Miller v. Cent. Ind. Cmty. Found., Inc.

Decision Date15 August 2014
Docket NumberNo. 49A04–1309–PL–451.,49A04–1309–PL–451.
Citation11 N.E.3d 944
PartiesJeffrey M. MILLER, and Cynthia S. Miller, Appellants–Plaintiffs, v. CENTRAL INDIANA COMMUNITY FOUNDATION, INC., and Brian Payne, Appellees–Defendants.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Kevin W. Betz, Sandra L. Blevins, Jamie A. Maddox, Betz + Blevins, Indianapolis, IN, Attorneys for Appellants.

James S. Stephenson, Ian L. Stewart, Stephenson Morow & Semler, Indianapolis, IN, Attorneys for Appellees.

OPINION

BRADFORD, Judge.

CASE SUMMARY

From 1994 until his retirement in 2008, AppellantPlaintiff Jeffrey Miller (Miller) was the president of Junior Achievement of Central Indiana (JACI). After his retirement, Miller acted as president of the Experiential Learning and Entrepreneurship Federation (“ELEF”), which is separate from but works with JACI. From approximately August of 2009 until late January or early February of 2010, Miller negotiated with the City of Indianapolis (the “City”) regarding a potential employment opportunity in the Mayor's Office. Miller was subsequently notified that he would not be offered the negotiated position.

On March 31, 2010, Miller, along with his wife, AppellantPlaintiff Cynthia Miller (Cynthia), filed suit against numerous parties, including AppelleesDefendants the Central Indiana Community Foundation, Inc. (CICF) and Brian Payne (Payne), whom they sued both individually and in his capacity as President and CEO of CICF, alleging, among other things, defamation and tortious interference with a business relationship. The instant appeal concerns only Miller's and Cynthia's (collectively the Millers) claims against CICF and Payne. CICF and Payne filed a motion for summary judgment. Following a hearing on CICF's and Payne's motion, the trial court granted summary judgment in favor of CICF and Payne. On appeal, the Millers contend that the trial court erred in granting summary judgment in favor of CICF and Payne. We affirm.

FACTS AND PROCEDURAL HISTORY
A. Relevant Facts
1. Facts Relating to CICF and the Indianapolis Foundation

CICF is a collaborative effort between the community foundations serving Marion and Hamilton Counties. CICF focuses on overall foundation governance and operations, acting as a “holding company” for its family of funds. Appellants' App. p. 197. The Indianapolis Foundation is a public charity and an affiliate of CICF. Payne is the President and CEO of both CICF and the Indianapolis Foundation.

The Indianapolis Foundation has six trustees. Two trustees are appointed by the Mayor of Indianapolis, two are appointed by the Marion County Circuit Court Judge, and two are appointed by the United States District Court which presides in Indianapolis. CICF's board of directors is comprised of the trustees of the Indianapolis Foundation, three Legacy Fund officers, and twelve members that are self-elected by the CICF board of directors.

2. Facts Relating to Miller's Involvement with JACI, ELEF, and Performance Professionals

Miller was the President and CEO of JACI from September of 1994 until he retired on December 31, 2008. In 1994, Miller became President of the Foundation for Economic Literacy. The Foundation for Economic Literacy subsequently changed its name to the Junior Achievement of Central Indiana Foundation. While known as the Junior Achievement of Central Indiana Foundation, the entity's purpose was to benefit JACI, and many of the members of its board of directors overlapped with JACI's board of directors.

On August 28, 2003, under Miller's leadership, the Junior Achievement of Central Indiana Foundation changed its name to ELEF. This was done in order to separate the entity from JACI. At the same time, there was a change in ELEF's articles of incorporation expanding ELEF's purpose from solely promoting JACI to the more general purpose of promoting education programs. After 2003, ELEF had its own independent and separate board of directors which no longer overlapped with JACI's board of directors. Under the 2003 changes, ELEF was no longer tied exclusively to JACI. Throughout 2009, Miller continued to further separate any connection between ELEF and JACI. Miller remained President of ELEF until he retired from the position in February of 2010.

Performance Professionals, Inc. is an Indiana corporation formed and incorporated in January of 2009. At all times relevant to this appeal, Miller owned fifty percent of Performance Professionals. Cynthia owned the other fifty percent of Performance Professionals. In 2009, ELEF was Performance Professionals' only client.

On January 22, 2009, ELEF entered into a contract with Performance Professionals. Under the terms of the contract, Miller retained the title of President and CEO of ELEF. Miller's role was to help transition JACI to a new President and CEO, help coordinate the Business Hall of Fame, oversee a catering service, and to work on a project involving the Ivy Tech Culinary Arts and Hospitality Program (the “Ivy Tech Culinary Project”). The contract was for one year and provided that Performance Professionals would be paid $23,400 per month for the first six months and $11,000 per month for the second six months. Miller drafted the ELEF/Performance Professionals contract.JACI was not a party to the contract and did not sign the contract.

3. Facts Relating to the Ivy Tech Culinary Project

In November of 2007, Miller made a proposal on behalf of JACI to the Glick Company and the Glick Foundation to solicit two million dollars in funding for the Ivy Tech Culinary Project. On May 21, 2008, the Glick Fund issued a two million dollar grant to JACI for the sole purpose of construction of a building to be used for the Ivy Tech Culinary Arts Project. The Glick Fund is a fund of CICF that was established by Gene and Marilyn Glick (collectively, the “Glicks”) in 1998 to support a variety of causes in central Indiana.

Initially, the grant awarded by the Glick Fund (the “Glick grant”) was a one-to-one matching grant that had a two-step process for release of funds, requiring (1) a building expense, and (2) a matching donation from a separate entity. JACI was to send reports to CICF evidencing the pledges received. Before construction of the building began, Miller requested to have the Glick grant funds released quarterly based only on when matching pledges were received, and on September 17, 2008, the Glick grant was amended to reflect that request. Funds for the building project from the Glick grant were thereafter released only upon CICF receiving evidence of matching pledges.

On September 29, 2008, Miller submitted JACI's first request for the release of funds from the Glick grant in the amount of $275,000. Among the matching pledges submitted to unlock the Glick grant payment was a pledge from ELEF in the amount of $65,000. On October 9, 2008, CICF made the first Glick grant payment with a $275,000 check made out to JACI. Upon receipt of the money, Miller authorized the transfer of the funds from JACI's bank account to ELEF's bank account.1

JACI and ELEF had separate bank accounts. ELEF did not have a separate bank account for the Ivy Tech Culinary Project. Once transferred, the Glick grant funds went into ELEF's general bank account. Of the original $275,000 payment from the Glick grant, roughly $136,000 was used to pay bills associated with the Ivy Tech Culinary Project and roughly $140,000 remained in ELEF's general bank account.

On December 29, 2008, Miller submitted JACI's next request for the release of funds from the Glick grant in the amount of $113,000. Among the matching pledges submitted to unlock the Glick grant payment was a pledge from ELEF in the amount of $5000. However, ELEF never paid JACI the $5000, which instead remained in ELEF's general bank account. On February 5, 2009, CICF made the second Glick grant payment with a $113,000 check made out to JACI. Upon receipt of the funds, the $113,000 was transferred from the JACI bank account to ELEF's general bank account. Miller authorized this transfer despite the fact that he no longer held a position with JACI.2

On March 31, 2009, Miller submitted JACI's third request for the release of funds from the Glick grant in the amount of $40,000. By this point, $246,503.08 of the $388,000 previously received from the Glick fund had been paid out for construction costs. There were no outstanding bills, and $141,496 of the funds received pursuant to the Glick grant remained in ELEF's general bank account. On April 23, 2009, CICF made the third Glick grant payment with a $40,000 check made out to JACI. Miller authorized the $40,000 check to be transferred from JACI to ELEF. Miller does not recall whether he ever discussed the transfer of the funds from JACI to ELEF with JACI's new President and CEO, Jennifer Burk.

From April to July 2009, Burk repeatedly told Miller that she did not want the Ivy Tech Culinary Project to proceed. By June 15, 2009, Miller sought to remove the matching funds requirement from the Glick grant. Miller wanted the Glicks to agree to sign a pledge agreement for the remaining $1,572,000. Miller also wanted the proposed pledge agreement to bear the date of June 30, 2009, in order to show income on the balance sheets before the end of ELEF's and JACI's fiscal years because doing so would allegedly help with bond financing.

On August 19, 2009, Miller submitted two invoices from Performance Professionals to CICF. Both invoices were personally prepared by Miller. The first invoice, dated April 1, 2009, was for $56,160 and claimed to be for work performed in September through December of 2008. However, Performance Professionals did not exist in 2008 as it was not formed until 2009. The second invoice, dated June 30, 2009, was for $84,240.

On August 25, 2009, CICF notified Miller that it did not consider the expenses from Performance Professionals to be reimbursable expenses. Miller subsequently informed CICF that he would remove the Performance...

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