*1 CHICAGO, Indiana, Ap CITY OF EAST (Third Party
pellant Defendant/Inter Party
vening Plain Defendant/Third
tiff/Counterclaim Plaintiff/Crossclaim
Plaintiff), CENTURY,
EAST CHICAGO SECOND (Plaintiff/Counterclaim
INC., Appellee Defendant),
Defendant/Crossclaim In, LLC, Acquisitions
RIH Resorts d/b/a (Defen Chicago, Appellee Party
dant/Third Plaintiff/Counter
claim Defen Plaintiff/Crossclaim
dant), Foundation, City Inc.,
Twin Education Chicago Community
and East Devel
opment Foundation, Inc., Appellees
(Intervening Party Plaintiffs/Third Defendants),
Defendants/Crossclaim
Michael A. Pannos and Thomas (Third Cappas, Appellees
S. Defendants).
Party
No. 49A02-0608-CV-631.
Court of Appeals of Indiana.
Dec. 2007.
Rehearing March Denied *6 Knauer, Bock, III,
James A. William Runyan, Steven E. Kroger, Gardis & Re- LLP, Carter, gas, Curiae, Steve Amicus Indiana, Attorney General of Thomas M. Fisher, Indiana, Solicitor General Hagan, Heather L. Deputy Attorney Gen- eral, IN, Attorneys Indianapolis, City Chicago. of East Rife, McNeely, Brady J. Lee J. McNee- ly, Harrold, Stephenson, Thopy & Shelby- ville, IN, Attorneys for East Sec- Inc., ond Century, Michael A. Pannos and Cappas. Thomas S. Rusthoven,
Peter J. Deborah Pollack- Jefferson, Milgate, L. Paul Barnes & LLP, IN, Thornburg Indianapolis, Attor- neys City Foundation, for Twin Ed. Inc. Chicago Community Develop- Foundation, ment Inc. Funk, Goldman,
Norman Hill, T. Rori L. *7 Fulwider, McDowell, Matthews, Funk & IN, Indianapolis, Attorneys for Ind. Gam- ing Comm.
OPINION MAY, Judge. (“East City East Chicago of Chica
go”) appeals the denial of its motion for summary judgment and the dismissal of most of its counterclaims and cross-claims against Chicago Community the East De velopment City Foundation and the Twin (collectively Education Foundation “the Foundations”) and Second (“Second Century, Century”). Inc. It also asserts the trial court should not have AND action with the FACTS PROCEDURAL the contract consolidated review, HISTORY2 branch of same in another court, involving action of an administrative In 1994 parties.1 the same Partnership and the Showboat Marina en part providing in and tered into two for part, in reverse
We affirm of some of gam- Showboat’s distribution its remand. ground 'judicial economy’ Superior himself on the of were in the Marion 1. Both actions Judge satisfying was before of Court. The contract action without the standards Ind. Trial Bradford, 42,” and the review of the adminis- (Appellant's Regarding Cale Rule Br. Consoli- Judge Robyn proceeding (hereinafter trative was before dation “East Consolida- Moberly. 5), Br.”) tion then what at refers to it charac- "an odd ... in terizes as dance which counsel Chicago’s 2. East counsel offers a Statements attempted get Judge Foundations argument, which of that is rife with Facts (Id. reverse at Bradford to course.” inappropriate part appellate in that of an Despite these numerous violations of our See, e.g., County Towing, Line Inc. v. brief. rules, address, we choose to to the extent Co., 714 N.E.2d 289-90 Cincinnati Ins. possible, arguments raised East Chica (Ind.Ct.App.1999), trans. denied N.E.2d hope go’s advancing brief in the the resolu (Ind.2000). Facts A Statement of should long-standing dispute. tion of this See Ches a facts stated in be concise narrative of the Cook, Mgmt., Inc. v. terfield ap- with the of review accordance standard (Ind.Ct. 1995): App. 100-101 judgment being ap- propriate to the or order portions agree Cook’s We that Statement pealed, argumentative. and it should not be argumentative; argu- are the Facts their Id.; 46(A)(6). Appellate East Chi- Ind. Rule prevented relying nature us mentative from is, contrast, cago’s Statement Facts upon parties’ considering argu- them transparent attempt discredit both the impeded ments and our consideration of character, opponents' judgment and the find, however, appeal. We this do not plainly be a vehicle for not intended to is so Cook’s Statement of the Facts infected informing this court. argument striking with as to warrant it. example. counsel For offers motion Our denial of Tenants’ to strike argumentative as statements as: "facts” such argumentative portions of Cook’s State- "[Wjhen a board member is [Foundation] way expresses Facts ment of the in no in his review of the Foundation's ‘meticulous violations, appellate tolerance of rule inquiries' in his financial documents and bold (citations omitted), denied, reh'g trans. denied. way the director from is found remove Chicago’s pres- also must address board,” 6); (Appellant's “there is Br. arguments its its re- entation of various mismanagement significant evidence of of the sponses opponents' arguments. its and Sec- funds entrusted Foundations arguments various Chicago has characterized 7); Century,” ond "the Foundations {id. as the Foundations or (id.); regulations,” circumvent IRS "review switch,” (Appellant’s Br. at a ” “bait and 2003 disbursements re- Foundations’ hand,’ ‘sleight "transparent legal effort at little, (id.); flags,” "very veals red if serious (Appellant's Reply Cross-Appellee's Br. with *8 development any, engaged been economic has Br.”) (hereinafter Reply Chicago at Br. "East Century,” in Foundations and Second the device,” 6)), 7), “specious,” at a "slick {id. (id. 8); Century the at "Second and Founda- {id.), undeveloped argu- "a scattershot of respond refused to written tions have also to 12), ments,” position,” at an "incredible {id. records,” (id.); requests and “Second "[njeat trick,” {id.), 16), “sophistry,” a at {id. the countered and Foundаtions 39), {id.), “patently "disingenuous,” at lawsuit, {id. asserting right pursuing to ex- this "fiction,” {id.), unfair,” {id.), misleading and Chicago tend of East riv- their inefficient use "ludicrous,” 44), "silly.” at at and (Id. 9.) {id. {Id. perpetuity.” in at erboat revenues 26.) Chicago opponents its of accuses In the Statement of Case in its brief on the issue, seeking on East to force contract Chicago attributes to consolidation zeal,” 26), seeking at and Judge with "catatonic {id. "a that he had discre- Bradford belief "ferocity.” with {Id. to enforce it unilaterally tion ... transfer the case to 366
ing revenue if it were awarded the license the East Common Council. operate passed The Council an in Sep- the East riverboat casi- ordinance tember 1995 license, endorsing the Showboat com- ap- no. To secure a riverboat mitments. plicant must show a commitment to local development, § economic Ind.Code 4-33- agreement Pursuant Showboat 7(b),3 Chicago negotiated so East with
6— Foundations, pay would 1% to each of the Showboat, licensee, original if Chicago, 1% to East and .75% Second East Chicago supported ap- the Showboat Century. The Foundations are both not- plication, Showboat would fund economic for-profit entities. is a development with 3.75% its future ad- for-profit corporation Showboat formed. justed gross receipts. agreement The was April Showboat awarded the license in 8, April supplemented dated 1994 and with 1997, and the Indiana Gaming Commission аgreement April second dated incorporated the terms of agree- the letter (hereinafter The “the letter ments as receipt conditions for Showboat’s agreements”) subject were to ratification of the license. Showboat pay- made the Further, Finally, realize, “pejo- accuses the Foundations of a appellate counsel should rejoinder,” petulant grousing rative-filled to one such {id. has a deleterious Chicago's appropriate effect on arguments. commentary in such brief. Material of this nature is akin direct East counsel to our Adams, to static in a radio broadcast. It tends to statement in Amax Coal Co. v. legitimate argument. blot out (Ind.Ct.App.1992),
N.E.2d
trans. de-
note,
On a
commentary
darker
if such
nied,
where we said:
appellate
actually
op-
is
briefs
directed to
quality
We must first
discuss
of brief-
posing
purpose
sticking
counsel for the
ing by
appeal. Throughout
counsel in this
hyperbolic
opposing
barbs into his or her
briefs,
parties'
they
have launched rhe-
psyche,
offending practitioner
numbers'
torical broadsides at each other which have
clearly violating
purpose
the intent and
nothing
appeal.
to do with the issues in this
sum,
appellate
rules.
In
we condemn
Counsels’
opposite
comments concern their
practice,
firmly request
the elimina-
skills, motivations,
numbers’
intellectual
surplusage
tion of
appel-
such
from future
supposed
violations of the rules of com-
late briefs.
courtesy.
mon
Because similar irrelevant
A
present
brief should not
the issues to
appearing
ever-increasing
discourse is
with
appeal,
be decided on
but it should be of
briefs,
frequency
appellate
we find it
material
deciding
assistance to the court in
necessary
easily-answered
to discuss the
Butts,
Young
those issues.
question
haranguing
of whether
condemna-
(Ind.Ct.App.1997).
A brief is far more
opposing
supposed
tions of
counsel for
court,
helpful to this
and it advocates far
slights and off-record conduct unrelated to
client,
effectively
more
for the
when its focus
appropriate
the issues at hand is
fare for
is on the case before the court and not on
appellate briefs.
opponent.
“petulant
counsel’s
grousing”
outset,
point
At the
we
to the obvious:
"hyperbolic
barbs” East
offers in
judiciary,
necessity,
in fact and of
has
brief,
its
and that we condemned in our Amax
absolutely no interest in internecine battles
decision,
"cogent argu
do not suffice
as
etiquette
unprofessional
over social
or the
appellate
ment” our
long
rules have
been
personality
frequently
clashes which
occur
interpreted
require.
County
See
Line Tow
among opposing
days.
counsel these
Irrel-
ing,
tions moved to dismiss East County The Manon Rules alleging counterclaims fraud and breach Judge asserts Brad fiduciary duty. Because East Chica- himself,” ford could not “transfer a case to go’s counterclaims were dismissed on limi- (Appellant’s Br. at because under the grounds,5 tations the trial court did not County Marion authority Rules assign to grounds consider the other for dismissal judges rests with the executive committee asserted and the of the Superior Court. It is apparent the Foundations. cases had “assigned” Judges been Brad interlocutory initiated this Moberly ford and Superior the Marion appeal. argues It the trial court was with- they consolidated, Court well before were actions, authority out to consolidate the and East explanation offers no dismissing trial court erred in East why “assignment” override, rule would Chicago’s grounds, claims on limitatiоns to, or even be relevant the trial rule that dismissal grounds improper on other was governs consolidation of cases. because a number of factual inferences in Chicago’s ignored, favor were accordingly We decline reverse agreements 46(A)(8) letter ground. are unenforceable for a on that App. See R. (“The number of reasons. argument must contain the conten- 5. One counterclaim survived motions to 6. East did not assert venue as one of dismiss. The trial court found East the issues to interlocutory be certified for this claim that Second breached its con- appeal. accordingly decline to address it. Chicago by failing provide tract with East Engineers See Thornton-Tomasetti v. India accounting subject year to a ten limi- napolis-Marion County Library, Public period. § tations See Ind.Code 34-11-2-11 ("inas (Ind.Ct.App.2006) N.E.2d (“An upon writing action contracts in other regarding protective much as the issues payment money than those for the ... must appeal order were not certified for ... we (10) years be commenced within ten after the grant decline to address those claims and accrues.”). cause of action As we find that Library's portion motion to dismiss that count should have been dismissed on other appeal”). grounds, we need not address whether the letter amount to contracts "other than payment money” those for the period which applies. that limitations
369 procedure prac- the and pre “govern trial rules on the issues appellant tions of in reasoning. in all of the state of Indiana by cogent tice courts supported sented by cogniza- supported all suits of a civil nature whether must be Each contention authorities, statutes, law, equity, and in or of statuto- as cases at citations to the ble apply on trial rules ry origin.” of the Record Id. While the parts or Appendix on.”) nature,” party A waives to “all suits of a civil and Appeal relied develop cogent proceeding review before he fails to administrative issue where “in the nature of a civil adequate citation the Court was argument provide or record. “the proceeding,” the Court determined authority portions and (Ind. State, meaning synonymous.” 1050 is Id. Lyles v. denied, trans. denied reh’g Ct.App.2005), Therefore, this administrative review (Ind.2005).
abuse
prejudicial,
For an error to be
to a
showing
prejudice
prerequisite
is a
rights
it must affect the substantial
of the
finding the discretion of the trial court was
appellant
must affirma
appellant
of a motion
grant
abused in the
or denial
erroneous,
tively
prejudicial
show an
rul
Transp.
Jessop
to consolidate.
v. Werner
ing.
Employ
Foster v. Review Bd.
Ind.
598,
Co.,
408, 412,
Ind.App.
147
261 N.E.2d
(Ind.
Div.,
618,
ment Sec.
413 N.E.2d
621
(1970).
601
“indulge
will
Ct.App.1980). We
not
con
trary presumptions
appellant’s
to sustain
Chicago argues
length
East
at
alleged error.” Id. We decline East Chi
“arbitrarily
the consolidation order
assignment pro
interfered
the case
cago’s
indulge
pre
with
invitation to
such a
thereby disrupting
orderly
admin
cess
sumption,
Chicago
and hold
has not
East
(East
justice,”
Chicago
istration of
Consoli
affirmatively
prejudice
shown
to its sub
8),
implicated
dation Br. at
“the
rights just
judge
stantial
because the
un
judge
shopping.”
or forum
concern over
der which the cases were consolidated had
(Id.
9.) However,
Chicago
at
East
does not
in favor
rulings
Chicago’s
made
of East
explicitly argue
it is
prejudiced
opponents.9 Consolidation of the two ac
except
consolidation of the two cases
prejudicial
tions was not
error.
“[cjonsolidation
sought
note
was not
until
Judge
weeks after
Bradford issued sub
VALIDITY AND ENFORCEABILITY
rulings
City’s
in
oppon
stantive
favor of
OF THE AGREEMENTS
(Id.
10.)
ents.”7
East
does
properly
The trial court
what
denied East
explain
not
those “substantive rul
ings”
rulings
Chicago’s
summary judgment.
were or how the
demonstrat-
motion for
Judge
appointed
presume
7.
Bradford has since been
Nor will we
consolidation of cases
fact,
accordingly
preju-
this court.
do not find
necessarily delays
proceedings.
In
"judge shopping”
Judge
dice on the
basis as
See,
opposite
e.g.,
is often true.
State v.
Bradford will not decide the consolidated
236, 238,
580,
Baysinger, 272 Ind.
N.E.2d
397
case.
(Ind. 1979) (“For
582
convenience
unnecessary
delay,
avoid
all
cost and
of these
brief,
reply
In its
asserts for
consolidated.”).
appeals are
prejudiced
the first time it was
"[o]f
because
course,
(East
delay
prejudice.”
is in itself
9.While we
resolve
consolidation issue on
Reply
Br. at
It cites Smith v.
Chicago’s
prejudice,
failure to show
we
Harris,
(Ind.Ct.App.
861 N.E.2d
question[s]
note there are "common
of law or
(Ind.
trans. denied
were or void as against public policy. agree- It found the Chicago East argues the contract specific enough ments to be enforceable represented by the agreements letter is they because included an implied duration- will, terminable at either because it is of term, al and found Second infinite duration or it has an “implied du- the Foundations were intended to be third- rational term of the length original party acknowledged beneficiaries. It East license which long has since expired.” Chicago’s concern agreements the did not 10.) (Appellant’s Br. at trial The court provide oversight sufficient of Second Cen- found agreements the letter had “no ex tury Foundations, and the but found those plicit However, durational term. by link concerns did not preference overcome the ing funding gross gaming receipts, for freedom to contract. The denial of only which exist as a result of a valid summary judgment was not error. license, gaming agreements the letter con implied tain an durational term cotermi summary judgment
Our
standard of re
nous with the duration of the
li
gaming
party
view is well-settled. The
appealing
(App.
cense.”
at
Denial of East
summary
the denial of
judgment, here
Chicago’s motion
summary judgment
for
Chicago,
has the
persuad
burden of
ground
on that
was not error.
ing us the trial
ruling
improp
court’s
Dept.
Transp.
er.
Ind.
Shelly
&
A contract
provides
for
Sands, Inc.,
756 N.E.2d
1069
continuing performanсe
ending
and has no
(Ind.Ct.App.2001),
trans. denied 774
512
N.E.2d
date,
(Ind.2002).
provides
or that
it will last indefinite
When we review the denial of
ly,
is terminable at
party.
will
either
summary
a motion
judgment,
apply
for
we
Fendrich, Inc.,
House
Inc. v. H.
Crane
the same standard as the trial court.
Id.
478, 481,
Ind.App.
any
We will resolve
doubt as to a fact or
(1970).
explicit
point,
As there is no
an inference to
from
end
be drawn
the evi
asserts,
party
dence in favor
it could terminate
opposing
motion,
Further,
agreement anytime.
here
Second
asserts,
Summary
only
Foundations.
judgment
Id.
term that could
granted only
should
designat
properly
implied
original
be
when the
be
is the
five-
license,10
year
ed evidence shows there is
genuine
no
term of the
after which it
any
issue as to
material fact and the mov
agreement
any
could terminate the
acknowledge
reply
10. East
does not
in its
does state in its
brief the Foundations
brief,
of,
"apparently
part
or address the effect
its continued
missed the
of the hornbook
compliance
reciting
general
estoppel
with and benefit from
chal-
rule that
does
lenged provisions
agreement
apply
public
of the letter
to the actions of
officials.”
(East
13) (internal
years
original
Chicago Reply
quo-
some five
after the
license was
Br. at
omitted).
transferred to another licensee. East
tation
securing
efforts in
new ac
license was issued to R.B.I. Sales’
original
time.11 The
15, 1997,
counts,
initial
April
its
R B.I. a com
pay
Showboat on
Marksill would
time
April
2002. At.that
expired
term
the amount of sales to
mission based on
unless,
longer exist
its
no
license would
agreement
Company.
Dexter Axle
The
renewed it.
Commission
time
long
agent
as
R.B.I.
was to continue as
letter
period referred to
any product
any company
“sells
listed.”
licensure,
years
five
over
was the first
Id. at 67.
the value of the
projected
which Showboat
There,
us,
case before
no end-
as
give
Chicago.
it would
incentives
Still, we found the
ing
specified.
date was
Century asserts the contract
Marksill
indefinite
agreement
was not of
duration,” and therefore
not of “indefinite
representative
agreement
duration:
“The
will,
be
not terminable
provided that
the commission would be
a condition that would
cause it includes
paid
long
so
as Marksill continued to sell
i.e.,
end,
revocation,
cancel
cause it to
products
certain
to Dexter Axle. The con-
*14
lation,
gambling
of the
li
or non-renewal
lifetime,
a
a
tract
is therefore neither
nor
Specialties,
It relies on Marksill
cense.
contract,
rather,
perpetual
but
a contract
Barger,
Inc. v.
(Ind.Ct.App.
obligation. Because that might condition written document where party one amount to an “implied durational term” mistakenly executed a document that did prevent agreement would from express the true terms of agree being Chicago, terminable at will ment, party and the other has properly summary the trial court denied acted under mistake, judgment.12 same or has acted fraudulent ly inequitably or having while knowledge Termination party’s of the other mistake. Harlan Bak Reformation of *15 Contract eries, Muncy, Inc. v. 835 N.E.2d 1030 (Ind.Ct.App.2005). A mutual mistake Even if contract the was ter has if occurred there has been a meeting will, asserts, Century minable at Second of the agreement actually minds and an accomplish could not that into, entered but the document in its writ purpose by means of the 2005 ordinance ten form express does not what parties the that purported agree. to terminate it. We intended. Id. Reformation for mistake is contract, If the ordinance terminated the only fact, available if the mistake is оne of rights payment then “all to from the licen not of law. Id. adjusted gross receipts see’s would be ter (Br. minated, even City’s.” Appel- the East Chicago explicitly does not
lees, Inc., Century, Second allege fraud as a basis for reformation. Pannos, A Michael Cappas Thomas S. Nor does it explicitly argue there was mu (hereinafter Br.”) Century “Second tual Century mistake or that Second Instead, “the attempts change ordinance to the fraudulently Foundations acted or ine the Agreement terms the to redirect all quitably knowing while of East (id.), payments City,” of the and one Instead, argues “mistake.” it for the first party unilaterally cannot changes make Elec., reply may time in its that apply a contract. brief we Taylor See Stelko Inc. v. the Cmty. Bldg. pencil” “blue doctrine to delete from Corp., Schools (one agreements any 159 (Ind.Ct.App.2005) party to a the reference to Second may contract changes Century not make unilateral and the Foundations. summary cago
12. On this summary judgment review of the denial of was not entitled to not, not, judgment ground agreement we need and do hold the on the the infinite parties necessarily by only possible "implied continue to be bound duration or that its agreement the length until or unless the license is durational term” was Rather, revoked. original we hold that East Chi- license. (3) doctrine, if a cove favor party; per Under of the third clearly separated parts nаnt is into and formance of the terms of the contract ren parts some are reasonable and others are ders a direct benefit party to the third not, may the contract be held divisible parties intended to the contract. may and the reasonable restrictions be Id. Grider, Corp. enforced. Smart factors, Among these three (Ind.Ct.App.1995), reh’g N.E.2d de intent of contracting parties to benefit nied, trans. denied. But even if the cove party controlling the third is the factor. reasonable, nant as written is not may Id. Such intention be demonstrated may courts create reasonable re by naming party, the third or other guise interpretation; striction under the necessary evidence. Id. The intent is not subject parties to do so would purpose desire or to confer a particular agreement they had not made. Id. Blue- upon party benefit the third nor a desire to penciling applying must be restricted to advance promote his interest or his wel already terms that clearly exist in the fare, but an intent that promising par contract; a court’s redaction of a contract ty parties shall assume a direct obli
may not result the addition of terms gation to him. Id. originally that were not part of the con “Simply put, practicable, tract. Id. if un Chicago argues agree- the letter reasonable restraints are rendered rea ments do not show an intent to benefit sonable scratching аny out offensive Second and the Foundations be- give clauses to parties’ inten effect cause the funds agreements oblige (emphasis tions.” Id. supplied). East pay the riverboat are to be used for Chicago has not any directed us to ambi development economic Chicago; of East guity parties’ as to the intentions Foundations, agreements, letter and we decline its invi asserts, “merely were conduits for the cit- reform, by tation to “blue-penciling” or Chicago, izens of East the true intended ” *16 otherwise, unambiguous this contract. 14.) (Appellant’s beneficiaries.... Br. at Because the Foundations and Second
3. Third Party Beneficiaries “conduits,” (Id.), are mere for East Chicago asserts it should money to be used for develop- economic granted summary have been judgment be ment of Chicago, ar- cause the Foundations and Second Centu gues, the Foundations and Second Centu- ry are third-party not beneficiaries and ry benefits,” (id.), were not “the focus of may therefore not enforce this contract. and “the letters do not evidence an intent Both third-party are (Id. beneficiaries. 13) them.” (emphasis in benefit original).
One party who is not a to a may contract enforce the contract argument dem This does not acknowledge onstrating it third-party beneficiary. is a the relevant intent as stated in the Osteo- Nat’l Bd. Osteopathic i.e., Exam’rs Phy pathic Physicians decision, an intent Surgeons, siciаns & Inc. v. American Os that the promising party parties shall Ass’n, (Ind. teopathic assume a obligation direct to the third Ct.App.1994). A third-party beneficiary party, and not a purpose desire or to con- (1) contract exists when parties particular intend a on party. the third fer benefit (2) party; benefit a third the contract We decline to hold Second and imposes duty on parties one of the the Foundations cannot be third-party beneficiary promisor, they against resting are “con- ground on beneficiaries upon the contract itself. duits.” Id. at 524. note, “[b]ecause Foundations As the That contract did not name or otherwise exist to by definition non-profit entities sheriff, argued mention the but he (rather profit for than earn benefit others parties beneficiary intended he be a be- themselves) City’s thesis ‘conduit’ the contractor’s proposal cause noted the effectively preclude charities would approval sheriffs for certain actions would being groups from ever non-profit other needed, be and the contractor acknowl- (Foundations’ third-party beneficiaries.” with edged working together would be 22.) summary agree, and find Br. at the sheriff. denied because judgment properly was The court found this did not indicate Century and the Foundations are intent that the sheriff would a third- be third-party beneficiaries. beneficiary: “Negotiations party and deal- ings parties modify between the cannot аrgues third-party also parties’ contract to create the ‘in- written recognized not be in a beneficiaries should tent’ when the lack of such intent is evi- this one be- contract”13 such as “public dent from the contract.” Id. at 525. “[n]on-parties permit- should not be cause government ted to control contract “public” The court also addressed government.” opposition to the will of the nature of the contract: Br. at It relies on Jenne (Appellant’s very pre- nature of this contract Tower, Inc., 814 So.2d v. Church & assuming cludes the from third- Sheriff Jenne, (Fla.Dist.Ct.App.2002), where party beneficiary status. The Broward sheriff, in- third-party County/Church he was a bene- & Tower contract claimed facili- public volved the construction of a county ficiary of a contract between the ty County. funded The contract of a & Tower for construction Church directly primarily intended to jail. County, citizens of Broward benefit the applied a test similar to The Jenne court Sheriff, public servant ours: operating the detention charged with received “inci- center. The Sheriff parties test is ... that the [T]he benefit from its consequential dental or person a third contract intended that enforcement,” from precluded so he was contract. It should be benefited *17 of it. suing for a breach of the undertaking part on the is Id. at 525. to the promisor, as a consideration this state- person, Chicago the third East characterizеs promisee, to benefit that “third recognition by the ment as court’s gives that rise to a cause of action brief, premised Chicago are on its unex- Chicago charac- East that Throughout its East 13. as plained of the contract agreements us as a characterization terizes the letter before 46(A)(8) ("The However, not, argu- "public.” App. R. See "public it does in contract.” brief, ap- the contentions of ment must contain reply offer definition its brief or by presented, supported why pellant on the issues "public explanation this contract” or reasoning. must be cogent Each contention derived the distribution of funds contract for authorities, licensee, supported by to the stat- private enterprise, citations by the riverboat utes, Appendix parts the Record or "public” We therefore such a contract. is on, with Rule Appeal in accordance on relied whether this contract is decline to address arguments "public” or to address those 22.”). (Br. funds,” Attorney General as generally be should party beneficiaries in Support Amicus Curiae Appellant citi- contracts because public in recognized 8), “a City Chicago East at and asserts (Ap- intended beneficiaries.” zens are the in gambling channel revenues contract to 15.) is no such There Br. at pellant’s development local economic to a tended for Jenne, in holding implicit explicit public corporation contravenes the private ground. on that Jenne was not decided (Id. 7.) interest.”14 (cid:127) Moreover, Jenne distinguish is of sum- cannot reverse the denial We in not mentioned able. Sheriff Jenne East Chica- mary judgment on basis. contract, letter while the in funds” definition go “public relies on the Centu name Second agreements explicitly op- § its 36-1-8-9.5 and asserts Ind.Code Foundations, specify ry and the obviously rele- ignored that “most ponents receipts that of the riverboat percentage (East Br. at Chicago Reply vant statute.” each. As the Jenne will be directed to “development agreement” A is an noted, language used in a con “the court between a licensed riverboat agreement of the intent and is the best evidence tract licensed setting and a unit forth the owner 814 So.2d meaning parties.” support commitments to owner’s financial Chicago’s invitation decline East We Ind. development the unit. economic mentioned entity explicitly that is hold an 36-l-8-9.5(a). § A “unit” a coun- Code third-party be a in a can never contract township. Ind.Code ty, municipality, or might there be beneficiary just because a unit received § “Funds 36-1-2-23. the contract. “public” aspect to agreement public are development under a (em- 1—8—9.5(b) § Ind.Code funds[.]” 36— 4. Public Funds phasis supplied). agreements court found trial explanation why no offers policy be- against public not void as were directly to the those funds chаnneled “allocating Chicago’s argument, cause East Foundations and Second a riv- development large amounts of economic represent money “received operator erboat oversight is un- funding stringent without say cannot by a unit” and we therefore wise,” not overcome the (App. at did summary judg- denying trial court erred in contract. preference for freedom to strong it determined the funds ment to the extent “public.” according- at issue were not Chicago’s argument the let ly do not further address public policy is ter violate arguments they to the extent public policy assertion the premised large part on its characterizing “public” as funds depend on Century and the paid funds to Second by East that were never “received” Chica- pursuant agreement Foundations go.15 Similarly, in its ami- “public are funds.” cus brief the Attorney characteriz General As East was not entitled public summary judgment premise on the money government as “local es acknowledge the existence or evidence in 14. The Foundations direct us to *18 validity agreements. the those casinos address the record that a number of other sharing in Indiana have similar revenue gaming agreements whether funds such as "entered riverboat 15. We do not decide agreements operators approved by [Gaming in the letter the those addressed ever, law, "public.” many might as a matter of be ... under which mil- Commission] Rather, Chicagо only that East gaming distrib- we hold lions of dollars in have been (Foundations summary judgment in this case private uted to entities.” Br. not entitled 38.) Attorney nor on that basis. at Neither the General decline to “public,” tablishing process funds were we also the “for a local unit of government to direct contributions from a impose we should a argument address its entity riverboat or other to a community the funds constructive trust over riverboat 26.) foundation.” (Appellant’s Br. at The pub- the letter violate because properly trial court declined to enter sum lic policy. mary basis, judgment on that as it does appear applies statute arguments In addition to the agreement before us. “public on its funds” character premised ization, argues agree Chicago East the That section establishes conditions un- public policy ment violates because does government der which a local unit may § not follow Ind.Code 36-1-14-1. proceeds grant, “donate the from ... a a Chicago gift, characterizes that statute as es a donation ... or gaming riverboat 23-17-24-1.5(b), Chicago § reply In its brief East states the Under Ind.Code the attor- question at "are whether the funds issue here ney general has other remedies available: many respects 'public funds' is in irrelevant.” addition to a In dissolution under section 1 14.) However, (East Chicago Reply Br. at chapter, attorney general may of this Chicago does not there advance substan- (1) pеtition a court to issue one or more of public policy arguments.
tially different following remedies: “adopt a law invites us to common (1) Injunctive relief. public public definition of funds and find that (2) Appointment temporary perma- or sufficiently protect contracts which fail nent receivers. (Id. against public policy.” such funds are (3) trustees, corpo- Permanent removal of legislature explicitly As the has defined officers, rate or directors who have breach- “public in the context of riverboat funds” fiduciary duty. ed the development agreements, we decline the invi- (4) Appointment permanent ap- court adopt presumably tation to a different com- trustees, proved replacement corporate offi- mon-law definition. directors, cers or and members. argues length also at some 23-17-4-4(b) § provides: Ind.Code “A public policy violate contracts because the [nonprofit] corporation’s may power to act be former East administration diverted challenged proceeding against corpo- in a “public opportunities,” (Appellant’s Br. at declaratory judgment enjoin ration a or to for right in the form of the to control the money, party acquired private riverboat an act where a third has not "to unaccountable subject public oversight rights. proceeding may brought by entities not The be any insuring money without means of that the attorney general (Emphasis aor director.” any public purpose....” would be used for supplied.) provides § Ind.Code 23-1-47-1 (Id. 23-34.) apparent “pub- It is not such Attorney bring proceedings for the General to oversight” lacking. lic judicial for-profit corpora- dissolution of a § provides Ind.Code 23-17-24—1 court Finally, provides § tion. Ind.Code 4-Ó-3-3 if may nonprofit corporation: dissolve a attorney general has reasonable cause to (1)In proceeding by attorney general may person believe a have information or (1) following if one is established: possible documents relevant to violation of (A) corporation corpora- The obtained the any attorney general, "statute enforced incorporation through tion’s articles of attorney general may issue ... fraud. investigative produce demand” to the materi- (B) corporation The has ex- continued to al, interrogatories, appear and tes- answer authority upon ceed or abuse the conferred attorney general. tify under oath before the corporation by law. (Emphasis supplied.) (C) corporation public The is a benefit does not address these statu- corporation corporate assets are Attorney tory provisions, does the General nor being misapplied or wasted. acknowledge in brief its own statu- its amicus (D) corporation public is a benefit tory oversight authority. corporation longer carry and is no able to corporation’s purposes. out the *19 378 counterclaims, Chicago one of the East a foundation....” Ind.Code
revenue to gam- “riverboat It party § It defines cross-claims and third claims. 36-1-14-1. by received a ing as “tax revenue Chicago revenue” claim declined to dismiss East city’s a agreement unit ... or an share a contractu- that Second breached Id. county’s part or of the tax revenue.” agreement with East Chica- al term its supplied). Chicago East offers (emphases affirm the dismissals but hold the go. We agree- why the contractual explanation no remaining claim should also have been dis- licensee to contrib- by ment the riverboat missed.18 portion of its revenues to Second ute initially that the limi We note Century and the Foundations converts a claim of of period tations breach why “tax or those funds into revenues”16 duty years. Del fiduciary is two Vecchio “donation,” gift, funds amount to a those (Ind.Ct. Conseco, Inc., 788 N.E.2d by Chicago.17 agree- The grant or East (breach fiduciary duty of is a App.2003) public policy on that ment did not violate injury personal property tort claim for basis.
and therefore the statute of limitation is
DISMISSAL ON LIMITATIONS
years),
two
trans. denied
GROUNDS (Ind.2003). Chicago argument East offers “[bjreach on what it characterizes as summary denying In the same order claims,”19 37), Br. at judgment, (Appellant’s the trial court dismissed all but contract claims,” 37), legislature disposition and {id. 16. addresses the of contract at "Breach However, 38.) gambling riverboat “tax revenue” in Ind.Code of trust claims.” {Id. §§ 4-33-12-6 and 4-33-13-6. explicitly argument does not state in its which subject peri- counts are to which limitations Chicago dispute” 17. East asserts there is "no od, and of its counterclaims and cross- some payments are a "donation” East Chica presented claims are not as either contract or go "clearly applicable and the statute is of trust issues. None of the counts are breach (East 23.) Chicago Reply donation....” Br. trust”; rather, captioned they "breach of seek acknowledge we While tions, East asser accounting, declaratory such relief as an duty we our im remain mindful of reformation, judgment, unjust and or assert legislative plement by giving intent effect fiduciary duty. enrichment or breach of This ordinary plain meaning of the lan impaired ability propri- has our to review the guage Dep’t used in a statute. v. Ind. Clifft ety grounds. of the dismissals on limitations Revenue, (Ind. State argu- accordingly waived its has 1995). part We that in a note different of its alleged wrongdoing ments the was discovered public policy argument, calls periods. within the various limitations agreements "nothing more than a revenue (East sharing Chicago Reply commitment.” Chicago’s only 19.East contract-related count Br. at grounds that was dismissed on limitations Chicago's Because we find East motion for VIII, for reformation of the con- was Count summary judgment public policy grounds on tract. The “breach” of count contract denied, properly we need not address the IX, Chicago alleged was Count which the argument Foundations’ were trial court did not dismiss on limitations 1—1—1, pro- § validated Ind.Code which 5— grounds. accordingly do not address the vided bonds and certain other written obli- application period of the contract limitations gations city issued executed before hereby to Count IX. legalized "are March declared valid....” VIII, As to Count directs us to 34-11-2-11, provides: § pe- Ind.Code which addresses the limitations upon writing headings "Discovery An action other riods under contracts wrongdoing,” (Appellant's payment money, Br. at "Breach than those for the
379
(id.
claims,”
38),
Generally,
and “Breach of trust
at
stances.
Id.
in making this de
periods
for which it asserts the limitations
only
termination we
complaint
consider
But
years, respectively.
are ten and six
ignore
other
in
evidence
the record.
reply
nowhere in its brief or
brief does
However,
Id.
allegations
where
of a plead
acknowledge
two-year
ing are inconsistent with
of a
terms
writ
fiduciary
for
period
limitations
breach
ten
exhibit,
contract attached as an
duty
why its claims were
explain
contract, fairly construed,
terms of the
period.
that
brought within
We therefore
prevail
must
over an
differing
averment
Chicago’s argu-
are
address East
unable to
Cornett,
therefrom. Eskew v.
744 N.E.2d
I, II, IV, V,
regard to
ments with
Counts
954,
denied,
(Ind.Ct.App.2001),
957
reh’g
VI,
premised
which аre
on alle-
and VII20
(Ind.2001).
trans. denied
That section does not
to Count
as
an action for
not an
at
reformation is
action
captioned "Accounting,” (App.
V
20. Count
is
Rather,
brought upon
law
the contract.
it is
390),
premised
but
on Second
equitable remedy
an action for the
"fiduciary
reforma-
duty
and the Foundations’
...
Trip-Tenn,
tion
the contract.
Inc. v.
account for all funds received” from the river-
Schultz,
747,
(S.D.2003).
656 N.W.2d
751
captioned
boat.
Id.
VI and VII
Counts
are
Co.,
Langer Stegerwald
And see
Lumber
"Declaratory JudgmenVReturn of Public
389,
(1952) (statute
Wis.
55 N.W.2d
Funds,”
(id.
premised
but are
on
equitable
applied
of limitations for
actions
allegation any agreement
funds
an action for reformation of a contract
paid
directly
would be
from the riverboat
estate,
purchase
ap-
real
rather than
statute of
and the Foundations was
contract),
upon
reh’g
proved
fiduciary
limitations for
actions
as a result of a breach of
(1953).
duty.
denied 262 Wis.
In Kuehl v. alleged Hoyle’s princi Kuehl Ct.App.2001), to hold We decline any expiration of pal waived defense to the limitations the Foundations waived their in Kuehl’s tort the statute limitation East Chicago defense to the cross-claims Hoyle principal case. filed a mo by bringing and counterclaims a declarato- third-party for leave to com tion file whether ry judgment action determine Hoyle’s insurer, against which mo a new plaint binding would be on granted. complaint alleged That licensee. tion was riverboat contract, fraud, and failure to act breach Tolling the Statute21 insured, alleging in the interest of the perform to the according argues insurer failed first running to the of the statute of limitations policy. terms of the It “related things, not run Chicago argues, among the statute of limitations does 21. East other adverse injuries tolled virtue of doctrine of its аnd directors officers equita That doctrine is “[t]he domination. corporation.” Marietta Corp. Martin statute of principle that the limitations ble Gould, Inc., (4th Cir.1995) F.3d breach-of-fiduciary-duty against aon claim (emphasis supplied). That is not the situa- long is and directors tolled.as as officers tion us. before While East does al corporate plaintiff controlled *22 allegations mayor make its former breach- leged wrongdoers.” Black’s Law Dictio fiduciary ed in his duties ways, various (7th ed.1999) nary (emphasis supplied). 54 Mayor Pastrick is not to party this action The adverse domination is based doctrine and this is not in any respect other a claim may premise corporation the that a be on corporation “by against its officers and by controlled or en so directors officers injuries directors for the corporation.” to in that of the gaged wrongdoing discovery Assuming arguendo doctrine applies the in Therefore, impossible. misconduct is Indiana, apply would not to toll discovery of period for losses be should this by statute limitations in action East equitably no wrongdoers tolled until against Chicago entities.23 outside longer entity.22 control the Mut. Sec. Life by Ins. Co. v. Deposit Bennett Fid. & Co. 1096,
of Md., Finally, Chicago 659 N.E.2d appears to 1102 (Ind.Ct.App.1995), trans. denied. argue by the statute was tolled fraudulent concealment of the Foundations’ and Sec “oper- The adverse domination doctrine Century’s ond financial reсords. This ar delay either ates to accrual of a cause gument appears premised to be on the of action or to limitations toll in situations involving by against a corporation Century’s claims Foundations’ and Second failure case, against it of the apply because common law doc- in that would the adverse domina tempus trine regi. of nullum occurrit The tion doctrine to toll the statute of limitations tempus regi applies maxim nullum occurrit in longer until the board was no dominated i.e., sovereign power only, favor of the lawsuit.) the defendants in that Stuart, 611, Ind.App. State. See State v. 46 91 (the (1910) N.E. 615 doctrine “has no Chicago authority sup 23. East offers no that application municipal corporations deriv- apparent ports premise its the adverse domi ing powers sovereign, though their from applies disputes doctrine nation between powers govern- their limited in a sense are corporations and We other entities. note our against mental. Thus the statute runs for or statement INB Nat. Bank v. Moran Elec. cities, against towns and also for or coun- Service, Inc., (Ind.Ct. 608 N.E.2d 707 ties.”). accordingly We decline to find App.1993), trans. denied: "A statute of limita claims survive on that basis. only legal disability, be tions can extended It including 22. is not clear the adverse doc incompetence, minority, imprison domination applies trine only ment, in Indiana. The Indiana nonresidency under certain circum support decision East offers in of its stances, war, instances, death in certain argument adverse domination Sec. Mutual fraudulent concealment. circumstances Deposit Ins. Co. Bennett v. Fid. & Co. Life which a under statute of limitations can be Md., (Ind.Ct.App. 1096 (Citations extended are defined statute.” doctrine, recognized where we there is such a omitted). Under the facts before us we de designate but said “Due to MSL's failure to Chicago’s recognize a cline East invitation to domination, facts to show adverse we need exception running new to the of the statute of theory not reach the issue whether the application limitations in the form of apply discovery provi should of loss litigants domination that adverse doctrine sion.” Id. at And see Resolution Trust corporate are not directors or shareholders O’Bear, Overholser, Corp. Huffer, Smith & bring against who failed to an action (N.D.Ind.1993) F.Supp. corporation period before the limitations ran. (reaching "suppo its based on conclusion court, sition” an Indiana faced with the facts advantage. No such behavior information breach conseionable financial disclose alleged asserts was their in the case relationship of what East or explained As we duty to do so.24 fiduciary before us.
above,
acknowledge
Chicago does
for breach
two-year
period
limitations
Century Cross-Appeal
4. The Second
why its
fiduciary duty
explain
claims
cross-appeal,
On
Second
Nor,
period.
brought
were
within
argues
breach of contract
numerous characterizations of
despite its
have
claim should
been dismissed. We
fiduciaries,
it ex-
does
the Foundations as
IX,
agree.
one the trial
Count
duty
plain
fiduciary
their
toward
how
dismiss,
Pannos, Cap-
court did not
asserts
might have arisen.
“breached the
pas,
say
cannot
the limitations
*23
Agreement by failing
open
to
Confirmation
period
by
was tolled
fraudulent conceal
in
City
its books and records to the
order
fiduciary duty
ment based on
because
City
agreed-
permit
to
the
to exercise the
Chicago
any
not direct us to
East
does
upon oversight,” (App. at
and assure
part
any
the
allegations of dominance on
Century
the
de
performed
Second
duties
alleged
fiduciary
A
rela
fiduciaries.
agreements.
scribed in the letter
unless there is a
tionship does not exist
portions
agreements
letter
relationship of trust and confidence be
Century’s obligations
that define Second
parties.
tween the
Paulson v. Centier
require
Century’s projects
ap-
Second
be
Bank,
(Ind.Ct.App
proved by
Chicago,
East
conform with the
.1998)(addressing
relationship
between
comprehensive
and be directed to
plan,
denied,
borrower), reh’g
a lender and a
Chicago.
Chicago
sites within East
East
(Ind.1999).
trans.
knowledge. Id. it must be Chicago prejudiced by that was not party wrongfully shown the dominant by improperly abused this confidence influ consolidation of the civil court review of un- encing summary the weaker so as to obtain an the administrative action and the discern, argu- Century 24. As best we are able to this because the funds held Second Chicago ment is to Count V. East directed subject "were to constructive trust for does not indicate which count or counts are (East Chicago.” Chicago benefit of East Re- reason, does, point at tolled for this but it one ply Br. at As East offers no argument, page in to a in the its direct us cogent argument why vel the existence non of appendix where Count V found. is obligations and Sec- constructive trust Century might incur under a trust ond such 25. East does not contend the con- might demonstrate Second "breached obliges provide tract an 397) Agreement,” (App. Confirmation accounting open or otherwise its records to (emphasis supplied), are unable we to address Instead, Chicago. it asserts Second Cen- that matter. tury duty accounting provide has a that, action. East As an initial I judgment and dismissal Chi- matter must note incredibly, Chicago argues that summary judgment motion was cago’s agreements enforceable, letter yet are not denied, through I properly and Counts asks payments receive increased of its cross-claims and counterclaims VIII through their enforcement. “[T]his Court However, properly were dismissed. agreement should find that the letter trial court should also have dismissed void and unenforceable as a matter of law in accordingly part, Count IX. We affirm was entitled to in part, reverse remand. summary judgment....” Appellant’s Brief part, part, Affirmed in in reversed motion, In 44. its East Chicago asked remanded. the trial court payment “bar the gaming further revenues to Second Centu- SHARPNACK, J., concurs. Foundations, ry and the redirect [and] such City....” revenues App. at BAILEY, J., in concurring part, If, as East suggests, concurring part separate result with void, letter are then it lacks opinion. any basis for its claim. BAILEY, Judge, concurring in part and Accepting assertion that concurring part. in result in *24 void, agreements majori- the letter are the result, separately I concur in but write ty did not need to reach the issue of the light majority’s of the that conclusion However, must, contract’s duration. if we agreements the lettеr do not terminate I agree would with East and con- until revocation the gaming of license. On clude that the letter agreements terminat- issues, I years.1 all other concur. ed after five The 1995 letter refer- among agreements 1. In an Alice-in-Wonderland battle as exhibits to its Certificate of asserting gambling Suitability payments those entitlement to the reve- established as a 1999, nues, condition of In party challeng- the licensure. the Commis- answer, Concluding a ing sion issued license to Harrah's. the contract's duration. In its that Harrah's had committed to honor the Resorts asked the trial court to determine agreements, Showboat letter the Commission parties’ respective rights "the under the Eco- informally decided that "Second is a Development Agreements nomic Letter in the negotiated development item in the economic approves event that the Commission agreement,” oversight and that of Second Gaming transfer of the License [to Resorts] City. App. would be left to Gaming and includes as a condition 2169, 2294. comply License that Resorts with the Eco- Century brought the instant action Development Agreements.” nomic Letter Id. later, April days issuing on 2005. Six a added). (emphasis apparently at 322 Resorts Resorts, gaming license to the Commission obligated pay- considered itself to make the provisions made no reference to the receiving gaming ments as a condition of a 9, 2006, agreements. letter On Marсh operate purchased license to the assets from Commission renewed the license. While the Harrah’s, being but it did not admit to bound four Commission established conditions of li- the letter or the series of censure, disputed none of them addressed the 1998, 1999, subsequent agreements in 8, 2006, payments. On June the Commission appellate 2000. Resorts did not submit an passed Disapproving "A Resolution in Part brief. Development Agree- the East Local appear It does not that the current license Id. at The ment.” 2201-04. Resolution dis- requires compliance with the terms of approved portion agree- of that of the letter agreements. licensing licensee(s) originally letter In "requiring ments the riverboat operate Century.” Showboat to payments riverboat in East make to Second Id. at Chicago, the Commission attached the letter 2202. licensure, but years first 5 eneed “the Billy LEMOND, Appellant- J. regarding the terms
contained no other Defendant, Per Id. at 669. stat contract’s duration.
ute, that the term parties understood years. be five original license would Indiana, Appellee-Plaintiff. (ss). STATE 4-33-6-10(c) (1993) §
Ind.Code aware that the license parties also were No. 63A04-0702-CR-105. gaming concern rather was issued to entity. As City any other local than the Appeals of Indiana. Court such, any cannot be reasonable ex there Dec. 2007. would be ef pectation agreement that the term, five-year beyond original fective Transfer Denied Feb. concludes, especially where majority as the (Ind. property right
the license was not 4-33-6-17(2) (1993) (ss)), § was sub
Code
ject to revocation the Commission (I.C. 4-33-6-17(1) (1993) (ss)), §
any time (Ind. requires annual renewal
and statute (1993) (ss)). § 4-33-6-12 While
Code agree that
majority concludes the letter remote, improba upon
ments terminate event, practical
ble effect of deci parties
sion binds the and their successors no
indefinitely. A contract that has termi that it provides
nation date or which will *25 indefinitely
last is terminable will Enbi, Ten Inc. v. party.
either See Cate
Metz, (Ind.Ct.App. N.E.2d
2004) (citing Specialties, Marksill Inc. v.
Barger, (Ind.Ct.App.
1981)). most, Therefore, at there exists at will.
contract terminable
Regardless, the outcome is the same
whether a contract exists or not. This du-
Court cannot reward reasons,
plicity. For these I concur in
result.