Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                           FILED
                                                         Feb 07 2013, 8:54 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral                         CLERK
                                                              of the supreme court,
                                                              court of appeals and
estoppel, or the law of the case.                                    tax court




ATTORNEYS FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

JAMES C. TUCKER                                ROBERT A. DONALD, III
MARILYN TUCKER FULLEN                          Louisville, Kentucky
Tucker and Tucker, P.C.
Paoli, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

NEFF FAMILY FERTILIZER, INC.,                  )
                                               )
      Appellant-Plaintiff,                     )
                                               )
             vs.                               )      No. 88A05-1207-PL-381
                                               )
JOHN JONES CHEVROLET                           )
BUICK CADILLAC OF SALEM, INC.,                 )
                                               )
      Appellee-Defendant.                      )


                   APPEAL FROM THE WASHINGTON CIRCUIT COURT
                         The Honorable Larry W. Medlock, Judge
                             Cause No. 88C01-1110-PL-810




                                   February 7, 2013

              MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                            STATEMENT OF THE CASE

      Neff Family Fertilizer, Inc. (“Neff”) appeals the trial court’s entry of summary

judgment in favor of John Jones Chevrolet Buick Cadillac of Salem, Inc. (“John Jones”).

      We affirm.

                                        ISSUE

      The issue in this case is whether the trial court erred by granting summary

judgment in favor of John Jones.

                       FACTS AND PROCEDURAL HISTORY

      On December 31, 2010, Neff purchased a truck from John Jones for $40,593.90.

Within a short period of time, Neff decided that it was dissatisfied with the truck.

Consequently, Neff made an agreement with John Jones whereby John Jones would buy

back the truck from Neff for $32,000.00 in trade-in credit, Neff would purchase a new

special order truck from John Jones, and Neff would pay an additional $5,500.03 for

special features on the new truck. By June 27, 2011, Neff had yet to receive the new

truck, and it notified John Jones that it was canceling its order for the new truck and

requested return of its money. Upon Neff’s request for reimbursement, John Jones paid

Neff $37,500.00.

      Neff then filed a complaint for damages in the amount of $8,593.93, which is the

difference between $46,093.93, the total amount Neff paid to John Jones for both of the

trucks, and $37,500.00, the amount Neff received in reimbursement from John Jones.

Subsequently, John Jones filed a motion for summary judgment. A hearing on the

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motion was held in May 2012, and the trial court issued its order on July 2, 2012,

granting John Jones’ motion. This appeal followed.

                             DISCUSSION AND DECISION

       Neff contends that the trial court erred by granting summary judgment to John

Jones. The gravamen of Neff’s argument is that it is entitled to $46,093.93, the amount it

had paid to John Jones for both trucks.

       On appeal from a grant of summary judgment, our standard of review is identical

to that of the trial court: whether there exists a genuine issue of material fact and whether

the moving party is entitled to judgment as a matter of law. Kroger Co. v. Plonski, 930

N.E.2d 1, 4-5 (Ind. 2010). All facts and reasonable inferences drawn from those facts are

construed in favor of the non-movant. Sheehan Constr. Co. v. Cont’l Cas. Co., 938

N.E.2d 685, 688 (Ind. 2010). The party appealing the judgment carries the burden of

persuading the appellate court that the trial court’s decision was erroneous. Bradshaw v.

Chandler, 916 N.E.2d 163, 166 (Ind. 2009). Moreover, an appellate court may affirm

summary judgment if it is proper on any basis shown in the record. Pfenning v. Lineman,

947 N.E.2d 392, 408-09 (Ind. 2011).

       The materials before us show that on December 31, 2010, Neff entered into a

written contract (“Contract #1”) with John Jones for the purchase of a truck (“Truck #1”).

Pursuant to Contract #1, Neff paid John Jones $40,593.90 and took possession of Truck

#1. Soon thereafter Neff determined that Truck #1 did not fit its needs.



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       Neff and John Jones agreed that John Jones would buy back Truck #1 from Neff

for $32,000.00 in trade-in credit, that Neff would purchase a new special order truck

(“Truck #2”) from John Jones, and that Neff would pay an additional $5,500.03 for

special features on Truck #2. On January 5, 2011, Neff paid John Jones an additional

$5,500.03 for Truck #2, and on January 7, 2011, a representative of Neff signed a “Letter

of Intent” with John Jones agreeing to purchase Truck #2 with a trade-in credit of

$32,000.00 for Truck #1 and a payment of $5,500.03 for special features on Truck #2.

Subsequently, on April 21, 2011, a representative of Neff signed a contract with John

Jones (Contract #2), pursuant to which Neff returned Truck #1 to John Jones. Contract

#2 lists the value of Truck #1 as $32,000.00.

       As of June 27, 2011, Truck #2 had not been delivered to Neff, and on that date, a

representative of Neff wrote a letter to John Jones canceling the order of Truck #2 and

requesting return of its money. John Jones reimbursed Neff $37,500.00 ($32,000.00

trade-in credit for Truck #1 plus $5,500.00 special features charge on Truck #2). The

trial court ordered summary judgment for John Jones upon Neff’s demand for the return

of an additional $8,593.93.

       We first note that Neff’s brief is premised upon the existence of an oral agreement

with John Jones as to a specific delivery time for Truck #2. Whether an oral agreement

existed that Truck #2 would be delivered in three weeks is of no moment. Neff’s point in

alleging the existence of an oral agreement is to provide the stepping stone for its

assertion that John Jones breached Contract #2 by not delivering Truck #2 within the time

                                            4
agreed upon in the oral agreement. However, this assertion also is of no moment; both

parties acted as if there had been a breach of Contract #2. The evidence shows that on

June 27, 2011, Neff canceled the order for Truck #2 and requested its money back. John

Jones reimbursed Neff a total of $37,500.00. On appeal, Neff claims that it is still owed

$8,593.93. Thus, on appeal we are to determine the proper amount of damages to which

Neff is due.

       Generally, the computation of damages is a matter within the sound discretion of

the trial court. Berkel & Co. Contractors, Inc. v. Palm & Assocs., Inc., 814 N.E.2d 649,

658 (Ind. Ct. App. 2004). To that end, we will not reverse a damage award unless it is

based on insufficient evidence or is contrary to law. Id. A party injured by a breach of

contract may recover the benefit of its bargain; however, it is limited in its recovery to the

loss actually suffered. L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031,

1043 (Ind. Ct. App. 2012). A party injured by a breach of contract may not be placed in a

better position than it would have enjoyed had the breach not occurred. Id. The plaintiff

bears the burden of proof with respect to damages, and in actions for breach of contract,

damages must be proven with reasonable certainty. Noble Roman’s, Inc. v. Ward, 760

N.E.2d 1132, 1140 (Ind. Ct. App. 2002).

       Here, we agree with, and Neff does not contest, the trial court’s determination

that Contract #1 was completed. Yet, the additional damages of $8,593.93 demanded by

Neff stem from Contract #1, not Contract #2. In Contract #2, the parties agreed that Neff

would receive $32,000.00 as a trade-in credit for Truck #1. Additionally, he paid an

                                              5
extra $5,500.00 for special features on Truck #2. Thus, Contract #2 was for the delivery

of Truck #2 by John Jones and the payment of $37,500.00 by Neff. Neff provided no

evidence of any additional damages caused by the alleged breach of Contract #2.

Therefore, the trial court justifiably concluded that Neff recovered the benefit of its

bargain when John Jones reimbursed it $37,500.00. To award damages to Neff in an

amount greater than $37,500.00 would place it in a better position than if John Jones had

been able to perform on the contract. This is not the result the law permits. See L.H.

Controls, Inc., 974 N.E.2d at 1043 (aggrieved party should be put in as good a position as

if other party had fully performed but not in better position). Thus, the trial court’s

decision that Neff was entitled to damages only in the amount of the $37,500.00 that John

Jones had already reimbursed Neff did not amount to an abuse of discretion.

                                    CONCLUSION

      For the reasons stated, we conclude that the trial court did not err in granting

summary judgment to John Jones.

      Affirmed.

RILEY, J., and BRADFORD, J., concur.




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