BROWN, Judge.
Joseph M. Guinn appeals the trial court's summary judgment ruling in favor of Applied Composites Engineering, Inc. ("ACE") as to Guinn's claim for tortious interference with a contract. Guinn raises one issue, which we revise and restate as whether the court erred in granting summary judgment in favor of ACE. We reverse and remand.
Guinn is an airline mechanic who holds a Federal Aviation Administration ("FAA") airframe and powerplant ("A & P") mechanic's license. ACE is a supplier of aviation and aerospace products and services. On March 27, 2008, Guinn began to work for ACE as an A & P Technician at the A & P composite repair site.
ACE and Guinn entered into a Confidentiality, Non-Competition, and Non-Solicitation Agreement dated January 22, 2009 (the "Agreement"). Paragraph 8 of the Agreement set forth a "Non-Competition Covenant" which provided in part that Guinn agreed that, for a period of six months following the termination of his employment for any reason, he would not "directly or indirectly, act as, or become a principal, agent, stockholder, director, officer, investor, manager, trustee, representative, employee, counselor, or in any other relation or capacity whatsoever anywhere within a radius of fifty (50) miles of any [ACE] facility, engaged [sic] in the same or substantially similar business as [ACE]." Appellant's Appendix at 115. Paragraph 8 also provided in part that Guinn "unconditionally agrees that the time, geographic territory and business activities limitations defined and contained herein are all reasonable and meant to be fully binding in all respects" and that "the provision of Paragraph 8 shall survive the termination of employment." Id. All employees of ACE were required to sign such agreements. Richard Sohnle, ACE's vice president of operations, told Guinn that the Agreement was a formality and "that it was something that didn't necessarily apply to A & P [mechanics] [a]nd it needed to be on company file." Id. at 164.
In early August of 2010, Guinn applied for employment with AAR Aircraft Services, Inc. ("AAR") to work as a mechanic because AAR operated a second shift, and ACE did not.
On September 3, 2010, ACE received a request by fax from FirstLab, a company that conducted background checks, for background information related to Guinn. On September 10, 2010, Cherry with ACE sent a message to FirstLab by fax which stated: "Joe Guinn is under a Non-Compete Agreement, and AAR informed us that their employment offer for Joe Guinn was revoked." Appellant's Appendix at 122.
At some point on or prior to September 14, 2010, Sutterfield received another call from Sargent wherein Sargent stated that AAR had told him that AAR would not hire Guinn as long as the Agreement was in place, and that Guinn "would be required to have a letter from ACE absolving [him] of that contract," that AAR "did not do what [it] said [it was] going to do," and that AAR "did hire [Guinn] and he had been working for [it] for a few weeks."
On September 14, 2010, a human resources administrator with AAR sent an email message to Surges which stated in part:
Appellant's Appendix at 150.
On September 17, 2010, Sutterfield sent an e-mail message to Sargent which stated: "Our HOUR Director can meet with us Tuesday at 9:30 am. Will that work for you? If so I will arrange it and send a meeting notice?" Id. at 144. Sargent sent a response message to Sutterfield which stated: "I am in Florida Tuesday. Since we spoke some other events have ce [sic] to light, I suggest you call on my cell...." Id.
On September 21, 2010, Sutterfield sent an e-mail message to Sargent which said: "Just got out of a meeting with the Director of HR and our Corporate. [Guinn] will be terminated and be told that he is free to apply after the terms of his non compete expire. Our director will contact you directly once this is complete." Id. at 149.
On September 24, 2010, Sargent sent an e-mail message to Sutterfield which stated in part: "Have not heard from your director so I have directed council [sic] to file." Id. at 148. Later that day, Sutterfield forwarded Sargent's message to Surges, and Surges sent an e-mail message to Sargent which stated:
Id. Later in the day, AAR terminated Guinn's employment. During his deposition, Sutterfield stated in part:
Id. at 167-168.
On September 30, 2010, ACE filed a complaint against Guinn and AAR alleging breach of contract against Guinn for accepting
On November 15, 2010, the court held a hearing regarding Guinn's request for a preliminary injunction. During the hearing, when asked "[w]hat information, if any, did Mr. Guinn have ... has today that is confidential and not readily available in the marketplace by legal means," Sargent responded that "[o]ne would be certain techniques within a repair composite." November 15, 2010 Transcript at 115. When asked "I don't understand[;] [Guinn is] an FAA airline mechanic, and that's the work he does, but you claim to have some kind of unique proprietary interest in this man's personal skills that would prevent him from working in the industry that does repair work for airlines," Sargent stated "No," and when asked to "[b]e as specific about what you claim your proprietary interest is," Sargent stated "investment and costs in the training." Id. On December 23, 2010, the court issued an order denying Guinn's request for injunctive relief, finding that although Guinn's financial situation was perilous at the moment, he had an adequate remedy at law, that he was able to calculate his damages precisely, and that the damages include readily documentable claims for lost wages, attorney fees, and other costs associated with his termination from AAR. Guinn initiated an interlocutory appeal in January 2011 but withdrew the appeal in June 2011.
On August 18, 2011, ACE filed a motion for judgment on the pleadings.
On November 9, 2011, the court entered an order of dismissal with prejudice based on a joint stipulation filed by AAR and ACE that AAR would be dismissed from the case.
On January 11, 2012, the court entered an amended order granting Guinn's motion for partial summary judgment and granting ACE's motion for judgment on the pleadings. With respect to Guinn's motion for partial summary judgment on Count II of his counterclaim, the court found that the non-competition provision of the Agreement was overbroad. Specifically, the court found that "[t]he non-competition covenant in this case did not specify what type of work Guinn did for ACE or what Guinn was prohibited from doing with anyone else" and that "the Agreement appears to have been drafted in such a manner as to apply to any employee in any capacity." Id. at 68. With respect to ACE's motion for judgment on the pleadings, the court noted that ACE's motion related to Counts IV and V of Guinn's counterclaim, that with respect to Count IV the blacklisting statute did not apply in this case, and with respect to Count V that Guinn was not entitled to damages under Ind.Code § 34-24-3-1 as alleged. Accordingly the court granted summary judgment in favor of ACE on Counts IV and V of Guinn's counterclaim.
On October 23, 2012, ACE filed a motion for summary judgment on Count III of Guinn's counterclaim together with its designation of materials and a brief in support of its motion. In its brief, ACE argued that when it communicated the existence of the Agreement to AAR, there was no valid and enforceable contract to breach and that Guinn could not show an absence of justification. Guinn filed a response to ACE's summary judgment motion together with his designation of evidence. He argued that a valid and enforceable agreement existed between him and AAR, that AAR made an offer of employment on August 3, 2010, he accepted the offer on August 5, 2010, and he actually worked for AAR from August 30, 2010 through September 24, 2010. Guinn also argued that a material issue of fact exists as to whether ACE's contacts with AAR demanding that AAR terminate Guinn's employment were justified. Specifically, Guinn argued that Sargent, ACE's President, communicated with AAR multiple times in an effort to convince AAR to terminate his employment, and that "[t]his pattern goes further to support a finding of malice than it does to support a finding of justification." Id. at 131. Guinn also argued that ACE cannot rely on the assertion that Sargent believed the Agreement was enforceable, that the question of whether an employer's conduct
On February 15, 2013, the court issued an order granting ACE's motion for summary judgment which included findings of fact and conclusions of law. In its findings, the court noted that it had found the Agreement to be invalid and unenforceable on January 11, 2012 because it was overbroad, that ACE notified AAR on August 16, 2010 that Guinn was bound by the Agreement, and that Guinn reported to work for AAR on August 30, 2010 and worked there continuously until September 24, 2010, when he was terminated. The court also found that ACE, through its president, Sargent, "contacted AAR employees on multiple occasions between September 10, 2010 and September 24, 2010, inquiring as to why Guinn was working for AAR," that "[t]hereafter, there was email communications on September 17, 2010, September 21, 2010 and September 24, 2010 between ACE and AAR about whether AAR was going to terminate Guinn," that "[o]n September 24, 2010, Sargent e-mailed AAR" and "[h]e had still not received confirmation from AAR's Human Resources Director that Guinn had been terminated," that "[h]e revealed that he had directed his attorney to file this lawsuit, which had originally named AAR was a co-defendant," and that "AAR was subsequently dismissed from the case on November 09, 2011." Id. at 15.
In its conclusions of law, the court found that Guinn had an at-will employment relationship with AAR from the time he accepted AAR's written offer of employment on August 3, 2010, even though he did not report to work until August 30, 2010, and that "ACE made several attempts both before and after Guinn reported for work at AAR to pressure AAR to terminate its employment relationship with Guinn." Id. The court noted the factors set forth by the Restatement (Second) of Torts § 767 with respect to whether a party's conduct in intentionally interfering with a contract is justified. The court's order then provides:
Id. at 17. The court granted ACE's motion for summary judgment as to Guinn's claim for tortious interference and dismissed Count III of his counterclaim. Guinn now appeals the summary judgment.
The issue is whether the trial court erred in granting summary judgment in favor of ACE and against Guinn. Guinn contends that a genuine issue of material fact remains as to whether ACE was justified in its interference with his employment contract with AAR resulting in the termination of his employment with AAR. He argues that ACE contacted AAR multiple times seeking to prevent his employment with AAR, that ACE had no protectable interest in preventing his employment with AAR, and that ACE's interference with his employment with AAR was intentional and malicious. Guinn further contends that ACE knew or should have known that the Agreement was overly broad and unenforceable as all employees were required to enter non-compete agreements, that the terms prevented any employee of ACE from accepting any kind of job from a competitor of ACE, and that from these facts a jury can draw reasonable inferences which support a finding that ACE was not justified in its interference in Guinn's employment contract with AAR.
Guinn specifically notes that the determination of the absence of justification is a question of fact, that under Indiana law the overriding question regarding justification is whether the defendant's conduct has been fair and reasonable under the circumstances, and that this court has stated that this inquiry is highly fact sensitive and best answered by a fact finder. He argues that ACE had a significant business relationship with AAR, that "ACE was a customer and a vendor of AAR and `in order for the business relationship between ACE and a personal relationship between [the companies] to continue, [AAR] ha[d] to remain neutral,'" and that Sargent had threatened AAR with litigation. Appellant's Brief at 11 (quoting Appellant's Appendix at 167-168). Guinn also asserts that a reasonable trier of fact could infer from the evidence that ACE interfered with Guinn's employment contract with AAR "without a legitimate business purpose." Id. at 12. He further notes that "[a]n employer [] does not have a protectable interest in `the general knowledge, information or skills gained by the employee in the course of his employment.'" Id. (citation omitted).
ACE contends that Guinn's argument that it should have known that the Agreement was overly broad and unenforceable fails because, at the time ACE informed AAR of the existence of the Agreement, there had been no ruling by the trial court holding the Agreement language unenforceable, there are no designated facts that ACE's efforts to inform AAR of the existence of the Agreement were made in bad faith, and the language of the Agreement was voidable, not void, and thus the
In his reply brief, Guinn claims that ACE had no protectable interest in his FAA trained skills and that ACE's interest was to punish him for leaving its employ and to send a message to other ACE employees who signed the same agreement to "dull any interest in seeking other employment." Appellant's Reply Brief at 7. He also notes that his employment was terminated on September 24, 2010, the same day that Sargent informed Sutterfield that ACE was going to file a lawsuit, and that the designated facts are of such a character that different people may reasonably and fairly draw different conclusions from them and, accordingly, present questions of fact that require a trial.
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Commr's of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002). The entry of specific findings and conclusions does not alter the nature of a summary judgment which is a judgment entered when there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind.1996). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Id. They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.
In addition, "[s]ummary judgment is inappropriate where the undisputed facts themselves give rise to conflicting inferences which would alter the outcome." Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind.1991); see also Rogier v. Am. Testing and Eng'g Corp., 734 N.E.2d 606, 619 (Ind.Ct.App. 2000) (stating that "even where the facts are undisputed, the ability to reasonably draw from them conflicting inferences which would alter the outcome will make summary judgment inappropriate"), reh'g denied, trans. denied. "Summary judgment should not be granted when it is necessary to weigh the evidence." Bochnowski, 571 N.E.2d at 285. "The evidence before the court must be liberally construed in the light most favorable to the non-moving party." Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996) (citations omitted). "We carefully scrutinize a trial court's grant of summary judgment to assure that the losing party is not improperly prevented from having its day in court." Id.
"Indiana has long recognized that intentional interference with a contract is an actionable tort, and includes any intentional, unjustified interference by third parties with [a] ... contract." Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1234 (Ind.1994) (citing Bochnowski, 571 N.E.2d at 284). "The tort reflects the public policy that contract rights are property, and under proper circumstances, are entitled to enforcement and protection from those who tortiously interfere with those rights." Id. (citation omitted).
"A plaintiff alleging tortious interference with a contractual relationship must establish five elements: (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 the defendant's wrongful inducement of the breach." Allison v. Union Hosp., Inc., 883 N.E.2d 113, 118 (Ind.Ct.App.2008) (citing Winkler, 638 N.E.2d at 1235).
A claim for tortious interference with an employment relationship can be maintained upon a terminable at will agreement. Bradley v. Hall, 720 N.E.2d 747, 751 (Ind.Ct.App.1999) (citing Bochnowski, 571 N.E.2d at 284-285 (noting that "[t]he parties in an employment at will relationship have no less of an interest in the integrity and security of their contract than do the parties in any other type of contractual relationship" and that "[a]n employee with an at will employment contract 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")).
In determining whether a defendant's conduct in intentionally interfering with a contract is justified, the Indiana Supreme Court has examined the following seven factors set forth by the Restatement (Second) of Torts:
Allison, 883 N.E.2d at 118 (citing Winkler, 638 N.E.2d at 1235 (citing RESTATEMENT (SECOND) OF TORTS § 767 (1977))). "[T]he weight to be given to each consideration may differ from case to case depending upon the factual circumstances, but the overriding question is whether the defendants' conduct has been fair and reasonable under the circumstances." Id. (citing Winkler, 638 N.E.2d at 1235).
Further, with respect to covenants in restraint of trade in employment contracts, this Court has stated that "[a]lthough an employer has a protectible property interest in the good will of his business (including secret or confidential information), the same is not true regarding the general knowledge, information or skills gained by the employee in the course of his employment." Brunner v. Hand Indust., Inc.,
To establish it is entitled to summary judgment, ACE as the movant may meet its burden by demonstrating that the undisputed material facts negate at least one element of Guinn's claim. See Allison, 883 N.E.2d at 119. As noted above and as found by the trial court, Guinn had an at-will employment relationship with AAR beginning when he accepted AAR's August 3, 2010 offer of employment and, as a result, had an interest in the integrity and security of his continued employment which should not "depend[] on ... the whim of a third party interferer." Bochnowski, 571 N.E.2d at 284-285 ("The parties in an employment at will relationship have no less of an interest in the integrity and security of their contract than do the parties in any other type of contractual relationship"). In addition, ACE had knowledge of Guinn's employment at AAR, ACE's actions of contacting AAR regarding Guinn's employment were intentional, and Guinn suffered damages due to the termination of his employment with AAR. Therefore, we turn to whether the undisputed material facts demonstrate that there was justification for ACE's actions under the circumstances. See Allison, 883 N.E.2d at 118 (noting that one of the five elements of tortious interference is the absence of justification). While, as noted by ACE, the Agreement had not yet been ruled to be unenforceable by the trial court at the time ACE contacted AAR regarding Guinn's employment, that fact alone is not determinative of whether ACE's conduct was justifiable under the circumstances as a matter of law. Instead, we consider the factors set forth by the Restatement (Second) of Torts § 767 to analyze this issue.
With respect to the nature of ACE's conduct, the designated evidence shows that ACE contacted AAR several times regarding Guinn's employment. Before discussing this conduct, we note that Comment c to Restatement (Second) of Torts § 767 states in part:
See also Winkler, 638 N.E.2d at 1235(noting that Winkler did not contend that the defendants "applied unfair economic pressure, or threatened litigation which induced Typoservice to breach its contract with him").
Turning to the record in this case, we first note that, as discussed in further detail in part 6 below, ACE and Guinn were not on equal footing in terms of sophistication or the ability to protect their interests. ACE was founded in 1983 and had eighty-five employees in Indianapolis, and, nearly ten months after Guinn began his employment at ACE, he and all employees of ACE were required to sign restrictive covenant agreements. Guinn was told the Agreement was a formality and "didn't necessarily apply to A & P[ mechanics] [a]nd it needed to be on company file." Appellant's Appendix at 164.
The record also shows that, on August 12, 2010, Guinn provided ACE with a two-week notice that he intended to leave his position. Four days after he provided his notice, on August 16, 2010, Drew Cherry with ACE sent a copy of the Agreement by fax to Burdine at AAR. In addition, Sargent, the President of ACE, called Sutterfield with AAR before Guinn began his new job and told Sutterfield that he believed it was a violation of the Agreement for Guinn to work for AAR. According to a subsequent internal e-mail message at AAR, Sutterfield told ACE at some point and by way of an e-mail message that AAR would not hire Guinn. Guinn commenced his employment with AAR on August
The designated evidence then shows that three days later, on September 17, 2010, Sutterfield sent an e-mail message to Sargent attempting to arrange a meeting time, suggesting that the two had previously discussed a meeting. In his reply e-mail message, Sargent said: "I am in Florida Tuesday. Since we spoke some other events have ce [sic] to light, I suggest you call on my cell...." Id. at 144. The parties do not indicate whether Sutterfield returned Sargent's message. Four days later, on September 21, 2010, Sutterfield sent an e-mail message to Sargent stating that he had met with other AAR personnel, that Guinn's employment would be terminated, and that AAR's director would contact Sargent after that occurred.
Nevertheless, on September 24, 2010, three days after Sutterfield's e-mail message, Sargent sent an e-mail message to Sutterfield at 10:06 a.m. stating: "[Sutterfield], Have not heard from your director so I have directed council [sic] to file." Id. at 148 (emphasis added). At 11:14 a.m. that day, Sutterfield forwarded Sargent's e-mail message to Surges, and at 11:33 a.m. Surges sent an e-mail message to Sargent which stated that she would meet with Guinn later in the day to inform him that his employment was terminated and also stated: "My hope is that this course of action is agreeable to you. Now that I have your contact information, I will be happy to send you an email when we have completed that meeting so you have documentation it is complete." Id. (emphasis added). Later that day, AAR terminated Guinn's employment. Sutterfield later stated during his deposition that he thought AAR's actions were "what we believed to be in the best interest of ACE at the time," that AAR was "complying with our vendor's request," that "in order for the business relationship between ACE and a personal relationship between us to continue, we have to remain neutral," and that "[t]his is about business." Id. at 167-168 (emphases added).
Although the Agreement had not yet been deemed unenforceable by the court at the time ACE contacted AAR, which may tend to favor a determination that ACE's actions were justified, we note that other facts designated by Guinn tend
While a factfinder could find that ACE's conduct does not support a finding that ACE's interference was unjustified, another possible inference from the facts is that ACE applied unfair economic pressure or threatened litigation which induced AAR to terminate Guinn's employment. See Winkler, 638 N.E.2d at 1235 (noting that Winkler did not contend that the defendants "applied unfair economic pressure, or threatened litigation which induced Typoservice to breach its contract with him") (emphases added); Comment c. to § 767 (noting, with respect to the prosecution of civil suits, that it is "ordinarily wrongful if the actor ..., though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication," and that with respect to economic pressure, the question whether this pressure is proper "is answered in the light of the circumstances in which it is exerted, the object sought to be accomplished by the actor, the degree of coercion involved, the extent of the harm that it threatens, ... and the general reasonableness and appropriateness of this pressure as a means of accomplishing the actor's objective") (emphases added). A finder of fact can examine and weigh ACE's conduct in light of the specific circumstances of this case, including the object sought by its actions, the degree of coercion involved, the extent of harm threatened, and the reasonableness of its actions given its interests and the interests of AAR and Guinn. We reiterate that "[s]ummary judgment should not be granted when it is necessary to weigh the evidence," see Bochnowski, 571 N.E.2d at 285, and that "[t]he evidence before the court must be liberally construed in the light most favorable to the non-moving party." Butler, 668 N.E.2d at 1228.
Consistent with the Court's observation in Winkler and the statements in the comments to Restatement (Second) of Torts § 767, the designated evidence could weigh in favor of the determination that ACE's interference with Guinn's new employment with AAR was unjustified.
With respect to ACE's motive and interests
"Although an employer has a protectible property interest in the goodwill of his business (including secret or confidential information), the same is not true regarding the general knowledge, information or skills gained by the employee in the course of his employment." Brunner, 603 N.E.2d at 160. In Coates v. Heat Wagons, Inc., this court stated that "[a] legitimate protectable interest is an advantage possessed by an employer, the use of which by the employee after the end of the employment relationship would make it unfair to allow the employee to compete with the former employer." 942 N.E.2d 905, 913 (Ind.Ct.App.2011) (citation and internal quotation marks omitted). At a minimum, there is a question of fact as to whether ACE's "investment and costs in the training" of Guinn constituted a protectible interest or general knowledge, information, or skills obtained by Guinn during his employment.
The factfinder may consider the extent to which the terms, conditions, and covenants contained in the Agreement were unreasonable, overly broad, or not narrowly tailored to protect ACE's legitimate business interests and the extent to which this factor may weigh in favor of a finding that ACE's conduct was justified or unjustified under the specific circumstances in this case.
Moreover, all of the employees of ACE were required to sign agreements which contained the restriction on competition, and according to Guinn's deposition testimony, he entered into the Agreement dated January 22, 2009, almost ten months after he began to work for ACE on March 27, 2008, and Guinn was told by ACE's vice president of operations that the Agreement was a formality and didn't necessarily apply to A & P mechanics but it needed to be on file. The trial court noted,
Based upon the record, a trier of fact could determine that ACE's actions were taken to advance its protectible interests or, on the other hand, that its actions were not intended to protect any legitimate business interests in Guinn's "FAA trained skills" and that its motivation was to punish and send a message to other ACE employees.
With respect to Guinn's interests, he was seeking to protect his continued employment at AAR, his financial interests, and his livelihood. He accepted the job at AAR at a lower hourly wage than he earned at ACE because he could work second shift, allowing him to be home with his children during the day while his wife worked. Guinn alleged that he is a graduate from the Aviation Institute of Maintenance where he completed training as an A & P airline mechanic in January 2008 and that he paid approximately $30,000 to obtain his training. The designated evidence shows that Guinn accepted AAR's August 3, 2010 offer of employment, that his first day of work was on August 30, 2010, and that he was employed with AAR until September 24, 2010. See Allison, 883 N.E.2d at 121 (noting that the appellants were seeking to protect their contractual rights, their financial interests, and their livelihood).
With respect to the balance between ACE's freedom to act and Guinn's interests, we observe that Indiana courts have long stated that covenants which restrict a person's employment opportunities are strongly disfavored. See Krueger, 882 N.E.2d at 728-729 ("This Court has long held that non-competition covenants in employment contracts are in restraint of trade and disfavored by the law.") (citing Dicen v. New Sesco, Inc., 839 N.E.2d 684, 687 (Ind.2005); Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co., 492 N.E.2d 686, 688 (Ind.1986); Licocci v. Cardinal Assocs., Inc., 445 N.E.2d 556, 561 (Ind.1983); Donahue, 234 Ind. 398, 127 N.E.2d 235 (noting that an employer "has no right to unnecessarily interfere with the employee's following any trade or calling for which he is fitted and from which he may earn his livelihood and he cannot preclude him from exercising the skill and general
With respect to the relative proximity or remoteness of ACE's conduct to the interference, the record shows that representatives of ACE, including its President, Leigh Sargent, contacted AAR employees various times in August and September, 2010, and Sargent finally indicated that he had directed his counsel to file suit because he had not heard from AAR's director regarding the termination of Guinn's employment. Guinn's employment was terminated on September 24, 2010.
With respect to the relations between ACE and Guinn and ACE and AAR, as noted above, the record shows that Guinn applied for and accepted a job with AAR because, unlike ACE, AAR operated a second shift. ACE was Guinn's former employer and a vendor or customer of AAR.
In weighing the factors above, we observe that the ultimate question relating to the justification of the defendant's conduct is whether that conduct has been fair and reasonable under the circumstances. See Allison, 883 N.E.2d at 121. Although it is possible under certain circumstances to determine as a matter of law that an employer's actions were justified, in this case we find that the inquiry is highly fact sensitive as expressed above with respect to many of the § 767 factors and thus best answered by a factfinder. See id. ("We find this inquiry to be so highly fact sensitive that we conclude it is best answered by a factfinder.").
Thus, based upon the record, and noting that the burden is on ACE to prove the non-existence of a genuine issue of material fact, and that summary judgment is not appropriate when it is necessary to weigh the evidence, we conclude that the designated evidence presented by the parties demonstrates that a genuine issue of material fact exists with respect to whether or not ACE's conduct in connection with Guinn's employment relationship with
For the foregoing reasons, we reverse the trial court's order granting summary judgment in favor of ACE and against Guinn with respect to Guinn's claim for tortious interference under Count III of his counterclaim.
Reversed and Remanded.
NAJAM, J., and MATHIAS, J., concur.
