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Cherokee Air Products, Inc. v. Buchan

Court of Appeals of Indiana

August 6, 2014

CHEROKEE AIR PRODUCTS, INC., CHEROKEE FAMILY LIMITED PARTNERSHIP, TIPPMANN INDUSTRIAL PRODUCTS, INC., ENNIS TIPPMANN, SR. FAMILY PARTNERSHIP, LLP, and TIPPMANN FARMS, LLC, Appellants-Defendants,
v.
BRUCE E. BUCHAN, Appellee-Plaintiff

APPEAL fro THE ALLEN SUPERIOR COURT. The Honorable David J. Avery, Judge. Cause No. 02D01-1102-PL-62.

ATTORNEYS FOR APPELLANTS: JEREMY N. GAYED, THOMAS M. KIMBROUGH, Barrett & McNagny, LLP, Fort Wayne, Indiana.

ATTORNEYS FOR APPELLEE: JOHN C. THEISEN, NATHANIEL O. HUBLEY, Thieisen Bowers & Associates, LLC, Fort Wayne, Indiana; KARL L. MULVANEY, NANA QUAY-SMITH, Bingham Greenebaum Doll, LLP, Indianapolis, Indiana.

GARRARD, Senior Judge. MAY, J., and MATHIAS, J., concur.

OPINION

Page 832

OPINION - FOR PUBLICATION

GARRARD, Senior Judge.

Cherokee Air Products, Inc., Cherokee Family Limited Partnership, Tippmann Industrial Products, Inc., Dennis Tippmann, Sr. Family Partnership, LLP, and Tippmann Farm, LLC (collectively " Cherokee" ) bring this interlocutory appeal from the trial court's order granting partial summary judgment in favor of Bruce E. Buchan in an action alleging breach of his employment contract and seeking damages. Concluding that there are no genuine issues of material fact precluding the entry of partial summary judgment in favor of Buchan, we affirm.

Sometime in the late 1980s, Buchan, in his capacity as a certified public accountant for an independent accounting firm, began working with Dennis Tippmann, Sr. and Dennis Tippmann, Jr. providing tax

Page 833

preparation services and advice on business matters. Later in 2004, the Tippmanns sought the assistance of an individual to provide full-time assistance to them in managing and investing the family's wealth. The Tippmanns extended an offer to Buchan in 2005 to work for Cherokee, various business entities owned by the Tippmann family. After successfully reaching an agreement on Buchan's salary, Buchan began working for Cherokee in the summer of 2005 as an at-will employee. No employment contract was signed at that time.

On December 28, 2006, Cherokee presented Buchan with a draft employment contract. On May 14, 2007, Buchan proposed a revision to the draft contract adding a new section pertaining to his compensation. On December 11, 2007, Cherokee and Buchan executed the employment contract, which included Buchan's revision.[1] Because Buchan had been employed by Cherokee since 2005, the contract was made retroactive to January 1, 2006. The contract provisions will be discussed more specifically below, but, in general, the contract provided for an initial term of five years with an automatic renewal for up to three successive five-year periods. Either party could elect not to renew the contract by providing a ninety-day written notice prior to the expiration of the current term. If Buchan continued to be employed by Cherokee for twenty years, his contract would renew for successive one-year periods.

On September 29, 2010, Cherokee provided Buchan with a notice of non-renewal of his employment contract. Buchan's last day of employment was to be December 31, 2010. Buchan continued to work for Cherokee after receiving the notice, and on October 1, 2010, provided Cherokee with a notice of retirement indicating that his retirement would be effective December 31, 2010. On January 14, 2011, Cherokee sent a letter to Buchan informing him that Cherokee did not recognize his ability to retire after receipt of the notice of non-renewal and that Cherokee considered Buchan to be employed on December 31, 2010.

In February 2011, Buchan filed a complaint against Cherokee alleging that he did not receive timely compensation for accrued paid vacation days and that Cherokee had breached the contract by not paying him the remaining portion of his bonus upon his retirement. Cherokee filed a counterclaim against Buchan alleging breach of the duty of loyalty, breach of contract, fraud and constructive fraud, disgorgement, and conversion. Buchan filed a motion for partial summary judgment and Cherokee filed a motion for summary judgment in the matter. After a hearing on the motions for summary judgment and other motions filed, the trial court took the matter under advisement, ultimately granting Buchan's motion for partial summary judgment on the issue of his entitlement to retire. The trial court denied the remainder of Buchan's ...


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