author: MATHIAS, Judge.

text:
    Robert FECHTMAN, as Guardian of the Estate of Roberto Hernandez, Appellant-Plaintiff, v. UNITED STATES STEEL CORPORATION, Appellee-Defendant, Zurich North America, Appellee-Intervenor.
    No. 45A04-1209-CT-474.
    Court of Appeals of Indiana.
    Sept. 25, 2013.

      Lloyd P. Mullen, Mullen & Associates, P.C., Crown Point, IN, Michael L. Deppe, Law Office of Michael L. Deppe, P.C., Lake Station, IN, Attorneys for Appellant.
    Terence M. Austgen, Elizabeth M. Be-zak, Burke, Costanza & Carberry, LLP, Merrillville, IN, Attorneys for Appellee, United States Steel Corporation.
    Catherine M. Hart, William A. Ramsey, Murphy, Ice & Koeneman, LLP, Fort Wayne, IN, Attorneys for Appellee, Zurich North America.
   OPINION

MATHIAS, Judge.

Roberto Hernandez (“Hernandez”) filed a complaint in Lake Circuit Court against United States Steel Corp. (“U.S. Steel”) seeking to recover for injuries Hernandez sustained while working on U.S. Steel property for an independent contractor hired by U.S. Steel. The jury found in favor of Hernandez but apportioned five percent of the fault to Hernandez, fifteen percent to U.S. Steel, and eighty percent to Hernandez’s employer, the non-party Roger & Sons. Based on the jury’s finding of damages in the amount of $4,657,792.87, the trial court entered judgment against U.S. Steel in the amount of $698,668.93. Hernandez appeals and claims that the trial court erred in refusing an instruction tendered by Hernandez regarding strict liability for the conduct of an abnormally dangerous activity.

Zurich North America (“Zurich”), the worker’s compensation carrier, cross-appeals and claims that the trial court erred in instructing the jury on how to consider the worker’s compensation benefits received by Hernandez in arriving at its verdict. Concluding that the trial court did not abuse its discretion in refusing Hernandez’s tendered instruction, and concluding that the question presented by Zurich is moot, we affirm.

Facts and Procedural History

Hernandez was an employee of Roger & Sons, a contractor hired to perform maintenance at U.S. Steel’s Gary Works Steel Manufacturing plant. Hernandez and two coworkers were assigned to clean the sidewalk on a roadway near a motor control center that was in the vicinity of a dust catcher that was attached to one of the blast furnaces at the plant. A dust catcher is a large, vertical structure. Gases from the blast furnace enter the dust catcher from the top where they decelerate, causing the coarser particles to fall to the bottom of the catcher, where they collect in a funnel-shaped hopper at the bottom, while the gases flow out through a lateral outlet located in the upper portion of the catcher. The collected dust can then be discharged from the catcher through a lock at the bottom of the hopper. When a blast furnace is brought back online, the dust catcher needs to be emptied or “dumped,” a process which releases large amounts of carbon monoxide gas.

As Hernandez explains in some depth, carbon monoxide is a colorless, odorless, and potentially deadly gas. Carbon monoxide attaches strongly to the hemoglobin in red blood cells that is normally used to carry oxygen. And when carbon monoxide has attached to the hemoglobin, it can no longer be used to transport oxygen to the rest of the body.

U.S. Steel has numerous safety procedures and requirements in place at the Gary Steel plant, and all independent contractors are required to comply with them. Before a contractor begins a project, it must have an on-site safety meeting with U.S. Steel representatives, and prior to each shift, the contractors must complete work permits.' Such work permits require the contractors to report to the U.S. Steel control room before starting any work. There, the contractor signs in and provides the control room operator with the work permit. The control room operator then keeps the original permit and provides a copy thereof to the contractor. The contractor has permission only to work in its designated areas, and it is the duty of the contractor to make sure that its employees remain ' within these designated areas. Contractors are also required to meet other safety requirements, such as developing their own safety plan and providing their own safety personnel to oversee their projects. Contractors are also required to have safety meetings with their employees hefore the beginning of each shift.

U.S. Steel also has a written safety procedure for emptying the dust catcher. The person wanting to empty the dust catcher must have a face-to-face meeting with the control room operator and receive a “lockout key” and authorization to do so. Then, there is supposed to be a visual inspection of the area near the blast furnace to check to make sure that no one is in the area, including the backside roadway. Then, flashing lights and a siren are activated to warn people in the area that the dust catcher is going to be emptied. Also, the operator announces over U.S. Steel’s • public-address system, “dumping dust catcher” three times. The operator is then to wait between five to seven minutes after this announcement to receive any responses that the catcher should not be dumped at that time. Additionally, all personnel that might be exposed to carbon monoxide are issued small carbon monoxide detectors.

On January 17, 2005, Hernandez and two coworkers were assigned to clean sidewalks near a blast furnace that.was about to be restarted, a procedure that requires that the attached dust catcher be emptied. The dust catcher operator verified with the control room operator that he had permission to dump the dust catcher and manually checked the area to ensure that there were no people in the immediate vicinity. He then activated the siren and flashing lights to warn that the dust catcher was about to be dumped. He also announced three times that the dust catcher was about to be dumped. When he received no response, he started the procedure to dump or empty the dust catcher, which lasted from five to ten minutes and released carbon monoxide.

Unfortunately for Hernandez, Roger & Sons had not reported to the control room operator and had not advised U.S. Steel where Hernandez and his coworkers would be working. Also, the dust catcher operator’s visual inspection of the area failed to notice Hernandez and his coworkers, who were overwhelmed by the carbon monoxide and lost consciousness. The three men were later discovered approximately fifty to seventy feet from where the dust catcher was opened. Hernandez was resuscitated and taken to the emergency room.

At the hospital, Hernandez and his two coworkers were treated by Dr. Paul Nyon-gani (“Dr. Nyongani”), a physician who has practiced in Indiana for over twenty-five years and who specializes in wound care and hyperbaric oxygen treatment. Dr. Nyongani stated that Hernandez was one of the worst cases of carbon monoxide poisoning that he had ever seen. Hernandez’s carboxyhemoglobin level was twenty-seven, whereas a normal level is zero to nine. Hernandez could not maintain his vital signs and had to be put on a ventilator; he came close to death but survived. As he recovered, Hernandez had memory issues, suffered from headaches, and had insomnia. When last treated by Dr. Nyon-gani, Hernandez still had memory loss, weakness, dizziness, and occasional vomiting. Hernandez was eventually taken to a rehabilitation center, where his recovery was slow. Hernandez now resides at a rehabilitation center in Tampa, Florida and will likely remain in such an institution for the rest of his life. As a result of his injuries, Hernandez received $994,757.37 in worker’s compensation benefits.

On March 3, 2005, Hernandez filed a negligence complaint against U.S. Steel, which was amended on March 11, 2005. Hernandez’s complaint alleged that U.S. Steel acted negligently when it emptied the dust catcher, causing personal injury to Hernandez. A jury trial was held from July 23 to August 15, 2012. After the presentation of evidence, Hernandez tendered a jury instruction that would have informed the jury:

(1) One who carries on an abnormally dangerous activity, such as releasing poisonous gas into the atmosphere, is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Appellant’s App. p. 36. The trial court declined to give the tendered instruction.

Zurich also tendered a jury instruction that would have informed the jury that any amount of worker’s compensation benefits that Hernandez had to repay would be paid out. of any verdict in his favor and that the jury should not reduce its verdict by the amount Hernandez would be required to repay; conversely, the instruction would have informed the jury that any amount of worker’s compensation benefits Hernandez did not have to repay should act to reduce any verdict in favor of Hernandez. The trial court also refused to give Zurich’s tendered instruction.

At the conclusion of the trial, the jury returned a verdict in favor of Hernandez, finding his damages to be $4,657,792.87. The jury apportioned five percent of the fault to Hernandez himself, fifteen percent to U.S. Steel, and eighty percent to non-party Roger & Sons, Hernandez’s employer. The trial court then entered judgment against U.S. Steel in the amount of $698,669.93. Hernandez now appeals.

Standard of Review

Generally speaking, a trial court has broad discretion when it comes to instructing the jury. Arlton v. Schraut, 936 N.E.2d 831, 840-41 (Ind.Ct.App.2010) (citing Wal-Mart Stores, Inc. v. Wright, 774 N.E.2d 891, 893-94 (Ind.2002)). However, when the question is whether the instruction is a correct statement of the law, our review is de novo. Id. at 841. Here, the question before us is whether the release of carbon monoxide gas during the dumping of the dust catcher is an abnormally dangerous activity subject to strict liability. This is a question of law. Erbrich Products Co., Inc. v. Wills, 509 N.E.2d 850, 857 (Ind.Ct.App.1987) (“the issue of whether an activity is abnormally dangerous is a question of law for the court to decide.”). Thus, our review is de novo. See id.; see also Arlton, 936 N.E.2d at 841.

I. Hernandez’s Appeal

In determining whether an activity is subject to strict liability, our courts have looked to Section 519 of the Restatement (Second) of Torts. See Erbrich, 509 N.E.2d at 853. This section provides:

(1)One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Restatement (Second) of Torts § 519 (1977). When determining whether an activity is “abnormally dangerous,” our courts consider the following factors:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Restatement (Second) of Torts § 520 (1977); Bridges v. Ky. Stone Co., Inc., 425 N.E.2d 125, 126 (Ind.1981); Erbrich, 509 N.E.2d at 853.

We do not examine whether a particular activity is abnormally dangerous in a “factual vacuum.” Erbrich, 509 N.E.2d at 856. Instead, “[w]hen deciding whether to impose § 519 strict liability, we must not look at the abstract propensities or properties of the particular substance involved, but must analyze the defendant’s activity as a whole.” Id. “The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.” Restatement (Second) of Torts § 520, comment f (1977). As noted by the federal Seventh Circuit Court of Appeals, “Indiana courts have generally been reluctant to impose strict liability based on the abnormally dangerous activity doctrine.” Consol. Rail Corp. v. Allied Corp., 882 F.2d 254, 257 n. 3 (7th Cir.1989). With this in mind, we consider each of the Restatement criteria.

A.Existence of a High Degree of Risk of Some Harm

The first factor to consider under Restatement section 520 is the existence of a high degree of risk of some harm to the person, land, or property of others. Hernandez notes that carbon monoxide is an unavoidable byproduct of the steelmaking process and that it is impossible to predict where the gas will go when released. He also notes that the wind can move the gas in an unpredictable manner and that U.S. Steel dumps the dust catcher at night so that fewer people will be exposed to the potential danger. He especially focuses on the testimony of one of U.S. Steel’s experts, who testified that the only way to make the process completely safe was not to do it. See Tr. Vol. Ill, p. 122 (“You can always make things safer. You can ... have all the steel made over in Europe and no one would ever die from carbon monoxide in a steel mill in the United States. That would be safer.”). But the question is not whether it is possible to eliminate all possible risk involved in an activity. The question is whether an activity is so dangerous that “despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence.” Restatement (Second) of Torts § 520, comment f (1977). In this regard, we acknowledge that there remains a certain degree of risk of harm involved with dumping the dust catcher.

B. Likelihood of Great Harm

The second factor to consider is the likelihood that the harm that results from the activity will be great. To be sure, carbon monoxide is an odorless, colorless, and a potentially deadly gas. Although U.S. Steel notes that carbon monoxide is produced in many forms of combustion, especially by internal combustion engines, we think that releasing a substantial amount of carbon monoxide at one time does involve a likelihood of considerable harm.

C. Inability to Eliminate Risk

The inability to eliminate the risk by the exercise of reasonable care is the third factor to consider. As noted by this court in Erbrich, this factor is “at the core of § 519 [strict] liability.” 509 N.E.2d at 857 n. 3. Hernandez again focuses on the evidence that the risk associated with dumping the dust catcher could not be eliminated. However, U.S. Steel presented evidence that it takes several measures to eliminate the risk associated with the release of the carbon monoxide gas. Contractors must have an on-site safety meeting with U.S. Steel, and work permits are required before the start of each shift. These permits require the contractor to inform the U.S. Steel control room where its employees will be working, and the contractor’s employees are only allowed to work in the areas designated. Additionally, U.S. Steel has a written safety procedure for dumping the dust catcher: the person desiring to dump the dust catcher must have a face-to-face meeting with the control room operator and receive specific authority to do so; there is to be a visual inspection of the area near the dust catcher to ensure that no one is in the area; then sirens and flashing lights are activated, and it is announced over the public-address system that the dust catcher is about to be dumped; and after waiting five to seven minutes after this announcement for a response, the operator dumps the catcher.

These procedures and safeguards allowed U.S. Steel to dump its dust catchers multiple times a day for over a decade in a safe manner without prior injuries. The residual risk involved in dumping the dust catcher is not the sort of “unavoidable risk remaining in the activity” that should subject U.S. Steel to liability regardless of the level of care it exercised. See Restatement (Second) of Torts § 520, comment h. (1977).

D.Common Usage

The fourth factor listed in Restatement Section 520 is the extent to, which the activity is not a matter of common usage. Hernandez notes that dumping a dust catcher is not a common activity for most people. See Restatement (Second) of Torts § 520, comment i. (1977) (“An activity is a matter of common usage if it is customarily carried on by the great mass of mankind or by many people in the community.”). Thus, it is . not a terribly common activity, even though it is routinely done at U.S. Steel.

E. Inappropriateness of the Activity

The fifth factor listed in Section 520 of the Restatement is the “inappropriateness of the activity to the place where it is carried on.” We think it apparent that this factor weighs against applying strict liability. The activity involved, operating a blast furnace and dumping the dust catcher, is wholly appropriate to the highly industrial setting of U.S. Steel’s enormous, 3,000-acre Gary Works steel mill.

F. Value to the Community vs. Dangerous Attributes

The sixth and final factor to consider is the extent to which the value to the community of the activity at issue is outweighed by its dangerous attributes. Here, it is hard to understate the value of steel manufacture to not only the local community, but to our State and our society at large. The manufacture of steel not only provides jobs to the local community; steel is the backbone of the industrial era. Without steel, there would be no railroads, automobiles, skyscrapers, or ■ modern bridges, just to name a few of the steel-dependent mechanisms central to modern life. The risk associated with dumping the dust catcher and the accompanying release of carbon monoxide, when mitigated by the exercise of reasonable care, is clearly outweighed by the undeniable value to the community of steel manufacturing. This factor clearly and strongly weighs against a finding of strict liability.

G. Consideration of Factors

Viewing all of these factors in conjunction, it is clear that there is a certain degree of risk involved in dumping the dust catcher, and the harm that results from carbon monoxide exposure can be great. But through the exercise of reasonable care, the risk can be minimized if not wholly eliminated. Indeed, were it not for the negligence of Hernandez’s employer, who was found to be eighty percent at fault for Hernandez’s injuries, he would not have been, unbeknownst to U.S. Steel, in an area where he could have been exposed to the gas when the dust catcher was dumped. And although manufacturing steel and operating a blast furnace is not a matter of common usage, it is wholly appropriate to the place where it is carried on: U.S. Steel’s Gary Works. Lastly, the value to the community of steel manufacture is not outweighed by its dangerous attributes. For all these reasons, we determine as a matter of law that U.S. Steel’s action of dumping the dust catcher and thereby releasing carbon monoxide gas is not an abnormally dangerous activity that should be subject to strict liability.

Although Hernandez cites various non-Indiana cases in support of his argument, see, e.g., McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 685 (1970) (holding that the storage of a large amount of natural gas in a populated area was an abnormally dangerous activity subject to strict liability), we find support for our conclusion in Indiana case law. For example, in Bridges v. Kentucky Stone, Inc., 425 N.E.2d 125, 127 (Ind.1981), our supreme court held that the storage of dynamite was not an abnormally dangerous activity subject to strict liability. And in Erbrich Products Co. v. Wills, this court held that the manufacture and storage of chlorine gas was not an abnormally dangerous activity. 509 N.E.2d at 856. See also Dow Chem. Co. v. Ebling, 723 N.E.2d 881, 909 (Ind.Ct.App.2000), summarily aff'd in relevant part, 753 N.E.2d 633 (Ind.2001) (holding that application of a pesticide was not an ultra-hazardous activity subject to strict liability); Inland Steel v. Pequignot, 608 N.E.2d 1378, 1385 (Ind.Ct.App.1993) (holding that the act of hauling steel on a truck was not an abnormally dangerous activity and noting that exercise of reasonable care could have prevented the accident at issue); Hedges v. Public Serv. Co. of Ind., 396 N.E.2d 933, 937 (Ind.Ct.App.1979) (holding that supply of electricity is not an abnormally dangerous activity). In fact, it appears that strict liability for abnormally dangerous activities has been limited in Indiana to blasting and housing wild animals in a residential area. See Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E.2d 406, 410 (1963) (blasting); Irvine v. Rare Feline Breeding Ctr., Inc., 685 N.E.2d 120, 124-25 (Ind.Ct.App.1997) (wild animal).

II. Zurich’s Cross-Appeal

Zurich cross-appeals and claims that the trial court erred in refusing its tendered instruction regarding how the jury should consider the worker’s compensation benefits Hernandez had received. Zurich argues on appeal that “[i]f this Court orders a new trial, Zurich asks this Court to instruct the Trial Court on the proper instruction to give the jury.” Ap-pellee/Cross-Appellant’s Br. p. 3. As we have affirmed the trial court’s decision, there is no need to address Zurich’s argument. Indeed, Zurich admits that if we affirm the trial court, then “the propriety of the instruction would technically be moot.” Id. at 13.

“When the principal questions in issue have ceased to be matters of real controversy between the parties, the errors assigned become moot questions, and we will not retain jurisdiction to decide them.” Castetter v. Lawrence Twp., 959 N.E.2d 837, 842 (Ind.Ct.App.2011). Still, even if an appeal is moot or no practical remedy is available to the parties, we can still review issues under the public interest exception when the case involves a question of great public importance which is likely to recur. Id. at 841-42. Here, however, we do not think the question presented by Zurich presents an issue of great public importance justifying our consideration of an admittedly moot issue.

Conclusion

The trial court did not err in refusing Hernandez’s tendered instruction because U.S. Steel’s act of dumping the dust catcher was not an abnormally dangerous activity subject to strict liability. We decline to consider the question presented by Zurich because it is moot.

Affirmed.

BAKER, J., and MAY, J., concur.

      . Hernandez’s second amended complaint substituted Robert Fechtman, as the guardian of Hernandez’s estate, as the named plaintiff. For purposes of clarity, we will refer to the plaintiff as "Hernandez.”

      . See http://www.cdc.gov/co/faqs.htm.

      . Hernandez also claims that using dynamite is a “much safer activity” than dumping the dust catcher. Appellant's Br. p. 5. However, the pages of the transcript he cites do not support this statement. Instead, while questioning a witness regarding the process of using dynamite to clear clogged pipes in the dust catcher, Hernandez’s counsel asked, "is dumping the dust catcher any less dangerous [than using dynamite]; or are you still just as dead if you’re too close?” Tr. p. 36. The witness responded, "if you’re too close, yes.” Id.

      . Of course, U.S. Steel remains responsible for any failure to exercise reásonable care under a theory of negligence. In fact, the jury found that U.S. Steel was fifteen percent at fault for Hernandez’s injuries under a theory of negligence.

      . This is "distinguished from the use and explosion of dynamite, the latter activity being one to which this jurisdiction accords absolute liability.” Id. (citing Enos Coal Mining Co. v. Schuchart, 243 Ind. 692, 188 N.E.2d 406 (1963)).

      . U.S. Steel also claims that subjecting it to strict liability under the current circumstances would make it liable for the negligence of an independent contractor. The general rule in Indiana is that a principal is not liable for the negligence of an independent contractor. Helms v. Carmel High Sch. Vocational Bldg. Trades Corp., 854 N.E.2d 345, 346 (Ind.2006) (citing Bagley v. Insight Commc’ns Co., 658 N.E.2d 584 (Ind.1995)). There are five exceptions to this general rule: (1) where the contract requires the performance of intrinsically dangerous work; (2) where the principal is by law or contract charged with performing the specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will probably cause injury to others unless due precaution is taken; and (5) where the act to be performed is illegal. Id. But because we have concluded that dumping the dust catcher is not an abnormally dangerous activity that would subject U.S. Steel to strict liability, we need not consider whether a contrary holding would conflict with the general rule of principal non-liability.


source: Caselaw Access Project

author: RILEY, Judge.

license: Public Domain

text:
    Paul J. LIVERS, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 06A01-1303-CR-119.
    Court of Appeals of Indiana.
    Sept. 30, 2013.

      Jeffrey S. Jacob, Jacob Hammerle & Johnson, Zionsville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Paul Livers II (Livers), appeals his convictions for battery causing bodily injury, a Class A misdemeanor, Ind.Code § 35 — 42—2—1(a)(1)(A); and interference with reporting a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1).

We affirm.

ISSUES

Livers raises two issues on appeal, which we restate as the following:

(1) Whether Livers was denied effective assistance of counsel based upon trial counsel’s untimely filing of a demand for jury trial; and
(2) Whether the evidence was sufficient to support his conviction.

FACTS AND PROCEDURAL HISTORY

On July 22, 2012, Lisa Maroon (Maroon) returned from a business trip to her home in Lebanon, Indiana, where she lived with Livers and another man. Livers was not home when Maroon arrived but appeared later. Livers was intoxicated and the two began arguing. The dispute escalated, and Maroon went to the garage to get into her car to leave. Maroon sat on the driver’s side of the car with the door ajar. Livers, who had followed her to the garage, hit Maroon in the jaw.

Maroon told Livers that she was going to call the police. Livers took Maroon’s cell phone and keys, which were lying on the passenger seat of the car. Thereafter, Livers left the house but left Maroon’s cell phone on a table near the door to the home. Maroon retrieved her cell phone and called the police.

Officer Daniel Vernon (Officer Vernon) of the Lebanon Police Department responded and arrived at Maroon’s residence to take a statement. Officer Vernon saw that Maroon’s clothes were ripped and that she had scratches on her body and a red mark on her face. Officer Vernon took photographs of Maroon, including her face and arm.

On July 24, 2012, the State filed an Information charging Livers with Count I, domestic battery, a Class A misdemeanor, Ind.Code § 35-42-2-1.8; and Count II, interference with reporting a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1). On August 14, 2012, an initial hearing was held and a bench trial was set for October 17, 2012. The trial court also appointed counsel for Livers, who initialed an advice of rights form. Paragraph No. 1 of the advice of rights form provided:

1. You have a right to a public and speedy trial of your case, and that could be a trial by court of [sic] by jury. FOR A MISDEMEANOR CHARGE, YOU MUST REQUEST A JURY TRIAL IN WRITING AT LEAST TEN (10) DAYS BEFORE THE FIRST SCHEDULED [sic] TRIAL DATE, OR YOU WILL LOSE THE RIGHT TO TRIAL BY JURY. If you are charged with a felony offense your case will automatically be set for a jury trial.

(Appellant’s App. p. 62).

On October 17, 2012, Livers requested a continuance and the bench trial was rescheduled to December 19, 2012. On October 26, 2012, Livers filed a request for jury trial pursuant to Indiana Criminal Rule 22, which the trial court denied as untimely filed. On November 14, 2012, Livers filed a praecipe for a contested bench trial, which the trial court granted on November 15, 2012.

On January 16, 2013, a bench trial was held. Prior to the start of the bench trial, Livers renewed his request for a jury trial, which the trial court again denied. On January 22, 2013, the trial court issued its Order, acquitting Livers of domestic battery, but finding him guilty of battery causing bodily injury and interference with reporting a crime. On February 14, 2013, the trial court sentenced Livers to two years of incarceration with 722 days suspended to probation.

Livers now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Ineffective Assistance of Counsel

Livers argues on appeal that he was denied the effective assistance of trial counsel based upon his counsel’s failure to timely file a demand for jury trial. Ineffective assistance of counsel claims are subject to the two-part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our supreme court has summarized the relevant requirements of this two-part test:

First, a defendant must show that counsel’s performance was deficient. This requires a showing that counsel’s representation fell below an objective standard of reasonableness and that counsel made errors so serious that counsel was not functioning as counsel guaranteed to the defendant by the Sixth Amendment. Second, a defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, meaning a trial where the result is reliable. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Further, counsel’s performance is presumed effective, and a defendant must offer strong and convincing evidence to overcome this presumption.

Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind.2010).

Livers asserts that his trial counsel’s untimely filing of a jury trial demand constituted deficient performance that resulted in prejudice. Indiana Rule of Criminal Procedure 22 provides that for misdemeanor offenses, defendants must make a written request for a jury trial “not later than ten (10) days prior to the first trial date set for the case.” Failure to timely demand a jury trial constitutes a waiver “unless a defendant is without fifteen (15) days’ advance notice of the scheduled trial date and did not receive an explanation of the consequences of his failure to demand a trial by jury.” Crim. R. 22.

Here, Livers’ first scheduled trial date was October 17, 2012. He received notice of the trial date on August 15, 2012 and was advised of the consequences of not demanding a jury trial. Pursuant to Crim. R. 22, Livers had up to ten days before the trial date to make his demand for a jury trial. Instead, on October 26, 2012, his trial counsel filed a motion for jury trial, which was denied by the trial court as untimely.

Livers contends that the foregoing facts give rise to an inference that his trial counsel inadvertently missed the deadline to request a jury trial. However, the record does not provide any indication from Livers that he wanted a jury trial prior to his trial counsel’s belated request. Nor did trial counsel provide a reason for the untimeliness either in her October 26, 2012 motion or at the bench trial.

Livers elected to raise his claim on direct appeal, rather than in post-conviction proceedings, relying solely upon the trial record. A defendant who asserts an ineffective assistance of counsel claim on direct appeal runs the risk that that the issue will be foreclosed from collateral review. Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998), cert. denied, 528 U.S. 861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). The presentation of ineffective assistance of counsel claims often requires the development of new facts not present in the trial record. See McIntire v. State, 717

N.E.2d 96, 101 (Ind.1999). As explained by the United States Supreme Court, “[i]f the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it.” Massaro v. U.S., 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Similarly, “[t]he trial record may contain no evidence of alleged errors of omission, much less the reasons underlying them.” Id. As pointed out by the Seventh Circuit:

When the only record on which a claim of ineffective assistance is based is the trial record, every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight. It is no surprise that such claims almost always fail.

United States v. Taglia, 922 F.2d 413, 417-18 (7th Cir.1991), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991).

We conclude that the record is insufficient to evaluate Livers’ ineffective assistance of counsel claim on direct appeal. This court has no testimony from trial counsel which might explain her conduct. Nor is there any indication in the record that Livers wanted a jury trial prior to his counsel’s belated request. Cf. Lewis v. State, 929 N.E.2d 261, 265 (Ind.Ct.App.2010). Absent such a record, Livers has failed to demonstrate his trial counsel’s ineffectiveness and the presumption that counsel performed competently prohibits this court from finding his trial counsel’s performance deficient.

II. Incredible Dubiosity

Livers next argues that the evidence was insufficient to sustain his conviction because Maroon’s testimony was incredibly dubious. Under the “incredible dubiosity rule,” this court may impinge upon the jury’s responsibility to judge the credibility of witnesses when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony. Manuel v. State, 971 N.E.2d 1262, 1271 (Ind.Ct.App.2012). If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. Id. Application of this rule is rare, though, and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. Id. This incredible du-biosity rule applies only when a witness contradicts himself or herself in a single statement or while testifying, and does not apply to conflicts between multiple statements. Glenn v. State, 884 N.E.2d 347, 356 (Ind.Ct.App.2008), trans. denied.

Livers claims that Maroon was inconsistent in describing how Livers hit her jaw while holding the driver’s side door open and therefore her testimony was incredibly dubious. He argues that Maroon described his conduct at least three different ways: Livers hit her through the car door window, or over or through the car door itself. While somewhat equivocal, we do not find this testimony incredible because Maroon consistently testified that Livers struck her on the left side of her jaw, and she never deviated from that testimony. Further, during re-direct, the State clarified that by holding the door open, there was an opening between the car and the door. As a result of observing Livers’ “physique in the courtroom” and without testimony regarding the size of [Maroon’s] car,” the trial court concluded that Livers did not show that Maroon’s testimony lacked plausibility. (Appellant’s App. p. 37). More importantly, the State produced circumstantial evidence in the form of Officer Vernon’s testimony on Maroon’s jaw injury and photographs depicting the same. Thus, we conclude that the State provided sufficient evidence to support Livers’ battery conviction.

CONCLUSION

Based upon the foregoing, we conclude that Livers was not denied effective assistance of counsel. We further conclude that the State produced sufficient evidence to prove beyond a reasonable doubt that Livers committed battery.

Affirmed.

ROBB, C.J. and VAIDIK, J. concur.


author: BROWN, Judge.

text:
    Joseph M. GUINN, Appellant, v. APPLIED COMPOSITES ENGINEERING, INC., Appellee.
    No. 49A02-1303-CC-239.
    Court of Appeals of Indiana.
    Sept. 30, 2013.

      Donald F. Foley, Foley & Abbott, Indianapolis, IN, Attorney for Appellant.
    Peter S. Kovacs, Peter Kovacs Law PC, Fishers, IN, Attorney for Appellee.
   OPINION

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.

FACTS

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. AAR is a provider of products and services to the commercial aviation and government/defense industries and maintained a maintenance, repair, and overhaul facility at the Indianapolis International Airport. ACE was a vendor or customer of AAR. Guinn received a letter containing an offer of employment fr.om AAR dated August 3, 2010 to be an A & P technician, and he accepted the offer by signing the letter and dating it August 5, 2010. On August 12, 2010, Guinn provided ACE with a two-week notice that he intended to leave his position. At the time, he was told that he may not “be able to leave with a no-compete clause that [ACE] ha[d] in place.” Id. at 95.

On August 16, 2010, Drew Cherry with ACE sent a copy of the Agreement by fax to Jami Burdine, who worked in the human resources department at AAR. At some point before Guinn reported for work, Randy Sutterfield, a director of a subsidiary of AAR, received a phone call from Leigh Sargent, the President of ACE, and Sargent told Sutterfield that “Guinn was under the terms of a non-compete agreement and that he believed that it was a violation from [sic] him to come work for [AAR].” November 15, 2010 Transcript at 56. Also at some point before Guinn’s first day of work, Burdine called Guinn and told him that ACE had sent the non-compete clause to AAR, that it could potentially affect his employment opportunities with AAR, and that she would have to send it to AAR’s legal department. Burdine communicated by email with Bonita Surges, a senior human resources manager ' at AAR, regarding Guinn’s employment. Sutterfield informed ACE that it would not employ Guinn due to the Agreement. Guinn was not informed by AAR that he should not report for work as scheduled, and he commenced his employment with AAR on August 30, 2010.

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.” November 15, 2010 Transcript at 59.

On September 14, 2010, a human resources administrator with AAR sent an email message to Surges which stated in part:

FYI ... [Sutterfield] just came and asked if we had hired Joseph Guinn. [Guinn] started as a regular full time employee on August 30th.
[Sutterfield] said he copied and pasted information you provided and told ACE in an email that we would not hire this individual. According to [Sutterfield], the offer of employment was supposed to be rescinded and [Sutterfield] is now being contacted by ACE ([Guinn’s] former employer and one of our customers) and they are very upset because we went back on our word.

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, Sutter-field forwarded Sargent’s message to Surges, and Surges sent an e-mail message to Sargent which stated:

First of all, please allow me to apologize for our error in hiring Mr. Guinn as a result of a miscommunication. I personally have extensive experience with non-competes and have a strong personal belief in honoring them.
Secondly, I have received final clearance from our legal department this morning to proceed with the termination of Mr. Guinn’s employment. He is working our second shift (Wednesday through Saturday) and will be here at 4pm today. At that time, we will meet with him to inform him of our action.
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. Later in the day, AAR terminated Guinn’s employment. During his deposition, Sutterfield stated in part:

I think that the actions taken by AAR were all aboveboard, were in the best interest of AAR, and what we believed to be in the best interest of ACE at the time. That we were complying with our vendor’s request, and had it not been for some small form of communication, this whole thing would not have happened. Or if it had happened, it wouldn’t be between — or we would not be involved, that in order for the business relationship between ACE and a personal relationship between us to continue, we have to remain neutral. This is about business.

Id. at 167-168.

PROCEDURAL HISTORY

1. ACE’s Complaint and Guinn’s Counterclaim

On September 30, 2010, ACE filed a complaint against Guinn and AAR alleging breach of contract against Guinn for accepting employment with AAR, and tor-tious interference with a contract against AAR for employing Guinn despite knowing of the existence of the Agreement, and for inducing Guinn to breach the Agreement. On October 20, 2010, Guinn filed an answer together with affirmative defenses and a Verified Counterclaim for Injunctive Relief and Damages. In his counterclaim, Guinn alleged that ACE wrongfully deprived him of his right to employment as an A & P airline mechanic in the metropolitan Indianapolis area, and requested, under Count I, that he be granted injunctive relief; under Count II, he requested that the court declare the Agreement invalid and void; under Count III, he alleged that ACE committed tortious interference with a contractual relationship, intentionally acted to induce a breach of the contractual relationship between Guinn and AAR, and was without justification to do so; under Count IV, he alleged that ACE blacklisted him to prevent him from obtaining employment; and under Count V, he alleged that ACE wrongfully deprived him of his livelihood and is liable for treble damages under Ind.Code § 34-24-3-1. In its answer to ACE’s complaint, AAR asserted additional defenses alleging that ACE lacked a legitimate interest to be protected through the enforcement of the Agreement, that the Agreement was vague and ambiguous and did not provide Guinn with a clear understanding of what conduct was prohibited, and that the Agreement was invalid and unenforceable as against the public policy of the State of Indiana.

2. Count I of Guinn’s Counterclaim,

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.

3. Counts II, IV, and v. of Guinn’s Counterclaim,

On August 18, 2011, ACE filed a motion for judgment on the pleadings. On September 12, 2011, Guinn filed a motion for partial summary judgment on Count II of his counterclaim requesting that the court declare the Agreement invalid and void. In the motion, Guinn argued that the non-competition covenant restricts Guinn “from performing any kind of work whatsoever for any other company engaged in the same or substantially similar business as ACE, while failing to identify either the nature of the work that Guinn performed for ACE or the nature and scope of ACE’s business activities,” and that “ACE does not have a protectable interest in prohibiting Guinn, an FAA mechanic, from working for a competitor, because (a) ACE cannot show that its advanced composite processes are any different from its competitors’ processes, and (b) the work performed by Guinn is required by law to comply with FAA guidelines and specifications.” Appellant’s Appendix at 61.

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.

4. ACE’s Summary Judgment Motion on Count III 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 in interfering with a former employee’s contract is “justifiable” rests primarily on whether the employer’s conduct was fair and reasonable under the circumstances, and that, when asked to identify ACE’s proprietary interest in preventing Guinn from taking other employment, Sargent stated “investment and costs in the training.” Id. at 132 (citation omitted). ACE filed a reply to Guinn’s response to its second motion for summary judgment in which it argued that it merely informed AAR of the existence of the Agreement, that AAR formed its own independent conclusions that it would not hire Guinn, and that there is no testimony that Sargent demanded Guinn be terminated when he spoke with AAR. ACE also contended that there is no evidence that its contacts with AAR were unjustified, that ACE reasonably believed the Agreement was enforceable, and it transmitted the Agreement to AAR so that AAR could determine for itself what it would do. On January 23, 2013, the court held a hearing on the summary judgment motion at which the parties presented arguments.

5. The Trial Court’s Summary Judgment Ruling on Count III

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 over-broad, 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 “[tjhereafter, 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:

In this case, ACE’s Non-Compete Agreement had legal defects when it was signed by Guinn; however that fact was unknown to ACE at the time. The question of whether or not the contract was enforceable had not yet been tested in a court of law. ACE had reason to believe that Guinn was, in fact, acting in violation of said non-compete agreement. It follows then that ACE’s conduct as to the impairment of execution of the employment contract between Guinn and AAR did not fulfill the prerequisites needed for tortious interference with an employment relationship. No genuine issues of material fact exist as to whether ACE’s efforts to use its agreement as a means to induce AAR to terminate Guinn amounted to tortious interference with Guinn’s employment contract with AAR.

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.

ISSUE AND ARGUMENTS OF THE PARTIES

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 protect-able 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 of 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 court’s subsequent ruling that the Agreement was unenforceable did not relate back to the inception of the Agreement. ACE argues that “[t]he main theme of [its] communications [with AAR is] ACE’s disappointment that AAR had apparently-gone back on its pre-hiring word that it would revoke Guinn’s offer of employment due to its conflict with its internal policies” and that there is no evidence that ACE “demanded Guinn be terminated or that it operated with any malevolent intent.” Ap-pellee’s Brief at 11.

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.

STANDARD OF REVIEW

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.

DISCUSSION

“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:

(a) the nature of the defendant’s conduct;
(b) the defendant’s motive;
(c) the interests of the plaintiff with which the defendant’s conduct interferes;
(d) the interests sought to be advanced by the defendant;
(e) the social interests in protecting the freedom of action of the defendant and the contractual interests of the plaintiff;
(f) the proximity or remoteness of the defendant’s conduct to the interference; and
(g) the relations between the parties.

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 “[ajlthough 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., 603 N.E.2d 157, 160 (Ind.Ct.App.1992); see also Donahue v. Permacel Tape Corp., 234 Ind. 398, 411, 127 N.E.2d 235, 241 (1955) (“(W)hile an employer, under a proper restrictive agreement, can prevent a former employee from using his trade or business secrets, and other confidential knowledge gained in the course of the employment, and from enticing away old customers, he 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 knowledge he has acquired or increased through experience or even instructions while in the employment. Public policy prohibits such undue restrictions upon an employee’s liberty of action in his trade or calling.”) (quoting Roy v. Bolduc, 140 Me. 103, 34 A.2d 479, 480-481 (1943)); Captain and Co. v. Towne, 404 N.E.2d 1159, 1162 (Ind.Ct.App.1980) (“[The employer], however, is not entitled to protection from an employee’s use of his knowledge, skill or general information acquired or increased through experience or even instructions while in the employment.”).

ANALYSIS

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. See Winkler, 638 N.E.2d at 1235 (discussing Restatement (Seoond) of Torts § 767); Allison, 883 N.E.2d at 119 (applying the factors set forth by § 767 to analyze the issue of whether the undisputed material facts establish that the appellee’s actions were justified).

A. FACTORS UNDER RESTATEMENT (SECOND) of Torts § 767

1. Nature of ACE’s Conduct

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:

There is no technical requirement as to the kind of conduct that may result in interference with the third party’s performance of the contract. The interference is often by inducement. The inducement may be any conduct conveying to the third person the actor’s desire to influence him not to deal with the other. Thus it may be a simple request or persuasion exerting only moral pressure. Or it may be a statement unaccompanied by any specific request but having the same effect as if the request were specifically made. Or it may be a threat by the actor of physical or economic harm to the third person or to persons in whose welfare he is interested. Or it may be the promise of a benefit to the third person if he will refrain from dealing with the other.
Comment c to § 767 further provides in part:
Under the same circumstances interference by some means is not improper while interference by other means is improper; and, likewise, the same means may be permissible under some circumstances while wrongful in others. The issue is not simply whether the actor is justified in causing the harm, but rather whether he is justified in causing it in the manner in which he does cause it. The propriety of the means is not, however, determined as a separate issue unrelated to the other factors. On the contrary, the propriety is determined in the light of all the factors present.
⅜ ⅜ ⅜ ⅝ ⅜ ⅝
Prosecution of civil suits. In a very early instance of liability for intentional interference, the means of inducement employed were threats of “mayhem and suits,” and both types of threats were deemed tortious. Litigation and the threat of litigation are powerful weapons. When wrongfully instituted, litigation entails harmful consequences to the public interest in judicial administration as well as to the actor’s adversaries. The use of these weapons of inducement is ordinarily wrongful if the actor has no belief in the merit of the litigation or if, 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. A typical example of this situation is the ease in which the actor threatens the other’s prospective customers with suit for the infringement of his patent and either does not believe in the merit of his claim or is determined not to risk an unfavorable judgment and to rely for protection upon the force of his threats and harassment.
⅜: ⅜ ⅜ ⅝ ⅜ ⅜
Economic pressure. Economic pressure of various types is a common means of inducing persons not to deal with another, as when A refuses to deal with B if B enters into or continues a relation with C, or when A increases his prices to B or induces D not to deal with B on the same condition. Or the pressure may consist of the refusal to admit B to membership into a trade association or a professional organization, as a medical or legal association. 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, the effect upon the neutral parties drawn into the situation, the effects upon competition, and the general reasonableness and appropriateness of this pressure as a means of accomplishing the actor’s objective.

See also Winkler, 638 N.E.2d at 1235(not-ing 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 Sut-terfield 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 30, 2010. After ACE received a request from FirstLab for background information related to Guinn on September 3, 2010, Cherry with ACE sent a message to FirstLab by fax on September 10, 2010, which stated: “Joe Guinn is under a Non-Compete Agreement, and AAR informed us that their employment offer for Joe Guinn was revoked.” Id. at 122. Then, after Guinn began his employment with AAR, Sargent again called Sutterfield and told him that AAR had told him that it would not hire Guinn unless it had a letter from ACE “absolving” him of the Agreement and that AAR “did not do what [it] said [it was] going to do.” November 15, 2010 Transcript at 59. On September 14, 2010, an AAR human resources administrator sent an e-mail message to Surges with AAR which stated in part that “Recording to [Sutterfield], the offer of employment was supposed to be rescinded and [Sutterfield] is now being contacted by ACE (Joe’s former employer and one of our customers) and they are very upset because tve went back on our word.” Appellant’s Appendix at 150 (emphasis added).

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 email 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: “[Sutter-field], 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 “[tjhis 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 to favor a determination that ACE’s conduct was unjustified under the circumstances. The factfinder may consider, in assessing whether ACE’s conduct was justified and reasonable, the facts that ACE was a sophisticated employer and prepared the terms of the non-compete agreements which it had all of its employees sign, and the extent to which the terms, conditions, and covenants were unreasonable, overly broad, or not narrowly tailored to protect ACE’s legitimate business interests. See Cent. Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 729 (Ind.2008) (“In arguing the reasonableness of a non-competition agreement, the employer must first show that it has a legitimate interest to be protected by the agreement.”).

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 Typoserviee 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 “[sjummary 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.

2. ACE’s Motive and Interests Sought to be Advanced

With respect to ACE’s motive and interests it sought to advance, ACE essentially asserts that its actions were based on its rights under the Agreement which had not been determined to be unenforceable at the time of its actions. However, Guinn worked for ACE as an A & P technician in the company’s “composite repair station/site, performing composite repair work with Kevlar, fiberglass and carbon fiber — a fabric resin system in accordance with FAA specifications.” Appellant’s Appendix at 38. When asked at the November 15, 2010 hearing “[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 “[b]e as specific about what you claim your proprietary interest is,” Sargent stated “investment and costs in the training.” Id.

“Although an employer has a pro-tectible 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, 608 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, in its January 11, 2012 order granting Guinn’s motion for partial summary judgment on Count II of his counterclaim, that the non-competition provision of the Agreement was overbroad and that it “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.” Appellant’s Appendix at 68. Comment d. to Restatement (Second) of Torts § 767 states in part that “[i]n determining whether the interference is improper, it may become very important to ascertain whether the actor was motivated, in whole or in part, by a desire to interfere with the other’s contractual relations,” that “[i]f this was the sole motive the interference is almost certain to be held improper,” that “[a] motive to injure another or to vent one’s ill will on him serves no socially useful purpose,” that “[t]he desire to interfere with the other’s contractual relations need not, however, be the sole motive,” and that “[i]f it is the primary motive it may carry substantial weight in the balancing process and even if it is only a casual motive it may still be significant in some circumstances.”

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.

8. Guinn’s Interests

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).

4. The Balance Between ACE’s Freedom to Act and Guinn’s Interests

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 knowledge he has acquired or increased through experience or even instructions while in the employment” and that “[p]ub-lic policy prohibits such undue restrictions upon an employee’s liberty of action in his trade or calling”) (citation omitted); Restatement (Seoond) of Contracts, § 188 cmt. g (1981) (“Post-employment restraints are scrutinized with particular care because they are often the product of unequal bargaining power and because the employee is likely to give scant attention to the hardship he may later suffer through loss of his livelihood.”)); Coates, 942 N.E.2d at 913 (finding that “Indiana courts strongly disfavor as restraints of trade covenants not to compete in employment contracts” and 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”) (citations and internal quotation marks omitted); Wagler Excavating Corp. v. McKibben Const., Inc., 679 N.E.2d 155, 157-158 (Ind.Ct.App.1997) (stating that “Indiana courts will not hesitate to strike down any such restrictive covenants which are the least bit overly broad with respect to the ‘protectible interest’ at stake,” and that “[w]here the underlying protectible interest is minimal, courts will closely scrutinize the terms of the restraint”), trans. denied.

5. The Proximity of ACE’s Conduct to the Interference

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.

6. The Relations Between the Parties

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.

B. Propriety of Summary Judgment

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 AAR was justified or fair and reasonable under the circumstances. Accordingly, we cannot conclude that ACE is entitled to summary judgment as a matter of law on Guinn’s claim for tortious interference under Count III of his counterclaim, and we reverse the trial court’s summary judgment ruling in favor of ACE on that claim and remand for further proceedings consistent with this opinion.

CONCLUSION

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.

      . In his deposition, Guinn indicated that he wished to work the second shift so that he would be home with his children during the day while his wife worked.

      . Specifically, the evidence designated by Guinn shows that Randy Sutterfield, who worked as a director for a subsidiary of AAR, indicated during his deposition that ACE was a vendor of AAR. Guinn’s designated evidence also includes an e-mail message between two AAR employees dated September 14, 2010 indicating that ACE is one of AAR’s customers.

      . When asked during his deposition how much longer he worked after August 12th, Guinn stated: "They let me go a little before, I would say a week before. It was a Saturday, so I would say a full week before the 26th. And they paid me through that." Appellant’s Appendix at 95. Guinn then clarified that he was paid by ACE through August 26th.

      . The page of Guinn’s deposition testimony from which this fact is taken, which was included in ACE’s designated evidence, does not indicate the name of the person who made this statement to Guinn.

      . The designated evidence reveals that this call occurred "after Mr. Guinn had interviewed and been offered a position [at AAR] and before he reported for work." November 15, 2010 Transcript at 56.

      . In her deposition, Surges stated that there was a miscommunication between her and Burdine. Surges stated: "[Burdine] sent me an e-mail about this should be-something to the effect this should be between the employee and the company. And I said absolutely, but to me absolutely means stay out of it, stay away from it, leave it alone. She interpreted it differently.” Appellant's Appendix at 100. When asked whether "[Burdine] interpreted it as in okay to go ahead and hire him,” Surges stated "[s]he did.” Id.

      . As discussed later, a subsequent e-mail message from a human resources administrator to Surges stated in part that Sutterfield "told ACE in an email that [AAR] would not hire [Guinn].” Appellant’s Appendix at 150.

      . The designated evidence reveals that, when asked if "there was a second contact by ACE to you after Mr. Guinn began employment with AAR,” Sutterfield stated "I received a call from [] Sargent who stated that he believed that Mr. Guinn was working for us...." November 15, 2010 Transcript at 59.

      . In his appellant's brief, Guinn states that he withdrew the appeal because "the term of ACE's non-competition covenant had expired while the appeal was pending, rendering issu-anee of the preliminary injunction moot.” Appellant's Brief at 2.

      . This motion is not contained in the record.

      . With respect to ACE’s assertion that the Agreement was voidable and not void, ACE does not point to relevant authority that a restrictive covenant in an employment agreement which has been determined to be overly broad and thus unenforceable would be voidable at the option of the employee. We acknowledge that the enforceability of the Agreement was not determined until the trial court ruled on Count II of Guinn’s counterclaim. The sole fact that a party to a contract may challenge the contract as unenforceable in court does not mean the contract is voidable. See 6 Ind. Law Encyc. Contracts § 1 (’’While the expression 'void contract’ is in a sense a contradiction in terms, it is used to denote that the parties to the transaction have gone through the form of making a contract, but no binding contract has been formed because of the lack of some essential element of a contract. A void contract is an absolute nullity, incapable of ratification, while a voidable contract is one with respect to which a party has the privilege of electing it to be either valid or void at his pleasure.”). The court determined that the Agreement is unenforceable, and Guinn is not required to take further action to avoid being held to its terms and may not take action to ratify its terms. Relevant to the analysis in this case, ACE does not point to authority for the proposition that the characterization of the Agreement as void or voidable impacts the question of whether its conduct was justifiable under the circumstances as described by Indiana case law and the Restatement. That being said, we acknowledge that the fact that the terms of the Agreement, to the extent they were overly broad and not narrowly tailored to protect ACE’s legitimate business interests in Guinn’s employment, could impact the question of whether ACE’s conduct in contacting AAR regarding Guinn’s employment was justifiable as a matter of law.

      . The record reveals, as noted in more detail in the facts section above, that there was an internal miscommunication at AAR regarding hiring Guinn.

      . Even where a legitimate interest is served by a non-competition agreement, to be enforceable, the agreement "must also be reasonable in terms of the time, activities, and geographic area restricted,” and a restrictive covenant in an employment, contract is to be strictly construed against the employer. Central Ind. Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 729 (Ind.2008). When facing challenges to non-competition provisions in employment agreements, courts may find an agreement unreasonable in total or apply the well-established "blue-pencil” doctrine by which the court is permitted to remove unreasonable restrictions, provided they are divisible. See Dicen v. New Seseo, Inc., 839 N.E.2d 684, 687 (Ind.2005).

      . Like in Allison, we consider these two factors together. See Allison, 883 N.E.2d at 120-121. Comment d. to Restatement (Second) of Torts § 767 states in part:
      Motive as a factor is often closely interwoven with the other factors listed in this Section, so that they cannot be easily separated. There is obviously a very intimate relation between the factors of motive and of the interests that the actor is trying to promote by his conduct. So close is the relationship that the two factors might well be merged into a single one.