communication with the general public and media outlets was

       excessive. The Defendants cannot assert the common interest privilege as a

       defense to McCollough’s defamation claim.


[44]   In summary, we conclude that the trial court properly granted summary

       judgment in favor of the Defendants on McCollough’s claims for IIED, breach

       of contract, tortious interference with a business relationship/contract, and

       negligence. We also conclude that the trial court properly denied the




       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 24 of 25
       Defendants’ motion for summary judgment with respect to McCollough’s

       defamation claim.


[45]   Judgment affirmed.


[46]   Riley, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 29A02-1512-CT-2181 | November 2, 2016   Page 25 of 25
