IN THE
Court of Appeals of Indiana FILED The Morel Company, LLC, May 29 2026, 10:34 am Appellant-Plaintiff CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
Sizewise Rentals, LLC, Appellee-Defendant
May 29, 2026 Court of Appeals Case No. 25A-PL-937 Interlocutory Appeal from the Ripley Circuit Court The Honorable Jeffrey Sharp, Special Judge Trial Court Cause No. 69C01-2305-PL-000005
Opinion by Judge Felix
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 1 of 28 Judge Altice concurs. Chief Judge Tavitas dissents with a separate opinion.
Felix, Judge.
Statement of the Case [1] In 2015, The Morel Company, LLC (“Morel”) and Sizewise Rentals, LLC
(“Sizewise”) entered into a five-year distribution agreement whereby Morel
would design and manufacture a medical device for hospital bedframes.
Sizewise would purchase the devices at a discounted price, rent them to
healthcare facilities, and pay Morel a “Rental Rate Share.” Five years later,
Sizewise communicated its intention to let the agreement expire before it
renewed or extended. The parties disputed whether the agreement permitted
Sizewise to do so or instead extended automatically. The trial court denied
both parties’ motions for summary judgment, prompting this interlocutory
appeal. The parties raise two issues, which we restate as the following single
issue: Whether the trial court erred by denying their respective motions for
summary judgment.
[2] We reverse.
Facts and Procedural History [3] Morel is a medical device manufacturer whose principal product is an
“automated patient repositioning device,” Appellant’s App. Vol. II at 96,
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 2 of 28 known as the “Hercules Patient Repositioner” (the “Hercules”), Appellant’s
App. Vol. VI at 127. The Hercules attaches to hospital bedframes and enables
caregivers “to push a button to pull a patient up in bed.” App. Vol. III at 112.
[4] Relevant for this appeal, Sizewise is a distributor of specialty medical
equipment. Sizewise specializes in the “bariatric” market, Appellant’s App.
Vol. III at 10, which consists of medical devices tailored to obese patients. One
line of Sizewise’s business was the sale and rental of “bariatric bedframes,” id.,
which are several inches wider than standard 36-inch hospital bedframes.
Sizewise charged customers (e.g., hospitals, care centers, etc.) a daily rental rate
for use of the bedframes.
[5] In 2014, Sizewise representatives discovered the Hercules at a trade show and
became interested in adding it to Sizewise’s portfolio of products. At the time,
the Hercules was only designed to fit standard hospital bedframes. Sizewise
was interested in working with Morel to distribute the Hercules in “bariatric
form” to fit bariatric bedframes. Appellant’s App. Vol. V at 16. On February
16, 2015, after several draft proposals, Morel and Sizewise signed a final
distribution agreement (the “Agreement”).
[6] Under the Agreement, Morel would design and supply Hercules units for
bariatric bedframes, and Sizewise would have five years of exclusive
distribution rights. Sizewise could purchase the units either (1) for resale or (2)
to rent to Sizewise’s customers. Units purchased for resale were priced at
$4750.00, and units purchased to rent were priced at $2650.00. The latter price
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 3 of 28 was discounted because Sizewise would pay Morel a “Rental Rate Share”
based on each rented unit. Appellant’s App. Vol. VI at 133. The Rental Rate
Share was initially $13.00 for each day that a unit was rented, with provisions
for adjustment after the first three years. Sizewise was also required to furnish
Morel with reports regarding sales activities and market data, as well as “daily
information on [units] rented and invoiced.” Id. at 134.
[7] The Agreement contained several key provisions regarding the term and
termination thereof, including the following:
ARTICLE 1
APPOINTMENT AS DISTRIBUTOR
***
1.2 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date [February 16, 2015], and unless terminated earlier under Article 11 [the Termination Section], shall remain in full force and effect until the fifth anniversary of the Effective Date, as may be extended only as provided in this Section 1.2 or by the written agreement of the Parties. Beginning on the fifth anniversary, the Term will be automatically extended for additional two-year (2) periods, subject to the early termination provisions contained in Article 11.
Appellant’s App. Vol. VI at 127–28.
ARTICLE 11
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 4 of 28 TERMINATION
11.1 Termination. A Party shall have the right to terminate this Agreement at any time by giving written notice to the other Party upon the occurrence of any of the following events:
a. a material default of this Agreement by the other Party that is not corrected within thirty (30) days after receiving written notice from the non- defaulting Party with respect to such default; or
b. any determination, filing, judgment, declaration, notice, appointment of receiver or trustee, or other events under any law applicable to a Party indicating the insolvency or bankruptcy of such Party; or
c. any change of control of the other Party which shall occur if another entity which is not a Party to this Agreement acquires, directly or indirectly, at least fifty percent (50%) of the voting equity (or other comparable interest for an entity other than a corporation) of such other Party.
11.2 Minimum AIU and Purchase Requirements. [Morel] shall have the right to terminate this Agreement at any time by giving written notice to [Sizewise] in the event that [Sizewise] has failed to meet each minimum Average in Use (AIU) volume threshold . . . .
Id. at 140. The Termination Section also contemplated a “[two]-year tail”
provision, Appellant’s App. Vol. III at 43, which provides, “If [Sizewise]
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 5 of 28 terminates the Agreement, . . . [Morel] shall have the right to continue to be
paid the Rental Rate Share . . . for twenty-four (24) additional months from the
date this Agreement is terminated,” Appellant’s App. Vol. VI at 140–41.
[8] After approximately five years, Sizewise was not meeting the AIU volume
requirements and was facing pricing pressure for its bedframes. Morel did not
wish to terminate the Agreement because, although Morel “wanted the
performance to be better,” the Agreement was “still generating some revenues”
and the revenue was growing. Appellant’s App. Vol. IV at 12. Morel,
however, determined that it would not renew Sizewise’s exclusive distribution
rights.
[9] On February 13, 2020—three days before the Agreement’s fifth anniversary—
Sizewise’s Chief Executive Officer (“CEO”) Brian Frickey sent a letter to
Morel’s CEO Bill Hillenbrand acknowledging an end to the exclusivity rights
and stating that Sizewise wished to let the Agreement “expire” without the “2[-]
year automatic renewal”1 taking effect. Appellant’s App. Vol. VII at 217. The
day after the fifth anniversary, Hillenbrand sent a letter in response to Frickey,
stating that the Agreement already “automatic[ally] renew[ed]” and that
because Sizewise did not indicate it wished to terminate the Agreement
pursuant to the Termination Section, the Agreement remained “in force.” Id. at
1 For clarity, although the parties tend to use “renewed” or “renewal,” e.g., Appellant’s Br. at 6; Appellee’s Br. at 8, the Agreement uses “extended,” Appellant’s App. Vol. VI at 127. We will use “renew” when quoting the parties but otherwise use “extend” and variations thereof.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 6 of 28 220. Believing the Agreement had terminated, Sizewise continued to make
Rental Rate Share payments to Morel through February 2022 pursuant to
Sizewise’s interpretation of the two-year tail provision under Section 11.3(e).
[10] In October 2021, Sizewise was acquired by Agiliti, a medical equipment
management company. Sizewise thereafter operated as an “autonomous entity
. . . wholly owned by Agiliti.” Appellant’s App. Vol. VI at 13. Following the
acquisition, Morel declined to negotiate a new contract with Agiliti, taking the
position that its “contract with Agiliti remains in place as it did with Sizewise.”
Appellant’s App. Vol. VIII at 125. Once the two-year tail period ended,
Sizewise ceased making Rental Rate Share payments to Morel but continued to
rent out its existing inventory of Hercules units. 2
[11] In May 2023, Morel filed a complaint against Sizewise alleging, as relevant
here, that the Agreement was still in effect, Sizewise breached the Agreement
by continuing to rent Hercules units but failing to pay Morel the Rental Rate
Share, and Sizewise was unjustly enriched.3 Both parties filed motions for
[12] At the trial court, Morel argued that despite Sizewise’s letter, the Agreement
remained in effect because it “automatically renewed” in February 2020, 2022,
2 It appears that in March 2022, Morel delivered several additional Hercules units to Sizewise, which Sizewise had ordered in December 2021. 3 Sizewise also asserted counterclaims, which are not relevant to this appeal.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 7 of 28 and 2024, as Sizewise did not “rely [on] or cite to any provision in the contract
that would permit termination.” Appellant’s App. Vol. II at 50. Morel also
argued that the agreement was not a “perpetual” contract, id. at 52, because it
included specific termination provisions. In its motion for summary judgment,
Sizewise argued that the Agreement permitted Sizewise to “opt out of renewal”
after the fifth anniversary. Appellant’s App. Vol. IX at 3. Sizewise argued that
if it could not so opt out, the Agreement would be rendered a perpetual contract
notwithstanding its termination provisions because the provisions are
“permissive.” Id. at 4.
[13] The trial court denied both motions for summary judgment on the grounds that
“disputed issues of material fact” remained. Appellant’s App. Vol. II at 20. On
May 15, 2025, we accepted jurisdiction of Morel’s interlocutory appeal of that
ruling, and this appeal ensued.4
Discussion and Decision The Trial Court Erred by Denying Summary Judgment in Favor of Morel
[14] This is an appeal of an order denying the parties’ summary judgment motions.
We review summary judgment decisions de novo, Gierek v. Anonymous 1, 250
N.E.3d 378, 384 (Ind. 2025) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.
4 On March 23, 2026, we held oral argument in this case at Notre Dame University in South Bend, Indiana. We thank all those in attendance for their attentiveness and hospitality, and we thank counsel for both parties for the quality of their advocacy.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 8 of 28 2014)), which means we apply the same standard as the trial court, Wohlt v.
Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red Lobster Rests. LLC v. Fricke,
234 N.E.3d 159, 165 (Ind. 2024)). Summary judgment is proper only “if the
designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Ind. Trial Rule 56(C).
[15] The parties’ arguments require interpretation of the Agreement. Contract
interpretation is a question of law that we review de novo. Thomas v. Valpo
Motors, Inc., 258 N.E.3d 236, 239 (Ind. 2025) (citing Land v. IU Credit Union, 218
N.E.3d 1282, 1286 (Ind. 2023)). “Summary judgment is ‘especially
appropriate’ in cases of contract interpretation ‘because the construction of a
written contract is a question of law.’” Id. at 240 (quoting N.H. Ins. Co. v. Ind.
Auto Ins. Plan, 176 N.E.3d 514, 521 (Ind. Ct. App.), trans. denied, 178 N.E.3d
796) (Ind. 2021)).
[16] When this court interprets a contract,
we ascertain the intent of the parties at the time the contract was made, as disclosed by the language used to express the parties’ rights and duties. We look at the contract as a whole . . . and we accept an interpretation of the contract that harmonizes all its provisions. A contract’s clear and unambiguous language is given its ordinary meaning. A contract should be construed so as to not render any words, phrases, or terms ineffective or meaningless.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 9 of 28 Ryan v. TCI Architects/Eng’rs/Cont’rs, Inc., 72 N.E.3d 908, 914 (Ind. 2017)
(internal citations omitted).
[17] Last, in interpreting the Agreement, we must determine if its language is
ambiguous. “If the contract’s terms are unambiguous, then they are conclusive
of the parties’ intent, and courts give the contract its plain meaning.” Wohlt,
245 N.E.3d at 616 (citing Decker v. Star Fin. Grp., 204 N.E.3d 918, 920–21 (Ind.
2023); Ryan v. Ryan, 972 N.E.2d 359, 364 (Ind. 2012)). On the other hand, if a
contract is “subject to more than one reasonable interpretation,” the contract is
ambiguous. Wohlt, 245 N.E.3d at 616 (citing G&G Oil Co. of Ind., Inc. v. Cont’l
W. Ins. Co., 165 N.E.3d 82, 87 (Ind. 2021)). When a contract is ambiguous, “its
interpretation is no longer a question of law but one of fact.” Id. (citing First
Fed. Sav. Bank of Ind. v. Key Mkts., Inc., 559 N.E.2d 600, 604 (Ind. 1990)). The
parties’ mere disagreement regarding interpretation of the contract does not
necessarily render the contract ambiguous. Id. (citing G&G Oil Co. of Ind., 165
N.E.3d at 87).
[18] We first address the parties’ arguments regarding whether the Agreement
permitted Sizewise to opt out of an extension of the Term. We conclude that it
did not. We then address Sizewise’s argument that if it could not opt out of
extension of the Term, the Agreement must be construed as a perpetual
contract that could be terminated at will. We conclude that the Agreement is
not a perpetual contract and was not terminable at will because the parties
contemplated specific circumstances that would terminate their obligations.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 10 of 28 We thus hold that the trial court erred by not granting summary judgment in
favor of Morel.
a. The Agreement unambiguously did not permit Sizewise to opt out of extension of the Term
[19] The parties disagree about whether the Agreement permitted Sizewise to opt
out of an extension of the Term upon the Agreement’s fifth anniversary. Both
parties claim the Agreement unambiguously supports their position.
[20] The Term Section of the Agreement provides as follows:
1.2 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date [February 16, 2015], and unless terminated earlier under Article 11 [the Termination Section], shall remain in full force and effect until the fifth anniversary of the Effective Date, as may be extended only as provided in this Section 1.2 or by the written agreement of the Parties. Beginning on the fifth anniversary, the Term will be automatically extended for additional two-year (2) periods, subject to the early termination provisions contained in Article 11.
[21] In the first sentence, the plain language indicates that the Term could be
extended either by Section 1.2, which provides for automatic extension, or by
separate written agreement of the parties. Appellant’s App. Vol. VI at 127. The
parties intended that if they did not reach a written agreement regarding
extension of the Term—and perhaps modify other provisions as well—the
Term would automatically extend for two years as provided in Section 1.2, but
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 11 of 28 the Term would extend either way. The use of “may” does not indicate, as
Sizewise contends, that a party could unilaterally choose not to extend the
Agreement at all. Such an interpretation might lead to absurd results. For
instance, Sizewise could continue renting Hercules units it had acquired near
the end of the fifth anniversary at the rental-rate price without paying Morel the
Rental Rate Share thereafter.
[22] In the second sentence of the Term Section, the Agreement unambiguously
provides for automatic extension following its fifth anniversary, with that
extension being subject to the Termination Section. Thus, unless the parties
reached a separate written agreement, the Agreement would automatically
extend unless the Termination Section were triggered beforehand. The
Agreement nowhere mentions an additional right to opt out of an extension.
To hold that the Agreement created such a right, we would be inserting into the
Agreement language “not agreed upon by the parties.” Lake Imaging, LLC v.
Franciscan All., Inc, 182 N.E.3d 203, 211 (Ind. 2022) (citing Broadbent v. Fifth
Third Bank, 59 N.E.3d 305, 311 (Ind. Ct. App. 2016), trans. denied).
[23] Sizewise nevertheless argues that the Agreement is a five-year “term of years
contract,” Appellee’s Br. at 27 (emphasis in original), and that Sizewise could
“opt out of the otherwise automatic renewal” after those five years elapsed, id.
at 20. Said another way, Sizewise could let the Agreement “expire” on its fifth
anniversary, and Sizewise would not need to “meet the requirements” of the
Termination Section to do so. Id. at 20. Sizewise marshals several arguments
in support of its interpretation, which we address in turn.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 12 of 28 [24] Meaningless “Term.” First, Sizewise argues that if it “could not opt out of the
renewal of the Term,” and the Agreement “could only be terminated” pursuant
to the Termination Section, then “defining the Term is meaningless.”
Appellee’s Br. at 21 (emphasis in original). In other words, why set an initial
term of five years when extension is automatic? Sizewise further points out two
sections of the Agreement, Sections 4.45 and 4.5,6 which are “triggered by the
renewal or extension of the term.” Appellee’s Br. at 21. Sizewise argues that
“there is no need for such a structure if the renewal is mandatory in perpetuity.”
Id.
[25] The language of the Agreement—including in both the Term and Termination
Sections—reflects the arms-length bargained-for exchange of two sophisticated
business entities after several rounds of negotiation. We presume the
Agreement reflects “the parties’ freely bargained agreement.” Hartman v.
BigInch Fabricators & Constr. Holding Co., Inc., 161 N.E.3d 1218, 1221 (Ind. 2021)
(citing Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012)). Contrary
to Sizewise’s argument, automatic extension does not render the Term
5 Section 4.4, governing “Transfer Pricing,” provides, “For each extension period of the Term, beginning with the fifth anniversary of the Effective Date, the per-unit transfer price shall continue to remain static and unchanged from the immediately preceding period,” subject to certain conditions. Appellant’s App. Vol. VI at 132. 6 Section 4.5, governing the Rental Rate Share, provides that “[u]pon the first date of each extension of the Term, beginning with the fifth anniversary,” the Rental Rate Share would be automatically increased if Sizewise’s pricing has increased “compared with . . . the most recent previous anniversary date.” Appellant’s App. Vol. VI at 133.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 13 of 28 meaningless. As the first sentence of Section 1.2 indicates, the two-year
automatic extension was merely the default scenario in the event the parties did
not reach a separate written agreement regarding extension. And as Sections
4.4 and 4.5 indicate, each extension triggers potential changes in the parties’
obligations.
[26] Automatic vs. Perpetual Extension. Second, Sizewise argues that “the mere
use of the term ‘automatically’ does not obligate Sizewise to renew the . . .
Agreement in perpetuity.” Appellee’s Br. at 22. Sizewise cites this court’s
decision in Cook v. Adams County Plan Commission, 871 N.E.2d 1003, 1004 (Ind.
Ct. App. 2007), trans. denied, which is not only distinguishable, but hardly
relevant to Sizewise’s purported opt-out right. In Cook, the issue was whether a
lease qualified as “long term” pursuant to a county zoning ordinance, 871
N.E.2d at 1004, which is not at issue here. Moreover, in Cook, the lease in
question provided for a one-year term that “shall be automatically renewed for
each successive year thereafter unless notice of cancellation is given by certified
mail at least 180 days before the anniversary date hereof.” Id. at 1004–05. The
Agreement here, in contrast, does not expressly authorize a party to unilaterally
decline to extend it.
[27] Termination Section as the Exclusive Means of Termination. Third, Sizewise
argues that the Agreement authorized Sizewise to opt out of extension because
the Agreement does not provide that the Termination Section constitutes “the
only or the exclusive way” for the Agreement to be ended. Appellee’s Br. at 23
(emphasis in original). Sizewise points out several other provisions in the Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 14 of 28 Agreement that “refer to a party’s right . . . being exclusive or otherwise
specifically limited,”7 id., and relies on Simon Property Group, L.P. v. Michigan
Sporting Goods Distributors., Inc., 837 N.E.2d 1058 (Ind. Ct. App. 2005), trans.
denied, to show this omission was intentional.
[28] In Simon, a shopping mall tenant claimed that the landlord breached the lease
by leasing space to one of the tenant’s competitors, and the tenant sought
damages and injunctive relief. 837 N.E.2d at 1061–62. The section of the lease
restricting the landlord’s right to lease space to a competitor authorized the
tenant to pay reduced rent in the event of the landlord’s breach but did not
mention other remedies. Id. at 1071. In contrast, other provisions of the lease
referenced “other rights and remedies in addition to” a specifically-provided
remedy. Id. at 1072. On appeal, this court held that the tenant’s remedy was
7 The provisions Sizewise points out are as follows:
Article 5: “SUCH WARRANTIES PROVIDE THE EXCLUSIVE REMEDIES FOR ANY NON- CONFORMITY OR DEFECT IN ANY [of Morel’s] PRODUCTS.” Appellant’s App. Vol. VI at 135 (capitalization in original, italic emphasis added). Section 4.1: “[A]mendments to any of the terms and conditions of this Agreement or adding terms that are not included in this Agreement may only be made by written acceptance by [Morel].” Id. at 132 (italic emphasis added). Section 7.3: “In the event (and only in the event) that a Party’s obligations under Section 7.1 above result from, arise out of, or relate to a claim for which both Parties have liability . . . , each Party shall be liable to pay only its Proportionate Share of the Loss associated with such Joint Claim.” Id. at 138 (italic emphasis added). Section 12.5: “No change, modification, or amendment of this Agreement shall be valid or binding on the Parties unless such change or modification shall be in writing signed by the Party or Parties against whom the same is sought to be enforced.” Id. at 142 (italic emphasis added). Section 12.13: “Except only as specifically provided otherwise in this Agreement, each Party shall bear all fees and expenses incurred by it in performing its obligations under this Agreement.” Id. at 143 (italic emphasis added).
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 15 of 28 limited to paying reduced rent because “[i]f the parties had intended . . . to
include other rights and remedies in addition to the reduced rent, other sections
of the Lease indicate the parties knew how to include such language.” Id. at
1072–73.
[29] Contrary to Sizewise’s position, Simon supports our interpretation that the
Agreement does not provide an opt-out right. The Termination Section lists
several conditions that would permit termination but does not mention an opt-
out right. If the parties intended to include such a right, they would have done
so.
[30] “Early Termination.” Fourth, Sizewise argues that the use of “early” and
“earlier” before “termination” in two sections of the Agreement means the
Termination Section applies only to “early terminations—i.e., terminations
before the end of the Term.” Appellee’s Br. at 25 (emphasis in original). Said
another way, “a party can, under other circumstances, opt out of the renewal
and allow the . . . Agreement to expire at the end of its term—a termination
that is, by definition, not ‘early.’” Id. Sizewise further argues that if the
Termination Section “was the only way to terminate the Distribution
Agreement,” the use of “early” would be “meaningless.” Id.
[31] “Early” or “earlier” is used before “termination” in two sections of the
Agreement. Section 1.2 provides that the Term would last through the fifth
anniversary “unless terminated earlier” under the Termination Section.
Appellant’s App. Vol. VI at 127 (emphasis added). The Term section further
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 16 of 28 provides that on the fifth anniversary, the Term will automatically extend
“subject to the early termination provisions” contained in the Termination
Section. Id. at 127–28 (emphasis added). Section 1.4 governing “Exclusivity”
defines the period of exclusivity as “the period beginning on the Effective Date
and ending on the earliest to occur of the fifth anniversary of the Effective Date,
the earlier termination of this Agreement under [the Termination Section], or
the date written notice is given” that Sizewise’s volume requirements have not
been met. Id. at 128 (emphasis added).
[32] The Termination Section itself provides that a party has the right to terminate
the Agreement “at any time” when a triggering condition is met. Appellant’s
App. Vol. II at 140. The use of “early” and “earlier” merely signify that the
parties contemplated the automatic extensions would not occur and the period
of exclusivity would not be completed if the Agreement were terminated—
pursuant to the Termination Section—beforehand.
[33] Two-Year Tail Provision. Fifth, Sizewise argues that the two-year tail
provision under Section 11.3(e) supports the existence of an opt-out right. This
section provides, “If [Sizewise] terminates the Agreement, . . . [Morel] shall
have the right to continue to be paid the Rental Rate Share . . . for twenty-four
(24) additional months from the date this Agreement is terminated.”
Appellant’s App. Vol. VI at 141. Sizewise argues that this section supports the
existence of an opt-out right because it (1) anticipates compensation for Morel if
Sizewise declines to extend the Agreement and (2) allows Morel to “more than
recoup the difference in price between re-sale units and rental units.”
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 17 of 28 Appellee’s Br. at 28 (emphasis in original). For example, at a Rental Rate
Share of $13.00 per day, Morel would recoup the $2,100.00 difference between
the for-sale and for-rent prices in 162 days.
[34] We disagree with Sizewise’s interpretation of Section 11.3(e) as a right to opt-
out for two reasons. First, the section appears in the Termination Section and
uses “terminates” and “terminated.” Appellant’s App. Vol. VI at 141. This
indicates Section 11.3(e) refers to termination under the Termination Section,
not a separate opt-out right. Second, under Sizewise’s interpretation, even if
Morel could recoup the difference between the for-sale and for-rent unit prices,
Morel would not reap the potential profits from units rented after the two-year
tail period ended. Sizewise would be permitted to purchase a discounted
Hercules unit at the end of the fifth anniversary, then opt out of renewing the
Agreement. Thereafter, Sizewise could continue to rent out that unit for many
years but only pay Morel the Rental Rate Share payments for two years. While
this situation was contemplated, it is only permitted when Sizewise terminates
the Agreement. Sizewise is only permitted to terminate the Agreement
pursuant to Section 11, and none of the conditions have transpired to allow
Sizewise to do so. In other words, it was contemplated that Morel will lose
profits after the two-year tail, but only if Morel’s actions (i.e., default,
bankruptcy, ownership change) permitted Sizewise to terminate the Agreement.
Sizewise simply wanting to not extend the Agreement was not a contemplated
reason for Morel to lose profits and the benefit of its bargain.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 18 of 28 [35] In sum, the Agreement is unambiguous and does not allow Sizewise to opt out
of extension. The Agreement extends unless it is terminated beforehand
pursuant to the Termination Section, which did not occur here. Sizewise thus
remains bound by the Agreement.
b. The Agreement is not a perpetual contract that could be terminated at will
[36] Sizewise argues in the alternative that if it cannot opt out of the Agreement
prior to extension, the Agreement must be a “perpetual” contract that is
“therefore terminable at will.” Appellee’s Br. at 28. Sizewise’s argument
requires us to answer two separate questions: First, whether the Agreement is a
perpetual contract and second, whether the Agreement is terminable at will.
[37] When a contract provides for continuing obligations but contains no
termination date, our cases reveal three categories into which the contract may
fall. The first category is that of “perpetual” contracts. Cook, 871 N.E.2d at
1007 (quoting Geyer v. Lietzan, 230 Ind. 404, 409, 103 N.E.2d 199, 201 (Ind.
1952), trans. denied). Such contracts can theoretically “last for centuries.” Id. at
1008; see also Geyer, 103 N.E.2d at 201; Black v. Ervin, 132 Ind. App. 470, 473–
74, 132 N.E.2d 142, 143–44 (1961) (holding parties intended to create a
perpetual lease when the lease provided for the party in interest “to have and to
hold” the property “so long as rent hereafter stipulated, is paid” and the party in
interest had since been in possession of the property for more than 35 years
without dispute). Due to their unending nature, “the law does not favor”
perpetual contracts, and a contract will be construed so as to avoid creating
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 19 of 28 perpetual obligations unless “it clearly so provides, in language so plain and
unequivocal as to leave no doubt that such was the intention and purpose of the
parties.” Cook, 871 N.E.2d at 1007 (quoting Geyer, 103 N.E.2d at 201).
[38] Absent clear intent by the parties to create a perpetual contract, the contract
falls into either the second or third contract category. Determining into which
of these categories the contract falls depends on whether the contract contains
“a provision that sets out a condition which would terminate” a party’s
obligations. Marksill Specialties, Inc. v. Barger, 428 N.E.2d 65, 69 (Ind. Ct. App.
1981).
[39] If the contract lacks such a termination provision, it falls into the second
category and is “terminable at will.” See Marksill, 428 N.E.2d at 69 (citing
House of Crane v. H. Fendrich, Inc., 146 Ind. App. 478, 482, 256 N.E.2d 578, 579
(1970); Monon R.R. v. N. Y. Cent. R.R. Co., 141 Ind. App. 277, 288, 227 N.E.2d
450, 456 (1967)); see also City of E. Chicago v. E. Chicago Second Century, Inc., 908
N.E.2d 611, 623 (Ind. 2009) (noting that “a contract containing no specific
termination date” will not be construed as to provide for perpetual obligations
but will instead be construed to be “terminable at will” with a “reasonable”
amount of time given for “discharge” of performance) (citing House of Crane,
256 N.E.2d 578, 579 (1970)). For example, in House of Crane, the court held
that a contract that “did not specify a definite time or prescribe conditions
which would determine the duration of the contract,” 256 N.E.2d at 579, was
terminable at will, id. at 580.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 20 of 28 [40] If, on the other hand, the contract does provide a condition that would
terminate a party’s obligations, the contract will often fall into the third
category, in which case it is “terminable in accordance with its terms and not at
the will of either party.” Marksill, 428 N.E.2d at 69. In Marksill, the contract
provided that a customer acquirer would secure new accounts, Marksill would
pay a commission based on sales made, and the contract would remain “valid
and payment shall continue as long as [the customer acquirer] sells any product
to any company listed.” 428 N.E.2d at 67. The court held that because the
contract contained a provision under which Marksill’s “obligations” would
terminate—“the discontinuance of the sale of certain products” from the
customer acquirer—the contract was only terminable in accordance with that
provision. Id. at 69; see also Made2Manage Sys., Inc. v. ADS Info. Sys., Inc., 2003
WL 21508235, at *6–7 (S.D. Ind. June 24, 2003) (citing Marksill and holding
contract that contained specific termination provisions was neither a perpetual
contract nor terminable at will); Ent. USA, Inc. v. Mooreheard Commc’ns, Inc., 93
F. Supp. 3d 915 (N.D. Ind. 2015) (similar).
[41] Turning to the Agreement here, nothing indicates that the parties clearly
intended it to be a perpetual contract. An entire portion of the Agreement was
devoted to termination. Marksill, 428 N.E.2d at 69. The parties would not have
included termination provisions if they intended the Agreement to be perpetual.
See id.
[42] Moreover, regarding the Rental Rate Share specifically, it appears the parties
intended this obligation to endure as long as Sizewise rented Hercules units to
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 21 of 28 its customers. This is not a perpetual obligation because Sizewise could end the
obligation simply by choosing to stop renting such units.
[43] Sizewise argues that even if it chose to stop renting Hercules units, the
Agreement would still be a perpetual contract because Sizewise would remain
obligated to send Morel sales reports pursuant to Sections 3.1(g) and 4.12,
although the reports would be “blank or have no content.”8 Appellee’s Br. at
30. Section 3.1(g) requires Sizewise to furnish Morel with monthly “reports
and information relating to the purpose of th[e] Agreement.” Appellant’s App.
Vol. VI at 131. Section 4.12 requires Sizewise to provide Morel with reports
“providing daily information on Repositioner Products rented and invoiced.”
Appellant’s App. Vol. VI at 134.
[44] Regarding Section 4.12, at oral argument, Morel explained that if Sizewise was
not renting Hercules units, “there’s no reporting that needs to be done.” Oral
Argument at 42:05–42:11. Similarly, as for Section 3.1(g), Morel explained that
the “purpose” of the Agreement was to “effectuate this distributor/supplier type
relationship, i.e. the rental of” Hercules units, so if Sizewise was not renting
Hercules units, “there is no information to report.” Id. at 42:40 –43:07.
8 Sizewise also argues the Agreement would still be perpetual because Morel would remain obligated to provide Sizewise notice before agreeing to sell all or substantially all of Morel’s assets pursuant to Article 10 of the Agreement. This is not a perpetual obligation on Morel’s part because it only arises if and when a certain event occurs.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 22 of 28 [45] Having concluded that the Agreement is not perpetual, we must determine
whether it is terminable at will or only in accordance with its terms. Sizewise
relies on Jesperson v. Minnesota Mining and Manufacturing Co., 700 N.E.2d 1014,
1016 (Ill. 1998), which involved a distribution agreement whereby Jesperson
would sell auto parts from Trim-Line, a manufacturer. The agreement
provided it would “continue in force indefinitely” unless terminated in
accordance with its termination provision, which stated that Trim-Line “may”
terminate the agreement in the event of Jesperson’s “failure to reasonably
promote Trim–Line’s products,” breach of the agreement, failure to make a
payment, death, bankruptcy, insolvency, or sale or transfer of Trim-Line’s
rights without Trim-Line’s consent. Id.
[46] Minnesota Mining and Manufacturing (“3M”) later acquired Trim-Line and
sought to terminate the agreement. Jesperson, 700 N.E.2d at 1016. Jesperson
argued 3M could not terminate the agreement at will but only in accordance
with its termination provision. Id. The Illinois Supreme Court held the
agreement was terminable at will for two reasons. Id. First, the termination
provision was “permissive and equivocal; a party ‘may’ terminate for the stated
grounds—the clear inference being that those grounds are not the sole or
exclusive basis for termination.” Id. Second, the provision listed events that
were “instances of material breach, and any contract is terminable upon the
occurrence of a material breach.” Id. (citing Trient Partners I Ltd. v. Blockbuster
Ent. Corp., 83 F.3d 704, 709 (5th Cir. 1996)).
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 23 of 28 [47] Given the nature of the Agreement here, Jesperson is not persuasive. Unlike the
distributor in Jesperson, Sizewise controls its own destiny because it can end its
obligation to pay the Rental Rate Share by choosing not to rent Hercules units.
In this sense, the Agreement is closer to the contract in Marksill, which only
obligated Marksill to pay commissions for sales made. Marksill, 428 N.E.2d at
69. As in Marksill, it would make little sense for the Agreement to be
terminable at will given the nature of the parties’ business relationship.
[48] In fact, holding that the Agreement is terminable at will would undermine the
financial incentives underlying the Rental Rate Share structure. Sizewise
benefited from a reduced price for rental units compared to units purchased
outright. Morel took on the risk that this difference would not be recouped in
exchange for the potential reward that collecting the Rental Rate Share
payments over time proved more profitable. If Sizewise could purport to
terminate the Agreement at will but continue renting Hercules units without
paying Morel the Rental Rate Share, it would disrupt the risk-reward exchange
for which the parties bargained.9
[49] In sum, the Agreement unambiguously does not provide Sizewise with the right
to unilaterally opt out of extension of the Term, the Agreement is not a
perpetual contract, and Sizewise could not terminate the Agreement at will.
9 Additionally, although Jesperson characterized the listed termination events as all “instances of material breach” for which any contract could be terminated, 700 N.E.2d at 1016, the same is not true here. Unlike in Jesperson, the Agreement listed a “change of control” of the other party as grounds for termination, Appellant’s App. Vol. VI at 140, and that would not necessarily constitute a material breach.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 24 of 28 The Agreement could only be terminated in accordance with its stated
conditions, which did not occur. We therefore reverse the ruling of the trial
court and direct the trial court to grant summary judgment in favor of Morel.
[50] Reversed.
Altice, J., concurs. Tavitas, C.J., dissents with a separate opinion.
ATTORNEYS FOR APPELLANT Steven C. Coffaro James E. Burke Andrew B. Barras Bryce J. Yoder Keating Muething & Klekamp PLL Cincinnati, Ohio
ATTORNEYS FOR APPELLEE Christopher W. Madel Madel PA Minneapolis, Minnesota
Briana L. Clark Dentons Bingham Greenebaum, LLP Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 25 of 28 Tavitas, Chief Judge, dissenting.
[51] I respectfully dissent from the majority’s conclusion that the Agreement here is
unambiguous and that summary judgment should be granted to Morel.
Although both parties argue that the Agreement is unambiguous, I disagree and
conclude that the Agreement is subject to more than one reasonable
interpretation and, thus, is ambiguous. Accordingly, I would affirm the trial
court’s denial of both parties’ motions for summary judgment and remand for
the trier of fact to determine the Agreement’s intent.
[52] Our “task is to determine and implement the parties’ intent when they entered
the contract.” Wohlt v. Wohlt, 245 N.E.3d 611, 616 (Ind. 2024). We “start with
the language of the parties’ agreement.” Id. “If the contract’s terms are
unambiguous, then they are conclusive of the parties’ intent, and courts give the
contract its plain meaning.” Id. When reviewing an unambiguous written
contract, we “look only to that document, staying within its four corners.” Id.
The interpretation of a contract is generally a question of law that is appropriate
for summary judgment. Id.
[53] “[I]f a contract’s terms are ambiguous, inconsistent, or uncertain, its
interpretation is no longer a question of law but one of fact.” Id. In the case of
an ambiguous contract, “the trier-of-fact must determine the facts required to
construe the contract.” Id. “[T]he factfinder must look outside the contract’s
four corners to parol (or extrinsic) evidence” to determine the intent of the
parties. Id. “A contract is not ambiguous simply because the parties disagree
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 26 of 28 about the proper interpretation of its terms.” Id. “Instead, for an ambiguity to
exist, the contract must be subject to more than one reasonable interpretation.”
[54] The parties here disagree on the interpretation of the Agreement regarding the
termination provisions. The Agreement provided:
1.2 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date [February 16, 2015], and unless terminated earlier under Article 11 [the Termination Section], shall remain in full force and effect until the fifth anniversary of the Effective Date, as may be extended only as provided in this Section 1.2 or by the written agreement of the Parties. Beginning on the fifth anniversary, the Term will be automatically extended for additional two-year (2) periods, subject to the early termination provisions contained in Article 11.
Appellant’s App. Vol. VI at 127-28 (emphasis added).
[55] Section 11.1 permits termination only upon the occurrence of one of three
specific events: (a) a material default not cured within thirty days of written
notice; (b) insolvency or bankruptcy of a party to the contract; or (c) a change of
control of a party. Section 11.2 additionally grants Morel the right to terminate
the contract if Sizewise fails to meet certain minimum AIU and purchase
requirements. It is undisputed that the conditions listed in Article 11 were not
triggered.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 27 of 28 [56] The parties, however, disagree as to the interpretation of Section 1.2. Morel
contends that, after the initial five-year term, the Agreement is automatically
extended for additional two-year periods. According to Morel, because the
Article 11 conditions were not triggered, Sizewise remained bound by the
Agreement.
[57] On the other hand, Sizewise argues that the Agreement was subject to a five-
year term that “may be extended” and that Sizewise was, thus, allowed to
decline the two-year renewals. Id. at 127 (emphasis added). Sizewise argues
that Section 1.2 describes the Article 11 provisions as “earl[y]” termination
provisions, implying that Article 11 applied only to terminations before the five-
year term ended. Id. If a triggering event from Article 11 was the only way to
terminate the Agreement, the word “earl[y]” in Section 1.2 would be
meaningless. Id. Sizewise also argues that Morel’s interpretation of the
Agreement renders the five-year-term language meaningless and creates a
perpetual agreement, which is terminable at will.
[58] The Agreement was so poorly drafted that the provisions for termination are
impossible to reconcile. Accordingly, I conclude the Agreement is ambiguous,
and the trial court properly denied the parties’ motions for summary judgment.
The trier of fact should determine the intent of the parties regarding the
Agreement. See, e.g., Rusnak v. Brent Wagner Architects, 55 N.E.3d 834, 842 (Ind.
Ct. App. 2016) (reversing the grant of summary judgment because the parties’
agreement was ambiguous), trans. denied. For these reasons, I respectfully
dissent.
Court of Appeals of Indiana | Opinion 25A-PL-937 | May 29, 2026 Page 28 of 28