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City of Plymouth v. Michael Kinder & Sons, Inc.

Court of Appeals of Indiana

December 18, 2019

City of Plymouth, Indiana and City of Plymouth Redevelopment Commission, Appellants-Defendants,
v.
Michael Kinder & Sons, Inc., Appellee-Plaintiff.

          Appeal from the Marshall Circuit Court The Honorable Curtis D. Palmer, Judge Trial Court Cause No. 50C01-1803-PL-8

          Attorney for Appellants Janette E. Surrisi Wyland, Humphrey, Clevenger & Surrisi, LLP Plymouth, Indiana

          Attorneys for Appellee Robert W. Eherenman Melanie L. Farr Haller & Colvin, P.C. Fort Wayne, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] The City of Plymouth ("the City") and the City of Plymouth Redevelopment Commission ("the Commission") appeal from the trial court's order granting a motion to enforce a mediation agreement ("the agreement") filed by Michael Kinder and Sons, Inc. ("Kinder"). The City and the Commission present a single issue for our review, namely, whether the trial court erred when it granted the motion to enforce the parties' agreement. We reverse and remand for further proceedings.

         Facts and Procedural History

         [¶2] On March 14, 2018, Kinder filed a complaint against the City, the Commission, and Marshall County Wellness and Life Enhancement, Inc. ("Wellness") alleging breach of contract and unjust enrichment. After various motions were filed, [1] Kinder, the City, and the President of the Commission attended a mediation conference on January 25, 2019. At the conclusion of that conference, Kinder, the City, and the President of the Commission executed an agreement, which states as follows:

At a mediation session held on January 25, 2019, the parties agreed to settle all litigation arising out of the above captioned case as follows:
1) The Defendant shall, subject to the approval of the City of Plymouth Redevelopment Commission keep its offer to settle this litigation for the payment of $130, 000.00 to the Plaintiff open.
2) If the Plaintiff accepts the defendants [sic] offer to pay $130, 000 to settle this case then the case shall be settled.
3) If the case is settled then the litigation shall be dismissed with prejudice and all parties shall execute a mutual release.

         Appellants' App. Vol. 3 at 61 (emphases added).[2]

         [¶3] On February 12, Kinder's counsel emailed the City's counsel to inform the City that Kinder had "decided to accept the City's last mediation offer of $130, 000." Id. at 63. Kinder's counsel also included a draft release and settlement agreement with the email. On February 14, the City's counsel emailed Kinder's counsel to inform him that the Commission would "discuss the settlement in [an] executive session" scheduled for the following Tuesday. Id. at 69. On February 20, the City's counsel emailed Kinder's counsel again and stated that the Commission "wanted to review some additional materials" and had scheduled another executive session for March "to further discuss the matter." Id. at 71. In an email dated March 5, the City's counsel stated that the City wanted to "strike paragraph 10 from the settlement agreement" but was "otherwise . . . fine with the ...


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