Contract Law Cases

By George T. Patton, Jr. and Kellie M. Barr

      In May, the Indiana Supreme Court issued six civil opinions and granted transfer in two civil appeals. The Indiana Court of Appeals issued twenty-three published civil opinions, seven of which are briefly summarized in this column. The full text of each decision is available via Casemaker at www.inbar.org.    
 

INDIANA SUPREME COURT

Dispute between Internet marketing firm and company for website design is not for "goods and services" pursuant to Indiana's Article 2 of the Uniform Commercial Code and, under the facts of this case, the company could not sustain conversion claim for website's removal

      The Indiana Supreme Court tackled numerous issues of first impression to resolve a dispute between a company and an Internet marketing firm that created and hosted the company's website.  Conwell v. Gray Loon Outdoor Mktg. Group, Inc., 906 N.E.2d 805 (Ind. 2009). Although the parties fulfilled their obligations under their written agreement, the company later refused to pay for hosting fees and additional changes it requested to the website. The marketing firm sued the company for payment, and the company counterclaimed that the marketing firm committed conversion by taking down the original website for which the company had already paid.

      The Supreme Court first addressed whether Article 2 of Indiana's Uniform Commercial Code ("U.C.C.") or common law principles of contract law governed the parties' transaction. By applying the "predominant thrust" test to determine whether the transaction involved the transfer of goods or the performance of service, the Court held that "[a] website created under arrangements calling for the designer to fashion, program, and host its operations on the designer's server is neither tangible nor moveable in the conventional sense." Id. at 812. Because agreement of the parties "contemplated a custom design for a single customer and an ongoing hosting relationship[,]" the U.C.C. did not apply. Id.

      The Court examined the marketing firm's claim for payment under common law principles and determined that although the website modifications were not contemplated by the parties' original agreement, the company requested the changes without inquiring into the amount the changes would cost. The marketing firm's invoice was the only evidence submitted to the trial court regarding the reasonableness of the charges, and there was evidence that a representative of the company accepted the price after receiving the invoice. Because there was no evidence that the marketing firm "participated in an unconscionable effort to 'strong arm' [the company] into paying an unreasonable fee," the Court affirmed the trial court's decision to enforce the parties' agreement, even though the marketing firm had not provided a cost estimate. Id. at 813.

      Turning to the company's counterclaim that the marketing firm committed conversion by taking down the website for which the company paid, the Court analyzed how copyright law affected the legal status of the website. For the company's counterclaim to succeed, the website either had to be a "work made for hire" where the company was the original owner or the marketing firm had to have transferred ownership of the website to the company. The Court determined that the website was not a work made for hire because the marketing firm was an independent contractor, not the company's employee. The Court also concluded that language in the marketing firm's proposal that the company inherently owned the product was insufficient to transfer ownership of the website from the marketing firm to the company. The marketing firm did, however, have a nonexclusive license because the "parties intended to transfer a copyright, but failed to do so in writing." Id. at 816. Because a nonexclusive license is not an ownership interest under copyright law, however, the marketing firm did not commit conversion by removing the website, and the company's counterclaim failed.

      Concurring in result, Justice Boehm wrote separately to explain that, in his view, a website is "property" for the purposes of tortious or criminal conversion. Id. at 817. Although the company was a licensee that could not sustain a conversion claim, Justice Boehm emphasized that licensees are not without remedy. In this case, the marketing firm arguably "created the problem that the licensed code no longer existed" and "had no right to seize both phases [of the website design] as collateral for its unpaid work on the second phase." Id. 818-19. Although the company's damages were "a matter of speculation on this record," Justice Boehm noted that the company could have asserted breach of license as either an affirmative defense or set-off. Because it did not, he concurred with the majority's result.

Evidence of discounted payments healthcare providers accept from insurance carriers on behalf of injured plaintiffs can be introduced into evidence to determine the reasonable value of the services to the extent it can be done without referencing insurance

      The Indiana Supreme Court confronted "the question of how to determine the reasonable value of medical services when an injured plaintiff's medical treatment is paid from a collateral source at a discounted rate." Stanley v. Walker, 906 N.E.2d 852, 855 (Ind. 2009). In an opinion authored by Justice Sullivan, the Court held that evidence of a healthcare provider's acceptance of a reduced amount of compensation for services provided to a plaintiff may be introduced to help a jury determine the reasonable value of the services "[t]o the extent the discounted amounts may be introduced without referencing insurance." Id. at 853. The Court analyzed Indiana Rule of Evidence 413 and the "complexities of health care pricing structures[, which] make it difficult to determine whether the amount paid, the amount billed, or an amount in between represents the reasonable value of medical services." Id. at 857. Ultimately, the Court held that Indiana's collateral source statute does not bar evidence of discounted payments accepted by healthcare providers to determine the reasonable value of services. "Given the current state of the health care pricing system where . . . authorities suggest that a medical provider's billed charges do not equate to cost, the jury may well need the amount of the payments, amounts billed by medical providers, and other relevant and admissible evidence to be able to determine the amount of reasonable medical expenses." Id. at 858. 

      Justice Dickson authored a dissenting opinion, joined by Justice Rucker, arguing that the majority's rule "contravenes the express requirements of the collateral source statute." Id. at 860 (citing Ind. Code § 34-44-1-2). The dissent also disagreed that the collateral source statute abrogated the common law collateral source rule because "the statute's precise language appears to create a limited exception to the common law rule, which is otherwise left intact." Id. at 862. "Under today's new rule, the existence and extent of any improvement to the accuracy of verdicts seems overwhelmed by the significant probability of incompleteness, confusion, and resulting unfairness, all further compounded by detrimental effects on the fairness and efficient administration of justice." Id. at 865.

      Justice Boehm, joined by Chief Justice Shepard, wrote separately to respond to points made by the dissent and emphasized that "we hold today only that the discounted price actually paid for medical services is admissible evidence as to the reasonable value of those services. We do not hold that it is conclusive." Id. at 859.

Although claim against mother's estate was timely, daughter failed to rebut presumption that services rendered to her incapacitated mother were gratuitous because no evidence that daughter had an express or implied contract with mother's guardian

      The Indiana Supreme Court unanimously reversed the trial court's denial of an estate's motion for summary judgment on a daughter's claim against her mother's estate for reimbursement for various expenses and personal services that the daughter rendered to her mother while the mother was subject to a guardianship. Estate of Prickett v. Womersley, 905 N.E.2d 1008 (Ind. 2009). First, the Court addressed the Estate's argument that the daughter's reimbursement claim was time-barred because she had not filed her claim in the guardianship proceeding. Interpreting the Guardianship Code, the Court held that Indiana Code § 29-3-10-1(d) does not require a claim to be filed against the guardianship estate and "in the absence of legislative direction mandating a guardian's approval, we are apprehensive of the administrative and other practical consequences of ordering a guardian's review of all claims filed in a probate estate that accrue during a decedent's guardianship." Id. at 1012. Therefore, the daughter's claim for reimbursement was not time-barred because she was not required to pursue it in the guardianship proceeding and she properly filed it against her mother's estate.

      The Court reaffirmed the rebuttable presumption that services rendered by a family member are gratuitous. Although the daughter designated evidence that her mother signed a statement in front of two witnesses that she wanted her estate to compensate her daughter for her services, the Court held that the mother could not enter into a contract at the time she executed the statement and, consequently, "when the provider is a family member the implied contract must exist between that person and the incapacitated person's guardian." Id. at 1013. Because the daughter failed to produce evidence that she had an express or implied contract with her mother's guardian, she failed to rebut the presumption that her services were gratuitous as a matter of law.

An insurance company's policy was consistent with Indiana's uninsured motorist statute and insureds were not entitled to uninsured motorist benefits for the death of their unmarried adult son because they did not suffer bodily injury

      The Indiana Supreme Court unanimously held that named insureds who brought an action against their automobile insurer to recover uninsured motorist benefits for the death of their unmarried adult son were not persons "legally entitled to recover damages" for their son's death. Bush v. State Farm Mut. Auto. Ins. Co., 905 N.E.2d 1003, 1008 (Ind. 2009). For purposes of its uninsured motorist coverage, the parents' insurance policy defined "insured" to include the named insureds and their relatives, which were defined as related persons primarily residing with the named insureds. Because their adult son no longer lived with his parents, he was not an insured under his parents' policy.

      The insured parents argued that they were entitled to uninsured motorist benefits because their policy was inconsistent with Indiana's uninsured motorist statute-Indiana Code § 27-7-5-2-and, thus, unenforceable. The Court disagreed and emphasized that "the statute itself makes clear that it contemplates uninsured motorist coverage only for the 'insured's' bodily injury." Id. at 1005. The insurance company's policy was "consistent with the uninsured motorist statute by requiring that the insured sustain bodily injury to trigger uninsured motorist coverage." Id. Reaffirming a previous holding, the Court held that the definition of bodily injury includes emotional distress "only if it arises from a bodily touching." Id. (citing State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008)). "Indiana's uninsured motorist statute requires coverage only for bodily injuries sustained by an insured." Bush, 905 N.E.2d at 1007-08. Because the parents did not suffer bodily injury, they did not have uninsured motorist coverage for their adult son's death.

For purposes of the Family and Medical Leave Act, the 1250-hour requirement applies to an employee's overall service, not service in any particular position, and a trial court's exercise of equitable jurisdiction to award an employee front pay had to be discounted to reflect present day value

      The Indiana Supreme Court addressed issues of first impression surrounding a full-time teacher, part-time football coach's claims against his school corporation employer under the Family and Medical Leave Act ("FMLA"). Gary Cmty. School Corp. v. Powell, 906 N.E.2d 823 (Ind. 2009). Although the school reinstated the employee to his full-time teaching position after his medical leave, it did not reinstate him to his head coaching position. Additionally, the school rejected him as head football coach in subsequent years, which the teacher argued was retaliatory conduct for comments he made to a local newspaper regarding the school's failure to restore him to his coaching position following his medical leave.

      The Court held as an issue of first impression that "an employee filling multiple positions with the same employer is eligible for FMLA leave as to all positions if that employee has completed 1,250 total hours of service to that employer in the twelve months preceding the request for leave." Id. at 828. As the Court noted, "the test for [FMLA] eligibility is phrased in terms of 'hours of service' to an 'employer,' not service in any particular position." Id. Therefore, because the 1,250-hour requirement applies to an employee's overall service, the school corporation was required to reinstate the employee to both the full-time teaching position and the part-time coaching position. Additionally, the Court concluded that the employee presented sufficient evidence to support the jury's conclusion that the school corporation retaliated against him for voicing his complaints to a local newspaper, which were not permissible grounds for retaliation under FMLA.

      The school corporation presented numerous arguments challenging the trial court's award of damages. As an issue of first impression, the Court concluded that although the trial court did not abuse its discretion by exercising equity jurisdiction and awarding front pay, "front pay should be discounted to present value. Without discounting, [the employee] would receive a windfall in the form of the use of the money years before it would have been earned." Id. at 834. The Court remanded the action to the trial court to discount the front pay award to present day value, but otherwise affirmed the trial court in all respects.

Employees' damages award for backpay after employer's violation of Indiana Civil Rights Act should not have been reduced by amount of unemployment benefits received

      Two employees filed a complaint with the Michigan City Human Rights Commission ("Commission"), alleging that their employer violated the Indiana Civil Rights Act when it discriminated against them on the basis of race and terminated them for timecard fraud. Filter Specialists, Inc. v. Brooks, 906 N.E.2d 835 (Ind. 2009). The Commission concluded that race was the motivating factor behind the firings and awarded the employees damages for backpay and fringe benefits. The Indiana Supreme Court concluded that the employees proved their claim even though they did not introduce evidence of the ordinance establishing the Commission because the ordinance "has no bearing on whether [the employer] discharged [the employees] on the basis of race in violation of the Indiana Civil Rights Act." Id. at 845. Additionally, the employees presented substantial evidence to support the Commission's conclusion that they had suffered unlawful discrimination, even though there was "no smoking gun" regarding the employer's mental processes. Id. at 848.

      Regarding damages, the Court agreed with a majority of federal circuit courts that "unemployment benefits should not be deducted from backpay awards in discrimination cases." Id. at 849. Consequently, the trial court erred by ordering the case remanded to the Commission because "the damages awarded to [the employees] should not have been affected by their receipt of unemployment compensation." Id. at 850.

INDIANA COURT OF APPEALS

> Father had independent cause of action against Indiana Patient's Compensation Fund for negligent infliction of emotional distress after he witnessed the death of his son, which was caused by the negligent conduct of healthcare providers. Ind. Patient's Comp. Fund v. Patrick, 906 N.E.2d 194 (Ind. Ct. App. 2009).

> Oral findings and conclusions that are "thoroughly detailed in the record" satisfy the purpose of special findings under Indiana Trial Rule 52(A). Nunn Law Office v. Rosenthal, 905 N.E.2d 513 (Ind. Ct. App. 2009). Additionally, an attorney employed under a contingency fee contract who is discharged prior to occurrence of the contingency is limited to quantum meruit recovery. 

> Trial court should have granted party's request for a hearing on motion to change venue pursuant to Indiana Trial Rule 75(A) because of conflicting evidence and the lack of evidence regarding the location of plaintiff's principle office. Painters Dist. Council 91 v. Calvert Enter. Electronic Servs., Inc., 906 N.E.2d 254 (Ind. Ct. App. 2009).

> The Indiana Motor Vehicle Protection Act, commonly known as the Lemon Law, "obligates a consumer to demonstrate that the vehicle was subject to repair at least four times and that the same defective condition remained unresolved after the fourth attempt." Metro Health Profs., Inc. v. Chrysler, LLC, 905 N.E.2d 1026, 1033 (Ind. Ct. App. 2009). Once a consumer has met the four-repair requirement and files a claim shortly after the fourth attempt, as a matter of law, the automobile manufacturer is obligated to either refund the amount the buyer paid or provide a replacement vehicle of comparable value.

> Employee's claim against political subdivision employer is governed by the three-year statute of limitations contained in the Federal Employers' Liability Act instead of the two-year statute of limitations governing Indiana personal injury claims. Januchowski v. N. Ind. Commuter Trans. Dist., 905 N.E.2d 1041 (Ind. Ct. App. 2009).

> Bureau of Motor Vehicles' policy of revoking driving privileges after class members whose recorded personal information did not match information on file with the Social Security Administration violated federal due process because the BMV failed to articulate ascertainable standards for current identification holders. Leone v. Ind. Bureau of Motor Vehicles, 906 N.E.2d 172 (Ind. Ct. App. 2009). The policy did, however, have the rational basis of preventing identity theft, and the trial court properly denied the class members' request for a preliminary injunction because the class failed to show an injunction would be in the public interest. 

> Jim Mansfield was initially declared the winner of the Muncie mayoral election but his opponent, Sharon McShurley, was declared the winner after a recount. Mansfield v. McShurley, --- N.E.2d ---, No. 18A02-0804-CV-375 (Ind. Ct. App. 2009). The trial court dismissed Mansfield's statutory challenge to the election as well as his amended complaint asserting a quo warranto action. On appeal, the Court of Appeals held that a statutory contest action "may not be brought outside the statutorily prescribed time frames even if, as in the case before [the Court of Appeals], the election result changes by virtue of a recount." Additionally, the trial court did not err by dismissing the quo warranto complaint because the recount commission did not act unlawfully by declining to count certain absentee ballots.

TRANSFER ORDERS

> Babes Showclub v. Lair, 901 N.E.2d 44 (Ind. Ct. App. 2009) (whether a police officer's claims for injuries he suffered responding to a complaint on the club's premises were barred by the Fireman's Rule), transfer granted on May 7, 2009.

> Ind. Family & Soc. Servs. Admin. v. Meyer, 900 N.E.2d 74 (Ind. Ct. App. 2009) (whether the trial court had discretion to respond to procedural error by granting a belated extension of time), transfer granted on May 14, 2009.

      George T. Patton, Jr., is a partner at Bose McKinney & Evans LLP, Indianapolis/Washington, D.C. and co-chair of its Appellate Group. He was the first chair of the ISBA Appellate Practice Section, served as an Adjunct Assistant Professor of Appellate Advocacy and Procedure at the Indiana University School of Law-Bloomington for five years, and has written four articles on recent developments in Indiana appellate procedure for the Indiana Law Review. George's book on the 2001 Indiana Appellate Rules is 24 Indiana Practice-Appellate Procedure (3d Ed. West Publishing Co. 2001 & 2006 Supp.). 

      Kellie M. Barr is an associate at Bose McKinney & Evans LLP, Indianapolis, and works on business, commercial, and appellate litigation. Upon graduating from the Indiana University School of Law-Bloomington, Kellie served as a law clerk to Chief Judge John G. Baker at the Indiana Court of Appeals. Kellie is the co-author of an article on recent developments in Indiana appellate procedure to be published in the Indiana Law Review later this year.

by Steven M. Badger

In all litigation, but particularly in Indiana business litigation, it is important for the litigants to know the reasons for the judge's decision on the merits of the dispute.  Those reasons also become a focal point in any appeal to the Indiana appellate courts.  Indiana Trial Rule 52 serves these purposes by requiring that upon the timely written request of any party, "the court in all actions tried upon the facts without a jury or with an advisory jury . . . shall find the facts specially and state its conclusions thereon."

In Nunn Law Office v. Rosenthal, the Court of Appeals of Indiana addressed whether Trial Rule 52(A) is satisfied when a trial court makes findings orally rather than in writing.  At issue was the share of plaintiff's attorney fees that should be paid to the attorney who originally filed a personal injury action, but who was discharged by the plaintiff before the case was resolved.

The Court of Appeals observed that nothing in Trial Rule 52(A) specifies that the trial court's findings and conclusions must be in written form, although the Court of Appeals notes that written findings and conclusions are preferred.  Further, the Court reasoned that oral findings and conclusions serve the purposes of Trial Rule 52(A) "so long as they are thoroughly detailed in the record."  Therefore, the Indiana appellate court held that the trial court's failure to enter written findings and conclusions, in and of itself, does not constitute reversible error.

As to the sufficiency of the trial court's oral findings, the Indiana appellate court determined that the trial judge's oral explanation of how she determined the amount of attorneys' fees awarded to co-plaintiff's counsel was sufficient.  Among other things, the trial judge stated the number of hours, billable rates and service descriptions of the professional services for which the fees were earned.

Finally, the Court of Appeals affirmed the trial court's use of a quantum meruit or equitable measure to determine the amount of the fees, rather than a contingency basis, because the fee contract in question failed to specify the measure of fees upon a pre-contingency termination of the representation.

This aspect of the case relating to how the fee award was determined, however, merely reaffirms existing Indiana law.  The real lesson for the Indiana appellate lawyer is that a trial court's failure to enter written findings and conclusions even when properly requested may not constitute reversible error if the trial court stated somewhere in the record the reasons for its decision.

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In this appeal, we are asked once again to consider what constitutes a joint venture. DLZ Indiana, LLC, ("DLZ") appeals from partial summary judgment in favor of Greene County, Indiana ("the County") on the County’s second-amended complaint alleging breach of contract. DLZ presents a single issue for our review, namely, whether the trial court erred when it concluded that DLZ was engaged in a joint venture with United Consulting Engineers, Inc. ("United") to provide architectural services for the County ("the Project").

Conclusion (slip op. at 14):  We hold that United and DLZ were not engaged in a joint venture as a matter of law. We reverse the entry of summary judgment for the County and instruct the trial court to enter partial summary judgment for DLZ on this issue.

Key Analysis (slip op. at 13, 14):  In sum, the Agreement is unambiguous with respect to whether United and DLZ were doing business as a joint venture. First, there is no evidence that they exercised joint or mutual control over the Project, which is an essential element . . . Second, and of equal significance, there is no evidence within the Agreement that United and DLZ shared profits . . . And finally, even if the Agreement were ambiguous, the designated, extrinsic evidence also demonstrates that the essential elements of joint or mutual control and shared profits are missing.

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Boehm, Justice.

In Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991), we adopted Restatement (Second) of Torts section 363 permitting possessors of land to be held liable for harm caused by the condition of trees on land near a highway. A seller of land may be liable for harm caused by the condition of trees on the land near a highway if the seller is in possession or control of the condition of the trees when the harm occurs. In this case, the seller did not retain possession or control of routine maintenance, including trimming of trees, and the trial court correctly entered summary judgment for the seller.

Conclusion (slip op. at 8):  The trial court’s grant of summary judgment in favor of Jackson is affirmed.

Key Analysis (slip op. at 6, 7):  In sum, the contract called for possession to transfer to Smith at closing. None of the evidence designated is inconsistent with that provision. As a matter of law, liability under sec-tion 343, the only provision addressed by the parties, lies with Smith as the possessor of the land . . . Ownership of the property was transferred to Smith upon execution of the land sale contract, and Jackson had no duty at the time of the accident to maintain the tree as provided by the city ordinance.

Shepard, C.J., and Sullivan, J., concur.

Rucker, J., dissents with separate opinion in which Dickson, J., concurs:  "In my view there is no question that Jackson exercised some degree of control over the property notwithstanding he had sold it on contract to Smith . . ."

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Gloria J. Hayes appeals the trial court's entry of summary judgment in favor of the Trustees of Indiana University (the "University").  There are two issues on appeal:

(1) Whether the trial court abused its discretion in granting the University's motion to strike portions of Hayes' opposing affidavit; and (2) Whether the trial court erred in granting summary judgment to the University.

Conclusion (slip op. at 24):  Affirmed.

Key Analysis (slip op. at 14, 20, 21):  Our review of the record reveals that the exhibits were not properly verified . . . The University was entitled to summary judgment as a matter of law on Hayes' breach of contract claim as she was an at-will employee, and the Human Resources Manual did not constitute a contract . . . It was incumbent upon Hayes to file notice of her claim within 180 days after her loss. This she did not do; therefore, any possible tort claim against the University is barred . . . The Legislature clearly intended to exclude the actions of the University from judicial review . . . We cannot say that either the University's decision to eliminate Hayes' position pursuant to a reduction in force or its classification of Hayes' position was made in a quasi-judicial capacity. Accordingly, the University's decisions regarding these matters are not subject to a mandate order.

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We once again turn the page and delve into another chapter of the saga surrounding the renovation and expansion of the Central Library Project in Indianapolis.

Appellant-plaintiff Indianapolis-Marion County Public Library (Library) appeals the trial court's entry of summary judgment in favor of appellees-defendants Charlier Clark & Linard, PC, (CCL), Thornton Tomasetti Engineers (TTE), and Joseph G. Burns (collectively, the appellees). Specifically, the Library argues that the judgment entered for the appellees on its negligence claims was erroneous because those claims were not barred under the economic loss doctrine as espoused by our Supreme Court in Gunkel v. Renovations, Inc.

Conclusion (slip op. at 28):  We conclude that the negligence claims that the Library brought against the appellees are subject to the economic loss doctrine and are best relegated to contract law in accordance with Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind. 2005). Moreover, the purported exceptions to the economic loss doctrine do not apply. As a result, the trial court properly entered summary judgment for the appellees on the Library's negligence claims.

Key Analysis (slip op. at 2):  Perhaps our discussion below may best be summarized as follows -- When only economic harm is involved, the question becomes whether the consuming public as a whole should bear the cost of economic losses sustained by those who failed to bargain for adequate contract remedies. And, as New York Court of Appeals Chief Judge Benjamin Cardozo recognized: If liability for negligence exists, a thoughtless slip or blunder . . . may expose [one] to a liability in an indeterminate amount for an indeterminate time to an indeterminate class. . . . [I]f there has been neither reckless misstatement nor insincere profession of an opinion, but only honest blunder, the ensuing liability for negligence is one that is bounded by the contract, and is to be enforced between the parties by whom the contract has been made.

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UNPUBLISHED

Timothy Coughlin appeals a judgment in favor of Riggs-Ellinger, Inc. d/b/a The Winningham Insurance Group in the latter’s action for breach of contract against Coughlin. Coughlin presents the following restated issue for review: Did the trial court err in ordering the breaching buyer to pay damages to the seller in the amount of the unpaid purchase price, where the seller reacquired the business through a bankruptcy sale?

Conclusion (slip op. at 7):  The trial court’s determination that Riggs-Ellinger is entitled to the unpaid balance of the purchase price, as set out in the Purchase Agreement that was breached by Coughlin, Scott, and RPA, is not clearly erroneous. Judgment affirmed.

Key Analysis (slip op. at 6, 7):  Riggs-Ellinger’s "benefit", as identified by Coughlin in support of his claim of unjust enrichment, is that Riggs-Ellinger gets to collect the full purchase price paid by Coughlin, Scott, and RPA, while at the same time getting to re-obtain The Winningham Insurance Group, perhaps at below-market price. Clearly, Riggs-Ellinger did not ask Scott and RPA to declare bankruptcy and thereby place The Winningham Insurance Group up for bankruptcy sale. The "benefit" . . . was not requested by Riggs-Ellinger. Having not impliedly or expressly requested the "benefit", Riggs-Ellinger is not compelled to pay for it . . . Furthermore, the rights of the parties involved in the sale of The Winningham Insurance Group were controlled by the Purchase Agreement. On this basis alone, the equitable doctrine of unjust enrichment does not apply, as Coughlin’s remedy would be at law, not in equity.

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Appellants-defendants American United Life Insurance Company (AUL) and R.E. Moulton, Inc., (Moulton) (collectively, the appellants), appeal the grant of summary judgment in favor of plaintiffs-appellees Restaurant Hospitality Association of Indiana (Hospitality), the Indiana District of the Assemblies of God (IAG), and CQI, Inc. (CQI) (collectively, the appellees), on the appellees' cause of action to recover premiums from the appellants that had been paid under a stop loss insurance policy. The appellants claim that the trial court erred in refusing to strike portions of an affidavit tendered by one of the appellees' witnesses and further contend that the trial court erroneously determined as a matter of law that no contract of insurance existed because there was a mutual mistake of fact. Thus, the appellants contend that the judgment awarded to the appellees constituting the amount of premiums the appellees had paid plus prejudgment interest must be set aside.

Conclusion (slip op. at 15-16):  We conclude that the trial court erred in granting the appellees' motion for summary judgment and, because the material facts were not in dispute, the trial court should have granted the appellants' motion for summary judgment. The trial court's judgment is reversed and remanded with instructions to grant the appellants' motion for summary judgment and to enter final judgment on their behalf.

Key Analysis (slip op. at 15):  We conclude that the designated evidence established that the negotiations between the parties left nothing open for future determination and that the appellees are unable to point to any material term of the stop loss policies on which the parties did not agree. Indeed, the appellants issued the stop loss policies to the appellees according to the precise terms that were requested, including the subject matter, the risk insured against, the amount the duration of the risk, and the premium. Hence, the appellees were obligated to pay the premiums, and the appellants were bound to pay the amount insured in the event of a loss.

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UNPUBLISHED
 

Debra Byrum appeals the trial court’s order denying her request for unpaid commissions earned before Bookout Properties terminated her employment. Specifically, Byrum maintains that the trial court erred as a matter of law by concluding that her written commission schedule did not satisfy the “signed and written” requirement of the Statute of Frauds, specifically, Indiana Code § 32-21-1-10. 
 

Conclusion (slip op. at 2):  Concluding that her written commission schedule satisfies Indiana Code § 32-21-1-10, we reverse and remand. 
 

Key Analysis (slip op. at 6-7):  We conclude that because Bookout clearly agreed to pay Byrum a commission once a contract for a house was signed and Byrum performed her part of the bargain, Indiana Code §32-21-1-10 does not operate to prevent enforcement of the agreement . . . From the time Byrum began as a full-time employee, Bookout followed this commission schedule, and neither party denies that this writing sets forth the agreement between the parties. As a matter of law, Bookout’s written commission schedule satisfies Indiana Code § 32-21-1-10.

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Shepard, Chief Justice.

The parties in this case entered into a construction contract providing that in the event of a legal dispute, the prevailing party would be entitled to reasonable costs and expenses, including attorney fees. The term "prevailing party" was not defined. We hold that in the absence of further definition, such a contract produces fees only when one party or the other wins a judgment.

Key Analysis (slip op. at 4):  It seems unlikely that parties entering into a contract would intend for a settlement reached during mediation to result in either party obtaining prevailing party status . . . Aside from the dictionary and case law on which we rely, it seems apparent that the bright line approach these represent is the best for most litigants. The worst approach would be one in which "prevailing party" is treated with ambiguity or discretion, provoking litigation about who won the litigation, in addition to litigation over the appropriate amount of fees.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

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Shepard, Chief Justice.

LaFief filed for unemployment. An administrative law judge held that he was not entitled to unemployment benefits, reasoning that LaFief was not "discharged" because his employment ended at the expiration of his contract term. The Review Board of the Indiana Department of Workforce Development reversed, finding that ISU’s decision not to reappoint LaFief equated to a "discharge." The Court of Appeals reversed the board, holding that LaFief was not entitled to unemployment benefits because he had voluntarily agreed to a one-year appointment that expired by its own terms and that he was not "discharged" from his employment when he was not reappointed. The issue is whether a university professor who agreed to a fixed-term employment contract was entitled to unemployment benefits upon the non-renewal of his contract.

Conclusion (slip op. at 5):  We hold that the professor was not voluntarily unemployed and is entitled to benefits. We affirm the Review Board’s decision.

Key Analysis (slip op. at 4):  The fact that LaFief had warning that his employment could terminate upon the contract’s expiration does not change the fact that at the end of the year he became unemployed. The termination of his employment was no more voluntary than the termination of employment of an employee at will, who is presumably on notice that his employment could terminate at any time.

Sullivan and Boehm, JJ., concur.

Dickson, J., dissents with separate opinion, in which Rucker, J., concurs:  . . . [b]ecause I conclude that Professor LaFief had no employment to leave or from which to be discharged, and further that he is personally accountable and responsible for the natural consequences of his agreement to the fixed-term contract, I would reverse the decision of the Review Board.

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UNPUBLISHED

Tri-County Conservancy District ("Tri-County") appeals the trial court’s award of prejudgment interest in the amount of $200,437.65 on a judgment totaling $283,149.38 entered in favor of Gradex, Inc.  The restated issues before us are:

(I) Whether the trial court properly determined that Gradex is entitled to prejudgment interest; and

(II) Whether the accrual of prejudgment interest should have partially stopped after Tri-County tendered $218,870.62 to the trial court clerk at an earlier stage of the litigation.

Conclusion (slip op. at 14):  The trial court did not err in awarding prejudgment interest to Gradex in the amount of $200,437.65. We affirm.

Key Analysis (slip op. at 11, 12):  The fact that a plaintiff ultimately recovers an amount different than what it originally sought does not preclude an award of prejudgment interest, so long as the amount ultimately awarded was readily ascertainable and arrived at by simple calculation . . . many disputed contract cases involve competing contract interpretation arguments, but that fact alone does not preclude an award of prejudgment interest when interpretation of the contract is settled and the amount of damages becomes readily ascertainable.

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UNPUBLISHED

Rubertha Johnson and 317 other former employees of Guide Corporation (collectively, the "Employees") appeal the trial court’s grant of Guide’s motion for summary judgment and denial of their motion for summary judgment. On appeal, the Employees raise four issues, one of which we find dispositive and restate as whether the trial court properly concluded the Labor Management Relations Act (the "LMRA") preempted the Employees’ claims for liquidated damages and attorney fees under the Indiana Wage Payment Statute.

Conclusion (slip op. at 14):  The trial court properly concluded that section 301 of the LMRA preempts the Employees’ claims for liquidated damages and attorney fees under the Indiana Wage Payment Statute. Accordingly, we affirm and remand for further proceedings consistent with this opinion. On remand, the trial court should determine whether the CBA’s grievance and arbitration procedures apply to the Employees’ claims pursuant to federal labor law and, if so, whether the Employees failed to exhaust those procedural remedies.  Affirmed and remanded.

Key Analysis (slip op. at 5, 8, 13):  Section 301 of the LRMA has complete preemptive force, which means that it will displace entirely any state cause of action for violation of contracts between an employer and a labor organization . . . preemption also applies where the state law claim, though not alleging violation of a collective bargaining agreement, nevertheless requires interpretation of one . . . section 301 preemption still applies if the claims are substantially dependent on analysis of the CBA . . . We conclude the Employees’ claims are substantially dependent on analysis of the CBA.

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Appellant-Plaintiff Christine R. Scheible ("Scheible") appeals the trial court’s grant of Appellee-Defendant Fred Jackson’s ("Jackson") Motion for Summary Judgment.  Scheible raises the sole issue of whether the trial court erred in granting Jackson’s Motion for Summary Judgment.  This case presents an issue of first impression; namely, under what conditions can the vendor in a land-sale contract detach himself from liability for the condition of the land.

Conclusion (slip op. at 12-13):  We cannot say as a matter of law that Jackson lacked a duty of care to Travis. Therefore, the trial court erred in granting Jackson’s Motion for Summary Judgment. We remand this matter to the trial court for further proceedings.  Reversed and remanded. 
 

Key Analysis (slip op. at 12):  Control, rather than title, is the critical consideration in determining whether the vendor in a land-sale contract owes a duty to third parties. Whether Jackson exercised the requisite degree of control over the Property is a question of fact.
Baker, C.J., dissenting:  I respectfully dissent. I do not believe that there is a genuine issue of material fact regarding Jackson’s control of the Property. Furthermore, I believe that the result reached by the majority is extraordinarily bad public policy . . .

UNPUBLISHED

Tri-Quality Enterprises, Inc. d/b/a Rhino Linings of Fort Wayne ("Rhino Linings") appeals the trial court’s grant of summary judgment in favor of Total Systems Technology, Inc. ("TST"), and its shareholders, Charles Piscatelli and Dorothy Piscatelli, on Rhino Linings’ third-party claims of breach of contract, common law indemnity, and fraud, as well as the trial court’s denial of Rhino Linings’ motion for summary judgment on its breach of contract claim. On appeal, Rhino Linings raises five issues, which we consolidate and restate as whether the trial court properly granted TST summary judgment on Rhino Linings’ claims of breach of contract, common law indemnity, and fraud.

Conclusion (slip op. at 17): The trial court properly granted TST summary judgment on Rhino Linings’ breach of contract claim, but improperly granted TST summary judgment on Rhino Linings’ common law indemnity and fraud claims.

Key Analysis (slip op. at 17): Indiana law provides that although an integration clause generally results in application of the parol evidence rule, an exception exists where the parol evidence "is not being offered to vary the terms of the written contract, and to show that fraud, intentional misrepresentation, or mistake entered into the formation of a contract." Thus, the parole evidence rule does not apply to prevent Rhino Linings from introducing extrinsic evidence on its fraud claim.