FILED Sep 09 2020, 9:07 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Alexandra M. Curlin Liberty L. Roberts Robin Clay Church Church Hittle & Antrim Indianapolis, Indiana Noblesville, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael and Mary Poore, September 9, 2020 Individually and on Behalf of Court of Appeals Case No. J.P., 19A-CT-1439 Appellants-Defendants, Appeal from the Marion Superior Court v. The Honorable James B. Osborn, Judge Indianapolis Public Schools and Trial Court Cause No. its Board of Education, 49D14-1705-CT-18190 Appellees-Plaintiffs.
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 1 of 22 STATEMENT OF THE CASE [1] Appellants/Cross-Appellees-Plaintiffs, Michael and Mary Poore, Individually
and on behalf of J.P. (collectively, the Poores), appeal the trial court’s judgment
in favor of Appellee/Cross-Appellant-Defendant, Indianapolis Public schools
and its Board of Education (IPS), on the Poores’ claims for breach of contract,
negligence, and violation of the Indiana Deceptive Consumer Sales Act when
IPS refused to pay for J.P.’s advanced math class taken outside of the IPS
system.
[2] We affirm in part and reverse in part.
ISSUES [3] The Poores present this court with four issues, which we restate as follows:
(1) Whether the trial court abused its discretion by excluding the testimony
of a certain witness;
(2) Whether the trial court abused its discretion when it determined that IPS
was not negligent because IPS did not deny J.P. the benefit of early
college credits;
(3) Whether the trial court abused its discretion by concluding that IPS did
not violate the Deceptive Consumer Sales Act (DCSA); and
(4) Whether the trial court abused its discretion by concluding that no
breach of contract occurred where IPS provided three options for J.P.’s
advanced math class but the parties failed to have a valid, enforceable
contract requiring IPS to pay for J.P.’s math class at a local university.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 2 of 22 [4] On Cross-Appeal, IPS presents this court with one issue, which we restate as:
Whether the trial court erred in determining that IPS, a common school
corporation, is a supplier engaged in consumer transactions within the meaning
of the DCSA.
FACTS AND PROCEDURAL HISTORY [5] By the time J.P. attended kindergarten, IPS informed his parents that their son
was “way ahead of everybody else.” (Transcript Vol. III, p. 48). He was
identified as a gifted student and invited to attend Merle Sidener, the gifted and
talented academy at IPS. J.P. attended Merle Sidener from fifth grade through
eighth grade and took Algebra I, Geometry, Algebra II, and Pre-Calculus. In
late 2014, when J.P. was in eighth grade, the Poores considered J.P.’s
possibilities for high school. The Poores anticipated that the only way to
accommodate J.P.’s math talents would be to choose “a high school that could
offer [college level math courses] … as part of their curriculum.” (Tr. Vol. III,
p. 56). At the time the Poores commenced exploring high school options, IPS
announced its intent to redesign its Magnet & Choice programs. As part of the
redesign, the International Baccalaureate (IB) program moved from the
Gambold Preparatory Magnet High School to Shortridge High School
(Shortridge), and the Law and Public Policy magnet program was relocated
from Shortridge to Arsenal Technical High School.
[6] While attending a school fair in November 2014, the Poores received a
brochure for Shortridge that listed the “Butler Early College Program
Experience,” which allowed qualified juniors and seniors to earn up to twelve Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 3 of 22 college credits at Butler University. (Exh. Vol. I, Exh. 42). In December 2014,
the Poores attended a question and answer session at Gambold Preparatory
Magnet High School, where Shane O’Day (O’Day), Gambold’s principal,
provided information about the IB program’s impending move to Shortridge.
At the conclusion of the program, the Poores spoke with O’Day about possible
math offerings for J.P. That same month, and prior to the magnet school
application deadline, the Poores decided to enroll J.P. in the IB program,
housed at Shortridge.
[7] On March 19, 2015, while J.P. was completing his eight grade at Merle
Sidener, the Poores sent O’Day an email, explaining that J.P. would be
attending the IB program at Shortridge the following school year but also
voicing some concerns about J.P.’s readiness for Calculus based on the Pre-
Calculus class that J.P. was taking at Broad Ripple High School. On March 22,
2015, O’Day responded to the Poores’ email, advising that “[i]f it is determined
that [J.P.] is prepared for [C]alculus, we can work with Butler University, look
at an online calculus class (with a teacher for support), or another calculus
option.” (Exh. Vol. I, Exh. 44, p. 133).
[8] Sometime between July 1, 2015 and October 2015, O’Day, who had transferred
to Shortridge, created the website for the IB program at Shortridge. The
website explained that “[Shortridge] serves as Butler University College of
Education’s Middle Secondary Laboratory School” and that this “partnership is
designed to serve as a professional development site for pre-service candidates
who are training to become teachers as well as provde a collaborative research
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 4 of 22 facility for both Shortridge and Butler faculty.” (Exh Vol. I, Exh. 20). The
website also indicated that one of the “Butler benefits for students while at
Shortridge” included “Early College opportunities – access to taking classes at
Butler, for credit, if academically eligible;” and that one of the “future benefits
at Butler for Shortridge students” was the “[a]bility to apply for one of the ten
‘Tuition Guarantees’ available to IPS students through Butler” should the IPS
student elect to continue his or her education at Butler after graduating from
IPS. (Exh. Vol. I, Exh. 20). “The tuition guarantees provide full tuition
coverage when combined with available state/federal financial aid.” (Exh. Vol.
I, Exh. 20).
[9] In June 2015, J.P. met with John Riley (Riley), an IPS math teacher, and
obtained the study guide for the Pre-Calculus class. After working through the
study guide, the Poores determined that it would be better that J.P. re-took Pre-
Calculus during his freshman year at Shortridge. At the end of J.P.’s freshman
year, no math class was included in his sophomore schedule and the IB
program at Shortridge did not have a Calculus class available. Therefore,
during the summer between J.P.’s freshman and sophomore years, IPS and the
Poores explored the possibility of J.P. taking a math class at Butler University
during J.P.’s sophomore year.
[10] On July 19, 2016, O’Day emailed Associate Professor Shelley Furuness
(Professor Furuness) at Butler University to explore the option for J.P. to attend
an advanced math class. Between July 19, 2016 and September 7, 2016, IPS
and Butler exchanged several emails to place J.P. in an appropriate class,
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 5 of 22 ensured J.P. took a placement exam, and determined the process to enroll him
into a Calculus class at Butler for his sophomore year. Butler directed IPS to
have J.P. apply through the Gifted and Talented program. By the time J.P.’s
application materials were completed, Butler’s classes had started and J.P. had
missed too many classes to be able to catch up. Ultimately, IPS enrolled J.P. in
a Calculus class through the Indiana Online Academy for the Fall semester of
his sophomore year, with in-person support by IPS teachers.
[11] The cost of the Butler course was first raised on September 1, 2016 by the
Associate Director of Admissions at Butler University. There had been no
discussion about any costs associated with a class at Butler until the online class
became the only viable option to provide J.P. with math instruction during the
first semester of his sophomore year. During the spring semester of J.P.’s
sophomore year, the Poores insisted that he be enrolled in a college math class.
IPS advised that J.P. could be enrolled in a math course at Butler for the Spring
semester of his sophomore year but that IPS would not pay for the course.
When the Poores requested to enroll J.P. in a math course at IUPUI instead,
IPS again confirmed that it would not pay for the class. Instead, IPS enrolled
J.P. in an AP Calculus class at Arsenal Technical High School for the Spring
semester of the sophomore year. The Poores declined this option and enrolled
J.P. in the IUPUI math class, paying $1,456.14 for the course. At the time of
graduation, J.P. was on track to graduate with the Core 40 Diploma with
Academic Honors and would be taking the IB exams.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 6 of 22 [12] On May 7, 2017, the Poores filed their Complaint against IPS sounding in
negligence, breach of contract, and deceptive practices. On September 18,
2018, IPS filed a motion for summary judgment, to which the Poores
responded. On November 14, 2018, the trial court denied summary judgment
to IPS. On November 28-29, 2018 and March 20, 2019, the trial court
conducted a bench trial and received testimony. On May 28, 2019, the trial
court ruled in favor of IPS on all claims, concluding, in pertinent part,
2. The Poores have failed to prove that a contract existed between them and IPS which required IPS to provide J.P. with a class at Butler free of charge. The evidence shows the Poores and IPS did not have an agreement or meeting of the minds relating to payment for a college course at Butler. The evidence shows that the parties never discussed payment for a college course until they discussed the on-line course in September 2016, after the Butler course was no longer an option for first semester. There is no evidence of a meeting of the minds between the Poores and IPS on all essential elements or terms of the agreement. Without a meeting of the minds on the issue of payment for the Butler math course, there can be no valid enforceable contract.
3. IPS did not promise J.P. a class at Butler. Rather, it provided three options for J.P. to take a calculus class. Providing three options for achieving a goal does not provide an agreement that is reasonably definite and certain to create a valid and enforceable contract.
****
6. IPS fulfilled its duty to provide J.P. with classes necessary for him to graduate with a Core 40 Diploma with Academic Honors. Indiana Department of Education requirements (relating to
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 7 of 22 math) for a Core 40 Diploma with Academic Honors requires a student to have a total of 8 credits with the minimum requirements of: 2 credits in Algebra I, 2 credits in Geometry, 2 credits in Algebra II, and an “additional Core 40 math credit.” Prior to enrolling at Shortridge, J.P. had already obtained 2 credits in Algebra I, 2 credits in Geometry, and 2 credits in Algebra II. To satisfy the requirements for a Core 40 Diploma with Academic Honors, J.P. only needed to obtain 2 additional math credits during his four years at Shortridge and take at least one semester of math or quantitative reasoning during each of his four years at Shortridge. The evidence shows that IPS provided J.P. with a math class every year he has been at Shortridge. The semester that J.P. took a class at IUPUI, IPS had enrolled J.P. in a Calculus class, but the Poores opted to enroll J.P. in the IUPUI class instead. The evidence shows that the Poores rejected the class that was provided by IPS, not that IPS failed to provide a class.
10. IPS is a “supplier” as that term is defined in the Deceptive Consumer Sales Act. IPS regularly engages in consumer transactions through its disposition of education services. IPS engages in public outreach, including open houses, to encourage students to choose IPS schools over other options. An IPS school financially benefits when a student chooses an IPS school because tax dollars are distributed to the school based on enrollment figures.
11. The Poores, however, have failed to prove that IPS and its representatives committed an unfair, abusive, or deceptive act, omission or practice when presenting options to the Poores. The Poores drew the wrong conclusions from accurate information presented to them.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 8 of 22 (Appellants’ App. Vol. II, pp. 19-22).
[13] The Poores now appeal. Additional facts will be provided if necessary.
DISCUSSION AND DECISION I. Admission of Evidence
[14] The Poores first contend that the trial court abused its discretion by refusing to
admit the testimony of Kurt Thomas (Thomas) because he had no personal
knowledge of the communications between the Poores and IPS. The standard
of review for admissibility of evidence is abuse of discretion. Weinberger v.
Boyer, 956 N.E.2d 1095, 1105 (Ind. Ct. App. 2011). The trial court abuses its
discretion only when its action is clearly erroneous and against the logic and
effect of the facts and circumstances. Id. Even when the trial court erred in its
ruling on the admissibility of evidence, this court will reverse only if the error is
inconsistent with substantial justice. Id.
[15] The Poores attempted to admit Thomas’ testimony about his own personal
understanding as he was told the “same things” the Poores were told by O’Day
and went through a “very similar experience.” (Tr. Vol. II, pp. 160-61). In
their offer of proof, the Poores advised the trial court that Thomas’ son was a
year younger than J.P. and similarly advanced in math. Thomas would have
testified about his conversation with O’Day concerning the math course
offerings at Shortridge and confirmed that O’Day advised him that his son
could enroll at Butler through the Shortridge-Butler partnership. Thomas
would have informed the trial court that O’Day advised him that dual credit Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 9 of 22 courses would be available without charge to students. Thomas would have
testified that IPS led him to believe the Butler program was integrated into the
Shortridge curriculum and that his son would have received dual credit
coursework through Shortridge as a result of the partnership with Butler. IPS
objected to the offered testimony—and the trial court sustained the objection—
based on relevancy and because there was no class action or other claim
requiring the establishment of a “pattern or practice.” (Tr. Vol. II, p. 161).
[16] Relevant evidence is defined as evidence “having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Ind.
Evidence Rule 401. “Although evidence must be relevant to be admissible, not
all relevant evidence is admissible.” Terex-Telelect, Inc. v. Wade, 59 N.E.3d 298,
303 (Ind. Ct. App. 2016), trans. denied. Indiana Evidence Rule 403 provides
that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, considerations of undue delay, or needless presentation of
cumulative evidence. Id.
[17] In support of their argument that Thomas’ testimony is relevant, the Poores
refer this court to Grand R & I.R. Co. v. Diller, 9 N.E. 710 (Ind. 1887), where
Diller incurred injuries due to a collision. One of the essential facts to be
established was that the engineer neglected to signal the pending arrival of the
train at the highway crossing as required by statute. Id. at 710. At trial, the
appellee produced a witness who had overheard a conversation with the
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 10 of 22 engineer of the train, admitting that he had not provided the signal. Id. Our
supreme court held that the overheard conversation was admissible as it was “in
the nature of an admission.” Id.
[18] We find Diller inapposite to the case at hand. Unlike Diller, the evidence reflects
that Thomas was not present during or overheard any conversations between
the Poores and IPS, nor was he copied on any email exchange between the
parties. Although the evidence offered by Thomas would have pointed to a
similar personal experience of his son with IPS one year after J.P.’s experience,
such testimony was not relevant as it did not “go to the heart of the matter with
regard to any of the three claims” brought by the Poores. (Tr. Vol. II, p. 164).
Thomas’ offered testimony would only reflect what O’Day told him with
regards to his son, it would not reflect on the Poores’ conversations with O’Day
or their experience within the IPS system. Accordingly, as Thomas’ statements
would not make the Poores’ claims more or less probable, his testimony was
not relevant and was properly excluded by the trial court. See Evid. R. 401.
II. Negligence
[19] The Poores challenge the trial court’s determination that IPS was not negligent
because IPS provided the necessary classes for J.P. to graduate with a Core 40
Diploma with Academic Honors. While they concede that “of course” J.P.
could “obtain a Core 40 Diploma with [H]onors,” they now maintain that
“[t]he main issue is whether he was negligently denied college credit that would
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 11 of 22 have given him college level coursework and allowed him to ‘achieve
postsecondary competencies.’” 1 (Appellants’ Br. pp. 20-21).
[20] To prevail on a negligence claim, the plaintiff must show (1) a duty owed to the
plaintiff by the defendant; (2) a breach of that duty by allowing conduct to fall
below the applicable standard of care; and (3) compensable injury proximately
caused by the breach of duty. Smith v. Walsh Contr. Co. II, LLC, 95 N.E.3d 78,
84 (Ind. Ct. App. 2018). The element of duty is generally a question of law to
be determined by the court. Id. The elements of breach and proximate cause,
however, generally present questions of fact that must be determined by a
factfinder. Id.
[21] As the Poores have admitted on appeal that IPS fulfilled its duty to supply the
necessary classes for J.P. to graduate with a Core 40 Diploma with Academic
Honors, we will only address whether IPS had a duty to provide J.P. with
college level or dual credit coursework. Pursuant to Indiana Code section 20-
30-10-4, “[e]ach high school must provide at least two (2) of each of the
following course offerings: (1) Dual credit, (2) Advanced placement. A dual
credit course is statutorily defined as “a course taught by a high school faculty
1 In their appellate Brief, IPS argues that the Poores’ negligence claim submitted to the trial court focused on IPS’s alleged failure to provide J.P. with the necessary classes to graduate with a Core 40 Diploma with Academic Honors. IPS contends that the Poores’ appellate claim, which is based on IPS’s failure to provide college level coursework, is a new theory not pursued in the Complaint or before the trial court. However, as neither party included the Complaint in the Appendix, we cannot review IPS’s argument. See Ind. Appellate Rule 49 & 50(A)(2)(f).
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 12 of 22 member, a college faculty member, or a college adjunct faculty member that a
high school student may take to earn both high school and college credits.”
[22] O’Day testified that to fulfill the statutory requirement of a dual credit offering,
Shortridge had entered into a dual credit agreement with a particular university
through the IB program. Upon successful completion of the IB course, the
student would receive a dual credit which includes a credit at the student’s high
school as well as a college credit for the course. O’Day explained the advantage
of the IB program as follows:
If we go back to the traditional model of a particular high school with a particular single university as the dual credit accrediting agency that is the only credit and university transcript for that particular course So, to put it into real terms, of the times here with IPS, and use perhaps the IUPUI SPAN Program as an example, when a child completes a dual credit class, they’ll receive an IUPUI transcript that indicates that credit. What the advantage we have as a school and as an IB school is it is the receiving university of the child that will award a credit. [] The advantage of the IB program is if your child is admitted into Northwestern University then they award that credit to the child for completion of the IB course. So what it does, it prevents having multiple transcripts and it allows where the child ultimately enrolls for that crediting institution, the university, to then provide that college credit.
So, it is even located on our website – so the [IB] Organization places together on an Excel spreadsheet all of the different university requirements for them in regards to receiving that credit.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 13 of 22 (Tr. Vol. II, pp. 171-73). Students can earn these dual credit courses for free
based on their IB classes at Shortridge and their performance on the IB finals.
[23] Focusing on Shortridge’s partnership with Butler, the Poores claim that J.P.
should have been allowed to take dual credit classes at Butler free of charge.
However, the partnership between the two schools relied mainly on a
collaborative relationship between faculty, and while the Shortridge website
indicated that one of the “Butler benefits for students while at Shortridge”
included “Early College opportunities – access to taking classes at Butler, for
credit, if academically eligible,” O’Day testified that this opportunity was only
available to juniors and seniors and was being phased out when O’Day
introduced the IB program at Shortridge. (Exh. Vol. I, Exh. 20). Accordingly,
dual credit classes were offered through the IB program.
[24] The statutory provision on dual credit requirements does not grant a student the
right to attend the university or college of its choice with the high school
required to pay the cost, nor does it include the opportunity for a student to
shop around for a college class of his or her choice. Instead, the statute places
the burden on the high school to make dual credit classes available to its
students, which IPS satisfied through the IB program. Thus, based on the
evidence before us, we concur with the trial court that IPS complied with its
duty to provide J.P. with dual credit classes and therefore cannot be held to be
negligent.
III. The Indiana Deceptive Consumer Sales Act
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 14 of 22 [25] Characterizing IPS as a supplier under the DCSA, the trial court concluded that
IPS had not deceived the Poores when presenting them with several options to
fulfill J.P.’s math requirement. The Poores now challenge this conclusion by
maintaining that IPS, a supplier of education services, engaged in an incurable
deceptive act, as defined under the statute, by deceiving the Poores into
believing that J.P. could take Calculus classes at Butler for college credit free of
charge. Related to this argument is IPS’s cross-appeal contending that, while
the trial court’s ultimate conclusion is correct, the court nevertheless erred by
characterizing IPS as a supplier of education services pursuant to the DCSA.
As IPS’s cross-appeal presents us with a threshold issue, we will first address its
argument.
[26] The interpretation of a statute is a question of law, which is reserved for the
courts. Koehlinger v. State Lottery Comm’n of Indiana, 933 N.E.2d 534, 541 (Ind.
Ct. App. 2010). When interpreting a statute, we follow several rules of
statutory construction. Id. First, we do not interpret a statute that is facially
clear and unambiguous. Id. Rather, we give the statute its plain and clear
meaning. Id. Second, if a statute is ambiguous, we seek to ascertain and give
effect to the legislature’s intent. Id. In so doing, we read a statute as a whole
and strive to give effect to all of the provisions. Id. Indeed, when construing a
statute, all sections of an act are viewed together. Id. Additionally, we will
avoid an interpretation that renders any part of the statute meaningless or
superfluous. Id.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 15 of 22 [27] The DCSA is to be “liberally construed and applied to promote its purposes and
policies[, which] are to: (1) simplify, clarify, and modernize the law governing
deceptive and unconscionable consumer sales practices; (2) protect consumers
from suppliers who commit deceptive and unconscionable sales acts; and (3)
encourage the development of fair consumer sales practices.” I.C. § 24-5-0.5-1.
To that end, the DCSA entitles a person relying upon one of the several
enumerated deceptive acts to recover “damages actually suffered as a consumer
as a result of the deceptive act or five hundred dollars ($500), whichever is
greater.” I.C. § 24-5-0.5-4. The DCSA does not apply, however, to “an act or
practice that is . . . required or expressly permitted by state law, rule, regulation,
or local ordinance.” I.C. § 24-5-0.5-6(2).
[28] IPS is “a common school corporation” that provides education services to
students within its district. I.C. § 20-25-1-1. In carrying out this purpose, the
student’s school counselor, “after seeking consultation with each student’s
parents” shall further develop a graduation plan to include the subject and skills
areas of interest to the student. I.C. § 20-30-4-2(1). They will also develop “[a]
program of study under the college/technology preparation curriculum” that
“meets the interests, aptitude, and postsecondary goals of the student,” as well
as incorporate “[a]ssurances that, upon satisfactory fulfillment of the plan, the
student: (A) is entitled to graduate[.]” I.C. § 20-30-4-2(3) & -(4).
[29] The record undeniably reflects that J.P. showed a high aptitude for math. To
develop and support his aptitude, IPS offered to “work with Butler University,
look at an online calculus class (with a teacher for support), or another calculus
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 16 of 22 option.” (Exh. Vol. I, Exh. 44, p. 133). The Butler class was presented as one
of three options, without any guarantee as to which option would ultimately be
provided to J.P. Although the application materials for Butler were not timely
submitted for J.P. to enroll in the advanced math class and J.P. had missed too
many classes to be able to catch up, IPS enrolled J.P. in a Calculus class
through the Indiana Online Academy for the Fall semester of his sophomore
year, with in-person support provided by IPS teachers. As a result, J.P. was
able to graduate with classes necessary to receive a Core 40 Diploma with
Academic Honors. As IPS’s action of providing these specific educational
opportunities tailored to J.P.’s abilities are expressly permitted by the statute,
the DCSA does not apply. 2 See I.C. § 24-5-0.5-6(2). As such, we reverse the
trial court’s conclusion that IPS was subject to the requirements of the DCSA. 3
IV. Breach of Contract
[30] As a final contention, the Poores argue that the trial court abused its discretion
by determining that no enforceable contract existed between IPS and the Poores
2 In their reply brief, the Poores refer to I.C. § 24-5-0.5-3(b), which enumerate “thirty-seven instances of statutorily allowed transactions that are nonetheless subject to the DCSA protections.” (Cross-Appellees Br. p. 15). However this list includes acts which have been deemed by the legislature to constitute per se acts of deception under the DCSA.. See I.C. § 24-5-0.5-3(b) (“the following acts, and the following representations as to the subject matter of a consumer transaction, made orally, in writing, or by electronic communication, by a supplier, are deceptive acts . . .). Unlike the Poores’ statement, these are not “statutorily allowed transactions” that nonetheless fall under the DCSA. Instead, it represents a list of acts compiled by the legislature that wiare deemed deceptive without otherwise limiting the definition of deceptive act. Furthermore, while the list does not limit the scope of deceptive acts under the DCSA, no acts listed pertain to the provision of education services. 3 As we conclude that the DCSA is not applicable to IPS, we will not address the Poores’ argument that IPS committed an incurable deceptive act, as defined by the statute.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 17 of 22 as there was no meeting of the minds about the payment for a college course at
Butler.
[31] The existence of a contract is a question of law. Mueller v. Karns, 873 N.E.2d
652, 657 (Ind. Ct. App. 2007). It is up to the court to decide, as a question of
law, whether a contract existed. Am. Family Mut. Ins. Co. v. Matusiak, 878
N.E.2d 529, 533 (Ind. Ct. App. 2007). However, “where the existence . . . of a
contract or the terms thereof is the point in issue, and the evidence is conflicting
or admits of more than one inference, it is for the [trier of fact] to determine
whether a contract in fact exists.” Barker v. Price, 48 N.E.3d 367, 371 (Ind. Ct.
App. 2015).
[32] It is well-understood that “[c]ontracts are formed when parties exchange an
offer and acceptance.” Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct.
App. 2005), trans. denied. A meeting of the minds of the contracting parties,
having the same intent, is essential to the formation of a contract. Id.
Accordingly, the basic requirements for a contract are offer, acceptance,
consideration, and a meeting of the minds between the contracting parties on all
essential elements or terms of the transaction. Morris v. Crain, 969 N.E.2d 119,
123 (Ind. Ct. App. 2012). In addition, to be valid and enforceable, a contract
must be reasonably definite and certain. Allen v. Clarian Health Partners, Inc., 980
N.E.2d 306, 309 (Ind. 2012). Only “reasonable” certainty is necessary,
“absolute certainty in all terms is not required.” Id. at 310.
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 18 of 22 [33] While there is no written agreement signed by the parties, the validity of a
contract is not dependent upon the signature of the parties, unless such is made
a condition of the agreement, which was not the case here. State v. Daily
Express, Inc. 465 N.E.2d 764, 767 (Ind. Ct. App. 1984). However, some form of
assent to the terms is necessary and may be expressed by acts which manifest
acceptance. Id.
[34] On March 19, 2015, while J.P. was completing his eighth grade at Merle
Sidener, the Poores commenced communication with O’Day by email,
signaling their intent that J.P. would be attending the IB program at Shortridge
the following school year and inquiring about math classes based on J.P.’s
aptitude. On March 22, 2015, O’Day responded to the Poores’ email, advising
that “[i]f it is determined that [J.P.] is prepared for calculus, we can work with
Butler University, look at an online calculus class (with a teacher for support),
or another calculus option.” (Exh. Vol. I, Exh. 44, p. 133). Without granting a
right to enroll at classes at Butler, IPS’s website explained that one of the
“Butler benefits for students while at Shortridge” included “Early College
opportunities – access to taking classes at Butler, for credit, if academically
eligible.” (Exh. Vol. I, Exh. 20). Over the next several months the Poores
engaged in numerous communications with O’Day, expressing their preference
for the Butler course out of the three options provided by O’Day, and inquiring
about how this course would meet J.P.’s needs. The evidence reflects that IPS
worked with Butler to find a course suitable for J.P.’s needs, but due to time
constraints, J.P. was unable to timely enroll in the Butler course. Although the
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 19 of 22 parties conversed in detail about the registration and academic rigors of the
Butler course, at no point during these conversations did the parties broach the
subject of payment for it. It was only after J.P. was enrolled in the online math
class, after the Butler class was no longer an option, did the parties discuss
payment for the college level class.
[35] The Poores now attempt to infer a meeting of the minds on payment from
O’Day’s statement that IPS would provide transportation to Butler. By stating
that IPS would provide transportation, the Poores maintain that IPS
“confirmed that it would pay for the course, otherwise, what benefit would IPS
be offering.” (Appellants’ Br. p. 34). In support of their argument, the Poores
rely on Nationwide Ins. Co. v. Heck, 873 N.E.2d 190 (Ind. Ct. App. 2007). In
Nationwide, a passenger in a vehicle incurred injuries due to a vehicular
accident. Id. at 192. Early on in the dispute, an oral agreement was reached
between the passenger and Nationwide that Nationwide would not deny
coverage and would reimburse all incurred damages. Id. This agreement was
memorialized in a writing. Id. Over the next twenty-eight months, the
insurance adjuster requested the medical bills, medical records, inquired about
the passenger’s recovery, and entered into negotiations to settle the claim. Id. at
194-95. “At no time did [Nationwide] state or imply that coverage was an
issue.” Id. at 194. Twenty-eight months later, Nationwide denied coverage.
Id. at 195. Focusing on the premise that assent to the terms “may be expressed
by acts which manifest acceptance,” the court concluded that the conduct of
Nationwide’s insurance adjuster demonstrated that an agreement existed on
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 20 of 22 liability and jurisdiction, with the only remaining issue being the amount of
damages. Id. at 196-97.
[36] We find Nationwide inapposite to the facts before us. Unlike Nationwide where
an agreement existed on all essential terms, including the term which was later
disputed by Nationwide, IPS and the Poores never discussed the payment of the
Butler class, let alone reached an agreement that was later revoked by one of the
parties. Although there might have been an agreement about transportation, it
cannot be inferred from words or action—as the Poores would encourage us to
do—that transportation also included payment.
[37] As the parties never reached an agreement on paying for the college class, there
was no reasonably definite and certain payment term so as to create a valid and
enforceable contract. “[W]here any essential term is omitted from a contract,
or is left obscure or undefined, so as to leave the intention of the parties
uncertain as to any substantial term of the contract, the contract may not be
specifically enforced.” Conwell v. Gray Loon Outdoor Mkg. Grp., Inc., 906 N.E.2d
805, 813 (Ind. 2009). Therefore, we affirm the trial court’s conclusion that no
contract existed between IPS and the Poores which required IPS to provide J.P.
with a class at Butler free of charge.
CONCLUSION [38] Based on the foregoing, we hold that the trial court did not abuse its discretion
by excluding the testimony of a certain witness; IPS was not negligent because
IPS did not deny J.P. the benefit of early college credits; and no valid,
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 21 of 22 enforceable contract existed between IPS and the Poores, requiring IPS to pay
for J.P.’s math class at Butler University. We reverse the trial court’s
conclusion on the DCSA and hold that IPS was not subject to the statutory
requirements of the DCSA.
[39] Affirmed in part and reversed in part.
May, J. and Altice, J. concur
Court of Appeals of Indiana | Opinion 19A-CT-1439 | September 9, 2020 Page 22 of 22