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Apr 15 2010, 9:40 am

FILED
of the supreme court, court of appeals and tax court

FOR PUBLICATION

CLERK

ATTORNEYS FOR APPELLANT: ANDREW W. GRUBER CHRISTOPHER R. TAYLOR Bingham McHale LLP Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: JAMES D. JOHNSON JAMES B. GODBOLD Rudolph, Fine, Porter & Johnson, LLP Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
BRETT MELTON, Appellant-Plaintiff, vs. JAMES OUSLEY, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 91A02-0909-CV-902

APPEAL FROM THE WHITE SUPERIOR COURT The Honorable Robert B. Mrzlack, Judge Cause No. 91D01-0708-CT-6

April 15, 2010

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Brett Melton appeals the trial courts order granting summary judgment in favor of James Ousley on Meltons complaint alleging defamation and tortious interference with a contractual employment relationship. Melton raises four issues for review, which we consolidate and restate as: 1. Whether there is a genuine issue of material fact as to whether Ousleys allegedly defamatory statements regarding Melton were true. Whether there is a genuine issue of material fact precluding the entry of summary judgment on Meltons claim alleging Ousleys tortious interference with a contractual employment relationship.

2.

We affirm. FACTS AND PROCEDURAL HISTORY Melton is a professional golfer, a golf instructor, a member of the PGA of America ("PGA"),1 and a member of the Indiana Section of the PGA ("Indiana Section"). The PGA classifies its professional members according to types of professional golf employment. There are twenty-four levels of "Class A" membership in the PGA. To maintain membership at a particular Class A level, the members "primary employment" must meet the definition for that level of classification. Appellants App. at 200. To satisfy the "primary employment" requirement, "the employment must show a pattern of employment that is regular, continuous, at the place of employment and provide the public with golf[-]related goods and/or services." Id.

The PGA of America, a separate organization from the PGA Tour, is divided into forty-one geographical sections. The parties have provided detailed background information about the organizational structure of the PGA of America in their briefs, but not all of the supporting authority has been included in the record on appeal.

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The PGA and the Indiana Section run separate tournaments. Some of the Indiana Section tournaments are qualifier events for the PGA tournaments. The Indiana Section also has its own rules that determine the type and number of events in which an Indiana Section member may play. Participation in certain tournaments is limited by PGA classification. In 2002, Melton was working as an assistant golf professional in Terre Haute, where he held an A-8 classification.2 That year, he moved to Illinois, where he worked again as an assistant golf professional. Melton later took a job as a golf instructor at a PGA-recognized facility in Illinois. With this change in position, Melton changed his classification to A-6. A member with an A-6 classification works predominantly as a golf instructor. In 2006, Melton and his family moved back to Indiana. Melton applied to change his PGA classification from an A-6 teaching professional in the Illinois Section to the same classification in the Indiana Section. The PGA approved that change. In August, Melton accepted a teaching position at Country Oaks Golf Club in Montgomery. There he worked under Chad Crane, the clubs head golf professional. Melton also worked in the clubs pro shop. Ousley is the head golf professional at the Tippecanoe Country Club in Monticello. He is also a golf professional, a golf instructor, and a member of the Indiana Section. Ousleys PGA classification is A-1. Ousley and Melton were acquaintances in college and had crossed paths a few times on golf courses since college.
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Ousley

Members in the A-8 classification are "employed as Assistant Golf Professionals at PGA Recognized Facilities[.]" Appellants App. at 198.

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frequently reviewed tournament results, noting the performances of his friends and acquaintances. As a result, Ousley was familiar with the number of tournaments in which Melton had been playing. After Melton transferred to the Indiana Section, Ousley told some other Indiana Section members that Melton was a "cheat," a "cheater," and was "cheating the system." Melton understood these statements to refer not to "something that had happened while [he] was playing golf" but to the fact that he was "playing in the Indiana Section tournaments[.]" Id. at 94-95. In August Ousley contacted Mike David, the Executive Director of the Indiana Section, expressing concern about whether Meltons main employment qualified him to be classified as a teaching professional. At Davids request, Ousley put his concerns in a letter addressed to David. After recounting his

understanding of Meltons professional activities, Ousley closed by stating: "This fall after he [Melton] transferred into Indiana I was apprehensive he is working at all [sic] and I feel it is unfair for him to be able to play all over the country and then come home to Indiana and play in our [Indiana Section] events." Id. at 240. The Indiana Section launched an investigation to verify Meltons qualification to be classified as a teaching professional.3 Following its procedure for such situations, the Section asked Tom Brawley, PGA Membership Director, to send Melton a letter requesting documentation to substantiate Meltons employment status. In response,

Melton sent a copy of his most recent paycheck, his "most recent lesson book[,] and [Country Oaks] work schedule" for the following two weeks.
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Id. at 242.

After

The parties have not provided a copy of the Indiana Sections 2006 written request, if any, for documentation to verify Meltons employment status. In his brief, Melton cites to the PGA Board of Control letter in the appendix in reference to the initial investigation by the Indiana Section.

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reviewing that documentation, Brawley sent a letter to Melton stating that Meltons "employment is considered ineligible and [he] will be an A-6 in [his] Grace Period as of October 13, 2006[,]" the date of that letter.4 Id. 241. Melton appealed that determination to the Board of Control and requested to "remain a Class A-6 in the Indiana Section." Id. at 248. By a letter dated December 18, 2006, Brawley informed Melton that the Board of Control had denied Meltons request. A similar letter was sent to Crane. Both letters listed the information required for Melton to regain eligibility. Melton appealed that decision to the National Board of Directors. On February 13, 2007, Allen F. Wronowski, Secretary of the PGA, sent a letter to Melton, notifying him that the National Board of Directors had upheld the decision of the Board of Control. That letter again instructed Melton what documentation was necessary to regain eligibility. The following day, Wronowski sent a letter to Crane, seeking to verify Meltons employment. Crane did not respond to that letter. But Melton forwarded information regarding Meltons Golf Academy, which he had started at Country Oaks. On July 8, 2007, Melton again submitted to the Indiana Section documentation to substantiate his employment. On August 3, 2007, four Indiana Section officers sent a

Neither this letter nor the parties explain what is meant by this reference to Melton being ineligible and yet still an A-6 in his "Grace Period" as of the date of that letter. Nor has our review of the appendix disclosed any explanation for the use of this phrase on the facts presented. However, we did find in the Appellants Appendix a partial excerpt of the PGA Bylaws regarding classification procedures. This excerpt provides, in part, that "[a]ctive members, who become unemployed, are not eligible for classification as Life Members, and who do not elect to be classified as Inactive Members shall enter a one[-] (1[-])year grace period. If, by the end of that grace period, such Members continue not to be eligible for classification as Active or Life Members, they shall be reclassified as Inactive Members at the beginning of the Associations next fiscal year." Appellants App. at 201. This provision is not completely applicable. But the record shows that, and the parties discuss the matter as if, Melton continued to be classified as an A-6, although only provisionally, until late in 2008. As such, we understand the reference to a grace period to mean that Melton was granted probationary A-6 status for some period of time.

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letter to Melton, stating that, upon review of the documents he had submitted regarding his employment with his golf academy, the officers had determined that his "employment as an A-6 was not substantiated and [they] deemed his employment ineligible." Id. at 281. Melton again appealed the decision to the Board of Control, which upheld the Indiana Sections decision. Melton appealed to the Board of Directors, which upheld the decisions of the Indiana Section and the Board of Control. Melton finally substantiated eligible employment as an A-6 member in December 2008. During the course of Meltons appeals and attempts to verify employment qualifying him as an A-6, Melton hired an attorney to represent him with regard to the alleged defamation by Ousley. On May 21, 2007, Meltons attorney wrote to Ousley, instructing him to "cease and desist [his] wrongful conduct" with respect to Melton. Id. at 19. Ousleys former counsel, L. Dowell Dellinger, replied to Meltons counsel in a letter dated May 24 ("Dellinger Letter"). The Dellinger Letter provides, in part: If you are a golfer, you will know that golf is a game which teaches individuals to play by a strict set of rules. The game speaks volumes as to the measure of a man based upon how he chooses to play the game. Some play by most of the rules, some play by all of the rules, and some choose to disregard the rules in total. The manner in which a man approaches the game of golf is often the same manner in which he approaches the game of life. Mr. Melton chose to play in PGA section events while not employed as a golf professional, a violation of PGA rules for section events. Thus, he cheated. In my clients opinion, this makes Mr. Melton by definition a "cheater." Mr. Ousleys description of Mr. Melton as a cheater is thus accurate and truthful, a complete bar to any claim of tortious interference of contract [sic] or slander irregardless [sic] of my clients intentions. Mr. Ousleys opinion that Mr. Melton is a cheater will stick with him based upon your clients previous actions. Should anyone ask Mr. Ousley of his opinion of Mr. Melton, he will continue to describe Mr. Melton as a
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cheater. On the golf course or on the playground, once a cheater, always a cheater. I am reminded of a quote from Bob Feller: You figure they cheat at the ballpark, theyll cheat on the golf course, theyll cheat in business, and anything else in life. Players may laugh about it and say its funny, but right down in their heart [sic], they dont think its funny at all, and they have no respect for a person who cheats. I suggest if your client does not wish to be branded with the label "cheater" that he find gainful employment as a PGA professional before he applies to play in events for club professionals. Furthermore, should your client desire to change the minds of actual club professionals who play in the section events, he may desire to write a letter of apology for his inappropriate actions to each of those professionals, including Mr. Ousley. Id. at 20. On July 3, 2007, Melton filed a complaint against Ousley alleging two counts: defamation and tortious interference with his "relationship with his employer[.]" Id. at 13. Ousley filed a motion for summary judgment, a supporting brief, and his designation of evidence in support of that motion. Melton filed a response in opposition to summary judgment and a designation of evidence in support of his response. Ousley then filed a reply brief. The court held a hearing on August 13, 2009, and took the matter under advisement. On August 24, the court entered its order granting summary judgment in favor of Ousley. That order provides, in relevant part: Whether [Ousley] called [Melton] a "cheat" or "a cheater", or that [Ousley] "was cheating the system", is not critical to this Courts decision, because it is not in dispute that the plain, natural, and intended meaning of [Ousleys] statements was that [Melton] "was cheating the PGA classification system." *** The Indiana Section of the PGA, the National PGA Board of Control and the National PGA Board of Directors, all found that [Melton] was not eligibly employed and did not meet the requirements for an Indiana PGA
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Member A-6 classification for 2006 and 2007. A review of the income earned by [Melton] in 2005 and 2006 support the indisputable fact that [Melton] was earning his living by playing golf and not by teaching golf. That was true for 2005 and 2006. [Melton] did not meet the employment eligibility requirements for an A-6 classification in Indiana for 2006, and he failed to provide the Indiana Section of the PGA sufficient documentation to support his employment eligibility for an A-6 classification for 2007. Thats the truth. As a matter of law, [Ousley] is entitled to summary judgment on [Meltons] claim for defamation because [Ousleys] statements were true. [Melton] is also seeking to recover from [Ousley] based upon a claim of tortious interference with a business relationship. In order to recover for tortious interference, a plaintiff must show: (1) the existence of a valid relationship; (2) defendants knowledge of the existence of the relationship; (3) defendants intentional interference with that relationship; (4) the absence of justification; and (6) damages resulting from defendants wrongful interference with the relationship. Baker v. Tremco, 890 N.E.2d 73, 85 (Ind. Ct. App. 2008). Further, the Indiana Supreme Court has held that tortious interference with a business relationship requires the additional showing that a defendant acted illegally in achieving his end. Government Payment Service, Inc. v. Ace Bail Bonds, 854 N.E.2d 1205, (Ind. Ct. App. 2006) (citing Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003)[)]. Illegal conduct is an essential element of tortious interference with a business relationship and defamation does not satisfy the illegality requirement. Levee v. Beeching, 729 N.E.2d 215, 222 (Ind. Ct. App. 2000). [Melton] has not shown [Ousleys] conduct was illegal. His complaint alleges no conduct other than defamation. Furthermore, no evidence was presented to support the claim that [Ousley] interfered with any business relationship that [Melton] was involved in. In 2006 [Melton] was employed at the Country Oaks Country Club, though minimally, giving golf lessons. Nothing was presented to indicate that [Ousleys] statements impacted [Meltons] ability to teach golf lessons at Country Oaks in 2006. In fact, [Melton] continued to teach golf lessons through a golf academy that he established at the Country Oaks Country Club in 2007 and no evidence was presented to indicate that [Ousleys] actions impacted [Meltons] ability to teach golf lessons at County [sic] Oaks in 2007.

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Finally, [Ousleys] actions in no way interfered with [Meltons] income from playing golf. [Melton] continued to play in tournaments in 2006 and in 2007, and the majority of his earnings continued to come from playing in tournaments. As a matter of law, [Ousley] is therefore entitled to summary judgment on [Meltons] claim for tortious interference with a business relationship because [Ousleys] conduct was not illegal and because the evidence failed to establish that [Ousley] interfered in any business relationship of [Melton]. Id. at 6-8. Melton now appeals. DISCUSSION AND DECISION Standard of Review Melton appeals from the trial courts grant of summary judgment in favor of Ousley. Our standard of review for summary judgment appeals is well established: When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment a matter of law." In answering these questions, the reviewing court construes all factual inferences in the non-moving partys favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact. Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009) (citations omitted). We may affirm a summary judgment ruling if it is sustainable on any legal theory or basis found in the evidentiary matter designated to the trial court. Tony v. Elkhart County, 918 N.E.2d 363, 367 (Ind. Ct. App. 2009). The party appealing from a summary judgment decision has the burden of persuading this court that the grant or
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denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009). We review questions of law de novo, and therefore we give no deference to the trial courts interpretation. Id. Issue One: Defamation5 Melton contends that the trial court erred when it granted summary judgment in favor of Ousley on the defamation claim. Specifically, he contends that the trial court erroneously determined that Ousleys statements are not susceptible to a defamatory meaning because the statements at issue were true. statements were true, thus establishing a complete defense. The law of defamation was created to protect individuals from reputational attacks. Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2009), trans. denied. A defamatory communication is defined as one that ",,tends so to harm the reputation of another as to lower him in estimation of the community or to deter a third person from associating or dealing with him." Id. (citing Doe v. Methodist Hosp., 690 N.E.2d 681, 686 (Ind. 1997) (quoting Restatement (Second) of Torts

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