                                                                              FILED
                                                                         Oct 26 2018, 10:00 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
Richard A. Kempf                                           Jenny R. Buchheit
Paul T. Deignan                                            Eileen P.H. Moore
Thomas F. O’Gara                                           Adam D. Zacher
TAFT STETTINIUS & HOLLISTER LLP                            ICE MILLER LLP
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Elway Company, LLP, Dale K.                                October 26, 2018
Elrod, Jeffrey L. Elrod, and                               Court of Appeals Case No.
Mary Ann Waymire,                                          18A-CC-443
Appellants-Plaintiffs/Counterclaim                         Appeal from the Morgan Superior
Defendants,                                                Court
                                                           The Honorable Brian H. Williams,
        v.                                                 Judge
                                                           Trial Court Cause No.
Champlain Capital Partners,                                55D02-1105-CC-1032
L.P.,
Appellee-Defendant/Counterclaim
Plaintiff.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                               Page 1 of 20
                                            Case Summary
[1]   Elway Company, LLP, (“Elway Company”) and siblings Dale K. Elrod

      (“Dale”), Jeffrey L. Elrod (“Jeffrey”), and Mary Ann Waymire (“Mary Ann”)

      (collectively and at times taken together with Elway Company, “the Elrod

      Plaintiffs”) appeal a grant of summary judgment in favor of Champlain Capital

      Partners, L.P. (“Champlain”) upon remand from an appeal of prior litigation

      related to eight construction projects (“the Bonded Projects”) covered by a

      Bonding Collateral Agreement (“the Agreement”) executed by the Elrod

      Plaintiffs and Safeco Surety (“Safeco”), now Liberty Mutual Insurance

      Company. We remand “to permit the introduction of evidence so that the trial

      court may consider and rule on whether the various projects from which bond

      claims arose … were completed within the scope of the meaning of completion

      as set forth by the Agreement.” Champlain Capital Partners, L.P. v. Elway Co.,

      LLP, 58 N.E.3d 180, 201 (Ind. Ct. App. 2016), trans. denied (“Champlain I”).



                                                     Issues
[2]   The Elrod Plaintiffs present for our review three consolidated and restated

      issues:


                I.     Whether the law-of-the-case doctrine should be discarded
                       under the circumstances of this case;


                II.    Whether the trial court improperly granted summary
                       judgment upon its determination that all bonded projects



      Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018         Page 2 of 20
                          were complete, thereby triggering the reimbursement
                          provision of the Agreement; and


                 III.     Whether prejudgment interest was properly awarded.1


                                Facts and Procedural History
[3]   In 2004, Dale, Jeffrey, and Mary Ann were majority shareholders in the John

      K. Elrod Company (“JKE”), a business involved in construction of stadium

      seating and safety barriers. See Champlain I. In 2005, Champlain, a Delaware

      investment firm focused on small business acquisition and growth, acquired

      JKE in a leveraged buyout. The Elrod siblings were then minority

      shareholders.


[4]   Before and after the leveraged buyout, JKE obtained its performance, payment,

      and supply bonds from Safeco.2 After the buyout, Safeco determined that it

      would no longer accept personal indemnities from a family member and instead

      demanded $3.5 million collateral in the form of an irrevocable letter of credit

      (“ILOC”). See id. The Elrod siblings agreed to loan $3.5 million to JKE from

      the proceeds of the sale of the business to Champlain. The ILOC was placed

      with Fifth Third Bank.




      1
          Because we remand for a predicate factual determination, we do not address the third issue.
      2
       Two types were involved in the parties’ dispute: performance bonds (ensuring JKE customers of project
      completion) and payment bonds (ensuring JKE’s subcontractors of payment).

      Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                               Page 3 of 20
[5]   JKE’s finances became unstable and Fifth Third Bank moved JKE’s loans to a

      workout division in anticipation of foreclosing on the loans. See id. at 186.

      During July and August of 2006, the Elrod Plaintiffs, Champlain, JKE’s

      lenders, and other minority shareholders in JKE negotiated a transaction to

      restructure JKE’s finances. The Elrod Plaintiffs contributed several million

      dollars in capital to JKE, and Elway Corporation3 acquired, with the Elrod

      funds, certain JKE assets, thereby contributing $4.7 million to JKE. Safeco

      released the $3.5 million ILOC, replaceable by a $3.5 million ILOC using

      capital from Champlain (“the Substitute LOC”).


[6]   With JKE on more solid financial footing, its goal was to expand its business to

      include larger jobs. For this, JKE needed to increase its bonding limits with

      Safeco. To address the availability of collateral so that Safeco would increase

      JKE’s bonding limits, the restructuring transaction included the Agreement.

      The Agreement required Champlain to provide the Substitute LOC in a value

      not to exceed $3.5 million and this had been done before the Agreement was

      executed. The Agreement also required the Elrod Plaintiffs to provide

      collateral not to exceed $3.5 million to Safeco, but the terms did not include a

      time limit. See id. at 186-87.


[7]   By mid-October of 2006, JKE’s cash flow situation was dire, and it defaulted on

      lease payments to Elway Company. On October 16, 2006, Champlain, as the




      3
          The Elway Corporation is a limited liability corporation owned by Dale, Jeffrey, and Mary Ann.


      Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                              Page 4 of 20
      majority shareholder, placed JKE into liquidation bankruptcy proceedings.

      JKE ceased performance on the Bonded Projects. Consequently, Safeco acted

      to draw down the funds in the Substitute LOC. See id. at 188. Safeco placed

      the $3.5 million into a bank account to use for paying claims against bonds

      Safeco had issued on JKE’s behalf. Safeco used all but $591,023.98 of funds

      from the Substitute LOC to reimburse itself for claims against JKE bonds and

      pay expenses associated with bond claims and litigation. Eight construction

      project owners had potential bond claims: Michigan International Speedway

      (“MIS”), Darlington Raceway, Watkins Glen, Maine Township High School,

      Kewanee School, Rialto School, Speedway Bid, and Speedway Grandstand.


[8]   Champlain demanded reimbursement from the Elrod Plaintiffs for the Safeco

      draw-down of funds, but the Elrod Plaintiffs disputed the demands. On

      December 22, 2010, the Elrod Plaintiffs filed a declaratory judgment complaint,

      alleging that their obligations under the Agreement were limited to payments

      made from the Substitute LOC for defaults on only performance bonds.

      Champlain filed a counterclaim, alleging that the Elrod Plaintiffs had breached

      the terms of the Agreement by failing to post an additional $3.5 million in

      collateral and by withholding reimbursement for claims paid related to the

      Bonded Projects. In addition to alleging breach of contract, Champlain




      Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018     Page 5 of 20
       asserted claims of unjust enrichment and breach of an implied covenant of good

       faith and fair dealing.4


[9]    The parties filed cross-motions for summary judgment, and the trial court

       granted partial summary judgment to the Elrod Plaintiffs, concluding that the

       Agreement applied only to performance bonds and that an unjust enrichment

       claim could not proceed when the rights of the parties were controlled by a

       contract. Champlain requested reformation of the Agreement on grounds of

       scrivener error or mutual mistake, but the trial court declined to reform the

       Agreement.5 A bench trial proceeded on the claims of breach of contract and

       breach of an implied covenant of good faith and fair dealing. On September 15,

       2015, the trial court entered judgment entirely in favor of the Elrod Plaintiffs.

       See id. at 189. Champlain appealed.


[10]   On appeal, this Court first addressed the trial court’s findings and conclusions

       related to the Elrod Plaintiffs’ failure to post an additional $3.5 million in

       collateral. We “conclude[d] that the Agreement required that the Elrod

       Plaintiffs add to the bonding collateral only upon Safeco’s demand” and “[t]he

       Agreement did not by its terms require the Elrod Plaintiffs to make $3.5 million

       available to Champlain or JKE.” Id. at 194. Moreover, the Agreement did not




       4
        The Agreement included a choice-of-law clause providing that the Agreement should be governed under
       Delaware law.
       5
        Champlain asked that the Agreement be reformed to refer to all surety bonds as opposed to performance
       bonds and refer to $3.5 million as a fixed amount rather than a cap.

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                          Page 6 of 20
       “provide that Safeco’s refusal to continue to underwrite JKE’s bonds amounted

       to a reduction of collateral that would first inure to Champlain’s benefit or

       otherwise require that the Elrod Plaintiffs replace the Substitute LOC with a

       $3.5 million contribution of their own.” Id. As such, the trial court did not err

       when it found no breach on this basis.6


[11]   Turning to whether the Agreement established a reimbursement obligation on

       the part of the Elrod Plaintiffs, we quoted the relevant portion of the Agreement

       (“the Reimbursement Provision”):


                Notwithstanding any documentation to the contrary setting forth
                the legal effect, rights, obligations, and priority of Safeco as
                against (i) Champlain under the Substitute LOC and (ii) [the
                Elrod Plaintiffs] under the Elrod/Elway Guaranty, but subject to
                section D.2 below, both Champlain and [the Elrod Plaintiffs]
                agree that they will share and incur ultimate liability and
                financial out-of-pocket exposure to Safeco on a pro rata and pari
                passu basis with respect to the $7 Million aggregate Safeco
                Collateral Commitment, which is being made under the
                Substitute LOC and the Elrod/Elway Guaranty.


       (App’x at 59.)7




       6
        We also affirmed the trial court’s conclusion that there was no breach by the Elrod Plaintiffs of the
       Agreement’s implied covenant of good faith and fair dealing.
       7
        Pro rata terms require proportional allocation, “according to an exact rate, measure, or interest.” Black’s
       Law Dictionary 1415 (10th ed. 2014). Pari passu terms require proportionality of pace, that is, compensation
       “without preference.” Id. at 1290.

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                                Page 7 of 20
[12]   Examining the Agreement as a whole, we concluded that the parties’ intent was

       “to ensure that the risk of loss of funds to Safeco bond claims would not rest

       solely with Champlain.” Champlain, 58 N.E.3d at 196. Having determined that

       the trial court erred in concluding that Champlain was not entitled to

       reimbursement unless the Elrod Plaintiffs had also contributed collateral, we

       turned to consider the extent of the reimbursement obligation. The parties

       disputed the proper interpretation of language in Section D.2 of the Agreement,

       specifically:


               To the extent that an LOC Draw does not result in a
               commensurate and concurrent request from Safeco for the Elrods
               and/or Elway to fund under the Elrod/Elway Guaranty, the
               Elrods and/or Elway (as applicable) will reimburse Champlain
               fifty percent (50%) of any and all amounts drawn down …
               according to the following procedure: (a) if at any time, there is
               only one Bonded Project in which the Customer or Safeco has
               declared a default and Safeco has made an LOC Draw, then [the
               Elrod Plaintiffs] will pay or reimburse Champlain, in accordance
               with Sections C and D hereof, on or before 30 days after such
               Bonded Project is “Completed.” (“Completed” is defined as
               either (I) acceptance by the customer, or (II) issuance of an
               occupancy permit by the applicable governmental authority); (b)
               if at any time, more than one Bonded Project is the subject of a
               notice of default .. then the payment or reimbursement obligation
               of [the Elrod Plaintiffs] hereunder will not occur until 30 days
               after the last one of all such Bonded Projects are Completed;
               moreover, for purposes of calculating the amount to be paid or
               reimbursed [by the Elrod Plaintiffs], all LOC Draws will be
               aggregated and “netted,” such that any credits or payments by
               the customer or Safeco in respect of any Bonded Project that
               serves to mitigate the amount of any LOC Draw will reduce such
               payment or reimbursement obligation of [the Elrod Plaintiffs].


       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018      Page 8 of 20
       (App’x at 59-60). We concluded that the Reimbursement Provision did not

       include an express requirement for an accounting; thus, Champlain did not

       forfeit reimbursement rights for failure to provide a detailed accounting.

       Champlain, 58 N.E.3d at 199. We also concluded that the Reimbursement

       Provision “does not limit the scope of the reimbursement obligation only to

       amounts drawn down due to performance bond defaults.” Id. at 200.


[13]   We then examined the Agreement’s criteria for project completion and

       ultimately reversed solely on the matter of reimbursement and remanded to

       permit the introduction of evidence of completion:8


               For a project to be deemed completed and thereby to create a
               reimbursement obligation on the part of the Elrod Plaintiffs, the
               Agreement in Section D.2(a) required “either (I) acceptance by
               the customer, or (II) issuance of an occupancy permit by the
               applicable governmental authority.” (App’x at 60.) The trial
               court construed this provision to require that “Champlain must
               produce certificates of occupancy or acceptance to confirm
               completion … in order to trigger any liability.” (App’x at 20.)


               We again conclude that the trial court erred in its construction of
               the agreement. There simply is no expressed requirement for
               certificates of acceptance in the Agreement. The Agreement calls
               for either acceptance by the customer or an occupancy permit
               from an applicable governing authority.




       8
        We also instructed the trial court to consider the Safeco-retained LOC funds in its decision on remand. Id.
       at 201.

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                              Page 9 of 20
               The trial court’s misconstruction of this provision affected not
               only its legal reasoning, but also its fact-finding. The trial court
               found that only one project could be considered completed – the
               Rialto School Corporation project, for which Champlain
               produced a certificate of acceptance. The trial court concluded,
               however, that there was no acceptance of another project, at
               Michigan International Speedway, because though the customer
               had entered into a settlement agreement with respect to bond
               liability, “[n]o evidence was submitted that these repairs were
               ever completed or, if completed, when the completion was
               certified.” (App’x at 20.) This finding, of course, was premised
               on the erroneous conclusion that proof of completion could come
               only through a certificate of occupancy or completion.


               The trial court’s erroneous construction of these provisions
               resulted in litigation that limited the scope of the evidence
               presented at trial. Accordingly, upon remand, we instruct the
               trial court to conduct appropriate proceedings to permit the
               introduction of evidence so that the trial court may consider and
               rule on whether the various projects from which bond claims
               arose – related to either performance or payment bonds – were
               completed within the scope of the meaning of completion as set
               forth by the Agreement, and in conformance with the
               interpretation of the Agreement set forth above.


       Id. at 200-201. The Elrod Plaintiffs filed a petition for rehearing, which was

       denied on October 4, 2016. On January 19, 2017, the Indiana Supreme Court

       denied a petition for transfer. On January 26, 2017, the opinion of this Court

       was certified, and the matter was remanded to the trial court. Anticipating no

       further bond claims, Safeco conditionally returned $554,537.00 to Champlain.


[14]   On September 22, 2017, Champlain filed a motion for summary judgment.

       After some discovery disputes and extensions of time in which to conduct

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018       Page 10 of 20
       discovery, the parties appeared on December 5, 2017 for a hearing on the

       pending motion for summary judgment and a pending motion to strike, which

       challenged the admissibility of an affidavit attached to the motion for summary

       judgment.


[15]   Champlain argued that, “for at least the past seven years,” both parties have

       “had in their possession evidence from Safeco demonstrating that the eight

       bonded projects at issue are completed.” (S.J. Tr. at 6.) Champlain designated

       the deposition testimony of Safeco’s corporate representative, Stacy Hipsak-

       Goetz (“Goetz”). That deposition, in its entirety, had been admitted at the

       bench trial as Stipulated Trial Exhibit 1. Therein, Goetz had testified that she

       had personal knowledge of the completion of the Kewanee Project, Maine

       Township Project, Watkins Glen Project, Darlington Raceway Project, Iowa

       Speedway Bid Project, and the Iowa Speedway Grandstand Project. However,

       because the trial court had at the bench trial focused upon only performance

       bond claims, the findings of fact, conclusions of law, and judgment had

       specifically addressed evidence of completion of only the Rialto and MIS

       projects.


[16]   With the benefit of this Court’s opinion in Champlain I, Champlain asked the

       trial court to consider the deposition testimony as prima facie evidence of the

       completion of most Bonded Projects. The trial court had made a factual finding

       in its prior judgment that the Rialto School Corporation project had been

       completed within the scope of the Agreement, because a certificate of

       occupancy had been produced at trial. See Champlain I, 58 N.E.3d at 201. As

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018     Page 11 of 20
       for the MIS project, Champlain argued that this Court had, in the prior appeal,

       determined that project “to be completed.” (S.J. Hearing Tr. at 6.)


[17]   The Elrod Plaintiffs responded, “that is not what the Court of Appeals said,”

       (Tr. at 18), and argued “there was no ruling by the Court of Appeals that the

       settlement agreement substituted for acceptance.” Id. at 19. The Elrod

       Plaintiffs further asserted that the MIS/JKE contract had been terminated in

       2006, Goetz had testified in her deposition that she lacked knowledge of

       completion, and Champlain had failed to obtain evidence of completion. The

       Elrod Plaintiffs asked that the matter proceed to trial.


[18]   On February 21, 2018, the trial court granted Champlain’s motion for summary

       judgment. In its order on summary judgment, the trial court treated each of the

       Bonded Projects as completed, triggering the reimbursement obligation. The

       trial court assigned completion dates of January 3, 2008 for the Rialto Project,

       September 1, 2006 for the Kewanee Project, November 19, 2006 for the

       Watkins Glen Project, April 25, 2006 for the Darlington Raceway Project, and

       September of 2006 for the Iowa Speedway Bid Package and the Iowa Speedway

       Grandstand Project. As to the MIS Project, the trial court concluded that this

       Court had “by implication” expressed a belief “that Michigan International




       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018     Page 12 of 20
       Speedway had accepted the Project” and that the law of the case prevented re-

       examination. (Appealed Order at 11.)9


[19]   Judgment was entered against the Elway Company, Dale, Jeffrey, and Mary

       Ann, jointly and severally, in the amount of $1,472,731.30. The trial court

       concluded that the final bonded project was completed no later than March 26,

       2013, when Safeco settled the claim related to the MIS Project, and awarded

       prejudgment interest calculable from thirty days later, April 25, 2013. This

       appeal ensued.



                                    Discussion and Decision
                                               Law of the Case
[20]   The Elrod Plaintiffs ask that we revisit the determinations that the Agreement

       was intended to allocate the risk of loss between parties and that the Agreement

       applies to both performance and payment bonds. Champlain responds that,




       9
         The trial court also stated that “there was a Certificate of Occupancy issued for the Michigan International
       Speedway Project” and “[t]he fact that it was issued before the Bonding Collateral Agreement was signed or
       before Michigan International Speedway made a claim on the performance bond is immaterial to the
       determination of whether the Project was completed.” (Appealed Order at 11.) The judgment in the bench
       trial states: “The parties stipulated that on June 13, 2015, Champlain first produced to the Elrods (via
       counsel) … a certificate of occupancy from MIS dated June 13, 2005, which was over one year before the
       execution of the Bonding Collateral Agreement.” (Judgment, para. 106.) (emphasis added). The trial court
       may have intended to reference the year of 2006, as opposed to 2005, consistent with Goetz’s deposition
       testimony. However, the trial court did not assign a completion date based upon the Certificate of
       Occupancy.

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                              Page 13 of 20
       under the law-of-the-case doctrine, the intent and scope of the Agreement will

       not be relitigated.


[21]   The law-of-the-case doctrine provides that an appellate court’s determination of

       a legal issue binds the trial court and the appellate court in any subsequent

       appeal involving the same case and substantially the same facts. Rapkin Grp.,

       Inc. v. Cardinal Ventures, 29 N.E.3d 752, 758 n.6 (Ind. Ct. App. 2015). The law-

       of-the-case doctrine is based upon the sound public policy that once an issue has

       been litigated and decided, that should be the end of the matter. Id. Unlike the

       doctrine of res judicata, the law-of-the-case is a discretionary tool. Id. The law-

       of-the-case doctrine has been found to be inapplicable when additional

       information distinguishes the case factually from the case decided in the first

       appeal. Id. Also, to invoke the law-of-the-case doctrine, “the matters decided

       in the prior appeal must clearly appear to be the only possible construction of

       the opinion.” Travelers Cas. & Sur. Co. v. Maplehurst Farms, Inc., 18 N.E.3d 311,

       315 (Ind. Ct. App. 2014) (quoting Riggs v. Burrell, 619 N.E.2d 562, 564 (Ind.

       1993)), trans. denied.


[22]   In the prior appeal, we unquestionably decided that the Agreement allocated

       risk between the parties and that the Agreement’s reimbursement requirement

       applied to payment bonds as well as performance bonds. That holding is

       unambiguous, with only one possible construction. We determined that the

       trial court had erroneously construed one provision that limited the scope of the

       evidence presented at trial. Champlain I, 58 N.E.3d at 201. We remanded to

       permit the introduction of evidence “so that the trial court may consider and

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018       Page 14 of 20
       rule on whether the various projects from which bond claims arose – related to

       either performance or payment bonds – were completed within the scope of the

       meaning of completion as set forth by the Agreement, and in conformance with

       the interpretation of the Agreement as set forth above.” Id.


[23]   The Elrod Plaintiffs claim that they presented new evidence relative to the

       parties’ understanding of contract terms. “[W]here new facts are elicited upon

       remand that materially affect the questions at issue, the court upon remand may

       apply the law to the new facts as subsequently found.” In re Change to

       Established Water Level of Lake of Woods in Marshall Cty., 822 N.E.2d 1032, 1044

       (Ind. Ct. App. 2005), trans. denied.


[24]   However, the Elrod Plaintiffs have essentially renewed the legal arguments

       rejected by this Court in the first appeal and on rehearing. The trial court was

       not required, on remand, to elicit facts necessary to interpret the Agreement.

       Rather, the trial court was instructed to act in conformance with the

       interpretation of the Agreement as set forth in the opinion. Because we

       remanded only to permit the introduction of evidence of completion of Bonded

       Projects, if indeed the Elrod Plaintiffs presented new evidence of contractual

       intent, it was not relevant to an issue for the trial court upon remand. We

       discern no basis upon which to find the law-of-the-case inapplicable.


                                 Grant of Summary Judgment
[25]   Upon review of a trial court’s grant or denial of summary judgment, we apply a

       well-settled standard:

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018      Page 15 of 20
               We review summary judgment de novo, applying the same
               standard as the trial court: Drawing all reasonable inferences in
               favor of … the 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. 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 the truth, or if the undisputed material facts
               support conflicting reasonable inferences. The initial burden is
               on the summary-judgment movant to demonstrate [ ] the absence
               of any genuine issue of fact as to a determinative issue, at which
               point the burden shifts to the non-movant to come forward with
               contrary evidence showing an issue for the trier of fact. And
               [a]lthough the non-moving party has the burden on appeal of
               persuading us that the grant of summary judgment was
               erroneous, we carefully assess the trial court’s decision to ensure
               that he was not improperly denied his day in court.


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (citations omitted).


[26]   In Champlain I, we acknowledged that the trial court, as the fact-finder in a

       bench trial, was to determine whether each of the Bonded Projects had been

       completed. As of the first appeal, this fact-finding had been made – by the trial

       court – as to one bonded project, Rialto. We remanded and “instruct[ed] the

       trial court to conduct appropriate proceedings to permit the introduction of

       evidence so that the trial court may consider and rule on whether the various

       projects … were completed.”


[27]   The trial court did not conduct an evidentiary hearing, but rather considered

       designated materials. In conducting our review of the designated materials, it is


       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018          Page 16 of 20
       undisputed that Safeco considered each of the bond claims resolved. Safeco

       had internally classified each of the Bonded Projects as completed or tendered. 10


[28]   With respect to the MIS project, Goetz had described it as “a claim resolved” in

       2013. (Appellee’s App. Vol. II, pg. 103.) She provided some history of the

       claim handling. After JKE filed bankruptcy and ceased work on the Bonded

       Projects, MIS contacted Safeco claiming that JKE’s work was defective and

       requesting that Safeco arrange for repairs. Eventually, Safeco and MIS entered

       into a settlement agreement regarding repair. Safeco agreed that MIS could

       retain the balance it owed on the construction contract and Safeco paid MIS an

       additional $200,000.00. MIS executed a release. Safeco did not monitor

       whether repairs were performed. Indeed, it is also undisputed that Safeco’s

       representative did not know the ultimate outcome of the MIS Project.

       Specifically, Goetz had “no idea what they did with our money.” (Appellee’s

       App. Vol. II, pg. 105).


[29]   Relevant evidence upon remand would be that which would permit the trial

       court to factually determine completion as defined by the Agreement. The

       Agreement does not define completion as, for example, cessation of work,

       resolution of bond claims, consent of surety, a certificate of substantial

       completion, or surety’s classification. Under the Agreement, completion is

       demonstrated by acceptance or a certificate of occupancy by a governmental




       10
         Goetz explained that Safeco considered a project tendered if it was turned over to a new contractor for
       completion or repairs.

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                             Page 17 of 20
       authority. It is axiomatic that a certificate of occupancy must relate to one of

       the Bonded Projects to fall within the purview of the Agreement.


[30]   In its summary judgment order, the trial court stated that this Court had, in

       Champlain I, “by implication” expressed this Court’s “belief” that “MIS had

       accepted the Project.” (Appealed Order at 11.) We did not, and could not

       properly find that MIS, the customer, accepted the work performed. An

       appellate court does not engage in factfinding. See Woods v. State, 701 N.E.2d

       1208, 1216 (Ind. 1998) (observing that a reviewing court does not have

       reasonable ability to engage in fact-finding or take new evidence).


[31]   In Paragraph 42, the summary judgment order references the Release between

       MIS and Safeco, to which Champlain and the Elrod Plaintiffs were not

       parties.11 This Release provides in part: “prior to the completion of the Prime

       Contract, MIS alleged certain leakage and water damage which MIS contended

       was the result of Elrod’s breach of the Prime Contract.” (App. Vol. V, pg. 127.)

       The Release further stated that “Elrod’s Prime Contract was terminated on or

       about October 25, 2006.” See id.


[32]   The “Prime Contract” would appear to be, considering Goetz’s deposition

       testimony and the language of the Release, the final contract between JKE and




       11
          The Release indicates that the Parties [Michigan International Speedway, also “MIS”, and Safeco] “desire
       to compromise and settle the claims and disputes between them.” (App. Vol. V, pg. 127.) Safeco released
       MIS from liability to pay the contract balance. MIS released Safeco from claims of any kind and assigned to
       Safeco its “claims against Elrod.” See id. at pg. 129.

       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018                           Page 18 of 20
       MIS. However, it was not the only contract between JKE and MIS. Although

       the summary judgment order states in Paragraph 41 that a Certificate of

       Occupancy was issued for the MIS project, and the trial court considered it

       immaterial that the issuance of that certificate predated the Agreement, the trial

       court did not assign a completion date for the MIS project based upon that

       certificate of occupancy, as it did with some other projects. Nor can we do so.

       Even if we assume that the Certificate of Occupancy was issued by the

       appropriate governmental authority, without further evidentiary development,

       the question remains as to whether it referenced work that was within the scope

       of the Agreement. And even if the facts in designated materials are undisputed,

       summary judgment is inappropriate if there is a good faith dispute as to the

       inferences to be drawn from those facts. Long v. Durnil, 697 N.E.2d 100, 104

       (Ind. Ct. App. 1998), trans. denied.


[33]   The existence of the certificate does not give rise to a single inference.

       Designated materials – specifically, the deposition testimony of Dennis Leary

       and Goetz – indicate that more than one bond had been issued relative to MIS

       and that MIS had owned twelve to fourteen racetracks where JKE had

       performed work. We cannot say, as a matter of law, that the pre-Agreement

       certificate, whatever its origin, without dispute satisfied the contractual

       requirement of completion under the Agreement. Nor do we conclude, as a

       matter of law, that there was customer acceptance of the MIS Bonded Project.

       We conclude that the trial court improvidently granted summary judgment to

       Champlain.


       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018          Page 19 of 20
                                                Conclusion
[34]   The Elrod Plaintiffs have provided no basis for disregarding the law of the case.

       However, because we conclude that the designated materials do not establish

       that each of the Bonded Projects was completed “within the scope of the

       meaning of completion as set forth by the Agreement,” Champlain I at 201, we

       remand to permit the introduction of evidence.


[35]   Reversed and remanded.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CC-443 | October 26, 2018    Page 20 of 20
