Yellowbook Inc. f/k/a Yellow Book Sales and Distribution Company, Inc. v. Central Indiana Cooling and Heating, Inc. and Lawrence E. Stone aka Larry Stone

• Court: Indiana Court of Appeals
• Decided: May 22, 2014
• Docket: 30A05-1311-CC-561
• Status: Published

Opinion

FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOSEPH L. MULVEY JOHN S. MERLAU Rubin & Levin, P.C. New Palestine, Indiana Indianapolis, Indiana May 22 2014, 10:45 am

IN THE COURT OF APPEALS OF INDIANA

YELLOWBOOK INC. f/k/a YELLOW BOOK ) SALES AND DISTRIBUTION COMPANY, INC., ) ) Appellant-Plaintiff, ) ) vs. ) No. 30A05-1311-CC-561 ) CENTRAL INDIANA COOLING & HEATING, ) INC. and LAWRENCE E. STONE aka ) LARRY STONE, ) ) Appellees-Defendants. )

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Terry K. Snow, Judge Cause No. 30D01-1110-CC-2115

May 22, 2014

OPINION - FOR PUBLICATION

RILEY, Judge STATEMENT OF THE CASE

Appellant-Plaintiff, Yellow Book Inc. f/k/a/ Yellow Book Sales and Distribution

Company, Inc. (Yellow Book), appeals the trial court’s findings of fact and conclusions

of law in favor of Appellee-Defendant, Central Indiana Cooling & Heating, Inc. (Central

Indiana) and Lawrence E. Stone (Stone), with respect to Central Indiana’s payments

made pursuant to several advertising contracts entered into with Yellow Book.

We affirm in part, reverse in part, and remand with instructions.

ISSUES

Yellow Book raises three issues on appeal, which we restate as follows:

(1) Whether the trial court erred by concluding that Yellow Book failed to credit

certain Central Indiana payments totaling $19,717.10;

(2) Whether the trial court erred by concluding that Stone properly cancelled an

advertising contract with Yellow Book; and

(3) Whether the trial court erred by concluding that Yellow Book is not entitled to

recover prejudgment interest and reasonable attorney’s fees.

FACTS AND PROCEDURAL HISTORY

Stone is the owner of Central Indiana, which is essentially a small, one-man

corporation, that installs commercial and residential cooling and heating systems. On

October 8, 2007, Stone entered into a contract with Yellow Book to advertise his business

throughout central Indiana (Contract 1). Pursuant to Contract 1, Stone agreed to pay

2 Yellow Book $3,037.00 per month for twelve months to publicize his services in Yellow

Book’s Indianapolis, Shelby County, and Hancock County directories.

The following year, on October 27, 2008, Jill Herman, on behalf of Central

Indiana, executed a new advertising contract with Yellow Book (Contract 2). In

accordance with the terms of Contract 2, Central Indiana agreed to pay Yellow Book a

monthly amount of $553.00 for twelve months to promote Central Indiana’s business in

the Hamilton and Hancock County directories.

On February 20, 2009, Stone executed a contract with Yellow Book for

advertisements in central Indiana (Contract 3). Contract 3 provided that Stone was to pay

Yellow Book $2,542.00 per month for twelve months in exchange for advertising Central

Indiana in Yellow Book’s 2010 Indianapolis directory.

On August 3, 2011, Yellow Book filed its Complaint against Central Indiana in

the Marion County Circuit Court, seeking recovery of damages arising from Central

Indiana’s failure to pay for the advertising provided pursuant to the three Contracts and

Stone’s personal guarantee on two of the advertising contracts. The case was

subsequently transferred to Hancock County Superior Court. On July 22, 2013, a bench

trial was conducted. On August 28, 2013, the trial court entered its findings of fact and

conclusions of law, issuing judgment as follows:

[Central Indiana and Stone] entered into a contract with [Yellow Book] and there was miscommunication between [Central Indiana and Stone] and [Yellow Book]. The [c]ourt finds [Central Indiana and Stone] to be appropriately credited for payments he testified he made to [Yellow Book] which were not applied to the contract in the amount of $19,707.10 which leaves [Yellow Book] with a judgment in the amount of $22,135.07 with

3 interest in the amount of $3,984.31. There will be no award of attorney fees in said matter.

(Appellant’s App. p. 25).

On September 12, 2013, Central Indiana and Stone filed their motion to correct

error, claiming that because Stone had cancelled Contract 3, Central Indiana did not owe

anything to Yellow Book after certain uncredited payments were applied to the

indebtedness owed on Contracts 1 and 2. On September 23, 2013, Yellow Book filed its

response to the motion to correct error, as well as a cross-motion to correct error. In its

cross-motion, Yellow Book requested the trial court to enter an amended judgment for

the full amount sought by Yellow Book because the evidence reflected that all payments

made by Central Indiana and Stone had been properly credited and Contract 3 had not

been cancelled. On October 4, 2013, the trial court conducted a hearing on the parties’

motions and on October 18, 2013, the trial court entered its Order on the Parties

[Motions] to Correct Error, finding that Contract 3 was properly cancelled and amending

the judgment “for [Central Indiana and Stone]” and “against [Yellow Book] cost paid.”

(Appellant’s App. p. 53).

Yellow Book now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Where, as here, the trial court sua sponte enters specific findings of fact and

conclusions, we review its findings and conclusions to determine whether the evidence

supports the findings, and whether the findings support the judgment. Helm v. Helm, 873

4 N.E.2d 83, 87 (Ind. Ct. App. 2007). We will set aside the trial court’s findings and

conclusions only if they are clearly erroneous. Id. A judgment is clearly erroneous when

a review of the record leaves us with a firm conviction that a mistake was made. Id. We

neither reweigh the evidence nor assess the witnesses’ credibility, and consider only the

evidence mist favorable to the judgment. Id. Further, “findings made sua sponte control

only . . . the issues they cover and a general judgment will control as to the issues upon

whether there are no findings. A general judgment entered with findings will be affirmed

if it can be sustained on any legal theory supported by the evidence.” Id.

II. Crediting of Payments

Yellow Book contends that Central Indiana paid a total of $25,876.27 under

Contract 1, and incurred late fees in the amount of $845.93, leaving an unpaid balance to

Yellow Book on Contract 1 of $11,413.67. Contract 2 was executed for a total amount of

$6,636.00; Central Indiana did not make any payments under this Contract. However,

the trial court concluded that Central Indiana had made payments in the amount of

$19,717.10 which had not been properly credited by Yellow Book to Central Indiana’s

accounts, thereby entitling Yellow Book to no further debit. Yellow Book now disputes

the trial court’s conclusion.

At trial, Yellow Book’s corporate paralegal representative, Natalia Anderson

(Anderson), testified as to Central Indiana’s payments under the Contracts. Anderson

clarified the payments made and amounts owed by Central Heating to Yellow Book

under the Contracts. She explained that it is Yellow Book’s practice to apply the

payments to the older directories first and then “to the oldest balance outstanding on the

5 directories.” (Transcript p. 20). As such, Anderson stated that all of Central Indiana’s

checks—which Central Indiana claimed to be uncredited—were divided up to be applied

to the oldest balance first.

During Stone’s cross-examination, Stone was asked to compare each of the

perceived uncredited payments with the payments as reflected on Yellow Book’s

Statement of Account. For example, Stone had previously testified that a payment made

on July 5, 2009 in the amount of $4,566 had not been credited. However, during

questioning, he conceded that this payment had been divided into four separate payments

of $200, $3,838.00, $353.00, and $179.00 and had been credited towards separate

balances or directories on July 13, 2009. At the conclusion of his interrogation, Stone

admitted that all payments, with the exception of two, “were credited” by Yellow Book to

the Contracts executed by Central Indiana. (Tr. p. 97). Unlike for the other payments,

Stone did not submit any evidence that the two missing payments that had not been

credited by Yellow Book had, in fact, been made by Stone in the first place.

In support of his argument that his payments had not been properly credited

towards his accounts, Stone focuses on a facsimile sent by Yellow Book sales

representative, Theresa Angleton (Angleton), to Stone on November 16, 2007. In her

facsimile, Angleton suggested to “reconcile the check #’s with the payment amounts.

Maybe there is a payment missing?” (Respondent’s Exh. B). In this facsimile, Angleton

did not admit—as asserted by Stone—that Yellow Book had not credited certain

payments. Furthermore, Angleton’s facsimile was sent eleven months before Central

Indiana made any of the perceived uncredited payments.

6 Mindful of Stone’s admission at trial that all payments he had perceived as

omitted from Yellow Book’s account statement had in fact been credited towards his

unpaid balances, we conclude that Stone owes the remaining balance under Contracts 1

and 2. Therefore, the trial court improperly concluded that Stone was not indebted to

Yellow Book under Contracts 1 and 2.

III. Contract 3

Focusing on Contract 3, Yellow Book contends that the trial court erroneously

concluded that the Contract was properly cancelled. Although Central Indiana alleged

fraud in the inducement of the Contract, the trial court merely referenced a

“miscommunication” as the basis for its conclusion that Contract 3 was cancelled and

that Central Indiana did not owe Yellow Book any payments under this Contract.

(Appellant’s App. p. 25). In its findings, the trial court noted as follows:

3. On February 20, 2009, Stone executed a contract with Yellow Book on behalf of [Central Indiana], whereby [Central Indiana] agreed to pay Yellow Book $2,542.00 per month for twelve months ($30,504.00 total) in exchange for advertising in Yellow Book’s 2010 Indianapolis directory. Contract 3 contains language providing that, by executing it, Stone personally guaranteed any indebtedness that [Central Indiana] incurred with Yellow Book. . . . At trial, the sole defense of [Central Indiana] and Stone for liability for amounts under Contract 3 was that Contract 3, according to Stone, was only to be a placeholder in the Indianapolis directory, and that a subsequent contract, reflecting a prize of only $500 per month (as opposed to $2,542.00 per month) was to be provided by Yellow Book to Stone and [Central Indiana], which would supersede the version of Contract 3 that was actually executed.

...

13. [Central Indiana] made between eight and fifteen phone calls to various representatives of [Yellow Book] located in various offices commencing

7 the day after the signing of the third contract when no one brought him the corrected contract for the agreed reduced amount.

14. Finally after receiving no response to his numerous phone calls [Central Indiana] sent a fax to various representatives of [Yellow Book] expressing his concern and demanding the signed contract be corrected or cancelled as per the representations previously made and again expressing the contract was executed only to reserve his advertising position in the directory a[t] the request and direction of [Yellow Book’s] representative. Said fax was sent four days after the contract in question was signed. Said fax was also a timely cancellation notice as again [Central Indiana] relied upon the representations of [Yellow Book’s] employees in the manner in which said notices could be provided.

(Appellant’s App. pp. 22-23, 25) (internal references omitted) (emphasis added).

To establish fraud, Central Indiana would have to prove that Yellow Book made

(1) a material representation of a past or existing fact (2) that was untrue and known to be

untrue, or else recklessly made, and (3) that Central Indiana did in fact rely on the

representation, (4) which proximately caused it to suffer injury. Circle Ctr. Dev. Co. v.

Y/P Ind., L.P., 762 N.E.2d 176, 179 (Ind. Ct. App. 2002), trans. denied. Although the

trial court did not make an explicit conclusion of fraud, but merely alluded to a

‘miscommunication,’ the trial court’s findings clarify that this phrasing should be

interpreted and read as a misrepresentation.

Yellow Book now contends that even if the trial court’s conclusion should be

characterized as a fraud in the inducement, evidence of the oral misrepresentations is not

admissible due to the inclusion of an integration clause in Contract 3. Specifically,

paragraph 14F of Contract 3 provides:

This agreement supersedes any other verbal or written agreement between Customer and Publisher. This agreement may not be changed except by a writing signed by an authorized signatory of Customer and Publisher.

8 (Plaintiff’s Exh. 5).

“An integration clause of a contract is to be considered as any other contract

provision to determine the intention of the parties and to determine if that which they

intended is fully expressed in the four corners of the writing.” Prall v. Ind. Nat’l Bank,

627 N.E.2d 1374, 1377-78 (Ind. Ct. App. 1994). “Generally, where parties have reduced

an agreement to writing and have stated in an integration clause that the written document

embodies the complete agreement between the parties, the parol evidence rule prohibits

courts from considering extrinsic evidence for the purpose of varying or adding to the

terms of the written contract.” Id. “An exception to the parol evidence rule applies,

however, in the case of fraud in the inducement, where a party was ‘induced’ through

fraudulent representations to enter a contract.” Circle Ctr. Dev. Co., 762 N.E.2d at 179.

A party can overcome the effect of an integration clause if it can show if it had a right to

rely on the alleged misrepresentations and did in fact rely on them in executing the

release and/or interpretation clause. Wind Wire, LLC v. Finney, 977 N.E.2d 401, 405

(Ind. Ct. App. 2012). Prall indicated that “[w]hether one has the right to rely depends

largely on the facts of the case.” Prall, 627 N.E.2d at 1379.

The evidence reflected, and the trial court found, that Stone entered into Contract

3 during a meeting with Yellow Book’s representative, Tina Dunn (Dunn). Stone

testified that, even though he had requested “a much smaller contract,” Dunn brought the

wrong contract and told him to “get this one signed and get it over with to hold [my]

placement [in the Yellow Book].” (Transcript p. 63). She told Stone that she “would get

9 [him] the smaller contract” for five hundred dollars. (Tr. p. 64). Because Stone “felt

pressured” and “liked the placement,” he signed the contract. (Tr. pp. 63, 64). When he

did not receive the smaller contract the following day, Stone “tried to call [Dunn] several

times and continued to call the next couple of days.” (Tr. p. 64). As he was not

successful, Stone contacted Dunn’s supervisor, Brian Blake (Blake). Finally, Stone sent

a facsimile to Dunn and Blake, cancelling the contract. The evidence further indicates

that, at the time Stone executed the contract, Dunn knew that Yellow Book did not “have

lesser payments on signed contracts.” (Tr. p. 42). Dunn also testified that she never

mentioned that the executed contract could not serve as a place holder until a smaller

contract could be sent to Stone.

Mindful of the trial court’s credibility determination, we conclude that Stone had a

right to rely on Dunn’s representations. Dunn, a Yellow Book representative, assured

him a less costly contract was available and the current, signed contract would only serve

as a placeholder until the cheaper agreement could be executed. Dunn clearly made the

representation with the intent that Stone would sign the current contract. Stone took

Dunn’s statements at face value and did not independently investigate them. See contra

Prall, 627 N.E.2d at 1378-79 (Prall testified he had independently investigated Indiana

National Bank’s representations). Absent these representations, Stone would not have

entered into Contract 3 and consequently caused the execution of the integration clause.

Therefore, because fraud in the inducement caused Stone to enter Contract 3, Contract 3

is rescinded.

IV. Pre-Judgment Interest and Attorney’s Fees

10 Finally, Yellow Book contends the trial court erred when it denied an award of

pre-judgment interest and attorney’s fees. Contract 1 and Contract 21 provide that

If Publisher does not receive the full amount invoiced by the due date on the bill, Publisher may assess a late charge not to exceed 1.5% per month of the overdue amount.

***

In the event Publisher refers Customer’s account to a collection agency or attorney due to a non-payment, Customer will be liable for all of Publisher’s reasonable costs and expenses incurred in connection with Customer’s non-payment, including without limitation, court costs and reasonable attorney’s fees up to 25% of the unpaid account balance (plus interest accrued thereon).

(Plaintiff’s Exh. 3).

A. Pre-Judgment Interest

An award of pre-judgment interest in a breach of contract action is warranted if the

amount of the claim rests upon a simple calculation and the terms of the contract make

such a claim ascertainable. Noble Roman’s Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.

Ct. App. 2002). “The test for determining whether an award of pre-judgment interest is

appropriate is whether the damages are complete and may be ascertained as of a

particular time.” Id. Importantly for purposes of our review, “an award of pre-judgment

interest is generally not considered a matter of discretion.” Id.

Here, prejudgment interest on the amounts owed under Contracts 1 and 2 are

easily calculated and arose at a particular time. Therefore, because we reversed the trial

1 Because we concluded that Contract 3 was rescinded as it was induced by fraud, Yellow Book is not entitled to pre-judgment interest and attorney’s fees on Contract 3.

11 court with respect to Contracts 1 and 2, we now remand for a calculation of pre-judgment

interest on the amounts owed.

B. Attorney’s fees

During the hearing, counsel for Yellow Book noted that his law firm had

“expended 70.00 hours to date” and requested fees in the amount of “$ 17,375.00.”

(Plaintiff’s Exh. 14). He testified that this amount reflected the work incurred on the

three Contracts and he had not made a calculation with respect to each individual

Contract.

Because we hold that Yellow Book is only entitled to attorney’s fees with respect

to Contracts 1 and 2, we direct the trial court on remand to consider what would

constitute a reasonable attorney’s fees award for the two Contracts. “An excessive

attorney fee award can be avoided when fees are apportioned according to the

significance of the issues upon which a party prevails, balanced against those on which

the party does not avail.” Stepp v. Duffy, 686 N.E.2d 148, 153 (Ind. Ct. App. 1997),

trans. denied. Additionally, pursuant to the terms of Contract 1, Stone is personally

liable for the indebtedness incurred by Central Indiana under this Contract. (See Clause

15G—“By his/her execution of this agreement, the signer personally and individually

undertakes and assumes, jointly and severally with the Customer, the full performance of

this agreement, including payment of amounts due hereunder.”).2 Therefore, we remand

2 We do not reach a similar conclusion with respect to Contract 2 as Contract 2 was signed by Stone’s employee who is not a party or involved in this cause.

12 to the trial court for a calculation of the pre-judgment interest and reasonable attorney’s

fees pursuant to Contracts 1 and 2.

CONCLUSION

Based on the foregoing, we conclude that (1) the trial court erred when it

concluded that Yellow Book failed to credit certain Central Indiana payments under

Contracts 1 and 2; (2) Contract 3 was induced by fraud and is rescinded; and (3) Yellow

Book is entitled to pre-judgment interest and reasonable attorney’s fees for amounts owed

under Contracts 1 and 2.

Affirmed in part, reversed in part, and remanded with instructions.

ROBB, J. and BRADFORD, J. concur