MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jun 13 2018, 10:27 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Daniel J. Paul
Williams Barrett & Wilkowski, LLP
Greenwood, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA


Walbert W. Ferguson,                                     June 13, 2018

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1709-PL-2164
        v.                                               Appeal from the Marion Superior
                                                         Court
Teresa Green,                                            The Honorable James B. Osborn,
                                                         Judge
Appellee-Plaintiff.
                                                         Trial Court Cause No.
                                                         49D14-1509-PL-32351



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018             Page 1 of 14
                                             Case Summary
[1]   Walbert Ferguson appeals the trial court’s grant of summary judgment in favor

      of Teresa Green and the denial of his motion for summary judgment. We

      affirm in part, reverse in part, and remand.


                                                     Issue
[2]   The restated issue before us is whether the trial court properly granted summary

      judgment to Green and denied it to Ferguson in a breach of contract action

      between the parties.


                                                     Facts
[3]   Ferguson, who owned a trucking company, was involved in a romantic

      relationship with Green from the fall of 2010 to May 2012. During that time,

      Ferguson agreed to help Green enter the trucking business by purchasing a

      Peterbilt truck with a loan from Bank of the Ozarks and a Great Dane trailer

      with a loan from ACG Financing; in turn, Green was allowed to use the truck

      and trailer. She also apparently made some payments toward the loans used to

      purchase the truck and trailer.


[4]   On June 3, 2012, at the end of the parties’ relationship, they entered into a

      contract for Green to buy the truck and trailer from Ferguson. The loans from

      Bank of the Ozarks and ACG for the truck and trailer were not yet paid off, nor

      were they explicitly mentioned in the contract. An attorney for Green wrote

      and printed a contract, which Green then presented to Ferguson without the

      attorney present. In paragraph one of the contract, the truck and trailer were
      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 2 of 14
      identified by VIN. Next to the VIN for the truck, Ferguson handwrote “36 x

      1507.00,” and next to the VIN for the trailer he wrote “48 x 804.00.” App. Vol.

      II p. 7. Paragraph two of the contract provided:


              PURCHASE PRICE. Buyer agrees to continue to pay Seller one
              thousand five hundred seven dollars ($1,507.00) per month for
              the truck, listed in 1(a) above, by cashier’s check, due on the
              seventh (7th) of each month, until such time as the balance of
              approximately forty four thousand dollars ($44,000.00) is paid in
              full, at which time Seller will transfer title of the truck to Buyer.


                     Buyer agrees to continue to pay Seller eight hundred four
              dollars ($804.00) per month for the refrigerated trailer, listed in
              1(b) above, by cashier’s check, due on the twenty fifth (25th) of
              each month, until such time as the balance of approximately
              twenty seven thousand dollars ($27,000.00) is paid in full, at
              which time Seller will transfer title of the refrigerated trailer to
              Buyer.


      Id. at 7-8. The strikethroughs of the numerals in paragraph two were done by

      Ferguson. Ferguson would later say that he had scratched out the numerals

      because he was not entirely sure what the balance was for the truck and trailer.


[5]   Between March 2012 and February 2014, Green paid $43,788.65 in check or

      electronic fund transfers toward the truck. Through November 2012, Green

      made these payments directly to Ferguson; beginning in June 2013, Green paid

      Bank of the Ozarks directly. There was a gap between November 2012 and

      June 2013 when Green did not make payments toward the truck, except for

      possibly one for $2,600.00, which Ferguson disputes having been made. Green



      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 3 of 14
      also later claimed she paid Ferguson $4,521.00 in cash toward the truck, which

      Ferguson also disputes.


[6]   On March 7, 2014, Bank of the Ozarks wrote Ferguson a letter informing him

      that it had released its lien from the truck and it had no further interest in the

      truck. Green thereafter demanded that Ferguson transfer title to the truck to

      her, but he refused to do so. Up until March 2014, Green had made regular

      payments of $810 monthly toward the trailer in a total amount of $21,060.00,

      with some of those payments having been made before the June 2012 contract.

      However, when Ferguson refused to transfer title to the truck to Green, she

      stopped making payments on the trailer.


[7]   On September 30, 2015, Green sued Ferguson, seeking specific performance to

      compel him to transfer title to the truck to her, as well as damages. Ferguson’s

      answer included a counterclaim that Green had breached the written contract

      as to both the tractor and the trailer by not making payments as required.

      Additionally, Ferguson stated a counterclaim that he and Green had entered

      into an oral contract for Green to reimburse Ferguson for credit card charges

      and other expenses he had incurred on Green’s behalf to help her begin her own

      trucking business; Ferguson later specified that these alleged expenses totaled

      $44,186.89.


[8]   On January 18, 2017, Ferguson filed a motion for summary judgment as to

      Green’s claim against him and his counterclaims against her. After obtaining

      several extensions of time, Green filed her response on May 23, 2017.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 4 of 14
       Although only captioned as a response to Ferguson’s summary judgment

       motion, it also requested “that the Court enter summary judgment in favor of

       Buyer on Seller’s Counterclaims as well as on Buyer’s Complaint as to liability

       and damages . . . .” App. Vol. V p. 8. On June 20, 2017, Ferguson filed a

       motion for an extension of time to respond to Green’s purported cross-motion

       for summary judgment, so he could take Green’s deposition. The trial court

       originally granted this motion. However, upon Green’s motion for

       reconsideration, the trial court reversed itself and denied any extension to

       Ferguson.


[9]    On September 12, 2017, the trial court granted summary judgment in favor of

       Green on her claim that Ferguson breached the written contract by not

       transferring title to the truck to her. It also concluded that Green was excused

       from further performance under the contract—i.e., she did not have to continue

       paying for the trailer—because of Ferguson’s breach of contract. The trial court

       also denied summary judgment for both parties on Ferguson’s counterclaim

       that Green breached an oral contract for repayment of expenses, finding

       genuine issues of material fact existed on that claim.


[10]   Ferguson appealed. On January 11, 2018, Green timely filed a request for an

       extension of time to file an appellee’s brief; this court granted the motion and

       extended the deadline to February 14, 2018. Green did not file a brief by this

       date. On March 20, 2018, Green filed a second motion for an extension of time

       to file a brief. Although this motion was filed after the original extended brief-

       filing deadline and Ferguson opposed any further extension, we exercised our

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 5 of 14
       discretion to allow an additional period of time for Green to file a brief, until

       May 4, 2018. Still, Green has not filed a brief. 1 We now proceed to decide this

       appeal.


                                                       Analysis
[11]   As noted, Green has not filed an appellee’s brief. In such a case, we will not

       develop an argument on behalf of the appellee and may reverse if the appellant

       can demonstrate prima facie error. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind.

       Ct. App. 2017). Prima facie error is error at first sight, on first appearance, or

       on the face of it. Id. This less stringent standard of review does not relieve us of

       our obligation to correctly apply the law to the facts in the record to determine

       whether reversal is required. Id.


[12]   We review a summary judgment ruling de novo. Hughley v. State, 15 N.E.3d

       1000, 1003 (Ind. 2014). “Drawing all reasonable inferences in favor of . . . 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.’” Williams v. Tharp,

       914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). “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




       1
         After reviewing the multiple requests by Green’s counsel for extensions of time in the trial court as well as
       this court, we must express our concern over counsel’s inability to meet deadlines, and we advise him to be
       more diligent in the future.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018                Page 6 of 14
       the truth, or if the undisputed material facts support conflicting reasonable

       inferences.” Id.


[13]   A party seeking summary judgment in Indiana must “affirmatively negate” the

       opposing party’s claim. Hughley, 15 N.E.3d at 1003. “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.” Id. at 1004. A

       party’s self-serving, sworn affidavit is sufficient to defeat summary judgment,

       even if it appears that party is unlikely to be successful at trial. Id. at 1005.


                                             A. Written Contract

[14]   We first address whether the trial court correctly entered summary judgment in

       Green’s favor on her breach of contract claim against Ferguson for failing to

       transfer the truck title to her. When, as here, a trial court has entered summary

       judgment in a contract dispute, it necessarily has determined either that: 1) the

       contract is not ambiguous or uncertain as a matter of law and the trial court

       need only apply the terms of the contract; or 2) the contract is ambiguous, but

       the ambiguity may be resolved without the aid of factual determinations.

       Jenkins v. South Bend Cmty. Sch. Corp., 982 N.E.2d 343, 347 (Ind. Ct. App. 2013),

       trans. denied. When interpreting a contract, the primary goal is to determine the

       intent of the parties when they made the agreement. Celadon Trucking Servs., Inc.

       v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App. 2017), trans. denied. Courts must

       examine the plain language of the contract, read it in context and, whenever

       possible, construe it in a way that renders every word, phrase, and term

       meaningful, unambiguous, and harmonious with the whole. Id. “Construction
       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 7 of 14
       of the terms of a written contract generally is a pure question of law.” Id. If

       contract language is unambiguous, courts may not look to extrinsic evidence to

       expand, vary, or explain the instrument but must determine the parties’ intent

       from the four corners of the instrument. Id.


[15]   If, however, a contract is ambiguous, the parties may introduce extrinsic

       evidence of its meaning, and interpretation generally becomes a question of

       fact. Id. A mere disagreement about the meaning of a contract word or phrase

       does not make it ambiguous; an ambiguity arises only if reasonable people

       could differ as to its meaning. Id. Courts may properly consider all relevant

       evidence to resolve a contract ambiguity and to give effect to the intent of the

       parties when they entered into the contract. Id. Such evidence is evidence

       relating to a contract but not appearing on the face of the contract and may

       include statements between the parties or the circumstances surrounding the

       agreement. Id. “An ambiguous contract should be construed against the party

       who furnished and drafted the agreement.” Id.


[16]   We readily conclude that there is an ambiguity in the contract terms with

       respect to how much Green was expected to pay for the truck and the trailer.

       The original, printed contract prepared by Green’s lawyer stated that Green was

       to pay “approximately” $44,000.00 for the truck and $27,000.00 for the trailer.

       App. Vol. II pp. 7-8. However, above this part of the contract, next to where

       the truck and trailer were identified by VIN, Ferguson wrote in for the truck “36

       x 1507.00,” and “48 x 804.00” for the trailer. Id. at 7. Thirty-six times

       $1,507.00 equals $54,252.00, and forty-eight times $804 is $38,592.00.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 8 of 14
       Ferguson asserts that Green actually was expected to pay closer to $54,252.00

       for the truck and $38,592.00 for the trailer and, therefore, he was not required to

       sign over the title to the truck when Green had paid only approximately

       $44,000.00 for the truck.


[17]   It is unclear whether the trial court believed the contract was unambiguous, or if

       it believed it was ambiguous but no weighing of evidence was required to

       determine the intent of the parties. The contract and designated evidence,

       however, demonstrates both that the contract is ambiguous and that weighing

       of evidence—i.e., comparison of what Ferguson and Green each thought the

       contract meant—is necessary to resolve that ambiguity. On its face, the

       contract makes no express reference to the outstanding loans for the truck and

       trailer, which Green asserted was all she had to pay. Evidence related to those

       loans is extrinsic to the contract, but no documentary evidence was designated

       regarding the loans, such as their terms and their outstanding balances when the

       contract was executed. There was no language in the contract specifying that

       either lender’s release of its lien against the truck or trailer would trigger

       Ferguson’s obligation to transfer title to Green. And, rather than repaying the

       loans directly to the Bank of the Ozarks and ACG, the contract specified that

       Green was to pay Ferguson. This language—along with saying that Green had

       to pay “approximately” $44,000.00 for the truck and $27,000.00 for the

       trailer—leaves open the possibility that Green was expected to pay more to

       Ferguson than what was merely outstanding on the loans. The trial court

       improperly concluded that there were no genuine issues of material fact and


       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 9 of 14
       that Green was entitled to judgment as a matter of law—and title to the truck—

       because of the ambiguous contract language and her payment of significantly

       less than $54,252.00 toward the truck.


[18]   That said, we also reject Ferguson’s argument that he was entitled to summary

       judgment against Green on this claim. The contractual ambiguities and

       questions of fact cut both ways. Although Ferguson contends that we should

       construe the contract against Green because her attorney drafted the original,

       printed version of it, that rule does not apply here because it was Ferguson’s

       handwritten additions to the contract that created or at least greatly contributed

       to the ambiguities.


[19]   Ferguson also contends that, even if a court accepts Green’s interpretation of

       the contract—that she only had to pay approximately $44,000.00 for the

       truck—she breached the contract based on the clear provision that she was to

       pay $1,507.00 per month toward the truck. Putting aside questions of fact as to

       some payments Green claimed she made that Ferguson claimed were not

       actually made, it is undisputed that there was a period of several months

       between November 2012 and June 2013 when Green was not making regular

       monthly payments for the truck. Even if this did constitute a breach of

       contract, however, it does not automatically mean Ferguson had an actionable

       breach of contract claim or was entitled to breach the contract himself. To

       sustain a breach of contract action, a party must prove the existence of a

       contract, a defendant’s breach of its terms, and resulting damages. Murat Temple

       Ass’n, Inc. v. Live Nation Worldwide, Inc., 953 N.E.2d 1125, 1128-29 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 10 of 14
       App. 2011), trans. denied. Damages are not presumed merely because there has

       been a breach of contract but must be supported by the evidence and

       ascertainable with reasonable certainty. Dana Companies, LLC v. Chaffee Rentals,

       1 N.E.3d 738, 748 (Ind. Ct. App. 2013), trans. denied. Moreover, if a party to a

       contract consistently makes late payments but the other party consistently

       accepts such payments, does not attempt to strictly enforce the contract, and

       does not show how he or she was damaged by the late payments, that party

       may not later sustain a breach of contract action based on the late payments.

       Unishops, Inc. v. May’s Family Centers, Inc., 399 N.E.2d 760, 766 (Ind. Ct. App.

       1980). The designated evidence does not indicate how Ferguson was damaged

       by Green’s purported breach of contract in missing or belatedly making some

       payments but ultimately paying approximately $44,000.00 toward the truck, if

       indeed that was all that she owed. Ferguson has not established that he is

       entitled to judgment as a matter of law based on those missed or belated

       payments.


[20]   On a final note related to the written contract, Green’s refusal to continue

       paying for the trailer after Ferguson refused to transfer title of the truck to her

       was not necessarily an actionable breach of contract on her part. When a party

       is in material breach of a contract, he or she may not maintain an action against

       the other party or seek to enforce the contract against the other party if that

       party later breaches the contract. Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d

       1042, 1048 (Ind. Ct. App. 2003). If Green’s interpretation of the contract

       ultimately prevails, it would mean Ferguson could not maintain a breach of


       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 11 of 14
       contract action against Green based on her cessation of payments for the trailer

       because it followed Ferguson’s own breach of contract for not transferring the

       truck title to her.


[21]   In sum, the intent of the parties when they executed the final version of the

       written contract, which included Ferguson’s handwritten additions, as well as

       whether Green breached the contract and caused Ferguson damages, must be

       resolved by a fact finder and not by summary judgment.


                                               B. Oral Contract

[22]   We now address Ferguson’s contention that he was entitled to summary

       judgment on his claim that Green breached an oral contract to repay him for

       expenses he purportedly paid to help her establish a trucking business. For an

       oral contract to exist, there must be an offer, acceptance, and consideration, and

       agreement to all terms of the contract. Town of Knightstown v. Wainscott, 70

       N.E.3d 450, 459 (Ind. Ct. App. 2017), trans. denied. “To be valid and

       enforceable, a contract must be reasonably definite and certain.” Id. Whether a

       certain set of undisputed facts establishes a contract is a question of law. City of

       Indianapolis v. Twin Lakes Enterprises, Inc., 568 N.E.2d 1073, 1079 (Ind. Ct. App.

       1991), trans. denied. However, where the existence and not the validity or

       construction of a contract or the terms thereof is at issue, and the evidence is

       conflicting or admits of more than one inference, it is for a fact finder to

       determine whether a contract in fact exists. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 12 of 14
[23]   Here, Ferguson acknowledges that Green designated as evidence a sworn

       affidavit stating in part:


               The only agreement that related to the Truck and Trailer was the
               [written] Contract. There was no secondary agreement, written
               or otherwise, between Buyer and Seller, including, without
               limitation, any agreements that related to repayment of expenses
               and/or credit card charges arising prior to the Contract or after
               the Contract for that matter. Any and all credit charges made by
               Buyer through June of 2012 were made for the benefit of Seller’s
               Business at Seller’s Request. Any and all charges that were
               authorized by Seller for the sole benefit of Buyer were reimbursed
               even though there was never an agreement to make such
               reimbursements. Buyer has no unpaid credit card charges,
               expenses or down payments owing to Seller of any kind or nature
               whatsoever nor by way of any agreement. The sole Agreement
               between the parties is set forth in the [written] Contract.


       App. Vol. V p. 38. Ferguson attempts to discredit Green’s affidavit by claiming

       that it is “self-serving.” Appellant’s Br. p. 25. Even if it is—and we are not sure

       that it is—Indiana law is clear that sworn affidavits regarding a disputed fact are

       sufficient to defeat summary judgment, regardless of whether the affidavit is

       self-serving and minimal. Hughley, 15 N.E.3d at 1003.


[24]   Ferguson also contends that Green’s attorney admitted at the summary

       judgment hearing that Green paid Ferguson $18,000.00 toward certain trucking

       expenses and that this necessarily proves the existence of a contract for Green

       to pay more than that amount. This payment also is explained in Green’s

       affidavit and does not as a matter of law establish that there was an oral

       contract for her to pay anything else. Cf. Perkins v. Owens, 721 N.E.2d 289, 292

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018   Page 13 of 14
       (Ind. Ct. App. 1999) (holding that, for purposes of excepting oral contract for

       sale of real estate from statute of frauds requiring a written contract, partial

       payment is insufficient to constitute partial performance of alleged contract).

       Even if it was part of an agreement of some kind, Green’s payment of

       $18,000.00 does not necessarily establish all the terms of an oral contract

       between Ferguson and Green. Ferguson’s claim regarding an oral contract

       presents a literal “he said/she said” situation that will require sorting out by a

       fact finder and is inappropriate for resolution by summary judgment.


                                                   Conclusion
[25]   This case is laden with questions of fact, both as to the meaning of the

       ambiguous written contract and its performance, and as to the existence of a

       separate oral contract and its performance, if there was one. As such, neither

       party was entitled to summary judgment. We affirm the denial of Ferguson’s

       motion for summary judgment, reverse the grant of summary judgment in favor

       of Green, and remand for further proceedings.2


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


       Vaidik, C.J., and Pyle, J., concur.




       2
        Given our reversal of the grant of summary judgment and remand for further proceedings, we deem it
       unnecessary to address whether the trial court improperly denied Ferguson an extension of time to respond to
       Green’s purported cross-motion for summary judgment.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018          Page 14 of 14
