Small v. Rogers
2010 Ind. App. LEXIS 2117
Ind. Ct. App.2010Background
- Small, president of Equicor, helped form Plainfield Place with Rogers, Hubley, and Equicor; Plainfield Place owned 53.90%/5.67%/40.43% respectively and Equicor managed.
- Plainfield Place purchased Plainfield Property near Plainfield; in 2003 loaned by Busey Bank; two notes totaling $3.25 million; guaranties by Small, Rogers, Hubley.
- Bank default notice on Feb. 26, 2009 demanding immediate payment of about $1.667 million plus interest, fees, costs.
- Rogers sought forbearance and, as majority member, urged Equicor/Hubley contributions; Rogers paid $10,360.39 by March 13, 2009.
- Rogers later demanded Small equal to his ownership share; Small did not pay; Rogers filed suit for contribution on March 26, 2009.
- Patriot's Place formed in 1998; Rogers and Small each own 50%; Monroe Bank loans guarantied; subsequent default notices and partial payments by Rogers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred granting summary judgment to Rogers. | Small: Rogers paid less than pro rata; no contribution entitlement. | Rogers: paid more than pro rata; entitled to contribution. | No; Rogers not entitled to contribution; reverse summary judgment. |
Key Cases Cited
- Balvich v. Spicer, 894 N.E.2d 235 (Ind. Ct. App. 2008) (contribution requires payment of more than one's share by one party)
- TW Gen. Contracting Serv., Inc. v. First Farmers Bank & Trust, 904 N.E.2d 1285 (Ind. Ct. App. 2009) (guaranty is conditional; right to contribution depends on payment)
- Balvich, 894 N.E.2d 235 (Ind. Ct. App. 2008) (context for discharge and contribution against co-guarantors)
- Estate of Leinbach v. Leinbach, 486 N.E.2d 2 (Ind. Ct. App. 1985) (equitable basis for contribution among co-debtors)
- Konger v. Schillace, 875 N.E.2d 343 (Ind. Ct. App. 2007) (equal burden principle in contribution)
- Mullen v. Cogdell, 643 N.E.2d 390 (Ind. Ct. App. 1994) (interpretation of contribution standards among co-sureties)
- Afolabi v. Atlantic Mortg. & Inv. Corp., 849 N.E.2d 1170 (Ind. Ct. App. 2006) (foreclosure actions and successive claims in contribution context)