Burris v. Bottoms Up Scuba Indy, LLC

181 N.E.3d 998

Paul C. BURRIS III, Appellant-Defendant,

v.BOTTOMS UP SCUBA – INDY, LLC, Michael Ellis, and Renata Ellis, Appellee-Petitioners.

Court of Appeals Case No. 21A-CT-570

Court of Appeals of Indiana.

FILED December 21, 2021

Attorneys for Appellant: James A. Piatt, Anne Medlin Lowe, Williams & Piatt, LLC, Indianapolis, Indiana

Statement of the Case

Pyle, Judge.

[1] In this interlocutory appeal, Paul C. Burris, III ("Burris") appeals the trial court's order denying his motion to dismiss the complaint filed against him by Bottoms Up Scuba Indy, LLC ("Bottoms Up"), Michael Ellis ("Ellis"), and Renata Ellis ("Renata") (collectively, "the Bottoms Up Plaintiffs").¹ Burris argues that the trial court erred by denying his motion to dismiss, which had alleged that the Bottoms Up Plaintiffs’ lawsuit against him violated the anti-SLAPP (strategic lawsuit against public participation) statute. Concluding that the trial court did not err, we affirm the trial court's interlocutory order.

[2] We affirm.

Issue

Whether the trial court erred by denying Burris’ motion to dismiss.

Facts

[3] Bottoms Up is a scuba diving company with its principal office in Bargersville, Indiana. Ellis and his wife, Renata, are the owners of Bottoms Up, and they, along with Bottoms Up, were certified by the Professional Association of Diving Instructors ("PADI"). Ellis and Renata were certified "to instruct[,] for a fee, students interested in obtaining scuba diving certifications for both open water and [as] instructor[s]." (App. Vol. 2 at 103). Burris was a scuba student at Bottoms Up. In 2016, Burris completed the required scuba coursework at a facility where Ellis was also present, and Burris received his PADI membership and diving instructor's certification.

[4] In 2018, Burris apparently learned from the husband of a fellow diving instructor that Ellis had been forging paperwork that was submitted to PADI.² Burris phoned PADI to obtain a copy of his own certification paperwork that had been sent to PADI on his behalf. Burris’ PADI paperwork contained the name and business information for a physician whom Burris had not seen, and the paperwork showed that this physician had signed the paperwork to indicate that Burris had been cleared for diving. Burris believed that the handwriting looked like Ellis’ handwriting. "[C]oncerned that [he] would lose [his] instructor certification when th[e] forgery was discovered, ... [Burris] called PADI and notified them that [his] paperwork had been forged, that [he] had not had a physical, and that [he] had not been examined" by the physician listed on the form. (App. Vol. 2 at 37). Burris also contacted PADI via email, in which Burris accused Ellis of forging the physician's signature that had indicated that Burris had obtained the appropriate health clearance.

[5] In December 2018 and January 2019, PADI expelled Ellis, Renata, and Bottoms Up from the organization's membership. Thereafter, in May 2019, the Bottoms Up Plaintiffs filed a complaint against Burris. The Bottoms Up Plaintiffs filed amended complaints in December 2019 and July 2020. The Bottoms Up Plaintiffs raised claims of defamation, tortious interference with a business relationship, and tortious interference with a contract.

[6] In February 2020, Burris filed a motion to dismiss pursuant to the anti-SLAPP statute, INDIANA CODE § 34-7-7-5.³ Specifically, Burris argued that because any of his "allegedly defamatory or tortious statements were made in furtherance of [his] right of free speech in connection with a public issue, the statements were protected speech and [the Bottoms Up] Plaintiffs’ claims against [him] [we]re barred by Indiana's Anti-SLAPP statute." (App. Vol. 2 at 21). Burris also argued that his statements to PADI were made in good faith and with a reasonable basis in law and fact.

[7] As the anti-SLAPP statute requires that an anti-SLAPP motion to dismiss be treated as a motion for summary judgment,⁴ Burris attached designated evidence to his motion to dismiss. Specifically, Burris attached an affidavit from himself and from PADI employee Johnny Wetzstein ("Wetzstein"). In Burris’ affidavit, he averred that he had contacted PADI to tell them that Ellis had forged the physician's signature on his form because he had been concerned about losing his instructor certification and because he had believed that "Ellis's forgeries of [the] doctor's confirmations of an applicant's physical fitness for diving was a public safety issue and could be a matter of life and death." (App. Vol. 2 at 38). As part of Burris’ affidavit, he attached an email from a PADI employee, and that email indicated the physician's signature on Burris’ form had been forged.⁵ In Wetzstein's affidavit, he confirmed that the physician listed on Burris’ PADI medical history form could not be located. Wetzstein also averred that PADI had determined that Ellis had made false statements to PADI about his own medical history form and the forms of his wife and sons. Wetzstein's affidavit also generally asserted that a forgery on PADI paperwork could "raise a public safety concern." (App. Vol. 2 at 47).

[8] In the Bottoms Up Plaintiffs’ response to Burris’ anti-SLAPP motion to dismiss, they argued that Burris’ action of falsely telling PADI that Ellis had forged documents submitted to PADI was not protected under the anti-SLAPP statute. The Bottoms Up Plaintiffs asserted that Burris could not meet his burden, under the summary judgment standard applicable to an anti-SLAPP motion to dismiss, of showing that his statements to PADI were in furtherance of the constitutional right to free speech, were in connection with a public issue, or were made in good faith with a reasonable basis in law and fact. The Bottoms Up Plaintiffs also attached designated evidence, including an affidavit from Ellis in which he averred that he had not forged the physician's signature on the PADI paperwork. Their designated evidence also included affidavits from Renata and three other individuals who had received diving instruction at Bottoms Up, all of whom averred that Ellis had not signed the physician's signature on their form and that, instead, they had had their own physician sign the form.

[9] In January 2021, shortly before the hearing on Burris’ motion, Burris filed a notice of additional support for his anti-SLAPP motion to dismiss. He attached documents that he had obtained after filing his motion to dismiss in February 2020. Specifically, he attached an October 2020 letter from Scuba Diving International and a December 2020 wrongful death complaint filed by an unrelated party against Bottoms Up and other entities. Burris asserted that these documents showed that his act of telling PADI that he believed that Ellis had forged documents submitted to PADI involved a safety issue and constituted a public safety concern.

[10] The trial court held a hearing in January 2021. During the hearing, Burris argued that he had "a free speech right to contact PADI ... about his own application" and to tell PADI that there had been a forgery on his application. (Tr. Vol. 2 at 6). Burris also argued that his action was "in connection with a public issue" of "diver safety[.]" (Tr. Vol. 2 at 7). The Bottoms Up Plaintiffs argued that this case was not the type of case that the anti-SLAPP statute was intended to stop. Specifically, they argued that "this is not a lawsuit aimed at chilling Mr. Burris's first amendment rights." (Tr. Vol. 2 at 11). The Bottoms Up Plaintiffs also argued that Burris’ actions were not in furtherance of his First Amendment right to free speech and that Burris’ accusation of forgery was not in connection with a public issue.

[11] Thereafter, the trial court issued an order denying Burris’ anti-SLAPP motion to dismiss. The trial court determined that the "[c]ontrolling case on the issue" was Gresk v. Demetris , 96 N.E.3d 564 (Ind. 2018) and concluded that Burris had failed to meet the first of the two requirements applicable for showing that the anti-SLAPP statute applied to him. (App. Vol. 2 at 13). Specifically, the trial court concluded that Burris had "not ma[d]e the statement in furtherance of his right to free speech" and that his statement to PADI was "[n]ot [a] matter of public concern because the issue was privately reported to an organization and was not brought to the attention of the general public" and was instead "made to address a private grievance." (App. Vol. 2 at 13).

[12] Burris then filed a motion requesting the trial court to certify its order denying his anti-SLAPP motion to dismiss, and the trial court granted Burris’ motion to certify. Burris sought permission to file this interlocutory appeal, and this Court granted his request. Burris now appeals the denial of his anti-SLAPP motion to dismiss.

Decision

[13] Before we address Burris’ argument, we note that the Bottoms Up Plaintiffs did not file an Appellees’ brief. When an appellee fails to submit an appellate brief, " ‘we need not undertake the burden of developing an argument on the [A]ppellee's behalf.’ " Front Row Motors, LLC v. Jones , 5 N.E.3d 753, 758 (Ind. 2014) (quoting Trinity Homes, LLC v. Fang , 848 N.E.2d 1065, 1068 (Ind. 2006) ). Rather, " ‘we will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.’ " Front Row Motors , 5 N.E.3d at 758 (quoting Trinity Homes , 848 N.E.2d at 1068 ). "Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it." Front Row Motors , 5 N.E.3d at 758 (internal quotation marks and citation omitted).

[14] Burris argues that the trial court erred by denying his anti-SLAPP motion to dismiss. Specifically, he contends that "the trial court should have granted [his] [m]otion when he showed [that] his report to PADI was a lawful act in furtherance of his free speech right, related to a public issue, made in good faith, and reasonably based in law and fact." (Burris’ Br. 10). We disagree.

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