                                                                          FILED
                                                                    May 31 2016, 8:20 am

                                                                          CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Jason R. Delk                                             Catherine E. Sabatine
Daniel J. Gibson                                          Debra A. Mastrian
Delk McNally LLP                                          SmithAmundsen LLC
Muncie, Indiana                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Larry M. New, and Heritage                                May 31, 2016
Medical Group, Inc., f/k/a                                Court of Appeals Case No.
Heritage Medical Services, Inc.,                          18A02-1508-PL-1161
Appellants-Defendants,                                    Appeal from the Delaware Circuit
                                                          Court
        v.                                                The Honorable Marianne L.
                                                          Vorhees, Judge
T3 Investments Corporation,                               Trial Court Cause No.
Appellee-Plaintiff.                                       18C01-1106-PL-17




Brown, Judge.




Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016                      Page 1 of 17
[1]   Larry M. New, and Heritage Medical Group, Inc., f/k/a Heritage Medical

      Services, Inc. (“Heritage,” and collectively with New, the “Appellants”) appeal

      the trial court’s Order on the Summary Judgment Motions Filed by the Parties

      granting summary judgment in favor of T3 Investments Corporation (“T3”) and

      denying the Appellants’ summary judgment motion. The Appellants raise one

      issue which we revise and restate as whether the court erred in granting

      summary judgment in favor of T3 and denying the Appellants’ cross-motion for

      summary judgment. We affirm.


                                       Facts and Procedural History

[2]   On March 1, 2001, Heritage, T3, Inverness Corporation (“Inverness”), and

      Dennis Streeter, organized Hillcrest Estates, LLC (“Hillcrest”) and Heritage

      was named the managing member. New is the President of Heritage. On or

      about that same day, Hillcrest executed a promissory note (“Note”) in

      connection with a loan (the “Loan”) from US Bank National Association f/k/a

      Firstar Bank, NA (the “Bank”) in the original principal amount of $1,740,000.

      As collateral, Hillcrest pledged certain real and personal property located in

      Liberty, Indiana as described in an Open-End Mortgage of Real Property,

      Security Agreement of Personal Property, and Assignment of Rents and Profits

      dated March 9, 2001 (the “Mortgage”). Sycamore Springs, LLC (“Sycamore

      Springs”), a rehabilitation care facility on the property, leased the property from

      Hillcrest. As a condition of making the Loan evidenced by the Note, the Bank

      obtained commercial guaranties, dated March 5, 2001, from seven individuals

      and entities, including P. Eric Turner, who was President of T3, Turner’s

      Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 2 of 17
      brother Kyle, New, John W. Bartle, Heritage, Inverness, and T3 (collectively,

      the “Guarantors”).


[3]   In April 2004, the Guarantors executed reaffirmations of the guaranties. The

      Guarantors each agreed to be jointly and severally liable for the full amount of

      Hillcrest’s indebtedness under the Note, which was also amended in 2004.

      That summer, the Bank agreed to renew or extend the Loan upon receipt of

      financial information from Hillcrest and the Guarantors. Financial information

      was provided to the Bank, but the Bank did not follow through with the

      renewal or extension of the Loan, which matured in August 2004.


[4]   On July 14, 2005, the Bank commenced an action against the Guarantors in the

      Wayne Superior Court (the “Guarantor Lawsuit”), in which it sought recovery

      from the Guarantors for the outstanding principal on the Loan. On October 19,

      2007, the Bank commenced a foreclosure action against Hillcrest and Sycamore

      Springs in the Union Circuit Court (the “Foreclosure Lawsuit”), seeking

      foreclosure of the real property and replevin of the personal property that was

      pledged as collateral for the Loan.


[5]   On October 10, 2008, the Bank, Hillcrest and the Guarantors entered into a

      Settlement and Mutual Release Agreement (the “Settlement Agreement”),

      which provided in part as follows:


              This Settlement and Mutual Release Agreement (the
              “Agreement”) is entered into as of October 10, 2008, by and
              between US Bank National Association f/k/a Firstar Bank, N.A.
              (“Bank”), and Hillcrest Estates, LLC (“Hillcrest”), and P. Eric

      Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 3 of 17
        Turner, Kyle D. Turner, Larry M. New, John W. Bartle,
        Heritage Medical Group, Inc., Inverness Corporation and T-3
        Investments Corporation (collectively “Guarantors”) and states
        as follows:


                                              *****


        WHEREAS, the parties hereto believe that resolution of the
        Loan, the Foreclosure Lawsuit and the Guarantor Lawsuit under
        the terms and conditions set forth herein is in their mutual best
        interest and avoids the uncertainty and costs of further litigation;
        and


        NOW THEREFORE, IT IS HEREBY AGREED AS
        FOLLOWS:


                                              *****


        2. Agreed Judgments. Simultaneously with the execution of the
        Agreement, counsel for Hillcrest and the Guarantors, other than
        Inverness which is being released, shall execute “Agreed
        Judgments” against Hillcrest and the Guarantors . . . which may
        be entered against them in the Foreclosure Lawsuit and the
        Guarantor Lawsuit under the terms and conditions set forth
        herein.


        3. Agreed Judgments Terms / Filings


        (a) Agreed Guarantor Judgment. Judgment against the
        Guarantors, other than Inverness . . . , shall be in the form
        attached as Exhibit A hereto. It is acknowledged by the parties
        that the amounts reflected as owing are calculated as of October
        20, 2008. . . .


Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016    Page 4 of 17
        (b) Agreed Foreclosure Judgment. Judgment against Hillcrest
        in the Foreclosure Lawsuit, shall be in the form attached as
        Exhibit B hereto. It is acknowledged by the parties that the
        amounts stated as owing are calculated as of November 18, 2008.
        ...


                                              *****


        5. Entry of Agreed Judgments. In the event the Bank has not
        received Payment, as defined below, then the Bank may proceed
        to have the Agreed Judgments entered as follows:


        (a) the Agreed Guarantor Judgment may be entered any time on
        or after October 20, 2008; and


        (b) the Agreed Foreclosure Judgment may be entered any time
        on or after November 18, 2008.


        6. Payment. “Payment” shall be in the amount of
        $2,264,317.80, as of September 23, 2008, as reflected on the
        attached Exhibit C together with per diem interest . . . .


        7. Actions Upon Payment. Upon receipt of the Payment prior
        to entry of the Agreed Guarantor Judgment, the parties shall file
        stipulations and orders for the dismissal of the Guarantor
        Lawsuit and the Foreclosure Lawsuit in the forms attached as
        Exhibits D and E respectively. In the event Payment is made
        after entry of the Guarantor Judgment but before entry of the
        Foreclosure Judgment, the Bank shall provide a satisfaction of
        the Guarantor Judgment and counsel for the parties shall submit
        a Stipulation for Dismissal of the Foreclosure Lawsuit in the
        form attached as Exhibit E.


                                              *****

Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016     Page 5 of 17
              10. Mutual Release. With the sole exception of the rights
              granted to the Bank under this Agreement, which shall survive
              unless Payment is made as set forth herein, the Bank, Hillcrest,
              and the Guarantors, for themselves, their predecessors,
              successors, parent companies, affiliates, partners, members, heirs,
              representatives, assigns and all other persons or entities, do
              hereby fully, unconditionally and irrevocably waive as against,
              and release, one another, and all of their officers, directors,
              stockholders, partners, members, parents, affiliates, employees,
              agents, representatives, attorneys, predecessors, successors and
              assigns, of and from any and all actions, causes of action, claims,
              demands, damages (including without limitation compensatory
              or punitive damages) defenses, counterclaims, setoffs of any kind,
              costs, penalties, attorneys fees or expenses, whether known or
              unknown, whether contingent or liquidated, whether in contract,
              tort, statute or under any other legal theory, arising out of or
              related to, the Loan and in connection with any act or omission
              by any party, and including without limitation, the claims and
              counterclaims which are the subject of the Foreclosure Lawsuit
              and the Guarantor Lawsuit.


      Appellants’ Appendix at 174-177. The payment called for under the Settlement

      Agreement was never made to the Bank.


[6]   On October 20, 2008, the court in the Guarantor Lawsuit entered an agreed

      judgment (the “Agreed Judgment”), consistent with Exhibit A contained in the

      Settlement Agreement, against the Guarantors in favor of the Bank. On

      November 18, 2008, the court in the Foreclosure Lawsuit held a trial, and on

      December 29, 2008, it issued a Judgment and Decree of Foreclosure (the

      “Foreclosure Judgment”) against Hillcrest, awarding the Bank a judgment

      against Hillcrest in the amount of $2,282,260.65, plus interest and costs, and

      foreclosing on the Mortgage, noting that the property would be sold at a
      Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 6 of 17
      Sheriff’s sale and that the proceeds would be applied toward the judgment. On

      February 20, 2009, following a motion by Sycamore Springs, the court in the

      Foreclosure Lawsuit entered an amendment to the Foreclosure Judgment (the

      “Amended Foreclosure Judgment”), and on May 13, 2009, in the Guarantor

      Lawsuit, Sycamore Springs took assignment of the Agreed Judgment from the

      Bank (the “Assignment”).


[7]   The property was sold at a Sheriff’s sale to Sycamore Springs, and following the

      sale there was a deficiency judgment in the Foreclosure Lawsuit in the amount

      of $865,315.95. On July 31, 2009, the court in the Guarantor Lawsuit entered

      the following order (the “Deficiency Order”):

              [Sycamore Springs], as assignee and successor in interest to [the
              Bank], by counsel and the Guarantors, P. Eric Turner and T-3
              Investments by P. Eric Turner, in person and by counsel. Libby
              Moat, appeared for hearing on proceedings supplemental on July
              30, 2009. Arguments of counsel were heard and evidence
              submitted by the parties.


              The Court, having heard arguments and reviewed such evidence,
              finds in favor of [Sycamore Springs], and finds that the deficiency
              judgment owed to [Sycamore Springs] by the Guarantors, jointly
              and severally, is $865,315.95 as of July 30, 2009, pursuant to the
              calculation reflected on Plaintiff’s Exhibit A together with
              interest continuing to accrue at the rate of $195.06 per day (or if
              reduced, 8.375% on the outstanding principal balance of the
              judgment) after July 30, 2009. The Court denies Guarantors’
              request for credits for rent or property taxes.


              The Guarantor, P. Eric Turner, represented in open court that
              funds are presently available for satisfaction of the deficiency

      Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016    Page 7 of 17
              judgment, as determined by the Court, at First Merchants bank.
              The Court further grants [Sycamore Springs’] Motion for a Final
              Order in Garnishment to issue to Garnishee Defendant, First
              Merchants Bank, for immediate garnishment of funds in the sum
              of $865,315.95 in favor of Sycamore Springs . . . .


      Id. at 168-169. T3 paid the full deficiency, totaling $865,511.01, and on

      October 6, 2009, the court in the Guarantor Lawsuit entered a Satisfaction of

      Judgment.


[8]   On June 8, 2011, T3 filed its complaint for contribution against the Appellants

      in the Delaware Circuit Court. On September 14, 2011, the Appellants filed

      their Answer to the Complaint and Counterclaim. On December 16, 2011, T3

      filed a Motion to Dismiss Counterclaim, and on January 27, 2012, the

      Appellants filed a Motion to Amend Counterclaim. T3 filed an answer to the

      Amended Counterclaim on February 7, 2012.


[9]   On November 6, 2014, the Appellants filed a motion for judgment on the

      pleadings and supporting memorandum. On December 19, 2014, T3 filed its

      Motion for Summary Judgment, Combined Brief in Support of Motion for

      Summary Judgment and in Opposition to Defendants’ Motion for Judgment on

      the Pleadings, and supporting Designation of Evidence. On January 30, 2015,

      the court entered an order denying the Appellants’ motion for judgment on the

      pleadings and setting the briefing schedule on summary judgment. On

      February 27, 2015, the Appellants filed a Motion for Summary Judgment,

      Combined Memorandum of Law in Support of Motion for Summary Judgment

      and in Opposition to T3’s Motion for Summary Judgment, and supporting

      Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 8 of 17
       Designation of Evidence. On April 1, 2015, T3 filed its Combined Reply in

       Support of Motion for Summary Judgment and Brief in Opposition to the

       Appellants’ Cross-Motion for Summary Judgment, together with its

       Designation of Facts, Evidence and Materials in Opposition to the Appellants’

       Cross-Motion for Summary Judgment.


[10]   On June 18, 2015, the court conducted a hearing and on July 16, 2015, entered

       an Order (“Summary Judgment Order”) granting summary judgment in favor

       of T3 and against each of the Appellants in the amount of $173,102.20,

       respectively, representing their pro-rata share of the deficiency judgment paid

       by T3. On July 28, 2015, the Appellants filed a motion to reconsider, T3 filed

       its response in opposition, and on August 11, 2015, the Appellants filed their

       Reply in support of the motion. The court denied the motion on August 24,

       2015.1


                                                      Discussion

[11]   The issue is whether the court erred in granting summary judgment in favor of

       T3 and denying the Appellants’ cross-motion for summary judgment. We

       review an order for summary judgment de novo, applying the same standard as

       the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving

       party bears the initial burden of making a prima facie showing that there are no



       1
         Following the court’s initial entry of summary judgment in favor of T3, it ordered supplemental briefing on
       the issue of the amount of interest it could award and withheld entry of final judgment. The court’s August
       24, 2015 order, in addition to denying the Appellants’ motion to reconsider, found that T3 is entitled to
       recover interest from the Appellants in the sum of $82,050.82, and entered final judgment.

       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016                          Page 9 of 17
       genuine issues of material fact and that it is entitled to judgment as a matter of

       law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary judgment is

       improper if the moving party fails to carry its burden, but if it succeeds, then the

       nonmoving party must come forward with evidence establishing the existence

       of a genuine issue of material fact. Id. We construe all factual inferences in

       favor of the nonmoving party and resolve all doubts as to the existence of a

       material issue against the moving party. Id.


[12]   Our review of a summary judgment motion is limited to those materials

       designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res.,

       756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s ruling on a motion

       for summary judgment, we may affirm on any grounds supported by the

       Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779

       N.E.2d 1, 3 (Ind. 2002). The entry of specific findings and conclusions does not

       alter the nature of a summary judgment which is a judgment entered when

       there are no genuine issues of material fact to be resolved. Rice v. Strunk, 670

       N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment context, we are not

       bound by the trial court’s specific findings of fact and conclusions thereon. Id.

       They merely aid our review by providing us with a statement of reasons for the

       trial court’s actions. Id. The fact that the parties make cross-motions for

       summary judgment does not alter our standard of review. Hartford Acc. &

       Indem. Co. v. Dana Corp., 690 N.E.2d 285, 291 (Ind. Ct. App. 1997), trans. denied.

       Instead, we must consider each motion separately to determine whether the

       moving party is entitled to judgment as a matter of law. Id.

       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016    Page 10 of 17
[13]   The court in its Summary Judgment Order reasoned as follows:


               The Court agrees with T3: each of the five remaining guarantors,
               Eric Turner, Kyle Turner, Larry New, Heritage, and T3, is
               responsible for 1/5 of the outstanding indebtedness.


               The [Settlement] Agreement which the [Appellants] assert as a
               defense in this action for contribution was with the bank; the
               parties were supposed to pay a sum of money (over $2.2 million)
               to the bank in order to settle [the Guarantor Lawsuit] and [the
               Foreclosure Lawsuit]. The only payment the Agreement
               contemplated was to the bank. And no party made a payment to
               the bank pursuant to the [Settlement] Agreement. The bank
               foreclosed on the real estate and obtained a deficiency judgment,
               which T3 paid.


               [T3] and [the Appellants] did not exchange any consideration for
               the purported release between them in the [Settlement]
               Agreement. The only consideration was the bank’s agreement to
               dismiss two lawsuits in exchange for a payment (the $2.2 plus
               million payment mentioned above). The parties did not make
               this payment.


               [The Appellants] point to Paragraph 10 in the [Settlement]
               Agreement, “Mutual Release,” to support their argument. [The
               Appellants’] argument that the language in the [Settlement]
               Agreement constituted a release and waiver as to any claims for
               contribution made at a later date and that [T3] cannot seek
               contribution against [the Appellants] due to this language fails as
               a matter of law. . . .


               Because the Court finds T3’s argument as the prevailing
               argument in this action, [the Appellants’] counterclaim alleging a
               frivolous lawsuit fails as a matter of law as well.


       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 11 of 17
       Appellant’s Appendix at 19.


[14]   Citing case law for the proposition that a promise for a promise constitutes

       consideration, the Appellants argue a “mutual release within a settlement

       agreement is sufficient consideration in and of itself to render” such release

       enforceable as a matter of law. Appellants’ Brief at 13. They assert that each

       party agreed to waive and release any and all claims arising out of or relating to

       the Loan, the Guarantor Lawsuit, and/or the Foreclosure Lawsuit against one

       another and that such mutual promises constitute sufficient consideration. The

       Appellants argue that “[s]pecifically, by agreeing to forebear legal rights and

       claims against each other,” the Appellants and T3 “each received a benefit (a

       release of liability) and a detriment by (releasing other parties from liability and

       waiving specific claims against specific parties).” Id. at 13-14.


[15]   T3 argues that the only consideration contemplated by the parties under the

       Settlement Agreement concerned the Bank receiving a payment of

       approximately $2.2 million in exchange for it dismissing the Guarantor and the

       Foreclosure lawsuits. It asserts that it is undisputed the Guarantors, including

       T3 and the Appellants, did not pay or receive anything of value in exchange for

       releasing claims amongst themselves. T3 maintains that in order for a release to

       be enforceable it must be supported by consideration, which consists of a

       bargained-for exchange. T3 also argues that there is nothing in the Settlement

       Agreement demonstrating that the Guarantors bargained for any benefits and

       detriments with respect to each other.



       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 12 of 17
[16]   “The ‘doctrine of contribution rests on the principle that where parties stand in

       equal right, equality of burden becomes equity.’” Balvich v. Spicer, 894 N.E.2d

       235, 245 (Ind. Ct. App. 2008) (quoting Cook v. Cook, 92 Ind. 398, 399 (1884)).

       “Moreover, the right of contribution is based upon ‘natural Justice, [and] it

       applies to any relation, including that of joint contractors, where equity between

       the parties is equality of burden, and one of them discharges more than his

       share of the common obligation.’” Id. (quoting Norris v. Churchill, 20 Ind. App.

       668, 670, 51 N.E. 104, 105 (1898)). “The right of contribution operates to make

       sure those who assume a common burden carry it in equal portions.” Id.

       (quoting Fleck v. Ragan, 514 N.E.2d 1287, 1289 (Ind. Ct. App. 1987)).

       “[E]xcept as provided in I.C. 26-1-3.1-419(e) or by agreement of the affected

       parties, a party having joint and several liability who pays the instrument is

       entitled to receive from any party having the same joint and several liability

       contribution in accordance with applicable law.” Id. (quoting Ind. Code § 26-1-

       3.1-116) (footnote and emphasis omitted).


[17]   “A release, as with any contract, should be interpreted according to the

       standard rules of contract law.” Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588

       N.E.2d 1264, 1267 (Ind. 1992). “[R]elease documents shall be interpreted in

       the same manner as any other contract document, with the intention of the

       parties regarding the purpose of the document governing.” OEC-Diasonics, Inc.

       v. Major, 674 N.E.2d 1312, 1314 (Ind. 1996) (quoting Huffman, 588 N.E.2d at

       1267). Generally, “[i]nterpretation of a contract is a pure question of law and is

       reviewed de novo.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind.

       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 13 of 17
       2005). If its terms are clear and unambiguous, courts must give those terms

       their clear and ordinary meaning. Id. Courts should interpret a contract so as

       to harmonize its provisions, rather than place them in conflict. Id. “We will

       make all attempts to construe the language of a contract so as not to render any

       words, phrases, or terms ineffective or meaningless.” Rogers v. Lockard, 767

       N.E.2d 982, 992 (Ind. Ct. App. 2002). “A contract will be found to be

       ambiguous only if reasonable persons would differ as to the meaning of its

       terms.” Beam v. Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), reh’g denied.

       “When a contract’s terms are ambiguous or uncertain and its interpretation

       requires extrinsic evidence, its construction is a matter for the fact-finder.”

       Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind. 2010).


[18]   Contracts are formed when parties exchange an offer and acceptance. Fox Dev.,

       Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App. 2005) (citing Rosi v. Bus.

       Furniture Corp., 615 N.E.2d 431, 435 (Ind. 1993)). “The basic requirements are

       offer, acceptance, consideration, and ‘a meeting of the minds of the contracting

       parties.’” Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012) (quoting

       Batchelor v. Batchelor, 853 N.E.2d 162, 165 (Ind. Ct. App. 2006)). “To constitute

       consideration, there must be a benefit accruing to the promisor or a detriment to

       the promisee.” Ind. Dep’t of State Revenue v. Belterra Resort Ind., LLC, 935 N.E.2d

       174, 179 (Ind. 2010), modified on reh’g on other grounds, 942 N.E.2d 796 (2011).

       “A benefit is a legal right given to the promisor to which the promisor would

       not otherwise be entitled.” Id. “A detriment on the other hand is a legal right

       the promisee has forborne.” Id. “The doing of an act by one at the request of

       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016    Page 14 of 17
       another which may be a detrimental inconvenience, however slight, to the party

       doing it or may be a benefit, however slight, to the party at whose request it is

       performed, is legal consideration for a promise by such requesting party.” Id.

       “In the end, consideration—no matter what its form—consists of a bargained-

       for exchange.” Id.


[19]   Turning to the Settlement Agreement, we begin by noting that it reflects that the

       Guarantors negotiated from the same position. That is, the Settlement

       Agreement throughout refers to the Guarantors as one entity, and indeed the

       Agreed Judgment attached to the agreement as Exhibit A lists all of the

       Guarantors other than Inverness due to its bankruptcy. The Settlement

       Agreement recited that the Bank had commenced the Guarantor Lawsuit

       against the Guarantors and the Foreclosure Lawsuit against Hillcrest and that

       “the parties hereto believe that resolution of the Loan, the Foreclosure Lawsuit

       and the Guarantor Lawsuit under the terms and conditions set forth herein is in

       their mutual best interest and avoids the uncertainty and costs of further

       litigation,” and accordingly they entered into the agreement. Appellants’

       Appendix at 174.


[20]   “It is well-settled that, in order to be valid, a release must be supported by

       consideration.” Peters v. Kendall, 999 N.E.2d 1030, 1034 (Ind. Ct. App. 2013),

       reh’g denied, trans. denied. This court has observed that “[c]onsideration consists

       of bargained-for exchange,” and the notion that “consideration must actually be

       bargained-for is a long recognized and fundamental common law principle.”

       Bogigian v. Bogigian, 551 N.E.2d 1149, 1151 (Ind. Ct. App. 1990), reh’g denied.

       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016   Page 15 of 17
Here, there is no bargained-for exchange among the Guarantors, who

negotiated collectively with the Bank and Hillcrest. The bargained-for

exchange concerned the Loan, in which the Bank was owed $2,264,317.80, and

the two lawsuits the Bank had filed, and the parties made an agreement as to

how to resolve those specific issues. The Guarantors, including T3 and the

Appellants, did not enter into a settlement among themselves in the Settlement

Agreement. Cf. Sands v. Helen HCI, LLC, 945 N.E.2d 176, 181 (Ind. Ct. App.

2011) (noting that a mutual release that was part of a binding settlement

agreement was valid where the parties “agreed to the essential terms (reciprocal

dismissals with prejudice, with reciprocal mutual releases) resolving the issues

between them”), trans. denied. We agree with the trial court that consideration

is not present between T3 and the Appellants to support the existence of a

contractual relationship between them, and that, accordingly, the release

contained in the Settlement Agreement is not applicable to T3’s contribution

claim. See Kandlis v. Huotari, 678 A.2d 41, 45 (Me. 1996) (observing that, in

general, “the right to contribution can be destroyed only by an agreement

between the obligated parties”); see also RESTATEMENT (FIRST) OF CONTRACTS, §

75 cmt. e (1932) (noting that consideration is not gratuitous “[i]f it is bargained

for as the exchange for the promise”).2




2
  The Appellants also argue that T3’s claim is barred by the voluntary payment doctrine. However, that
argument was not raised until they filed their motion to reconsider. The trial court was free to disregard this
issue, which was not properly preserved for appeal. See Overton v. Grillo, 896 N.E.2d 499, 504 (Ind. 2008)
(noting that the issue of incapacity was not preserved and that “[t]he trial court was free to disregard the issue
. . . which was raised for the first time in the plaintiff’s motion to reconsider the grant of summary judgment),

Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016                             Page 16 of 17
                                                      Conclusion

[21]   For the foregoing reasons, we affirm the court’s Summary Judgment Order.


[22]   Affirmed.


       Baker, J., and May, J., concur.




       reh’g denied. Further, as noted above T3 paid the deficiency pursuant to an order of garnishment contained in
       the Deficiency Order. The Indiana Supreme Court has stated that the voluntary payment rule
             is that money voluntarily paid in the face of a recognized uncertainty as to the existence or
             extent of the payor’s obligation to the recipient may not be recovered, on the ground of
             ‘mistake,’ merely because the payment is subsequently revealed to have exceeded the true
             amount of the underlying obligation.
       Time Warner Entertainment Co., L.P. v. Whiteman, 802 N.E.2d 886, 892 (Ind. 2004) (emphasis omitted), reh’g
       denied. We cannot say that the voluntary payment doctrine applies under these circumstances.

       Court of Appeals of Indiana | Opinion 18A02-1508-PL-1161 | May 31, 2016                          Page 17 of 17
