U.S. Research Consultants, Inc., Appellant-Plaintiff,
The County of Lake, Indiana; Board of Commissioners of the County of Lake, Indiana, in their official capacities; and the Lake County Treasurer, in his official capacity, Appellees-Defendants
from the Lake Superior Court Trial Court Cause No.
45D01-1602-CC-20 The Honorable John M. Sedia, Judge
Attorneys for Appellant Kevin W.Vanderground Church, Church,
Hittle & Antrim Merrillville, Indiana Rick C. Gikas
Attorneys for Appellees John E. Hughes Kevin G. Kerr Hoeppner
Wagner & Evans LLP Valparaiso, Indiana
U.S. Research Consultants, Inc. ("USRC"), entered
into a contract ("the Contract") with the County of
Lake, Indiana; Board of Commissioners of the County of Lake,
Indiana, in their official capacities; and the Lake County
Treasurer, in his official capacity (collectively "the
County"), pursuant to which USRC agreed to provide
collection services for delinquent real property taxes on
behalf of the County and the County agreed to pay USRC a
commission based on a percentage of the delinquent monies
paid to the County on the cases for which USRC provided
collection services. After the County terminated the
Contract, USRC filed a claim for breach of contract against
the County alleging that USRC was owed over $200, 000 in
unpaid commissions. The trial court granted summary judgment
in favor of USRC, and the County appealed. Another panel of
this Court reversed the trial court's order and remanded.
Cty. of Lake v. U.S. Research Consultants, Inc., 27
N.E.3d 1154 (Ind.Ct.App. 2015), trans. denied
("Lake County I"). After remand, the
parties filed cross-motions for summary judgment. The trial
court interpreted Lake County I as requiring USRC to
file its claims for commissions with the County when the
delinquent monies were paid to the County and found that USRC
failed to prove that it had filed such claims. Therefore, the
trial court denied USRC's summary judgment motion and
granted the County's motion. The trial court entered
final judgment against USRC and in favor of the County.
USRC appeals the grant of the County's summary judgment
motion. USRC argues that Lake County I does not
require USRC to prove that it filed its claims for
commissions within a specific time period. USRC also asserts
that the County is not entitled to summary judgment on the
basis that USRC failed to timely file its claims for
commissions. Finally, USRC argues that it is entitled to
prejudgment interest if it establishes that it is entitled to
unpaid commissions. We agree on all three counts. Therefore,
we reverse the grant of summary judgment in favor of the
County and remand for a determination as to whether USRC
performed the collection services required under the Contract
entitling it to unpaid commissions and, if so, the amount of
damages due USRC.
and Procedural History
The facts necessary for the determination of the issues in
this appeal follow. Between 2000 and 2006, USRC and the County
were parties to a series of contracts. Appellant's App.
Vol. 3 at 15-20. For simplicity, we refer and cite to the
Contract, effective January 1, 2005, to December 31, 2006,
because the relevant language is the same in all of the
contracts and most, if not all, of the remaining unpaid
commissions at issue appear to be based on the Contract.
Pursuant to the Contract, the County agreed to assign to USRC
all of Lake County's real property tax collection cases.
USRC "agreed to report directly to the Lake County
Treasurer for all instructions if necessary to carry out its
responsibilities" and to "[c]ollect the delinquent
monies through an organized procedure to include filing
lawsuits to collect if necessary." Id. at 15.
The Contract provides that taxes paid to the County prior to
filing suit will be paid directly to the Lake County
Treasurer and "[USRC] will then file a claim with the
County of Lake for fees which should be paid from the funds
established." Id. at 16. The Contract further
provides that USRC is entitled to a commission of 20% on
taxes collected from all cases begun before June 4, 2003, and
15% of taxes collected thereafter. Id. at 17. Also,
the Contract provides that the "services to be performed
hereunder by [USRC] shall be undertaken and completed in such
sequence as to assure their expeditious completion."
"The 'organized procedure' for collecting
delinquent monies was for the County to periodically send a
disc to [USRC] containing information about properties with
delinquent taxes." Lake County I, 27 N.E.3d at
1157. Although "the taxes were divided into
'last year taxes, ' or taxes delinquent for
less than one year, and 'prior year taxes, '
or taxes delinquent for a year or more", the treasurer
instructed USRC to collect only on prior year taxes.
Id. (emphases added). "To initiate the
collection process, [USRC] sent a collection letter to
taxpayers with delinquent prior year taxes."
Id. "[USRC] was not entitled to a commission on
paid taxes unless a collection letter had first been
sent." Id. "Every few months, [USRC] would
compare the letters it sent to the County's tax payment
records and submit a claim for commissions."
Id. at 1157-58. After the claim was submitted, USRC
and the County met and agreed on the amounts that USRC was
collecting. Id. at 1158.
The County terminated the Contract in November
2006. In March 2007, USRC submitted a claim to
the County for payment of commissions, which the County paid.
In May 2008, USRC filed its complaint against the County for
breach of contract alleging that USRC was owed over $200, 000
in unpaid commissions. The County filed an answer meeting the
substantive allegations of the complaint but asserting no
In June 2011, USRC employee Clara Castro and Lake County
Treasurer employee Marsha DeMure met and prepared
Plaintiff's Exhibit 4, a listing of collection letters,
taxes collected, and alleged unpaid commissions. Exhibit 4
included payments for "last year taxes" and
"prior year taxes" and would serve as a major basis
for USRC's allegations of unpaid commissions in Lake
County I. In the current appeal, Exhibit 4 continues to
be significant because USRC alleges that Exhibit 4 supports
its current demand for unpaid commissions based on payments
for "prior year taxes" for which USRC had not
previously submitted claims to the County.
In June 2012, the parties filed a pretrial order, in which
USRC alleged that it was owed over $1, 000, 000 in
commissions and the County argued that USRC had "not
supplied any information showing that letters or other
follow-up procedures were conducted by [USRC]. In other words,
[the County is] alleging that [USRC] did absolutely no work
to collect any of the taxes." Appellant's Supp. App.
Vol. 2 at 4-5.
In December 2012, USRC filed a motion for partial summary
judgment. The County filed a response and cross-motion for
partial summary judgment. In brief, the parties disputed the
meaning of "delinquent monies, " as used in the
Contract provision wherein USRC agreed to "[c]ollect the
delinquent monies through an organized procedure to include
filing lawsuits to collect if necessary." Lake
County I, 27 N.E.3d at 1156. USRC contended that
delinquent monies unambiguously referred to all
delinquent taxes, i.e., both "last year taxes" and
"prior year taxes" that were collected by the
County. The County argued that delinquent monies meant only
the tax cases the treasurer instructed USRC to pursue, which
had included only prior year taxes. Following a hearing, on
June 18, 2013, the trial court issued an order ("June
18, 2013 order") granting USRC's motion for partial
summary judgment "as it relates to the definition of
'delinquent'" and denying the County's
motion. Appellant's App. Vol. 5 at 10.
In September 2013, the County filed a motion for leave to
amend its answer to assert the affirmative defenses of
laches, estoppel, waiver, and accord and satisfaction. In
October 2013, USRC filed a motion for summary judgment
asserting that it was entitled to final judgment as a matter
of law. In December 2013, the County filed a motion for leave
to amend the pretrial order and a response to USRC's
summary judgment motion.
In December 2013, following a hearing on all outstanding
motions, the trial court entered an order denying the
County's motion for leave to amend its answer and motion
to amend the pretrial order and granting USRC's motion
for summary judgment. The trial court entered final judgment
in favor of USRC and awarded damages of $1, 076, 896.92 and
prejudgment interest in the amount of $393, 000. Id.
The County appealed and challenged the trial court's
grant of USRC's partial summary judgment motion, the
denial of the County's partial summary judgment motion,
the denials of the County's motion for leave to amend its
answer and its motion to amend the pretrial order, and the
grant of USRC's summary judgment motion. Appellees'
App. Vol. 2 at 22-23. Although the County raised numerous
issues, the Lake County I court found the following
issue dispositive: "whether the trial court properly
interpreted the collection contracts as a matter of law and
therefore properly granted partial summary judgment to [USRC]
and denied partial summary judgment to the County." 27
N.E.3d at 1155-56. In explaining the precise question of
interpretation raised in the cross-motions for partial
summary judgment, the Lake County I court stated,
The specific question presented by the cross[-]motions for
[partial] summary judgment was what [USRC] was hired to
collect pursuant to the contract provision that [USRC] was to
"[c]ollect the delinquent monies." [USRC] took the
position that it was to collect all delinquent taxes
and was entitled to commissions on the total amount, whereas
the County took the position that [USRC] was only to collect
the [prior] year delinquent taxes as directed by the
Treasurer and was only entitled to commissions on that amount
even if additional delinquent taxes were paid.
Id. at 1161 (citation omitted).
The Lake County I court concluded that the trial
court erred in interpreting the Contract based on the
All the clauses are given meaning when the contracts as a
whole are construed to mean that [USRC] is to collect
"the delinquent monies" associated with the real
property tax collection cases assigned to it at the
Treasurer's instruction and that [USRC] earns
commissions on those amounts. That the contracts
require [USRC] to be assigned one-hundred percent of the real
property tax collection cases means only that no tax
collection cases will be assigned to any other entity for
collection, not that [USRC] will be assigned all delinquent
tax accounts. In other words, the contracts allow the
Treasurer to decide which cases are tax collection
cases, assign those to [USRC] and instruct
[USRC] to carry out its collection responsibilities with
respect to those cases. The contracts ...