                                                                          FILED
                                                                      Oct 26 2018, 7:37 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jon Orlosky                                                Stephen J. Peters
Muncie, Indiana                                            David I. Rubin
                                                           Pamela A. Paige
                                                           Plunkett Cooney, P.C.
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

M Jewell, LLC,                                             October 26, 2018
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-MI-36
        v.                                                 Appeal from the Grant Superior
                                                           Court
Roger Bainbridge, in his capacity                          The Honorable Marianne L.
as Grant County Auditor; Sarah                             Vorhees, Special Judge
A. Melford, in her capacity as                             Trial Court Cause No.
County Treasurer; John Lawson,                             27D01-1409-MI-141
in his capacity as a Grant
County Commissioner; Mark E.
Bardsley, in his capacity as a
Grant County Commissioner;
SRI, Incorporated,
Appellees-Defendants.



Tavitas, Judge.

Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018                             Page 1 of 14
                                              Case Summary
[1]   M Jewell, LLC (“M Jewell”) appeals the trial court’s grant of summary

      judgment to SRI, Incorporated (“SRI”). We affirm.


                                                       Issue
[2]   M Jewell raises one issue, which we restate as whether the trial court properly

      granted summary judgment to SRI on M Jewell’s third-party beneficiary claim.


                                                       Facts
[3]   This case is about whether the purchasers of real estate in a tax sale are third-

      party beneficiaries of contracts between SRI and Grant County. In 1994, Grant

      County, Indiana, entered into a Services Master Agreement (“SMA”) with SRI.

      In 2010, Grant County and SRI entered into a Tax Sale Support Services

      Addendum to the SMA (“Addendum”) and a 2010 Tax Sale Workplan—Grant

      County (“Workplan”) (collectively, “Agreements”). Under the Agreements,

      SRI agreed to perform certain services related to tax sales in Grant County,

      including the preparation and mailing of notices to property owners with

      delinquent property taxes.


[4]   Farmers Mutual Insurance Company of Grant & Blackford Counties (“Farmers

      Mutual”) owned property in Grant County. Farmers Mutual failed to update

      its mailing address with the Grant County auditor or treasurer, and Farmers

      Mutual accumulated delinquent property taxes. Farmers Mutual’s real estate

      was placed on a list of properties to be sold at tax sale on September 23, 2010,

      and SRI sent the notices of tax sale. Because of the erroneous address in the
      Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018         Page 2 of 14
      records, the notices were returned unclaimed. Neither SRI nor the auditor’s

      office made any further attempt to notify Farmers Mutual of the tax sale or to

      locate a more accurate address.


[5]   On September 23, 2010, M Jewell purchased the real estate at a tax sale in

      Grant County for $5,508.98. M Jewell later filed a petition for an order

      directing the auditor of Grant County to issue a tax deed, which the trial court

      granted. A tax deed was issued to M Jewell in December 2011. On February

      27, 2012, Farmers Mutual filed a petition to set aside the tax deed and a motion

      for leave to pay funds into the court in the sum of $6,985.33 for the delinquent

      property taxes and interest. The trial court granted the motion for leave to pay

      funds into the court. The trial court, however, later denied Farmers Mutual’s

      motion to set aside the tax deed.


[6]   Farmers Mutual appealed the trial court’s order. On appeal, this court

      concluded that the trial court erred by denying the motion to set aside the tax

      deed. See Farmers Mut. Ins. Co. of Grant & Blackford Ctys. v. M Jewell, LLC, 992

      N.E.2d 751 (Ind. Ct. App. 2013), trans. denied. We noted that, under the statute

      in effect at the time, the auditor was statutorily required to research its records

      to determine a more complete or accurate address if both notices are returned

      due to incorrect or insufficient addresses. Id. at 756 (citing Ind. Code § 6-1.1-

      24-4). Because the auditor and SRI failed to perform the additional research,

      we concluded that the statutory notices were not in substantial compliance and

      the tax deed was void. Id. at 759-60. We directed the trial court to grant



      Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018          Page 3 of 14
      Farmers Mutual’s petition to set aside the tax deed. M Jewell was reimbursed

      $6,997.50 as the statutory refund payment for the real estate.


[7]   In September 2014, M Jewell filed a complaint against Roger Bainbridge, in his

      capacity as Grant County Auditor; Sarah Melford, in her capacity as Grant

      County Treasurer; John Lawson, in his capacity as a Grant County

      Commissioner; Michael Burton, in his capacity as a Grant County

      Commissioner, (collectively, “Grant County”); and SRI. M Jewell alleged in

      Count I that Grant County was negligent in conducting the tax sale and that M

      Jewell had been damaged. In Count II, M Jewell alleged that it, as the

      purchaser of real estate in a tax sale, was a third-party beneficiary of Grant

      County’s contracts with SRI and that M Jewell had suffered damages of

      $784,000.00. 1


[8]   Grant County filed a motion for summary judgment, and M Jewell filed a

      motion to dismiss Grant County as a defendant with prejudice. The trial court

      granted M Jewell’s request and dismissed M Jewell’s claims against Grant

      County with prejudice.


[9]   SRI also filed a motion for summary judgment regarding M Jewell’s third-party

      beneficiary claim. SRI argued that M Jewell’s claims failed as a matter of law

      because M Jewell was not a third-party beneficiary of the contracts. SRI also




      1
       The alleged damages were based on “a potential sale price of the property of $7,000.00 per acre” for 112.30
      acres. Appellee’s App. Vol. II p. 40.

      Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018                               Page 4 of 14
       argued that, even if M Jewell was a third-party beneficiary of the contracts, the

       SMA’s terms precluded the damages sought by M Jewell. Finally, SRI argued

       that M Jewell had already received the statutory refund of the purchase price at

       the tax sale plus interest and that M Jewell was not entitled to a “windfall.”

       Appellant’s App. Vol. II p. 120. M Jewell filed its response to SRI’s motion for

       summary judgment. At a hearing on the motion for summary judgment, SRI

       and M Jewell agreed that the issue was a matter of law appropriate for

       summary judgment.


[10]   The trial court granted SRI’s motion for summary judgment. Regarding the

       third-party beneficiary claim, the trial court found that, based on the language

       in the Agreements, “the intent is for SRI to provide the notices and the work

       necessary to hold the tax sale, to conduct the tax sale, and then to advise

       property owners that their property was sold in a tax sale and how to redeem

       it.” Id. at 21-22. The trial court did not find “any language that evidences an

       intent to benefit tax sale purchasers, directly or indirectly.” Id. at 22. The trial

       court noted that the “only intended beneficiaries of the SMA are Grant County

       and SRI” and that “[a]ny potential profit to a tax sale purchaser such as M

       Jewell is at best incidental to the performance of the SMA.” Id. The trial court

       found, accordingly, that M Jewell was not a third-party beneficiary of the SMA.


[11]   The trial court also found that, even if M Jewell qualified as a third-party

       beneficiary, M Jewell’s claimed damages were precluded by the “SMA’s

       limitation of liability provision.” Id. at 24. Finally, the trial court also

       determined that M Jewell’s remedy is wholly statutory, that Indiana Code

       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018              Page 5 of 14
       Section 6-1.1-24-4 “does not provide a private cause of action for M Jewell,”

       and that “Grant County has made M Jewell whole by refunding to M Jewell

       the amount it bid for the tax sale purchase (plus interest).” Id. at 23, 25. The

       trial court, accordingly, granted SRI’s motion for summary judgment. M

       Jewell now appeals.


                                                     Analysis
[12]   M Jewell appeals the trial court’s grant of summary judgment to SRI.

       Summary judgment is appropriate only when the moving party shows there are

       no genuine issues of material fact for trial and the moving party is entitled to

       judgment as a matter of law. Erie Indem. Co. for Subscribers at Erie Ins. Exch. v.

       Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g denied; see also

       Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the non-

       moving party to rebut. Schoettmer v. Wright, 992 N.E.2d 702, 705-06 (Ind.

       2013). When ruling on the motion, the trial court construes all evidence and

       resolves all doubts in favor of the non-moving party. Id. at 706. We review the

       trial court’s ruling on a motion for summary judgment de novo, and we take

       “care to ensure that no party is denied his day in court.” Id. “We limit our

       review to the materials designated at the trial level.” Gunderson v. State, Indiana

       Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018).


[13]   M Jewell and SRI agreed below that there are no genuine issues of material fact

       in this case. Rather, the issue is whether SRI is entitled to judgment as a matter

       of law on M Jewell’s third-party beneficiary claim.


       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018            Page 6 of 14
[14]   M Jewell first argues that the trial court erred when it determined M Jewell was

       not a third-party beneficiary to Grant County’s Agreements with SRI.

       “Generally, only parties to a contract or those in privity with the parties have

       rights under the contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-

       15 (Ind. 1996).


               One not a party to an agreement may nonetheless enforce it by
               demonstrating that the parties intended to protect him under the
               agreement by the imposition of a duty in his favor. To be
               enforceable, it must clearly appear that it was the purpose or a
               purpose of the contract to impose an obligation on one of the
               contracting parties in favor of the third party. It is not enough
               that performance of the contract would be of benefit to the third
               party. It must appear that it was the intention of one of the
               parties to require performance of some part of it in favor of such
               third party and for his benefit, and that the other party to the
               agreement intended to assume the obligation thus imposed.


       Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App.

       1990), reh’g denied, trans. denied).


[15]   “The intent of the contracting parties to bestow rights upon a third party ‘must

       affirmatively appear from the language of the instrument when properly

       interpreted and construed.’” Id. (quoting Freigy v. Gargaro Co., 223 Ind. 342,

       349, 60 N.E.2d 288, 291 (1945)). “However, it is not necessary that the intent

       to benefit a third party be demonstrated any more clearly than the parties’ intent

       regarding any other terms of the contract.” Id. (citing Nash Eng’g Co. v. Marcy

       Realty Corp., 222 Ind. 396, 416-17, 54 N.E.2d 263, 271 (1944)). “The intent

       necessary to the third-party’s right to sue is not a desire or purpose to confer a

       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018            Page 7 of 14
       particular benefit upon the third-party nor a desire to advance his interest or

       promote his welfare, but an intent that the promising party or parties shall

       assume a direct obligation to him.” Centennial Mortg., Inc. v. Blumenfeld, 745

       N.E.2d 268, 276 (Ind. Ct. App. 2001). We must read the contract as a whole

       when trying to ascertain the parties’ intent. OEC-Diasonics, Inc., 674 N.E.2d at

       1315. We accept an interpretation of a contract that harmonizes its provisions.

       Id.


[16]   Our supreme court last engaged in a significant analysis of third-party

       beneficiary claims in Cain v. Griffin, 849 N.E.2d 507 (Ind. 2006). In Cain, a

       customer slipped and fell in a restaurant parking lot. The customer brought a

       claim against the restaurant owners and their insurer. The trial court granted

       the insurer’s motion for summary judgment.


[17]   On appeal, our supreme court addressed the customer’s claim that she was a

       third-party beneficiary to the medical payments coverage portion of the

       insurance policy. 2 The court concluded:




       2
           The court analyzed the relevant part of the policy, which provided:

               COVERAGE C. MEDICAL PAYMENTS
                 1.       Insuring Agreement.
                          a.       We will pay medical expenses as described below for “bodily injury” caused
                                   by an accident:
                                   (1)      On premises you own or rent;
                                   (2)      On ways next to premises you own or rent; or
                                   (3)      Because of your operations;
                                   provided that:

       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018                               Page 8 of 14
        It is clear from the language of the contract that the [restaurant
        owners] intended to require [the insurer] to pay medical expenses
        for “bodily injury” to a third party—in this case, [the
        customer]—caused by an accident on the [restaurant owners’]
        premises, “regardless of fault.” It is also clear that [the insurer]
        intended to assume the obligation thus imposed.




                           (1)        The accident takes place in the “coverage territory” and during the
                                      policy period;
                           (2)        The expenses are incurred and reported to us within one year of
                                      the date of the accident; and
                           (3)        The injured person submits to examination, at our expense, by
                                      physicians of our choice as often as we reasonably require.
                      b.        We will make these payments regardless of fault. These payments will not
                                exceed the applicable limit of insurance. We will pay reasonable expenses
                                for:
                           (1)        First aid at the time of an accident;
                           (2)        Necessary medical, surgical, x-ray and dental services, including
                                      prosthetic devices; and
                           (3)        Necessary ambulance, hospital, professional nursing and funeral
                                      services.
                 2.        Exclusions.
                           We will not pay expenses for “bodily injury”:
                           a.         To any insured.
                           b.         To a person hired to do work for or on behalf of any insured or a
                                      tenant of any insured.
                           c.         To a person injured on that part of premises you own or rent that
                                      the person normally occupies.
                           d.         To a person, whether or not an employee of any insured, if benefits
                                      for the “bodily injury” are payable or must be provided under a
                                      workers’ compensation or disability benefit law or similar law.
                           e.         To a person injured while taking part in athletics.
                           f.         Included within the “products-completed operations hazard”.
                           g.         Excluded under Coverage A.
                           h.         Due to war, whether or not declared, or any act or condition
                                      incident to war. War includes civil war, insurrection, rebellion or
                                      revolution.
Cain, 849 N.E.2d at 514-15.

Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018                                    Page 9 of 14
       Cain, 849 N.E.2d at 515. The court, consequently, held that, “as a third-party

       beneficiary,” the customer could sue the insurer “directly to enforce the medical

       payment coverage provision of the contract between” the insurer and the

       restaurant owners. 3 Id.


[18]   Here, Grant County and SRI entered into three agreements: the SMA, the

       Addendum, and the Workplan. In the SMA, the parties agreed that SRI would

       perform certain tasks detailed in an addendum for each “service program.”

       Appellee’s App. p. 47. The SMA also provided in relevant part:


                5. Information To Be Provided By County. The County hereby
                agrees to provide SRI in a timely manner with all reports, data
                and information as requested by SRI and further agrees that SRI
                may rely on all such reports, data and information in performing
                the services set forth herein and in all addenda made a part
                hereof.


                6. Limitation Of Liability. The County hereby agrees that in no
                event shall SRI be liable for any loss of profit or indirect, special,
                incidental or consequential damages as a result of the use by SRI
                of inaccurate, omitted, erroneous, fraudulent, or other
                insufficient information supplied to SRI by the County or its
                agents or employees under this Agreement, or by the actions,
                fault, failure or negligence of any individual not employed by or
                a principal of SRI.




       3
         The court later concluded that, although the customer could sue the insurer as a third-party beneficiary to
       the medical payments coverage of the insurance contract, the insurer did not owe the customer “a duty of
       good-faith dealing” and the customer could not “proceed on a tort claim against [the insurer] for failure to
       deal in good faith.” Cain, 849 N.E.2d at 515.

       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018                                 Page 10 of 14
               7. Right To Contract. SRI and the County each warrant that
               neither its execution and delivery of this Agreement, nor its
               performance of the provisions hereof is, or will constitute, a
               violation on its part of any applicable law or regulation or any
               contract, indenture or other agreement or relationship to which it
               is a party or by which it is bound, and each agrees that it will
               indemnify and save the other harmless from and against any loss,
               costs, liability, damages or expense by reason of any claim which
               may be asserted to the contrary by any third party.


       Id. at 49. The Addendum describes the tax sale support services that SRI

       agreed to perform for Grant County and how SRI would be paid for the

       services. The Workplan went into greater detail regarding the tax sale support

       services SRI agreed to perform.


[19]   In support of M Jewell’s argument that it is a third-party beneficiary, M Jewell

       relies on the indemnity language of the SMA, which provided: “[E]ach agrees

       that it will indemnify and save the other harmless from and against any loss,

       costs, liability, damages or expense by reason of any claim which may be

       asserted to the contrary by any third party.” Id. According to M Jewell, this

       language indicates that Grant County and SRI recognized the possibility of

       third-party liability. M Jewell argues: “If there is no intent to benefit third

       parties, i.e., tax sale purchasers, and thus creates that potential for liability, then

       why is there the need to indemnify for such liability?” Appellant’s Br. p. 11.


[20]   M Jewell seems to be conflating the concepts of a claim against either Grant

       County or SRI by a third party with third-party beneficiaries to a contract. To

       qualify as a third-party beneficiary, M Jewell was required to demonstrate that

       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018           Page 11 of 14
       Grant County and SRI intended to protect tax sale purchasers under the

       agreement. It is not enough that the performance of the contract would be of

       an incidental benefit to tax sale purchasers. The language cited by M Jewell

       merely indicates an intention that the parties indemnify each other; the

       language does not indicate an intention to benefit tax purchasers under the

       Agreements. Unlike in Cain, we find no language in the Agreements expressing

       an intent that Grant County or SRI assume a direct obligation to tax sale

       purchasers.


[21]   None of the Agreements—the SMA, the Addendum, or the Workplan—

       indicate an intent to benefit tax sale purchasers directly or indirectly. We

       conclude the trial court properly found that M Jewell was not a third-party

       beneficiary of the Agreements between Grant County and SRI. See, e.g., Ayres

       v. Indian Heights Volunteer Fire Dep’t, Inc., 493 N.E.2d 1229, 1235 (Ind. 1986)

       (rejecting a third-party beneficiary argument because the “contract entered into

       between the trustee and the fire department was for the benefit of the residents

       of [the township] as a whole” and the “obligation was not particularized as to

       any single resident of the township”); Giles v. Brown Cty. ex rel. its Bd. of Comm’rs,

       868 N.E.2d 478, 480 n.3 (Ind. 2007) (noting that Ayres’s “holding remains intact

       with respect to the contract law third-party beneficiary theory” and holding that

       the “Brown County Board of Commissioners entered into the contract for

       ambulance services with Columbus Regional Hospital for the benefit of Brown

       County as a whole, not for any individual resident of Brown County”). There

       are no genuine issues of material fact, and SRI is entitled to judgment as a


       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018          Page 12 of 14
       matter of law on M Jewell’s third-party beneficiary claim. The trial court

       properly granted SRI’s motion for summary judgment.


[22]   Alternatively, even if M Jewell was a third-party beneficiary, we would still

       conclude that its claim against SRI fails. We agree with the trial court’s

       conclusions that M Jewell’s remedy is statutory and that M Jewell has been

       made whole.


[23]           It is a firmly-settled general rule that a purchaser at a tax sale
               buys at his own risk, and that, if the sale proves ineffectual, he
               cannot, in the absence of an express statute, recover from the
               county the money paid by him. The payment is regarded as a
               voluntary one, and he assumes all risks; for, as in judicial sales,
               there is no warranty in tax sales. Where an action is brought to
               recover money paid on the purchase of property at a sale, the
               party asking that it be refunded must show a statute providing
               that it shall be paid back to him.


       State ex rel. McKenzie v. Casteel, 110 Ind. 174, 11 N.E. 219, 222 (1887). “The

       remedy for purchasers at invalid tax sales or holders of invalid tax deeds is

       wholly statutory.” Stephenson v. Martin, 84 Ind. 160, 161 (1882). Indiana Code

       Chapter 6-1.1-25 details the refund procedure where a tax sale is declared

       invalid. See Ind. Code § 6-1.1-25-11 (discussing refunds where a tax sale is

       declared invalid after the issuance of a tax deed); Ind. Code § 6-1.1-25-10

       (discussing refunds where a tax sale is declared invalid before the issuance of a

       tax deed).


[24]   It is undisputed that M Jewell received $6,997.50 as the statutory refund

       payment for the real estate. See Appellant’s Br. p. 13 (conceding that “M Jewell

       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018             Page 13 of 14
       did receive funds based on the sale being invalidated pursuant to Ind. Code 6-

       1.1-25-11 from the county”). Despite this payment, M Jewell claims that it is

       entitled to alleged lost profits in the amount of $784,000.00. M Jewell presents

       no statutory or common law authority that it is entitled to lost profits rather

       than the statutory refund amount. M Jewell’s proposed damages would create

       a substantial windfall, and we have held that “the award of damages should not

       create a windfall for the injured party.” Warrick Cty. v. Waste Mgmt. of Evansville,

       732 N.E.2d 1255, 1260 (Ind. Ct. App. 2000). M Jewell received the statutory

       refund of damages. We conclude that, even if M Jewell was a third-party

       beneficiary of the Agreements between Grant County and SRI, M Jewell has

       been fully compensated by its receipt of the statutory refund. Again, there are

       no genuine issues of material fact, and SRI is entitled to judgment as a matter of

       law on M Jewell’s damages claim. The trial court properly granted SRI’s

       motion for summary judgment.


                                                   Conclusion
[25]   M Jewell is not a third-party beneficiary to the Agreements between Grant

       County and SRI. Even if M Jewell was a third-party beneficiary, M Jewell has

       received the statutory compensation to which it is entitled. The trial court

       properly granted SRI’s motion for summary judgment. We affirm.


[26]   Affirmed.


       Brown, J., and Altice, J., concur.



       Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018        Page 14 of 14
