SWL, L.L.C. and Scott Lollar, Appellants-Defendants/Counterclaim Plaintiffs,
NextGear Capital, Inc., Appellee-Plaintiff/Counterclaim Defendant.
from the Hamilton Superior Court The Honorable Steven R.
Nation, Judge The Honorable Darren J. Murphy, Magistrate
Trial Court Cause No. 29D01-1608-CC-6680.
Attorney for Appellants Jonathan D. Harwell Harwell Legal
Counsel LLC Indianapolis, Indiana
Attorneys for Appellee David J. Jurkiewicz Nathan T.
Danielson Christina M. Bruno Bose McKinney & Evans LLP
of the Case
SWL, LLC ("SWL") and Scott Lollar (collectively,
"Dealer") appeal the trial court's grant of
summary judgment for NextGear Capital, Inc.
("NextGear") on NextGear's complaint, which
alleged that SWL had breached a contract with NextGear and
that Lollar had breached a guaranty, and on Dealer's
counterclaims against NextGear, which included claims for
defamation and tortious interference with a business
relationship. Dealer presents one issue for our review,
namely, whether the trial court erred when it entered summary
judgment for NextGear on its complaint and on Dealer's
We affirm in part, reverse in part, and remand for further
and Procedural History
On August 13, 2013, NextGear entered into a demand promissory
note and loan and security agreement ("the
Contract") with SWL in which NextGear agreed to extend
to SWL a revolving line of credit or floor plan of up to
$400, 000, which SWL would use to purchase vehicles from
auctions. SWL and NextGear also entered into an
advance schedule, which outlined the payment schedule and
amounts that SWL was required to pay to NextGear for each
vehicle that SWL had purchased using funds from NextGear. On
that same day, Lollar, who operated SWL, executed an
individual guaranty in which he agreed to "voluntarily,
unconditionally, and absolutely" guarantee the
liabilities of SWL under the Contract. Appellant's App.
Vol. II at 39. After the parties executed the loan documents,
NextGear advanced funds to SWL for the purchase of vehicles.
Sometime thereafter, Lollar contacted Karen Lee, an account
executive with NextGear, by phone in order to inform NextGear
that SWL wanted to liquidate its inventory and pay off its
balances. In response, Lee proposed a plan that
would continue SWL's business relationship with NextGear.
On February 24, 2016, Lee forwarded to Lollar a copy of an
email that contained the terms of the proposed plan. In that
email ("the February email"), which Lee had
previously sent to other employees of NextGear, Lee wrote:
Dealer has been selling units, he's been paying off
consistently through retail sales and auction sales[.
H]e's gone from outstanding of $203k down to 97k balance.
. . . We are going to pay off [stock] #510 tomorrow . . . for
full [purchase price], putting the funds in unapplied funds.
By Friday am, dealer will have enough cash to go with the
unapplied funds to pay off [stock] #513.[ I am going to
refloor #513 for full [purchase price]. This will reset the
counter for the dealer to have the engine in #513 done, he
has a [credit card] with available balance on it to pay for
engine, he has a buyer on the unit and unit should be
repaired and gone off floor plan before the next 30 days. . .
Given with the speed the dealer is moving the units and with
dealer staying on track, as well as the lengthy impeccable
history with this dealer, . . . we need to move this
direction & continue working with dealer to get back
current. Of course, if any of this falls through we will have
to reconvene with dealer and go a different direction.
Id. at 140. Lee later informed Lollar that "the
plan had been approved by the 'front end risk
manager'" for NextGear." Id. at 136.
The day after Lollar had received the email from Lee, Dealer
paid NextGear $7, 562.86 to pay off stock number 510. Dealer
then paid off stock number 513.Lee continued to assure Lollar
"that [Dealer's] previous payments pursuant to her
plan would be placed in [its] unapplied funds account"
for Dealer to use to make the next curtailment payments.
Id. at 137. However, NextGear did not place any
funds in Dealer's unapplied funds account. As a result,
Dealer was unable to make the next scheduled payments for the
remaining vehicles. NextGear then repossessed the remaining
cars in Dealer's inventory that NextGear had financed.
Thereafter, NextGear informed Dealer's other lenders that
Dealer had defaulted on the loan documents, and Dealer's
other lenders then repossessed Dealer's remaining
On August 4, NextGear filed a complaint against Dealer. In
its complaint, NextGear alleged that Dealer had not repaid
the funds that NextGear had advanced to Dealer in accordance
with the loan documents. Accordingly, NextGear asserted that
SWL had breached the Contract and that Lollar had breached
the guaranty. In response, Dealer filed its answer and
affirmative defenses. Specifically, Dealer asserted that it
did not breach the Contract because the February email had
"modified the terms" of the Contract, that Dealer
had "performed all obligations required of [it] pursuant
to the terms" of the modified contract when it submitted
the payments for the two units, and that NextGear had
"breached the terms of the parties['] modified
agreement" when it failed to place those payments in
Dealer's unapplied funds. Id. at 51. In
addition, Dealer filed two counterclaims against NextGear.
Dealer asserted that NextGear had committed defamation and
tortious interference with a business relationship when it
wrongfully informed other lenders that Dealer had defaulted
on the loan documents.
On February 16, 2018, NextGear filed a motion for summary
judgment. In that motion, NextGear asserted that SWL had
breached the terms of the Contract when it failed to make
payments due under the Contract and that Lollar had breached
the guaranty when it failed to pay SWL's debt. NextGear
also asserted that it had not modified the Contract. As for
Dealer's counterclaims, NextGear asserted that the
Contract authorized NextGear to share information regarding
Dealer's financial status with other lenders and that its
statements to the other lenders were true. In support of its
motion for summary judgment, NextGear designated the Contract
and the affidavit of Greg Hidbrader, NextGear's
Supervisor of Risk and Recovery, in which Hidbrader stated
that NextGear's advances to Dealer "have not been
fully repaid as agreed." Id. at 113.
In response, Dealer asserted that there were genuine issues
of material fact with respect to NextGear's affirmative
defenses of modification and promissory estoppel.
Specifically, Dealer asserted that a question of fact exists
concerning whether Dealer "was induced to make certain
payments" pursuant to Lee's statements and the
February email and whether NextGear had "failed to
comply with the terms of that agreement[.]" Id.
at 125. In essence, Dealer argued that a genuine issue of
material fact existed regarding whether NextGear had
"caused [Dealer] to follow a plan which may have
resulted in Dealer's alleged breach of the exact
terms" of the Contract. Id. Dealer further
asserted that there was a genuine issue of material fact with
respect to whether NextGear had provided false information to
Dealer's other lenders such that summary judgment was
inappropriate on Dealer's counterclaims. In support of
its opposition to NextGear's motion for summary judgment,
Dealer designated the February email and Lollar's
affidavit, in which Lollar stated that NextGear, through Lee,
had proposed a plan to modify the Contract and that Lee had
provided "assurances" to Lollar regarding the new
plan. Id. at 137.
NextGear then filed a reply and supplemental evidence in
support of its motion for summary judgment. In its reply,
NextGear asserted that Dealer's affirmative defenses must
fail because NextGear did not modify the Contract. It further
asserted that there was no genuine issue of material fact
regarding whether Dealer had breached the Contract because,
as of March 30, 2016, Dealer's payments were
"delinquent" on seven vehicles. Id. at
149. NextGear also reiterated its assertion that, because its
statements to Dealer's other lenders were true and
authorized by the Contract, Dealer did not raise a genuine
issue of material fact as to either counterclaim. Following a
hearing, the trial court entered summary judgment in favor of
NextGear on NextGear's complaint and on Dealer's
counterclaims. This appeal ensued.