                                                                                  FILED
                                                                              Dec 11 2017, 8:55 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Kevin W. Vanderground                                     John E. Hughes
Church, Church, Hittle & Antrim                           Kevin G. Kerr
Merrillville, Indiana                                     Hoeppner Wagner & Evans LLP
                                                          Valparaiso, Indiana
Rick C. Gikas
Merrillville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

U.S. Research Consultants, Inc.,                          December 11, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          45A05-1704-CC-902
        v.                                                Appeal from the Lake Superior
                                                          Court
The County of Lake, Indiana;                              The Honorable John M. Sedia,
Board of Commissioners of the                             Judge
County of Lake, Indiana, in their                         Trial Court Cause No.
official capacities; and the Lake                         45D01-1602-CC-20
County Treasurer, in his official
capacity,
Appellees-Defendants



Crone, Judge.




Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                           Page 1 of 19
                                              Case Summary
[1]   U.S. Research Consultants, Inc. (“USRC”), entered into a contract (“the

      Contract”) with the County of Lake, Indiana; Board of Commissioners of the

      County of Lake, Indiana, in their official capacities; and the Lake County

      Treasurer, in his official capacity (collectively “the County”), pursuant to which

      USRC agreed to provide collection services for delinquent real property taxes

      on behalf of the County and the County agreed to pay USRC a commission

      based on a percentage of the delinquent monies paid to the County on the cases

      for which USRC provided collection services. After the County terminated the

      Contract, USRC filed a claim for breach of contract against the County alleging

      that USRC was owed over $200,000 in unpaid commissions. The trial court

      granted summary judgment in favor of USRC, and the County appealed.

      Another panel of this Court reversed the trial court’s order and remanded. Cty.

      of Lake v. U.S. Research Consultants, Inc., 27 N.E.3d 1154 (Ind. Ct. App. 2015),

      trans. denied (“Lake County I”). After remand, the parties filed cross-motions for

      summary judgment. The trial court interpreted Lake County I as requiring

      USRC to file its claims for commissions with the County when the delinquent

      monies were paid to the County and found that USRC failed to prove that it

      had filed such claims. Therefore, the trial court denied USRC’s summary

      judgment motion and granted the County’s motion. The trial court entered

      final judgment against USRC and in favor of the County.


[2]   USRC appeals the grant of the County’s summary judgment motion. USRC

      argues that Lake County I does not require USRC to prove that it filed its claims

      Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 2 of 19
      for commissions within a specific time period. USRC also asserts that the

      County is not entitled to summary judgment on the basis that USRC failed to

      timely file its claims for commissions. Finally, USRC argues that it is entitled

      to prejudgment interest if it establishes that it is entitled to unpaid commissions.

      We agree on all three counts. Therefore, we reverse the grant of summary

      judgment in favor of the County and remand for a determination as to whether

      USRC performed the collection services required under the Contract entitling it

      to unpaid commissions and, if so, the amount of damages due USRC.


                                   Facts and Procedural History
[3]   The facts necessary for the determination of the issues in this appeal follow.1

      Between 2000 and 2006, USRC and the County were parties to a series of

      contracts. Appellant’s App. Vol. 3 at 15-20. For simplicity, we refer and cite to

      the Contract, effective January 1, 2005, to December 31, 2006, because the

      relevant language is the same in all of the contracts and most, if not all, of the

      remaining unpaid commissions at issue appear to be based on the Contract.

      Pursuant to the Contract, the County agreed to assign to USRC all of Lake

      County’s real property tax collection cases. USRC “agreed to report directly to

      the Lake County Treasurer for all instructions if necessary to carry out its

      responsibilities” and to “[c]ollect the delinquent monies through an organized

      procedure to include filing lawsuits to collect if necessary.” Id. at 15. The



      1
        Additional facts are provided in Lake County I, 27 N.E.3d at 1156-60. We observe that the County fails to
      set forth its statement of the facts in the light most favorable to the nonmovant, USRC, in contravention of
      Appellate Rule 46(A)(6)(b).

      Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                      Page 3 of 19
      Contract provides that taxes paid to the County prior to filing suit will be paid

      directly to the Lake County Treasurer and “[USRC] will then file a claim with

      the County of Lake for fees which should be paid from the funds established.”

      Id. at 16. The Contract further provides that USRC is entitled to a commission

      of 20% on taxes collected from all cases begun before June 4, 2003, and 15% of

      taxes collected thereafter. Id. at 17. Also, the Contract provides that the

      “services to be performed hereunder by [USRC] shall be undertaken and

      completed in such sequence as to assure their expeditious completion.” Id.


[4]   “The ‘organized procedure’ for collecting delinquent monies was for the

      County to periodically send a disc to [USRC] containing information about

      properties with delinquent taxes.” Lake County I, 27 N.E.3d at 1157. Although

      “the taxes were divided into ‘last year taxes,’ or taxes delinquent for less than one

      year, and ‘prior year taxes,’ or taxes delinquent for a year or more”, the treasurer

      instructed USRC to collect only on prior year taxes. Id. (emphases added). “To

      initiate the collection process, [USRC] sent a collection letter to taxpayers with

      delinquent prior year taxes.” Id. “[USRC] was not entitled to a commission on

      paid taxes unless a collection letter had first been sent.” Id. “Every few

      months, [USRC] would compare the letters it sent to the County’s tax payment

      records and submit a claim for commissions.” Id. at 1157-58. After the claim

      was submitted, USRC and the County met and agreed on the amounts that

      USRC was collecting. Id. at 1158.




      Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 4 of 19
[5]   The County terminated the Contract in November 2006.2 In March 2007,

      USRC submitted a claim to the County for payment of commissions, which the

      County paid. In May 2008, USRC filed its complaint against the County for

      breach of contract alleging that USRC was owed over $200,000 in unpaid

      commissions. The County filed an answer meeting the substantive allegations

      of the complaint but asserting no affirmative defenses.


[6]   In June 2011, USRC employee Clara Castro and Lake County Treasurer

      employee Marsha DeMure met and prepared Plaintiff’s Exhibit 4, a listing of

      collection letters, taxes collected, and alleged unpaid commissions. Exhibit 4

      included payments for “last year taxes” and “prior year taxes” and would serve

      as a major basis for USRC’s allegations of unpaid commissions in Lake County

      I. In the current appeal, Exhibit 4 continues to be significant because USRC

      alleges that Exhibit 4 supports its current demand for unpaid commissions

      based on payments for “prior year taxes” for which USRC had not previously

      submitted claims to the County.3


[7]   In June 2012, the parties filed a pretrial order, in which USRC alleged that it

      was owed over $1,000,000 in commissions and the County argued that USRC

      had “not supplied any information showing that letters or other follow-up



      2
        The Contract permitted either party to terminate the agreement with or without cause by giving written
      notice to the other party at least thirty days before the effective date of termination. Appellant’s App. Vol. 3
      at 18.
      3
       USRC states that in “the vast majority of the collection cases for which USRC seeks commissions,
      collection letters were sent out in May 2006 and the taxes were paid in the months following those letters.”
      Appellant’s Reply Br. at 18-19.

      Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                          Page 5 of 19
      procedures were conducted by [USRC].[4] In other words, [the County is]

      alleging that [USRC] did absolutely no work to collect any of the taxes.”

      Appellant’s Supp. App. Vol. 2 at 4-5.


[8]   In December 2012, USRC filed a motion for partial summary judgment. The

      County filed a response and cross-motion for partial summary judgment. In

      brief, the parties disputed the meaning of “delinquent monies,” as used in the

      Contract provision wherein USRC agreed to “[c]ollect the delinquent monies

      through an organized procedure to include filing lawsuits to collect if

      necessary.” Lake County I, 27 N.E.3d at 1156. USRC contended that

      delinquent monies unambiguously referred to all delinquent taxes, i.e.,both

      “last year taxes” and “prior year taxes” that were collected by the County. The

      County argued that delinquent monies meant only the tax cases the treasurer

      instructed USRC to pursue, which had included only prior year taxes.

      Following a hearing, on June 18, 2013, the trial court issued an order (“June

      18, 2013 order”) granting USRC’s motion for partial summary judgment “as it

      relates to the definition of ‘delinquent’” and denying the County’s motion.

      Appellant’s App. Vol. 5 at 10.


[9]   In September 2013, the County filed a motion for leave to amend its answer to

      assert the affirmative defenses of laches, estoppel, waiver, and accord and

      satisfaction. In October 2013, USRC filed a motion for summary judgment



      4
        The pretrial order mistakenly states “or other follow-up procedures were conducted by Defendant[,]” but
      logically the County must have meant USRC and not itself. Appellant’s Supp. App. Vol. 2 at 4.

      Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                    Page 6 of 19
       asserting that it was entitled to final judgment as a matter of law. In December

       2013, the County filed a motion for leave to amend the pretrial order and a

       response to USRC’s summary judgment motion.5


[10]   In December 2013, following a hearing on all outstanding motions, the trial

       court entered an order denying the County’s motion for leave to amend its

       answer and motion to amend the pretrial order and granting USRC’s motion

       for summary judgment. The trial court entered final judgment in favor of

       USRC and awarded damages of $1,076,896.92 and prejudgment interest in the

       amount of $393,000. Id. at 8.


[11]   The County appealed and challenged the trial court’s grant of USRC’s partial

       summary judgment motion, the denial of the County’s partial summary

       judgment motion, the denials of the County’s motion for leave to amend its

       answer and its motion to amend the pretrial order, and the grant of USRC’s

       summary judgment motion. Appellees’ App. Vol. 2 at 22-23. Although the

       County raised numerous issues, the Lake County I court found the following

       issue dispositive: “whether the trial court properly interpreted the collection

       contracts as a matter of law and therefore properly granted partial summary

       judgment to [USRC] and denied partial summary judgment to the County.” 27

       N.E.3d at 1155-56. In explaining the precise question of interpretation raised in

       the cross-motions for partial summary judgment, the Lake County I court stated,



       5
         The County’s motion for leave to amend its answer and motion to amend the pretrial order are not in the
       record before us. USRC merely cites to the entries in the chronological case summary.

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                    Page 7 of 19
               The specific question presented by the cross[-]motions for
               [partial] summary judgment was what [USRC] was hired to
               collect pursuant to the contract provision that [USRC] was to
               “[c]ollect the delinquent monies.” [USRC] took the position that
               it was to collect all delinquent taxes and was entitled to
               commissions on the total amount, whereas the County took the
               position that [USRC] was only to collect the [prior] year
               delinquent taxes as directed by the Treasurer and was only
               entitled to commissions on that amount even if additional
               delinquent taxes were paid.


       Id. at 1161 (citation omitted).


[12]   The Lake County I court concluded that the trial court erred in interpreting the

       Contract based on the following analysis:


               All the clauses are given meaning when the contracts as a whole
               are construed to mean that [USRC] is to collect “the delinquent
               monies” associated with the real property tax collection cases
               assigned to it at the Treasurer’s instruction and that [USRC] earns
               commissions on those amounts. That the contracts require
               [USRC] to be assigned one-hundred percent of the real property
               tax collection cases means only that no tax collection cases will
               be assigned to any other entity for collection, not that [USRC]
               will be assigned all delinquent tax accounts. In other words, the
               contracts allow the Treasurer to decide which cases are tax collection
               cases, assign those to [USRC] and instruct [USRC] to carry out its
               collection responsibilities with respect to those cases. The contracts
               then require [USRC] to attempt to collect the delinquent monies
               from those collection cases and file a claim for its commissions
               when those delinquent monies are paid to the County.


               ….



       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 8 of 19
               The trial court erred as a matter of law in determining that the
               collection contracts meant [USRC] was entitled to collect all
               delinquent taxes and therefore erred in granting partial summary
               judgment to [USRC] and denying summary judgment to the
               County on this issue. We reverse the trial court’s June 18, 2013
               order granting partial summary judgment to [USRC], and
               remand with instructions for the trial court to enter partial
               summary judgment for the County on the issue of the
               interpretation of the collection contracts and to conduct further
               proceedings on [USRC]’s complaint regarding whether [USRC]
               is owed any unpaid commissions on prior year taxes collected and
               if so, the amount of those unpaid commissions.


       Id. at 1161-62 (emphases added).


[13]   After the case was remanded, in October 2016, the County moved for summary

       judgment asserting that, as a matter of law, all of USRC’s claims for

       commissions on collections on last year taxes were barred by Lake County I;

       USRC did not submit claims for commissions on collections on prior year taxes

       listed in Exhibit 4 in an expeditious or reasonable time; and there is no valid

       claim for prejudgment interest. Appellant’s App. Vol. 2 at 112. USRC

       responded with its own cross-motion for summary judgment and designated

       evidence in support thereof arguing that the County’s defense, i.e., laches, was

       waived; the evidence showed that USRC had sent all the collection letters for

       which it was claiming commissions; and USRC was entitled to $197,628.50

       plus prejudgment interest of $136.260.57. Appellant’s App. Vol. 7 at 4. The

       County filed a reply in support of its summary judgment motion and a response

       to USRC’s cross-motion for summary judgment.


       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 9 of 19
[14]   Following a hearing, in March 2017, the trial court issued an order (“the

       Order”) granting the County’s summary judgment motion and denying

       USRC’s. In relevant part, the Order reads as follows:


               The Court of Appeals’ instructions are clear: the trial court is to
               enter partial summary judgment in favor of Lake County on the
               issue of the interpretation of the contracts. The Court of Appeals
               interpreted the contracts to mean as follows:


                        The contracts require [USRC] to attempt to collect the
                        delinquent monies from those collection cases and file a
                        claim for its commissions when those delinquent monies
                        are paid to Lake County, County of Lake, id., 27 N.E.3d at
                        1161, emphasis supplied.


               The Court of Appeals found and required this Court to enter
               summary judgment that the contracts required [USRC] to file a
               claim for its commissions when the delinquent monies were paid
               to Lake County. [USRC] failed to do so. As a result, [USRC]
               cannot prevail on its claim because it failed to prove that it
               performed what the contracts required it to perform: to make a
               claim for its commissions when the delinquent monies were paid
               to Lake County.


       Appealed Order at 3-4. The Order grants nothing to USRC by way of its

       complaint and final judgment in favor of the County. This appeal ensued.




       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 10 of 19
                                        Discussion and Decision
[15]   USRC appeals the grant of the County’s summary judgment motion.6 In

       reviewing a grant of summary judgment, our standard of review is de novo.

       Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).


                 On appeal from the grant or denial of summary judgment, we
                 face the same issues that were before the trial court and follow
                 the same process. Summary judgment is appropriate only where
                 the designated evidence shows there are no genuine issues of
                 material fact and the moving party is entitled to judgment as a
                 matter of law. Ind. Trial Rule 56(C). We do not weigh the
                 evidence, and we liberally construe all designated evidence in the
                 light most favorable to the nonmoving party. A trial court’s grant
                 of summary judgment is clothed with a presumption of validity,
                 and the appellant has the burden of demonstrating that the grant
                 of summary judgment was erroneous.


       Preferred Prof’l Ins. Co. v. West, 23 N.E.3d 716, 726 (Ind. Ct. App. 2014)

       (citations and quotation marks omitted), trans. denied (2015).


        Section 1 – Lake County I does not require USRC to prove that
       it filed claims for commissions within a particular time period.
[16]   USRC first asserts that Lake County I does not require USRC to prove that it

       filed claims for commissions “when the delinquent monies” were paid to the

       County. The County takes the position that the law of the case doctrine applies

       to require USRC to prove that it filed claims for commissions “when the




       6
           USRC does not appeal the denial of its summary judgment motion.

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 11 of 19
       delinquent monies” were paid to the County, with “when” apparently meaning

       “immediately after” or “soon after.” The parties’ dispute regarding the effect of

       Lake County I stems from the opinion’s statement that “[t]he contracts then

       require [USRC] to attempt to collect the delinquent monies from those

       collection cases and file a claim for its commissions when those delinquent

       monies are paid to the County.” 27 N.E.3d at 1161.


[17]   Initially, we note that


               the law of the case doctrine provides that an appellate court’s
               determination of a legal issue binds both the trial court and the
               appellate court in any subsequent appeal involving the same case
               and substantially the same facts. …. [A]ll issues decided directly
               or by implication in a prior decision are binding in all further
               portions of the same case. …. To invoke this doctrine, the
               matters decided in the earlier appeal must clearly appear to be the
               only possible construction of an opinion. Thus, questions not
               conclusively decided in the earlier appeal do not become the law of the
               case. Moreover, statements that are not necessary in the determination
               of the issues presented are dicta, are not binding, and do not become the
               law of the case.


       Dutchmen Mfg., Inc. v. Reynolds, 891 N.E.2d 1074, 1082-83 (Ind. Ct. App. 2008)

       (emphases added) (citations omitted), trans. denied.


[18]   In Lake County I, the County raised numerous issues. However, the Lake County

       I court addressed only one issue: namely, the issue raised in the parties’ cross-

       motions for partial summary judgment regarding the interpretation of the

       Contract. 27 N.E.3d at 1155-56. According to the Lake County I court, the

       specific question raised in the cross-motions for partial summary judgment

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 12 of 19
       “was what [USRC] was hired to collect pursuant to the contract provision that

       [USRC] was to ‘[c]ollect the delinquent monies.’” Id. at 1161 (emphasis

       added). The parties disputed whether the Contract term “delinquent monies”

       encompassed all delinquent taxes or only those delinquent taxes that the

       treasurer instructed USRC to collect, which were only prior year taxes. Id. The

       Lake County I court concluded that “delinquent monies” meant the tax

       collection cases assigned to USRC at the treasurer’s instruction. Id. The Lake

       County I court reversed the trial court’s grant of partial summary judgment to

       USRC and instructed the trial court to enter partial summary judgment for the

       County “on the issue of the interpretation of the collection contracts,” meaning

       the interpretation of “delinquent monies.” Id. at 1162.


[19]   Lake County I’s statement that “[t]he contracts require [USRC] to attempt to

       collect the delinquent monies from those collection cases [i.e., those the

       treasurer instructed USRC to pursue] and file a claim for its commissions when

       those delinquent monies are paid to the County” is directed to what USRC was

       hired to collect and what USRC was entitled to receive commissions on. Id. at

       1161. In other words, USRC’s collection responsibilities pertained only to the

       cases the treasurer instructed USRC to pursue, and USRC was entitled to

       commissions only on taxes collected from those cases. Id. The statement in

       issue did not resolve an issue related to time limitations on the filing of claims.

       Obviously, USRC would not be able to file a claim for commissions before the

       County received payment of the delinquent taxes; rather, USRC could file a

       claim only after the County had received payment. Accordingly, Lake County I

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 13 of 19
       does not require USRC to prove that it filed claims for commissions within a

       particular time period.


           Section 2 – The County is not entitled to summary judgment
            on the basis that USRC unreasonably delayed in filing its
                                     claims.
[20]   USRC asserts that the County’s contention that USRC unreasonably delayed in

       filing claims for commissions is nothing more than a laches defense,7 which the

       County is foreclosed from asserting because Lake County I implicitly affirmed

       the trial court’s denial of the County’s motions to add affirmative defenses. The

       County asserts that its contention that USRC unreasonably delayed filing its

       claims for commissions is not a laches defense but that the timeliness of the

       filing of claims is a contractual duty, which USRC must prove in its case-in-

       chief to succeed in its lawsuit to recover commissions. We first consider

       whether a laches defense is available to the County.


           Section 2.1 – A laches defense is not available to the County.
[21]   To the extent that the timeliness of USRC’s filing of claims may be considered a

       laches defense, we note that laches is an affirmative defense that must be




       7
          “Laches is an equitable defense that may be raised to stop a person from asserting a claim she would
       normally be entitled to assert.” Angel v. Powelson, 977 N.E.2d 434, 445 (Ind. Ct. App. 2012). “‘Laches is
       neglect for an unreasonable length of time, under circumstances permitting diligence, to do what in law
       should have been done.’” In re Paternity of P.W.J., 846 N.E.2d 752, 759 (Ind. Ct. App. 2006) (quoting Knaus
       v. York, 586 N.E.2d 909, 914 (Ind. Ct. App. 1992)).

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                    Page 14 of 19
       specifically plead or it is waived.8 Huff v. Huff, 892 N.E.2d 1241, 1249 (Ind. Ct.

       App. 2008), revised on reh’g, 895 N.E.2d 407. The County sought to raise a

       laches defense in its motions for leave to amend its answer and to amend the

       pretrial order. The trial court denied both motions. In Lake County I, the

       County argued that the trial court erred in denying its motions, but the court

       did not address those issues.


[22]   We observe that “[t]he law is well-established that an issue is waived if it was

       available on the first appeal but was not presented.” Citizens Action Coal. of Ind.,

       Inc. v. N. Ind. Pub. Serv. Co., 582 N.E.2d 387, 391 (Ind. Ct. App. 1991).


                As noted by the Indiana Supreme Court in Ohio Valley Trust Co. v.
                Wernke (1912), 179 Ind. 49, 99 N.E. 734, 736, … all questions
                reserved for review by an appellate court must be presented on
                the first appeal thereafter from a final judgment, or not at all; for
                thereafter all questions presented by the record will be considered
                as finally determined and all such questions not expressly
                affirmed or reversed will, by implication, be deemed affirmed.


       Id. at 391-92 (brackets omitted); see also Perry v. Gulf Stream Coach, Inc., 871

       N.E.2d 1038, 1047 (Ind. Ct. App. 2007) (“‘A second, or subsequent appeal or

       review only brings up for review the proceedings subsequent to the reversal or

       remand, and all questions presented on the first appeal, including jurisdictional



       8
         “Whether a defense is affirmative ‘depends upon whether it controverts an element of a plaintiff’s prima
       facie case or raises matters outside the scope of the prima facie case.’” Willis v. Westerfield, 839 N.E.2d 1179,
       1185 (Ind. 2006) (quoting Paint Shuttle, Inc. v. Cont’l Cas. Co., 733 N.E.2d 513, 524 (Ind. Ct. App. 2000), trans.
       denied (2001)). “An affirmative defense is a defense ‘upon which the proponent bears the burden of proof and
       which, in effect, admits the essential allegations of the complaint but asserts additional matter barring relief.’”
       Id. (quoting Paint Shuttle, 733 N.E.2d at 524).

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                          Page 15 of 19
       questions, will not be considered on the second appeal; also, all rulings on

       questions not expressly affirmed or reversed will be deemed impliedly

       affirmed.’”) (quoting Daviess-Martin Cty. Rural Tel. Corp. v. Pub. Serv. Comm’n,

       132 Ind. App. 610, 613, 174 N.E.2d 63, 64 (1961)).


[23]   The Lake County I court did not expressly address the trial court’s denials of the

       County’s motions, and therefore the denials were implicitly affirmed.

       Accordingly, the County’s opportunities to raise affirmative defenses are now

       foreclosed.9


                Section 2.2 - The Contract did not require USRC to
                          expeditiously bill for its services.
[24]   USRC notes that its claims for unpaid commissions were submitted to the

       County during the course of the litigation. USRC argues that submitting a bill

       for its services is not an essential element of the Contract that it is required to

       prove in its case-in-chief. The County contends that the Contract provision

       requiring USRC to expeditiously perform its services applies to the filing of

       claims, and therefore USRC must prove as part of its case-in-chief that it

       expeditiously filed its claims.



       9
         Moreover, the substantive law would preclude the County from asserting laches as a defense to USRC’s
       breach of contract claim.
              Laches, however, acts as a limitation upon equitable relief. 12 I.L.E. Laches § 26 (2009). “An
              action for breach of contract is a legal claim, such that laches will not operate to bar the claim
              when the applicable limitations period has not run.” 17B C.J.S. Contracts § [834] (1999).
              “Thus, mere delay or laches, short of the statutory period of limitations and not connected with
              such facts as may amount to an estoppel, is not a bar to an action at law on the contract.” Id.
       Town of New Chicago v. City of Lake Station ex rel. Lake Station Sanitary Dist., 939 N.E.2d 638, 652-53 (Ind. Ct.
       App. 2010), trans. denied (2011).

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                          Page 16 of 19
[25]   We observe that “[t]he essential elements of a contractual action may be

       categorized as follows: (1) a valid and binding contract; (2) performance by the

       complaining party; (3) non-performance or defective performance by the

       defendant; and (4) damages arising from defendant’s breach.” Strong v.

       Commercial Carpet Co., 163 Ind. App. 145, 152, 322 N.E.2d 387, 391 (1975),

       clarified on reh’g, 163 Ind. App. 145, 324 N.E.2d 834, trans. denied. Thus, to

       recover on its lawsuit for allegedly unpaid commissions, USRC bears the

       burden of proving that it performed its obligations under the Contract.


[26]   Under the Contract, USRC was obligated to perform collection services as

       instructed by the Lake County treasurer. For its collection services, USRC

       earned commissions on delinquent monies paid to the County. Although the

       Contract provides that USRC would file a claim for its fees, USRC was hired to

       perform collection services. Billing is not an essential element of USRC’s

       responsibility to perform collection services; billing is merely an administrative

       act. As such, the Contract provision requiring USRC to perform its services to

       assure their expeditious completion does not apply to the filing of a claim for

       commissions. It is sufficient that USRC submitted its claims during the course

       of litigation.


[27]   We conclude that the trial court erred in granting summary judgment to the

       County based on USRC’s failure to prove that it filed claims. Accordingly, we

       reverse the grant of the County’s summary judgment motion and remand for




       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 17 of 19
       further proceedings to determine whether USRC has performed collection

       services for which it has earned unpaid commissions.10


            Section 3 – An award of prejudgment interest is appropriate.
[28]   Finally, we address the parties’ dispute regarding prejudgment interest because

       it will come up on remand if USRC proves that it performed the collection

       services required under the Contract entitling it to unpaid commissions. USRC

       asserts that it is entitled to prejudgment interest on any judgment in its favor,

       while the County argues that because the amount of damages is disputed,

       prejudgment interest is not available.


[29]   “Prejudgment interest is awarded to fully compensate an injured party for the

       lost use of money.” Song v. Iatarola, 76 N.E.3d 926, 939 (Ind. Ct. App. 2017),

       trans. denied. “An award of prejudgment interest in a breach of contract action

       is warranted if the amount of the claim rests upon a simple calculation and the

       terms of the contract make such a claim ascertainable.” Kopka, Landau & Pinkus

       v. Hansen, 874 N.E.2d 1065, 1074 (Ind. Ct. App. 2007).


                The test for determining whether an award of pre-judgment
                interest is appropriate is whether the damages are complete and


       10
          USRC also asserts that the designated evidence shows that it sent out collection letters on assigned cases
       and collected prior year delinquent taxes, and therefore “material questions of fact preclude summary
       judgment for Lake County.” Appellant’s Br. at 25. We express no opinion on the merits of USRC’s
       designated evidence in support of its summary motion, as the County’s summary judgment motion, which
       USRC is appealing, was not based on this evidence and the trial court did not consider it in granting the
       motion. We note that the County asserts that not all the collection letters designated by USRC in support of
       Exhibit 4 actually bear dates that correspond to the collection letters listed in Exhibit 4. However, the
       County acknowledges that if USRC’s claims are not barred as untimely, USRC could recover not more than
       $35,000 for some of the commissions on Exhibit 4. Appellee’s Br. at 8.

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017                     Page 18 of 19
               may be ascertained as of a particular time. The award is
               considered proper when the trier of fact does not have to exercise
               its judgment to assess the amount of damages.


       Town of New Ross v. Ferretti, 815 N.E.2d 162, 169-70 (Ind. Ct. App. 2004)

       (citation omitted). “Prejudgment interest is computed from the time the

       principal amount was demanded or due.” Fackler v. Powell, 923 N.E.2d 973,

       977 (Ind. Ct. App. 2010).


[30]   The County asserts that the there is a factual dispute over the amount of

       damages that USRC is claiming based on Exhibit 4, and therefore prejudgment

       interest is not available. Appellee’s Br. at 29. However, the factual dispute

       goes to whether USRC performed the collection services under the Contract

       that would entitle it to the commissions in Exhibit 4. If USRC can establish

       that it is entitled to a particular commission, the amount of that commission is a

       simple mathematical computation. The Contract provides that USRC is

       entitled to commission of 20% on taxes collected from all cases begun before

       June 4, 2003, and 15% of taxes collected thereafter. Appellant’s App. Vol. 3 at

       17. Thus, the amount of commissions is ascertainable and rests upon mere

       computation. Therefore, prejudgment interest is appropriate. However, any

       prejudgment interest should be computed for each case based on when the

       commission for that case was ascertainable and demanded.


[31]   Reversed and remanded.


       Vaidik, C.J., and Mathias, J., concur.

       Court of Appeals of Indiana | Opinion 45A05-1704-CC-902 | December 11, 2017   Page 19 of 19
