                                                                                     FILED
                                                                               Feb 14 2017, 10:01 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Richard K. Shoultz                                         Mark K. Leeman
Neal Bowling                                               Logansport, Indiana
Lewis Wagner, LLP
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

School City of Hammond                                     February 14, 2017
District,                                                  Court of Appeals Case No.
Appellant-Defendant,                                       45A03-1603-CT-450
                                                           Appeal from the Lake Superior
        v.                                                 Court
                                                           The Honorable Diane Kavadias
Chad Rueth,                                                Schneider, Judge
Appellee-Plaintiff                                         Trial Court Cause No.
                                                           45D11-1304-CT-64



Riley, Judge.




Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                   Page 1 of 24
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, School City of Hammond District (the District), appeals

      the trial court’s entry of judgment pursuant to a jury verdict in favor of

      Appellee-Plaintiff, Chad M. Rueth (Rueth), on his claims of defamation and

      blacklisting.


[2]   We reverse.


                                                    ISSUES
[3]   The District raises nine issues on appeal, two of which we find dispositive and

      which we restate as follows:

      (1) Whether there is sufficient evidence to sustain the jury’s verdict against the

      District for defamation; and

      (2) Whether there is sufficient evidence to sustain the jury’s verdict against the

      District for blacklisting.


                       FACTS AND PROCEDURAL HISTORY
[4]   In 2004, Rueth was hired as a middle school history teacher at Gavit

      Middle/High School (Gavit), which is a school within the District in

      Hammond, Lake County, Indiana. Rueth also served as the girls’ varsity

      basketball coach for the high school side of Gavit. In 2007, Rueth was asked to

      be the high school’s assistant athletic director in addition to his teaching duties.

      That same year, the District hired Michelle Ondas (Principal Ondas) to serve as

      the assistant principal of Gavit. For a brief period in 2008, Principal Ondas

      acted as interim principal. During that time, she terminated the athletic
      Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 2 of 24
      director and offered the position to Rueth. The athletic director position at

      Gavit was part time and based on a one-year contract, with a stipend of $9,182.

      Thus, in addition to his athletic director duties, Rueth continued to teach a few

      classes.


[5]   When Rueth commenced his job as athletic director, he discovered that the

      school’s athletic fund had been depleted. As such, he looked for ways to both

      raise funds and cut costs without any sacrifice to the student-athletes. Despite

      his success in restoring funds to the athletic account, Rueth had clashes with

      (then-assistant principal) Principal Ondas regarding the proper channels of

      communication and his conflicts with coaches and other faculty members. At

      the end of each academic year, the then-principal renewed Rueth’s contract as

      athletic director.


[6]   In June of 2011, Principal Ondas was promoted to principal. Shortly after

      assuming her new role, Principal Ondas met with Rueth to outline her

      expectations of him for the upcoming school year. As part of this meeting,

      Principal Ondas completed an evaluation form, noting several areas in which

      Rueth needed to demonstrate improvement, such as his level of enthusiasm and

      initiative, his relationship with students and colleagues, his respect for the

      channels of authority, and his effectiveness in communication. Principal Ondas

      also summarized goals for Rueth, which consisted of better promoting the

      school, communication, and flexibility. A follow-up meeting was scheduled for

      December 2011, but this meeting never occurred. Regardless, at that time,

      Principal Ondas contacted the District’s central office to inform the necessary

      Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 3 of 24
      administrators that she wanted to open up the athletic director position to other

      candidates at the expiration of Rueth’s contract in June of 2012. Principal

      Ondas was advised to wait until the following spring to inform Rueth of this

      decision, and this information was not otherwise made available to the public.


[7]   In the fall of 2011, and prior to Principal Ondas’ decision to open up the

      athletic director job, Rueth discovered that his high school alma mater, Bishop

      Noll Institute (BNI)—a private, Catholic high school—was seeking candidates

      for its full-time athletic director position. He applied. BNI assembled an eight-

      person hiring committee (Hiring Committee), which included, in part: Colleen

      McCoy-Cejka (Principal McCoy-Cejka), BNI’s principal; Andrew Trost (Trost),

      a BNI faculty member; Michael Whelan (Whelan), the vice president of BNI’s

      Board of Limited Jurisdiction and an alumnus; Karl Repay (Repay), a BNI

      alumnus and sports coach; and Nora Kasprzycki (Kasprzycki), a member of the

      BNI Board of Limited Jurisdiction. When Rueth applied for the position, he

      requested that BNI not contact anyone at Gavit about his candidacy.

      Nevertheless, Principal Ondas eventually learned from her brother-in-law, a

      member of BNI’s Board of Limited Jurisdiction, that Rueth had applied for the

      job at BNI. On one occasion thereafter, Principal Ondas inquired as to whether

      Rueth had been chosen for the position, but because her brother-in-law was not

      involved with the hiring process, he had no information to offer.


[8]   BNI’s Hiring Committee received more than forty resumes, which it whittled

      down to four potential candidates, including Rueth. The first round of

      interviews was conducted on March 9, 2012. Although the majority of the

      Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 4 of 24
      Hiring Committee ranked Rueth within their top two choices for the position,

      others were not impressed by his performance. Ultimately, the Hiring

      Committee narrowed the field down to Rueth and one other candidate.

      According to Whelan, Rueth’s alumnus status “probably got him the second

      interview.” (Tr. Vol. II, p. 343). The two finalists were instructed to create a

      presentation for the Hiring Committee “as to what [they] saw the future of

      [BNI] athletics being, and kind of highlighting the ten[-]year work that we were

      going to do to bring [BNI] into [its] 100[-]year anniversary.” (Tr. Vol. I, p. 71).

      The presentations were scheduled for April 19, 2012.


[9]   In addition to his coaching duties at BNI, Repay was employed as a firefighter

      for the City of Hammond. Principal Ondas’ husband, Chris Ondas (Chris), was

      also a firefighter. Chris worked and socialized with Repay. At some point

      during BNI’s hiring process, Repay casually asked for Chris’ opinion of Rueth.

      Based on his personal observations of Rueth at various sporting events at Gavit,

      Chris stated, “Well, I don’t think he’s a real ball of fire.” (Tr. Vol. I, p. 198).

      On a subsequent occasion, Chris mentioned to Repay that Rueth “was having

      to reapply for his position at Gavit.” (Tr. Vol. II, p. 253). According to Repay,

      he shared this information with Principal McCoy-Cejka. Principal McCoy-

      Cejka recalled that Repay informed her “that [Rueth] was being let go from his

      current position.” (Tr. Vol. II, p. 295). Principal McCoy-Cejka indicated that,

      with the exception of Trost, she did not discuss Rueth’s status as Gavit’s

      athletic director with the rest of the Hiring Committee. However, Trost stated




      Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 5 of 24
       that prior to the second interview, the Hiring Committee had discussions about

       the fact that Rueth was no longer Gavit’s athletic director.


[10]   On the morning of April 19, 2012, the same day that Rueth was scheduled to

       make his presentation to the BNI Hiring Committee, Principal Ondas

       summoned Rueth to her office. Rueth “had a strong inclination as to what was

       going to happen,” so he used his cell phone to record the meeting. (Tr. Vol. I,

       p. 81). Principal Ondas informed Rueth that she was “going to open up the

       athletic director’s position” for the following school year because she “want[ed]

       to take it in a different direction.” (Tr. Vol. I, p. 78). However, Principal

       Ondas told Rueth that he was “more than welcome” to reapply for the job. (Tr.

       Vol. I, p. 78). Later that evening, Rueth made his presentation to the BNI

       Hiring Committee, but it did not go “as well as [he] would have liked it to have

       gone” as he “was still reeling from what had happened earlier that day.” (Tr.

       Vol. I, p. 84). Following his presentation, Rueth asked to speak privately with

       Principal McCoy-Cejka and Trost, at which time he informed them that he had

       just learned that he “was being let go from [his] position at Gavit as the athletic

       director.” (Tr. Vol. I, p. 85).


[11]   The following day, on April 20, 2012, Principal McCoy-Cejka sent the

       following email to members of the Hiring Committee:

               CONFIDENTIAL INFORMATION!!!!!!! He was put on
               planned action last summer and was told he did not satisfactorily
               fulfill the requirements that the administration was asking of him.
               How did we all find out about it [two] weeks ago, and he just
               learned about it yesterday? Can’t explain that one. It’s all fishy.

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 6 of 24
        I’m afraid too many people in the BNI community became
        involved in advising us on choosing him and helping him to
        prepare for us. I don’t know how a lot of information becomes
        public, but it does, and it almost always causes damage. I don’t
        know how else to try to get to the truth without causing more
        damage for him at Gavit.


(Plaintiff’s Exh. 11). Also that day, Whelan emailed the rest of the Hiring

Committee as follows:

        All,

        I am troubled with trying to put a timeline together on the
        [Rueth] [athletic director] situation at Gavit. Part of me feels that
        our responsibility was to be confidential and maybe that was
        blown. Now, maybe [Rueth] blew that himself because he
        admitted he had people helping him so that could be the
        situation.
        I am confused as to what happened at Gavit and when it actually
        happened. There definitely is a difference in [Rueth’s] story and
        what we are hearing.

        It is important to me to understand what really happened.

        [Rueth] told [Principal McCoy-Cejka] and [another member of
        the Hiring Committee] that he was told that the [athletic director]
        job at Gavit would be advertised yesterday. I find the timing
        very unusual.
        The rumor is however that he was told this [two] or [three] weeks
        ago??
        Was he really?
        Why would he lie?
        Was he supposed to be told and then it didn’t happen?

        Someone is going to have to sit with [Rueth] and explain why he
        wasn’t chosen at some point soon.
Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 7 of 24
               He is an alumn[us], his family will be influential in a capital
               campaign. This doesn’t mean we had to hire him but it means
               that we need to treat him very fairly and the story we tell him
               needs to be very thought out.
               We also all need to have the same story and be unanimous in our
               decision. We can[’]t have people saying, well that wasn’t my
               choice or that wasn’t my vote. This is way too important.

               It appears to me that there is some real bad blood at Gavit for
               sure.


       (Plaintiff’s Exh. 28).


[12]   The Hiring Committee voted to recommend the hiring of the other candidate.

       Principal McCoy-Cejka was ultimately solely responsible for selecting the new

       athletic director, and she accepted the recommendation of the Hiring

       Committee. According to Principal McCoy-Cejka, the information about

       Rueth’s position at Gavit did not influence her hiring decision, and he “was

       given a fair opportunity all the way up to the end, and was still a contender with

       another candidate up until the very end even though that gossip had been out

       there.” (Tr. Vol. II, p. 308). On April 27, 2012, Principal McCoy-Cejka

       notified Rueth that he had not been selected as BNI’s athletic director.

       Thereafter, in May of 2012, Rueth applied for the athletic director position at

       Gavit, but he was not re-hired.


[13]   According to Rueth, he had a phone conversation with Whelan following the

       Hiring Committee’s decision, during which Whelan informed him that he was

       not hired because of “the shit that [Principal Ondas] put out there about me.”


       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 8 of 24
(Tr. Vol. II, p. 433). Whelan also purportedly informed Rueth that Principal

Ondas

        was in contact with the [H]iring [C]ommittee. [Whelan] told
        [Rueth] that he was mad, he was upset. [Whelan] used a lot of
        four letter words during the conversation. When [Whelan]
        talked to [Rueth], he was angry because he felt like the entire
        process was compromised. [Whelan] felt like they made an
        uninformed decision, an unfair decision.


(Tr. Vol. II, p. 433). Rueth further stated that Whelan explained that there was

a “cloud of suspicion about when . . . [he was] fired at Gavit as the athletic

director” and that Principal Ondas had advised the Hiring Committee that “you

should not hire him.” (Tr. Vol. II, p. 434). 1 Conversely, Whelan denied that he

informed Rueth that the reason he did not get the job was based on information

that Principal Ondas had communicated to the Hiring Committee. Rather,

Whelan claimed that, although he acknowledged there were “a lot of rumors

flying around out there[,]” he told Rueth

        that he didn’t get the job because he didn’t do a good job at his
        interviews, and there was people that called me and said—put in
        a good word for him and other people. And I said, “I’m just
        going to tell you [that] you didn’t do a good job at the interview,
        and that’s why I didn’t vote for you, and if I were you, and I was
        going to go and get another job, this is some of the things I would
        do.” That’s what I told him.




1
 The District objected to the admission of Rueth’s testimony regarding his telephone conversation with
Whelan on grounds of hearsay. The trial court admitted the testimony only for the purpose of rebuttal.

Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                    Page 9 of 24
       (Tr. Vol. II, pp. 360-61). Furthermore, Principal McCoy-Cejka, Trost, Repay,

       and Kasprzycki all stated that there was no communication between the Hiring

       Committee and Principal Ondas or any other District employee, and Whelan

       indicated that he had never heard of Principal Ondas prior to the current

       proceedings. Similarly, Principal Ondas stated that she had no knowledge as to

       why anyone on the Hiring Committee would have had knowledge about the

       Gavit athletic director position.


[14]   In addition, it appears that the Hiring Committee’s decision to forego hiring

       Rueth resulted in some backlash within the BNI community. Principal McCoy-

       Cejka emailed members of the Hiring Committee, stating that

               she [that is, Principal McCoy-Cejka,] feels like we need to issue a
               public statement on what a crappy job [Rueth] did in his
               interview. She says really no one’s putting two and two together.
               He got fired from one job, did not get hired for another, he’s not
               awesome, people. He’s also probably slandering [Principal
               Ondas] all over Hammond. What he said to us was mild
               compared to what he speaks freely and nonprofessional, I am
               sure.


       (Tr. Vol. II, p. 363).


[15]   On April 6, 2013, Rueth filed a Complaint for Damages and Demand for Jury

       Trial. In his Complaint, Rueth alleged claims of defamation and blacklisting

       against the District. On May 28, 2013, the District filed its Answer, denying

       Rueth’s allegations. On December 7 through 10, 2015, the trial court

       conducted a jury trial. After Rueth rested his case-in-chief, the District moved


       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 10 of 24
       for judgment on the evidence. Outside of the presence of the jury, the trial

       court denied the District’s motion, stating that it was very clear that

               there was information given to the [Hiring Committee] well in
               advance of . . . Rueth even knowing that his contract as the
               athletic director was not going to be renewed. It’s also interesting
               that the very day of his second interview is when he found out
               from the principal of this fact, just as he was going in for his
               second interview. From that information, there’s enough
               evidence where the jury can draw inferences if his employment
               status was going to change, and the only people that knew that
               were the central administration, principal, and the assistant
               principal, it’s quite interesting that all of a sudden a group from
               another school was aware of it. The inference that can be drawn
               is either directly or indirectly that was communicated to those
               individuals.


       (Tr. Vol. II, pp. 446-47). At the close of the evidence, the jury returned a

       general verdict in favor of Rueth and awarded him damages of $550,000.

       Thereafter, the trial court entered judgment in accordance with the verdict.


[16]   On January 13, 2016, the District filed a Motion to Correct Error. The District

       claimed, in part, that Rueth “failed to present evidence on essential elements of

       his claim to support the judgment”; that Indiana’s blacklisting statute “is

       inapplicable to any claim against the [District] as a matter of law and cannot

       support the basis of the verdict”; and that Rueth “failed to present probative

       evidence sufficient to support the jury’s damages award.” (Appellant’s App.

       Vol. II, p. 35). On February 9, 2016, the trial court denied the District’s Motion

       to Correct Error, finding that “[t]here was sufficient evidence presented to

       support the verdict of the jury in this case.” (Appellant’s App. Vol. II, p. 23).
       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 11 of 24
[17]   The District now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                              I. Standard of Review

[18]   The District appeals from the trial court’s denial of its Motion to Correct Error.

       We review a trial court’s ruling on a motion to correct error for an abuse of

       discretion. Newland Resources, LLC v. Branham Corp., 918 N.E.2d 763, 772 (Ind.

       Ct. App. 2009). It is an abuse of discretion if “the trial court’s action is against

       the logic and effect of the facts and circumstances before it and the inferences

       which may be drawn therefrom.” Cox v. Matthews, 901 N.E.2d 14, 21 (Ind. Ct.

       App. 2009), trans. dismissed. “The trial court’s decision on a motion to correct

       error comes to us cloaked with a presumption of correctness and the appellant

       has the burden of showing an abuse of discretion.” Id.


[19]   In its Motion to Correct Error, pursuant to Indiana Trial Rules 50 and 59, the

       District requested that the trial court vacate its judgment in favor of Rueth “and

       to enter judgment for [the District] on all claims.” (Appellant’s App. Vol. I, p.

       35). Indiana’s trial rules allow a party to move for judgment on the evidence in

       a motion to correct error. See Ind. Trial Rule 50(A)(4). When considering a

       motion to correct error, if the court “determines that prejudicial or harmful

       error has been committed,” it “shall take such action as will cure the error.”

       T.R. 59(J). In particular,

               [i]n reviewing the evidence, the court shall grant a new trial if it
               determines that the verdict of a non-advisory jury is against the
               weight of the evidence; and shall enter judgment, subject to the

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017    Page 12 of 24
               provisions herein, if the court determines that the verdict of a
               non-advisory jury is clearly erroneous as contrary to or not
               supported by the evidence.


       T.R. 59(J)(7). Similarly, the rule concerning judgments on the evidence

       provides:

               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict.


       T.R. 50(A). Despite the differing language in the rules governing motions for

       judgment on the evidence and motions to correct error, “both rules mandate

       that the motion be granted when there is insufficient evidence under the law to

       support a verdict.” Huff v. Travelers Indem. Co., 363 N.E.2d 985, 990 (Ind. 1977).


[20]   When considering a motion for judgment on the evidence subsequent to a jury

       verdict, the trial court may not weigh the evidence and

               must view only the evidence favorable to the non-moving party
               and the reasonable inferences to be drawn from that evidence.
               The trial court may enter judgment only if there is no substantial
               evidence or reasonable inference to be adduced therefrom to
               support an essential element of the claim, i.e., the evidence must
               point unerringly to a conclusion not reached by the jury.


       Id. (Italics added). If there is relevant evidence that supports the verdict, a

       motion for judgment on the evidence is improper because the final

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 13 of 24
       determination must be left to the fact-finder. Id. “Judicial economy is served

       by this view in that the trial court withdraws the case from the jury or enters a

       judgment notwithstanding the verdict whenever an appellate court would be

       compelled to find the evidence does not support a judgment.” Id.


                                                   II. Defamation

[21]   “The law of defamation was created to protect individuals from reputational

       attacks.” Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007),

       trans. denied. Thus, defamation is defined as “that which tends to injure

       reputation or to diminish esteem, respect, good will, or confidence in the

       plaintiff, or to excite derogatory feelings or opinions about the plaintiff.” Poyser

       v. Peerless, 775 N.E.2d 1101, 1106 (Ind. Ct. App. 2002) (internal quotation

       marks omitted). In order to establish defamation, the plaintiff “must prove the

       existence of ‘a communication with defamatory imputation, malice,

       publication, and damages.’” Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184,

       186 (Ind. 2010) (quoting Trail v. Boys & Girls Clubs of N.W. Ind., 845 N.E.2d 130,

       136 (Ind. 2006)). A communication is “defamatory per se if it imputes: (1)

       criminal conduct, (2) a loathsome disease, (3) misconduct in a person’s trade,

       profession, office, or occupation, or (4) sexual misconduct.” Hamilton, 860

       N.E.2d at 1243. When a communication is found to be defamatory per se,

       “damages are presumed even without proof of actual harm to the plaintiff’s

       reputation.” Id.


[22]   In this case, the District claims that Rueth failed to present any evidence at trial

       to support the essential elements of defamation. The District contends that the

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 14 of 24
       only information that was communicated between the District and the Hiring

       Committee, albeit indirectly (i.e., through Principal Ondas’ husband, Chris),

       was that Rueth was going to have to reapply for the position of Gavit’s athletic

       director. The District argues that such a statement is not defamatory; it is true;

       it was not published by the District; it was communicated to the Hiring

       Committee by Rueth himself; and it did not cause any damage to Rueth.


[23]   “Whether a communication is defamatory ‘depends, among other factors, upon

       the temper of the times [and] the current of contemporary public opinion, with

       the result that words, harmless in one age, in one community, may be highly

       damaging to reputation at another time or in a different place.’” Id. (alteration

       in original) (quoting Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452

       n.6 (Ind. 1999)). In general, whether a communication is considered

       defamatory is a question of law for a court to decide. Id. However, it “becomes

       a question of fact for the jury if the communication is reasonably susceptible to

       either a defamatory or a non-defamatory interpretation.” Id. “To impose

       liability for defamation, a false statement of fact is required.” Id. (emphasis

       added) (citing Journal-Gazette Co., 712 N.E.2d at 457). “In determining whether

       a defamatory meaning is possible, we test the effect that the statement is fairly

       calculated to produce and the impression it would naturally engender in the

       mind of the average person.” Id.


[24]   Here, the evidence clearly established that Principal Ondas intended to open up

       Gavit’s athletic director position to other candidates at the end of Rueth’s

       contract term. She informed the District’s central administration office of her

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 15 of 24
       decision in December of 2011 and was instructed to inform Rueth of the same

       the following spring (as Rueth’s contract was set to expire on June 15, 2012).

       On April 19, 2012, Principal Ondas communicated to Rueth that his contract

       for athletic director would not be renewed at the end of its term because she

       “want[ed] to take it in a different direction” but that he was “more than

       welcome” to reapply for the job. (Tr. Vol. I, p. 78). Based on the truthfulness

       of this statement, it cannot support a defamation claim. See Gatto v. St. Richard

       School, Inc., 774 N.E.2d 914, 924 (Ind. Ct. App. 2002) (“[T]ruth is a complete

       defense to defamation.”).


[25]   Rueth, however, directs our attention to the April 20, 2012 email from Principal

       McCoy-Cejka to the rest of the Hiring Committee, which stated:

               CONFIDENTIAL INFORMATION!!!!!!! He was put on
               planned action last summer and was told he did not satisfactorily
               fulfill the requirements that the administration was asking of him.
               How did we all find out about it [two] weeks ago, and he just
               learned about it yesterday? Can’t explain that one. It’s all fishy.
               I’m afraid too many people in the BNI community became
               involved in advising us on choosing him and helping him to
               prepare for us. I don’t know how a lot of information becomes
               public, but it does, and it almost always causes damage. I don’t
               know how else to try to get to the truth without causing more
               damage for him at Gavit.


       (Plaintiff’s Exh. 11). Rueth additionally cites the email sent by Whelan on the

       same day, which points out the discrepancy between when Rueth learned that

       he would no longer be Gavit’s athletic director and when the Hiring Committee

       learned the same information. Whelan’s email to the Hiring Committee also

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 16 of 24
noted that there was some “real bad blood at Gavit for sure.” (Plaintiff’s Exh.

28). Rueth contends that this information is false because there is no evidence

that he was “on some sort of performance improvement plan or planned

disciplinary action,” and

        [t]here was no evidence [that] Rueth failed to meet the
        requirements of a “planned action” during the course of the prior
        school year. Rueth was never told that he failed to meet the
        terms of some formal planned action, nor was he told prior to
        April 19, 2015 [sic] that he was likely to lose his athletic director
        position because he failed to meet the requirements of a planned
        action.


(Appellee’s Br. p. 27). Furthermore, Rueth asserts that such a communication

is defamatory in nature because it “gave the distinct the [sic] impression to the

Hiring Committee that Rueth was a bad athletic director, who was placed on a

planned disciplinary action, failed to meet the requirements of the planned

action, and carried some real ‘bad blood’ with those he worked with.”

(Appellee’s Br. p. 28). Based on the fact that Whelan assumed there was “bad

blood” between Rueth and Gavit, Rueth now asserts that the “information

circulating among the Hiring Committee came directly from the District.”

(Appellee’s Br. p. 30).




Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 17 of 24
[26]   We agree with Rueth that the email from Principal McCoy-Cejka includes

       statements that could be construed by a jury as defamatory. 2 Nevertheless, the

       District argues that “the record is devoid of any evidence whatsoever that

       anyone affiliated with the District ever even made a statement to the effect that .

       . . Rueth was on ‘planned action,’ let alone published such a statement to third

       parties.” (Appellant’s Reply Br. p. 8). As already mentioned, in order to prove

       a claim of defamation, “the plaintiff must show that the defamatory matter was

       ‘published,’ that is, communicated to a third person or persons.” Bals v.

       Verduzco, 600 N.E.2d 1353, 1354 (Ind. 1992). We agree with the District.


[27]   We must first note that, although we “indulge every reasonable presumption in

       favor of the legality of [a jury] verdict,” we will overturn the verdict “if it is

       legally or logically inconsistent, contradictory, or repugnant.” Simon Prop. Grp.,

       L.P. v. Brandt Const., Inc., 830 N.E.2d 981, 988 (Ind. Ct. App. 2005), trans.

       denied. Here, we are unable to identify any evidence from which it could be

       inferred that the District published any information to the BNI Hiring

       Committee that Rueth was on a “planned action” and failed to fulfill the

       administration’s requirements. (Plaintiff’s Exh. 11). Rueth argues that “[t]he

       only plausible source of this information was from the District itself” because it




       2
         Although, as the District points out, “it is unclear from the single appearance of the phrase ‘planned action’
       in the evidentiary record what [Principal] McCoy-Cejka intended the term to mean, or what the [Hiring
       Committee] understood it to mean. The phrase has no commonly understood meaning.” (Appellant’s Reply
       Br. p. 12). And although Rueth “suggests that the phrase is equivalent to ‘performance improvement plan,’
       [which] implies that an employee has been disciplined[,]” there is no support for this interpretation in the
       record. (Appellant’s Reply Br. p. 12).

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                       Page 18 of 24
       “was specific, detailed, and related directly to Rueth’s employment at the

       District.” (Appellee’s Br. p. 30). 3 Thus, he insists that “[i]t would be bizarre for

       such detailed and specific information about Rueth’s employment to have been

       completely manufactured by an individual unaffiliated with the District.”

       (Appellee’s Br. p. 31).


[28]   In turn, the District postulates that “[i]t is just as plausible that [Principal]

       McCoy-Cejka heard true information, that is, that . . . Rueth would have to

       reapply for the Gavit athletic director position, and added the ‘planned action’

       comment herself, either through exaggeration or misunderstanding.”

       (Appellant’s Reply Br. p. 11). Similarly, emails circulated among the Hiring

       Committee members from Principal McCoy-Cejka and Whelan also suggest

       that information could have come from a number of other sources because “too

       many people in the BNI community became involved in advising us on

       choosing him and helping him to prepare for us” and that “maybe [Rueth] blew

       that [confidentiality] himself because he admitted he had people helping him so

       that could be the situation.” (Plaintiff’s Exhs. 11, 28).




       3
         As to Rueth’s contention that “Principal Ondas conceded that the only plausible source of the information
       that the Hiring Committee had received was an employee of the District[,]” we find that this is a
       mischaracterization of the evidence. (Appellee’s Br. pp. 30-31). Principal Ondas testified that she informed
       the District’s central administration office in December of 2011 that she wanted to open up the athletic
       director position to other candidates at the expiration of Rueth’s contract. This is the only information that
       Principal Ondas conceded could have been communicated by an employee of the District, and, as established
       above, it is a factual statement and therefore not defamatory.

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                     Page 19 of 24
[29]   The only evidence in the record regarding information about Rueth being

       transmitted from the District to the Hiring Committee is the factual statement

       that Repay learned from Principal Ondas’ husband, Chris, that Rueth “was

       having to reapply for his position at Gavit.” (Tr. Vol. II, p. 253). Repay

       testified that he shared this fact with Principal McCoy-Cejka and, thereafter, the

       remainder of the Hiring Committee also learned of it before even Rueth himself

       had been notified. Furthermore, all of the members of the Hiring Committee

       who testified, as well as Principal Ondas, indicated that there was no

       communication between the District and the Hiring Committee regarding

       Rueth. Absent some indicia of evidence that the District was informing third

       parties that Rueth was on a “planned action,” the jury’s verdict is based on

       speculation. (Plaintiff’s Exh. 11). 4 Our court has previously stated that “[t]he

       failure of inference may occur as a matter of law when the intended inference

       can rest on no more than speculation or conjecture.” Northrop Corp. v. Gen.

       Motors Corp., 807 N.E.2d 70, 87 (Ind. Ct. App. 2004) (quoting Hartford Steam

       Boiler Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1133 (Ind. Ct. App. 2002),

       trans. denied), trans. denied. Accordingly, there is insufficient evidence to support

       a verdict for defamation.




       4
         Rueth further contends that it could be inferred that Chris overheard phone conversations during which
       Principal Ondas “shared false information about Rueth with other administrators,” which he subsequently
       shared with the Hiring Committee. (Appellee’s Br. p. 32). This, too, is speculation in light of the fact that
       there is no evidence that Principal Ondas shared false information with any administrators, and the record
       indicates that the only information that Chris relayed to Repay was that Rueth was not a “real ball of fire”
       (based on Chris’ personal observation rather than an opinion of the District) and that Rueth “was having to
       reapply for his position at Gavit.” (Tr. Vol. I, p. 198; Tr. Vol. II, p. 253).

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                      Page 20 of 24
                                                   III. Blacklisting

[30]   The District also claims that Rueth failed to present evidence on the essential

       elements of his blacklisting claim. The relevant portion of the blacklisting

       statute, Indiana Code section 22-5-3-2, “create[s] a cause of action for damages

       resulting from a former employer engaging in blacklisting” and provides as

       follows:

                If any . . . company, partnership, limited liability company, or
                corporation in this state shall authorize, allow or permit any of its
                or their agents to black-list any discharged employees, or attempt
                by words or writing, or any other means whatever, to prevent
                such discharged employee, or any employee who may have
                voluntarily left said company’s service, from obtaining
                employment with any other person, or company, said company
                shall be liable to such employee in such sum as will fully
                compensate him, to which may be added exemplary damages.


       Loparex, LLC v. MPI Release Techs., LLC, 964 N.E.2d 806, 810 (Ind. 2012). 5


[31]   On appeal, both parties agree that the blacklisting statute provides relief to

       discharged employees who have been blacklisted from obtaining new

       employment by their former employer. The District contends that Rueth was

       not a “discharged employee” within the meaning of the blacklisting statute

       because his position as Gavit athletic director “was pursuant to a year-to-year



       5
         Indiana Code section 22-5-3-1 of the blacklisting statute “addresses criminal penalties, provides qualified
       civil immunity for employers who disclose information about [current and] former employees unless that
       information was known to be false, and requires prospective employers to provide copies of the disclosures
       made by former employers. [Indiana Code section] 22-5-3-2 contains the civil cause of action at issue here.”
       Loparex, LLC, 964 N.E.2d at 815.

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                     Page 21 of 24
       contract, and [Rueth] completed the term in the spring of 2012.” (Appellant’s

       Br. p. 30). The District also notes that Rueth maintained his teaching position

       with the District even at the time of trial. In turn, Rueth insists that he was, in

       fact, a “discharged employee” because he “was formally released from his

       service as an athletic director at the District by . . . Principal Ondas.”

       (Appellee’s Br. p. 47).


[32]   In considering whether Rueth was discharged as required by the blacklisting

       statute, we look to the dictionary to ascertain the plain meaning of the word.

       See Koppin v. Strode, 761 N.E.2d 455, 461 (Ind. Ct. App. 2002) (noting that, for

       statutory construction, “[w]hen the legislature has not defined a word, we give

       the word its common and ordinary meaning”), trans. denied. According to

       Black’s Law Dictionary, “discharge” means, in relevant part, “[t]he firing of an

       employee.” BLACK’S LAW DICTIONARY 495 (8th ed. 2004). Similarly,

       Meriam-Webster defines “discharge” as “to dismiss from employment” or “to

       release from service or duty.” MERRIAM-WEBSTER, https://www.merriam-

       webster.com/dictionary/discharge (last visited January 20, 2017).


[33]   In this case, there is no dispute that Rueth’s position as Gavit’s athletic director

       was based on a one-year contract. In fact, the term of his final “Contract for

       Extracurricular Services” commenced on August 24, 2011, and ended on June

       15, 2012. In previous years, under the authority of a former principal, Rueth

       was automatically re-hired at the expiration of his athletic director contract

       without having to go through the reapplication process. Following the 2011-

       2012 school year, however, Principal Ondas determined that she “want[ed] to

       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 22 of 24
take [the athletic department] in a different direction.” (Tr. Vol. I., p. 78).

Thus, at the expiration of Rueth’s contract, Principal Ondas accepted

applications from other candidates. Rueth was also invited to apply, which he

did. A hiring committee was formed, which did not include Principal Ondas,

and at the recommendation of the hiring committee, Principal Ondas hired a

new athletic director. Based on the fact that Rueth had fulfilled the terms of his

contract, we find that he was not discharged within the meaning of the

blacklisting statute. Rueth was not fired from his teaching position at Gavit,

nor was he prematurely released from his obligations under the athletic director

contract. Rather, he served out the full term of the contract and, therefore,

“had no expectation of continued employment after the expiration of each one-

year contract.” Vincennes Univ. ex rel. Bd. of Tr. of Vincennes v. Sparks, 988 N.E.2d

1160, 1168 (Ind. Ct. App. 2013), trans. denied. The fact that his contract was not

renewed is not tantamount to a discharge. Thus, we find insufficient evidence

to support a verdict for blacklisting. 6




6
  The District also raises issues concerning the trial court’s admission of hearsay into evidence, as well as the
insufficiency of evidence supporting the $550,000 in damages awarded by the jury. Because we have
concluded that there is insufficient evidence to support Rueth’s claims of defamation and blacklisting, we
need not address these other issues.

Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017                        Page 23 of 24
                                              CONCLUSION
[34]   Based on the foregoing, we conclude that there is insufficient evidence to

       support a verdict for defamation or blacklisting, and, as such, the trial court

       abused its discretion by denying the District’s Motion to Correct Error.


[35]   Reversed.


[36]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 45A03-1603-CT-450 | February 14, 2017   Page 24 of 24
