APPEAL FROM THE HENDRICKS SUPERIOR COURT. The Honorable Mark A. Smith, Judge. Cause No. 32D04-1208-PL-91.
ATTORNEY FOR APPELLANT: JAMES E. AYERS, Wernle, Ristine & Ayers, Crawfordsville, Indiana.
ATTORNEYS FOR APPELLEE: THOMAS G. BURROUGHS, MICHAEL W. HILE, Katz & Korin, PC, Indianapolis, Indiana.
NAJAM, Judge. VAIDIK, C.J., and BROWN, J., concur.
STATEMENT OF THE CASE
Don Morris appeals the trial court's entry of summary judgment for BioSafe Engineering, Inc. (" BioSafe" ). Morris raises a single issue for our review, namely, whether the trial court erred when it entered summary judgment for BioSafe.
FACTS AND PROCEDURAL HISTORY
The facts underlying this appeal were stated by this court in a prior appeal:
The facts most favorable to Morris and [Randy] Coakes, the non-movants for summary judgment, are as follows. In 2006, Morris was employed by Waste Recovery, which provided biological effluent destruction systems products[, that is, products used in the management of animal carcasses]. When it became apparent that the company was insolvent, Morris approached [Richard] Redpath in regard to forming a new company to " take control of the niche industry." On November 15, 2006, Waste Recovery ceased doing business; Morris paid a rent installment and agreed to execute a five-year lease for the premises previously occupied by Waste Recovery. He initiated remodeling of the premises and began to investigate financing.
Later in November, [Brad] Crain, Coakes, Redpath, and Morris conducted a conference call regarding the new business. Morris and Coakes drafted a spreadsheet of proposed ownership shares (45% to Morris, as President, 25% and 20% to Crain and Redpath, respectively, as Vice-Presidents, and 2%
each to Coakes, [Steven] Biesecker, [Tyler] Johnson, [Brandon] Ross, and [Chris] Sollars). After negotiation, the shares allocation was changed to 40% for Morris, 30% for Crain, and 20% for Redpath (with the others retaining 2% each).
Marketing materials were distributed indicating that Redpath, Morris, and Crain were " principals" of BioSafe. Nonetheless, in January of 2007, Articles of Organization for BioSafe were filed with the Indiana Secretary of State, indicating that Crain and Redpath were the sole members, each having 50% ownership.
In August of 2007, Crain advised Morris that a building in Brownsburg had been leased in anticipation of acquiring Waste Recovery assets. The following month, Morris asked Crain about signing to purchase Waste Recovery assets, and was told that Crain and Redpath had been representing that they were each 50/50 owners. Later that month, BioSafe successfully bid for the ...