MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Dec 31 2018, 8:25 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT
Alice M. Morical
Evan D. Carr
Hoover Hull Turner LLP
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

WFG-Williams & Bluitt Funeral                            December 31, 2018
Home, Inc. d/b/a Williams &                              Court of Appeals Case No.
Bluitt Funeral Home and Service                          18A-PL-819
Corporation International,                               Appeal from the Marion Superior
Appellants-Defendants,                                   Court
                                                         The Honorable Gary Miller, Judge
        v.
                                                         Trial Court Cause No.
                                                         49D03-1701-PL-1374
Bluitt & Son by Nathan L. Bluitt,
Jr., Inc., a/k/a Bluitt & Sons by
Nathan L. Bluitt, Jr. and Nathan
L. Bluitt, Jr.,
Appellees-Plaintiffs.



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018                   Page 1 of 12
[1]   WFG-Williams & Bluitt Funeral Home, Inc., d/b/a Williams & Bluitt Funeral

      Home (“WFG”), and Service Corporation International (collectively, the

      “Defendants”) appeal the grant of partial summary judgment in favor of Bluitt

      & Son by Nathan L. Bluitt, Jr., Inc., a/k/a Bluitt & Sons by Nathan L. Bluitt,

      Jr., and Nathan L. Bluitt, Jr. (collectively, the “Plaintiffs”). We reverse and

      remand.


                                      Facts and Procedural History

[2]   On September 8, 2011, Nathan L. Bluitt, Jr., (“Bluitt”) the president and sole

      shareholder of Williams & Bluitt Funeral Home, Inc., sold and transferred the

      corporation to WFG and entered into several agreements with WFG including

      an Asset Purchase Agreement, a Non-Competition Agreement, and a Right to

      First Refusal to Purchase Agreement. The Non-Competition Agreement

      (“NCA”) provided in part:


              Section 2. Consideration. As consideration for the covenants by
              [Bluitt] (separate and apart from any consideration paid for the
              Business on even date herewith), Corporation agrees to pay to
              [Bluitt] (and, subject to the terms of Section 6 of this Agreement,
              [Bluitt’s] heirs or legal representatives), so long as [Bluitt] is not
              in default hereunder, the sum of $250,000.00 in 120 equal
              monthly installments of $2083.33. The first installment will be
              due and payable one month from the date hereof and thereafter
              on the same day of each succeeding month until all payments
              have been made.


      Appellants’ Appendix Volume III at 154.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 2 of 12
[3]   On May 2, 2017, Plaintiffs filed an Amended Complaint for Declaratory

      Judgment, Breach of Contract, Retaliatory Discharge, and Tortious

      Interference with Business Relationship. In Count V, Plaintiffs alleged breach

      of the NCA by Defendants’ failure to make timely payments in March and

      April 2017. Plaintiffs asserted that Bluitt was no longer bound by the terms of

      the NCA and was free to act accordingly. They also asserted that they had

      been damaged by Defendants’ breach of the NCA and had wrongfully incurred

      attorney fees in responding to the frivolous and groundless claims and defenses

      of Defendants and should be awarded damages and attorney fees.


[4]   On August 17, 2017, Plaintiffs filed a motion for partial summary judgment

      with respect to Count V. Plaintiffs designated Bluitt’s affidavit in which he

      stated that a March 10, 2017 payment made by Defendants via an ACH direct

      deposit to his bank account in the sum of $3,276.86 was late because it was not

      paid on March 8, 2017. He asserted that the March 2017 payment was

      insufficient to cover the auto allowance of $2,650 and the NCA payment of

      $2,083.33, which totaled $4,733.33. He also asserted that the April 14, 2017

      check was late under the NCA.


[5]   On September 18, 2017, Defendants filed a cross-motion for partial summary

      judgment with respect to Count V. Defendants designated the Affirmation of

      Mani Patel, the human resources director of SCI Shared Resources, LLC

      (“SCI”), who stated that: she was familiar with and involved in the

      administration of payments made by WFG, an affiliate of SCI, to Bluitt; Bluitt

      was entitled to one monthly check of $2,083.33 for each of seventy-two months,

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 3 of 12
for a total of $149,999.76; neither WFG nor SCI pay, nor are they obligated to

pay, any auto allowance or regular salary pursuant to the NCA; Bluitt was

notified of the need to convert his NCA payments to payroll in an email dated

February 17, 2017 and “[d]ue to the administrative processes involved in

switching Bluitt to payroll, the March 2017 NCA payment was made on March

10th” and Bluitt did not object to the February 17, 2017 email or the March 10,

2017 payment, which was cashed; the April 2017 NCA payment was paid via

check dated April 14, 2017 and delivered to Bluitt via overnight carrier once

Bluitt’s updated address was provided; and all subsequent payments had been

made on or before the 8th of each month to the address designated by Bluitt.

Id. at 148. She also stated:


        WFG issued Check #55818 to Bluitt on July 5, 2016, and it was
        cashed July 8, 2016. Believing that check had been voided,
        WFG reissued the July 5, 2016 payment via Check #57145 on
        October 11, 2016. That check was cashed in addition to
        October’s routine NCA payment, which was paid via Check
        #4960212 on September 30, 2016. However, because Bluitt’s
        July 5, 2016 [check] was cashed – not voided – Bluitt was
        overpaid for the month of October 2016. See Check #55818, a
        true and accurate copy of which is attached hereto as Exhibit B;
        Check #57145, a true and accurate copy of which is attached
        hereto as Exhibit C; and Check #4960212, a true and accurate
        copy of which is attached hereto as Exhibit D.


Id. at 149. She stated that “Bluitt’s NCA payments for March and April 2017,

and every other NCA payment since October 2016, were therefore made

approximately a month early.” Id. at 150. Patel asserted that, “[d]espite only

being owed seventy-two monthly payments of $2,083.33 for a total of
Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 4 of 12
      $149,999.76 at this juncture, Bluitt had actually received seventy-three monthly

      payments of $2,083.33 for total of $152,083.09.” Id. at 149. She also asserted

      that Bluitt accepted and cashed the March 10, 2017 NCA payment which

      included the $2,083.33 NCA payment and a $300 car allowance payment

      covering the February 18, 2017 to March 3, 2017 time frame.


[6]   On October 19, 2017, Plaintiffs filed a Motion to Strike Affirmation of Mansi

      Patel in Reply to Defendants’ Cross-Motion for Partial Summary Judgment and

      attached an affidavit of Bluitt. On October 30, 2017, Defendants filed a

      Combined Motion to Strike and Response in Opposition to Plaintiffs’ Motion

      to Strike Affirmation of Mansi Patel and Affidavit of Bluitt alleging in part that

      Bluitt’s Affidavit in Reply to Defendants’ cross-motion for partial summary

      judgment was untimely. The trial court denied the motion on December 19,

      2017.


[7]   On December 28, 2017, Plaintiffs filed a supplemental response to Defendants’

      cross-motion for partial summary judgment and designated another affidavit of

      Bluitt in which he stated that he was not overpaid or paid twice for the month

      of October 2016 and attached bank statements for Bluitt’s account. On January

      10, 2018, Defendants filed a Combined Motion to Strike and Response in

      Opposition to Plaintiffs’ Motion to Strike Affirmation of Mansi Patel and

      Affidavit of Bluitt.


[8]   On January 18, 2018, the trial court held a hearing. Plaintiffs’ counsel

      commented on the check SCI allegedly re-issued in October and stated that it


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 5 of 12
      was incredulous to think that a New York Stock Exchange company would not

      have looked at their books for four months. With respect to the checks

      designated by Defendants, Plaintiffs’ counsel stated:


              Now, [Defendants’ counsel] points out that . . . my client
              endorsed the check in October. Well – Mr. Bluitt has been
              endorsing checks on the non-compete since 2011. Heh . . . so
              they could take any check that they could show the front side of
              the check, and they can get the . . . back side of any check that
              Mr. Bluitt has signed, and they could say, “Here’s the back of the
              check. He signed it.” We don’t know that that check,
              supposedly . . . and the signature is associated with that check.


      Transcript Volume II at 30.


[9]   On January 25, 2018, the court granted Plaintiffs’ motion for partial summary

      judgment on Count V. Specifically, the court’s order states:


              Comes now the Plaintiffs, Bluitt & Son by Nathan L. Bluitt, Jr.,
              Inc, a/k/a Bluitt & Sons by Nathan L. Bluitt, Jr[.] and Nathan L.
              Bluitt, Jr., by counsel, and having filed Plaintiffs’ Motion for
              Partial Summary Judgment on Count V of the Amended
              Complaint and subsequent pleadings, and Defendants having
              filed their Cross Motion for Partial Summary Judgment and
              subsequent pleadings, and the Court having heard oral argument
              on said Motions on January 18, 2018, and being duly advised in
              the premises now enters the following order:


              ORDERED that Plaintiffs be and are hereby granted Summary
              Judgment on Count V of the Amended Complaint.


      Appellants’ Appendix Volume II at 23 (some capitalization omitted).


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 6 of 12
[10]   Inexplicably, that same day, in conflict with the above order, the trial court

       granted Defendants’ motion for partial summary judgment. Specifically, the

       order states:


               The Court GRANTS Defendants’ Motion to Strike Plaintiffs’
               Supplemental Response to Defendants’ Cross-Motions for
               Summary Judgment. Indiana law is well-settled that this Court
               cannot consider this late-filed summary judgment submission.
               HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008).
               However, even if the Court considers the statements that do not
               contradict Mr. Bluitt’s prior affidavits and are statements of fact
               not law in the Supplemental Affidavit, Plaintiffs have not shown
               a genuine issue of material fact on the cross-motions for
               summary judgment. The Court did not consider conclusions of
               law or contradictory facts contained in that [sic] Mr. Bluitt’s
               Supplemental Affidavit when ruling on summary judgment, as
               those statements are not admissible evidence. The Court also
               declines to consider the legal arguments in Mr. Bluitt’s
               Supplemental Affidavit or enter the proposed orders submitted by
               Plaintiffs based on those arguments regarding striking all or
               portions of the non-competition agreement as unreasonable
               restraints or restrictions. Those issues are not properly before the
               Court on a motion and the record does not allow the Court to
               rule on those issues at this time.

               No genuine issues of material fact exist on the parties’ cross-
               motions for summary judgment on Count V of the Amended
               Complaint. Defendants have established that they made an extra
               payment to Mr. Bluitt in October 2016; therefore, none of the
               payments to Mr. Bluitt pursuant to his non-competition
               agreement were late, and the non-competition agreement was not
               breached. Because the Court finds that Defendants established
               they did not breach the noncompetition agreement, it is not
               necessary for the Court to consider the issues of whether a few
               day [sic] delay in payments would be material or whether waiver


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 7 of 12
               or estoppel would apply due to Mr. Bluitt’s acceptance of the
               alleged late-payments.

               The Court hereby GRANTS Defendants’ Cross-Motion for
               Partial Summary Judgment and DENIES Plaintiffs’ Motion for
               Partial Summary Judgment on Count V of the Amended
               Complaint.

               IT IS HEREBY ORDERED that Judgment is entered in favor of
               Defendants and against Plaintiffs on Count V of Plaintiffs’
               Amended Complaint because Defendants did not breach the
               non-competition agreement and Mr. Bluitt remains bound to the
               parties’ non-competition agreement.


       Appellants’ Appendix Volume IV at 158-159.


[11]   On January 26, 2018, Defendants filed a Motion Seeking Clarification or,

       Alternatively, Reconsideration of Court’s Orders on Parties’ Cross-Motions for

       Partial Summary Judgment. Plaintiffs also filed a motion seeking clarification.


[12]   On March 5, 2018, the court entered an order confirming the judgment in favor

       of Plaintiffs on Plaintiffs’ motion for partial summary judgment and vacated the

       January 25, 2018 order granting Defendants’ cross-motion for partial summary

       judgment. On May 11, 2018, this Court granted Defendants’ motion to accept

       jurisdiction of an interlocutory appeal.


                                                   Discussion

[13]   Before addressing the issues raised by Defendants, we note that Plaintiffs did

       not file an appellees’ brief. When an appellee fails to submit a brief, we do not

       undertake the burden of developing arguments, and we apply a less stringent


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 8 of 12
       standard of review; that is, we may reverse if the appellant establishes prima facie

       error. Zoller v. Zoller, 858 N.E.2d 124, 126 (Ind. Ct. App. 2006). This rule was

       established so that we might be relieved of the burden of controverting the

       arguments advanced in favor of reversal where that burden properly rests with

       the appellee. Wright v. Wright, 782 N.E.2d 363, 366 (Ind. Ct. App. 2002).

       Questions of law are still reviewed de novo. McClure v. Cooper, 893 N.E.2d 337,

       339 (Ind. Ct. App. 2008).


[14]   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 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. 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 | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 9 of 12
[15]   Defendants argue that summary judgment in favor of Plaintiffs was improper

       because a genuine issue of material fact exists as to whether they materially

       breached the NCA. They assert that they designated evidence disputing Bluitt’s

       claim that he received late NCA payments. They assert that, even if the

       payments had been late, a question of fact exists as to whether that constitutes a

       material breach. Defendants also contend that a question of fact exists as to

       whether Bluitt waived the right to declare a breach or is estopped from

       declaring a breach.


[16]   As detailed above, Bluitt’s affidavit and Patel’s affirmation as well as the copies

       of the checks and bank statements present a factual issue as to whether

       Defendants made the required NCA payments.1 To the extent Defendants

       assert that, even if the payments had been late, a question of fact exists as to

       whether that constitutes a material breach, we have previously observed that an

       injured party is not discharged from the party’s duty to perform unless the

       breach is material. See Frazier v. Mellowitz, 804 N.E.2d 796, 803 (Ind. Ct. App.

       2004) (“[U]nder the Restatement (Second) of Contracts, an injured party is not

       discharged from his duty to perform unless (1) the breach is material, and (2) it

       is too late for performance or an offer to perform to occur.”). The Indiana




       1
         Defendants assert that a question of fact is highlighted by Plaintiffs’ evidence designated in reply and note
       that some of Plaintiffs’ designated evidence was submitted a day after the deadline for doing so expired.
       Defendants assert that, “[a]lthough not the subject of this appeal, the trial court erred to the extent that it
       considered Bluitt’s motion to strike, or treated the affidavit as having evidentiary value.” Appellants’ Brief at
       21 n.4. Even assuming that all the designated evidence presented by Plaintiffs was properly considered, we
       cannot say that Plaintiffs demonstrated the absence of a question of fact.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018                   Page 10 of 12
Supreme Court has held that “[w]hether a breach is material is generally a

question of fact to be decided by the trier of fact.” State v. Int’l Bus. Machines

Corp., 51 N.E.3d 150, 158 (Ind. 2016) (quoting Collins v. McKinney, 871 N.E.2d

363, 375 (Ind. Ct. App. 2007) (citing Goff v. Graham, 159 Ind. App. 324, 306

N.E.2d 758, 765 (1974))). The Court held that “[a] material breach is often

described as one that goes to the ‘heart of the contract.’” Id. at 158-159 (citing

Collins, 871 N.E.2d at 370). The Indiana Supreme Court has stated:


        Under the common law, when determining whether a breach is
        material, Indiana courts generally apply the factors articulated in
        the Restatement (Second) of Contracts § 241 (1981):

                (a) the extent to which the injured party will be deprived of
                the benefit which he reasonably expected;

                (b) the extent to which the injured party can be adequately
                compensated for the part of that benefit of which he will be
                deprived;

                (c) the extent to which the party failing to perform or to
                offer to perform will suffer forfeiture;

                (d) the likelihood that the party failing to perform or to
                offer to perform will cure his failure, taking account of all
                the circumstances including any reasonable assurances;

                (e) the extent to which the behavior of the party failing to
                perform or to offer to perform comports with standards of
                good faith and fair dealing.


Id. at 160 (citing Collins, 871 N.E.2d at 375 (citing Frazier, 804 N.E.2d at 803)).

In light of the designated evidence, we conclude that whether any breach was

material and thus excused Bluitt from performing his obligations is a question

Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018   Page 11 of 12
       of fact inappropriate for summary judgment. See W. Am. Ins. Co. v. Cates, 865

       N.E.2d 1016, 1022 (Ind. Ct. App. 2007) (“Whether West Am’s delay was

       unreasonable . . . and a material breach of the contract is a question of fact.

       Material questions of fact are not appropriate for resolution by summary

       judgment. Accordingly, we conclude that the trial court appropriately denied

       West Am’s motion for summary judgment because there was a material issue of

       fact regarding whether West Am materially breached its contract with the Cates

       family in failing to pay under the terms of the insurance policy.”) (citations

       omitted), trans. denied. 2


                                                   Conclusion

[17]   For the foregoing reasons, we reverse the trial court’s grant of Plaintiffs’ motion

       for partial summary judgment and remand for proceedings consistent with this

       opinion.


[18]   Reversed and remanded.


       Bailey, J., and Bradford, J., concur.




       2
        Because we reverse and remand on this basis, we need not address Defendants’ arguments regarding waiver
       and estoppel.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-819 | December 31, 2018           Page 12 of 12
