                                  Nov 26 2014, 10:41 am


FOR PUBLICATION

ATTORNEYS FOR APPELLANTS:            ATTORNEYS FOR APPELLEES
                                     NATIONAL SALES COMPANY, INC., and
MARK F. CRINITI                      RODGER ANDERSON:
PAUL EDGAR HAROLD
LaDue Curran & Kuehn LLC             REBECCA BUTLER POWER
South Bend, Indiana                  AMBER J. BRESSLER
                                     Butler Power Law, P.C.
                                     Elkhart, Indiana

                                     ATTORNEYS FOR APPELLEES CAMCO
                                     MANUFACTURING, INC., and NORM
                                     GEIBLE:

                                     JAMES M. LEWIS
                                     MARK D. KUNDMUELLER
                                     Tuesley Hall Konopa LLP
                                     South Bend, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

CRYSTAL VALLEY SALES, INC.,          )
CHARLES KLINE, and NANCY KLINE,      )
                                     )
      Appellants-Plaintiffs,         )
                                     )
             vs.                     )    No. 20A04-1402-PL-83
                                     )
JONATHAN ANDERSON, NATIONAL          )
SALES COMPANY, INC., RODGER          )
ANDERSON, CAMCO MANUFACTURING,       )
and NORM GEIBLE,                     )
                                     )
      Appellees-Defendants.          )
                       APPEAL FROM THE ELKHART SUPERIOR COURT
                             The Honorable Evan S. Roberts, Judge
                                 Cause No. 20D01-1302-PL-50


                                           November 26, 2014


                                  OPINION - FOR PUBLICATION


CRONE, Judge

                                              Case Summary

        Crystal Valley Sales, Inc. (“Crystal Valley”)1 appeals the trial court’s dismissal of its

civil conspiracy claims against National Sales Company, Inc., Rodger Anderson, Camco

Manufacturing, Inc., and Norm Geible (collectively “Appellees”) for failure to state a claim.2

Crystal Valley contends that its amended complaint sufficiently states a claim against

Appellees for civil conspiracy, and Appellees assert that a civil conspiracy allegation is

insufficient absent an allegation of an underlying tort. Finding that Crystal Valley’s amended

complaint failed to sufficiently allege an underlying tort against Appellees, we affirm.




        1
           Crystal Valley’s majority shareholders Charles Kline and Nancy Kline are parties of record in the
proceedings below and in this appeal. Ind. Appellate Rule 17(A). However, because the allegations in the
amended complaint are framed on behalf of Crystal Valley as an entity and not in terms of the Klines in their
individual capacities, we address the arguments accordingly.

        2
           Jonathan Anderson is a party of record and participated in the proceedings below. Ind. Appellate Rule
17(A). Because Crystal Valley’s claims against him were not part of the dismissal order, he is not participating
in this appeal and did not file a brief.

                                                      2
                       Facts and Procedural History

The facts as alleged in Crystal Valley’s amended complaint are as follows:

10.   Crystal Valley warehouses and sells a variety of products to various OEM
      [original equipment] manufacturers in Elkhart, Indiana, including RV
      manufacturers, manufactured-home builders, cargo-trailer dealers, and
      marine-craft fabricators.

11.   Crystal Valley’s business is highly competitive without much product
      differentiation amongst competitors. As a result, Crystal Valley and its
      competitors rely significantly on the goodwill they generate through
      representative contact with their customers and suppliers and by keeping
      sensitive customer, supplier, and other business information confidential.

12.   [Jonathan] Anderson began working for Crystal Valley in July 2002.

13.   From July 2002 through June 30, 2007, J. Anderson served as a sales
      manager for Crystal Valley.

14.   From July 1, 2007 through February 15, 2013, J. Anderson was Crystal
      Valley’s Vice President and general Manager, and was also one of three
      shareholders in the company. J. Anderson is currently still an owner of
      Crystal Valley, holding a 5% percent [sic] interest in the company at all
      times since July 1, 2007.

15.   At all times since July 1, 2007, the remaining 95% of Crystal Valley has
      been owned by Charles Kline and Nancy Kline.

16.   As Crystal Valley’s Vice President and General Manager, J. Anderson
      had contact with Crystal Valley’s customers in the OEM industry,
      including, but not limited to, Keystone RV (“Keystone”) and RV Surplus
      and Salvage, Inc. n/k/a RV Parts Nation (“RV Parts”).

17.   For many of Crystal Valley’s customers, J. Anderson was Crystal
      Valley’s primary sales representative and frequently worked at the
      customer’s facility performing cycle-counting for the products that
      Crystal Valley sold to the customer.

18.   Through his contacts with Crystal Valley’s customers, J. Anderson
      generated goodwill between Crystal Valley and its customers while
      working for, and receiving compensation from, Crystal Valley.

                                     3
19.   Through his contacts with Crystal Valley’s customers and also through
      his work as Crystal Valley’s Vice President and General Manager, J.
      Anderson also learned confidential information about Crystal Valley’s
      customers, including, but not limited to: contact information, product
      specifications, customer priority, buying patterns, rates of usage, payment
      history, and pricing information.

20.   As Crystal Valley’s Vice President and General Manager, J. Anderson
      also had contact with Crystal Valley’s suppliers, including, but not
      limited to, Camco Manufacturing, Inc. (“Camco”).

21.   Through his contacts with Crystal Valley’s suppliers, J. Anderson
      generated goodwill between Crystal Valley and its suppliers while
      working for, and receiving compensation from, Crystal Valley.

22.   Through his contacts with Crystal Valley’s suppliers and also through his
      work as Crystal Valley’s Vice President and General Manager, J.
      Anderson also learned confidential information about Crystal Valley’s
      suppliers including, but not limited to: supplier identity, net-pricing
      information, profit margins, and credit terms.

                       The Employment Agreement

23.   On July 1, 2007, Crystal Valley and J. Anderson entered into a Stock and
      Employment Agreement (the “Agreement”). …

24.   Section 5 of the Agreement (the “Non-competition Provision”) contains
      the following restrictive covenants against J. Anderson:

      [Noncompete. During his employment and for one year thereafter, J.
      Anderson agrees not to engage directly or indirectly in competition with
      Crystal Valley by doing business or assisting another person or enterprise
      in soliciting any customer of Crystal Valley on behalf of another business
      or enterprise other than for Crystal Valley or by soliciting or placing
      orders with any of Crystal Valley’s suppliers for critical products
      purchased by Crystal Valley from that supplier for the preceding twelve
      months.]

….




                                      4
        While employed at Crystal Valley, J. Anderson diverted supplier
                Camco to his dad’s company, National Sales

26.   While still employed as Crystal Valley’s Vice President and General
      Manager, J. Anderson diverted one of Crystal Valley’s critical suppliers,
      Camco, to National Sales, for the purpose of competing against Crystal
      Valley.

….

28.   From November 2007 through February 1, 2013, Crystal Valley
      warehoused and sold Camco products to the OEM market in Elkhart,
      Indiana.

29.   During the entire period of Camco and Crystal Valley’s business
      relationship, J. Anderson was Crystal Valley’s primary contact with
      Camco.

30.   At all relevant times, J. Anderson’s primary contact at Camco was Norm
      Geible.

31.   Since 2008, Norm Geible has known that J. Anderson had a non-compete
      agreement with Crystal Valley.

32.   During the time that Crystal Valley was distributing Camco’s products,
      Norm Geible worked closely with J. Anderson.

33.   During the time that Crystal Valley was distributing Camco’s products, J.
      Anderson regularly advised Norm Geible and Camco regarding
      improvements to Camco products.

34.   Norm Geible and Camco relied on J. Anderson’s advice regarding
      improvements to Camco products.

35.   Norm Geible and Camco valued J. Anderson’s input and advice
      regarding product developments and improvements.

36.   Norm Geible and Camco benefited from J. Anderson advising on new
      products form Camco.

37.   Through his relationship with Camco, J. Anderson generated goodwill
      with Camco on behalf of Crystal Valley, while working for, and being

                                     5
      compensated by, Crystal Valley.

38.   Through his relationship with Camco, J. Anderson also learned
      confidential business information related to Camco, including, but not
      limited to, net-pricing information, profit margins, and credit terms.

39.   From 2007 through 2012, Crystal Valley’s sales of Camco products
      steadily increased.

40.   Crystal Valley’s sales of Camco products reached an all-time high in
      2012.

41.   On December 4, 2013, [sic] despite these increased sales, and while still
      under contract with Crystal Valley, Camco signed a distribution
      agreement with National Sales, which would become effective February
      1, 2013.

42.   National Sales is owned and operated by J. Anderson’s father, [Rodger]
      Anderson.

43.   Unlike J. Anderson, R. Anderson has no experience selling Camco
      products to the OEM industry in Elkhart.

44.   On or about January 3, 2013, Camco notified Crystal Valley that Camco
      would be terminating Crystal Valley as its distributor.

45.   After terminating Crystal Valley, Norm Geible solicited J. Anderson to
      advise on new and/or improved Camco products that Camco planned to
      sell through National Sales.

46.   After terminating Crustal Valley, Norm Geible solicited J. Anderson to
      write down Crystal Valley’s delivery schedule for the benefit of National
      Sales.

47.   After terminating Crystal Valley, Norm Geible solicited J. Anderson to
      provide customer information for the benefit of National Sales.

48.   Norm Geible solicited J. Anderson (as set forth in paragraphs 45-47
      above) knowing that J. Anderson was an employee and shareholder of
      National Sales [sic].

49.   Norm Geible solicited J. Anderson (as set forth in paragraphs 45-47

                                     6
      above) knowing that J. Anderson had a non-compete agreement with
      Crystal Valley.

50.   After learning that Camco had terminated Crystal Valley and would be
      switching to National Sales, and while still an employee and shareholder
      of Crystal Valley, J. Anderson advised Camco regarding new and/or
      improved products that Camco planned to sell through National Sales.

51.   After learning that Camco had terminated Crystal Valley and would be
      switching to National Sales, and while still an employee and shareholder
      of Crystal Valley, J. Anderson shared customer information with Camco,
      for the benefit of National Sales.

52.   J. Anderson actively diverted Camco to National Sales for the purposes
      of competing against his employer, Crystal Valley.

53.   J. Anderson, R. Anderson, Norm Geible, and Camco planned, conspired,
      and worked together to move Camco’s business from Crystal Valley to its
      competitor, National Sales.

J. Anderson also sold and attempted to sell competitive products to Crystal
            Valley’s current customers on behalf of National Sales

54.   While employed with Crystal Valley, J. Anderson also sold and attempted
      to sell competitive products to Crystal Valley’s current customers, RV
      Parts, for the benefit of National Sales.

….

56.   Crystal Valley sells RV Parts a variety of products, including but not
      limited to, tables, chairs, tire carriers, and scissor jacks.

57.   In or around the fall of 2012, while employed with Crystal Valley, J.
      Anderson, alongside his father, R. Anderson, sold tables and chairs to RV
      Surplus for the benefit of National Sales.

58.   From fall of 2012 up until his termination from Crystal Valley, J.
      Anderson, alongside his father, R. Anderson, also made multiple attempts
      to sell tire carriers to RV Surplus, for the benefit of National Sales.

59.   Upon information and belief, while still employed by Crystal Valley, J.
      Anderson sold and/or attempted to sell tire carriers and scissor jacks to

                                     7
              another Crystal Valley customer, Keystone, for the benefit of National
              Sales.

       ….

       60.    On Friday, February 15, 2013, Crystal Valley terminated J. Anderson.

       ….

       64.    On Sunday, February 17, 2013, J. Anderson eventually returned his
              company computer, phone, and iPad to Crystal Valley. By that time,
              however, J. Anderson had already wiped his phone and computer clean,
              ported his telephone number, and deleted Crystal Valley emails and other
              information from his work computer.

       65.    J. Anderson has diverted Crystal Valley’s business and suppliers to
              National Sales.

       66.    By stealing Crystal Valley property and wiping his phone and computer
              clean, there is a real and substantial threat that, unless enjoined, J.
              Anderson will continue to divert Crystal Valley business and suppliers to
              National Sales and otherwise breach his contractual and other obligations
              to Crystal Valley.

       67.    By diverting Crystal Valley’s business and suppliers to National Sales, J.
              Anderson has and will continue to cause Crystal Valley to lose business
              and has and will continue to damage Crystal Valley’s goodwill.

       68.    The damage that Crystal Valley has suffered and will continue to suffer,
              especially to its goodwill and business reputation, is difficult, if not
              impossible, to calculate.

Appellants’ App. at 73-75, 78-82.

       The amended complaint designated four counts, three against Jonathan Anderson (for

breach of contract, breach of fiduciary duty, and breach of loyalty) and one against all

defendants (Appellees plus Jonathan Anderson) for civil conspiracy. Crystal Valley filed a

petition for a temporary restraining order. After a hearing on the petition, the parties filed a


                                              8
proposed agreed temporary restraining order, which the trial court granted.

        Crystal Valley amended its complaint, and Camco and Geible filed a motion to dismiss

pursuant to Indiana Trial Rule 12(B)(6) for failure to state a claim upon which relief can be

granted. After Rodger Anderson and National Sales filed their responsive pleading, they filed

a motion to dismiss under Trial Rule 12(B)(6) and a motion for judgment on the pleadings

under Trial Rule 12(C).

        The trial court held a hearing on the motions and issued an order in favor of Appellees,

dismissing the complaint against them without prejudice. Crystal Valley filed a motion under

Indiana Trial Rule 54, asking the trial court to enter final judgment on the dismissal. The trial

court granted the motion, and final judgment was entered in favor of all defendants except

Jonathan Anderson. Crystal Valley now appeals.

                                        Discussion and Decision3

        Crystal Valley challenges the trial court’s dismissal of its claims against Appellees for

failure to state a claim upon which relief can be granted. Because a Trial Rule 12(B)(6) motion

to dismiss involves a pure question of law, we apply a de novo standard when reviewing a trial




        3
           We note that in their briefs, both Crystal Valley and National Sales use footnotes rather than citation
sentences to cite sources in contravention of Indiana Appellate Rule 22, which requires that parties adhere to
Bluebook rules concerning citation form. See The Bluebook: A Uniform System of Citation R. B2, at 4
(Columbia Law Review Ass’n et al. eds., 19th ed. 2010) (“In non-academic legal documents, citations appear
within the text of the document as full sentences or as clauses within sentences directly after the propositions they
support.”).


                                                        9
court’s grant or denial of the motion.4 Gordon v. Purdue Univ., 862 N.E.2d 1244, 1250 (Ind.

Ct. App 2007).

        A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a
        complaint: that is, whether the allegations in the complaint establish any set of
        circumstances under which a plaintiff would be entitled to relief. Thus, while
        we do not test the sufficiency of the facts alleged with regards to their adequacy
        to provide recovery, we do test their sufficiency with regards to whether or not
        they have stated some factual scenario in which a legally actionable injury has
        occurred. A court should accept as true the facts alleged in the complaint, and
        should not only consider the pleadings in the light most favorable to the plaintiff,
        but also draw every reasonable inference in favor of the non-moving party.
        However, a court need not accept as true allegations that are contradicted by
        other allegations or exhibits attached to or incorporated in the pleading.

Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006) (citations and

quotation marks omitted). In determining whether any facts will support the claim, we look

only to the complaint and may not resort to any other evidence in the record. Town of

Plainfield v. Town of Avon, 757 N.E.2d 705, 710 (Ind. Ct. App. 2001), trans. denied (2002).

We need not accept as true conclusory, nonfactual assertions or legal conclusions. Richards &

O’Neill, LLP v. Conk, 774 N.E.2d 540, 547 (Ind. Ct. App. 2002).

        Crystal Valley submits that Appellees conspired with Jonathan Anderson to unlawfully

divert business to its competitor National Sales. The amended complaint specifies only one

theory of recovery against Appellees:             “Count IV – Defendants’ Civil Conspiracy.”

Appellants’ App. at 86. “Civil conspiracy is defined as a combination of two or more persons

[who take] concerted action[] to accomplish an unlawful purpose or to accomplish some


        4
          We note that National Sales and Rodger Anderson also filed a motion for judgment on the pleadings
pursuant to Indiana Trial Rule 12(C), to which we also apply a de novo standard of review. Veolia Water
Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 5 (Ind. 2014).


                                                   10
purpose, not in itself unlawful, by unlawful means.” Huntington Mortg. Co. v. DeBrota, 703

N.E.2d 160, 168 (Ind. Ct. App. 1998). “[C]ivil conspiracy is not an independent cause of

action.” Heyser v. Noble Roman’s, Inc., 933 N.E.2d 16, 20 (Ind. Ct. App. 2010), trans. denied

(2011). Rather, civil conspiracy must be alleged with an underlying tort. Id. Crystal Valley

failed to do so in its amended complaint. Instead, its three remaining counts comprised

allegations against Jonathan Anderson only, not against Appellees. Count I alleges that

Jonathan Anderson breached his noncompete agreement; Count II alleges that Jonathan

Anderson breached his fiduciary duty; and Count III alleges that Jonathan Anderson breached

his duty of loyalty. Appellants’ App. at 83-86. Appellees correctly assert that they were not

parties to the noncompete agreement and that they did not otherwise owe a duty of loyalty or

other fiduciary duty to Crystal Valley.

       Relying on Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228 (Ind. 1994), Crystal

Valley contends that its conspiracy claim is not dependent upon its pleading an underlying tort

by each and every alleged conspirator. In Winkler, a discharged employee filed a contract

action against his former employer and also alleged that the employer and its successor

business engaged in a conspiracy to tortiously interfere with the employee’s fifteen-year

employment contract. Id. at 1230-31. Our supreme court affirmed a summary judgment order

in favor of the defendants on the claims of civil conspiracy and tortious interference with a

contract. In conducting its analysis, the Winkler court addressed the plaintiff’s civil conspiracy

and tortious interference allegations together, emphasizing that “civil conspiracy is not an

independent cause of action.” Id. at 1234.


                                              11
       Crystal Valley did not include an allegation that Appellees committed an underlying

tort. Notwithstanding, it relies heavily on language tucked in a Winkler footnote contrasting

the practical inability of a party to tortiously interfere with his own contract with the party’s

ability to conspire with others to tortiously interfere with his own contract. Id. at 1234 n.7

(citing Wade v. Culp, 107 Ind. App. 503, 508, 23 N.E.2d 615, 617 (1939)). However, the

complaint must allege some unlawful act underlying the defendants’ concerted action. In other

words, it is not enough that the alleged conspirators acted in concert and that the result

amounted to a breach of a contractual or fiduciary duty by one of them; rather, Winkler makes

it clear that there must be some intentional underlying act of wrongdoing by each of the co-

conspirators. This is not to say that each alleged conspirator must participate at an equal level,

for rarely would that be the case in any conspiracy. Nevertheless, at a minimum, the plaintiff

must put each defendant on notice of the unlawful act that he/she/it is alleged to have agreed to

commit. In Winkler, the plaintiff specifically alleged that the defendants conspired to

tortiously interfere with his employment contract, and our supreme court held that while the

defendants did act in concert and while the result amounted to a breach of plaintiff’s contract,

tortious interference was not established because the plaintiff failed to show an absence of

justification for defendants’ actions. Id. at 1235-36.

       As stated, here, Crystal Valley did not directly allege any underlying tort against

Appellees in its four-count amended complaint. “Count IV – Defendants’ Civil Conspiracy”5

lists the following allegations:


       5
           In the amended complaint, “Defendants” refers to Appellees plus Jonathan Anderson.

                                                   12
       97.    Defendants worked in concert to unlawfully divert business from Crystal
              Valley to its competitor, National Sales.

       98.    Defendants diverted business from Crystal Valley to its competitor,
              National Sales, by unlawful means.

       99.    Defendants have committed civil conspiracy, which has caused and will
              continue to cause Crystal Valley damages.

Appellants’ App. at 86-87.

       On its face, Count IV not only fails to delineate the differences in positions among the

various Appellees, but it also fails to specify the varying “unlawful” actions taken or means

used by each Appellee. For example, with regard to positions, National Sales and Rodger

Anderson were never in privity of contract with Crystal Valley; Camco was a contracted

supplier for Crystal Valley but had terminated its contract with notice before its contract with

National Sales became effective. Geible and Jonathan Anderson had been in a longstanding

business relationship, whereas (until February 2013) Rodger Anderson’s relationship with

Jonathan appears to have been merely familial.

       In attempting to ascertain whether the amended complaint as a whole raises factual

allegations sufficient to state a claim for an underlying tort against Appellees, we note that

Count IV incorporates by reference the allegations contained in the remainder of the amended

complaint. As noted, Counts I through III allege breach of contract and breaches of fiduciary

duty and duty of loyalty, all against Jonathan Anderson. As between Crystal Valley and

Appellants, privity of contract and fiduciary relationships were lacking. Nevertheless, Crystal

Valley appears to allege that the lack of contractual and/or fiduciary relationships is not an

impediment to liability.

                                             13
       In other words, Crystal Valley contends that its civil conspiracy count is sufficient to

state a claim that Appellees “helped” Jonathan Anderson breach his contractual and/or

fiduciary duties to Crystal Valley. To the extent that the amended complaint bears some

vestiges of a claim of tortious interference with Jonathan Anderson’s noncompete agreement,

we will examine the allegations against the required elements of tortious interference with a

contract, which are: “(1) the existence of a valid and enforceable contract; (2) the defendant’s

knowledge of the existence of the contract; (3) the defendant’s intentional inducement of the

breach of the contract; (4) the absence of justification; and (5) damages resulting from

defendant’s wrongful inducement of the breach.” Guinn v. Applied Composites Eng’g, Inc.,

994 N.E.2d 1256, 1267 (Ind. Ct. App. 2013) (citations omitted), trans. denied (2014).

       In its dismissal order, the trial court found as follows with respect to tortious

interference with a contract:

       [E]ven without a specific claim [of tortious interference with a contract],
       Plaintiff does not allege sufficient facts to support such a claim. Although
       Plaintiff alleges a valid contract and [Appellees’] knowledge of the contract,
       Plaintiff has not alleged the [Appellees’] intentional inducement of the breach
       of the contract or the absence of justification. Plaintiff alleges only that
       [Appellees] solicited information from [Jonathan Anderson] after Camco had
       terminated using Plaintiff. Further, Plaintiff’s claimed damages is the loss of
       Camco business. Plaintiff’s only allegations regarding [Appellees] here relate
       to after the Camco/Plaintiff relationship was terminated. Moreover, Plaintiff’s
       allegations may be sufficient to allege conspiracy, but they lack the required
       underlying tort and are not sufficient to allege a tortious interference with
       contract.

Appellants’ App. at 12.

       We agree that the amended complaint sufficiently alleges that there existed between

Crystal Valley and Jonathan Anderson a valid and enforceable employment contract which

                                             14
contained a noncompete provision. With respect to Appellees’ knowledge of the noncompete

agreement, the amended complaint addresses only Geible (and, presumably vicariously,

Geible’s employer Camco). See Id. at 55, 57 (“30. At all relevant times, J. Anderson’s

primary contact at Camco was Norm Geible. 31. Since 2008, Norm Geible has known that J.

Anderson had a non-compete agreement with Crystal Valley. …. 49. Norm Geible solicited J.

Anderson … knowing that J. Anderson had a non-compete agreement with Crystal Valley.”).

Crystal Valley makes no similar allegation concerning any knowledge by Rodger Anderson (or,

presumably vicariously, National Sales) about Jonathan Anderson’s noncompete agreement.

Instead, the amended complaint simply asserts that National Sales is owned and operated by

Jonathan Anderson’s father Rodger Anderson and that, unlike Jonathan, Rodger “has no

experience in selling Camco products to the OEM industry in Elkhart,” and it further asserts

that “J. Anderson diverted supplier Camco to his dad’s company.” Id. at 55-56. These

assertions do not amount to an allegation that Rodger Anderson had knowledge of Jonathan

Anderson’s noncompete agreement. See Stocker v. Cataldi, 483 N.E.2d 461, 463 (Ind. Ct.

App. 1985) (mere family relationship insufficient to hold mother liable for son’s actions where

mother had no actual knowledge of son’s intoxication when she entrusted vehicle to son),

trans. denied (1986). In short, the allegations against Rodger Anderson and National Sales are

seemingly based solely on the father/son relationship. Because there is no adequate factual

allegation concerning their knowledge of the noncompete agreement, it follows that there is no

allegation of intentional inducement to breach it.




                                             15
       With respect to whether Camco through Geible intentionally induced Jonathan

Anderson to breach his noncompete agreement, we cannot piece together a sufficient factual

allegation. The amended complaint simply avers, “J. Anderson, R. Anderson, Norm Geible,

and Camco planned, conspired, and worked together to move Camco’s business from Crystal

Valley to its competitor, National Sales.” Appellants’ App. at 57. This allegation addresses

conspiracy but does not address the requisite intentional inducement to breach a contract.

Camco provided notice to Crystal Valley of its termination of their vendor agreement and, as

such, was free to “move” its business as desired without contractual impediment. Thus,

Crystal Valley failed to sufficiently allege that Camco’s decision to move its business

amounted to acting without justification in an attempt to intentionally interfere with Jonathan

Anderson’s contract.

       To the extent that the allegation that Appellees “helped” Jonathan Anderson breach his

fiduciary duties resembles a claim of aiding and abetting a fiduciary in the breach of a fiduciary

duty, we note that Indiana does not recognize such a cause of action. See DiMaggio v.

Rosario, 950 N.E.2d 1272, 1274 (Ind. Ct. App. 2011) (affirming trial court’s grant of Rule

12(B)(6) dismissal on grounds that Indiana does not recognize a cause against third-party

nonfiduciary for aiding fiduciary in breach of duty, but finding that even if such cause were

recognized, complaint failed to sufficiently allege elements of underlying breach). We believe

that the decision to adopt a new cause of action for aiding and abetting in the breach of

fiduciary duty is a decision better left to the legislature or our supreme court. However, as the

DiMaggio court noted, cases from jurisdictions that recognize such a tort require that the


                                              16
nonfiduciary act knowingly or intentionally when joining the fiduciary in an enterprise

constituting a breach of fiduciary duty. Id. at 1276. We find that the amended complaint does

not sufficiently allege that Appellees acted with such knowledge or intent concerning Jonathan

Anderson’s fiduciary duties to Crystal Valley. As previously discussed, with respect to

Appellees’ knowledge concerning Jonathan Anderson’s duties, whether contractual or

fiduciary, the amended complaint alleges only that Geible was aware of Jonathan’s

noncompete agreement. It fails to allege knowledge by any of the Appellees (except possibly

Geible)6 concerning Jonathan Anderson’s position as a Crystal Valley shareholder, and it

likewise fails to allege that Appellees were aware of Jonathan’s fiduciary duties attendant to

that position. With respect to Rodger Anderson, we find no allegation that he knowingly or

intentionally aided and abetted his son in breaching a fiduciary duty and note the complaint’s

allegation that Rodger was a novice in the business with no expertise as to the industry’s

workings. In short, we are left to infer knowledge and intent based solely on the father/son

relationship. Thus, even if Indiana recognized such a tort, we find the allegations insufficient.

        In sum, Crystal Valley’s amended complaint fails to sufficiently allege against

Appellees a recognized, underlying tort to accompany its civil conspiracy allegations as

required by Indiana law. Thus, the trial court properly dismissed the action without prejudice

pursuant to Indiana Trial Rules 12(B)(6) and 12(C). Consequently, we affirm.




        6
         We note the following ambiguous allegation: “48. Norm Geible solicited J. Anderson (as set forth in
paragraphs 45-47 above) knowing that J. Anderson was an employee and shareholder of National Sales.”
Appellants’ App. at 57 (emphasis added).


                                                   17
      Affirmed.

RILEY, J., and MATHIAS, J., concur.




                                      18
