                                                                           Dec 29 2015, 8:32 am




      ATTORNEY FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      James K. Wisco                                            Dan J. May
      Foley, Foley & Peden, P.A.                                Kokomo, Indiana
      Martinsville, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA
      John Barker and Specialty                                 December 29, 2015
      Limos, LLC,                                               Court of Appeals Case No.
      Appellants-Plaintiffs,                                    34A02-1506-PL-626
                                                                Appeal from the Howard Superior
              v.                                                Court
                                                                The Honorable Douglas A. Tate,
      Jason Price,                                              Judge
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                34D03-1407-PL-10



      Najam, Judge.


                                        Statement of the Case
[1]   John Barker and Specialty Limos, LLC (collectively, “Barker”) appeal the trial

      court’s entry of summary judgment for Jason Price. Barker raises a single issue

      for our review, which we restate as whether the trial court erred when it

      interpreted the parties’ contract. We affirm in part, reverse in part, and remand

      for further proceedings.
      Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015                 Page 1 of 12
                                    Facts and Procedural History
[2]   In 2014, Barker contacted Price about a van Price had advertised for sale. The

      advertisement described the van as a 1994 Ford E-350. The advertisement

      promised a “clean” certificate of title but did not indicate a sale price.

      Appellant’s App. at 14.


[3]   Barker and Price agreed to meet, and, on April 9, Barker inspected the van.

      Following Barker’s inspection, he orally agreed to purchase the van from Price

      for $15,000. The parties then agreed in writing that Barker would make an

      immediate $2,000 deposit and Price would provide Barker “title by 4/14/14 or

      deposit will be refunded in full” (“the deposit agreement”). Id. at 15. The

      deposit agreement described the van as a Ford E-350 but did not specify the

      model year.


[4]   Sometime prior to April 14, 2014, Price provided Barker with a certificate of

      title for the van.1 The certificate indicated that the owner of the van was a third

      party. On the reverse side of the certificate, the owner appeared to have



      1
        Attached to a motion to correct error following the entry of summary judgment, Barker included an
      affidavit in which he asserted that Price had failed to present the certificate of title by April 14, 2014. And,
      on appeal, Barker asserts that this affidavit creates a genuine issue of material fact on this point. But the
      affidavit Barker submitted with his motion to correct error was not consistent with his affidavit in support of
      his motion for summary judgment, in which he made no assertion whatsoever that Price had not timely
      submitted the certificate of title. Rather, in response to the summary judgment motions Barker had only
      asserted that the certificate of title was deficient. See Appellant’s App. at 12-13. Barker had his opportunity
      to designate evidence on the summary judgment motions prior to the court’s ruling on them. He cannot
      unilaterally use a motion to correct error to circumvent our trial rules’ requirements for the timely
      designation of materials in support of or against summary judgment. See Ind. Trial Rule 56(I); see also New
      Albany-Floyd Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 257 n.11 (Ind. Ct. App. 2000) (noting that
      evidence submitted not in support of a summary judgment motion but, rather, only in support of a motion to
      correct error “cannot be considered in [the summary judgment] context on appeal”).

      Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015                         Page 2 of 12
      assigned her interest as a “seller,” although the place for the purchaser’s name

      was blank. Id. at 17. The certificate also described the van as a 1993 model

      rather than a 1994 model. Barker refused to accept the certificate of title and

      demanded a refund of his $2,000. Price, in turn, refused to refund the deposit.


[5]   Barker filed a small claim against Price for breach of contract, which was later

      transferred to the court’s plenary docket. In his complaint, Barker alleged that

      Price had failed to provide a certificate of title in accordance with the deposit

      agreement, which entitled Barker to a refund of the deposit. On September 15,

      2014, Barker filed a motion for summary judgment. Price responded and filed

      his own motion for summary judgment. After a hearing, the trial court entered

      summary judgment for Price. In relevant part, the trial court concluded that the

      year of the van was not a term material to the deposit agreement because that

      “agreement makes no reference to the year of the vehicle”; that Barker had

      accepted the van when he inspected it and paid the deposit; and that the

      certificate of title that Price tendered satisfied his obligation under the deposit

      agreement. Id. at 8-9. This appeal ensued.


                                      Discussion and Decision
                                                    Overview

[6]   Barker appeals the trial court’s entry of summary judgment for Price. Our

      supreme court has stated our standard of review as follows:


              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
      Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 3 of 12
              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 T.R. 56(C)). . . .


              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
              nonmovant to “come forward with contrary evidence” showing
              an issue for the trier of fact. Id. at 761-62 (internal quotation
              marks and substitution omitted). 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.” McSwane v. Bloomington Hosp. &
              Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal
              quotation marks omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[7]   Summary judgment is a “high bar” for the moving party to clear in Indiana. Id.

      at 1004. Further:


              Summary judgment is a desirable tool to allow the trial court to
              dispose of cases where only legal issues exist. But it is also a
              “blunt . . . instrument” by which the non-prevailing party is
              prevented from having his day in court. We have therefore
              cautioned that summary judgment is not a summary trial and the
              Court of Appeals has often rightly observed that it is not
              appropriate merely because the non-movant appears unlikely to
              prevail at trial. 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.

      Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 4 of 12
      Id. at 1003-04 (citations and some quotations omitted; omission original to

      Hughley).


[8]   This appeal requires the interpretation of a contract. Interpretation and

      construction of contract provisions are questions of law. John M. Abbott, LLC v.

      Lake City Bank, 14 N.E.3d 53, 56 (Ind. Ct. App. 2014). As such, cases involving

      contract interpretation are particularly appropriate for summary judgment. Id.

      And because the interpretation of a contract presents a question of law, it is

      reviewed de novo by this court. Jenkins v. S. Bend Cmty. Sch. Corp., 982 N.E.2d

      343, 347 (Ind. Ct. App. 2013), trans. denied. We review the contract as a whole,

      attempting to ascertain the parties’ intent and making every attempt to construe

      the contract’s language “so as not to render any words, phrases, or terms

      ineffective or meaningless.” Four Seasons Mfg., Inc. v. 1001 Coliseum, LLC, 870

      N.E.2d 494, 501 (Ind. Ct. App. 2007).


[9]   Generally, Indiana’s courts apply the “four corners rule” to determine the

      parties’ intent in entering into a written contract. Brill v. Regents Comm’ns, Inc.,

      12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans. denied. That is, if the contract

      unambiguously demonstrates the parties’ intent, we will simply apply the

      contract as written and, generally, “parol or extrinsic evidence is inadmissible to

      expand, vary, or explain the instrument . . . .” Id. (quotations omitted).

      However, the prohibition against the use of parol evidence “is by no means

      absolute.” Id. (quotations omitted). And “where the existence . . . of a contract

      or the terms thereof is the point in issue, and the evidence is conflicting or

      admits of more than one inference, it is for the [trier of fact] to determine

      Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 5 of 12
       whether a contract in fact exists.” City of Indianapolis v. Twin Lakes Enter., Inc.,

       568 N.E.2d 1073, 1079 (Ind. Ct. App. 1991), trans. denied.


[10]   Here, Barker asserts that the entry of summary judgment for Price is erroneous

       for two reasons. First, he asserts that the model year of the van was a term

       material to his agreement to purchase it, and Price failed to present a certificate

       of title for a 1994 van. Second, he asserts that the certificate of title was in the

       name of a third party and, therefore, that Price did not satisfy his obligation to

       deliver title as provided under the deposit agreement. We address each

       argument in turn.


               Whether the Model Year of the Van was a Material Contract Term

[11]   We first consider Barker’s argument that the certificate of title presented by

       Price did not comply with the deposit agreement because the certificate showed

       a different model year for the van than the year specified in the advertisement.

       This issue turns on the scope of the deposit agreement, which is the only writing

       between the parties regarding sale of the van. The deposit agreement simply

       states that, in exchange for a $2,000 deposit, Price “will have title by 4/14/14”

       for a “Ford E-350 Van.” Appellant’s App. at 15. Because the deposit

       agreement does not specify the model year of the vehicle, Price asserts that the

       year must not have been a material term. As Price puts it, “the advertisement

       merged into the [deposit agreement].” 2 Appellee’s Br. at 3. We must agree




       2
        Price also suggests that Barker conceded at the summary judgment hearing that the model year of the van
       was not a material contract term, but we cannot agree. Barker plainly argued that the model year was a

       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015                   Page 6 of 12
       with Barker that there is a genuine issue of material fact regarding whether the

       model year of the vehicle was a term material to the parties’ agreement.


[12]   We begin with a basic point: the deposit agreement does not contain the entire

       agreement between the parties. As our supreme court has explained:


                An integrated agreement is a writing constituting the final
                expression of one or more terms of the parties’ agreement.
                Restatement (Second) of Contracts § 209 (1981). The question of
                whether an agreement is an integration is one of fact[] that[,]
                unlike other questions of fact, is decided by the judge as a
                question preliminary to application of the parol evidence rule. Id.
                In determining whether a writing is integrated, the judge should
                examine the writing itself to see whether it appears complete on
                its face and should also consider any other relevant evidence. Id.


       Sees v. Bank One, Ind., N.A., 839 N.E.2d 154, 162 n.7 (Ind. 2005).


[13]   The deposit agreement is not the entire agreement in that it omits at least one

       essential term, namely, the sale price for the van. And it does not contain an

       integration clause. Thus, we cannot agree with Price’s contention that the

       advertisement or any other prior negotiations “merged” into the deposit

       agreement. See, e.g., I.C.C. Protective Coatings, Inc. v. A.E. Staley Mfg. Co., 695

       N.E.2d 1030, 1035-36 (Ind. Ct. App. 1998), trans. denied. To the contrary, it is




       material term; when the trial court made it clear to Barker that it did not agree and wanted to advance the
       hearing to the next issue, Barker stated, “Ok, alright.” Tr. at 18. This is not a concession.
       Further, in his affidavit in support of his motion for summary judgment, Price suggested that Barker had
       refused to accept the certificate of title because Barker had “found another van prior to 4/14/[2]014.”
       Appellant’s App. at 22. Of course, whether Barker had purchased another vehicle says nothing about
       whether Price had complied with his end of the parties’ bargain.

       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015                       Page 7 of 12
       apparent that the deposit agreement was only part of a larger agreement

       between the parties and that part of the agreement was not reduced to writing.


[14]   Likewise, we are not persuaded by Price’s argument that the deposit agreement

       speaks for itself when it omitted the model year from the vehicle’s description.

       Price contends, in effect, that he could have produced a certificate of title for a

       Ford E-350 van manufactured in any year without affecting his deal with

       Barker. When the entire agreement between the parties is taken into account,

       we cannot say as a matter of law that the model year was not a material term.

       Indeed, in most automobile sales, the model year is a material term. Both new

       and used vehicles are typically offered for sale and sold based, in part, on the

       model year. And there is usually a correlation between the model year and the

       sale price.


[15]   As the deposit agreement did not contain the entire agreement, it is necessary

       for the trier of fact to consider parol evidence. That is, the parol evidence rule,

       which operates to exclude “contemporaneous oral statements that contradict

       the terms of an integrated written agreement,” does not apply here because

       there is no integrated written agreement. Sees, 839 N.E.2d at 162; cf. Krieg v.

       Hieber, 802 N.E.2d 938, 943-44 (Ind. Ct. App. 2004) (noting that, even when

       the parol evidence rule does apply, there are numerous exceptions, such as

       using extrinsic evidence to show a mistake in the formation of a contract or “to

       apply the terms of a contract to its subject matter”).




       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 8 of 12
[16]   Accordingly, whether the parties here considered the model year of the vehicle

       to be a term material to their agreement must be resolved by considering

       evidence extrinsic to the deposit agreement, including the original

       advertisement. The advertisement demonstrates that Price offered a 1994

       vehicle, and the evidence suggests that Barker agreed to purchase the vehicle

       advertised. Thus, we must conclude that whether the year of the vehicle was a

       term material to the parties’ agreement is a question of fact that must be

       resolved by considering all the evidence, not merely a question of law based

       only on an interpretation of the deposit agreement. See id.


[17]   In its summary judgment order, the trial court concluded, in the alternative,

       that Barker had accepted the van regardless of the model year when he paid the

       deposit after having inspected the van. But while Barker had inspected the van

       and paid the deposit, the deposit agreement makes it clear that Barker’s

       acceptance remained contingent upon Price’s delivery of the certificate of title.

       There is no designated evidence to show that Barker knew when he inspected

       the van that the model was anything other than the 1994 vehicle advertised, and

       Barker immediately rejected the van as nonconforming when he learned that it

       was not a 1994 vehicle. See Ind. Code § 26-1-2-606(1) (2014) (stating that an

       acceptance of goods occurs when the buyer signifies to the seller that the buyer

       will take or retain goods “in spite of their nonconformity”). Indeed, not until

       Price tendered the certificate of title did Barker have any reason to know that

       the model year was something other than 1994.




       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 9 of 12
[18]   On appeal, in defending the trial court’s reasoning that Barker had accepted the

       van, Price cites Indiana Code Section 26-1-2.1-515. But that Section of the

       Indiana Code applies only to lease agreements. As the Code makes clear

       elsewhere, “a sale . . . is not a lease.” I.C. § 26-1-2.1-103(1)(j). In any event,

       under the relevant sales provision of the Indiana Code, I.C. § 26-1-2-606(1), the

       designated evidence does not show that Barker’s execution of the deposit

       agreement and payment of the deposit, alone, signified that the van was

       “conforming” with respect to the model year. Accordingly, we are not

       persuaded by this alternative explanation for the trial court’s order.


[19]   In sum, the deposit agreement is not the entire agreement between Barker and

       Price. Accordingly, the trial court erred when it concluded that the deposit

       agreement precluded Barker’s claim that the model year was a term material to

       the parties’ agreement for sale of the van. And we cannot say that the

       designated evidence otherwise shows that Price is entitled to judgment as a

       matter of law on this issue. We reverse the court’s entry of summary judgment

       for Price and remand for further proceedings. On remand, the court shall

       consider not only the deposit agreement but also extrinsic evidence to

       determine whether, as between the parties, the model year was a term material

       to their agreement.


                     Whether a Certificate of Title in Another’s Name is Valid

[20]   To prevent this issue from recurring on remand, we briefly address Barker’s

       alternative argument that the trial court erred when it concluded that Price had

       delivered a valid certificate of title pursuant to the deposit agreement even
       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 10 of 12
       though the certificate of title was not in Price’s name. In particular, Barker’s

       only arguments here are, first, that title in a third-party’s name is not clear title

       and, second, that the Indiana Certificate of Title Act, I.C. §§ 9-17-1-1 to -8-9,

       controls such issues rather than the sales provisions of the Indiana Uniform

       Commercial Code.


[21]   This court has previously rejected those arguments. Specifically, in Marlow v.

       Conley, 787 N.E.2d 490 (Ind. Ct. App. 2003), Medley purchased a truck from

       Conley at a car show, and Conley gave Medley a certificate of title that was in

       the name of Marlow, a third party. Marlow eventually sued Medley for

       replevin of the truck on the grounds that Conley had acquired the certificate of

       title from him through fraud and Medley should have known better when he

       saw a third party’s name on the certificate of title.


[22]   In a thorough analysis, we concluded that Medley held valid title. Id. at 498-99.

       In most relevant part, we explained that a defrauding buyer obtains title that is

       voidable, not void, “which means that when title gets into the hands of a bona

       fide purchaser for value then he will prevail over the defrauded seller.” Id. at

       493. We also held that receipt of a certificate of title in the name of a third

       party, standing alone, does not demonstrate that a buyer is not a “good faith

       purchaser for value.” Id. at 497-98. And we explicitly rejected Marlow’s

       reliance on the Indiana Certificate of Title Act rather than the sales provisions

       of the UCC adopted in Indiana. Id. at 495-97.




       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 11 of 12
[23]   Barker’s arguments with respect to the validity of the open title presented by

       Price are indistinguishable from the arguments we considered and rejected in

       Marlow. Thus, we apply Marlow and reject Barker’s arguments that the

       certificate of title that Price tendered is not a “clean” title as advertised. To be

       sure, Barker and Price could have agreed that Price be the owner named on the

       certificate of title as an explicit term of their sale agreement, but there is no

       designated evidence to suggest that they did. Accordingly, the trial court

       correctly rejected Barker’s arguments, and we affirm that portion of the trial

       court’s judgment.


[24]   Thus, we affirm in part, reverse in part, and remand for further proceedings.


[25]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 34A02-1506-PL-626 | December 29, 2015   Page 12 of 12
