MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Nov 15 2017, 7:57 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Patrick F. O’Leary                                      Bradford R. Shively
Elkhart, Indiana                                        Jonathan R. Slabaugh
                                                        Sanders Pianowski, LLP
                                                        Elkhart, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jack A. Sheets,                                         November 15, 2017
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        20A03-1701-PL-161
        v.                                              Appeal from the Elkhart Superior
                                                        Court
A Progressive Realty, Inc.,                             The Honorable Evan S. Roberts,
d/b/a Myers Trust and David                             Judge
Myers,                                                  Trial Court Cause No.
Appellees-Defendants.                                   20D01-1305-PL-139




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017         Page 1 of 20
                                    Case Summary and Issue
[1]   Jack Sheets appeals the trial court’s entry of summary judgment in favor of

      David Myers and A Progressive Realty, Inc. (“Progressive”), in his action

      alleging tortious interference with an at-will employment contract. Sheets raises

      only one issue for our review which we restate as: whether the trial court erred

      in entering summary judgment in favor of Myers and Progressive. Concluding

      the trial court did not err, we affirm.


                                Facts and Procedural History
[2]   In 1976, Interra Credit Union (“Interra”)1 hired Sheets to serve as an assistant

      to the chief executive officer. Nine years later, Sheets was selected to replace

      his former boss and serve as the CEO and president of Interra. Sheets’ tenure

      lasted until 2013, during which time he helped grow Interra from “six

      employees and a few thousand members” to “150 employees [and] over 45,000

      members . . . .” Appellant’s Brief at 5.


[3]   In November 2007, Myers was asked to join Interra’s board of directors. Myers

      was a longtime veteran of the real estate industry, having founded Progressive2

      in 1985. Myers maintains a majority ownership of Progressive and serves as its

      president. Myers’ son, Andrew Myers, works for Progressive as an independent




      1
       Interra Credit Union originally opened its doors as Elkhart County Farm Bureau Cooperative Association
      Credit Union in 1932. Then, for what we can only assume are reasons of brevity, it changed its name to
      Elkhart County Farm Bureau Credit Union before becoming Interra Credit Union in 2008.
      2
          A Progressive Reality d/b/a Myers Trust deals in both commercial and residential real estate.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017             Page 2 of 20
      contractor. In becoming a member of Interra’s board of directors, Myers

      became subject to Interra’s bylaws, Interra’s code of ethics, and Indiana Code

      section 28-7-1-31.3(a)(b).3


[4]   In January 2008, both Sheets and Myers attended Interra’s planning meeting in

      Indianapolis. After presentations about potential expansion locations, the

      board of directors identified a location in Elkhart as a likely candidate. The

      board of directors instructed Sheets to proceed with planning the expansion and

      Sheets delegated the responsibility to Sanford Miller, Interra’s Vice President of

      Branch Administration and a member of the senior management team.4 Myers

      told Miller that his son, Andrew, could assist Miller in compiling demographic

      data about the possible expansion locations. Miller followed up with Andrew

      and acquired the relevant information. Andrew told Miller that he would not

      charge Interra for the data if they chose Progressive as their real estate broker.

      Myers also discussed possible expansion locations with Miller and visited

      Miller at Interra to discuss real estate prospects.




      3
          Indiana Code section 28-7-1-31.3 provides, in relevant part:

               (a) As used in this section, “official” means an individual who is or who was a director,
                   committee member, officer, or employee of a credit union.
               (b) An official of a credit union shall discharge the duties of the official’s position in good faith
                   and with the degree of diligence, care, and skill that an ordinarily prudent person would
                   exercise under similar circumstances in a like position . . . .
      4
        Sheets’ responsibility as CEO and president included supervising four vice-presidents composing Interra’s
      senior management team.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017                 Page 3 of 20
[5]   On February 14, 2008, Miller, Myers, and Andrew visited a property on

      Verdant Drive in Elkhart.5 Myers testified that he brought Miller to the Verdant

      Drive location on Andrew’s request. As Miller prepared to present to the board

      of directors his proposal for the Verdant Drive location, Andrew emailed the

      site’s listing agent, Robert Letherman, to determine Progressive’s commission

      for delivering a buyer. In his email, Andrew stated that Myers was behind the

      inquiry:


              Rob,
              My clients are bringing the property on Verdant before the their
              [sic] board tomorrow night. Hopefully you can wait on us.
              Two things my father instructed me I have to get for our office
              file: (and I am sorry he is a stickler)
              1. Property profile sheet from your office containing the price
                  and if there are any additional terms
              2. Letter indicating the buyer brokerage policy for this particular
                  property
              Thanks so much and I am sorry my father told me I had to get
              those two items, and well for now he is the boss[.]

      Appellant’s Corrected Appendix, Volume 3 at 124. Letherman responded he

      did not have a profile sheet for the property but advised that the price was

      $525,000. Andrew reminded Letherman that he had previously quoted a price

      of $495,000, and Letherman agreed, saying “I got 3 people looking at this lot.

      You are getting the best price. Good thing you got in early.” Id., Vol. 4 at 182.




      5
       Miller testified at a deposition that Andrew brought “a number of properties to consider” and that he did
      not remember how many he, Myers, and Andrew visited. Appellant’s Corrected Appendix, Volume 4 at
      165.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017          Page 4 of 20
      Letherman also informed Andrew that the buyer brokerage policy was ten

      percent.6 Andrew later emailed Miller and informed him that he did not believe

      any attempts to negotiate the price with the seller would be worthwhile.


[6]   On March 20, 2008, Miller presented his recommendation to Interra’s board of

      directors. The board of directors voted in favor of Miller’s proposal and offered

      $495,000 for the property on Verdant Drive. Myers abstained from the vote.7

      Interra’s offer was made conditional upon obtaining the Indiana Department of

      Financial Institutions’ approval to construct a service office on the property.

      Interra’s application for such approval, signed on July 23, 2008, provided:


               I, [Jack A. Sheets], President of Interra Credit Union . . . do
               hereby attest to the best of my knowledge, that Mr. David Myers,
               Board member, owns [Progressive], and that his son, Mr. Andy
               Myers, is employed by [Progressive], and that Andy Myers
               represented Interra Credit Union in the purchase of the land for
               the new branch. Andy Myers and [Progressive] will receive a
               normal 10% commission from the seller from the purchase of this
               land. Mr. David Myers abstained from the vote approving the
               purchase of this land. I am not aware of any other credit union
               official, or member of a credit union officials [sic] family, who
               will profit directly in any way from the transaction that is
               contemplated by this application.




      6
       Letherman provided, “Broker Policy-10% commission paid to broker at closing.” Appellant’s Corrected
      App., Vol. 4 at 180.
      7
       Myers also maintains that he “disclosed that he had an interest in the Verdant Drive transaction to Interra’s
      board of directors.” Brief of Appellees at 13.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017           Page 5 of 20
      Id., Vol. 5 at 29. The Indiana Department of Financial Institutions

      subsequently approved Interra’s application.


[7]   On July 23, 2008, a week before closing, Andrew informed Miller about the

      commission percentage. Andrew stated:


              Sanford,
              I was thinking last night and thought that the [Department of
              Financial Institutions] may need to know what the commission
              is. Which is 10% as set by the seller which he set for his amount
              for vacant land. If we need to I can get a letter to that affect [sic].
              In addition, we want to make it very clear that we were not
              engaged in this transaction based on commissions we have
              responsibility to the credit union, we submitted 7 sites and did
              not push any over the other based on commission.

      Id., Vol. 3 at 118.


[8]   On July 31, 2008, the day of closing, Miller presented Sheets with a copy of a

      settlement statement filed with the U.S. Department of Housing and Urban

      Development. Sheets stated this was the first time he became aware that

      Progressive was to receive all the commission paid on the transaction.8 Sheets

      stated that he was “bewilder[ed]” and “distressed” by the disclosure and that

      Andrew did not disclose the commission in the Purchase Agreement. Id., Vol.




      8
       By the time Sheets learned the entire commission would be paid to Progressive, “Interra had already paid a
      $49,500.00 deposit that would be forfeited if Interra refused to close on July 31st.” Appellant’s Corrected
      App., Vol. 3 at 71.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017        Page 6 of 20
       3 at 71. Sheets also stated that Myers did not disclose the commission to the

       board of directors. Id.


[9]    At closing, Progressive’s commission of $49,500 was paid by the seller. Miller

       testified that he was not concerned by Progressive’s involvement in the

       transaction because the commission was paid by the seller and because he had

       evaluated several real estate properties and negotiated the purchase price.

       Nevertheless, Sheets was concerned by a possible conflict of interest and

       instructed Miller to use a different real estate broker, Phil Hahn, for upcoming

       branch expansions in Nappanee and Shipshewana. A property in Nappanee

       was purchased in November 2008.


[10]   In January 2011, Sheets began a four-month medical leave as the result of a

       cerebral hemorrhage. Sheets returned to work without restrictions in August

       and Interra’s board of directors retained an outside management consulting

       firm to help Sheets transition back into his role. In September, the board of

       directors officially restored Sheets to his office of CEO and president.


[11]   In April 2012, Myers and two other board members issued a report on Sheets’

       job performance. The report stated Sheets’ job performance was “excellent”

       and “outstanding.” Id., Vol. 6 at 47. Soon thereafter, the board of directors,

       including Myers, voted to increase Sheets’ annual salary by $25,000. In August

       2012, the board of directors voted to give Sheets tickets to see his favorite

       baseball team, the Chicago White Sox, and to pay for his travel to the game.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 7 of 20
[12]   On August 17, 2012, Interra’s Vice-President David Birky placed a call to

       Interra’s confidential compliance hotline and reported that Sheets was

       cognitively impaired and thus mentally unfit to lead Interra. The board

       retained a local retired circuit court judge to investigate the claim but it could

       not be substantiated.


[13]   Interra resumed its search for possible expansion locations in late 2012. Myers

       proposed four additional sites to Miller, stating that he wanted to make sure

       Miller knew that the properties may be available. A property known as “Open

       Range” was among those suggested by Myers and he recommended that Miller

       have a site plan prepared for the location. Myers admitted to having

       communicated with the owner of Open Range sometime between October and

       December 2012.9 Sheets and the senior management team reviewed the

       additional properties and unanimously recommended a different property on

       Berkshire Drive to Interra’s board of directors. The board of directors

       authorized Sheets to proceed in acquiring the Berkshire Drive property on

       November 15, 2012.


[14]   At some point after the November meeting, Myers began discussing Sheets’

       mental competence with Birky. Birky prepared a written memorandum

       detailing his concerns with Sheets’ mental competence and presented the

       memorandum to the board of directors.




       9
           Sheets does not allege that Myers or Progressive had a financial interest in Open Range.


       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017        Page 8 of 20
[15]   In January 2013, the board of directors conducted an executive session to

       review Sheets’ performance. Myers “questioned whether the goal was to work

       to retain President Sheets or whether the goal was to change leadership.” Id.,

       Vol. 6 at 85. After polling the board members, they agreed to make a change—

       unanimously voting to transition Sheets out of his role as CEO and president.

       A board member suggested Myers be the board spokesperson during the

       meeting with Sheets because “he already seemed to have an explanation for the

       decision.” Id., Vol. 6 at 86.


[16]   At a special board meeting on February 15, 2013, Myers informed Sheets of the

       board’s decision. A few months later, on May 8, the Interra board of directors

       presented Sheets with a letter outlining the reasons for their decision. The

       board’s letter included the following:


               a.     That there were significant shortcomings in the
               development of good working relationships between the
               President and staff, management, and the Board with even an
               attitude of fear and worries about retaliation or retribution if
               people said or did anything which was contrary to your
               perspective or ideas;


               b.    That you were resistant to change, stubborn, inflexible,
               and not open-minded, even with respect to Board direction;


               c.    That you were excessively controlling and dominating of
               the agenda to the extent of hampering decision-making;


               d.    That you demonstrated a lack of organization and
               preparation at times in response to Board requests for

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 9 of 20
                  information as well as in Board meetings and planning sessions
                  only to focus on minor issues, stray to unrelated subjects, and
                  waste Board and management time with items not on the
                  agenda.


                  e.    That your representation of the Credit Union was not
                  always what it should be with times you were late to meetings,
                  missing at functions, might interject inappropriate jokes or
                  comments, make uninvited appearances, etc.


       Id., Vol. 5 at 91-92.


[17]   Soon thereafter, Sheets commenced three separate lawsuits.10 In the present

       action, Sheets alleged that Myers, individually and as an agent of Progressive

       committed the tort of intentional interference with an at-will employment

       contract. Myers denied the allegations and filed a counterclaim, claiming the

       action was frivolous and seeking attorneys’ fees. On March 6, 2015, Sheets

       filed a motion for partial summary judgment. Myers responded and filed his

       own motion for summary judgment.


[18]   On September 8, 2015, the trial court granted Myers’ motion for summary

       judgment finding he acted within the scope of his official duties as a member of

       the Interra board of directors. Sheets promptly filed a notice of appeal, but,

       upon Myers’ motion, this court dismissed Sheets’ attempted interlocutory

       appeal because there was no final judgment as Myers’ counterclaim remained




       10
            See Sheets v. Birky, 54 N.E.3d 1064 (Ind. Ct. App. 2016).


       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 10 of 20
       unresolved. In December 2016, the parties filed a joint stipulation for dismissal

       of Myers’ counterclaim without prejudice, thus bringing the litigation to an end

       in the trial court. Sheets now appeals.


                                 Discussion and Decision
                                      I. Standard of Review
[19]   When reviewing a trial court’s ruling on summary judgment, we apply the same

       standard as the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

       Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to a judgment as a matter of law.

       Ind. Trial Rule 56(C). A genuine issue of material fact exists where facts

       concerning an issue that would dispose of the litigation are in dispute or where

       the undisputed material facts are capable of supporting conflicting inferences on

       such an issue. Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 1258

       (Ind. 2003). The party appealing the trial court’s grant of summary judgment

       has the burden of persuading the court that the grant of summary judgment was

       erroneous. Diversified Invs., LLC v. U.S. Bank, NA, 838 N.E.2d 536, 539 (Ind. Ct.

       App. 2005), trans. denied.


[20]   Where, as here, the defendant is the moving party, the defendant must show

       that the undisputed facts negate at least one element of the plaintiff’s cause of

       action or that the defendant has a factually unchallenged affirmative defense

       that bars the plaintiff’s claim. Skyline Roofing & Sheet Metal Co., Inc. v. Ziolkowski

       Constr., Inc., 26 N.E.3d 1024, 1028-29 (Ind. Ct. App. 2015). This standard is


       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 11 of 20
       more onerous than its federal counterpart in that the movant must affirmatively

       negate an opponent’s claim. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

       We also “give careful scrutiny to assure that the losing party is not improperly

       prevented from having its day in court.” Siner v. Kindred Hosp. Ltd. P’rship, 51

       N.E.3d 1184, 1187 (Ind. 2016). Indeed, “Indiana consciously errs on the side

       of letting marginal cases proceed to trial on the merits, rather than risk short-

       circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.


                    II. Tortious Interference with Employment
[21]   Indiana has historically recognized two basic forms of employment: (1)

       employment for a definite or ascertainable term; and (2) employment at-will.

       Orr v. Westminster Vill. North, Inc., 689 N.E.2d 712, 717 (Ind. 1997). In the

       absence of a definite or ascertainable term of employment, employment at-will

       is presumptively terminable at any time, with or without cause,11 by either

       party. Wior v. Anchor Indus., Inc., 669 N.E.2d 172, 175 (Ind. 1996). Despite a

       general lack of protections, an at-will employee “must be able to expect that his

       continued employment depends on the will of his employer and not upon the

       whim of a third party interferer.” Bochnowski v. Peoples Fed. Sav. & Loan Ass’n,

       571 N.E.2d 282, 285 (Ind. 1991).




       11
         On rare occasions, narrow exceptions have been found. Meyers v. Meyers, 861 N.E.2d 704, 706 (Ind. 2007).
       These exceptions include discrimination and retaliatory discharge. Whirlpool Corp. v. Vanderburgh Cty.-City of
       Evansville Human Relations Comm’n, 875 N.E.2d 751, 757-58 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017         Page 12 of 20
[22]   In order to prevail on a claim of tortious interference with an employment

       contract, a plaintiff must establish: (1) the existence of a valid relationship; (2)

       the defendant’s knowledge of the existence of the relationship; (3) the

       defendant’s intentional interference with that relationship; (4) the absence of

       justification; and (5) damages resulting from defendant’s wrongful interference

       with the relationship. Bradley v. Hall, 720 N.E.2d 747, 750 (Ind. Ct. App. 1999).

       An at-will employee may bring a claim of tortious interference if, in addition to

       the standard elements of the tort, he or she can demonstrate “that the defendant

       interferer acted intentionally and without a legitimate business purpose.”

       Bochnowski, 571 N.E.2d at 285.


[23]   Directors or officers are only personally liable for tortious interference with the

       corporation’s contracts where they act outside the scope of their official duties

       in causing the breach. Trail v. Boys and Girls Clubs of Nw. Indiana, 845 N.E.2d

       130, 138 (Ind. 2006). Our supreme court explained the tort in Trail:


               That an officer or director of a corporation possesses limited
               immunity from most charges of tortious interference with the
               corporation’s contracts stems from both their role as agents of the
               corporation and the nature of the tort. A party cannot “interfere”
               with its own contracts, so the tort itself can be committed only by
               a third party. In the case of a corporation, the legal entity acts
               through its directors and officers. Thus, when officers or
               directors act in their official capacity as agents of the corporation,
               they act not as individuals but as the corporation itself. In doing
               so, they are not acting as a third party, but rather as a party to the
               contract and cannot be personally liable for tortious interference
               with the contract.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 13 of 20
               Conversely, when directors or officers act outside the scope of
               their official capacity, they no longer act as agents of the
               corporation and therefore act as a third party. Directors and
               officers who act outside the scope of their official duties therefore
               can be held personally liable for tortious interference with a
               contract.

       Id. (internal citations omitted). Sheets alleges that the trial court erred by

       awarding summary judgment to Myers and maintains that there is a factual

       dispute as to whether Myers was acting outside the scope of his official duties

       when he: 1) engaged in a pattern of self-dealing which made Sheets’ job

       performance more burdensome; and 2) when he retaliated against Sheets for

       preventing Myers’ attempts at self-dealing, resulting in Sheets’ discharge.


                                      A. Improper Motivation
[24]   Sheets invites us to use this case to “clarify the rule regarding director liability

       for acting purely in pursuit of personal advantage[,]” Appellant’s Br. at 19, and

       relies on the following language from our supreme court’s decision in Trail v.

       Boys and Girls Clubs of Northwest Indiana:


               Trail has not alleged that the actions taken by the defendants
               were prompted by a legally improper motivation. In his complaint,
               Trail alleged that the defendant's improper motivation was his
               refusal to defer to them on matters of corporate control. At oral
               argument, Trail asserted that the defendants’ improper
               motivation was their desire to increase their own control over the
               operation of the Boys and Girls Clubs. However, in the
               unreported case which Trail himself cites, the court held that
               “[a]n increase in corporate control is not personal advantage” of
               the sort that takes a director or officer’s actions outside the scope
               [of] their authority for the purposes of a tortious interference

       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 14 of 20
               claim. Nothing in Trail’s complaint suggests that the “personal
               advantage” sought by the defendants was anything other than
               larger influence over the direction of the enterprise.


       845 N.E.2d at 140-41 (emphasis added). Specifically, Sheets relies on the

       phrase “legally improper motivation,” and alleges that our supreme court was

       unwilling to foreclose the possibility of director liability where such legally

       improper motivation is shown. See Appellant’s Br. at 19.


[25]   We disagree. In Trail, the plaintiff climbed the ranks of his not-for-profit

       corporation for almost twenty years before serving as its executive director.

       Plaintiff alleged that several members of the executive committee became

       unhappy with him for personal reasons and contrived a biased report to cast

       him in a negative light and justify asking him to resign. Reviewing plaintiff’s

       claim for tortious interference with an at-will employment contract, our

       supreme court explained that:


               basic corporation law affords the directors authority to engage in
               the activity at issue. Because [the plaintiff] has not alleged any
               fact that overcomes the presumed and implied powers of the
               directors, we cannot agree with [the plaintiff’s] assertion that the
               defendants acted outside the scope of their official duties in
               evaluating his work.


       845 N.E.2d at 139. In affirming the dismissal of the plaintiff’s claim, the court

       held that “no action can lie against the individual members of that group for

       exercising their rightful authority.” Id. at 141.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 15 of 20
[26]   Our supreme court made clear in Trail that improper motive is irrelevant for the

       purposes of a claim of tortious interference with an at-will employment contract

       as long as a director or officer was acting within the scope of their official

       duties. Applied here, any alleged improper motivation by Myers is irrelevant if

       his actions were within the scope of his official duties as a member of Interra’s

       board of directors. Therefore, we turn to the question of whether Myers’

       actions were within the scope of his official duties.


                                    B. Scope of Official Duties
[27]   The scope of a director or officer’s official duties is dependent upon the scope of

       their express or implied authority. See Trail, 845 N.E.2d at 139. Express

       authority can be conferred by statute, the articles of incorporation, bylaws, or a

       resolution from the board of directors. Blairex Labs., Inc. v. Clobes, 599 N.E.2d

       233, 235-36 (Ind. Ct. App. 1992), trans. denied. Implied authority includes that

       “incidental authority necessary, usual, and proper to effectuate the main

       authority expressly conferred.” Indiana Dep’t of Pub. Welfare v. Chair Lance Serv.,

       Inc., 523 N.E.2d 1373, 1377 (Ind. 1988).


[28]   Sheets contends that, “[a]part from the fact that Myers held the title of director

       during this time period, Myers designated nothing else in way of facts or

       evidence” from which a jury could conclude that his acts were within his

       official capacity as a director of the credit union. Appellant’s Br. at 18. We

       disagree. First, Myers designated Interra’s bylaws to outline a member of the

       board of directors’ express authority. The bylaws provide:


       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 16 of 20
        Section 3. Powers and Duties of the Board. The Board of Directors
        shall have the general management of the affairs, funds, and
        records of the Credit Union together with such other powers and
        duties as are prescribed in [the Indiana Credit Union Act]. The
        supervision of the Board over the business of the Credit Union
        shall be such as will enable them at all times to know its general
        financial condition and to provide reasonable assurance that
        imprudent or dishonest conduct of any of its officers or officials
        will be checked or prevented. The Directors are agents of the
        Credit Union and may be held personally liable for losses and
        waste of money and property occurring through the violation of
        their duties and/or the law.


Appellant’s Corrected App., Vol. 5 at 6. Myers also designated the Indiana

Credit Union Act, Indiana Code section 28-7-1 et seq. Relevant here, Indiana

Code section 28-7-1-16 provides:


        (b) The board may appoint officers of the credit union.


        ***


        (d) The board of directors shall have the general management of
        the affairs, funds, and records of the credit union and shall meet
        at least monthly . . .


        ***


        (i) The board of directors by a majority vote may suspend or
        remove any officer from the officer’s duties as an officer.


        ***



Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 17 of 20
[29]   These designations were sufficient for the court to determine as a matter of law

       that Myers’ actions were within the scope of his official duties. The board of

       directors is granted the general management of the affairs, funds, and records of

       the credit union by Indiana statute and Interra’s bylaws. This broad grant of

       power is wide enough to encompass Myers’ participation in Interra’s

       expansion.12 Further, Indiana Code section 28-7-1-16(i) grants directors the

       express power to “remove any officer from the officer’s duties as an officer.”

       Myers’ actions surrounding Sheets’ discharge were squarely within the express

       authority provided by statute. And, as our supreme court explained in Trail,

       Myers’ powers were not limited to those express powers:


               Basic corporate agency law indicates that directors enjoy a wide
               range of authorized powers including both those powers
               expressly granted by statute and the articles of incorporation or
               by-laws, and that “incidental authority necessary, usual, and
               proper to effectuate the main authority expressly conferred.”
               Certainly, such incidental authority includes the authority to
               investigate and evaluate the executive employees of the
               enterprise. To say that the directors lacked the authority to carry
               out the inquiry flies against standard corporation law.




       12
          On the issue of Myers’ alleged interference with Interra’s branch expansion, Sheets seemingly admits that
       the board of directors had express authority but argues that the authority rested with the whole board of
       directors, not Myers individually. We find Sheets’ perfunctory argument on this point unconvincing and
       conclude that Sheets has not alleged any fact that overcomes the express or implied powers of Interra’s board
       of directors. See Trail, 845 N.E.2d at 139.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017         Page 18 of 20
       845 N.E.2d at 139 (citation omitted). Similarly, here, Myers had the requisite

       incidental authority to investigate and evaluate Sheets’ performance as the CEO

       and president of Interra. To the extent that any of Myers’ actions fell beyond

       his express authority, we find Myers’ incidental authority broad enough to

       encompass such actions.


[30]   Sheets also raises the argument that, “As a general proposition, Myers certainly

       must have acted within his official capacity as director on some occasions and

       within his capacity as an agent of [Progressive] on others. However, it cannot

       be said that on every occasion, Myers must have been acting within both,

       simultaneously.” Appellant’s Br. at 17. Notwithstanding Sheets’ intermixing

       of terms, we assume he refers to the relevant doctrine: the scope of Myers’

       official duties. As Sheets himself admits, Myers could have been acting within

       the scope of his official duties as the president of Progressive and a member of

       Interra’s board of directors at the same time and his official duties were

       therefore not mutually exclusive. Having already found that all of Myers’

       relevant activities fell within the scope of his official duties through his express

       or implied authority, we need not specifically address this issue.


                                        C. Conflict of Interest
[31]   Finally, Sheets argues that he designated sufficient evidence of Myers’ self-

       dealing that violated Interra’s bylaws, his director’s oath, and his statutory duty

       to act in good faith to raise a question of fact as to whether Myers’ actions were

       outside his official duties. Again, Sheets provides no authority and assumes,

       without explanation or precedent, that simply because an action violated a
       Court of Appeals of Indiana | Memorandum Decision 20A03-1701-PL-161 | November 15, 2017   Page 19 of 20
       statute or Interra’s bylaws that the action was thus outside the scope of Myers’

       official duties. Once more we reiterate that Myers’ actions fell within the scope

       of his official duties.


[32]   Therefore, having determined that motive is irrelevant for the purposes of

       tortious interference with an at-will employment contract, Sheets’ claims

       regarding Myers’ motives are not material questions of fact. See Williams v.

       Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (“A fact is ‘material’ if its resolution

       would affect the outcome of the case . . . .”) Accordingly, Sheets has failed to

       meet his burden to convince us that the trial court’s grant of summary judgment

       was erroneous.


                                               Conclusion
[33]   The trial court did not err in entering judgment in favor of Myers as to Sheets’

       claims for intentional interference with an at-will employment contract.

       Accordingly, we affirm the trial court’s grant of summary judgment.


[34]   Affirmed.


       Riley, J., and Pyle, J., concur.




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