Court of Appeals of Indiana | Opinion 20A04-1509-PL-01620 | May 18, 2016 Page 1 of 17

ATTORNEY FOR APPELLANT

Patrick F. O’Leary

Goshen, Indiana

ATTORNEYS FOR DAVID W.

BIRKY

Jeffery A. Johnson

Brett R. Hummer

May Oberfell Lorber

Mishawaka, Indiana

ATTORNEYS FOR INTERRA 

CREDIT UNION

Jeffrey L. Lund

Landon K. Richmond

Yoder Ainlay Ulmer & 

Buckingham, LLP

Goshen, Indiana

ATTORNEYS FOR VENTURE 

INTERNATIONAL LLC AND 

CURT BECHLER

Ronald E. Elberger

Bryan H. Babb

Bradley M. Dick

Bose McKinney & Evans LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 20A04-1509-PL-01620 | May 18, 2016 Page 2 of 17

Jack Sheets,

Appellant-Plaintiff,

v.

David Birky, Interra Credit 

Union, Curt Bechler, and 

Venture International, LLC.,

Appellees-Defendants

May 18, 2016

Court of Appeals Case No.

20A04-1509-PL-01620

Appeal from the Elkhart Superior 

Court

The Honorable Evan S. Roberts, 

Judge

Trial Court Cause No.

20D01-1309-PL-222

Bailey, Judge.

Case Summary

[1] Jack Sheets (“Sheets”) was discharged from his employment with Interra Credit 

Union (“Interra”). He subsequently filed a complaint alleging that Interra VicePresident David Birky (“Birky”) had committed defamation per se, for which 

Interra was vicariously liable; and that management consultant Venture 

International, LLC (“Venture”) and its owner, Curt Bechler (“Bechler”), had 

been negligent in the monitoring of Sheets’s condition after sick leave, had 

negligently investigated and reported a hotline call, had breached a fiduciary 

duty, and had intentionally interfered with Sheets’s employment-at-will 

contract with Interra. Summary judgment was granted to Birky and Interra; 

partial summary judgment was granted to Venture and Bechler. Negligence 

and tortious interference claims against Venture and Bechler proceeded to trial, 

and a jury found in favor of the defendants. Sheets challenges the grant of 
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summary judgment to Birky and Interra and the judgment in favor of Venture 

and Bechler on the claim of interference with an employment contract.1 We 

affirm.

Issues

[2] Sheets presents two issues for review:

I. Whether summary judgment was improvidently granted to 

Birky and Interra upon the defamation per se claim; and

II. Whether the trial court abused its discretion in instructing 

the jury regarding legal protection of an employment-atwill contract.

Facts and Procedural History

[3] In 1976, Interra hired Sheets as a manager trainee. Sheets eventually became 

the President and CEO of Interra, reporting to Interra’s Board of Directors 

(“the Board”). Venture was hired to perform an organizational assessment in 

2007 and again in 2011.

2

 

1

Sheets does not challenge the earlier grant of partial summary judgment to Venture and Bechler, nor does 

he challenge the judgment entered upon the jury verdict as to the claim of negligence against Venture and 

Bechler.

2 When deposed, Bechler described an organizational assessment as a procedure that “seeks to identify 

perceptions and seeks to identify issues of concern by the employees and the management team regarding 

how the organization is functioning. . . . It gives the leadership of the organization feedback on how they’re 

being perceived and how they’re functioning.” (App. at 199-200.) 
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[4] On January 4, 2011, Sheets experienced an inter-cerebral hemorrhage. After a 

four-month medical leave, Sheets returned to work on a restricted basis. In 

April of 2011, the Board expanded Venture’s duties to include acting as a 

liaison between Sheets and his medical team.3 In August of 2011, Sheets 

returned to work full-time without restrictions. 

[5] As part of its 2011 Organizational Assessment, Venture recommended the 

installation of a Compliance Hotline accessible to Interra employees. 

Employees were advised to: “Use the Compliance Line to report a serious 

concern or a suspected policy violation.” (App. at 265.) After the completion 

of the 2011 assessment, Venture’s responsibilities primarily concerned

monitoring and reporting calls coming into the hotline in exchange for a 

$100.00 monthly fee.

[6] On August 18, 2012, Birky called the hotline, identified himself, provided his 

telephone number, and left the following message:

My concern is about the fitness of leadership of Jack Sheets, our 

President and CEO. I’ve had significant concerns about my own 

personal level of frustration in interactions with Jack over the 

past month. Since, my perception is that since almost from the 

day that Venture International disengaged in their consulting

contract with Interra, Jack has become considerably more 

aggressive. Jacks’ cognitive ability to process and follow 

conversations when there are multiple voices around the table 

has its [sic] significantly impaired in my opinion and his ability to 

 

3 This role formed the basis of one of Sheets’s negligence claims against Venture and Bechler.
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focus on what’s important and the particular issue and accept 

and follow conversations is also significantly less than optional

[sic] or ideal. I have, also have documentation of multiple 

conversations that I personally have had with Jack where he 

refuses to accept an answer or explanation and simply comes 

back over and over and over again asking the same question over

and over again and being unable to process or understand what 

he is being told. I’ve also had responses from Jack that say he 

does not want to have a debate with me he simply wants me to 

listen to his point of view and I have been frustrated and 

unaccepting of that type of one way conversation instead of a 

dialogue. I’ve also had feedback from respected peers within the 

credit union industry who view Jack and have expressed their 

view to me as not being fit for leadership of a credit union and at 

some level view him as being an embarrassment to the credit 

union as a whole. Almost everyone likes Jack but there is some 

sense of true bewilderment that he is in charge of a credit union 

this size and on the track that it’s on. I believe that there are 

other members of the Senior Management team that share my 

feelings; however, I am speaking for myself and would be happy 

to provide additional feedback and specifics at any time. So I 

appreciate the follow-up and look forward to hearing from a 

communication specialist soon.

(App. at 162.) 

[7] Venture contacted Birky regarding the call, and provided a transcript of the call 

to Interra’s Board of Directors. Effective March 21, 2013, the Board discharged 

Sheets from his employment.

[8] Sheets filed a complaint against Birky, alleging defamation per se. The 

complaint was twice amended to add additional defendants and allegations. 

Ultimately, Sheets’s Third Amended Complaint consisted of six counts. Count 
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1, captioned Defamation Per Se, contained allegations that Birky defamed 

Sheets. Count 2 (also captioned Defamation Per Se), alleged that Birky had 

acted within the course and scope of his employment with Interra, such that 

Interra should be vicariously liable to Sheets. Count 3 (Negligence) included 

allegations that Venture and Bechler had agreed to monitor Sheets’s medical 

treatment and recovery following a brain hemorrhage but had acted negligently 

in monitoring and then reporting to Interra. Count 4 (Negligence) included 

allegations that Venture and Bechler failed to use reasonable care in the 

handling of Birky’s allegations. Count 5 (Intentional Interference) included 

allegations that Bechler intentionally interfered with Sheets’s employment 

relationship with Interra by making false reports as to Sheets’s cognitive 

abilities and by “lobbying the Board in person.” (App. at 56.) Finally, Count 6 

alleged a breach of fiduciary duty by Venture and Bechler.

[9] The parties filed various cross-motions for summary judgment. Following a 

hearing, the trial court granted summary judgment to Birky and Interra. Also, 

partial summary judgment was granted to Venture and Bechler. They were 

granted summary judgment on Count 3 (negligence in monitoring and 

reporting) and Count 6 (breach of fiduciary duty). A jury trial was conducted 

on the claims of negligence in handling of the hotline report and intentional 

interference with an employment relationship. At the conclusion of a nine-day 

trial, the jury found in favor of Venture and Bechler. This appeal ensued.

Discussion and Decision
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Summary Judgment Standard of Review

[10] A trial court’s grant of summary judgment on appeal to this Court is “clothed 

with a presumption of validity,” and an appellant has the burden of 

demonstrating that the grant of summary judgment was erroneous. Williams v. 

Tharp, 914 N.E.2d 756, 762 (Ind. 2009). Our standard of review is well 

established:

When reviewing a grant of summary judgment, our standard of 

review is the same as that of the trial court. Considering only 

those facts that the parties designated to the trial court, we must 

determine whether there is a “genuine issue as to any material 

fact” and whether “the moving party is entitled to judgment as a 

matter of law.” In answering these questions, the reviewing 

court construes all factual inferences in the non-moving party’s 

favor and resolves all doubts as to the existence of a material 

issue against the moving party. The moving party bears the 

burden of making a prima facie showing that there are no 

genuine issues of material fact and that the movant is entitled to 

judgment as a matter of law; and once the movant satisfies the 

burden, the burden then shifts to the non-moving party to 

designate and produce evidence of facts showing the existence of 

a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009) 

(internal citations omitted).

[11] When 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. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 608 
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(Ind. Ct. App. 2008), trans. denied. The role of the trial court at summary 

judgment is not to act as a trier of fact, but rather to determine whether the 

movant established, prima facie, either that there is insufficient evidence to 

proceed to trial, or that the movant is otherwise entitled to judgment as a matter 

of law. Kader v. State Dep’t of Corr., 1 N.E.3d 717, 727 (Ind. Ct. App. 2013). 

Witness credibility and the relative apparent weight of evidence are not relevant 

considerations at summary judgment. Id.

Grant of Summary Judgment to Birky and Interra

[12] The trial court granted summary judgment to Birky on Sheets’s defamation per 

se claim, concluding that Birky’s statements made in the hotline call did not 

“impute misconduct” or include an allegation of malfeasance, such that “to the 

extent those comments relate to [Sheets’s] employment and profession, [they] 

are not defamatory per se.” (App. at 22.) Because the allegation against Interra 

was one of vicarious liability, Interra was also granted summary judgment.4 

[13] On appeal, Sheets observes that Birky “alleged conduct that Sheets had 

committed that was inconsistent with his fitness to serve as president/CEO.” 

(Appellant’s Br. at 10.) He then argues that this falls within a defamation per se 

 

4 The trial court additionally concluded that, because the communication at issue was not defamatory per se, 

there was no need to reach the claimed defense of qualified privilege. See Schrader v. Eli Lilly & Co., 639 

N.E.2d 258, 262 (Ind. 1994) (recognizing that the qualified privilege of common interest “applies to 

communications made in good faith on any subject matter in which the party making the communication has 

an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if 

made to a person having a corresponding interest or duty.”) To defeat application of the privilege, the 

evidence must show that the speaker “lacked any grounds for belief as to the truth of the statements.” Bals v. 

Verduzco, 600 N.E.2d 1353, 1357 (Ind. 1992).
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category described in a concurring opinion in Gibson v. Kincaid, 221 N.E.2d 834, 

843 (Ind. Ct. App. 1966), that is, words that “tend to injure another in his 

office, profession, trade, business or calling.”5 Interra and Birky respond that, 

in order to constitute defamation per se, a communication related to one’s 

profession must impute actual misconduct. 

[14] In order to establish a claim of defamation, a plaintiff must prove (1) a 

communication with defamatory imputation, (2) malice, (3) publication, and 

(4) damages. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010). 

A statement is defamatory if it tends “to harm a person’s reputation by lowering 

the person in the community’s estimation or deterring third persons from 

dealing or associating with the person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 

(Ind. 2007). This is not to say that all statements having a defamatory 

imputation are defamation per se.

[15] An action for defamation per se “arises when the language of a statement, 

without reference to extrinsic evidence, constitutes an imputation of (1) 

criminal conduct, (2) a loathsome disease, (3) misconduct in a person’s trade, 

 

5 Alternatively, Sheets argues that his complaint may be understood as stating an additional claim, 

defamation per quod, “actionable only upon allegation and proof of special damage or harm.” Gibson, 221 

N.E.2d at 843. Counts 1 and 2 of Sheets’s Third Amended Complaint were each captioned “Defamation Per 

Se” but Sheets maintains that he alleged special damages – his loss of employment – and he notes that the 

complaint once uses the term “defamation” without the subsequent phrase “per se.” Sheets’s attorney 

advised the trial court that the claim was one of defamation per se, yet Sheets asserts that he should not be 

bound by his attorney’s representation. In the absence of fraud, a client is bound by his or her attorney’s 

representations. Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 n.5 (Ind. Ct. App. 1982). “The reliability of 

lawyers’ representations is an integral component of the fair and efficient administration of justice.” Binder v. 

Benchwarmers Sports Lounge, 833 N.E.2d 70, 75 (Ind. Ct. App. 2005). Accordingly, Sheets may not simply 

disregard the representations made to the trial court.
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profession, office, or occupation, or (4) sexual misconduct.” Dugan, 929 

N.E.2d at 186. In contrast, if words are not defamatory in themselves, but 

become so only when understood in the context of extrinsic evidence, they are 

considered defamatory per quod. Id. Damages are presumed in an action for 

defamation per se, but must be proven in an action for defamation per quod. 

Id.

[16] Birky communicated, via the Interra Compliance Line, that he perceived Sheets 

as being “more aggressive” since the disengagement of consulting services. 

(App. at 162.) Birky also opined that Sheets’s cognitive ability had been 

impaired, as evidenced by a lack of focus on significant issues and repetition of

the same questions many times. Birky also claimed to have received 

“feedback” as to Sheet’s “not being fit for leadership” and being an 

“embarrassment.” (App. at 162.) Although such statements cast aspersions 

upon Sheet’s fitness to perform his professional duties – albeit in a forum 

designed for such communications – they provide a general assessment of 

unfitness, and do not allege misconduct. See Meyer v. Beta Tau House Corp., 31 

N.E.3d 501, 515 (Ind. Ct. App. 2015) (recognizing that, if the speaker is merely 

expressing his subjective view, interpretation, or theory, the statement is not 

actionable defamation).

[17] Recent Indiana decisions clarify that defamation per se as to one’s profession

involves actual misconduct as opposed to a generalized opinion. In Levee v. 

Beeching, 729 N.E.2d 215 (Ind. Ct. App. 2000), a school principal sued a 

teacher’s union and the union representation for defamation per se. The union 
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representative had called the principal a “liar” and stated that she “favored 

some staff.” Id. at 218. A panel of this Court concluded that the words were 

not “so obviously and naturally harmful that proof of their injurious character 

can be dispensed with.” Id. at 220. The Court also observed that the 

statements were not defamatory on their own, but were only defamatory with 

reference to the union representative’s pattern of personal attacks against the 

principal. Id.

[18] Baker v. Tremco, 917 N.E.2d 650 (Ind. 2009), involved a plaintiff who quit his 

former employment with the defendant after a workplace dispute. The plaintiff 

then started his own business and the former employer’s representative 

commented that the plaintiff “had engaged in inappropriate sales practices.” Id.

at 657. Our Indiana Supreme Court found the statement to be “far too vague to 

conclude that [it was] so obviously and naturally harmful that proof of [its] 

injurious character c[ould] be dispensed with.” Id. at 658. Accordingly, the 

statement was not defamatory per se. Although the phrase “inappropriate sales 

practice” was directed toward the plaintiff’s “trade, profession, or occupation,” 

it did not impute the requisite “misconduct.” Id.

[19] Wartell v. Lee, WL 7983987, ___ N.E.3d ___ (Ind. Ct. App. 2015), trans. denied,

was an appeal following a grant of summary judgment on a claim of 

defamation per se. Lee had sent a letter to then-Purdue president Dr. France 

Cordova urging denial of Chancellor Michael Wartell’s request for an exception 

to Purdue’s retirement policy. The letter did not mention specific incidents of 

misconduct; rather, it included general statements about Wartell’s character and 
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conduct in his role as chancellor that “were arguably defamatory.” Slip op. at 

6. However, the vague statements (including references to “his word not being 

his bond,” a “lack of integrity,” and “broken faith” as well as a prediction that 

support “will be hard to come by”) did not rise to the level of defamation per se. 

Slip op. at 2. The Court explained:

It is understandable and indeed tempting to leap from a 

determination that an allegedly defamatory statement is related 

to a person’s trade, profession, office, or occupation to the 

conclusion that the statement is defamatory per se. However, 

that is simply not the proper legal analysis. As a matter of law, 

for an allegedly defamatory statement to qualify as defamation 

per se, it must impute not only the serious level of misconduct of 

the type described in Dugan, but also in a way that does not 

require reference to extrinsic facts for context.

Slip op. at 4. 

[20] Birky’s communication regarding Sheets did not impute occupational 

misconduct without resort to extrinsic evidence. The trial court properly 

concluded, as a matter of law, that Birky’s statements did not constitute 

defamation per se. Accordingly, the trial court properly granted summary 

judgment on this claim to Birky and Interra.

Jury Instruction – Tortious Interference

[21] Sheets contends that the trial court abused its discretion by rejecting his 

proffered jury instructions on intentional interference with an employment-atwill contract. We resolve an appellate claim of trial error in refusing a tendered 
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instruction by considering (1) whether the instruction is a correct statement of 

the law, (2) whether there is evidence of record to support the giving of the 

instruction, and (3) whether the substance of the instruction is covered by 

another instruction given by the trial court. Raess v. Doescher, 883 N.E.2d 790, 

798 (Ind. 2008). When evaluating these factors, we are mindful that instructing 

the jury generally lies in the sole discretion of the trial court and reversal is 

appropriate only for an abuse of that discretion. Id. at 799. 

[22] Indiana recognizes that intentional unjustified interference by third parties6 with 

an employment contract is an actionable tort. Drake v. Dickey, 2 N.E.3d 30, 34 

(Ind. Ct. App. 2013). Tortious interference with a contractual relationship 

consists of the following elements: (1) the existence of a valid and enforceable 

contract; (2) the defendants’ knowledge of the existence of the contract; (3) the 

defendants’ intentional inducement of breach of the contract; (4) the absence of 

justification; and (5) resultant damages. Id.

[23] On August 4, 2015, before the jury trial commenced, Sheets filed a proposed 

final jury instruction stating that his employment-at-will contract was protected 

from outside interference; he had the burden to prove five requisite elements; 

and two elements were undisputed. At the conclusion of trial, the litigants were 

instructed to file proposed instructions and the trial court conducted a lengthy 

 

6 Venture and Bechler now contend that, when they monitored the hotline and reported Birky’s call, they 

acted as an agent of Interra, as opposed to a third party. Nonetheless, they do not suggest that they made this 

argument at trial, and it appears that both parties agreed that the jury would be instructed on intentional 

interference with an at-will employment contract.
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conference on final instructions. Sheets tendered two proposed instructions, 

one of which was an abbreviated version of his earlier proffered instruction:

7

Jack Sheets was an employee at will of Interra Credit Union. 

Jack Sheets’ employment at will relationship was a contract that 

the law protects from outside interference by third parties.

(App. at 873.)

[24] The instruction was not given. Rather, the trial court gave the jury the 

following two instructions on tortious interference with an employment 

contract:

To recover damages for wrongful interference with contractual 

relations, Sheets must prove by the greater weight of the evidence 

that:

(1) A valid and enforceable contract existed between Sheets and 

Interra Credit Union;

(2) The Venture Defendants knew the contract existed;

(3) The Venture Defendants intentionally caused a breach of the 

contract;

(4) No justification existed for the Venture Defendants’ conduct; 

and

 

7 The second tendered instruction concerned the gratuitous assumption of a duty.
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(5) Sheets was harmed as a result.

(App. at 909).

Plaintiff was an employee at will of Interra Credit Union. 

Plaintiffs’ employment was a relationship. An employment at 

will is an employment relationship that has no definite length of 

time. Except for a few limited circumstances, an employment-atwill relationship may be terminated by the employer or employee 

at anytime and for any reason or for no reason at all.

(App. at 912.) The trial court also instructed the jury that breach of an at will 

employment agreement does not mean only termination of employment, and 

that Venture would be liable if Bechler committed the alleged tort while acting 

within the scope of his agency.

[25] At the jury instruction conference, Sheets argued that “without giving my 

instruction ... there’s a real danger that the jury might think it was an employee 

at will relationship, therefore any – it could be terminated for any reason, 

including the interference of the Defendants.” (Sept. 1, 2015 Tr. at 16.) He 

renews this argument on appeal: “Without the benefit of Sheets’ tendered 

instructions, the jury likely understood that “any reason” for termination could 

include the Defendants’ alleged interference.” Appellant’s Brief at 20. He 

further argues that jurors would understand a “contract” to be a written 

contract and thus “it was incumbent upon the trial court to instruct the jury that 

Sheets’ employment at will was a contract that the law protects from outside 

interference.” Appellant’s Brief at 20.
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[26] Sheets’s understanding of protection of an at-will employment contract is overly 

broad. In Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d 282 (1991), 

our Indiana Supreme Court recognized that a plaintiff may bring a claim for 

tortious interference with an employment relationship although the contract is 

terminable at will. At the same time, however, the Court observed: “The 

plaintiff bringing such an action, however, must be prepared to show that the 

defendant interferer acted intentionally and without a legitimate business 

purpose.” Id. at 285. Sheets’s instruction to the effect that the law protects such 

a contract “from outside interference” is incomplete, in that it does not 

contemplate that the interference must be intentional or without a legitimate 

business purpose.

[27] Sheets did not demonstrate that the rejected instruction was a correct statement 

of the law, supported by evidence of record, and not covered by other 

instructions of the trial court. As such, he has demonstrated no abuse of 

discretion.

Conclusion

[28] Summary judgment was properly granted on the defamation per se claim. The 

trial court did not abuse its discretion when it refused Sheets’s incomplete 

instruction on the protection afforded by Indiana law to an at-will employment 

contract.

[29] Affirmed.
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Bradford, J., and Altice, J., concur.