                                                                                        FILED
                                                                                   08/31/2017, 9:30 am
                                                                                        CLERK
                                                                                    Indiana Supreme Court
                                                                                       Court of Appeals
                                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Shaw R. Friedman                                           ANDREW C. KESLING,
Friedman & Associates, P.C.                                INDIVIDUALLY AND AS
La Porte, Indiana                                          TRUSTEE OF THE ANDREW C.
                                                           KESLING TRUST DATED MARCH
John A. Conway                                             28, 2001, AND THE ANDREW C.
Stephen M. Judge                                           KESLING TRUST DATED MARCH
LaDue Curran & Kuehn LLC                                   28, 2001
South Bend, Indiana
                                                           John P. Higgins
                                                           Katz & Korin, PC
                                                           Indianapolis, Indiana

                                                           ATTORNEYS FOR APPELLEE
                                                           TP ORTHODONTICS, INC.
                                                           Sean M. Clapp
                                                           Ian T. Keeler
                                                           Clapp Ferrucci
                                                           Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017            Page 1 of 26
Christopher K. Kesling, DDS,                               August 31, 2017
MS, Adam Kesling and Emily                                 Court of Appeals Case No.
Kesling, individually and                                  46A03-1701-MI-64
derivatively on behalf of TP                               Appeal from the LaPorte Superior
Orthodontics, Inc.,                                        Court
Appellants-Plaintiffs,                                     The Honorable Richard R.
                                                           Stalbrink, Jr., Judge
        v.                                                 Trial Court Cause No.
                                                           46D02-1001-MI-15
Andrew C. Kesling, individually
and as Trustee of the Andrew C.
Kesling Trust dated March 28,
2001, and the Andrew C.
Kesling Trust dated March 28,
2001,
Appellees-Defendants

        and

TP Orthodontics, Inc.,
Intervenor-Appellee




Crone, Judge.




Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017               Page 2 of 26
                                                Case Summary
[1]   Christopher K. Kesling, DDS, MS, Adam Kesling, and Emily Kesling,

      individually and on behalf of TP Orthodontics, Inc. (collectively “the Sibling

      Shareholders”), appeal the trial court’s entry of summary judgment in favor of

      intervenor TP Orthodontics, Inc. (“TPO”), and defendants Andrew C. Kesling,

      individually and as Trustee of the Andrew C. Kesling Trust Dated March 28,

      2001, and the Andrew C. Kesling Trust Dated March 28, 2001 (collectively

      “Andrew”).1 This matter involves extremely contentious litigation following

      the initiation of a lawsuit by three sibling minority shareholders against their

      brother, who is the majority shareholder and president of the family

      orthodontics manufacturing and distributing business. The Sibling

      Shareholders raised numerous claims against Andrew alleging, among other

      things, breach of fiduciary duties and mismanagement of TPO.


[2]   Upon TPO’s motion following an investigation of the claims by a disinterested

      special litigation committee appointed by TPO’s board of directors, and after a

      stay of proceedings to resolve discovery disputes between the parties, the trial

      court entered summary judgment, dismissing several of the Sibling

      Shareholders’ claims and determining that the four remaining claims were

      derivative claims for alleged injuries to TPO. The court further concluded, in




      1
        Although there are two additional “appealed orders” issued by the trial court and included in our record
      (order denying TPO’s motion to strike and order granting the Sibling Shareholders’ motion for leave to file a
      surreply), none of the parties address those orders in their briefs on appeal. Likewise, we decline to address
      them.

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                          Page 3 of 26
      its discretion, that the Sibling Shareholders would not be permitted to proceed

      directly in their own names to redress the derivative injuries allegedly suffered

      by TPO, but that TPO, acting through its board, retained the authority to

      pursue those claims. On appeal, the Sibling Shareholders assert that the trial

      court abused its discretion in declining to allow them to proceed in a direct

      action against Andrew to redress the derivative injuries allegedly suffered by

      TPO. Additionally, the Sibling Shareholders assert that the trial court abused

      its discretion in determining that TPO, acting through its board, is the proper

      party to prosecute any derivative claims on TPO’s behalf. Finding no abuse of

      discretion, we affirm.


                                    Facts and Procedural History2
[3]   In the most recent appeal involving these same parties, our supreme court gave

      the following brief recitation of facts:


                 [TPO] is a closely-held corporation headquartered in Westville,
                 Indiana, and the Kesling family business. Andrew Kesling,
                 President of TPO, owns fifty-one percent of TPO’s voting stock.
                 Collectively, Andrew’s siblings Christopher (DDS, MS), Adam,
                 and Emily Kesling own eleven percent.[3] In January 2010, the
                 sibling minority shareholders filed, both individually and
                 derivatively on behalf of TPO, a complaint against Andrew in the
                 LaPorte Superior Court alleging wrongdoing causing a
                 significant decrease in shareholder value. The trial court granted



      2
          We held oral argument on July 18, 2017, in Indianapolis. We thank counsel for their excellent advocacy.
      3
        The record indicates that there are a total of ten shareholders. Those shareholders who are not parties to
      the current litigation own approximately 38% of TPO’s voting stock and 64.2% of its nonvoting stock.

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                           Page 4 of 26
               TPO’s motion to intervene, and pursuant to Ind. Code § 23-1-32-
               4, TPO’s board of directors formed a special litigation committee
               [(“SLC”)]to investigate the derivative claims. After meeting
               thirty times and conducting forty interviews, the SLC ultimately
               recommended that only some derivative claims be pursued ….


      TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985, 988-89 (Ind. 2014) (footnote

      omitted).


[4]   Specifically, in August 2011, the SLC issued a report containing its

      determinations that it was not in TPO’s best interest to pursue most of the

      claims alleged in the complaint (hereinafter “the rejected claims”) but that it

      was in TPO’s best interest to pursue four of the claims (hereinafter “the

      remaining claims”).4 Thereafter, TPO moved to dismiss the rejected claims and

      moved for summary judgment as to the Sibling Shareholders’ rights regarding

      the remaining claims. As to the remaining claims, TPO asserted that those

      claims involved alleged injuries to TPO and therefore are derivative claims.

      TPO cited the well-established rule that individual shareholders may not

      maintain actions at law in their own names to redress injuries to the

      corporation, and further that the closely held corporation exception to that




      4
        In their complaint, the Sibling Shareholders alleged that Andrew had acted wrongfully in a number of ways,
      such as exchanging currency at a loss to the company, failing in corporate governance—specifically, failing to
      implement counseling or sensitivity training at TPO, which resulted in several sexual-harassment claims and
      litigation—improperly charging travel and entertainment expenses to TPO, taking improper advances on
      royalty and patent payments, and using TPO funds for personal expenses. The Sibling Shareholders claimed
      that Andrew’s actions caused economic loss to the company and its shareholders. The SLC rejected most of
      the claims but found that it was, in fact, in TPO’s best interest to pursue claims regarding Andrew’s breach of
      fiduciary duty to TPO based on royalty and patent payments, using TPO’s funds for personal expenses, and
      failing in corporate governance. Appellants’ App. Vol. 2 at 122-24.

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                          Page 5 of 26
      general rule enunciated in Barth v. Barth, 659 N.E.2d 559, 560 (Ind. 1995),

      should not apply here. Thus, TPO asserted that the Sibling Shareholders

      should not be discretionarily permitted by the trial court to pursue the

      remaining claims in a direct action against Andrew. TPO designated in support

      of its motion a heavily redacted version of the SLC report based upon TPO’s

      desire to protect privileged attorney-client communications and attorney work

      product potentially contained within the report. The parties agreed to stay the

      proceedings while the Sibling Shareholders pursued a motion to compel the full,

      unredacted SLC report. This discovery dispute led to several more years of

      litigation, which was finally resolved by our supreme court, and the case was

      remanded to the trial court in 2014. See TP Orthodontics, 15 N.E. 3d at 998.5


[5]   On remand, and in accordance with our supreme court’s directive, the trial

      court ordered TPO to produce a modified redacted version of the SLC report.

      The Sibling Shareholders then filed their response to TPO’s motion to dismiss

      and for summary judgment in November 2015. The Sibling Shareholders

      challenged the SLC’s determinations by designating evidence and affidavits to

      support their assertion that SLC failed to conduct a good-faith investigation of

      their claims and that the SLC members were not disinterested. The Sibling

      Shareholders also argued that the trial court “can and should allow” them to



      5
       As observed by our supreme court, the current litigation is only the most recent in a series of intrafamilial
      disputes. See TP Orthodontics, Inc., 15 N.E.3d at 988 n.1 (citing Kesling v. Kesling, 967 N.E.2d 66 (Ind. Ct.
      App. 2012) (siblings challenged transfer of TPO shares from their father to Andrew), trans. denied; Kesling v.
      Kesling, 546 F. Supp. 2d 627 (N.D. Ind. 2008) (father contested same transfer of TPO shares); Kesling v.
      Kesling, 955 N.E.2d 781 (Ind. Ct. App. 2011) (siblings intervened in Andrew’s divorce proceedings
      challenging disposition of assets of other corporations closely held by the Kesling family), trans. denied).

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                            Page 6 of 26
      bring the remaining claims in a direct action pursuant to the Barth exception to

      the general rule regarding derivative claims, and that TPO failed to meet its

      burden to show that the exception should not apply. Appellants’ App. Vol. 2 at

      143, 154.


[6]   On May 16, 2016, the trial court entered its order granting TPO’s motion to

      dismiss and/or for summary judgment. Specifically, the trial court determined

      that the Sibling Shareholders did not meet their burden to show that the

      members of the SLC were not disinterested or did not conduct a good-faith

      investigation pursuant to Indiana Code Section 23-1-32-4(c), and therefore the

      SLC’s findings were conclusive as to the rejected claims and those claims were

      dismissed.6 The trial court further concluded that all the Sibling Shareholders’

      remaining claims were for the benefit and on behalf of TPO and thus derivative.

      The court acknowledged that it had the discretion to permit the Sibling

      Shareholders to proceed directly against Andrew on the remaining claims

      pursuant to the Barth exception; however, the court concluded that the Barth

      exception did not apply and that the Sibling Shareholders would not be allowed

      to proceed in a direct action against Andrew regarding the remaining claims but




      6
        There is ample caselaw regarding the SLC process codified by Indiana Code Section 23-1-32-4 (discussed
      more thoroughly in section 2 of this opinion) and the presumption that the decision of an SLC is conclusive
      against the shareholder attempting to bring a claim, unless the shareholder can prove that the SLC was not
      disinterested or that its determination was not made after a good-faith investigation. See generally In re
      Guidant S’holders Derivative Litig., 841 N.E.2d 571, 575 (Ind. 2006). However, in this appeal, the Sibling
      Shareholders challenge the trial court’s judgment only as it pertains to their right to pursue the remaining
      claims directly, and while they “still have concerns about the SLC investigation, they do not challenge the
      [rejected claims’] dismissal in this appeal.” Appellants’ Br. at 18 n.3; see also Appellants’ Br. at 15 n.1
      (conceding that they “are not seeking to resurrect” the rejected claims).

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                         Page 7 of 26
      that TPO, as a board, retained the authority to pursue those derivative claims

      on TPO’s behalf.7 Upon TPO’s motion, and finding no just reason for delay,

      the trial court entered final judgment on December 15, 2016. This appeal

      ensued.


                                       Discussion and Decision
[7]   We begin by noting that the issues raised on appeal are much narrower than

      those considered by the trial court below. The Sibling Shareholders do not

      challenge the trial court’s dismissal of the rejected claims, nor do they challenge

      the trial court’s determination that the remaining claims asserted against

      Andrew are derivative, rather than direct in nature.8 They maintain that,

      pursuant to our supreme court’s decision in Barth, as shareholders of a closely

      held corporation, they should be permitted to pursue the remaining four

      derivative claims in a direct action against Andrew. In other words, the Sibling

      Shareholders seek to proceed directly in their individual names regarding the

      remaining claims to redress the derivative injury to TPO, and they argue that

      the trial court abused its discretion in entering summary judgment and




      7
        Due to imprecise wording of the final paragraphs of the trial court’s judgment, the Sibling Shareholders
      sought clarification as to who retained the authority to pursue the remaining claims against Andrew and
      redress the alleged injury to TPO. On September 27, 2016, the trial court issued an order clarifying that
      TPO, acting through its board, retained the authority to prosecute the remaining derivative claims. See
      Appellants’ App. Vol. 2 at 40.
      8
        Direct claims are claims to vindicate rights belonging to individual shareholders and typically involve
      claims to enforce a right to vote, compel dividends, prevent oppression or fraud against minority
      shareholders, inspect corporate books, and compel shareholder meetings. G & N Aircraft, Inc. v. Boehm, 743
      N.E.2d 227, 234 (Ind. 2001). Derivative claims are brought to redress an injury sustained by, or enforce a
      duty owed to, a corporation. Id.

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                          Page 8 of 26
      determining that they would not be permitted to do so. Additionally, they

      challenge the trial court’s determination that TPO’s board of directors is a

      proper party to prosecute the derivative claims on TPO’s behalf.


           Section 1 – The trial court did not abuse its discretion in
                 declining to apply the Barth exception here.
[8]   The Sibling Shareholders assert that the trial court abused its discretion in

      entering summary judgment and declining to allow them to proceed by direct

      action against Andrew on the remaining derivative claims. We observe that a

      trial court’s order granting summary judgment comes to us “cloaked with a

      presumption of validity.” Town of Lapel v. City of Anderson, 17 N.E.3d 330, 332

      (Ind. Ct. App. 2014) (citation omitted). On appellate review of the trial court’s

      order, we construe all facts and reasonable inferences in favor of the nonmoving

      party to determine whether the moving party has shown, by way of designated

      evidence, that there is no genuine issue as to any material fact, such that it is

      entitled to judgment as a matter of law. Id. Where the dispute is one of law

      rather than fact, however, we apply a de novo standard of review to those

      materials designated to the trial court for summary judgment. Id. A trial court’s

      findings on summary judgment aid our review by giving insight into the

      rationale for its decision, but they are neither required nor binding, and they do

      not change our standard of review. Milbank Ins. Co. v. Ind. Ins. Co., 56 N.E.3d

      1222, 1229 n.6 (Ind. Ct. App. 2016). We will affirm the trial court’s entry of

      summary judgment if it can be sustained on any basis supported by the

      evidence. Id. The party that lost in the trial court bears the burden of

      Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 9 of 26
       persuading us that the trial court erred. Morris v. Crain, 71 N.E.3d 871, 879

       (Ind. Ct. App. 2017).


[9]    Indiana recognizes the “‘well-established general rule’ that shareholders of a

       corporation may not maintain actions at law in their own names to redress an

       injury to the corporation, even if the injury has the effect of impairing the value

       of their stock.” Barth v. Barth, 693 N.E.2d 954, 957 (Ind. Ct. App. 1998) (citing

       Barth v. Barth, 659 N.E.2d 559, 560 (Ind. 1995)), trans. denied. However,

       Indiana recognizes a limited exception to the general rule preventing

       shareholders from maintaining actions in their own names and grants trial

       courts the discretion to permit a shareholder in a closely held corporation to

       bring a direct action to recover for injury to the corporation, even when such a

       claim would be derivative. Specifically, “in 1995 [our supreme court] held that

       a shareholder in a close corporation need not always bring claims of corporate

       harm as derivative actions. Rather, in such an arrangement, the shareholders

       are more realistically viewed as partners, and the formalities of corporate

       litigation may be bypassed.” G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 236

       (Ind. 2001) (citing Barth, 659 N.E.2d at 561 & n.6).


[10]   Thus,

               [i]n the case of a closely held corporation, the court in its
               discretion may treat an action raising derivative claims as a direct
               action, exempt it from those restrictions and defenses applicable
               only to derivative actions, and order an individual recovery, if it
               finds that to do so will not (i) unfairly expose the corporation or
               the defendants to a multiplicity of actions, (ii) materially

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 10 of 26
                prejudice the interests of creditors of the corporation, or (iii)
                interfere with a fair distribution of the recovery among all
                interested persons.


       Barth, 693 N.E.2d at 958 (quoting PRINCIPLES OF CORPORATE GOVERNANCE §

       7.01(d) (AM. LAW INST. 1994)).9 Where these factors are not at issue, the court

       may allow a direct action in place of derivative action. See G & N Aircraft, 743

       N.E.2d 227 (allowing a direct action suit to be filed by shareholders in a closely

       held corporation where Barth factors posed no concern). However, “the Barth

       court cautioned that the exception [does] not abrogate the rule” and “it is

       important to keep in mind the principles which gave rise to the rule requiring

       derivative actions will sometimes be present in litigation involving closely-held

       corporations.” Hubbard v. Tomlinson, 747 N.E.2d 69, 72 (Ind. Ct. App. 2001)

       (quoting Barth, 659 N.E.2d at 562).


[11]   While a trial court’s decision regarding application of the Barth exception is

       clearly reviewed on appeal only for an abuse of discretion, the question remains

       as to how we square the abuse of discretion standard of review with the

       summary judgment standard. Specifically, the parties here disagree as to who

       has the burden to establish the applicability (or nonapplicability) of the Barth

       exception to the facts presented. The Sibling Shareholders argue that, based

       upon the summary judgment standard, TPO as the summary judgment movant




       9
        The parties agree that TPO meets the definition of a “closely held corporation,” see Barth, 659 N.E.2d at 562
       n.5 (A closely held corporation “is one which typically has relatively few shareholders and whose shares are
       not generally traded in the securities market.”)

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                        Page 11 of 26
       has the burden to present evidence on each of the Barth factors and establish

       that there is no genuine issue of material fact that the exception does not apply.

       TPO counters that because the general rule is that shareholders may not bring a

       direct action in their own names to redress derivative claims, the Sibling

       Shareholders have the burden to present evidence to establish that the Barth

       exception does apply. We agree with TPO.


[12]   We find the procedural framework for raising an affirmative defense, such as

       the statute of limitations defense, in the summary judgment context to be

       conceptually analogous. In V. Ganz Builders & Development Co. v. Pioneer Lumber,

       Inc., 59 N.E.3d 1025, 1032 (Ind. Ct. App. 2016), trans. denied (2017), we

       discussed that when a statute of limitations defense is asserted, the party

       asserting the defense has the burden to show that the action was commenced

       outside the statutory period. Only when the party asserting the defense makes

       such showing properly does the burden shift to the other party to establish facts

       in avoidance of the defense. Id; see also Abbott v. Bates, 670 N.E.2d 916, 923

       (Ind. Ct. App. 1996) (recognizing that a summary judgment nonmovant

       asserting an affirmative defense has the burden to designate evidence in

       response to summary judgment from which the trial court can infer the

       elements of the defense).


[13]   Here, it is undisputed that the Sibling Shareholders’ remaining four claims

       against Andrew are derivative claims alleging injuries to TPO and thus, as a

       general rule, they may not be pursued by direct action. Because the Sibling

       Shareholders are essentially raising a defense/exception to the general rule of

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 12 of 26
       how derivative claims are pursued, they have the burden to present facts

       showing that the limited exception to the rule applies. Only after the Sibling

       Shareholders have made such a showing would the burden shift to TPO to

       designate facts in avoidance of the exception.


[14]   We find further support for TPO’s position in the language of Section 7.01(d) of

       the American Law Institute’s Principles of Corporate Governance as adopted by

       Barth. We read section 7.01(d) as clearly placing the burden on a shareholder

       who wishes to bring a derivative claim by direct action to prove that the lawsuit

       comes within the exception to the general rule prohibiting shareholders from

       maintaining actions at law in their own names to redress an injury to the

       corporation. Specifically, as noted earlier, that section provides that the trial

       court may, in its discretion, allow a derivative claim to proceed by direct action

       only if it finds that to do so “will not (i) unfairly expose the corporation to a

       multiplicity of actions, (ii) materially prejudice the interests of creditors, or (iii)

       interfere with a fair distribution of recovery among all interested persons.”

       PRINCIPLES OF CORPORATE GOVERNANCE § 7.01(d) (AM. LAW INST. 1994)

       (emphasis added). It is counterintuitive to think that the corporation, here

       TPO, would have the burden to show that a direct lawsuit “will not” implicate

       the section 7.01(d) factors because the corporation’s position would be precisely

       the opposite. Rather, the plain language of section 7.01(d) places the burden on

       the shareholders advocating for the exception, here the Sibling Shareholders, to

       prove that a direct action will not implicate the policy concerns enunciated by




       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017     Page 13 of 26
       the section 7.01(d) factors.10 Thus, even in the summary judgment context, and

       regardless of which party is the movant, a shareholder who wishes to

       circumvent the general rule has the burden to demonstrate that no genuine issue

       of material fact remains as to the applicability of the Barth exception.11 The

       Sibling Shareholders have failed to meet that burden here.


[15]   Indeed, a balance of the Barth factors and the relative interests involved

       supports the trial court’s discretionary decision to decline to allow the Sibling

       Shareholders to proceed directly/individually on the four remaining derivative

       claims. First, the Sibling Shareholders have failed to present sufficient facts to

       show that permitting a direct action will not unfairly expose TPO or Andrew to

       a multiplicity of actions. The undisputed facts indicate that TPO has a total of

       ten shareholders, only four of whom are involved in the current litigation. The

       claims here allege injury to TPO and thus injury not only to the three Sibling

       Shareholders but also to the six additional shareholders (other than Andrew)

       who are not parties to this litigation. The Sibling Shareholders simply postulate




       10
         See Lightner v. Lightner, 266 P.3d 539, 548 (Kan. Ct. App. 2011) (holding that trial court has no discretion to
       permit shareholders to pursue derivative claims in direct action unless shareholders can prove that
       corporation is closely held and that direct action will not implicate section 7.01(d) factors).
       11
          The Sibling Shareholders rely solely on language used by another panel of this Court in Cutshall v. Barker,
       733 N.E.2d 973, 983 (Ind. Ct. App. 2000), to support their contention that TPO had the summary judgment
       burden to demonstrate that the Barth exception does not apply. We note that Cutshall was not a summary
       judgment case, and we further find the unique factual and procedural history in Cutshall to be distinguishable
       and inapposite. Our decision in Marcuccilli v. Ken Corp., 766 N.E.2d 444, 451 (Ind. Ct. App. 2002), although
       also not a summary judgment case, is more on point. In Marcuccilli, we affirmed the trial court’s dismissal of
       the shareholder plaintiffs’ direct action against the corporation, stating that “[t]he minority shareholders
       made no attempt to plead any of the policy considerations [enunciated in Barth] that would favor a direct,
       rather than a derivative action.” Therefore, the court held that it was the plaintiffs’ burden to plead and prove
       the applicability of the Barth exception.

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                           Page 14 of 26
       that there are no outstanding litigation threats, but they have not shown that

       permitting them to proceed directly will not unfairly expose TPO and Andrew

       to multiple lawsuits regarding the same or similar conduct.


[16]   Next, there is no evidence that a direct action by the Sibling Shareholders will

       not materially prejudice the interests of creditors of the corporation. Permitting

       direct recovery when the action is properly a derivative action fails to protect

       corporate creditors (because the proceeds of such action go to the plaintiffs) and

       avoids the legal ordering of creditors and investors. Our supreme court noted in

       Barth that “because a corporate recovery in a derivative action will benefit

       creditors while a direct recovery by a shareholder will not, the protection of

       creditors principle could well be implicated in a shareholder suit against a

       closely-held corporation with debt.” 659 N.E.2d at 562. The Sibling

       Shareholders have presented only bald assertions, not facts, to show that the

       protection of creditors principle will not be implicated here.


[17]   Finally, and we think most significantly, the Sibling Shareholders have not

       established that a direct action will not interfere with a fair distribution of

       recovery among all interested persons. Again, it is undisputed that there are six

       shareholders (other than Andrew) whose interests would not be protected if the

       Sibling Shareholders were allowed to proceed and recover damages from

       Andrew directly and individually. The trial court was not required to accept as

       credible the Sibling Shareholders’ unenforceable “pledge” that “any recovery




       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 15 of 26
       they receive will be rolled back into the company” such that there is no danger

       to the rights of the nonparty shareholders. Appellants’ App. Vol. 2 at 173.12


[18]   Notably, cases in which the Barth exception has been discretionarily applied by

       a trial court to allow plaintiffs to proceed directly on derivative claims have

       generally involved closely held corporations with fewer shareholders than in the

       instant case. See G & N Aircraft, 743 N.E.2d 227 (plaintiff one of three

       shareholders); W & W Equip. Co. v. Mink, 568 N.E.2d 564 (Ind. Ct. App. 1991)

       (plaintiff one of three shareholders, and the only shareholder injured), trans,

       denied. In sum, under the facts presented here, we cannot say that the trial

       court’s decision declining to allow the Sibling Shareholders to bring the

       remaining derivative claims in a direct action constituted an abuse of discretion.


          Section 2 – The trial court did not abuse its discretion in
       determining that TPO, acting through its board of directors, is
          a proper party to prosecute the remaining claims against
                         Andrew on TPO’s behalf.
[19]   Even if they are not permitted to pursue a direct action against Andrew on the

       remaining claims, the Sibling Shareholders assert that the trial court abused its




       12
          Although there appeared to be some confusion at oral argument, to be clear, when a trial court permits a
       minority shareholder in a closely held corporation to pursue a derivative claim by direct action, any recovery
       obtained would be an “individual recovery” with the benefits inuring “solely” to that shareholder and not to
       the corporation or to any nonparty shareholders. See Barth, 659 N.E.2d at 562. In other words, the Sibling
       Shareholders would get to keep any monetary damages obtained as a result of the remaining derivative
       claims if permitted to proceed in their own names by direct action against Andrew. This is as opposed to the
       derivative claims being pursued by derivative action, in which the recovery would go to the corporation as a
       whole and not to the individual shareholders. See PricewaterhouseCoopers, LLP v. Massey, 860 N.E.2d 1252,
       1257 (Ind. Ct. App. 2007), trans. denied.

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                         Page 16 of 26
       discretion in determining that TPO, acting through its board of directors, is a

       proper party to prosecute those claims on TPO’s behalf. They complain that

       TPO’s board, which is “entirely under the control of Andrew … has neither the

       independence nor the motivation to pursue the claims against him,” and thus

       putting the board in charge of the litigation is akin to putting the fox in charge

       of the henhouse. Appellants’ Br. at 26. The Sibling Shareholders maintain that

       while the disinterested SLC could have brought the remaining claims on TPO’s

       behalf, the SLC is no longer in existence. They argue that, absent the SLC,

       they should be the ones to pursue the remaining claims derivatively on TPO’s

       behalf and that TPO’s board is definitely not a proper party to do so. In short,

       the Sibling Shareholders assert that they “should control the litigation unless

       and until TPO appoints a [new] disinterested committee to manage the claims.”

       Reply Br. at 13.


[20]   We are not unsympathetic to the Sibling Shareholders’ concerns. However, the

       Sibling Shareholders cite no authority, and there appears to be none, to support

       their assertion that the trial court abused its discretion in concluding that TPO’s

       board is a proper party to prosecute the remaining claims. Indiana’s Business

       Corporation Law, Indiana Code Section 23-1-32-1, discusses generally the right

       of a shareholder to commence a derivative proceeding to enforce the rights of

       the corporation. Indiana Code Section 23-1-32-4 provides that a board of

       directors may establish an SLC to investigate such claims and determine

       whether the corporation has a legal or equitable right or remedy and whether it

       is in the corporation’s best interests to pursue that right or remedy, or to dismiss


       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 17 of 26
a proceeding that seeks to assert that right or remedy on the corporation’s

behalf. Specifically, that section provides in relevant part:


        (a) Unless prohibited by the articles of incorporation, the board
        of directors may establish a committee consisting of three (3) or
        more disinterested directors or other disinterested persons to
        determine:


        (1) whether the corporation has a legal or equitable right or
        remedy; and


        (2) whether it is in the best interests of the corporation to pursue
        that right or remedy, if any, or to dismiss a proceeding that seeks
        to assert that right or remedy on behalf of the corporation.


        (b) In making a determination under subsection (a), the
        committee is not subject to the direction or control of or
        termination by the board. A vacancy on the committee may be
        filled by the majority of the remaining members by selection of
        another disinterested director or other disinterested person.


        (c) If the committee determines that pursuit of a right or remedy
        through a derivative proceeding or otherwise is not in the best
        interests of the corporation, the merits of that determination shall
        be presumed to be conclusive against any shareholder making a
        demand or bringing a derivative proceeding with respect to such
        right or remedy, unless such shareholder can demonstrate that:


        (1) the committee was not “disinterested” within the meaning of
        this section; or


        (2) the committee's determination was not made after an
        investigation conducted in good faith.


Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017    Page 18 of 26
       Ind. Code § 23-1-32-4. The official comments to this section further explain:


               Because (a) the rights and remedies enforced in a derivative
               proceeding belong to the corporation, not the shareholder
               plaintiff, and (b) a corporation’s rights and remedies are among
               its “business and affairs” to be “managed under the direction of”
               the board of directors, IC 23-1-33-1(b), the [Business Law
               Survey] Commission believed that the decision whether and to
               what extent to investigate and prosecute corporate claims, like
               other questions of corporate policy and management, should in
               most instances be subject to the judgment and control of the
               board. This section, which has no [Revised Model Business
               Corporation Act] counterpart, was added to establish procedures
               by which disinterested directors or other disinterested persons
               designated by the board can evaluate whether the corporation has
               a right or remedy and, if so, whether it is in the best interests of
               the corporation to pursue it.


       Id (emphasis added).


[21]   Contrary to the Sibling Shareholders’ assertions, there is nothing in the above

       statute or its commentary that prohibits a corporate board from controlling

       litigation on behalf of the corporation after an SLC has determined that pursuit

       of a right or remedy is in the corporation’s best interests. In fact, the language

       seems to contemplate exactly that scenario. Indeed, the establishment of a

       disinterested committee in the first place is optional, not mandatory. See Ind.

       Code § 23-1-32-4 (cmt. a). It appears that once this optional procedure is

       implemented and the committee performs its function of evaluating the claims

       and submitting its presumably conclusive recommendation, the committee’s




       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 19 of 26
       purpose would be fulfilled, and it is the corporate board that may then assume

       control of the litigation of any viable claims at that point.


[22]   In support of the trial court’s conclusion that TPO’s board is a proper party to

       control the litigation, TPO points to cases that state generally, “when a

       corporation suffers injury, either from corporate insiders or … from a third

       party, it is the corporate entity—not the individual shareholders—who retains

       the cause of action.” Massey v. Merrill Lynch & Co., 464 F.3d 642, 646 (7th Cir.

       2006) (citing Scott v. Anderson Newspapers, Inc., 477 N.E.2d 553, 563 (Ind. Ct.

       App. 1985)). Moreover, our supreme court has explicitly recognized that

       Indiana Code Section 23-1-32-4 expresses a strong preference for board

       management and direction of whether to pursue a legal right on a corporation’s

       behalf. See In re Guidant S’holders Derivative Litig., 841 N.E.2d 571, 575 (Ind.

       2006).


[23]   Again, we understand the Sibling Shareholders’ concerns with having TPO’s

       board quarterback the litigation of the remaining claims. However, due to the

       serious nature of the claims against Andrew that were approved by the SLC, we

       trust that TPO’s board is aware that it has not only the authority to pursue the

       remaining claims, but also the responsibility to do so in the best interests of the

       corporation. Moreover, the Sibling Shareholders are not without remedy in the

       event that TPO’s board shirks this responsibility.


[24]   Directors of Indiana corporations owe fiduciary duties to their corporations and

       are accountable to the corporation and its shareholders if they breach their


       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 20 of 26
       duties of good faith, ordinary care, and fair dealing. Ind. Code § 23-1-35-1. To

       establish personal liability for a director, the plaintiff must plead particularized

       facts that the director’s breach or failure to perform the duties of the director’s

       office constitutes “willful misconduct or recklessness.” Ind. Code § 23-1-35-

       1(e); In re ITT Derivative Litig., 932 N.E.2d 664, 669 (Ind. 2010). Thus, as noted

       by TPO, “[i]f the directors of TPO ‘sit on’ the Remaining Claims, or settle them

       ‘for a nominal amount’” as feared by the Sibling Shareholders, the Sibling

       Shareholders would have claims against the members of the board of directors

       individually. TPO’s Br. at 37.


[25]   Finally, we would note the protection offered by Indiana Code Section 23-1-32-

       3(a), which provides in relevant part that “[a] proceeding commenced under

       this chapter may not be discontinued or settled without court approval.”

       Hence, the trial court here will remain actively involved in the ultimate and fair

       resolution of the four remaining claims against Andrew. Based upon the record

       before us, we have not been given sufficient reason to second-guess the trial

       court’s discretionary decisions in this case. Therefore, the trial court’s entry of

       summary judgment and its order clarifying that TPO’s board is a proper party

       to pursue the remaining claims are affirmed.


[26]   Affirmed.


       Baker, J., concurs.
       Barnes, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 21 of 26
                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher K. Kesling, DDS,                               Court of Appeals Case No.
MS, Adam Kesling and Emily                                 46A03-1701-MI-64
Kesling, individually and
derivatively on behalf of TP
Orthodontics, Inc.,


Appellants-Plaintiffs,

        v.

Andrew C. Kesling, individually
and as Trustee of the Andrew C.
Kesling Trust dated March 28,
2001, and the Andrew C.
Kesling Trust dated March 28
2001,


Appellees-Defendants,

         and




Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017               Page 22 of 26
       TP Orthodontics, Inc.,

       Intervenor-Appellee




       Barnes, Judge, dissenting with separate opinion.


[27]   I respectfully dissent. I am fully aware that the law generally mandates

       derivative actions in circumstances such as these. However, I believe this case,

       on these facts, in this legal posture, compels that the exception to that rule

       articulated by our supreme court should apply. See Barth v. Barth, 659 N.E.2d

       559 (Ind. 1995).


[28]   I take a slightly different stance with the standard of review than the majority.

       Because I believe the trial court clearly had to resolve disputed facts and did so

       entirely on a paper record, we should owe no deference to the trial court’s

       decision. See GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001). Also,

       under the ordinary summary judgment standard, our review should be de novo.

       See Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2016) (stating de novo standard

       of review for summary judgment rulings).


[29]   I simply see the elements of Barth and the facts here in a different light than my

       colleagues. The danger that allowing a direct action will expose TPO to a


       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 23 of 26
       multiplicity of suits, to me is negligible, if not non-existent. There are six other

       shareholders, besides Andrew and the Sibling Shareholders, who might bring

       such actions. One of these, David Kesling, is, and always been, aligned with

       Andrew. See Appellant’s App. Vol. II p. 181. The other five shareholders all

       were notified in 2010 that this lawsuit was filed. Since that time, not one has

       participated in, or expressed any desire to participate in, the suit. Given the

       passage of time and the non-interest shown, coupled with the fact the statute of

       limitations would bar most, if not all, new actions,13 this Barth factor weighs in

       favor of the Sibling Shareholders.


[30]   Second, I find no evidence in the record that TPO’s creditors would be

       materially prejudiced by a direct action. The corporation is solvent, and there is

       no hint of financial difficulty. See id. at 214. This lawsuit practically confirms

       that fact—it is unlikely there would be such concern over a faltering entity. The

       American Law Institute (“ALI”), drafters of Section 7.01(d) of the Principles of

       Corporate Government, which the Barth court adopted verbatim, stated, “In

       general, when a direct action is brought on behalf of the entire class of injured

       shareholders and the corporation’s solvency is not in question, there is less reason to



       13
         The four claims that the SLC recommended pursuing against Andrew were based on breach of fiduciary
       duty, conversion, constructive fraud, and breach of contract. The statute of limitations for breach of fiduciary
       duty and conversion is two years. See Ind. Code § 34-11-2-4; Farmers Elevator Co. of Oakville, Inc. v. Hamilton,
       926 N.E.2d 68, 79 (Ind. Ct. App. 2010) (breach of fiduciary duty), trans. denied; Estate of Verdak v. Butler Univ.,
       856 N.E.2d 126, 133 (Ind. Ct. App. 2006) (conversion). The statute of limitations for constructive fraud is six
       years. See I.C. § 34-11-2-7(4); Wells v. Stone City Bank, 691 N.E.2d 1246, 1250 (Ind. Ct. App. 1998), trans.
       denied. A breach of contract claim ordinarily is governed by a ten-year statute of limitations. See I.C. § 34-11-
       2-11. Even this claim, however, might be governed by a shorter statute of limitations. See Whitehouse v.
       Quinn, 477 N.E.2d 270, 273-74 (Ind. 1985) (noting that applicable statute of limitations is governed by the
       nature or substance of the cause of action, not its stated legal theory).

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017                            Page 24 of 26
       insist that the action be brought derivatively.” PRINCIPLES OF CORPORATE

       GOVERNMENT § 7.01, cmt. e (emphasis added). Moreover, “If necessary, the

       court can still protect creditors of the corporation by directing that adequate

       provision be made for the firm’s creditors out of any recovery.” Id. Given

       TPO’s solvency and the trial court’s ability to fashion remedies to protect

       creditors in the event TPO is insolvent, I believe this factor weighs in favor of

       permitting the Sibling Shareholders to pursue a direct action.


[31]   Third, there is no indication that permitting a direct action will interfere with a

       fair distribution of recovery among all interested persons. The five “unaligned”

       shareholders do not and have not expressed any interest in this matter, and the

       Sibling Shareholders have executed sworn affidavits promising to return any

       money recovered to TPO. Although my colleagues question the credibility of

       the Sibling Shareholders in this regard, I believe that as the case is now situated,

       in the context of a summary judgment motion, the court was required to accept

       the affidavits as credible. See Hughley, 15 N.E.3d at 1003-04 (holding that even

       “self-serving” affidavits filed in response to a summary judgment motion must

       be accepted as credible). In any event, having now made that representation, I

       believe the trial court would be able to fashion an equitable remedy holding the

       Sibling Shareholders to that representation if their direct lawsuit was successful.

       Ultimately, trial courts have broad powers of equity to fashion flexible remedies

       in cases involving close corporations. G & N Aircraft, Inc. v. Boehm, 743 N.E.2d

       227, 244 (Ind. 2001).




       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017   Page 25 of 26
[32]   Most importantly, allowing a direct action here is entirely consistent, in my

       view, with the policy reasons for allowing such actions. The Sibling

       Shareholders are squarely against the Board and Andrew, which, to charitably

       characterize it, have been stonewalling these claims for approximately seven

       years. The Board is clearly not disinterested. In 2006 Andrew, then holding

       51% of TPO’s voting stock, removed his father, Pete, and one of the Sibling

       Shareholders, Chris, from the seven-member Board.14 At that time, three other

       persons were added to the Board, in addition to Andrew, David, and two pre-

       existing members. Andrew will continue to control 51% of the voting stock. It

       is my belief that our supreme court and the ALI have plainly spoken as to a key

       factor in allowing a direct action: “whether the corporation has a disinterested

       board that should be permitted to consider the lawsuit’s impact on the

       corporation.” Barth, 659 N.E.2d at 562 (citing PRINCIPLES OF CORPORATE

       GOVERNMENT § 7.01, cmt. e). It is clear to me that TPO’s Board is not

       disinterested and should not, and given past history, cannot be entrusted to

       pursue the claims brought by the Sibling Shareholders and recommended for

       further prosecution by the SLC.


[33]   I vote to reverse the grant of summary judgment in favor of TPO with respect to

       not allowing the Sibling Shareholders to pursue a direct action against Andrew

       on the four claims recommended for prosecution by the SLC, and to remand

       with directions that the Sibling Shareholders be permitted to do so.



       14
            The Board had been increased from five to seven members two years earlier.

       Court of Appeals of Indiana | Opinion 46A03-1701-MI-64 | August 31, 2017          Page 26 of 26
