Garrell "Gary" McCutcheon Jr., and Melissa K. McCutcheon v. Pavco Trucking Co. Inc., and Titan Transfer, Inc. (mem. dec.), 10A05-1711-PL-2713

Background

Pavco Trucking operated in Clarksville, IN and employed Garrell and Melissa McCutcheon; Pavco fired them on February 14, 2014.
On March 1, 2014, Titan Transfer purchased specified assets from Pavco under a Purchase Agreement for cash and a covenant not-to-compete; the agreement had Section 3 (warranties about claims against conveyed assets) and Section 11 (Pavco responsible for obligations prior to Feb 28, 2014; Titan responsible after that date).
The McCutcheons sued Pavco and Titan for retaliatory discharge/wrongful termination and obtained a default judgment against Pavco for $180,656.28 after Pavco did not appear.
The McCutcheons then initiated proceedings supplemental against Titan, arguing Titan assumed Pavco’s post-February-28 liabilities under the Purchase Agreement and thus should satisfy their judgment.
Titan moved for summary judgment, designating evidence that the transaction was an asset-only transfer, Titan did not employ the McCutcheons, and Titan did not assume Pavco’s pre- or post-closing liabilities; the McCutcheons opposed and presented evidence they claimed showed continuity of business operations and press coverage calling it an “acquisition.”
The trial court granted summary judgment for Titan; the Court of Appeals affirmed, holding the Purchase Agreement did not show an express assumption of liabilities for claims that accrued before the effective date.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Titan expressly assumed liability for the McCutcheons’ judgment via the Purchase Agreement	The agreement assumed Pavco’s liabilities after Feb 28, 2014 and the judgment is a debt Titan agreed to assume	The Purchase Agreement does not expressly shift liability for claims existing before Feb 28, 2014; Titan never employed the McCutcheons	Held: No express assumption; Titan not liable as a matter of law
Whether the contract is ambiguous (precluding summary judgment)	McCutcheons: ambiguity exists, so extrinsic evidence should be considered	Titan: contract is unambiguous and supports summary judgment	Held: Contract unambiguous; interpret plain terms in context
Whether successor/asset-purchase rules or exceptions (e.g., express assumption, mere continuation, fraud, de facto merger) impose liability on Titan	McCutcheons: Titan’s conduct and wording created successor liability / express assumption	Titan: asset-only purchase generally does not transfer debts; no applicable exception here	Held: No successor liability; focus on express-assumption exception fails on the contract language
Whether a later-entered judgment counts as a post-closing obligation even if the underlying claim accrued pre-closing	McCutcheons: judgment arose after closing; thus Titan assumed the debt described in §11	Titan: obligation/claim accrued at termination (Feb 14), before Feb 28, so Pavco retained responsibility under §11	Held: Claim accrued before effective date; obligation falls to Pavco under the Purchase Agreement

Key Cases Cited

Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228 (Ind. 1994) (asset-only purchases do not generally transfer seller’s liabilities; recognized exceptions)
Markham v. Prutsman Mirror Co., 565 N.E.2d 385 (Ind. Ct. App. 1991) (discussed successor-in-assets liability and conditions tied to predecessor’s existence)
Jean v. Dugan, 20 F.3d 255 (7th Cir. 1994) (under Indiana law, retaliatory-discharge claim accrues upon termination)
Care Grp. Heart Hosp., LLC v. Sawyer, M.D., 93 N.E.3d 745 (Ind. 2018) (contract interpretation: examine whole instrument; unambiguous language gives plain meaning)
Travelers Cas. & Sur. Co. v. United States Filter Corp., 895 N.E.2d 1172 (Ind. 2008) (summary-judgment standard; appellate review applies same standard)