HLH Consulting, LLC v. Burd Automotive, Inc., CB Holdings, LLC, and Christine E. Tanner f/k/a Christine E. Burd

FILED Apr 22 2020, 9:03 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES Geoffrey M. Grodner David J. Bodle Kendra G. Gjerdingen Anthony S. Ridolfo D. Michael Allen Steven T. Henke Daniel A. Dixon Hackman Hulett LLP Mallor Grodner LLP Indianapolis, Indiana Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

HLH Consulting, LLC, April 22, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-PL-1261 v. Appeal from the Marion Superior Court Burd Automotive, Inc., The Honorable James B. Osborn, CB Holdings, LLC, and Judge Christine E. Tanner Trial Court Cause No. f/k/a Christine E. Burd, 49D14-1510-PL-34350 Appellees-Defendants,

Robb, Judge. Court of Appeals of Indiana | Opinion 19A-PL-1261 | April 22, 2020 Page 1 of 17

Case Summary and Issue [1] HLH Consulting, LLC appeals the trial court’s order granting summary

judgment in favor Burd Automotive, Inc., CB Holdings, LLC, and Christine

Burd Tanner (collectively “Defendants”) and presents two issues for our review

that we consolidate and restate as whether the trial court properly granted

summary judgment in favor of the Defendants. Concluding no genuine issue of

material fact exists and Defendants were entitled to judgment as a matter of

law, we affirm.

Facts and Procedural History [2] The following persons, entities, and property are involved in this litigation:

• • Burd Ford is an automobile dealership, not a legal entity, an authorized

dealer of Ford motor vehicles, and at all times relevant to this case, was

located at 10320 Pendleton Pike in Indianapolis, Indiana.

• • Burd Automotive, Inc. (“Burd Automotive”) is a now dissolved

corporation that owned the personal property and assets of Burd Ford

and ran the day to day operations of the dealership.

• • CB Holdings, LLC (“CB Holdings”) is a limited liability company that

owns the real property located at 10320 Pendleton Pike upon which Burd

Ford was located.

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• • Christine Burd Tanner (“Christine”) is the sole member of CB Holdings

and sole shareholder of Burd Automotive.

• • HLH Consulting, LLC (“HLH”) is a limited liability company located in

Indianapolis that provides consulting services, including the marketing of

motor vehicle dealerships and related assets.

• • Harold Hurst is a licensed real estate salesperson and president of HLH

Consulting, LLC. [3] In 2009, Christine assumed all her late husband’s assets, and became the sole

member of CB Holdings and the sole shareholder of Burd Automotive.

Christine wanted to sell the dealership and obtained Hurst’s number from

another dealer as someone who could help her identify a buyer. On July 18,

2011, Christine and Hurst met and signed two letter agreements: one agreement

in which they agreed HLH would “solicit buyers and arrange for the sale of

your auto related dealerships by an asset or stock sale” (“Asset Retention

Agreement”) and another letter agreement in which they agreed HLH would

“obtain a lease or sale of the real estate owned personally by you or your

company and used in the operation of your auto related businesses” (“Real

Estate Retention Agreement”) (collectively, the “Retention Agreement(s)”).

Appellant’s Appendix, Volume 3 at 96-97. Hurst signed on behalf of HLH.

Christine signed on behalf of Burd Ford and herself, “represent[ing] and

warrant[ing] [she is] authorized to sign this on behalf of [her] companies.” Id.

As part of each agreement, HLH was given the exclusive right to perform under

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the contract for 180 days; HLH charged a five percent fee for facilitating each

transaction to be paid in cash at closing but later agreed to lower its fee to four

percent. [4] Through HLH’s efforts, Jeff Wyler Automotive Family, Inc. (“Wyler”), an

Ohio corporation, offered to purchase Burd Ford. Wyler and Burd Automotive

executed a term sheet on April 12, 2012 outlining the terms and conditions of

the proposed purchase of substantially all of Burd Ford’s assets by Wyler. On

May 10, 2012, Wyler, Burd Automotive, and Christine (as shareholder) entered

into an agreement in which Wyler agreed to purchase the dealership’s assets

(“Asset Purchase Agreement”).1 The Asset Purchase Agreement was

contingent upon the execution of a lease agreement pursuant to which Wyler

was to lease the real estate upon which Burd Ford is located from CB Holdings.

Appellee’s Appendix, Volume 2 at 122.2 As part of the agreement, Wyler was

authorized to pay four percent of the purchase price to HLH. The Asset

Purchase Agreement also provided for the execution of a Consulting

Agreement between the parties. The agreement was scheduled to close between

June 15 and July 31, 2012. However, before the closing, Ford exercised its

1 Christine signed on behalf of Burd Automotive as president and shareholder. See Appellee’s Appendix, Volume 2 at 150. 2 The Real Estate Lease section of the Asset Purchase Agreement stated: “At the Closing and as a condition to Closing, Purchaser [Wyler] shall agree to lease and purchase the real estate upon which the Dealership is located from CB Holdings, LLC pursuant to the Agreement of Lease attached hereto as Exhibit 6 (the “Lease Agreement”).” Id.

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right of first refusal with respect to the proposed sale3 and entered into a similar

asset, lease, and consulting agreement with Burd Automotive, CB Holdings,

and Christine, which closed on July 10, 2012. In connection with the closing,

Burd Automotive, CB Holdings, or Christine paid HLH $68,025.25 in

commission for the asset sale. After the closing, Burd Automotive, CB

Holdings, or Christine paid HLH $1,440 every month for its commission on the

lease agreement. At some point in 2014 or 2015, Christine stopped making

payments to HLH. [5] On October 12, 2015, HLH filed a Complaint against Burd Automotive, CB

Holdings, and Christine (collectively “Defendants”) alleging two counts of

breach of contract relating to the two Retention Agreements and one count of

unjust enrichment. See Appellee’s App., Vol. 2 at 2-9. Defendants

subsequently filed a Motion to Dismiss alleging the Retention Agreement(s) are

void and unenforceable because HLH failed to allege in its Complaint that it

was a licensed real estate broker as required by statute. On January 11, 2016,

the trial court issued an order granting the motion and dismissing the complaint

with leave to file an amended complaint within ten days. [6] Four days later, HLH filed an Amended Complaint, in which it alleged that

Hurst was a licensed real estate salesperson acting as an agent for Glazier

3 At his deposition, Lante Earnest, Burd Automotive’s attorney, explained Ford’s right of first refusal: “Basically they have the right to come in and buy the same assets according to the same terms and conditions that have been previously negotiated.” Appellant’s App., Vol. 5 at 36.

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Realty Group, Inc. (“Glazier Realty”), a licensed real estate broker company,

and attached a copy of Hurst’s application for licensure, real estate salesperson

license issued on April 5, 2010, and real estate broker license issued on April 24,

2014 (Exhibits C and D). See id. at 96-104, 107-09. Defendants again filed a

Motion to Dismiss alleging that neither Hurst nor Glazier Realty were parties

to the Retention Agreements, their licenses are irrelevant, and as such, HLH’s

Amended Complaint failed to allege a claim upon which relief can be granted.

Following a hearing, the trial court granted the motion. On May 12, 2016,

HLH filed its Second Amended Complaint again alleging breach of contract

and unjust enrichment but also alleging that in 2012 Hurst informed Christine

he was a licensed real estate salesperson working for Glazier Realty and

Christine knew and agreed to Hurst acting as the real estate salesperson under

the Retention Agreements. [7] Defendants filed their answer asserting affirmative defenses and a counterclaim

seeking the return of all commission paid to HLH. On June 12, 2016,

Defendants filed their Motion for Summary Judgment arguing that HLH

negotiated a transaction for the lease or sale of real estate as a business broker

without a real estate broker’s license, which violated the Indiana Broker

Licensing Act and rendered the Retention Agreements void. In turn,

Defendants argued HLH must return any commissions previously received.

Appellant’s App., Vol. 2 at 145. In support of their motion, Defendants

designated certain evidence, including: (1) the Retention Agreements; (2)

documentation of Hurst’s real estate license; and (3) official statements from the

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Indiana Real Estate Commission, Professional Licensing Agency certifying that

there was no record of a real estate broker license for Hurst or HLH in 2011. Id.

at 202; Vol. 3 at 21. [8] The trial court held a hearing on the motion for summary judgment and granted

Defendants’ motion on all issues in the Second Amended Complaint and

Defendants’ Counterclaim, finding, in relevant part:

Under the Second Amended Complaint, relief is not available under any set of circumstances. The Retention Agreement at issue in the Amended Complaint is a void agreement, and not capable of ratification. Under the Retention Agreement, [HLH] seeks to recover commissions as a business broker in transactions involving the sale and lease of real estate. [HLH] was not a licensed real estate broker under Indiana Code § 25-34.1-1-1, et seq., (2011) in effect at the time and HLH cannot recover commissions as alleged in the Amended Complaint.

[CB Holdings] is not a party to the Retention Agreement at issue in the Second Amended Complaint. [Christine] did not own any of the property subject to the Retention Agreement at issue.

The controlling Indiana statute requires that in all actions for the collection of a real estate commission, a plaintiff must allege and prove that at the time the cause of action arose, the plaintiff was not in violation of the Indiana Real Estate Brokers Act. Ind. Code § 23-34.1-6-2 (b) (2011). [HLH] cannot meet its burden [and] has not alleged that it was duly licensed under Indiana Code § 25-34[.]1-1-1[.] The Retention Agreements at issue in the Second Amended Complaint are considered to constitute a single agreement, executed at the same time, between the same parties, and involving the same subject matter. The Retention Agreement involves the negotiation and sale and lease of real

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estate as well as personal property. HLH . . . was not allowed to collect a commission in negotiating the Retention Agreement. The Retention Agreement is void as against the public policy of the State of Indiana, because [HLH] was not licensed as a salesperson or broker under Ind. Code § 25-34.1-3-2 (2011). The undisputed facts establish that HLH . . . did not have a license as a real estate broker as required[.] No real estate broker was a party to the Retention Agreement; making the agreement void.

Under Ind. Code § 25-34.1-6-2 (2011), HLH . . . is not entitled to any commissions from the sale or lease of real estate, or from the sale of personal property, and any commissions previously paid are subject to forfeiture. As a matter of law, the defenses of unjust enrichment and estoppel are not available for [HLH] to assert against Defendants because the Retention Agreement is void ab initio. [HLH] failed to allege and cannot prove that it was a properly licensed real estate broker when the Retention Agreement [was executed.] Where a statute makes a contract void for lack of a licensed real estate broker, a court cannot enforce such a void contract. Additionally, the Retention Agreement negotiated by HLH . . . never closed between the parties to the agreement.

The Court being duly advised, it is . . . ORDERED, that the Defendants’ Motion for Summary Judgment is GRANTED because the undisputed facts establish that as a matter of law, the Second Amended Complaint fails to state claims against Defendants upon which relief can be granted. Summary Judgment is entered in favor of Defendants and against [HLH]. HLH . . . is not entitled to recover any additional commissions, and all commission previously received by HLH . . . must be forfeited and returned under the Retention Agreement. The Counterclaim filed by Defendants for the recovery of commissions previously paid by Defendants to [HLH] shall be scheduled for trial as on the amount of damages owed by [HLH] for the collection of commissions[.]

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Appealed Order at 1-3.4

Discussion and Decision I. Standard of Review [9] Summary judgment is a tool which allows a trial court to dispose of cases where

only legal issues exist. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

When reviewing the grant of summary judgment, we apply the same test as the

trial court: summary judgment is appropriate only if the designated evidence

shows there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR Pizza

Enters., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). The moving party bears the

initial burden of showing the absence of any genuine issue of material fact as to

a determinative issue. Hughley, 15 N.E.3d at 1003. [10] Once the movant for summary judgment has established that no genuine issue

of material fact exists, the nonmovant may not rest on its pleadings but must set

forth specific facts which show the existence of a genuine issue for trial. Perkins

v. Fillio, 119 N.E.3d 1106, 1110 (Ind. Ct. App. 2019). “A fact is ‘material’ if its

resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

trier of fact is required to resolve the parties’ differing accounts of the truth, or if

4 Following a damages hearing on May 6, 2019, the trial court entered an order awarding Defendants $115,275.25, together with $52,760 in accrued interest. See Appellant’s App., Vol. 2 at 5.

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the undisputed material facts support conflicting reasonable inferences.”

Hughley, 15 N.E.3d at 1003. As opposed to the federal standard which permits

the moving party to merely show the party carrying the burden of proof lacks

evidence on a necessary element, Indiana law requires the moving party to

“affirmatively negate an opponent’s claim.” Id. (quotation omitted). Our

review is limited to the evidence designated to the trial court, T.R. 56(H), and

we construe all facts and reasonable inferences drawn from those facts in favor

of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013).

On appeal, the non-moving party carries the burden of persuading us the grant

of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. [11] Here, the parties do not dispute the relevant facts. Instead, the parties disagree

as to the effect of those facts: whether the Retention Agreement(s) represent

one contract under the Contemporaneous Document Doctrine, whether the

Retention Agreement(s) are void under the Indiana Broker Licensing Act, and

whether HLH is entitled to damages under the theory of unjust enrichment.

Cases involving contract interpretation generally are particularly appropriate for

summary judgment. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 842

(Ind. Ct. App. 2017), trans. denied. And statutory interpretation presents a pure

question of law for which summary judgment is also particularly appropriate.

Ramirez v. Wilson, 901 N.E.2d 1, 2 (Ind. Ct. App. 2009), trans. denied. Where

the issue presented on appeal is a pure question of law, we review the matter de

novo. Id.

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II. Retention Agreement(s) A. Contemporaneous Document Doctrine [12] In granting summary judgment in favor of the Defendants, the trial court

construed the Real Estate Retention Agreement and Asset Retention

Agreement as a single agreement which was rendered void under the Indiana

Broker Licensing Act. HLH argues that the Retention Agreements are two

separate contracts, and although it concedes the Real Estate Retention

Agreement is void, HLH contends it can still recover under the Asset Retention

Agreement.5 [13] The contemporaneous document doctrine provides that “[i]n the absence of

anything to indicate a contrary intention, writings executed at the same time

and relating to the same transaction will be construed together in determining

the contract.’” Lily, Inc. v. Silco, LLC, 997 N.E.2d 1055, 1068 (Ind. Ct. App.

2013), trans. denied. In addition to being executed at the same time, the writings

must relate ‘to the same transaction or subject-matter’ to be construed together

as a contract.” Estate of Spry v. Greg & Ken, Inc., 749 N.E.2d 1269, 1274 (Ind. Ct.

5 HLH makes the following concession in its brief:

HLH concedes that the Real Estate Retention Agreement is of no force and effect under Indiana’s contract law. Either no contract formed because CB Holdings – the owner of the Pendleton Pike Property – was not a party to the Real Estate Retention Agreement, or, if a contract formed, it was void because HLH was not a licensed real estate broker as required by Indiana Code, section 25-34.1-6-2 (2011). If a contract formed as to the Real Estate Retention Agreement and the two retention agreements are construed together as one contract, then both contracts would be void.

Appellant’s Brief at 15 (emphasis omitted).

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App. 2001). Application of this doctrine is determined on a case-by-case basis,

and the doctrine should be applied cautiously when the documents involve

different parties. Lily, Inc., 997 N.E.2d at 1068. [14] Under the contemporaneous document doctrine, HLH contends that the two

Retention Agreements are “not intertwined or related to one another and they

cannot be construed as one contract” because the Asset Retention Agreement

was executed for the purpose of selling the dealership’s assets and the Real

Estate Retention Agreement was executed for the purpose of obtaining a lease

or sale of the real estate. Appellant’s Brief at 13. Further, HLH argues that CB

Holdings was not a party to the Retention Agreements and “[n]owhere in either

of the retention agreements is there a statement that one agreement is

dependent or conditioned upon the other.” Id. [15] Here, the undisputed designated evidence reveals that Hurst and Christine met

on July 18, 2011 and executed the Asset Retention Agreement and the Real

Estate Retention Agreement at the same time, between the same parties,6 and

relating to the same subject matter, namely the negotiation and sale of the

6 HLH argues that CB Holdings was not a party to the Retention Agreements. Here, Christine executed the Retention Agreement on behalf of Burd Ford and herself representing and warranting that she was authorized to sign the document on behalf of her companies. See Appellant’s App., Vol. 3 at 96-97. Because Christine was the sole shareholder and sole member of the companies that owned the assets and real estate involved in the Retention Agreement, she and her companies were parties to the Retention Agreement. Care Grp. Heart Hosp., LLC v. Sawyer, 93 N.E.3d 745, 754 (Ind. 2018) (when a litigant is not a party to a contract, the “critical inquiry is whether the litigant who is absent from the cast of parties to one of the agreements is nevertheless ‘the same in essential respects’ to a party to that agreement”). Furthermore, in its Second Amended Complaint, HLH asserted that Christine executed the Retention Agreement on behalf of the Defendants. Appellant’s App., Vol. 2 at 29, ¶ 19.

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dealership’s personal property/assets and the real estate upon which the

dealership was located. When Christine met with Hurst, she believed they were

going to talk about obtaining a buyer, and at her deposition, she stated: “And

what I mean by that, I mean buy everything, the whole, so I could be out

completely. That’s what I thought we were going to be talking about.”

Appellant’s App., Vol. 3 at 228. [16] She further testified as to her understanding of the two documents: “[Hurst] was

going to bring a buyer to me, and then I don’t know what the buyer was going

to offer. So . . . to me, it was all one document. Because if he brought

somebody to me that didn’t want the real estate or wanted [to] just buy the

franchise. I didn’t know at the time. So I look at this as one document.” Id. at

223. She further stated, “I just think it’s all one entity. I mean, I would never

sell just the land if the dealership wasn’t sold.” Id. at 224. Under these

circumstances, we agree with the trial court’s interpretation that the Asset

Retention Agreement and Real Estate Retention Agreement constitute a single

agreement.

B. Indiana Broker Licensing Act [17] The trial court concluded that the single Retention Agreement was void ab initio

under the Indiana Broker Licensing Act because HLH was not a licensed real

estate broker at the time it entered into the Retention Agreement. Under the

Indiana Broker Licensing Act in effect at the time the Retention Agreement was

signed, a person who performs the acts of a salesperson without a salesperson

license or performs the acts of a broker without a broker license, commits a Court of Appeals of Indiana | Opinion 19A-PL-1261 | April 22, 2020 Page 13 of 17

Class A infraction. Ind. Code § 25-34.1-6-2(a) (2010). The penalty for a conviction for this offense is that “the court shall add to any fine imposed the amount of any fee or other compensation earned in the commission of the offense.” Id. With respect to a suit to recover commission, the statute provides:

In all actions for the collection of a fee or other compensation for performing acts regulated by this article, it must be alleged and proved that, at the time the cause of action arose, the party seeking relief was not in violation of this section.

Ind. Code § 25-34.1-6-2(b) (2010).7 The purpose of the Act is to “protect [Indiana] citizens from possible loss at the hands of incompetent or unscrupulous persons acting as brokers[,]” and to “effectuate the purpose of the Act it has been provided that only licensed persons may perform any acts as real estate brokers and criminal penalties are imposed . . . upon those who violate this provision.” Hoffman v. Dunn, 496 N.E.2d 818, 822 (Ind. Ct. App. 1986) (quotation omitted). Therefore, “[a]llegation and proof of compliance with Indiana’s licensing statute [is] a substantive statutory element of [plaintiff]’s suit for collection of a commission.” Rose Acre Farms, Inc. v. Greemann Real Estate, 516 N.E.2d 1095, 1097 (Ind. Ct. App. 1987), trans. denied.

7 “Person” is defined as an individual, a partnership, a corporation, or a limited liability company. Ind. Code § 25-34.1-1-2(1) (2006). “Broker” “means a person who, for consideration, sells, buys, trades, exchanges, options, leases, rents, manages, lists, or appraises real estate or negotiates or offers to perform any of those acts.” Id. at (4). “Salesperson” “means an individual, other than a broker, who, for consideration and in association with and under the auspices of a broker, sells, buys, trades, exchanges, options, leases, rents, manages, or lists real estate or negotiates or offers to perform any of those acts.” Id. at (5).

Court of Appeals of Indiana | Opinion 19A-PL-1261 | April 22, 2020 Page 14 of 17 [18] Here, the Retention Agreement involved the sale or lease of the real estate upon

which the dealership was located and therefore, pursuant to statute, HLH was

required to have a real estate broker license. There is no dispute that HLH did

not allege or prove its compliance with the statute and was in violation of the

statute as it did not have the requisite license when it entered into the Retention

Agreement and cannot recover commission. See Appellant’s App., Vol. 2 at

202; Id., Vol. 3 at 21. Therefore, the Retention Agreement purporting to entitle

HLH to a certain percent of commission which it is prohibited from receiving is

void. See Hoffman, 496 N.E.2d at 822-23 (stating that a “contract made in

violation of a statute is generally presumed void” and holding real estate

contract void and unenforceable where no party to the contract held a real

estate broker’s license). Accordingly, the trial court properly granted summary

judgment in favor of Defendants on this issue.

C. Unjust Enrichment [19] Nonetheless, contrary to the trial court’s conclusion, HLH argues that even if

the Retention Agreement is void, Indiana law permits equitable relief for void

contracts. See Appellant’s Br. at 15. In its order, the trial court concluded:

The Retention Agreement is void as against the public policy of the State of Indiana, because [HLH] was not licensed as a salesperson or broker[.]

***

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because the Retention Agreement is void ab initio. [HLH] failed to allege and cannot prove that it was a properly licensed real estate broker when the Retention Agreement [was executed]. When a statute makes a contract void for lack of a licensed real estate broker, a court cannot enforce such a void contract. Additionally, the Retention Agreement negotiated by HLH . . . never closed between the parties to the agreement.

Appealed Order 2-3. [20] HLH asserts it is legally entitled to equitable relief under the theory of unjust

enrichment. Unjust enrichment requires a party who has been unjustly

enriched at another’s expense to make restitution to the aggrieved party. Neibert

v. Perdomo, 54 N.E.3d 1046, 1051 (Ind. Ct. App. 2016). To recover, the plaintiff

must show that (1) he rendered a measurable benefit to the defendant at the

defendant’s express or implied request; (2) he expected payment from the

defendant; and (3) allowing the defendant to retain the benefit without

restitution would be unjust. Id. And although there is a strong presumption of

the validity of contracts, courts have refused to enforce contracts on public

policy grounds in three types of situations: (1) agreements that contravene a

statute; (2) agreements that clearly tend to injure the public in some way; (3)

agreements that are otherwise contrary to the declared policy of Indiana. Ahuja

v. Lynch Ltd. Med. Research, 675 N.E.2d 704, 707 (Ind. Ct. App. 1996), trans.

denied. [21] Here, there is no question that the Retention Agreement violates the Indiana

Broker Licensing Act and is void against public policy, and that HLH is not

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entitled to the commission it sought in its Second Amended Complaint and

forfeits any previously earned commission. In light of the statute’s language

requiring forfeiture of commission, contracts made in violation of the statute are

not subject to equitable relief. Further, HLH’s argument that it is entitled to

equitable relief is illogical and contrary to the purpose of the Act. Even

assuming arguendo that the void contract was subject to equitable relief, HLH

would not be entitled to relief because the deal with Wyler never closed and

therefore, HLH did not confer any measurable benefit on Defendants.

Therefore, we conclude that judgment as a matter of law was appropriate. [22] In sum, the Retention Agreement violated Indiana law and is void and

unenforceable as against public policy; therefore, HLH must forfeit any

commission Defendants already paid and is not entitled to equitable relief.

Because no genuine issue of material fact exists and Defendants are entitled to

judgment as a matter of law, the trial court properly granted Defendants’

motion for summary judgment.

Conclusion [23] There are no genuine issues of material fact and Defendants are entitled to

judgment as a matter of law. The trial court properly granted summary

judgment in favor of Defendants. Accordingly, we affirm. [24] Affirmed.

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