City of Plymouth, Indiana and City of Plymouth Redevelopment Commission, Appellants-Defendants,
Michael Kinder & Sons, Inc., Appellee-Plaintiff.
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
of the Case
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.
and Procedural History
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,  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.
App. Vol. 3 at 61 (emphases added).
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 ...