                                                                               FILED
                                                                       Apr 18 2019, 9:00 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEES
      Joseph G. Striewe                                           Patrick A. Shoulders
      Indianapolis, Indiana                                       Wm. Michael Schiff
                                                                  L. Katherine Boren
                                                                  Ziemer, Stayman, Weitzel &
                                                                  Shoulders, LLP
                                                                  Evansville, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Grady B. Jones and Susan R.                                 April 18, 2019
      Lockwood,                                                   Court of Appeals Case No.
      Appellants-Plaintiffs,                                      18A-PL-2994
                                                                  Appeal from the Gibson Superior
              v.                                                  Court
                                                                  The Honorable Robert R.
      Oakland City University                                     Aylsworth, Special Judge
      Founded by General Baptists,                                Trial Court Cause No.
      Inc. and Ray G. Barber,                                     26D01-1712-PL-1876
      Appellees-Defendants.



      Najam, Judge.


                                         Statement of the Case
[1]   Grady B. Jones and Susan R. Lockwood appeal the trial court’s judgment on

      the pleadings in favor of Oakland City University Founded by General Baptists,

      Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                           Page 1 of 25
      Inc. (“OCU”) and Ray G. Barber. Jones and Lockwood raise three issues for

      our review, which we restate as the following three issues:


              1.       Whether the trial court erred when it entered judgment on
                       the pleadings on two counts of fraud in the inducement,
                       which judgment the court based on integration clauses in
                       the parties’ contracts.


              2.       Whether the trial court erred when it entered judgment on
                       the pleadings on a count of retaliatory discharge, which
                       count was premised on OCU’s termination of Jones’ and
                       Lockwood’s employment after they had orally reported
                       on the misuse of public funds by OCU officers.


              3.       Whether the trial court erred when it entered judgment on
                       the pleadings on various theories of at-will employment.


[2]   Although we disagree with the trial court’s reliance on the integration clauses

      on the first issue, we nonetheless reach the same conclusion on that issue

      because the pleadings show that the alleged misrepresentations relied on by

      Jones and Lockwood were statements of current intentions made by OCU

      officers during their contract negotiations. As a matter of Indiana law, such

      statements do not establish a basis for fraud. Accordingly, we affirm the trial

      court’s judgment on the first issue. We also affirm the trial court’s judgment on

      the other issues in this appeal.




      Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019       Page 2 of 25
                                  Facts and Procedural History 1
[3]   On December 8, 2017, Jones and Lockwood filed their complaint against OCU

      and Barber, which Jones and Lockwood later supplemented and amended. On

      August 28, 2018, Jones and Lockwood filed their supplemented second

      amended complaint, which provided in relevant part as follows:


              Count I Fraud in the Inducement . . . : Jones


              1. On or about March 2, 2017, Jones was contacted with regard
              to potential future employment by [Barber,] President of OCU.


              2. Between March 13, 2017[,] and June 5, 2017, Jones engaged
              in discussions with regard to employment by OCU as its Vice
              President for Advancement (“VPA”) addressing the terms and
              conditions of employment with representatives of OCU,
              including, but not limited to:


                       A. [Barber], its President;


                       B. C. William Blackburn . . . , its Chairman of the OCU
                       Board of Trustees;


                       C. John Dunn . . . , its Special Advisor to the OCU Board
                       of Trustees.




      1
        We agree with OCU and Barber that, among other deficiencies, Jones and Lockwood “have failed to
      include numerous relevant materials in their Appellants’ Appendix,” contrary to Indiana Appellate Rule
      50(A)(2). Appellees’ Br. at 5 n.1. We thank OCU and Barber for their submission of an Appellees’
      Appendix to supplement the Appellants’ Appendix.

      Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                             Page 3 of 25
        3. On or about May 18, 2017, during discussions referenced
        herein, Barber, Blackburn, and Dunn orally represented to Jones
        that his employment would be contingent on his agreement to
        serve as VPA for a period of five years, during which time his
        duties would include preparing his prospective successor to
        accede to VPA upon his retirement.


        4. Prior to accepting the VPA position at OCU, Jones orally
        advised Barber that he had been selected to fill the position of
        Associate Vice Chancellor for Advancement at Troy University,
        in Troy, Alabama.


        5. On or about May 31, 2017, Jones and Barber executed a
        Provisionary Administrative Member Agreement (“Employment
        Agreement”), whereby the parties agreed to a salary and specific
        duration of employment commencing June 5, 2017[,] and ending
        May 31, 2018.


                                                  ***


        9. The terms of the Employment Agreement do not contemplate
        employment of Jones for five years.


        10. The terms of the Employment Agreement are inconsistent
        with the representations made to Jones by Barber, Blackburn,
        and Dunn during the hiring process.


                                                  ***


        13. The Employment Agreement states[:] “Either party may
        terminate this Agreement for any reason without cause upon
        thirty (30) days prior written notice to the other party.”
        [(“Termination Clause.”)]


Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 4 of 25
        14. The contents . . . of the Employment Agreement describe an
        at-will relationship.


        15. The [Termination Clause] . . . is inconsistent with the oral
        representations of Barber, Blackburn, and Dunn during the hiring
        process of Jones with regard to the specific duration of
        employment.


                                                  ***


        24. The Employment Agreement states[:] “Entire Agreement.
        This Agreement constitutes the entire agreement between the
        parties hereto with respect to the subject matter hereof, and it
        supersedes all prior oral or written agreements[,] commitments or
        understandings with respect to the matters provided for
        herein . . . .” (“Integration Clause”).


                                                  ***


        32. Barber intended that Jones’ nature of employment be at-will.


        33. On October 2, 2017, Barber hand-delivered written 30-day
        notice to Jones that Jones’ employment was terminated “without
        cause” (“Termination Notice”).


        34. Jones is an alumnus of OCU.


        35. Jones was 64 years of age at the time of the transaction
        described herein.


        36. Barber is a clergyman in the General Baptist Church.




Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 5 of 25
        37. Jones was acquainted with Barber in his capacity as a
        clergyman of the General Baptist Church in excess of 40 years.


        38. Jones reposed a confidence in Barber that Barber’s actions
        would be consistent with his oral representations and assurances
        regarding the specific duration of Jones’ employment made
        during [the] hiring process.


                                                  ***


        41. Jones was induced to execute the Employment Agreement
        by the oral representations and assurances of Barber,
        Blackburn[,] and Dunn to accept employment of specific
        duration for a period of not less than five years as VPA.


        42. Jones relied on the oral representations [and] assurances of
        Barber, Blackburn[,] and Dunn and agreed to accept employment
        consistent with the terms and conditions of employment
        represented, which induced him to believe he would be employed
        by OCU in the capacity of VPA for a period of five years.


        43. Jones had a right to rely on the oral representations of
        Barber, Blackburn, and Dunn made prior to the execution of the
        Employment Agreement[] with regard to the term of his
        employment . . . .


        44. Based on the oral representation . . . Jones advised
        representatives of Troy University that he was accepting OCU’s
        offer of employment.


        45. The actions of Barber described herein constitute fraud in the
        inducement.


                                                  ***
Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 6 of 25
        Count II Fraud in the Inducement . . . : Lockwood


                                                  ***


        51. On or about April 2017, Lockwood was contacted with
        regard to potential future employment by OCU by Robert
        Yeager, who was then the Vice President For Administration and
        Finance (“VPAF”) of OCU.


        52. Between April[] 2017 and July 7, 2017, Lockwood engaged
        in discussions with regard to employment by OCU as its [VPAF]
        addressing the terms and conditions of employment with
        representatives of OCU, including, but not limited to:


                 A. [Barber];


                 B. Daniel Dunivan . . . , its Provost;


                 C. [Blackburn].


        53. Prior to accepting the VPAF position, Lockwood orally
        advised Barber that she held a position of assured permanency of
        employment with the Indiana Department of Correction[.]


                                                  ***


        55. Prior to accepting the VPAF position, Barber orally assured
        Lockwood that her employment would be permanent.


        56. On or about July 10, 2017, Lockwood and Barber executed a
        Provisionary Administrative Member Agreement (“Employment
        Agreement[ ]2”), whereby the parties agreed to a salary and a
        term of employment ending on May 31, 2018.

Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019        Page 7 of 25
        57. The terms of the Employment Agreement[ ]2 contemplate
        employment of Lockwood for a specific duration.


        58. The oral representations and assurances of Blackburn were
        not reduced to writing regarding . . . [her employment] for a
        specified period.


        59. Lockwood intended to accept OCU’s offer of permanent
        employment.


                                                  ***


        63. The Employment Agreement[ ]2 states [a Termination
        Clause identical to Jones’ Termination Clause].


        64. The contents of [the Termination Clause] describe an at-will
        relationship.


        65. The contents of [the Termination Clause] are inconsistent
        with the oral representations of Barber, Blackburn, and Dunivan
        during the hiring process of Lockwood . . . .


                                                  ***


        72. The Employment Agreement[ ]2 states [an Integration
        Clause identical to Jones’ Integration Clause].


        73. The Integration Clause disavows OCU’s obligation to
        comply with oral representations made by Barber, Blackburn,
        and Dunivan during the hiring of Lockwood.


                                                  ***


Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 8 of 25
        76. Barber was aware of the terms contained in [the Termination
        Clause and the Integration Clause] prior to presenting [the
        Employment Agreement] to Lockwood for execution.


                                                  ***


        80. Barber held a position of superior knowledge over Lockwood
        with regard to the content of the Employment Agreement.


        81. Barber intended that Lockwood’s nature of employment
        would be at-will.


        82. On October 2, 2017, Barber hand-delivered written 30-day
        notice to Lockwood that Lockwood’s employment was
        terminated “without cause” (“Termination Notice”).


        83. Lockwood is an alumna of OCU.


        84. Barber is a clergyman in the General Baptist Church.


        85. Lockwood reposed a confidence in Barber that Barber’s
        actions would be consistent with his oral representations and
        assurances regarding the specific duration of Lockwood’s
        employment made during [the] hiring process.


                                                  ***


        87. Lockwood was induced by the oral representations and
        assurances of Barber, Blackburn[,] and Dunivan to accept
        employment consistent with the terms and conditions described
        herein and advised Barber that she was ready and willing to serve
        in the capacity of VPAF until retirement.


Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 9 of 25
        88. Lockwood relied on the oral representations [and]
        assurances of Barber, Blackburn[,] and Dunivan and agreed to
        accept employment under those terms and conditions described
        herein, which induced her to believe she would be employed by
        OCU in the capacity of VPAF indefinitely.


        89. Lockwood had the right to rely on the oral representations of
        Barber, Blackburn, and Dunivan made prior to the execution of
        the Employment Agreement[] with regard to the term of her
        employment by OCU.


        90. Lockwood was induced by the oral representations of
        Barber, Blackburn, and Dunivan to accept permanent
        employment by OCU, to her detriment.


        91. Lockwood’s reliance on the oral representations and
        assurances of Barber, Blackburn, and Dunivan induced her to
        forego a permanent employment with the Indiana Department of
        Correction[.]


        92. Lockwood’s reliance on the oral representations and
        assurances of Barber, Blackburn, and Dunivan induced her to
        believe she would be employed indefinitely by OCU.


        93. The actions of Barber described herein constitute fraud in the
        inducement.


                                                  ***


        Count III Retaliatory Discharge


                                                  ***



Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 10 of 25
        113. On or about August 27, 2017, in their respective capacities
        as VPA and VPAF, and at the direction of Blackburn, Jones and
        Lockwood advised members of the OCU Board of Trustees of
        observations, findings[,] and evidence of [the] following matters
        which fall within their duties and responsibilities as officers of
        OCU and custodians of the public fisc, in violation of I.C. § 22-5-
        3-3.


        114. Jones and Lockwood, during the course of their
        employment[,] found evidence of misappropriation of
        endowment funds.


        115. Jones and Lockwood, during the course of their
        employment[,] found evidence that CFO[ Beth Barber, wife of
        OCU President Barber,] failed to produce, or was incapable of
        producing, monthly financial reports.


        116. Lockwood was denied complete access to OCU financial
        records but was required to take actions for which she could be
        personally liable.


        117. Jones and Lockwood, during the course of their
        employment[,] found evidence that entity “Blue Oak, LLC” was
        created by Barber in collaboration with former VPAF [Yeager]
        for the purpose of controlling funds provided OCU by [the]
        United States Department of Agriculture and [the] Indiana
        Regional Cities Initiative associated with a capital project,
        commonly known as University Boulevard Commons.


        118. Jones and Lockwood, during the course of their
        employment[,] . . . found evidence that the entity “Blue Oak,
        LLC” was created without the knowledge of the entire Board of
        Trustees.



Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019        Page 11 of 25
                                                        ***


              121. Jones and Lockwood, during the course of their
              employment[,] . . . found evidence that Yeager was to be
              compensated from funds provided to OCU associated with a
              capital project, which constitutes misuse of public resources by
              the terms of the award.


              122. Jones and Lockwood, during the course of their
              employment[,] . . . found evidence that funds in excess of $25,000
              were designated in the proposed budget provided to the
              Southwest Indiana Regional Development Authority for
              payment to [a local law firm] for expenses associated with Blue
              Oak, LLC.


              123. Jones and Lockwood were discharged in retaliation for
              their disclosure of the foregoing matters to members of the OCU
              Board of Trustees.


                                                        ***


              130. The wrongful/retaliatory discharge of Jones and Lockwood
              by Barber violates Indiana’s public policy and I.C. § 22-5-3-3. . . .


      Appellants’ App. Vol. 2 at 27-39 (emphases and citations removed).


[4]   In addition to those three counts, Jones and Lockwood alleged, as relevant

      here, two additional counts that were premised on a theory of at-will

      employment with OCU (“the at-will employment counts”). 2 The at-will



      2
        In their complaint, Jones and Lockwood additionally alleged that OCU and Barber had engaged in undue
      influence and that Jones’ and Lockwood’s purported at-will employment had been unlawfully terminated

      Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                        Page 12 of 25
      employment counts specifically alleged that OCU and Barber had unlawfully

      terminated Jones’ and Lockwood’s at-will employment under a theory of

      “independent consideration,” which was based on Jones’ lost employment

      opportunity with Troy University and Lockwood’s lost employment

      opportunity with the Department of Correction. The at-will employment

      counts also alleged unlawful termination of Jones’ and Lockwood’s

      employment under a theory of “promissory estoppel,” which was based on their

      reliance on the oral representations of OCU’s officers during their respective

      hiring processes. Id. at 39-41 (emphases removed). Jones and Lockwood

      attached their Employment Agreements and Termination Notices to their

      complaint.


[5]   OCU and Barber jointly moved for judgment on the pleadings under Indiana

      Trial Rule 12(C). The court granted the motion and entered final judgment for

      OCU and Barber in light of the “clear and unambiguous” “language of the

      contract[s],” especially “the integration clause[s].” Id. at 21-22. This appeal

      ensued.




      under a theory of constructive fraud. Jones and Lockwood also referred to the Employment Agreements as
      “unconscionable.” Appellants’ App. Vol. 2 at 30, 34. However, Jones and Lockwood do not argue on
      appeal that the trial court erred when it entered judgment on the pleadings with respect to those additional
      counts, and, thus, we do not consider the trial court’s judgment with respect to those additional counts on
      appeal. See Ind. Appellate Rule 46(A)(8)(a).

      Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                              Page 13 of 25
                                       Discussion and Decision
                                              Standard of Review

[6]   Jones and Lockwood appeal the trial court’s entry of judgment on the

      pleadings. As our Supreme Court has explained:


              A motion for judgment on the pleadings under Trial Rule 12(C)
              tests the sufficiency of a claim or defense presented in the
              pleadings and should be granted only where it is clear from the
              face of the complaint that under no circumstances could relief be
              granted. Because we base our ruling solely on the pleadings, we
              accept as true the material facts alleged in the complaint. When,
              as here, a 12(C) motion essentially argues the complaint fails to
              state a claim upon which relief can be granted, we treat it as a
              12(B)(6) motion. Like a trial court’s 12(B)(6) ruling, we review a
              12(C) ruling de novo.


      KS&E Sports v. Runnels, 72 N.E.3d 892, 898 (Ind. 2017) (quotations marks and

      citations omitted). For purposes of a Rule 12(C) motion, the pleadings, as

      relevant here, consist of the complaint and any written instrument attached to

      the complaint. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 840 (Ind.

      Ct. App. 2017), trans. denied.


[7]   As Jones and Lockwood’s complaint alleges multiple and alternative theories of

      recovery, we address the counts as follows: the two counts of fraud in the

      inducement; the allegation of retaliatory discharge; and the two at-will

      employment counts.




      Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019      Page 14 of 25
                               Issue One: Fraud in the Inducement Counts

[8]    We first consider Jones and Lockwood’s allegations that OCU and Barber

       fraudulently induced them into executing the Employment Agreements. The

       trial court entered judgment on the pleadings against Jones and Lockwood on

       these two counts based on the Integration Clauses of the Employment

       Agreements, in which Jones and Lockwood expressly disclaimed “all prior oral

       or written agreements, commitments or understandings” between the parties.

       Appellants’ App. Vol. 2 at 73, 81-82.


[9]    To plead a claim of fraud in the inducement, Jones and Lockwood needed to

       state (1) a material misrepresentation of past or existing facts; (2) made with

       knowledge or reckless ignorance of its falsity; (3) which caused the claimant to

       rely upon the misrepresentation to the claimant’s detriment. Siegal v. Williams,

       818 N.E.2d 510, 515 (Ind. Ct. App. 2004). Such claims of actual fraud “may

       not be predicated upon representations of future conduct.” Id. Neither may a

       claim of actual fraud be based on “broken promises, unfulfilled predictions, or

       statements of intent which are not executed.” Maynard v. 84 Lumber Co., 657

       N.E.2d 406, 409 (Ind. Ct. App. 1995), trans. denied.


[10]   On appeal, OCU and Barber first assert that the pleadings fail to show that

       Jones and Lockwood’s fraud in the inducement counts were based on past or

       existing facts. We initially note that OCU and Barber did not argue that theory

       in support of their motion for judgment on the pleadings to the trial court. See

       Appellees’ App. Vol. 2 at 25-26, 45, 61, 98, 113-14. However, we nonetheless

       conclude that the issue is properly before us in that our standard of review on
       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019       Page 15 of 25
       Rule 12(C) issues is de novo and requires us to read the pleadings for ourselves to

       determine if they state any circumstances under which relief can be granted.

       E.g., KS&E Sports, 72 N.E.3d at 898; see also Celadon, 70 N.E.3d at 840-41. In

       other words, we may affirm the trial court’s judgment on a Rule 12(C) motion

       on any theory supported by the record, just as we can on appeal from a Rule

       12(B)(6) judgment. See Citizens Action Coalition of Ind. v. Koch, 51 N.E.3d 236,

       241 (Ind. 2016); see also Celadon, 70 N.E.3d at 841 (interpreting a new argument

       on appeal in support of the trial court’s Rule 12(C) judgment as “merely [an]

       expression[] upon [the parties’] earlier arguments” to the trial court).

       Accordingly, we will consider OCU and Barber’s contention that the pleadings

       fail to show a legally sufficient misrepresentation.


[11]   We agree with OCU and Barber that, as a matter of Indiana law, Jones and

       Lockwood have failed to plead a misrepresentation of a past or existing fact.

       According to the complaint, the alleged misrepresentation underlying Jones’

       fraud in the inducement count occurred “during discussions” of employment

       terms when OCU’s officers “orally represented to Jones that his employment

       would be contingent on his agreement to serve as VPA for a period of five

       years . . . .” Appellants’ App. at 27-28. The complaint similarly alleges that the

       misrepresentation underlying Lockwood’s fraud in the inducement count

       occurred “during the hiring process” when the parties were “in discussion with

       regard to employment by OCU,” and Barber “orally assured Lockwood that

       her employment” with OCU “would be permanent.” Id. at 32-33.




       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 16 of 25
[12]   “Indiana law has not recognized a claim for fraud based on misrepresentation

       of the speaker’s current intentions.” Sees v. Bank One, Ind., N.A., 839 N.E.2d

       154, 163 (Boehm, J., concurring in part and dissenting in part) (quoting Sachs v.

       Blewett, 206 Ind. 151, 155-56, 185 N.E. 856, 858 (1933); Kopis v. Savage, 498

       N.E.2d 1266, 1272 (Ind. Ct. App. 1986)); see also id. at 161 n.6 (majority

       opinion) (agreeing with Justice Boehm that existing Indiana precedent does not

       permit an action for fraud based on a statement of current intention but noting

       that our precedent is in conflict with the Restatement (Second) of Contracts §

       159 cmt. d (1981)).


[13]   For example, in Sachs, a seller of real property alleged that putative buyers of

       that property had orally agreed to purchase the property for a specific price at

       an auction but had “intended to repudiate the agreement with the object of

       procuring the real estate at a lower price” after the auction. 185 N.E. at 858.

       Our Supreme Court stated that the buyers’ “promises and representations were

       only false in the sense that the [buyers] intended to and did refuse to comply

       with them . . . .” Id. The court then held that such false intentions did not

       support a claim for fraud, stating that “[a] fraudulent intent alone is not

       actionable. . . . This court has repeatedly said that actionable fraud cannot be

       predicated upon a promise to do a thing in the future, although there may be no

       intention of fulfilling the promise.” Id. The court further noted that “the law

       did not require” the parties “to carry out their agreement, and fraud cannot be

       predicated upon a failure to do that which there is no legal obligation to do.”

       Id. at 859.


       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019       Page 17 of 25
[14]   Similarly, in Kopis, the seller of a business “promised” a prospective buyer that

       he would “help arrange financing and to take the [business] off the market for

       90 days.” 498 N.E.2d at 1272. The seller failed to do so, and the prospective

       buyer was unable to finalize his purchase of the property because of the seller’s

       failures. After a bench trial on the buyer’s complaint, the trial court ultimately

       concluded that the buyer did not present sufficient evidence to show fraud on

       the part of the seller. We affirmed on appeal and held that the evidence showed

       that the seller’s statements “were not misrepresentations of existing fact[] but

       [were] promises of future conduct for which an action of fraud will not lie.” Id.


[15]   Jones and Lockwood’s fraud in the inducement counts are premised on

       statements of current intentions by OCU’s officers. Specifically, the alleged

       misrepresentations were with respect to the durations of employment OCU’s

       officers had offered to Jones and Lockwood during their respective hiring

       processes and prior to the execution of their Employment Agreements.

       Assuming that those representations “were false in the sense that [OCU’s

       officers] intended to and did refuse to comply with them,” as in Sachs there is

       no factual basis for a fraud claim as “[a] fraudulent intent alone is not

       actionable.” 185 N.E. at 858. Rather, as in Kopis, the representations of OCU’s

       officers to Jones and Lockwood during their negotiations for employment

       “were not misrepresentations of existing fact[] but were promises of future

       conduct,” that is, they were promises as to what the Employment Agreements

       would say when those agreements were eventually reduced to writing. 498

       N.E.2d at 1272. That the Employment Agreements ended up saying something


       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019          Page 18 of 25
       different might go to the parties’ meeting of the minds in the formation of a

       valid contract, but it does not go to a tort claim for fraud. See Sachs, 185 N.E. at

       858.


[16]   Indeed, the actual basis for the trial court’s entry of judgment on the pleadings

       on the two fraud in the inducement counts was not that the pleadings failed to

       state a legally sufficient misrepresentation but that the parties’ Integration

       Clauses precluded fraud. 3 That rationale was incorrect. As we have explained:


               The parol evidence rule provides that “[w]hen two parties have
               made a contract and have expressed it in a writing to which they
               have both assented as the complete and accurate integration of
               that contract, evidence . . . of antecedent understandings and
               negotiations will not be admitted for the purpose of varying or
               contradicting the writing.” Dicen v. New Sesco, Inc., 839 N.E.2d
               684, 688 (Ind. 2005) (quoting 6 Arthur Linton Corbin, Corbin on
               Contracts § 573 (2002 reprint)) (emphasis removed). This rule
               “effectuates a presumption that a subsequent written contract is
               of a higher nature than earlier statements, negotiations, or oral
               agreements by deeming those earlier expressions to be merged in
               to or superseded by the written document.” 11 Richard A. Lord,
               Williston on Contracts § 33:1 (4th ed. 1999) (footnote omitted).


               The first step when applying the parol evidence rule is
               determining whether the parties’ written contract represents a
               complete or partial integration of their agreement. See
               Restatement (Second) of Contracts §§ 209, 210 (1981). If the
               contract is completely integrated, constituting a final and



       3
         Jones and Lockwood’s assertion on appeal that the Integration Clauses “do[] not extend to promises made
       thereafter” by OCU and Barber is not supported by cogent reasoning, and we do not consider it. Appellants’
       Br. at 24 (emphasis removed).

       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                           Page 19 of 25
               complete expression of all the parties’ agreements, then evidence
               of prior or contemporaneous written or oral statements and
               negotiations cannot operate to either add to or contradict the
               written contract. Franklin v. White, 493 N.E.2d 161, 167 (Ind.
               1986). The preliminary question of integration, either complete or
               partial, requires the court to hear all relevant evidence, parol or written.
               Id. “Whether a writing has been adopted as an integrated agreement is a
               question of fact to be determined in accordance with all relevant
               evidence.” Restatement (Second) of Contracts §§ 209 cmt. c.
               Nevertheless, what is ordinarily a question of fact may become a
               question of law “where the facts are undisputed and only a single
               inference can be drawn from those facts.” Jones v. Ind. Bell Tel.
               Co., 864 N.E.2d 1125, 1127 (Ind. Ct. App. 2007) (breach of
               duty); see also Hamilton v. Ashton, 846 N.E.2d 309, 316 (Ind. Ct.
               App. 2006) (proximate cause), clarified on reh’g, 850 N.E.2d 466,
               trans. denied.


       Hinkel v. Sataria Distrib. & Packaging, Inc., 920 N.E.2d 766, 768-69 (Ind. Ct. App.

       2010) (emphasis added; alteration and omissions original to Hinkel).


[17]   In other words, whether a written contract represents the parties’ complete and

       integrated agreement is a question of fact that may turn on parol evidence

       despite what the written contract itself may say. Franklin, 493 N.E.2d at 166-

       67. Moreover, “[p]arol evidence is admissible when fraud is at issue” and the

       purported written agreement is alleged to be void. Peoples Trust & Sav. Bank v.

       Humphrey, 451 N.E.2d 1104, 1112 (Ind. Ct. App. 1983). As the Indiana

       Supreme Court has long held, “[f]raud arising out of the negotiations leading up

       to the execution of a written contract is not merged therein . . . .” Moore v.

       Harmon, 142 Ind. 555, 41 N.E. 599, 600 (1895); see also Franklin, 493 N.E.2d at

       166. Thus, the Integration Clauses did not preclude Jones and Lockwood from

       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019               Page 20 of 25
       introducing parol evidence to a fact finder on their claims that they were

       fraudulently induced to execute the Employment Agreements and, as such, that

       those agreements do not in fact represent the parties’ intended agreements.


[18]   In the trial court and on appeal, OCU and Barber substantially relied on this

       Court’s opinion in Circle Center Development Co. v. Y/G Indiana, L.P. for the

       proposition that, to plead a claim of fraud in the inducement to a contract that

       contains an integration clause, the plaintiff must specifically assert that he was

       “fraudulently induced . . . to execute the disclaimer” itself. 762 N.E.2d 176,

       180-81 (Ind. Ct. App. 2002), trans. denied. However, we have since clarified

       that, while such arguments “accurately quote[] our decision” in Circle Center,

       “the proposition upon which [our statement in Circle Center relied] has a broader

       application,” namely, that a party “could overcome the effect of an integration

       clause if it could show it had a right to rely on the alleged misrepresentations

       and did in fact rely on them in executing the release and/or the integration clause.”

       Wind Wire, LLC v. Finney, 977 N.E.2d 401, 405 (Ind. Ct. App. 2012) (quoting

       Tru-Cal, Inc. v. Conrad Kacsik Instrument Sys., Inc., 905 N.E.2d 40, 45 (Ind. Ct.

       App. 2009), trans. denied) (emphasis original to Wind Wire); see also Judson

       Atkinson Candies, Inc. v. Kenray Assocs., Inc., 719 F.3d 635, 639-44 (7th Cir. 2013)

       (concluding that, insofar as Circle Center might be read to “announce a new

       categorical rule” of Indiana law, such rule “is inconsistent with the Indiana

       Supreme Court’s pronouncements” and other decisions of our Court). We

       agree with those authorities and decline to follow Circle Center insofar as OCU




       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019         Page 21 of 25
       and Barber narrowly read it in a manner inconsistent with prevailing Indiana

       law.


[19]   Nonetheless, regardless of the Integration Clauses, the pleadings demonstrate

       that Jones and Lockwood have not stated a claim for fraud because they have

       not identified a legally sufficient misrepresentation by OCU and its officers.

       Accordingly, on that basis we affirm the trial court’s entry of judgment on the

       pleadings for OCU and Barber on the two fraud in the inducement counts.


                                      Issue Two: Retaliatory Discharge

[20]   We next consider Jones and Lockwood’s claim that they were discharged in

       retaliation for reporting the misuse of public funds by OCU or its officers.

       According to their complaint, Jones and Lockwood’s claim of retaliatory

       discharge is based on Indiana Code Section 22-5-3-3 (2018), which provides in

       relevant part as follows:


               (a) An employee of a private employer that is under public
               contract may report in writing the existence of:


                                                         ***


                        (4) the misuse of public resources;


               concerning the execution of a public contract first to the private
               employer, unless the private employer is the person whom the
               employee believes is committing the . . . misuse of public
               resources. In that case, the employee may report the . . . misuse
               of public resources in writing to either the private employer or to


       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019        Page 22 of 25
               any official or agency entitled to receive a report from the state
               ethics commission . . . .


               (b) For having made a report under subsection (a), an employee may
               not:


                        (1) be dismissed from employment . . . .


       (Emphases added.)


[21]   Assuming for the sake of argument that Indiana Code Section 22-5-3-3 creates a

       private cause of action, it is clear that, before the statute can apply, the

       employee’s report must have been made “in writing.” Id. There is no dispute

       that Jones and Lockwood did not make their report of misuse in writing.


[22]   Instead, in the trial court Jones and Lockwood asserted that the statute’s use of

       “may” means that they were not required to make a report in writing in order to

       be protected under the statute. We cannot agree. The statute’s use of “may”

       means that an employee “may” report misuse but is not legally compelled to do

       so. However, if the employee chooses to make a report, he or she must do so

       “in writing” to be protected under the statute. As Jones and Lockwood did not

       make their report in writing, the trial court properly entered judgment on the

       pleadings for OCU and Barber on the retaliatory discharge count.


                                Issue Three: At-Will Employment Counts

[23]   Finally, we address Jones and Lockwood’s at-will employment counts. In their

       complaint, Jones and Lockwood assert that, because the Termination Clauses


       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019           Page 23 of 25
       provide that they could be terminated for any reason on thirty days written

       notice, they were, despite appearances, at-will employees. They further allege

       that, as at-will employees, they were protected against dismissal without cause

       based on a theory of promissory estoppel and/or a theory of “independent

       consideration,” namely, their forfeiture of job opportunities elsewhere to accept

       their employments with OCU. See Appellants’ App. Vol. 2 at 39.


[24]   Jones and Lockwood were clearly not at-will employees. 4 As the Indiana

       Supreme Court has made clear:


               Historically, Indiana has recognized two basic forms of
               employment: (1) employment for a definite or ascertainable
               term; and (2) employment at-will. If there is an employment
               contract for a definite term, and the employer has not reserved
               the right to terminate the employment before the conclusion of
               the contract, the employer generally may not terminate the
               employment relationship before the end of the specified term
               except for cause or by mutual agreement. If there is no definite
               or ascertainable term of employment, then the employment is at-
               will, and is presumptively terminable at any time, with or
               without cause, by either party.


       Orr v. Westminster Vill. N., Inc., 689 N.E.2d 712, 717 (Ind. 1997) (footnote

       omitted).




       4
         Jones and Lockwood’s argument here is that they were at-will employees under the terms of their
       Employment Agreements. Insofar as Jones and Lockwood may have been able to claim at-will status by
       avoiding the Employment Agreements under a theory of fraud in the inducement, as explained in Issue One
       that theory is not available to them.

       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                         Page 24 of 25
[25]   The Termination Clauses may have provided broad opportunities for OCU to

       end Jones’ and Lockwood’s employment, but the Employment Agreements

       unambiguously established a definite term for their employment with OCU.

       While the Employment Agreements were contracts for definite terms, the

       Termination Clauses also reserved OCU’s right to terminate Jones’ and

       Lockwood’s employment before the end of those terms under the conditions

       provided in those clauses, a right which OCU exercised. See id. We agree with

       the trial court that the unambiguous language of the Employment Agreements

       precludes Jones and Lockwood’s at-will employment counts, and we affirm the

       trial court’s entry of judgment on the pleadings for OCU and Barber on those

       counts.


                                                   Conclusion
[26]   We affirm the trial court’s entry of judgment on the pleadings for OCU and

       Barber on all counts. 5


[27]   Affirmed.


       Pyle, J., and Altice, J., concur.




       5
         Given our disposition, we need not consider Jones and Lockwood’s additional arguments regarding
       discovery.

       Court of Appeals of Indiana | Opinion 18A-PL-2994 | April 18, 2019                         Page 25 of 25
