from the Grant Superior Court No. 27D01-1409-MI-141 The
Honorable Marianne L. Vorhees, Special Judge.
Attorney for Appellant Jon Orlosky Muncie, Indiana Attorneys
Stephen J. Peters David I. Rubin Pamela A. Paige Plunkett
Cooney, P.C. Indianapolis, Indiana
M Jewell, LLC ("M Jewell") appeals the trial
court's grant of summary judgment to SRI, Incorporated
("SRI"). We affirm.
M Jewell raises one issue, which we restate as whether the
trial court properly granted summary judgment to SRI on M
Jewell's third-party beneficiary claim.
This case is about whether the purchasers of real estate in a
tax sale are third-party beneficiaries of contracts between
SRI and Grant County. In 1994, Grant County, Indiana, entered
into a Services Master Agreement ("SMA") with SRI.
In 2010, Grant County and SRI entered into a Tax Sale Support
Services Addendum to the SMA ("Addendum") and a
2010 Tax Sale Workplan-Grant County ("Workplan")
(collectively, "Agreements"). Under the Agreements,
SRI agreed to perform certain services related to tax sales
in Grant County, including the preparation and mailing of
notices to property owners with delinquent property taxes.
Farmers Mutual Insurance Company of Grant & Blackford
Counties ("Farmers Mutual") owned property in Grant
County. Farmers Mutual failed to update its mailing address
with the Grant County auditor or treasurer, and Farmers
Mutual accumulated delinquent property taxes. Farmers
Mutual's real estate was placed on a list of properties
to be sold at tax sale on September 23, 2010, and SRI sent
the notices of tax sale. Because of the erroneous address in
the records, the notices were returned unclaimed. Neither SRI
nor the auditor's office made any further attempt to
notify Farmers Mutual of the tax sale or to locate a more
On September 23, 2010, M Jewell purchased the real estate at
a tax sale in Grant County for $5, 508.98. M Jewell later
filed a petition for an order directing the auditor of Grant
County to issue a tax deed, which the trial court granted. A
tax deed was issued to M Jewell in December 2011. On February
27, 2012, Farmers Mutual filed a petition to set aside the
tax deed and a motion for leave to pay funds into the court
in the sum of $6, 985.33 for the delinquent property taxes
and interest. The trial court granted the motion for leave to
pay funds into the court. The trial court, however, later
denied Farmers Mutual's motion to set aside the tax deed.
Farmers Mutual appealed the trial court's order. On
appeal, this court concluded that the trial court erred by
denying the motion to set aside the tax deed. See Farmers
Mut. Ins. Co. of Grant & Blackford Ctys. v. M Jewell,
LLC, 992 N.E.2d 751 (Ind.Ct.App. 2013), trans.
denied. We noted that, under the statute in effect at
the time, the auditor was statutorily required to research
its records to determine a more complete or accurate address
if both notices are returned due to incorrect or insufficient
addresses. Id. at 756 (citing Ind. Code §
6-1.1-24-4). Because the auditor and SRI failed to perform
the additional research, we concluded that the statutory
notices were not in substantial compliance and the tax deed
was void. Id. at 759-60. We directed the trial court
to grant Farmers Mutual's petition to set aside the tax
deed. M Jewell was reimbursed $6, 997.50 as the statutory
refund payment for the real estate.
In September 2014, M Jewell filed a complaint against Roger
Bainbridge, in his capacity as Grant County Auditor; Sarah
Melford, in her capacity as Grant County Treasurer; John
Lawson, in his capacity as a Grant County Commissioner;
Michael Burton, in his capacity as a Grant County
Commissioner, (collectively, "Grant County"); and
SRI. M Jewell alleged in Count I that Grant County was
negligent in conducting the tax sale and that M Jewell had
been damaged. In Count II, M Jewell alleged that it, as the
purchaser of real estate in a tax sale, was a third-party
beneficiary of Grant County's contracts with SRI and that
M Jewell had suffered damages of $784, 000.00.
Grant County filed a motion for summary judgment, and M
Jewell filed a motion to dismiss Grant County as a defendant
with prejudice. The trial court granted M Jewell's
request and dismissed M Jewell's claims against Grant
County with prejudice.
SRI also filed a motion for summary judgment regarding M
Jewell's third-party beneficiary claim. SRI argued that M
Jewell's claims failed as a matter of law because M
Jewell was not a third-party beneficiary of the contracts.
SRI also argued that, even if M Jewell was a third-party
beneficiary of the contracts, the SMA's terms precluded
the damages sought by M Jewell. Finally, SRI argued that M
Jewell had already received the statutory refund of the
purchase price at the tax sale plus interest and that M
Jewell was not entitled to a "windfall."
Appellant's App. Vol. II p. 120. M Jewell filed its
response to SRI's motion for summary judgment. At a
hearing on the motion for summary judgment, SRI and M Jewell
agreed that the issue was a matter of law appropriate for
The trial court granted SRI's motion for summary
judgment. Regarding the third-party beneficiary claim, the
trial court found that, based on the language in the
Agreements, "the intent is for SRI to provide the
notices and the work necessary to hold the tax sale, to
conduct the tax sale, and then to advise property owners that
their property was sold in a tax sale and how to redeem
it." Id. at 21-22. The trial court did not find
"any language that evidences an intent to benefit tax
sale purchasers, directly or indirectly." Id.
at 22. The trial court noted that the "only intended
beneficiaries of the SMA are Grant County and SRI" and
that "[a]ny potential profit to a tax sale purchaser
such as M Jewell is at best incidental to the performance of
the SMA." Id. The trial court found,
accordingly, that M Jewell was not a third-party beneficiary
of the SMA.
The trial court also found that, even if M Jewell qualified
as a third-party beneficiary, M Jewell's claimed damages
were precluded by the "SMA's limitation of liability
provision." Id. at 24. Finally, the trial court
also determined that M Jewell's remedy is wholly
statutory, that Indiana Code Section 6-1.1-24-4 "does
not provide a private cause of action for M Jewell," and
that "Grant County has made M Jewell whole by refunding
to M Jewell the amount it bid for the tax sale purchase (plus
interest)." Id. at 23, 25. The trial court,
accordingly, granted SRI's motion for summary judgment. M
Jewell now appeals.
M Jewell appeals the trial court's grant of summary
judgment to SRI. Summary judgment is appropriate only when
the moving party shows there are no genuine issues of
material fact for trial and the moving party is entitled to
judgment as a matter of law. Erie Indem. Co. for
Subscribers at Erie Ins. Exch. v. Estate of Harris by
Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh'g
denied; see also Ind. Trial Rule 56(C). Once
that showing is made, the burden shifts to the non-moving
party to rebut. Schoettmer v. Wright, 992 N.E.2d
702, 705-06 (Ind. 2013). When ruling on the motion, the trial
court construes all evidence and resolves all doubts in favor
of the non-moving party. Id. at 706. We review the
trial court's ruling on a motion for summary judgment de
novo, and we take "care to ensure that no party is
denied his day in court." Id. "We limit
our review to the materials designated at the trial
level." Gunderson v. State, Indiana Dep't of
Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018).
M Jewell and SRI agreed below that there are no genuine
issues of material fact in this case. Rather, the issue is
whether SRI is entitled to judgment as a matter of law on M
Jewell's third-party beneficiary claim.
M Jewell first argues that the trial court erred when it
determined M Jewell was not a third-party beneficiary to
Grant County's Agreements with SRI. "Generally, only
parties to a contract or those in privity with the parties
have rights under the ...