      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
                                                                           Jan 21 2016, 8:56 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Tracy D. Knox                                            John D. LaDue
      Brian E. Casey                                           John Conway
      BARNES & THORNBURG LLP                                   Paul Edgar Harold
      South Bend, Indiana                                      LADUE CURRAN & KUEHN LLC
                                                               South Bend, Indiana




                                                 IN THE
          COURT OF APPEALS OF INDIANA

      B&R Oil Company, Inc. and                                January 21, 2016
      Atlas Oil Company                                        Court of Appeals Case No.
      Appellants-Defendants,                                   71A03-1503-PL-114
                                                               Appeal from the St. Joseph
              v.                                               Superior Court
                                                               The Honorable Jenny Pitts Manier,
      William E. Stoler, et al.,                               Judge
      Appellees-Plaintiffs                                     Trial Court Cause No.
                                                               71D05-1102-PL-34



      Altice, Judge.


[1]   This case arises out of a legal dispute between B&R Oil Company (B&R) and

      Atlas Oil Company (Atlas) (collectively, the Oil Companies) and eighteen of

      their gas station tenants (the Tenants). The Tenants claim, and the trial court
      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016      Page 1 of 23
      found, that an oral settlement agreement was reached at a November 2014

      mediation. After the mediation, but before the written agreement was finalized,

      an unrelated legal dispute arose between B&R and two of the Tenants, William

      and Kathlyn Stoler (the Stolers) and Jeffery Levy, regarding the rights of first

      refusal in their respective leases. Counsel for the Oil Companies and the

      Tenants agreed to include language in the written settlement agreement

      providing that the settlement would not release the Stolers’ and Levy’s right-of-

      first-refusal claims. However, the Oil Companies subsequently refused to

      execute the written agreement and insisted on a full, unconditional release of

      claims, including specifically the right-of-first-refusal claims. The Tenants filed

      a motion to enforce the settlement agreement and, after a hearing, the trial

      court entered judgment in their favor. Specifically, the trial court concluded

      that an enforceable oral settlement was reached at the November 2014

      mediation and that the settlement was limited to issues raised in the instant

      litigation. In other words, the Stolers’ and Levy’s right-of-first-refusal claims

      remained viable.


[2]   The Oil Companies now appeal and argue that the trial court erred in

      concluding that the parties reached an enforceable oral settlement agreement at

      the November 2014 mediation because neither the representatives of the Oil

      Companies nor the representatives of the Tenants present on that date had

      settlement authority. They also argue that no enforceable settlement was

      reached because the parties did not agree on all material terms. The Oil

      Companies further argue that the trial court abused its discretion by refusing to


      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 2 of 23
      permit them to cross-examine the Tenants’ counsel, John Conway, concerning

      who had settlement authority for the Tenants.


[3]   We affirm.1


                                       Facts & Procedural History


[4]   Atlas is a national fuel supply, logistics, and service company. B&R is a

      regional distributor of oil and gas and an affiliate of Atlas. At the time relevant

      to this case, B&R owned numerous retail gas stations in Indiana and Michigan,

      some of which they leased to the Tenants. The Tenants were also parties to

      gasoline supply agreements entered into with B&R and Atlas. This case stems

      from a legal dispute between the Tenants and the Oil Companies concerning

      ethanol sales between 2007 and 2009. The specifics of the dispute are not

      material to the case before us, but in short, the Tenants alleged that the Oil

      Companies artificially inflated the wholesale cost of ethanol they provided to

      the Tenants. As a result, the Tenants alleged that they were deprived of

      commissions from the sale of ethanol to which they were contractually entitled.

      In 2010, the Tenants filed suit against the Oil Companies in St. Joseph Superior

      Court claiming that B&R owed them commissions for the sale of gasoline.


[5]   After three years of litigation, the parties met for court-ordered mediation in

      February 2014. In attendance on behalf of the Oil Companies were William




      1
       We held oral argument in this matter on December 3, 2015. We commend counsel on the quality of their
      written and oral advocacy.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016     Page 3 of 23
      Shaver, a non-lawyer, management-level employee of the Oil Companies; John

      Ortoleva, in-house counsel for the Oil Companies; and Dean Groulx, outside

      counsel for B&R. In attendance for the Tenants were attorneys Conway and

      John LaDue, and Tenants William Stoler, Craig Ferrara, and Tim Cira.

      During this mediation session, one of the Tenants settled his claims against the

      Oil Companies. Shaver signed the written settlement agreement on behalf of

      the Oil Companies. The remaining Tenants were unable to reach an agreement

      with the Oil Companies, and the litigation continued.


[6]   The Oil Companies later filed a motion to sanction the Tenants for not having

      all of the Tenants physically present at the mediation. In their sanctions

      motion, the Oil Companies alleged that, unlike the Tenants, the Oil

      Companies’ party representatives were physically present at the mediation. The

      trial court granted the motion and imposed a monetary sanction. On the same

      date, however, the Oil Companies filed a motion to withdraw their request for

      sanctions. The trial court granted the motion and vacated its order imposing

      sanctions.


[7]   On November 4, 2014, the parties again met to try to settle the case. Shaver,

      Ortoleva, and Groulx again attended on behalf of the Oil Companies.

      Attorneys Conway and LaDue attended for the Tenants, as well as Tenants

      Stoler, Ferrara, and Cira. The parties disagree as to the outcome of this

      settlement conference. The Tenants assert that the parties reached an

      agreement as to all material terms. Conway testified that he was never told that

      anyone else from the Oil Companies needed to approve the terms of the

      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 4 of 23
      settlement. The Oil Companies claim that the parties came to an agreement on

      some issues that had previously prevented settlement, but they did not agree on

      all material terms of a settlement. Specifically, the Oil Companies assert that

      the parties did not agree on the nature and scope of the release to be executed.

      The Oil Companies further assert that the parties agreed that there would be no

      binding settlement until the agreement was reduced to writing and reviewed

      and approved by Michael Evans, the president and chief operating officer of

      Atlas. The trial court expressly rejected the Oil Companies’ version of events

      and credited that of the Tenants.


[8]   The parties agree that they reached an agreement on the following terms:


           The Oil Companies would pay Tenants a lump sum of money.

           The Oil Companies would make improvements to some of the Tenants’

              facilities.

           The Oil Companies would fund the settlement within thirty days.

           The Oil Companies would dismiss a related arbitration proceeding

              against Jim Wegner, one of the Tenants’ witnesses and a former

              employee of the Oil Companies.

           The Tenants would dismiss the litigation with prejudice.

           Groulx would reduce the agreement to writing following the settlement

              conference.

[9]   Groulx did not deliver a first draft of the written settlement agreement (the

      Written Agreement) to Conway until December 4, 2014—thirty days after the

      settlement conference. Conway contacted Groulx in the interim asking about
      Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 5 of 23
       his progress on drafting the Written Agreement. Groulx apologized for the

       delay and requested wiring instructions from the Tenants, which Conway

       promptly provided. Because it appeared that progress was being made toward

       finalizing the settlement, the Tenants decided to waive the settlement term

       requiring the Oil Companies to fund the settlement within thirty days.


[10]   Sometime between December 4 and December 12, the Stolers and Levy

       received notice from B&R that another company, Empire Petroleum Partners,

       LLC, had agreed to purchase substantially all of B&R’s assets for $80 million.

       Because the asset purchase agreement triggered the Stolers’ and Levy’s rights of

       first refusal on the gas stations they leased from B&R, B&R sought to have the

       Stolers and Levy either waive their rights of first refusal or match the entire $80

       million purchase price.


[11]   The Stolers and Levy refused to waive their rights and, instead of matching the

       $80 million purchase price for all of B&R’s assets, requested that B&R provide

       them with a price to purchase only their respective gas stations. When B&R

       refused to do so, the Stolers and Levy brought a separate lawsuit against B&R

       seeking to enforce their rights of first refusal. That suit is currently pending in

       the St. Joseph Circuit Court.


[12]   The first draft of the Written Agreement Groulx emailed to Conway on

       December 4 contained a unilateral release of all of the Tenants’ claims against

       the Oil Companies, running from the beginning of time through the “Effective

       Date” of the Written Agreement, which was listed as “December ____, 2014.”


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 6 of 23
       Exhibit 2B. Conway communicated to Groulx that the Tenants wanted the

       release to be mutual, i.e., that the Oil Companies should also execute a general

       and unconditional release of all claims against the Tenants. Groulx declined

       this request, and in an email dated December 11, 2014 proposed to include a

       release running from the Oil Companies to the Tenants “limited to freight, and

       ethanol and motor fuel pricing issues from 2007 through 2009.” Appellant’s

       Appendix at 366. Conway responded to Groulx’s email the next day, asking for

       either mutual general releases or for the Tenants’ release to also be limited to

       freight, ethanol, and motor fuel pricing from 2007 through 2009. In the same

       email, Conway made reference to the Empire asset purchase agreement, but the

       Stolers’ and Levy’s rights of first refusal were not mentioned.


[13]   The Tenants subsequently accepted the draft language providing for a general

       release from the Tenants and a limited release from the Oil Companies, with

       one addition. In an email dated December 16, 2014, Conway indicated that

       “we accepted your release language but added a sentence clarifying that

       plaintiffs are not releasing any claims regarding their rights of first refusal with

       respect to the Empire transaction.” Id. at 364. This sentence, which the parties

       refer to as “the Carve Out,” reads as follows: “The parties agree that the release

       of claims does not release any claims involving the Plaintiffs’ right of first

       refusal contained in their respective leases.” Exhibit 2(B). Groulx did not object

       to the inclusion of this language in the Written Agreement. Two days later, on

       December 18, Conway had a telephone conference with Groulx, Ortoleva, and

       another of the Oil Companies’ in-house lawyers, Philip Carbone. During the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 7 of 23
       conversation, the attorneys agreed to include the Carve Out in the written

       settlement agreement.


[14]   Later that same day, at 4:07 p.m., Groulx emailed the final Written Agreement

       containing the Carve Out to Conway and copied Ortoleva and Carbone. In the

       same email, Groulx stated that “my client is prepared to sign and fund the

       settlement.” Appellant’s Appendix at 550. Seven minutes later, Conway

       responded: “This agreement is acceptable and I will obtain signatures.” Id.

       Twenty-three minutes later, Groulx responded: “We spoke too soon on our

       end. We need to obtain approval for the proposed changes from management

       at Atlas before we can finalize the settlement.” Id.


[15]   The next day, in an email to Carbone on which Groulx and Ortoleva were

       copied, Conway wrote that the Tenants were ready to close on the settlement

       and that “[t]he resolution of the right of first refusal issue should not be tied to

       the completion of the settlement as you suggested.” Id. at 555. In an email two

       days later, Carbone told Conway that the Oil Companies would “not agree to

       move forward with the proposed settlement unless the settlement agreement

       includes provisions for the Stolers and Levy to waive the right of first refusal in

       both of their respective leases.” Id. at 554.


[16]   The Stolers and Levy declined to waive their rights of first refusal, and on

       January 26, 2015, the Tenants filed their verified motion to enforce the

       settlement agreement. The Oil Companies filed their verified response on




       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 8 of 23
       February 6, 2015. A bench trial was held on February 10, 2015, at which both

       Conway and Groulx testified.


[17]   Conway testified that he first became aware of Evans’s purported involvement

       in the settlement when he received the Oil Companies’ verified response to the

       motion to enforce the settlement agreement, which was signed by Evans.

       Conway also testified that the Oil Companies’ representatives with settlement

       authority were present at the November 4 settlement conference and that an

       agreement was reached on all material terms that day. Groulx, on the other

       hand, testified that Evans, and only Evans, had settlement authority on behalf

       of the Oil Companies, and that the Oil Companies’ representatives had

       conferred with Evans by telephone during breaks in the mediation that day.

       Groulx further testified that Evans’s role had been communicated to Conway

       both before and during the mediation, and that the parties had agreed only on a

       framework for a proposed settlement in November 2014, and that Evans had

       not approved any settlement. When confronted with the facts that Evans had

       not been present at the February 2014 settlement conference and had not signed

       the agreement reached that day to settle one of the Tenants’ claims, Groulx

       claimed that he had conferred with Evans by telephone during breaks on that

       date and that Evans had approved the resulting settlement.


[18]   On March 5, 2015, the trial court entered a detailed order granting the Tenants’

       motion to enforce the Written Agreement and setting forth special findings and

       conclusions thereon. In the order, the trial court resolved the conflict between

       Conway’s and Groulx’s testimonies in Conway’s favor, expressly finding him

       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 9 of 23
       to be a “credible witness.” Id. at 22. The trial court also listed specific reasons

       for discounting Groulx’s testimony that Evans was the only one with authority

       to enter into a settlement agreement for the Oil Companies. The trial court also

       found that Conway reasonably understood Ortoleva to be the person

       authorized to act as the Oil Companies’ agent for settlement purposes. The trial

       court further found that the parties reached an agreement as to the material

       terms of the settlement at the November 2014 mediation, and that settlement

       was later memorialized in the Written Agreement. Finally, the trial court

       found that the settlement was limited to issues raised in the instant litigation,

       namely, freight charges and ethanol and motor fuel charges from 2007 through

       2009. Thus, Stoler’s and Levy’s claims under their rights of first refusal

       remained viable. The Oil Companies now appeal.


                                             Standard of Review


[19]   At the Oil Companies’ request, the trial court entered special findings and

       conclusions thereon pursuant to Trial Rule 52. We therefore apply a two-tiered

       standard of review, first determining whether the evidence supports the trial

       court’s findings, and then whether the findings support the judgment. Infinity

       Products, Inc. v. Quandt, 810 N.E.2d 1028, 1031 (Ind. 2004). We will not disturb

       the findings or judgment unless they are clearly erroneous. Id.


[20]   “The particular clearly erroneous standard that is to be employed depends upon

       whether the appealing party appeals a negative or an adverse judgment.”

       Romine v. Gagle, 782 N.E.2d 369, 376 (Ind. Ct. App. 2003), trans. denied. “A


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 10 of 23
       negative judgment is one entered against a party who bears the burden of proof,

       while an adverse judgment is one entered against a party defending on a given

       question.” Serenity Springs v. LaPorte Cnty. Convention & Visitors Bureau, 986

       N.E.2d 314, 319 (Ind. Ct. App. 2013) (quoting Garling v. Ind. Dep’t of Natural

       Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002), trans. denied). In this case, the

       trial court entered judgment in favor of the Tenants, i.e., the parties bearing the

       burden of proof at trial. See OVRS Acquisition Corp. v. Cmty. Health Servs., 657

       N.E.2d 117, 125 (Ind. Ct. App. 1995) (noting that a party seeking to establish

       the validity of a contract bears the burden of proving its existence), trans. denied.

       The Oil Companies are therefore appealing an adverse judgment. Accordingly,

       “we hold the trial court’s findings clearly erroneous if they are not supported by

       substantial evidence of probative value.” Serenity Springs, 986 N.E.2d at 319.

       Even if the evidence is substantial, we will reverse the judgment if we are left

       with a definite and firm conviction a mistake has been made. Id.


[21]   Additionally, to the extent that our disposition of this case turns on the

       resolution of questions of law, our review is de novo. See Zukerman v.

       Montgomery, 945 N.E.2d 813, 818 (Ind. Ct. App. 2011). Whether a contract

       exists is ultimately a question of law. Sands v. Helen HCI, LLC, 945 N.E.2d 176,

       180 (Ind. Ct. App. 2011), trans. denied.


                                                  1. Authority


[22]   “Indiana strongly favors settlement agreements and if a party agrees to settle a

       pending action, but then refuses to consummate his settlement agreement, the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 11 of 23
       opposing party may obtain a judgment enforcing the agreement.” Id. As a

       general matter, a settlement agreement need not be in writing to be enforceable.

       Id. “Settlement agreements are governed by the same general principles of

       contract law as any other agreement.” Vance v. Lozano, 981 N.E.2d 554, 558

       (Ind. Ct. App. 2012).


[23]   The Oil Companies’ primary argument on appeal is that no binding settlement

       agreement was reached at the November 2014 mediation because the

       individuals present did not have settlement authority. “Authority is the power

       of the agent to affect the legal relations of the principal by acts done in

       accordance with the principal’s manifestations of consent to him.” Koval v.

       Simon Telelect, Inc., 693 N.E.2d 1299, 1302 (Ind. 1998) (quoting Restatement

       (Second) of Agency § 7 (1958)). Our Supreme Court has explained that there

       are two main classifications of authority: actual authority and apparent

       authority. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000).


               Actual authority is created “by written or spoken words or other
               conduct of the principal which, reasonably interpreted, causes the
               agent to believe that the principal desires him so to act on the
               principal’s account.” Scott v. Randle, 697 N.E.2d 60, 66 (Ind. Ct.
               App. 1998), transfer denied; see Restatement (Second) of Agency §§
               7, 33 (1958). Apparent authority refers to a third party’s
               reasonable belief that the principal has authorized the acts of its
               agent, Pepkowski v. Life of Indiana Ins. Co., 535 N.E.2d 1164, 1166-
               67 (Ind. 1989); it arises from the principal’s indirect or direct
               manifestations to a third party and not from the representations
               or acts of the agent, id.; Drake v. Maid-Rite Co., 681 N.E.2d 734,
               737-38 (Ind. Ct. App. 1997), reh’g denied.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 12 of 23
       Id.


[24]   We first address the Oil Companies’ argument that none of the representatives

       present at the November 2014 mediation had authority to settle on the Oil

       Companies’ behalf. Specifically, the Oil Companies argue that the only party

       with actual settlement authority was Evans, and that neither Groulx nor

       Ortoleva had apparent authority.


[25]   With respect to actual authority, the trial court expressly rejected the Oil

       Companies’ claim that Evans possessed sole settlement authority. In support of

       its conclusion, the court gave several reasons for finding Groulx’s testimony to

       that effect to be implausible. First, the trial court noted that Evans was not

       present in person at the February 2014 settlement conference. Instead, Groulx,

       Shaver, and Ortoleva attended on behalf of the Oil Companies, and Shaver, not

       Evans, signed the settlement reached that day with one of the Tenants.

       Moreover, the Oil Companies later filed a motion for sanctions against the

       Tenants for violating a local rule requiring the presence of a representative with

       full settlement authority. As the trial court noted, “[i]f Groulx’s testimony is to

       be believed as to Evans’ authority, he invoked the Court’s extraordinary power

       to impose a sanction for a violation of a rule he himself was guilty of violating.”

       Appellant’s Appendix at 23. The court also noted that Groulx raised no objection

       to the Carve Out and that it was only after Groulx stated that his clients were

       ready to sign the Written Agreement that Groulx backtracked and stated that he

       needed consent from management.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 13 of 23
[26]   It is also noteworthy that Evans did not attend the November 2014 settlement

       conference, and unlike Ortoleva, he was not copied on any of the email traffic

       that followed. Indeed, Conway testified that he first became aware of Evans’s

       involvement when the Oil Companies filed their response to the motion to

       enforce the settlement agreement. Additionally, Evans did not appear or testify

       at the evidentiary hearing in this matter. Under these facts and circumstances,

       the trial court’s finding that Evans did not appropriate sole settlement authority

       to himself was not clearly erroneous.


[27]   Nevertheless, the Oil Companies note that the trial court made no express

       finding that anyone present at the November 2014 had actual authority to settle

       the case on the Oil Companies’ behalf. They note further that no evidence was

       presented of any words or actions of the Oil Companies that would lead

       Groulx, Ortoleva, or Shaver to believe that they had settlement authority or that

       they understood that they possessed such authority. We note, however, that

       such evidence is peculiarly within the knowledge of the Oil Companies, and

       without an admission of actual authority, the Tenants could rely only upon

       inference. By finding that Evans was not the only person with actual settlement

       authority, the trial court implicitly found that that at least one other person

       possessed such authority. Based on our reading of the trial court’s order as a

       whole, it is apparent to us that the trial court believed that at least one of the Oil

       Companies’ representatives present at the November 2014 mediation, whether

       it be Groulx, Ortoleva, or Shaver, had actual settlement authority.                      This

       inference was not clearly erroneous, and the Oil Companies’ arguments to the


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016    Page 14 of 23
       contrary are simply requests to reweigh the evidence and judge witness

       credibility, which we will not do on appeal.


[28]   The trial court also made an express finding that Ortoleva had apparent

       authority. Specifically, the trial court found that:


               Defendants sent Groulx, Ortoleva and Sha[v]er to the Court-
               ordered mediation that occurred February, 2014. Ortoleva has
               not represented [the Oil Companies] in these court proceedings.
               The presence of Ortoleva and Sha[v]er at the Court-ordered
               mediation was reasonably understood by Conway, when
               considered in the light of all the evidence, as a representation by
               [the Oil Companies] that Ortoleva was a person authorized to act
               as [the Oil Companies’] agent and approve a settlement
               agreement for [the Oil Companies].


       Id. at 24 (footnote omitted).


[29]   The Oil Companies argue that Ortoleva’s presence at the February and

       November 2014 mediations cannot support a finding of apparent authority

       because apparent authority must arise from the direct or indirect

       communications of the principal, not the actions of the agent. The Oil

       Companies argue further that apparent authority to settle cannot arise solely

       from Ortoleva’s status as the Oil Companies’ in-house attorney. In support of

       this argument, the Oil Companies direct our attention to Koval, in which our

       Supreme Court explained that “the sole act of retaining an attorney does not

       give the attorney the implied or the apparent authority to settle or compromise

       a claim in an out of court proceeding.” 693 N.E.2d at 1301. Although

       retention of an attorney alone is not a manifestation by the client to third parties

       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 15 of 23
       that an attorney has apparent authority to settle, apparent authority may be

       conferred by other actions of the client. Id. at 1304.


[30]   The Oil Companies’ arguments on the subject of apparent authority

       misconstrue the basis for the trial court’s findings. The trial court did not base

       its finding solely on Ortoleva’s status as the Oil Companies’ in-house attorney

       or on his mere presence at the mediations. Rather, it was the actions of the Oil

       Companies in sending Ortoleva, Shaver, and Groulx to the mediations as their

       representatives that formed the basis of the trial court’s finding that Ortoleva

       was clothed with apparent authority to settle. By sending only these individuals

       to the February 2014 mediation, at which the parties were required to have

       representatives with full settlement authority present, the Oil Companies

       represented to the Tenants that the individuals present had such authority. The

       representation was bolstered when the Oil Companies filed a motion for

       sanctions against the Tenants for not having representatives with full settlement

       authority present at the February 2014 mediation. By making such a

       complaint, the Oil Companies implicitly asserted that their representatives at

       the mediation possessed such authority. In light of this sequence of events,

       when the Oil Companies sent the same representatives to the November 2014

       mediation, it was reasonable for the Tenants to believe that at least one of those

       representatives still had settlement authority. Accordingly, the trial court’s

       finding that Ortoleva had apparent authority to settle the case was not clearly

       erroneous.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 16 of 23
[31]   The Oil Companies also argue that no binding settlement agreement could have

       been reached at the November 2014 settlement conference because the Tenants’

       representatives lacked settlement authority. We note, however, that the Oil

       Companies did not raise the issue of the Tenants’ settlement authority in their

       response to the Tenants’ motion to enforce the settlement agreement. Nor did

       counsel raise the argument at the evidentiary hearing. During cross

       examination, counsel for the Oil Companies asked Conway, “[w]ho has

       settlement authority on your behalf? In your case, on your behalf, who has the

       authority to settle your claims?” Transcript at 52. The following exchange

       ensued:

               [Tenants’ Counsel]: Objection. Mr. Conway is not a party to
               this lawsuit.


               The Court: What’s the purpose of your—


               [Oil Companies’ Counsel]: The point of that is the person who
               has settlement authority on his half [sic], we may not even know.
               The—the—B&R may not know who that person is, because it
               may not be somebody you deal with. The point is you deal with
               the lawyer face-to-face.


               [Tenants’ Counsel]: Your Honor, I’m going to object. Whether
               the [Tenants] had settlement authority is not an issue. We’re
               conceding we had—


               The Court: I think you’re making an argument rather than a
               factual point. So sustained.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 17 of 23
       Id.


[32]   Although counsel for the Oil Companies asked about the Tenants’ settlement

       authority, he did not make it clear in his response to the Tenants’ objection that

       he sought to introduce such evidence to support an argument that there was no

       binding agreement because the Tenants lacked settlement authority. Instead, it

       appears that counsel for the Oil Companies sought to elicit such testimony

       simply to demonstrate that it is not always clear who has settlement authority in

       such negotiations. It is well-settled that “[a]n appellant who presents an issue

       for the first time on appeal waives the issue for purposes of appellate review.”

       Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425,

       436 n.2 (Ind. Ct. App. 2004). Because the Oil Companies did not raise the

       issue of the Tenants’ settlement authority at trial, it has been waived.


                                              2. Material Terms


[33]   The Oil Companies next argue that even if the representatives at the November

       2014 mediation had settlement authority, no enforceable oral agreement was

       reached on that date because the parties did not reach an agreement on all

       material terms. As this court has noted, “[i]f a party cannot demonstrate

       agreement on one essential term of the contract, then there is no mutual assent

       and no contract is formed.” Schuler v. Graf, 862 N.E.2d 708, 715 (Ind. Ct. App.

       2007) (quoting Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App.

       2005)), trans. denied. Moreover,



       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 18 of 23
               [p]arties may make an enforceable contract which obligates them
               to execute a subsequent final written agreement. However, it is
               necessary that agreement shall have been expressed on all
               essential terms that are to be incorporated in the document. In
               other words, the document is understood to be a mere memorial
               of the agreement already reached and may not contain a material
               term that is not already agreed on.


       Sands, 945 N.E.2d at 180 (citations omitted).


[34]   The Oil Companies argue that the communications between Conway and

       Groulx following the November 2014 settlement conference demonstrate that

       the parties did not agree on at least one material term—the scope of the

       releases. According to the Oil Companies, the negotiations concerning the

       language of the releases amounted to continuing offers and counter-offers,

       indicating that no binding contract was formed at the November 2014

       mediation. The Oil Companies argue further that the release was clearly

       material, and they cite federal case law for the proposition that the details of a

       release are an inherently material term in a settlement agreement.


[35]   The evidence presented at trial supports the Oil Companies’ claim that the

       parties continued to negotiate concerning the release language after the

       November 2014 mediation. Specifically, the first draft of the Written

       Agreement contained an unconditional, unilateral release of claims in the Oil

       Companies’ favor. The Tenants responded by asking for mutual releases. The

       Oil Companies responded by proposing that the Oil Companies would release

       claims relating to relevant pricing issues from 2007 through 2009. Conway


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 19 of 23
       responded that the releases should be mutual, and proposed either limiting the

       scope of the Tenants’ releases in the same manner or agreeing to other language

       he proposed. Finally, Conway agreed to the limited release of the Oil

       Companies’ claims and proposed the Carve Out, and Groulx and Ortoleva

       found this language acceptable.


[36]   The fact that the parties did not immediately agree on the language of the

       Written Agreement does not conclusively establish that the parties did not reach

       an agreement on all material terms at the November 2014 mediation. Instead,

       the ongoing negotiations may simply indicate that the parties initially disagreed

       as to whether the proposed draft agreement accurately captured the material

       terms of the settlement reached at the mediation. In any event, we agree that

       the Tenants’ release was unquestionably material; as the Oil Companies note,

       the release of the plaintiff’s claims is among the most material terms in a

       settlement agreement. But the Tenants’ release of their claims was not the

       subject of the post-mediation negotiations. Rather, the parties negotiated the

       language of the Oil Companies’ release of its claims. Specifically, Groulx did

       not include any language releasing the Oil Companies’ claims in the first draft

       of the Written Agreement, and the negotiations stemmed from Conway’s

       efforts to include such language. But the Oil Companies asserted no

       counterclaims against the Tenants in the underlying litigation, and from our

       review of the record, it does not appear that the Oil Companies had any claims

       to bring against the Tenants. Under the facts and circumstances of this case, we

       cannot conclude that the Oil Companies’ release of apparently nonexistent


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 20 of 23
       claims is a material term. See Wolvos v. Meyer, 668 N.E.2d 671, 676 (Ind. 1996)

       (noting that “only essential terms need be included in order to render a contract

       enforceable”).


[37]   Furthermore, the evidence supports a conclusion that the parties reached an

       agreement with respect to the scope of the Tenants’ release of their claims at the

       November 2014 mediation. Specifically, the trial court found that the parties

       agreed that the Tenants would release the claims asserted in the underlying

       litigation. The first draft of the Written Agreement provided that the Tenants

       would release all claims against the Oil Companies from the beginning of time

       through the Effective Date of the agreement, which was listed as “December

       ____, 2014.” Exhibit 2B. Presumably, the Effective Date was to be the date the

       Written Agreement was executed. At the time the Written Agreement was first

       drafted, the Effective Date was not critical because no new claims had arisen

       following the November 2014 mediation. It was not until after the Tenants

       became aware of the Empire transaction and the dispute concerning the Stolers’

       and Levy’s rights of first refusal arose that it became necessary to clarify that

       those claims had not been released. While the parties could have accomplished

       this by agreeing to an earlier Effective Date, Conway instead proposed the

       Carve Out.2 The addition of the Carve Out prompted no objections from

       Groulx, Ortoleva, or anyone else at the Oil Companies, suggesting that the



       2
        For this reason, we are unpersuaded by the Oil Companies’ argument that Conway’s failure to change the
       Effective Date demonstrates that the parties did not intend to be bound until the Written Agreement was
       executed.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016      Page 21 of 23
       Carve Out reflected the agreement previously reached at the November 2014

       mediation.3 The Oil Companies’ arguments to the contrary are requests to

       reweigh the evidence and judge the credibility of witnesses, which we will not

       do on appeal.


                                          3. Admission of Evidence


[38]   The Oil Companies also argue that the trial court erred in refusing to permit

       them to question Conway concerning who had settlement authority for the

       Tenants. This court reviews the trial court’s rulings on the admission of

       evidence for an abuse of discretion. Decker v. Zengler, 883 N.E.2d 839, 845 (Ind.

       Ct. App. 2008), trans. denied. Accordingly, we reverse only where the decision

       is clearly against the logic and effect of the facts and circumstances presented.

       Id.


[39]   During cross examination, counsel for the Oil Companies asked Conway,

       “[w]ho has settlement authority on your behalf? In your case, on your behalf,

       who has the authority to settle your claims?” Transcript at 52. Counsel for the

       Tenants objected, arguing that Conway was not a party to the lawsuit. Counsel

       for the Oil Companies responded that the “point of that is the person who has

       settlement authority . . . we may not even know. . . . B&R may not know who




       3
         The Oil Companies also rely on language in the Written Agreement providing that “[t]his agreement may
       be signed in one or more counterparts and when taken together shall be deemed a complete agreement” for
       the proposition that the parties did not intend to be bound until the Written Agreement was signed. Again,
       we are unpersuaded. This language says nothing about the parties’ intent to be bound; rather, it simply
       allows the parties to sign separate copies of the Written Agreement.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016         Page 22 of 23
       that person is, because it may not be somebody you deal with. The point is you

       deal with the lawyer face-to-face.” Id. Counsel for the Tenants responded that

       the Tenants’ settlement authority was not at issue. The court ultimately

       sustained the objection, explaining that it believed that counsel for the Oil

       Companies was making an argument rather than a factual point.


[40]   On appeal, the Oil Companies argue that evidence concerning who had

       settlement authority for the Tenants was relevant because “[w]ithout authority

       to enter into a binding agreement for the absent [Tenants], the [Tenants] and

       counsel who participated in the November 4th meeting could not have reached a

       binding agreement.” Appellants’ Brief at 70. We note, however, that the Oil

       Companies did not make an offer of proof. As this court has noted, when the

       trial court rules that a witness may not testify on a certain subject, the

       proponent of the testimony must make an offer of proof to preserve the ruling

       for appellate review. Bedree v. Bedree, 747 N.E.2d 1192, 1196 (Ind. Ct. App.

       2001), trans. denied. An offer of proof provides this court with the information

       necessary to consider whether the trial court’s exclusion of the evidence was

       proper. Id. The failure to make on offer of proof results in waiver of the

       evidentiary issue. Id. Because the Oil Companies failed to make an offer of

       proof, their argument is waived.


[41]   Judgment affirmed.


[42]   Riley, J., and Brown, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016   Page 23 of 23
