RE/MAX at the Crossing v. Telecom, LLC d/b/a Priority Communications (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 29 2020, 9:11 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Mitchell A. Greene Julie A. Camden
Greene Law LLC Camden & Meridew, P.C.
Indianapolis, Indiana Fishers, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RE/MAX at the Crossing, May 29, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-PL-236
v. Appeal from the Marion Superior
Court
Telecom, LLC d/b/a Priority The Honorable Marc Rothenberg,
Communications, Judge
Appellee-Plaintiff Trial Court Cause No.
49D07-1904-PL-15156
Crone, Judge.
Case Summary
[1] Telecom, LLC d/b/a Priority Communications (Priority) contracted to provide
telecommunications services to RE/MAX at the Crossing for a minimum of
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thirty-six months. RE/MAX terminated the contract early. Priority sued
RE/MAX for breach of contract and moved for summary judgment. The trial
court granted the motion and awarded Priority over $12,000 in damages. On
appeal, RE/MAX argues that the trial court erred in granting summary
judgment as to both liability and damages. We disagree and therefore affirm.
Facts and Procedural History
[2] In August 2017, Priority entered into a contract with RE/MAX to provide
telecommunications services in exchange for monthly payments of $638.
Including the cover page, the contract has four pages. One of the last lines on
the third page states, “Term of Service: 36 Months[.]” Appellant’s App. Vol. 2
at 8. 1 The fourth of the eleven brief terms and conditions on the last page states,
Unless otherwise specified in the Order Form, the Services are
offered for a minimum term of thirty six (36) months. The Term
shall automatically renew for a additional terms [sic] equal to the
initial term unless and until either party notifies the other party in
writing at least thirty (30) days prior to the expiration of the term
in effect at the time that it does not wish to renew the Service.
Id. at 9. In February 2019, RE/MAX terminated the contract.
[3] Priority filed suit, alleging that RE/MAX breached the contract by terminating
it early, and moved for summary judgment. In response, RE/MAX asserted
1
RE/MAX’s appendix does not contain a copy of the trial court’s chronological case summary in violation
of Indiana Appellate Rule 50(A)(2)(a), and a copy of the trial court’s order appears at the end of the appendix
in violation of Appellate Rule 51(B).
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that the contract was ambiguous regarding its ability to terminate the agreement
at will and that genuine issues of material fact existed regarding its affirmative
defenses of mutual and unilateral mistake, as well as Priority’s alleged damages.
After a hearing, the trial court issued an order granting Priority’s summary
judgment motion. The court rejected RE/MAX’s arguments regarding
ambiguity and mistake and awarded Priority $12,760 in damages for the twenty
months of unpaid service remaining on the contract. RE/MAX now appeals.
Additional facts will be provided below.
Discussion and Decision
[4] RE/MAX contends that the trial court erred in granting Priority’s summary
judgment motion. “Summary judgment is appropriate only if the pleadings and
designated materials considered by the trial court show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.” Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 663 (Ind. Ct.
App. 2011). Our standard of review is the same as the trial court’s. Id.
We must construe all evidence in favor of the party opposing
summary judgment, and all doubts as to the existence of a
material issue must be resolved against the moving party.
However, once the movant has carried its initial burden of going
forward under Trial Rule 56(C), the nonmovant must come
forward with sufficient evidence demonstrating the existence of
genuine factual issues, which should be resolved at trial. If the
nonmovant fails to meet his burden, and the law is with the
movant, summary judgment should be granted.
Id. (citations omitted).
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[5] A trial court’s findings and conclusions are helpful and offer insight into its
rationale, but they are not binding on us. Hanna v. Ind. Farmers Mut. Ins. Co.,
963 N.E.2d 72, 76 (Ind. Ct. App. 2012), trans. denied. “We will affirm on any
theory or basis supported by the designated materials.” Id. “The party that lost
in the trial court has the burden of persuading us that the trial court erred.”
Denson v. Estate of Dillard, 116 N.E.3d 535, 539 (Ind. Ct. App. 2018).
[6] “Summary judgment may be particularly appropriate in contract disputes, as
interpretation of a contract presents a question of law and is reviewed de novo.”
Sapp, 956 N.E.2d at 663. In construing a contract, the court must determine
and effectuate the parties’ intent. Stenger v. LLC Corp., 819 N.E.2d 480, 484
(Ind. Ct. App. 2004), trans. denied (2005).
If the language of the agreement is unambiguous and the intent
of the parties is discernible from the written contract, the court
must give effect to the terms of the contract. A contract is
ambiguous if a reasonable person would find the contract subject
to more than one interpretation. The terms of a contract are not
ambiguous merely because the parties disagree as to their
interpretation.
Id. (citations omitted). If contract language is unambiguous, the court may not
look to extrinsic evidence to expand, vary, or explain the contract, but must
determine the parties’ intent from the four corners of the document. Celadon
Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App. 2017), trans.
denied.
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[7] RE/MAX first contends that the contract “is at best ambiguous as to
[RE/MAX’s] ability to terminate the contract at will.” Appellant’s Br. at 14.
RE/MAX claims that the phrase that Priority’s services “‘are offered for a
minimum term of thirty six (36) months’ could just as easily be construed by
reasonable minds to be a guarantee by Priority that it will provide services for a
period of at least 36 months, so long as [RE/MAX] chose to continue using its
services.” Id. We disagree. As the trial court observed, it would be “plainly
inconsistent” to interpret the contract’s thirty-six-month minimum term, “and
each subsequent renewal period of thirty-six months, as also being ‘month-to-
month’ or subject to cancellation at any time. There is no language suggesting
a ‘month-to-month’ service agreement or that it could be cancelled at any
time.” Appealed Order at 3. We will not add terms not agreed upon by the
parties. Cherokee Air Prods., Inc. v. Buchan, 14 N.E.3d 831, 834 (Ind. Ct. App.
2014).
[8] Next, RE/MAX contends that genuine issues of material fact exist regarding
the affirmative defenses of mutual and unilateral mistake, which may be
grounds for equitably reforming a contract.
In Indiana, courts may reform written documents in only two
well-defined situations: (1) where there is a mutual mistake—
meaning there has been a meeting of the minds, an agreement
actually entered into, but the document in its written form does
not express what the parties actually intended; or (2) where there
has been a mistake by one party, accompanied by fraud or
inequitable conduct by the remaining party.
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Monroe Guar. Ins. Co. v. Langreck, 816 N.E.2d 485, 490 (Ind. Ct. App. 2004).
“Reformations for mistakes are only available if they are mistakes of fact, not
mistakes of law.” Id.
[9] “In summary judgment proceedings, as at trial, the burden of establishing the
existence of material affirmative defenses is on the defendant. In order to meet
this burden, a defendant must show that a genuine issue of material fact exists
as to each element of the asserted affirmative defense.” Paint Shuttle, Inc. v.
Cont’l Cas. Co., 733 N.E.2d 513, 519 (Ind. Ct. App. 2000) (citation omitted),
trans. denied (2001). Here, RE/MAX designated the affidavit of its owner, Mike
Jones, who averred that he met with two Priority representatives who
“explained the phone services, application, and pricing to [him] that would be
covered by the contract.” Appellant’s App. Vol. 2 at 27. Jones “specifically
asked [them] how long the contract was for[,]” and they told him “that the
contract would be month to month and could be cancelled at any time.” Id.
The Priority representatives “then showed [him] the contract that he was to
sign.” Id. at 28. Jones “briefly read through the contract and did not see
anything that gave [him] the impression that the contract could not be cancelled
at any time, relying on the statements of the Priority representatives.” Id. He
“signed the contract … under the impression that [he] was signing a month to
month contract that could be cancelled at any time.” Id.
[10] RE/MAX asserts that Jones’s affidavit establishes a genuine issue of material
fact as to whether RE/MAX and Priority were mutually mistaken regarding the
terms of the contract and/or whether Priority misrepresented those terms to
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RE/MAX. But RE/MAX’s argument disregards the axiom that “[e]quity
should not intervene and courts should not grant reformation if the party
seeking reformation failed to read the instrument or, if it was read, failed to give
heed to its plain terms.” Monroe, 816 N.E.2d at 490. 2 Jones did read the
contract and failed to give heed to its unambiguous thirty-six-month minimum
term with no provision for at-will cancellation.
[11] Finally, RE/MAX contends that Priority failed to establish that it is entitled to
$12,760 in damages as a matter of law. RE/MAX observes that an “injured
party may not be placed in a better position than he would have enjoyed if the
breach had not occurred.” Fowler v. Campbell, 612 N.E.2d 596, 603 (Ind. Ct.
App. 1993). RE/MAX further observes that Priority repossessed its
telecommunications equipment shortly after the contract was terminated.
RE/MAX states, “Priority now enjoys the use of that equipment to generate
revenue by servicing other customers. To allow Priority to recover 20 months
of revenue from [RE/MAX] and additional revenue from the returned
equipment would place Priority in a better position than had the contract
cancellation not occurred[.]” Appellant’s Br. at 18.
[12] It is undisputed that if RE/MAX had not breached the contract, Priority would
have been entitled to receive $638 per month over the last twenty months of the
contract, for a total of $12,760. RE/MAX designated evidence, via Jones’s
2
We are unpersuaded by RE/MAX’s reliance on cases involving extrinsic mistakes of fact.
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affidavit, that Priority retrieved its equipment shortly after RE/MAX
terminated the contract, but it designated no evidence that Priority has in fact
generated additional revenue from that equipment. Priority may well have
done so to fulfill its common-law duty to mitigate its damages, Fischer v.
Heymann, 12 N.E.3d 867, 871 (Ind. 2014), but RE/MAX failed to establish a
genuine issue of material fact on this point. See Cmty. Fdn. of Nw. Ind. v.
Miranda, 120 N.E.3d 1090, 1109 (Ind. Ct. App. 2019) (“guesses, supposition,
and conjecture are not sufficient to create a genuine issue of material fact to
defeat summary judgment”) (citation omitted). Accordingly, we affirm the trial
court’s entry of summary judgment for Priority in all respects.
[13] Affirmed.
Bailey, J., and Altice, J., concur.
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