                                                                         FILED
                                                                     Mar 15 2018, 8:47 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      James M. Gary                                             J. David Agnew
      Weber Rose, P.S.C.                                        George W. Gesenhues, Jr.
      Louisville, Kentucky                                      Lorch Naville Ward LLC
                                                                New Albany, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gerdon Auto Sales, Inc. and                               March 15, 2018
      William L. Gerdon,                                        Court of Appeals Case No.
      Appellants-Plaintiffs,                                    31A01-1708-CT-1859
                                                                Appeal from the Harrison Circuit
              v.                                                Court
                                                                The Honorable John T. Evans,
      John Jones Chrysler Dodge Jeep                            Judge
      Ram, a/k/a John Jones                                     Trial Court Cause No.
      Automotive Group and John                                 31C01-1502-CT-7
      Jones Chrysler City, Inc.,
      Appellees-Defendants.



      Najam, Judge.


                                        Statement of the Case
[1]   Gerdon Auto Sales, Inc. and William L. Gerdon (collectively “Gerdon”)

      appeal the trial court’s grant of summary judgment for John Jones Chrysler

      Dodge Jeep Ram, a/k/a John Jones Automotive Group, and John Jones
      Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018              Page 1 of 19
      Chrysler City, Inc. (collectively “Jones”) on Gerdon’s complaint, which alleged

      that Jones had breached its contract with Gerdon, that it had breached its duty

      of good faith and fair dealing, and that Gerdon had sustained damages from

      those breaches. Gerdon presents six issues for our review, which we restate as

      the following three issues:


              1.       Whether the trial court erred when it granted summary
                       judgment for Jones on Gerdon’s breach of contract claim.

              2.       Whether Gerdon’s claim that Jones breached its duty of
                       good faith and fair dealing was subject to a two-year or
                       ten-year statute of limitations.

              3.       Whether William has standing to enforce the parties’
                       contract.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On September 16, 2011, Gerdon and Jones entered into an Asset Purchase

      Agreement (the “Contract”). Under the Contract, Gerdon agreed to sell and

      Jones agreed to purchase “real estate, new and used vehicles, fixed assets,

      special tools, equipment, fixtures, auto parts[,] and good will.” Appellants’

      App. Vol. II at 21. Among other things, the Contract described the assets to be

      sold, the purchase price of those assets, contingencies, and an obligation that

      Jones employ William.




      Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 2 of 19
[4]   The section of the Contract titled “Purchase and Sale” consisted of five

      subsections and described the assets to be sold and their purchase price. One

      subsection described the real estate and included a purchase price of $800,000.

      Another subsection described the fixed assets, good will, special tools, and

      equipment (“other assets”) and provided for a purchase price of $200,000.


[5]   The Contract contained a section on contingencies, which stated as follows:


              [Jones’] obligation to purchase is contingent upon the following
              conditions being met, or waived, by the Closing Date:


              1. [Gerdon] being able to convey clear and marketable title to
                 the Real Estate, as established by a title insurance
                 commitment.


              2. Obtaining authorization from Chrysler Corporation for the
                 transfer of the subject dealership.


              3. [Jones] being able to obtain conventional commercial
                 financing for this transaction.


              4. [Jones] being able to establish a floor plan arrangement with
                 Ally Financial.


      Id. at 22. The Contract also contained a provision that Jones “shall employ

      William L. Gerdon for twelve (12) months for a monthly salary of Three

      Thousand Dollars ($3,000.00).” Id. at 22-23. William signed the Contract on

      behalf of Gerdon in his official capacity as president of the corporation. He did

      not sign the contract in a personal capacity.


      Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 3 of 19
[6]   Jones sought financing in the amount of $800,000 from First Savings Bank

      sometime shortly after the parties signed the Contract. On or around

      November 29, 2011, the bank determined that it wanted an environmental

      assessment to be done on the real estate. As such, the bank had not approved

      the loan application as of that date.


[7]   The Contract provided for a closing date of December 1, 2011, unless the

      parties “mutually agreed, in writing” to a different date. Id. at 22. On

      December 19, the parties signed an agreement that extended the closing date to

      December 20 “due to circumstances involving Chrysler Corporation’s approval

      of and necessary involvement with” the Contract. Id. at 113. Further, both

      parties believed that it was “in their best interests” to extend the closing date.

      Id. However, the environmental assessment had not yet been completed on the

      real estate and Jones had not yet obtained financing for the loan. Nonetheless,

      on December 19, without Jones having obtained financing for the real property,

      the parties closed on the sale and purchase of the other assets.1


[8]   The environmental assessment report was completed in January 2012. On

      April 3, the bank issued a letter in which it denied Jones’ loan application due

      to environmental issues and the appraised value of the real estate. Jones did not




      1
        In the record on appeal, the parties did not provide any closing documents from the closing on the other
      assets. Neither did the parties provide any other evidence about the events that occurred on December 19.
      As such, it is unclear from the record whether the parties first agreed to extend the closing date from
      December 19 to December 20 and then, sometime thereafter, closed on the other assets on December 19, or,
      whether on December 19 the parties simultaneously closed on the other assets and agreed to extend the
      closing date on the remaining assets.

      Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018                      Page 4 of 19
       attempt to provide the bank with collateral other than the real estate, nor did it

       attempt to obtain a loan from a different financial institution. The parties did

       not close on the real estate.


[9]    On February 13, 2015, Gerdon filed a complaint against Jones in which it

       alleged that Jones had breached the terms of the Contract when it failed to pay

       $800,000 to purchase the real estate and that, as a result of that breach,

       William, individually, was required to spend in excess of $50,000 per month for

       ongoing costs associated with Gerdon’s operation. Gerdon further alleged in its

       complaint that Jones had breached its duty of good faith and fair dealing. In its

       answers, in what amounted to an affirmative defense, Jones asserted that it did

       not breach the Contract because the Contract contained a financing

       contingency and Jones did not obtain financing. It also raised the affirmative

       defense that Gerdon’s claim for breach of the duty of good faith and fair dealing

       was barred by an applicable statute of limitations.


[10]   On January 24, 2017, Jones filed a motion for summary judgment in which it

       reiterated the assertions it had made in its answers that it did not breach the

       Contract because the bank had denied its loan application and that Gerdon’s

       claim that Jones had breached its duty of good faith and fair dealing was barred

       by a two-year statute of limitations. Jones further asserted that William was not

       a party to the Contract and that the complaint did not contain any allegations

       that would confer standing on him to enforce the Contract.




       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018    Page 5 of 19
[11]   In response, Gerdon asserted that there were genuine issues of material fact

       regarding whether Jones had breached the Contract when it failed to purchase

       the real estate and whether it had waived the financing contingency. Gerdon

       also contended that the limitations period for its claim for breach of good faith

       and fair dealing was ten years. In addition, Gerdon asserted that William was a

       third-party beneficiary of the Contract. In support of its opposition to Jones’

       motion for summary judgment, Gerdon designated William’s affidavit in which

       he stated:


               At all times during the negotiations associated with this
               transaction, it was clearly understood and agreed that the
               transaction would involve the sale of the automobile
               franchises . . . and the real estate which was the location of the
               dealership; there was never any discussion or mention that the
               transaction would consist of multiple, or separate transactions or
               agreements for portions or parts of these assets[.]


       Appellants’ App. Vol. II at 103. After two hearings, the trial court entered

       summary judgment for Jones. This appeal ensued.


                                       Discussion and Decision
                                              Standard of Review

[12]   Gerdon contends that the trial court erred when it entered summary judgment

       for Jones. Our standard of review is clear. The Indiana Supreme Court has

       explained that


               [w]e review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in

       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 6 of 19
               favor of . . . the 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 T.R. 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 the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761–62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909–10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

       alterations original to Hughley).


[13]   Here, the trial court entered findings of fact and conclusions thereon in its

       summary judgment order. While such findings and conclusions are not

       required in a summary judgment and do not alter our standard of review, they

       are helpful on appeal for us to understand the reasoning of the trial court. See

       Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). On appeal,


       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 7 of 19
       the parties dispute whether Jones breached the Contract and whether it

       breached its duty of good faith and fair dealing. The parties also dispute

       whether William had standing to enforce the Contract. We address each

       argument in turn.


                                       Issue One: Breach of Contract

[14]   Gerdon first contends that Jones breached the Contract. To prevail on that

       claim, Gerdon must prove the existence of a contract, that Jones breached the

       contract, and damages. Old Nat’l Bank v. Kelly, 31 N.E.3d 522, 531 (Ind. Ct.

       App. 2015), trans. denied. The parties only dispute whether Jones breached the

       Contract. Gerdon contends that Jones breached the Contract when Jones failed

       to purchase the real estate despite not having obtained financing for the real

       estate because, according to Gerdon, Jones waived the financing contingency

       when it purchased the other assets. Jones responds that the Contract was

       severed when it was partially performed and that the financing contingency was

       unaffected by the partial sale and purchase. In other words, whether Jones

       waived the financing contingency and, thus, breached the Contract turns on

       whether the Contract was severable.




       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 8 of 19
                                                    Severability

                                                 Plain Language


[15]   We first address whether the Contract, as drafted, was severable. Gerdon

       contends that the Contract was not severable and that Jones breached the

       Contract when Jones paid $200,000 for the other assets but failed to pay

       $800,000 for the real estate. This court has previously outlined the factors for a

       court to consider in order to determine whether a contract provision is

       severable.


               [W]hether a contract is entire or divisible is controlled by the
               intention of the parties as it is disclosed by the terms of the
               contract. It is well established that the parties to a contract
               intend that it be entire and indivisible when by its terms, nature
               and purposes it contemplates and intends that each and all of its
               parts, material provisions and the consideration, are common
               each to the other and interdependent, or whether it could be
               completed in part only.


       Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 891 (Ind.

       Ct. App. 2002) (quoting Samper v. Ind. Dept. of State Revenue, 106 N.E.2d 797,

       802 (Ind. 1952)).


[16]   Gerdon contends that Jones breached the Contract when it purchased the other

       assets without also purchasing the real estate because “the transaction in

       question was unequivocally a single transaction[.]” Appellants’ Br. at 12.

       Jones counters that the Contract was severable because “the contract contained

       two provisions—severable by terms of the contract itself: a sale of the Real


       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018    Page 9 of 19
       Estate for $800,000 and the sale of [the other assets] for $200,000.”2 Appellees’

       Br. at 17.


[17]   On this question, we must agree with Gerdon. The Contract consistently refers

       to all of the “assets” as a whole, which included the real property, the personal

       property, and the intangible good will. For instance, the Contract states that

       Gerdon desired to sell and Jones “desire[d] to buy the Assets on the terms

       contained in this Agreement[.]” Appellants’ App. Vol. II at 21. Further, it

       states that Jones shall purchase from Gerdon “the assets associated with the

       operation” of the dealership. Id. Additionally, the Contract requires one down

       payment of $50,000 that “shall be applied to the Purchase Price at the closing[.]”

       Id. at 22. (emphasis added). The Contract also references one transaction. For

       example, under the payment clause, the Contract provides direction on how the

       parties would handle the down payment if “this transaction” does not close

       because a contingency was not met. Id. (emphasis added). Finally, the

       Contract as originally drafted provides for a single closing date, which was “a

       date mutually agreeable to the parties, but in no event shall the Closing Date be

       later than December 1, 2011, unless mutually agreed, in writing.” Id.

       (emphasis added). Based on the contract language that refers to the assets as a

       whole, to one down payment that shall be applied to the purchase price, to one




       2
         The Contract does contain a severability provision that states as follows: “This agreement is severable and
       any provision herein held to be violative of any applicable statutes, regulations, or law, shall only affect the
       portion in conflict.” Appellants’ App. Vol. II at 23. However, that clause appears to apply only if a court
       declares that a particular Contract provision violates the law, and Jones does not suggest otherwise on
       appeal, and it does not rely on the severability provision in its argument to this Court.

       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018                          Page 10 of 19
       transaction, and to one closing date, we conclude that the Contract, as

       originally drafted, was not ambiguous with regard to its nonseverability and

       that the parties did not intend for the original Contract to be severable. But our

       inquiry does not end here.


                                          Modification and Severance3

[18]   Although the Contract was nonseverable as originally drafted, we next address

       whether the parties modified the Contract by their conduct.4 While Jones does

       not allege that it explicitly agreed to modify the Contract, it is well settled that

       “[e]ven a contract providing that any modification thereof must be in writing

       may nevertheless be modified orally.” City of Indianapolis v. Twin Lakes Enters.,

       Inc., 568 N.E.2d 1073, 1084-85 (Ind. Ct. App. 1991). Further, the

       “modification of a contract can be implied from the conduct of the parties.”

       Gilliana v. Paniaguas, 708 N.E.2d 895, 897 (Ind. Ct. App. 1999), trans. denied.

       As a general rule, “[q]uestions regarding the modification of a contract are ones

       of fact[.]” Skweres v. Diamond Craft Co., 512 N.E.2d 217, 221 (Ind. Ct. App.

       1987). But, here, as the trial court found, there are no issues of material fact.




       3
         Neither party squarely addresses the question of whether the Contract was modified, but that is the heart of
       the dispute. We will affirm a trial court’s entry of summary judgment if it can be sustained on any theory or
       basis in the record. DiMaggio v. Rosario, 52 N.E.3d 896, 904 (Ind. Ct. App. 2016).
       4
         The Contract contains a provision that states: “This Agreement and all related agreements executed on
       this date represent the entire understanding of the parties and may not be modified except upon written
       agreement executed by [Gerdon] and [Jones].” Appellants’ App. Vol. II at 23.

       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018                       Page 11 of 19
[19]   Since there was no written or other explicit agreement to modify the Contract,

       we must rely on the designated evidence to determine whether, as a matter of

       law, the conduct of the parties supports more than one inference of their intent.

       The intent relevant in contract matters is not the parties’ subjective intents but

       their outward manifestation of it. See Zimmerman v. McColley, 826 N.E.2d 71,

       77 (Ind. Ct. App. 2005). In order to determine a party’s intent, a court does not

       examine the hidden intentions secreted in the heart of a person but should

       examine the final expression of that intent found in conduct. See id.


[20]   Again, typically, where there is no written or otherwise explicit agreement,

       whether the parties have agreed to modify and sever a contract would present a

       question of fact for the trial court. See Heritage Dev. of Ind., Inc., 773 N.E.2d at

       892-93. But, here, it is undisputed that the parties agreed to and did, in fact,

       close on a partial sale and purchase of the assets. As such, they demonstrated

       that the Contract was capable of separate and independent performance with

       regard to the other assets. See id. at 893. And with contracts entire upon their

       face which have been partially performed, the acceptance and use of work, or

       material, or benefits, is treated as implying an agreement to sever and divide the

       contract. See W. Wheeled Scraper Co. v. Scott Constr. Co., 27 N.E.2d 879, 881

       (Ind. 1940). Thus, in this case, where the parties have partially performed the

       Contract and exchanged valuable consideration, the question of modification

       can be resolved as a matter of law based on the conduct of the parties. See

       Heritage Dev. of Ind., Inc., 773 N.E.2d at 892-93.




       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 12 of 19
[21]   While the Contract provided for a single transaction, Gerdon accepted payment

       in exchange for the other assets. The parties closed on some but not all of the

       assets, and for some but not all of the sale price, without any other indication or

       expression of their intent. As such, the parties’ actions manifest an agreement

       to modify and sever the Contract. On this record, without designated evidence

       of a contrary intent, we hold that a partial closing on the other assets

       constituted partial performance of the Contract and that the parties modified

       and severed the Contract by their conduct. See id. Thus, we turn to whether

       Jones waived the financing contingency.


                                                       Waiver

[22]   Gerdon contends that “[n]o party to this lawsuit has ever suggested that the

       transaction in question . . . was constructed or designed as a series of separate

       agreements, each to be completely independent of the others.” Appellants’

       App. Vol. II at 90. Gerdon continues that, “the contract in question is a single,

       indivisible contract which is not susceptible to partial performance.” Id. And

       he concludes that, “[b]y making partial payment under the contract in question,

       [Gerdon] insist[s] that the Defendants have specifically waived the

       contingencies therein.” Id.


[23]   In support of those contentions, Gerdon designated William’s affidavit in which

       he stated that “[a]t all times during the negotiations associated with this

       transaction . . . there was never any discussion or mention that the transaction

       would consist of multiple, or separate transactions or agreements for portions or

       parts of these assets.” Id. at 103. This statement is merely an averment that the
       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 13 of 19
       parties did not discuss severance of the Contract, which is not a matter in

       dispute. Even when viewed in the light most favorable to Gerdon, the

       nonmovant, this contention does not create an issue of material fact.


[24]   The designated evidence does not show that at any time “during the

       negotiations associated with this transaction,” there was any “discussion or

       mention” that Gerdon asked or required Jones to waive the financing

       contingency in order to close on the sale and purchase of the other assets.

       Neither does the evidence show that that Jones offered or agreed to waive the

       financing contingency. “Waiver is the intentional relinquishment of a known

       right.” Salem Cmty. Sch. Corp. v. Richman, 406 N.E.2d 269, 274 (Ind. Ct. App.

       1980). Waiver is ordinarily a question of fact, and the burden of proving waiver

       is on the party claiming it. Id.


[25]   However, while the existence of facts necessary to constitute a waiver of a

       contract provision is ordinarily a question of fact, the question of the facts

       necessary to constitute a waiver is a matter of law. Jackson v. DeFabis, 553

       N.E.2d 1212, 1217 (Ind. Ct. App. 1990). “When only the legal conclusions to

       be drawn from those facts are argued, the question of waiver is proper for the

       court to consider as a matter of law on summary judgment.” Pohle v. Cheatham,

       724 N.E.2d 655, 658 (Ind. Ct. App. 2000). And the parties only dispute

       whether more than one reasonable inference and legal conclusion can be drawn

       from those facts. Thus, in this case, the question of waiver is a proper

       consideration for summary judgment and can be determined as a matter of law.

       Id.

       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 14 of 19
[26]   There is nothing in the record to indicate that Jones agreed to waive the

       financing contingency. As such, we are left to consider the only objective facts

       available, the conduct of the parties. And, as discussed above, the facts

       establish that the parties modified the Contract. It is well-settled that when a

       contract is modified, the original contract still exists and binds the parties as far

       as it can be followed, and the modifications do not affect the original contract,

       which still remains in force. Foltz v. Evans, 49 N.E.2d 358, 365 (Ind. Ct. App.

       1943). See Justus v. Justus, 581 N.E.2d 1265, 1276 (Ind. Ct. App. 1991). Thus,

       on summary judgment, where there is no designation of material facts

       indicating a contrary intent, when a contractual provision is severed, the

       unsevered provisions are not waived but survive intact.


[27]   The initial burden was on Jones, as the summary judgment movant, to

       demonstrate the absence of any genuine issue of material fact with respect to

       whether the unsevered provisions of the Contract survived the partial

       closing. Jones designated evidence showing that a partial sale and purchase of

       the other assets occurred and, therefore, that the Contract was severed and the

       financing contingency for the real estate remained intact. At that point, the

       burden shifted to Gerdon to designate evidence indicating a contrary intent,

       namely, evidence that, while the Contract was severed, the financing

       contingency did not remain intact and was waived. But Gerdon did not

       designate any such evidence. The designated evidence shows that Gerdon

       agreed to sell, and Jones agreed to purchase, the other assets for a sum of

       $200,000. The only reasonable inference that can be drawn—not from the


       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 15 of 19
       subjective intent of the parties but from the designated evidence—is that the

       Contract was partially performed and severed when Gerdon and Jones

       conducted a $200,000 partial closing. Thus, we conclude that by operation of

       law the balance of the Contract remained intact, the $800,000 financing

       contingency survived the partial closing and was not waived, and Jones had no

       obligation to purchase the real estate because the bank had not approved its

       loan request.


[28]   In sum, the uncontroverted material facts demonstrate that Gerdon and Jones

       conducted a partial sale and purchase of the other assets and that, by their

       conduct, they modified and severed the Contract. As such, the $800,000

       financing contingency on the real estate remained intact, and Jones has

       affirmatively negated Gerdon’s breach of contract claim. See Hughley, 15

       N.E.2d at 1003. Accordingly, we hold that the trial court did not err when it

       entered summary judgment for Jones on that claim.


                   Issue Two: Breach of Duty of Good Faith and Fair Dealing

[29]   Gerdon also asserts that Jones breached its duty of good faith and fair dealing

       when it failed to seek a loan from another financial institution or when it failed

       to offer collateral other than the real estate for the loan. Here, the parties

       dispute only whether Gerdon’s claim on the issue of the breach of the duty of

       good faith and fair dealing in its initial complaint was barred by an applicable

       statute of limitations. Gerdon asserts that the duty at issue here arises from the

       Contract and, as such, the statute of limitations was ten years. Jones, on the


       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 16 of 19
       other hand, asserts that the alleged breach of duty of good faith and fair dealing

       is a tort claim and that the statute of limitations was two years.


[30]   We agree with Gerdon that, in substance, its complaint alleges a contractual

       duty of good faith and fair dealing. However, the Contract does not contain a

       provision regarding such a duty, and we hold that there was no implied duty of

       good faith and fair dealing in the Contract. “Indiana law does not impose a

       generalized duty of good faith and fair dealing on every contract; the

       recognition of an implied covenant is generally limited to employment contracts

       and insurance contracts.” Old Nat’l Bank, 31 N.E.3d at 531. Further, courts

       will only impose a duty of good faith and fair dealing if the contract is

       ambiguous or expressly imposes such a duty on the parties. Id. The contract at

       issue here is neither an employment contract nor an insurance contract. And,

       again, the Contract does not expressly impose a duty of good faith and fair

       dealing on the parties.


[31]   Therefore, we must determine whether the Contract is ambiguous. The

       “[i]nterpretation and construction of contract provisions are questions of law.”

       B&R Oil Co. v. Stoler, 77 N.E.3d 823, 827 (Ind. Ct. App. 2017), trans. denied.

       Gerdon asserts that the summary judgment burden was on Jones “to establish

       that the contract in question is without ambiguity.” Appellant’s Br. at 15. It

       also asserts that “the language of the contract itself included ambiguities with

       regard to the contingency elements.” Appellant’s Reply Br. at 8.




       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 17 of 19
[32]   However, Jones designated the Contract as evidence in support of its motion for

       summary judgment, and the Contract speaks for itself. The burden then shifted

       to Gerdon to show an issue for the trier of fact. See Hughley, 15 N.E.3d at 1003.

       On appeal, Gerdon does not identify any language in the Contract that it claims

       to be ambiguous. As such, we hold that the provision of the Contract regarding

       the contingencies is not ambiguous. Because the Contract does not contain any

       ambiguities, we will not impose a duty of good faith and fair dealing on the

       parties. See Old Nat’l Bank, 31 N.E.3d at 531. Thus, the claim that Jones

       breached the duty of good faith and fair dealing was not available to Gerdon,

       and we need not address the statute of limitations issue. The trial court did not

       err when it granted summary judgment for Jones on that claim.5


                                               Issue Three: Standing

[33]   Finally, Gerdon contends that the trial court erred when it determined that

       William lacked standing to enforce the Contract because he was not a third-

       party beneficiary of the Contract. Gerdon asserts that William “was a proper

       party to the present action as a named and identified third-party beneficiary [of]

       the agreement.” Appellants’ Br. at 15. However, because we hold that the trial

       court did not err when it entered summary judgment for Jones on both of




       5
         The trial court entered summary judgment for Jones on Gerdon’s claim that Jones breached its duty of
       good faith and fair dealing because that claim was barred by a two-year statute of limitations. Even though
       we do not reach the question of which statute of limitations applies, we will affirm the trial court’s entry of
       summary judgment if it can be sustained on any theory or basis in the record. DiMaggio, 52 N.E.3d at 904.

       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018                          Page 18 of 19
       Gerdon’s claims, we need not address whether William had standing to enforce

       the Contract.


                                                   Conclusion

[34]   We hold that the trial court did not err when it entered summary judgment on

       Gerdon’s breach of Contract claim because the parties modified and severed the

       Contract and because Gerdon did not designate evidence to demonstrate that

       the balance of the Contract, including the financing contingency, did not

       remain intact or that Jones waived that contingency. We also hold that the trial

       court did not err when it granted summary judgment for Jones on Gerdon’s

       claim for breach of good faith and fair dealing because the Contract did not

       contain an implied duty of good faith and fair dealing and, thus, that claim was

       not available to Gerdon. Finally, because we hold that the trial court did not

       err when it entered summary judgment for Jones on Gerdon’s claims, we need

       not address whether William had standing to file the complaint.


[35]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 31A01-1708-CT-1859 | March 15, 2018   Page 19 of 19
