MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 13 2018, 10:27 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT Daniel J. Paul Williams Barrett & Wilkowski, LLP Greenwood, Indiana
IN THE COURT OF APPEALS OF INDIANA
Walbert W. Ferguson, June 13, 2018
Appellant-Defendant, Court of Appeals Case No. 49A04-1709-PL-2164 v. Appeal from the Marion Superior Court Teresa Green, The Honorable James B. Osborn, Judge Appellee-Plaintiff. Trial Court Cause No. 49D14-1509-PL-32351
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 1 of 14 Case Summary [1] Walbert Ferguson appeals the trial court’s grant of summary judgment in favor
of Teresa Green and the denial of his motion for summary judgment. We
affirm in part, reverse in part, and remand.
Issue [2] The restated issue before us is whether the trial court properly granted summary
judgment to Green and denied it to Ferguson in a breach of contract action
between the parties.
Facts [3] Ferguson, who owned a trucking company, was involved in a romantic
relationship with Green from the fall of 2010 to May 2012. During that time,
Ferguson agreed to help Green enter the trucking business by purchasing a
Peterbilt truck with a loan from Bank of the Ozarks and a Great Dane trailer
with a loan from ACG Financing; in turn, Green was allowed to use the truck
and trailer. She also apparently made some payments toward the loans used to
purchase the truck and trailer.
[4] On June 3, 2012, at the end of the parties’ relationship, they entered into a
contract for Green to buy the truck and trailer from Ferguson. The loans from
Bank of the Ozarks and ACG for the truck and trailer were not yet paid off, nor
were they explicitly mentioned in the contract. An attorney for Green wrote
and printed a contract, which Green then presented to Ferguson without the
attorney present. In paragraph one of the contract, the truck and trailer were Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 2 of 14 identified by VIN. Next to the VIN for the truck, Ferguson handwrote “36 x
1507.00,” and next to the VIN for the trailer he wrote “48 x 804.00.” App. Vol.
II p. 7. Paragraph two of the contract provided:
PURCHASE PRICE. Buyer agrees to continue to pay Seller one thousand five hundred seven dollars ($1,507.00) per month for the truck, listed in 1(a) above, by cashier’s check, due on the seventh (7th) of each month, until such time as the balance of approximately forty four thousand dollars ($44,000.00) is paid in full, at which time Seller will transfer title of the truck to Buyer.
Buyer agrees to continue to pay Seller eight hundred four dollars ($804.00) per month for the refrigerated trailer, listed in 1(b) above, by cashier’s check, due on the twenty fifth (25th) of each month, until such time as the balance of approximately twenty seven thousand dollars ($27,000.00) is paid in full, at which time Seller will transfer title of the refrigerated trailer to Buyer.
Id. at 7-8. The strikethroughs of the numerals in paragraph two were done by
Ferguson. Ferguson would later say that he had scratched out the numerals
because he was not entirely sure what the balance was for the truck and trailer.
[5] Between March 2012 and February 2014, Green paid $43,788.65 in check or
electronic fund transfers toward the truck. Through November 2012, Green
made these payments directly to Ferguson; beginning in June 2013, Green paid
Bank of the Ozarks directly. There was a gap between November 2012 and
June 2013 when Green did not make payments toward the truck, except for
possibly one for $2,600.00, which Ferguson disputes having been made. Green
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 3 of 14 also later claimed she paid Ferguson $4,521.00 in cash toward the truck, which
Ferguson also disputes.
[6] On March 7, 2014, Bank of the Ozarks wrote Ferguson a letter informing him
that it had released its lien from the truck and it had no further interest in the
truck. Green thereafter demanded that Ferguson transfer title to the truck to
her, but he refused to do so. Up until March 2014, Green had made regular
payments of $810 monthly toward the trailer in a total amount of $21,060.00,
with some of those payments having been made before the June 2012 contract.
However, when Ferguson refused to transfer title to the truck to Green, she
stopped making payments on the trailer.
[7] On September 30, 2015, Green sued Ferguson, seeking specific performance to
compel him to transfer title to the truck to her, as well as damages. Ferguson’s
answer included a counterclaim that Green had breached the written contract
as to both the tractor and the trailer by not making payments as required.
Additionally, Ferguson stated a counterclaim that he and Green had entered
into an oral contract for Green to reimburse Ferguson for credit card charges
and other expenses he had incurred on Green’s behalf to help her begin her own
trucking business; Ferguson later specified that these alleged expenses totaled
$44,186.89.
[8] On January 18, 2017, Ferguson filed a motion for summary judgment as to
Green’s claim against him and his counterclaims against her. After obtaining
several extensions of time, Green filed her response on May 23, 2017.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 4 of 14 Although only captioned as a response to Ferguson’s summary judgment
motion, it also requested “that the Court enter summary judgment in favor of
Buyer on Seller’s Counterclaims as well as on Buyer’s Complaint as to liability
and damages . . . .” App. Vol. V p. 8. On June 20, 2017, Ferguson filed a
motion for an extension of time to respond to Green’s purported cross-motion
for summary judgment, so he could take Green’s deposition. The trial court
originally granted this motion. However, upon Green’s motion for
reconsideration, the trial court reversed itself and denied any extension to
Ferguson.
[9] On September 12, 2017, the trial court granted summary judgment in favor of
Green on her claim that Ferguson breached the written contract by not
transferring title to the truck to her. It also concluded that Green was excused
from further performance under the contract—i.e., she did not have to continue
paying for the trailer—because of Ferguson’s breach of contract. The trial court
also denied summary judgment for both parties on Ferguson’s counterclaim
that Green breached an oral contract for repayment of expenses, finding
genuine issues of material fact existed on that claim.
[10] Ferguson appealed. On January 11, 2018, Green timely filed a request for an
extension of time to file an appellee’s brief; this court granted the motion and
extended the deadline to February 14, 2018. Green did not file a brief by this
date. On March 20, 2018, Green filed a second motion for an extension of time
to file a brief. Although this motion was filed after the original extended brief-
filing deadline and Ferguson opposed any further extension, we exercised our
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 5 of 14 discretion to allow an additional period of time for Green to file a brief, until
May 4, 2018. Still, Green has not filed a brief. 1 We now proceed to decide this
appeal.
Analysis [11] As noted, Green has not filed an appellee’s brief. In such a case, we will not
develop an argument on behalf of the appellee and may reverse if the appellant
can demonstrate prima facie error. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind.
Ct. App. 2017). Prima facie error is error at first sight, on first appearance, or
on the face of it. Id. This less stringent standard of review does not relieve us of
our obligation to correctly apply the law to the facts in the record to determine
whether reversal is required. Id.
[12] We review a summary judgment ruling de novo. Hughley v. State, 15 N.E.3d
1000, 1003 (Ind. 2014). “Drawing all reasonable inferences in favor of . . . non-
moving parties, summary judgment is appropriate ‘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 judgment as a matter of law.’” Williams v. Tharp,
914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). “A fact is
‘material’ if its resolution would affect the outcome of the case, and an issue is
‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of
1 After reviewing the multiple requests by Green’s counsel for extensions of time in the trial court as well as this court, we must express our concern over counsel’s inability to meet deadlines, and we advise him to be more diligent in the future.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 6 of 14 the truth, or if the undisputed material facts support conflicting reasonable
inferences.” Id.
[13] A party seeking summary judgment in Indiana must “affirmatively negate” the
opposing party’s claim. Hughley, 15 N.E.3d at 1003. “In essence, Indiana
consciously errs on the side of letting marginal cases proceed to trial on the
merits, rather than risk short-circuiting meritorious claims.” Id. at 1004. A
party’s self-serving, sworn affidavit is sufficient to defeat summary judgment,
even if it appears that party is unlikely to be successful at trial. Id. at 1005.
A. Written Contract
[14] We first address whether the trial court correctly entered summary judgment in
Green’s favor on her breach of contract claim against Ferguson for failing to
transfer the truck title to her. When, as here, a trial court has entered summary
judgment in a contract dispute, it necessarily has determined either that: 1) the
contract is not ambiguous or uncertain as a matter of law and the trial court
need only apply the terms of the contract; or 2) the contract is ambiguous, but
the ambiguity may be resolved without the aid of factual determinations.
Jenkins v. South Bend Cmty. Sch. Corp., 982 N.E.2d 343, 347 (Ind. Ct. App. 2013),
trans. denied. When interpreting a contract, the primary goal is to determine the
intent of the parties when they made the agreement. Celadon Trucking Servs., Inc.
v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App. 2017), trans. denied. Courts must
examine the plain language of the contract, read it in context and, whenever
possible, construe it in a way that renders every word, phrase, and term
meaningful, unambiguous, and harmonious with the whole. Id. “Construction Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 7 of 14 of the terms of a written contract generally is a pure question of law.” Id. If
contract language is unambiguous, courts may not look to extrinsic evidence to
expand, vary, or explain the instrument but must determine the parties’ intent
from the four corners of the instrument. Id.
[15] If, however, a contract is ambiguous, the parties may introduce extrinsic
evidence of its meaning, and interpretation generally becomes a question of
fact. Id. A mere disagreement about the meaning of a contract word or phrase
does not make it ambiguous; an ambiguity arises only if reasonable people
could differ as to its meaning. Id. Courts may properly consider all relevant
evidence to resolve a contract ambiguity and to give effect to the intent of the
parties when they entered into the contract. Id. Such evidence is evidence
relating to a contract but not appearing on the face of the contract and may
include statements between the parties or the circumstances surrounding the
agreement. Id. “An ambiguous contract should be construed against the party
who furnished and drafted the agreement.” Id.
[16] We readily conclude that there is an ambiguity in the contract terms with
respect to how much Green was expected to pay for the truck and the trailer.
The original, printed contract prepared by Green’s lawyer stated that Green was
to pay “approximately” $44,000.00 for the truck and $27,000.00 for the trailer.
App. Vol. II pp. 7-8. However, above this part of the contract, next to where
the truck and trailer were identified by VIN, Ferguson wrote in for the truck “36
x 1507.00,” and “48 x 804.00” for the trailer. Id. at 7. Thirty-six times
$1,507.00 equals $54,252.00, and forty-eight times $804 is $38,592.00.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 8 of 14 Ferguson asserts that Green actually was expected to pay closer to $54,252.00
for the truck and $38,592.00 for the trailer and, therefore, he was not required to
sign over the title to the truck when Green had paid only approximately
$44,000.00 for the truck.
[17] It is unclear whether the trial court believed the contract was unambiguous, or if
it believed it was ambiguous but no weighing of evidence was required to
determine the intent of the parties. The contract and designated evidence,
however, demonstrates both that the contract is ambiguous and that weighing
of evidence—i.e., comparison of what Ferguson and Green each thought the
contract meant—is necessary to resolve that ambiguity. On its face, the
contract makes no express reference to the outstanding loans for the truck and
trailer, which Green asserted was all she had to pay. Evidence related to those
loans is extrinsic to the contract, but no documentary evidence was designated
regarding the loans, such as their terms and their outstanding balances when the
contract was executed. There was no language in the contract specifying that
either lender’s release of its lien against the truck or trailer would trigger
Ferguson’s obligation to transfer title to Green. And, rather than repaying the
loans directly to the Bank of the Ozarks and ACG, the contract specified that
Green was to pay Ferguson. This language—along with saying that Green had
to pay “approximately” $44,000.00 for the truck and $27,000.00 for the
trailer—leaves open the possibility that Green was expected to pay more to
Ferguson than what was merely outstanding on the loans. The trial court
improperly concluded that there were no genuine issues of material fact and
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 9 of 14 that Green was entitled to judgment as a matter of law—and title to the truck—
because of the ambiguous contract language and her payment of significantly
less than $54,252.00 toward the truck.
[18] That said, we also reject Ferguson’s argument that he was entitled to summary
judgment against Green on this claim. The contractual ambiguities and
questions of fact cut both ways. Although Ferguson contends that we should
construe the contract against Green because her attorney drafted the original,
printed version of it, that rule does not apply here because it was Ferguson’s
handwritten additions to the contract that created or at least greatly contributed
to the ambiguities.
[19] Ferguson also contends that, even if a court accepts Green’s interpretation of
the contract—that she only had to pay approximately $44,000.00 for the
truck—she breached the contract based on the clear provision that she was to
pay $1,507.00 per month toward the truck. Putting aside questions of fact as to
some payments Green claimed she made that Ferguson claimed were not
actually made, it is undisputed that there was a period of several months
between November 2012 and June 2013 when Green was not making regular
monthly payments for the truck. Even if this did constitute a breach of
contract, however, it does not automatically mean Ferguson had an actionable
breach of contract claim or was entitled to breach the contract himself. To
sustain a breach of contract action, a party must prove the existence of a
contract, a defendant’s breach of its terms, and resulting damages. Murat Temple
Ass’n, Inc. v. Live Nation Worldwide, Inc., 953 N.E.2d 1125, 1128-29 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 10 of 14 App. 2011), trans. denied. Damages are not presumed merely because there has
been a breach of contract but must be supported by the evidence and
ascertainable with reasonable certainty. Dana Companies, LLC v. Chaffee Rentals,
1 N.E.3d 738, 748 (Ind. Ct. App. 2013), trans. denied. Moreover, if a party to a
contract consistently makes late payments but the other party consistently
accepts such payments, does not attempt to strictly enforce the contract, and
does not show how he or she was damaged by the late payments, that party
may not later sustain a breach of contract action based on the late payments.
Unishops, Inc. v. May’s Family Centers, Inc., 399 N.E.2d 760, 766 (Ind. Ct. App.
1980). The designated evidence does not indicate how Ferguson was damaged
by Green’s purported breach of contract in missing or belatedly making some
payments but ultimately paying approximately $44,000.00 toward the truck, if
indeed that was all that she owed. Ferguson has not established that he is
entitled to judgment as a matter of law based on those missed or belated
payments.
[20] On a final note related to the written contract, Green’s refusal to continue
paying for the trailer after Ferguson refused to transfer title of the truck to her
was not necessarily an actionable breach of contract on her part. When a party
is in material breach of a contract, he or she may not maintain an action against
the other party or seek to enforce the contract against the other party if that
party later breaches the contract. Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d
1042, 1048 (Ind. Ct. App. 2003). If Green’s interpretation of the contract
ultimately prevails, it would mean Ferguson could not maintain a breach of
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 11 of 14 contract action against Green based on her cessation of payments for the trailer
because it followed Ferguson’s own breach of contract for not transferring the
truck title to her.
[21] In sum, the intent of the parties when they executed the final version of the
written contract, which included Ferguson’s handwritten additions, as well as
whether Green breached the contract and caused Ferguson damages, must be
resolved by a fact finder and not by summary judgment.
B. Oral Contract
[22] We now address Ferguson’s contention that he was entitled to summary
judgment on his claim that Green breached an oral contract to repay him for
expenses he purportedly paid to help her establish a trucking business. For an
oral contract to exist, there must be an offer, acceptance, and consideration, and
agreement to all terms of the contract. Town of Knightstown v. Wainscott, 70
N.E.3d 450, 459 (Ind. Ct. App. 2017), trans. denied. “To be valid and
enforceable, a contract must be reasonably definite and certain.” Id. Whether a
certain set of undisputed facts establishes a contract is a question of law. City of
Indianapolis v. Twin Lakes Enterprises, Inc., 568 N.E.2d 1073, 1079 (Ind. Ct. App.
1991), trans. denied. However, where the existence and not the validity or
construction of a contract or the terms thereof is at issue, and the evidence is
conflicting or admits of more than one inference, it is for a fact finder to
determine whether a contract in fact exists. Id.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 12 of 14 [23] Here, Ferguson acknowledges that Green designated as evidence a sworn
affidavit stating in part:
The only agreement that related to the Truck and Trailer was the [written] Contract. There was no secondary agreement, written or otherwise, between Buyer and Seller, including, without limitation, any agreements that related to repayment of expenses and/or credit card charges arising prior to the Contract or after the Contract for that matter. Any and all credit charges made by Buyer through June of 2012 were made for the benefit of Seller’s Business at Seller’s Request. Any and all charges that were authorized by Seller for the sole benefit of Buyer were reimbursed even though there was never an agreement to make such reimbursements. Buyer has no unpaid credit card charges, expenses or down payments owing to Seller of any kind or nature whatsoever nor by way of any agreement. The sole Agreement between the parties is set forth in the [written] Contract.
App. Vol. V p. 38. Ferguson attempts to discredit Green’s affidavit by claiming
that it is “self-serving.” Appellant’s Br. p. 25. Even if it is—and we are not sure
that it is—Indiana law is clear that sworn affidavits regarding a disputed fact are
sufficient to defeat summary judgment, regardless of whether the affidavit is
self-serving and minimal. Hughley, 15 N.E.3d at 1003.
[24] Ferguson also contends that Green’s attorney admitted at the summary
judgment hearing that Green paid Ferguson $18,000.00 toward certain trucking
expenses and that this necessarily proves the existence of a contract for Green
to pay more than that amount. This payment also is explained in Green’s
affidavit and does not as a matter of law establish that there was an oral
contract for her to pay anything else. Cf. Perkins v. Owens, 721 N.E.2d 289, 292
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 13 of 14 (Ind. Ct. App. 1999) (holding that, for purposes of excepting oral contract for
sale of real estate from statute of frauds requiring a written contract, partial
payment is insufficient to constitute partial performance of alleged contract).
Even if it was part of an agreement of some kind, Green’s payment of
$18,000.00 does not necessarily establish all the terms of an oral contract
between Ferguson and Green. Ferguson’s claim regarding an oral contract
presents a literal “he said/she said” situation that will require sorting out by a
fact finder and is inappropriate for resolution by summary judgment.
Conclusion [25] This case is laden with questions of fact, both as to the meaning of the
ambiguous written contract and its performance, and as to the existence of a
separate oral contract and its performance, if there was one. As such, neither
party was entitled to summary judgment. We affirm the denial of Ferguson’s
motion for summary judgment, reverse the grant of summary judgment in favor
of Green, and remand for further proceedings.2
[26] Affirmed in part, reversed in part, and remanded.
Vaidik, C.J., and Pyle, J., concur.
2 Given our reversal of the grant of summary judgment and remand for further proceedings, we deem it unnecessary to address whether the trial court improperly denied Ferguson an extension of time to respond to Green’s purported cross-motion for summary judgment.
Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 14 of 14