from the Hamilton Circuit Court Trial Court Cause No.
29C01-1409-CT-8761 The Honorable Paul A. Felix, Judge
Attorneys for Appellant S. Matthew Cook Stephen W. Cook
Attorneys for Appellees Andrew A. Manna Alexander P. Pinegar
Brent R. Borg Noblesville, Indiana
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.
& Procedural History
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 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.
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.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.
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.
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.
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 of
Bryant 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
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. 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.
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, 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.
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.
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. 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, 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.
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
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).
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 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.
Infliction of Emotional Distress
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 ...