                                                                            Oct 09 2013, 6:12 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEES:

ROBERT J. PALMER                             ALADEAN M. DeROSE
May Oberfell Lorber                          South Bend, Indiana
Mishawaka, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA


SPECIALTY FOODS OF INDIANA, INC.,            )
d/b/a JERSEY MIKE’S SUBS,                    )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )       No. 71A05-1302-MI-95
                                             )
CITY OF SOUTH BEND and CENTURY               )
CENTER BOARD OF MANAGERS,                    )
                                             )
     Appellees-Defendants.                   )



                  APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                     The Honorable Michael G. Gotsch, Sr., Judge
                          Cause No. 71C01-1212-MI-00244




                                   October 9, 2013

                             OPINION - FOR PUBLICATION

DARDEN, Senior Judge
                             STATEMENT OF THE CASE

       Specialty Foods of Indiana, Inc. III, d/b/a Jersey Mike’s Subs (“Specialty Foods”),

appeals the trial court’s order denying its complaint for declaratory judgment.

       We affirm.

                                          ISSUE

       Specialty Foods presents three issues for our review, one of which is dispositive:

whether the force majeure clause of the agreement between Specialty Foods and the

Century Center Board of Managers for the City of South Bend (“Century Center”)

applies to excuse the Century Center’s further performance under the agreement.

                        FACTS AND PROCEDURAL HISTORY

       On July 16, 1993, the City of South Bend (“City”) entered into a Management

Agreement with the National Football Foundation and College Hall of Fame, Inc.

(“NFF”) and the Century Center. On the same day, the City also entered into a License

Agreement with the NFF. Both agreements concerned the construction and operation of

a building in South Bend to house the College Football Hall of Fame (“Hall of Fame”).

The agreements contained an initial term of forty years with automatic five-year renewals

thereafter unless proper notice was given. Construction of the massive building to house

the Hall of Fame was completed by August 1995.

       On April 19, 2000, the Century Center entered into a Use Management and

Operations Agreement (“UMO Agreement”) with Specialty Foods for Specialty Foods to

be the exclusive provider of food and beverages in the Hall of Fame. The initial term of

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the agreement was five years with two five-year renewal options, both of which were

exercised by Specialty Foods. Pursuant to the agreement, Specialty Foods would occupy

only 3,286 square feet of the vast Hall of Fame building.

      In August 2001, the City, the Century Center, and the NFF entered into an Interim

Agreement for the operation of the Hall of Fame.            In that agreement, the parties

acknowledged that the financial results of the Hall of Fame had been less favorable than

anticipated at the time of execution of the Management and License Agreements. In an

effort to reduce the City’s financial burden of operating the Hall of Fame, the NFF agreed

to assume the management and operation of the Hall of Fame during the interim term of

January 1, 2001 to December 31, 2005. Subsequently in July 2006, the City, the Century

Center, and the NFF entered into a Second Interim Agreement, which extended the

interim period for an additional five years to December 31, 2010.

      The trial court found that in 2009, during the second interim period, the NFF

indicated its intent to relocate the Hall of Fame to Atlanta, Georgia. Appellant’s App. p.

7. In addition, the trial court found that in July 2012, the NFF officially announced its

imminent departure from South Bend and the closing of the Hall of Fame in South Bend

on December 31, 2012. Id. By exercising its final five-year renewal option on May 18,

2010, Specialty Foods expressed its desire to extend its agreement with the Century

Center until August 2015. However, in August 2012, the City formally notified Specialty

Foods that the Hall of Fame in South Bend would close as of January 1, 2013, due to its



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relocation to Atlanta, Georgia, and that cessation of the Hall of Fame’s presence in the

city necessarily terminated Specialty Foods’ agreement with the Century Center.

       On December 28, 2012, Specialty Foods filed a complaint against the City and the

Century Center for a declaratory judgment as to its rights to continue operating its

business in the Hall of Fame building under the UMO Agreement. Following a hearing,

the trial court issued its order denying Specialty Foods’ request for declaratory judgment.

This appeal ensued.

                            DISCUSSION AND DECISION

       Specialty Foods contends the trial court erred by applying the force majeure clause

of the UMO Agreement to excuse the Century Center’s performance under that

agreement when the NFF moved the Hall of Fame from South Bend to Atlanta, Georgia.

       The interpretation of a contract is a pure question of law and is reviewed de novo.

Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005). The objective of a

court when it interprets a contract, including a force majeure provision, is to determine

the intent of the parties at the time the contract was made by examining the language used

in the contract. See State Farm Fire & Cas. Co. v. Riddell Nat’l Bank, 984 N.E.2d 655,

658 (Ind. Ct. App. 2013), trans. denied. Further, in determining the intention of the

parties, a contract should be considered in light of the circumstances existing at the time

it was made. Allen v. Clarian Health Partners, Inc., 980 N.E.2d 306, 309 (Ind. 2012).

For example, the court should consider the nature of the agreement, the facts and

circumstances leading up to the execution of the contract, the relationship of the parties,

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the nature and situation of the subject matter, and the apparent purpose of making the

contract. Id. Contracts are to be read as a whole, and a court should construe the

language in a contract so as not to render any words, phrases, or terms ineffective or

meaningless. State Farm, 984 N.E.2d at 658. In addition, a court should attempt to

harmonize the provisions of a contract rather than interpret the provisions as conflicting.

Id.

       In the present case, the trial court ruled that the force majeure clause in the UMO

Agreement excused the Century Center from performing its obligation of allowing

Specialty Foods to continue to operate its business in the Hall of Fame building after the

Hall of Fame terminated the Management and License Agreements and moved from

South Bend. A force majeure clause is defined as a “contractual provision allocating the

risk if performance becomes impossible or impracticable, esp. as a result of an event or

effect that the parties could not have anticipated or controlled.” Black’s Law Dictionary

674 (8th ed. 2004). We note that Indiana has very few cases interpreting force majeure

clauses, and those that do exist pertain to issues not before us today. Therefore, we turn

to guidance from other jurisdictions.

       Historically, the theory of force majeure embodied the concept that parties could

be relieved of performance of their contractual obligations when the performance was

prevented by causes beyond their control, such as an act of God. Sun Operating Ltd.

P’ship v. Holt, 984 S.W.2d 277, 282 (Tex. App. 1998). However, much of the theory’s

“historic underpinnings have fallen by the wayside” with the result that force majeure is

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now “little more than a descriptive phrase without much inherent substance.” Id. at 283.

Indeed, the scope and effect of a force majeure clause depends on the specific contract

language, and not on any traditional definition of the term. Va. Power Energy Mktg., Inc.

v. Apache Corp., 297 S.W.3d 397, 402 (Tex. App. 2009). In other words, when the

parties have defined the nature of force majeure in their agreement, that nature dictates

the application, effect, and scope of force majeure with regard to that agreement and

those parties, and reviewing courts are not at liberty to rewrite the contract or interpret it

in a manner which the parties never intended. Sun, 984 S.W.2d at 283. The party

seeking to excuse its performance under a force majeure clause bears the burden of proof

of establishing that defense. Va. Power, 297 S.W.3d at 402.

       We begin by determining the intent of the parties through examination of the

language they used in the contract. See State Farm, 984 N.E.2d at 658. The force

majeure provision in the UMO Agreement provides:

               In the event Century Center or [Specialty Foods] shall be delayed or
       hindered or prevented from the performance of any obligation required
       under this Agreement by reason of strikes[,] lockouts, inability to procure
       labor or materials, failure of power, fire or other casualty, acts of God,
       restrictive governmental laws or regulations, riots, insurrection, war or any
       other reason not within the reasonable control of Century Center or
       [Specialty Foods], as the case may be, then the performance of such
       obligation shall be excused for the period of such delay and the period for
       the performance of any such act shall be extended for a period equivalent to
       the period of such delay.




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Appellant’s App. p. 34. The parties agree that the specific language from the force

majeure provision in the UMO Agreement with which we are concerned is the phrase

“any other reason not within the reasonable control of Century Center.”

       Specialty Foods argues that the force majeure provision of the UMO Agreement is

inapplicable to excuse the Century Center’s performance because the termination of the

Management and License Agreements was “not unforeseeable.” Appellant’s Br. p. 15.

However, the force majeure provision in this case contains nothing about foreseeability,

and Specialty Foods points to neither terms in the provision nor in the remainder of the

parties’ contract in support of its argument. The scope and effect of a force majeure

clause depends on the specific contract language.        Va. Power, 297 S.W.3d at 402.

       Further, there is no evidence before us that the bargaining between the parties was

not free and open. The City, the Century Center, and Specialty Foods are sophisticated

parties presumably represented by counsel who were at liberty to define the nature of

force majeure in whatever manner they desired. We decline to rewrite the parties’

contract by interjecting into the force majeure provision a requirement of foreseeability.

See Bethlehem Steel Corp. v. Sercon Corp., 654 N.E.2d 1163, 1168 (Ind. Ct. App. 1995)

(stating that parties to contract have right to define their mutual rights and obligations,

and courts may not write new contract), trans. denied.

       Additionally, in support of its argument that the parties’ force majeure provision is

inapplicable in this instance, Specialty Foods cites Kel Kim Corp. v. Central Markets,

Inc., 519 N.E.2d 295 (N.Y. 1987). In Kel Kim, the force majeure provision provided:

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               If either party to this Lease shall be delayed or prevented from the
       performance of any obligation through no fault of their own by reason of
       labor disputes, inability to procure materials, failure of utility service,
       restrictive governmental laws or regulations, riots, insurrection, war,
       adverse weather, Acts of God, or other similar causes beyond the control of
       such party, the performance of such obligation shall be excused for the
       period of the delay.

519 N.E.2d at 296 n.*. The New York Court of Appeals determined that the force

majeure provision did not apply because the event that prevented Kel Kim’s performance

under the contract was neither specifically included in the force majeure provision nor

generally included within the provision’s catchall phrase “or other similar causes beyond

the control of such party.” The court explained that the event (i.e., the inability of Kel

Kim to procure and maintain liability insurance) was of a different kind and nature from

the particular events listed in the force majeure provision such that it could not be

considered a “similar cause.”

       Specialty Foods’ reliance upon Kel Kim is misguided. The force majeure clause in

Kel Kim is distinguishable from the clause in the instant case primarily due to its

inclusion of the phrase “or other similar causes.” This is a limiting phrase that the court

determined required the event causing the non-performance of a party to be similar to the

events specifically spelled out in the provision of the parties’ contract. The provision in

the present case does not contain such a restrictive clause. Rather, the parties here agreed

that when an event occurs, the cause of which is “any other reason” not within the

reasonable control of the parties, the performance of obligations under the agreement

shall be excused. Thus, instead of a limiting clause, the Century Center and Specialty

                                             8
Foods included broad terminology that does not require the non-performance triggering

event to be similar to the specific causes listed in the force majeure provision. We

remain mindful that we must look to the specific language of the contract. See Va.

Power, 297 S.W.3d at 402. Accordingly, the underlying rationale of the decision in Kel

Kim is not applicable here.

      Next, we determine the intent of the parties through consideration of the

circumstances existing at the time the contract was made. See Allen, 980 N.E.2d at 309.

The Management Agreement, the License Agreement, and the UMO Agreement were all

admitted as evidence in this case. These documents enable us to ascertain the purpose of

the UMO Agreement and the circumstances surrounding its making. Pursuant to the

Management and License Agreements executed in July 1993, the City designed,

financed, and constructed a facility specifically to house the Hall of Fame. Subsequently,

in April 2000, the Century Center and Specialty Foods entered into the UMO Agreement.

In the prefatory language of the UMO Agreement, Specialty Foods acknowledged the

need for the Century Center “to manage and operate a facility that is of the highest

quality when compared to other sports museums or halls of fame operating in the United

States.” Appellant’s App. p. 23. The initial article of the UMO Agreement sets forth

Specialty Foods’ “exclusive rights in connection with” the Hall of Fame and granted

Specialty Foods the right to be the exclusive provider of food and beverages in the Hall

of Fame. Id. (emphasis added). In addition, Specialty Foods acknowledged in the UMO

Agreement that it had reviewed and agreed to act in conformity with the License

                                            9
Agreement and the Management Agreement, a portion of which states that the parties

recognize “their collective goal of enhancing and maximizing attendance at the Hall of

Fame.” Id. at 23, 44. Moreover, the License Agreement provides that the City agreed to

continuously use the building to operate the Hall of Fame and to provide prompt and

efficient service to all of the customers of and visitors to the Hall of Fame. Id. at 78.

       In considering these circumstances surrounding the making of the UMO

Agreement and the purpose the parties intended to accomplish by entering into the

contract, it is clear that Specialty Foods’ operation in the Hall of Fame building was

ancillary to and contingent upon the existence of the Hall of Fame. After having the Hall

open for several years, the City and the Century Center decided to have Specialty Foods

provide food and drinks to the visitors of the Hall. The purpose was to use the services of

Specialty Foods, the ancillary vendor, to enhance the products and services of the Hall of

Fame, the primary business, in order to make the Hall of Fame a facility of the highest

quality as stated in the UMO Agreement. Thus, when the Hall of Fame ceased to exist in

South Bend, so too did the need for the services provided by Specialty Foods.

       Therefore, given the language used in the force majeure provision and elsewhere

in the contract, the nature of the agreement, the circumstances surrounding the execution

of the contract, and the apparent purpose of making the contract, we conclude that the

terms of the force majeure provision excusing performance for “any other reason not

within the reasonable control of Century Center” includes the closure and relocation of

the Hall of Fame. Certainly, the phrase “any other reason” includes a broad spectrum of

                                              10
events, and the Hall of Fame’s closure and departure from South Bend was a cause not

within the reasonable control of the City or the Century Center. Therefore, we hold, as a

matter of law, that the City’s or the Century Center’s inability to perform was solely due

to an event of force majeure as defined in the contract.

                                     CONCLUSION

       For the reasons stated, we conclude that the force majeure provision of the UMO

Agreement is applicable to excuse the Century Center’s non-performance of its

obligations under the Agreement because the closure of the Hall of Fame in South Bend

constitutes a “reason not within the reasonable control of Century Center.”

       Affirmed.

BARNES, J., and CRONE, J., concur.




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