                                                                              FILED
                                                                      Jun 06 2019, 6:45 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
James R. Fisher                                            Indy Racing League, LLC d/b/a
Debra H. Miller                                            Indycar
Miller & Fisher, LLC                                       Angela P. Krahulik
Indianapolis, Indiana                                      Jenny R. Buchheit
                                                           Ice Miller, LLP
                                                           Indianapolis, Indiana
                                                           Rahal Letterman Lanigan Racing,
                                                           LLC
                                                           Robert D. MacGill
                                                           Alexander P. Orlowski
                                                           Barnes & Thornburg, LLP
                                                           Indianapolis, Indiana
                                                           Document and Packaging Brokers,
                                                           Inc. d/b/a Docupak
                                                           Laura S. Reed
                                                           Sarah M. Marr
                                                           Riley Bennett Egloff, LLP
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Panther Brands, LLC and                                    June 6, 2019
Panther Racing, LLC,                                       Court of Appeals Case No.
Appellants-Plaintiffs/Counter-                             18A-CT-2705
Defendants,                                                Appeal from the Marion Superior
       v.                                                  Court
                                                           The Honorable Heather A. Welch,
Indy Racing League, LLC d/b/a                              Judge
Indycar, Rahal Letterman

Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019                                  Page 1 of 20
      Lanigan Racing, LLC and                                     Trial Court Cause No.
      Document and Packaging                                      49D01-1402-CT-4557
      Brokers, Inc. d/b/a Docupak,
      Appellees-Defendants/ Counter-
      Plaintiffs.




      Riley, Judge.


                                 STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, Panther Brands, LLC and Panther Racing, LLC

      (collectively, Panther 1), appeal the trial court’s summary judgment in favor of

      Appellees-Defendants, Indy Racing League LLC d/b/a Indycar (Indycar);

      Rahal Letterman Lanigan Racing LLC (RLL); and Document and Packing

      Brokers, Inc. d/b/a Docupak (Docupak) (Collectively, Defendants), finding no

      genuine issue of material fact that Section 9.15 of the 2013 contract entered into

      between Panther Brands and Indycar did not prohibit Indycar from providing

      RLL with access to Fan Village space in 2014 and, therefore, Defendants were

      entitled to judgment as a matter of law.




      1
        Although Panther Racing and Panther Brands are separate entities, Appellants’ First Amended Complaint
      referred to both entities generically as Panther and asserted claims on behalf of Panther. The parties’
      summary judgment motions and the trial court’s Order also generally referred to both entities as Panther.
      Accordingly, this opinion will generally refer to the Appellants as Panther, unless a difference between the
      entities is relevant to this appeal.

      Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019                                 Page 2 of 20
[2]   We affirm.


                                                      ISSUES
[3]   Panther raises three issues on appeal, which we restate as follows:


            (1) Whether the trial court erred in concluding, as a matter of law, that the

                 contract between Panther Brands and Indycar did not prohibit Indycar

                 from providing RLL access to the Fan Village in 2014 for the benefit of

                 the Army National Guard (ARNG);

            (2) Whether the trial court erred in granting summary judgment in favor of

                 Defendants on Panther’s claim of bid-rigging; and

            (3) Whether the trial court erred in narrowly construing the tort of unfair

                 competition and refusing to extend the tort to include claims for the

                 perceived misuse of confidential information.


                         FACTS AND PROCEDURAL HISTORY
[4]   Panther Racing was an Indycar race team, competing in the Indycar series until

      2014. 2 Panther Brands operated as the marketing and brand management arm

      of Panther Racing. Both Panther Racing and Panther Brands were subsidiaries

      of CAT Holdings. At all times during these proceedings, Panther was an

      Indiana entity with its principal place of business in Indianapolis, Indiana.




      2
          Although Panther ceased operations in 2014, the companies have not been dissolved.


      Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019                         Page 3 of 20
[5]   Indycar is the sanctioning body for the Indycar Series, with Mark Miles (Miles)

      as its CEO. It is an Indiana company, with its principal place of business in

      Speedway, Indiana. RLL is an Indycar race team which served as its own

      marketing services and brand management company. It was a competitor to

      Panther and is located in Brownsburg, Indiana.


[6]   Between 2008 and 2013, Panther’s main sponsor was the ARNG. The ARNG

      did not enter into direct sponsorship contracts with race teams; rather, to

      sponsor an Indycar race team in any given season, the ARNG would contract

      with Laughlin Marianaccio and Owens, Inc. (LM&O), who, in turn, would

      subcontract with Docupak. Docupak would then enter into a sponsorship

      contract with a specific race team selected by the ARNG. Docupak contracted

      with Panther Brands in 2012 for ARNG to sponsor Panther Racing through the

      2013 Indycar season, which contract ended with the last race on October 19,

      2013.


[7]   In conjunction with the ARNG’s sponsorship of Panther Racing during the

      2013 Indycar season, Panther Brands and Indycar entered into a 2013 Panther

      Brands Sponsorship Agreement (Sponsorship Agreement), which was effective

      as of January 1, 2013 and expired on December 31, 2013. Pursuant to the

      Sponsorship Agreement, the ARNG became a “non-exclusive promotional

      partner of [Indycar] and the IZOD IndyCar Series” for the 2013 series.

      (Appellant’s App. Vol. II, p. 123). Through the Sponsorship Agreement,

      Panther Brands secured various promotional opportunities and privileges from

      Indycar for the ARNG. For instance, the Agreement provided Panther Brands,

      Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019         Page 4 of 20
      among other things, credentials, tickets, video footage, radio advertisements,

      online marketing, and the placement of ARNG’s logo on Indycar-owned

      equipment. Panther Brands also obtained a “limited, non-transferable and non-

      exclusive license” to use an area within the Indycar Fan Village (a.k.a. Fan

      Zone) at each race throughout the 2013 season, subject to various terms and

      conditions.


[8]   Panther and Indycar commenced negotiating the Sponsorship Agreement in

      February 2013 and executed the Agreement in July 2013. Early in the

      negotiations, Panther voiced concerns that Indycar wanted to pursue

      sponsorship arrangements directly with Panther’s sponsors, including the

      ARNG. To alleviate these apprehensions, the parties agreed to insert Section

      9.15 into the Sponsorship Agreement, which reads as follows:


              [Indycar] agrees that, other than through Panther Brands, it will
              not enter into sponsorship agreements during the Term and for a
              period of one (1) year following the Term with the following
              Panther Brands clients: [ARNG], Lincoln Tech, Drash, TriWest,
              Oracal and Emergent. It is understood and agreed that the
              foregoing limitation extends to agreements for the benefit of the
              sponsors listed in the preceding sentence with agencies or
              companies representing such sponsors (other than Panther
              Brands), including, without limitation [Docupak] and [LM&O].


      (Appellants’ App., Vol. II Conf., p. 129). In addition, Indycar agreed to

      provide Panther Brands with a limited, non-transferable, and non-exclusive

      license to use an area of the Fan Village throughout the 2013 race season,

      subject to the following limitations:

      Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019        Page 5 of 20
              4.6 [Indycar] hereby grants Panther Brands a limited, non-
              transferable and non-exclusive license to use an area designated
              for exclusive use by Panther Brands on behalf of the [ARNG] in
              the Fan Village in the location designated by [Indycar] during
              practice, qualification and race days at all United States events,
              subject in each instance, to all limitations on [Indycar’s] rights to
              use the area in which the Fan Village is located as set forth in this
              Section. It is expressly agreed that this opportunity may not be
              utilized by Panther Brands on behalf of any Panther Brands’
              clients other than [ARNG] without the prior written consent of
              [Indycar].


      (Appellants’ App., Vol. II Conf., p. 125). Consistent with the parties’

      negotiations, Indycar agreed that the ARNG would be “the sole U.S. Armed

      Forces division to be displayed in the Fan Village during the [t]erm” of the

      Agreement. (Appellants’ App. Vol. II Conf., p. 126). Nevertheless, the

      Sponsorship Agreement reiterated its non-exclusive relationship in Section 4.5:


              Panther Brands, for itself and its designees, hereby acknowledges
              and agrees that its relationship with [Indycar] is non-exclusive in
              all respects and that [Indycar] shall have the right to seek and
              may enter into sponsorship and/or other relationships with third
              parties including third parties who are competitors of Panther
              Brands, [ARNG] and/or any other Panther Brands clients
              receiving promotional opportunities and privileges hereunder.


      (Appellants’ App., Vol. II Conf., p. 125).


[9]   On September 3, 2013, Docupak sent a Request for Proposal (RFP) to six

      Indycar teams for a potential ARNG sponsorship during the 2014 race season.

      The RFP requesting proposals and pricing for the 2014 season, renewable for

      four years, included the requirement of Fan Village space exclusive to ARNG.
      Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019            Page 6 of 20
       A number of race teams—including Panther and RLL—submitted proposals in

       response to the RFP. On or about October 3, 2013, the ARNG announced that

       it had decided to sponsor RLL during the 2014 Indycar race season. Panther

       objected to ARNG awarding its sponsorship to RLL, contending that it had

       secured the exclusive right to obtain Fan Village access for ARNG for 2014

       from Indycar through Section 9.15 of the Sponsorship Agreement and therefore

       was the only bidder in a position to fulfill the RFP requirements.


[10]   Brian Marks (Marks) had prepared RLL’s proposal in response to the RFP.

       After ARNG awarded its sponsorship to RLL, Marks confided to RLL’s owner,

       Bobby Rahal (Rahal), that he had heard “a rumor in the paddock” that Panther

       was asserting a claim to the 2014 Fan Village access for ARNG. (Appellees’

       App., Vol. IV, p. 229). Marks and Rahal telephoned Miles, Indycar’s CEO,

       and inquired whether anything prohibited Indycar from providing Fan Village

       space to RLL for ARNG. Despite Miles’ assurance that there was no problem

       in acquiring Fan Village space, Rahal requested Indycar to put the confirmation

       in writing. Consequently, on October 14, 2013, Miles sent RLL a signed letter,

       confirming


               This letter is in response to your inquiry regarding whether there
               is any prohibition against [Indycar] providing space in the Fan
               Village during 2014 to [RLL] for use by [RLL’s] sponsor, the
               [ARNG]. I can confirm that there is not; however, to be clear,
               this includes space in the Fan Village, but not [Indycar]
               sponsorship rights.




       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019             Page 7 of 20
       (Appellants’ App., Vol. II Conf., p. 173). Miles reiterated the commitment by a

       second letter sent on November 11, 2013.


[11]   On July 31, 2014, RLL purchased a “2014 Fan Village Sponsorship

       Agreement” from Indycar in the amount of $500,000 to benefit the ARNG.

       (Appellant’s App., Vol. II Conf., p. 180). RLL did not negotiate with Indycar

       for the Fan Village purchase price, nor did RLL enter into any sponsorship

       agreement or any other written agreement regarding the space apart from the

       invoice.


[12]   On October 17, 2016, Panther filed its First Amended Complaint, raising six

       Counts: (1) breach of contract against Indycar; (2) interference with contract

       against RLL; (3) conversion against RLL, Indycar, and Docupak; (4) statutory

       damages against RLL, Indycar, and Docupak arising out of the conversion

       claim; (5) unfair competition conspiracy against RLL, Indycar, and Docupak;

       and (6) statutory bid-rigging against RLL, Indycar, and Docupak. On April 4,

       2017, after all Defendants filed separate motions to dismiss all Counts of the

       First Amended Complaint, the trial court granted Defendants’ motions to

       dismiss with respect to Count 5 only, refusing to dismiss any other Counts.

       Subsequently, during July and August 2018, all Defendants filed separate

       motions for summary judgment on the remaining Counts, together with a

       memorandum and designation of evidence. Panther responded to each party’s

       motion for summary judgment in turn, together with a memorandum of law

       and designation of evidence. On September 17, 2018, the trial court heard oral

       argument on the pending summary judgment motions.

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019        Page 8 of 20
[13]   On October 31, 2018, the trial court issued its fifty-seven page Order, granting

       all motions for summary judgment. Specifically, the trial court concluded that,

       with respect to the breach of contract and interference of contract claims,

       Indycar did not breach the contract because Section 9.15 of the Sponsorship

       Agreement did not prohibit Indycar from selling the 2014 Fan Village space to

       RLL. Summary judgment was granted in favor of Defendants on the

       conversion and statutory damages Counts because, based on the trial court’s

       contractual interpretation, “Panther had no right to exclusively provide ARNG

       with [Fan Village access] … in 2014” so “there is no property interest which

       could have been converted[.]” (Appellant’s App., Vol. II, p. 79). The trial

       court concluded that there was no material issue of fact that bid-rigging

       occurred because RLL could represent to ARNG that it could provide Fan

       Village access. Finding these conclusions dispositive of Panther’s claims, the

       trial court did not address other arguments raised by the Defendants.


[14]   Panther now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
                                               I. Standard of Review


[15]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019         Page 9 of 20
       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.


[16]   This appeal requires the interpretation of a contract. Interpretation and

       construction of contract provisions are questions of law. Barker v. Price, 48

       N.E.3d 367, 370 (Ind. Ct. App. 2015). As such, cases involving contract

       interpretation are particularly appropriate for summary judgment. Id. And

       because the interpretation of a contract presents a question of law, it is reviewed

       de novo by this court. Id.


[17]   We observe that, in the present case, the trial court entered detailed and lengthy

       findings of fact and conclusions of law thereon in support of its judgment.

       Generally, special findings are not required in summary judgment proceedings

       and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc.,

       816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer a court

       valuable insight into the trial court’s rationale and facilitate appellate review.

       Id.



       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019             Page 10 of 20
                                         II. The Sponsorship Agreement


[18]   Panther contends that the trial court erred in concluding, as a matter of law,

       that the unambiguous language of Section 9.15 of the Sponsorship Agreement

       did not prohibit Indycar from selling the 2014 Fan Village area to RLL for the

       benefit of the ARNG.


[19]   “The goal of contract interpretation 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). This court must examine the plain

       language of the contract, read it in context and, whenever possible, construe it

       so as to render every word, phrase, and term meaningful, unambiguous, and

       harmonious with the whole. Id. Construction of the terms of a written contract

       generally is a pure question of law. Id. If, however, a contract is ambiguous,

       the parties may introduce extrinsic evidence of its meaning, and the

       interpretation becomes a question of fact. Broadbent v. Fifth Third Bank, 59

       N.E.3d 305, 311 (Ind. Ct. App. 2016), trans. denied. “A word or phrase is

       ambiguous if reasonable people could differ as to its meaning.” Id. A term is

       not ambiguous solely because the parties disagree about its meaning. Id.

       Courts may properly consider all relevant evidence to resolve an ambiguity.

       Celadon Trucking Servs., Inc., 70 N.E.3d at 839. An ambiguous contract should

       be construed against the party who furnished and drafted the agreement. Id. If

       contract language is unambiguous, this court 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. “Extrinsic evidence is

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019         Page 11 of 20
       evidence relating to a contract but not appearing on the face of the contract

       because it comes from other sources, such as statements between the parties or

       the circumstances surrounding the agreement.” Id.


[20]   Relying on the language of Section 9.15 of the Sponsorship Agreement, Panther

       insists that ARNG’s access to the Fan Village in 2014 was only available

       through a sponsorship with Panther and contends that Indycar subverted the

       intent of the Section. Even though pursuant to the phrasing of Section 9.15,

       race teams are not specifically listed in the section as an agency or company

       that can represent ARNG, Panther argues that by accepting the sponsorship,

       RLL in effect represented ARNG—“[i]f Panther was ARNG’s representative in

       2013 under the ARNG sponsorship, RLL was ARNG’s representative in 2014

       under the ARNG sponsorship.” (Appellant’s Br. p. 19). Characterizing RLL

       as a “pass through” for the sale of the sponsorship, Panther maintains that

       Indycar in effect circumvented the limitations of Section 9.15 by using RLL as a

       “pass through” for the sponsorship fund and in essence contracted with

       Docupak, as the agent of ARNG, thereby breaching the provisions of the

       Sponsorship Agreement.


[21]   Examination of the Sponsorship Agreement as a whole reflects a “non-

       exclusive” relationship between Panther and Indycar, granting Indycar the

       “right to seek and [] enter into sponsorship and/or other relationship with third

       parties who are competitors of Panther Brands, [ARNG] and/or any other

       Panther Brands clients receiving promotional opportunities and privileges

       hereunder.” See Section 4.5 of the Sponsorship Agreement (Appellants’ App.

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019        Page 12 of 20
       Vol. II Conf., p. 125). With respect to the Fan Village, the contractual

       provisions specified in Section 4.6 that Panther held a limited and non-exclusive

       license to use a defined area of the Fan Village for the exclusive use of the

       ARNG only. No obligations or restrictions were imposed on Indycar by virtue

       of this Section and, pursuant to this language, Indycar could grant a similar

       license to any of Panther’s competitors. However, the general and unlimited

       phrasing of Sections 4.5 and 4.6 are restricted by the boundaries imposed by

       Section 9.15. As such, Indycar is prohibited from entering “into sponsorship

       agreements [with ARNG] during the Term and for a period of one (1) year

       following the Term[.]” See Section 9.15 (Appellant’s App. Vol. II Conf., p.

       129). This “limitation extends to agreements for the benefit of [ARNG] with

       agencies or companies representing [ARNG],” including Docupak and LM&O.

       See Section 9.15 (Appellant’s App. Vol. II Conf., p. 129). Therefore, the issue

       properly framed before us is whether RLL, as a racecar company and sponsored

       by ARNG, can be considered to be representing ARNG for purposes of Section

       9.15 of the Sponsorship Agreement.


[22]   “Representation” is defined as “[t]he act or instance of standing for or acting on

       behalf of another[,]” while a “sponsor” is explained as “[a] business that pays

       for a television or radio program, usu[ally] in return for advertising time.”

       Black’s Law Dictionary, 1328 (8th ed.); Webster’s Dictionary, 1067 (1995 ed.)

       Applying these definitions to the reality of the racing world, it is apparent

       that—as already determined by the trial court—RLL is a race team and a target

       of sponsorships. Businesses approach RLL, by RFP or direct contact, to


       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019         Page 13 of 20
       advertise their name or logo on RLL’s assets. On the other hand, a marketing

       agency functions as an intermediary, whose job it is to locate partners willing to

       advertise the business the marketing agency is representing. Therefore, as RLL

       does not represent ARNG but rather is a recipient of its money in return for

       advertising, Indycar is not bound by the restrictions of Section 9.15 of the

       Sponsorship Agreement and is free to enter into a “relationship” with RLL

       pursuant to Section 4.5.


[23]   In an attempt to transform RLL into a marketing agency for purposes of

       Section 9.15, Panther cites to the trial court’s finding that RLL “is an [Indycar]

       race team which serves as its own marketing services and brand management

       company.” (Appellant’s App., Vol. II, p. 51). Panther’s argument is

       unpersuasive. The trial court was simply noting that while Panther had split its

       race team and marketing efforts into two distinct businesses, RLL included both

       its race team and marketing under one umbrella. Moreover, just as Panther

       Brands “provided marketing and brand management services to Panther

       Racing,” RLL’s marketing efforts would be concentrated on promoting its race

       team, not on representing a third-party company.


[24]   Accordingly, as there is no genuine issue of material fact that Indycar was

       allowed to enter into an agreement with RLL for Fan Village space during the

       2014 race season, we affirm the trial court’s conclusion that, as a matter of law,




       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019         Page 14 of 20
       Indycar did not breach the provisions of the Sponsorship Agreement with

       Panther. 3


                                                III. Claim of Bid-Rigging


[25]   Next, Panther contends that the trial court erred in granting summary judgment

       to Defendants on its bid-rigging claim. Claiming that Docupak’s conduct in

       essence constituted government procurement through false information,

       Panther argues that the company made unauthorized changes to its bid by

       compiling its own summary of Panther’s bid and thereby intentionally omitting

       outside media opportunities Panther could offer ARNG and intentionally

       adding “$4 million worth of costs for services to be provided [] by Docupak.”

       (Appellant’s Br. p. 25). Panther maintains that these intentional amendments

       to its bid by Docupak aided RLL in securing ARNG’s sponsorship.


[26]   The false information or bid-rigging statute in effect 4 at all relevant events,

       provided, in pertinent part that




       3
         Panther devotes several pages of its appellate brief to the argument that the trial court’s conclusion that
       Section 9.15 of the Sponsorship Agreement was clear and unambiguous contradicted its prior order which
       granted in part and denied in part Defendant’s motions to dismiss and which declared the phrasing of Section
       9.15 to be ambiguous. Panther’s argument ignores “a well-settled practice in this state, namely . . . [that] a
       trial court has inherent power to reconsider, vacate, or modify any previous order so long as the case has not
       proceeded to final judgment.” Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967, 971 (Ind. 2014) (quoting
       Haskell v. Peterson Pontiac GMC Trucks, 609 N.E.2d 1160, 1163 (Ind. Ct. App. 1993)). As final judgment was
       not entered until after the trial court granted all pending summary judgment motions, the trial court was free
       to modify and/or reconsider its prior characterization of Section 9.15.
       4
           The statute was repealed by P.L. 158-2013, SEC. 484, eff. July 1, 2014.


       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019                                Page 15 of 20
               A person who knowingly or intentionally provides false
               information to a governmental entity to obtain a contract from
               the governmental entity commits a Class A misdemeanor.


       I.C. § 35-43-5-11.


[27]   The designated evidence reflects that Docupak submitted its proposal,

       containing race team alternatives from RLL, Panther, and others to LM&O, in

       order to enter into a contract with LM&O. Docupak did not provide

       information directly to ARNG or any governmental entities; nor did it expect to

       enter into a contract with a governmental actor. Even though Docupak put the

       information in a form that LM&O amended when it made its own submission

       to ARNG, Docupak had no control or input in the presentation of LM&O’s

       proposal. Regardless of which race proposal ARNG ultimately settled for,

       Docupak would be a subcontractor to LM&O and would not enter into a

       contract directly with ARNG. Accordingly, any specific information about the

       separate teams that Docupak provided could not have been submitted in order

       for Docupak “to obtain the contract” with ARNG. See I.C. § 35-43-5-11.


[28]   Before the trial court, Panther advocated to broaden the interpretation of the

       bid-rigging statute to include the situation where information is indirectly

       provided to the governmental entity. However, we note that the repealed

       Indiana Code section 35-43-5-11 is a criminal statute and “statutes that are

       criminal or penal in nature must be strictly construed.” Hook v. State, 775

       N.E.2d 1125, 1127 (Ind. Ct App. 2002), trans. denied. Accordingly, we cannot

       expand the statute and rewrite it to cover a situation that the statute does not

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019         Page 16 of 20
       expressly provide for. See Smith v. State, 867 N.E.2d 1286, 1288-89 (Ind. 2007)

       (court rejected State’s request to insert the word “indirectly” into a criminal

       statute definition of “child care worker” to include those “indirectly” employed

       by a school corporation). Therefore, as Docupak did not provide any

       information 5 to ARNG to obtain a contract for ARNG, we conclude, as a

       matter of law, that there is no genuine issue of material fact that Docupak did

       not commit bid-rigging and affirm the trial court’s grant of summary judgment

       in favor or Defendants.


                                      IV. The Tort of Unfair Competition


[29]   Lastly, Panther maintains that the trial court erred when it narrowly construed

       its claim of unfair competition and found in favor of Defendants. Specifically,

       on appeal, Panther claims that its former contact person with ARNG is now

       employed by RLL and in the process of his new employment provided RLL

       with trade secrets this contact person learned during his dealings with Panther.

       Panther boldly alleges that “[t]he disclosure of trade secrets to a competitor by a

       company’s [point of contact] in exchange for a bribe, to aid that competitor in a

       bidding process against the company, is a crime.” (Appellant’s Br. p. 26)


[30]   In its summary judgment entry, the trial court found




       5
        Because we decide the issue on whether Docupak submitted information to ARNG, we refrain from
       deciding whether the information submitted was false or whether the statute is applicable even when
       Docupak’s conduct occurred in Alabama to procure a contract in Virginia.

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019                             Page 17 of 20
               Panther’s Complaint does not allege the impermissible use of
               trade secrets by former employees nor does it allege that the
               Defendants have sought to create confusion among the general
               public. Panther instead invites the [c]ourt to extend the tort to
               apply to allegations of RLL/Docupak passing off the access to
               Fan Village for the ARNG as its own and bribery of an
               individual in possession of trade secrets regarding the
               Sponsorship Agreement.


               The [c]ourt is hesitant to create another cause of action for unfair
               competition, especially when the allegations which form the basis
               of this tort are so attenuated from the claims for relief. To the
               extent that RLL/Docupak have tried to pass off Panther’s right
               to Fan Village access as its own, that is more akin to conversion
               of property, which has already been discussed. Regarding the
               bribery allegation, that is a serious accusation to challenge the
               hiring of a person to act as a liaison in a sponsorship bidding
               process when that person has considerable experience in the
               field. Furthermore, the allegations fail to show the impact, if
               any, of RLL hiring ARNG’s former employee had on the bid
               process. Panther is asking this [c]ourt to find unfair competition
               based on several different allegations of impropriety. As neither
               the General Assembly nor the appellate courts have created a
               vehicle to bring claims of unfair competitor [sic], the [c]ourt
               declines to do so here.


       (Appellant’s App. Vol. II, p. 43).


[31]   A valid common law cause of action exists for the tort of unfair competition.

       Bartholomew Co. Beverage Co., Inc. v. Barco Beverage Corp., Inc., 524 N.E.2d 353,

       358 (Ind. Ct. App. 1988). Although the law of unfair competition has been

       defined as the palming off of one’s goods or services as that of someone else,

       and the attempt thereof, the tort of unfair competition is much broader and also

       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019            Page 18 of 20
       includes actions for the interference with a contract or business relationship, as

       well as for predatory price cutting. Id. (citing Hammons Mobile Homes, Inc. v.

       Laser Mobile Home Transport, Inc., 501 N.E.2d 458, 461 (Ind. Ct. App. 1987)).


               Unfair competition . . . does not describe a single course of
               conduct or a tort with a specific number of elements; it instead
               describes a general category into which a number of new torts
               may be placed when recognized by the courts. The category is
               open-ended, and nameless forms of unfair competition may be
               recognized at any time for the protection of commercial values.


       Felsher v. University of Evansville, 755 N.E.2d 589, 599 (Ind. 2001) (quoting W.

       Page Keeton, Prosser and Keeton on the Law of Torts, 1015 (5th ed. 1984)).


[32]   Leaving aside the question as to whether a new cause of action should be

       recognized under the tort of unfair competition, as advocated by Panther,

       Panther failed to designate evidence to support its allegation. With only

       referencing general statements included in its Complaint, Panther omits to

       establish the exact information its contact person appropriated and improperly

       divulged to RLL so as to rise to the level of a trade secret. Panther also fails to

       designate any specifics on how the contact person improperly influenced the

       bidding process to skew the result and the subsequent award of sponsorship to

       ARNG. Accordingly, we conclude, as a matter of law, that there is no genuine

       issue of material fact that RLL committed the tort of unfair competition and

       affirm the trial court’s grant of summary judgment in favor of Defendants.




       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019           Page 19 of 20
                                               CONCLUSION
[33]   Based on the foregoing, we hold that, as a matter of law: (1) the contract

       between Panther Brands and Indycar did not prohibit Indycar from providing

       RLL access to the Fan Village in 2014 for the benefit of the ARNG; (2)

       Defendants did not commit bid-rigging; and (3) the trial court properly refused

       to extend the tort of unfair competition to include claims for the perceived

       misuse of confidential information.


[34]   Affirmed.


[35]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-CT-2705 | June 6, 2019        Page 20 of 20
