Moll v. South Central Solar Systems, Inc.

• Decision Date: 14 April 1981
• Docket Number: No. 1-580A133,1-580A133
• Citation: 419 N.E.2d 154
• Parties: Francis B. MOLL, Jr., Plaintiff-Appellant, v. SOUTH CENTRAL SOLAR SYSTEMS, INC., Lee Malloy, George Bock, Defendants- Appellees.
• Court: Indiana Appellate Court

Page 154

419 N.E.2d 154

Francis B. MOLL, Jr., Plaintiff-Appellant, v. SOUTH CENTRAL SOLAR SYSTEMS, INC., Lee Malloy, George Bock Defendants- Appellees.

No. 1-580A133.

Court of Appeals of Indiana, First District.

April 14, 1981.

Theodore Lockyear, Steve Barber and James A. Kornblum, Lockyear, Barber & Kornblum, Evansville, for plaintiff-appellant.

Joseph A. Yocum and Frank R. Hahn, Yocum & Hahn, Evansville, for defendants-appellees.

RATLIFF, Judge.

STATEMENT OF THE CASE

Francis B. Moll, Jr., appeals from a grant of summary judgment in favor of defendants below, Lee Malloy, George Bock, and South Central Solar Systems, Inc., upon his claims for breach of contract and failure to comply with Ind. Code 23-2-2.5-1 et seq., commonly known as the Indiana Franchise Disclosure Act. We affirm.

FACTS

Appellees Bock and Malloy were president and vice president respectively of South Central Solar Systems, Inc. (South Central), ¹ a Kentucky corporation, which early in May of 1976 obtained an exclusive franchise to distribute Energy King solar devices in Kentucky, Illinois, Missouri, Tennessee, and Indiana. Later in May 1976, Messrs. Fulkerson and Barabee, not parties to this action, met with Bock and Malloy at the Executive Inn in Evansville, Indiana. After lengthy conversations and negotiations Fulkerson and Barabee paid Bock $2,400 for the option to acquire an exclusive right to sell Energy King units in a defined territory in southern Indiana under the business name of Southern Indiana Solar Systems, Inc. (Southern Indiana). On June 15, 1976, the parties to this action, together with Fulkerson and Barabee, met at Malloy's home in Paducah, Kentucky, to exercise their option and execute a final contract. At that time Moll tendered as part of the consideration for the agreement on behalf of Southern Indiana a check for $24,329.30 drawn on funds which he had personally borrowed from the Posey County National Bank.

Within forty-five days after their June meeting appellees informed Southern Indiana that the Energy King unit had increased $800 in cost and that, because Energy King itself was financially unstable, they might need to find other suppliers. The appellees did find another supplier, NRG, whose unit, although more complete than Energy King's, was also more expensive. On July 14, 1976, Moll returned to Paducah with a release which had been prepared by his attorney and which the parties executed. That release stated the following:

"Southern Indiana Solar Systems, Inc. is hereby granted permission by South Central Solar Systems, Inc. to sell, construct, or install any Solar heating products "Southern Indiana Solar Systems, Inc. hereby releases any and all claims against South Central Solar Systems, Inc. or its officers and directors, which may have arisen heretofore, and for any act, transaction, occurrence, or course of dealings between the parties, or their officers, directors, agents, or employees.

or related products they wish, of any type, tradename, or brand, notewithstanding (sic) any provision in the agreement of June 15, 1976 between the parties. Such permission is permanent and irrevocable and operates as a modification of the agreement between the parties and is given in consideration of the following release of claims:

"Southern Indiana Solar Systems, Inc.

BY /s/ Francis B. Moll, Jr.

"South Central Solar Systems, Inc.

/s/ BY George W. Bock, Jr.

/s/ Pres.

/s/ BY Lee Malloy

"Signed and dated this 14th day of July, 1976."

On July 24, 1978, appellant filed his complaint which he amended on February 29, 1979, alleging damages of $25,000 in each of two counts as follows:

"COUNT I

"The plaintiff, Francis B. Moll, Jr. complains of the defendants, South Central Solar Systems, Inc., Lee Malloy, George Bock, and each of them, jointly, concurrently and severally, and for cause of action, alleges and says:

1.

"That in May and June of 1976, the plaintiff entered into a contract with the defendants, and each of them jointly, concurrently, and severally, whereby the plaintiff by the payment of the sum of Twenty-five Thousand Dollars ($25,000.00), would be provided an exclusive territory to sell, construct or install solar heating systems, and whereby they would provide to plaintiff adequate training, experience and expertise in this field in order for the construction of residential solar heating systems.

2.

"That thereafter, the defendants breached said contract and failed to provide the systems, training and exclusive dealership and territory contracted by the plaintiff.

3.

"That by reason of the breach of said contract, plaintiff has been damaged in the sum of Twenty-five Thousand Dollars ($25,000.00).

"WHEREFORE, plaintiff prays for judgment of and from the defendants in the sum of Twenty-five Thousand Dollars ($25,000.00), for his costs herein laid out and expended and for all other just and proper relief in the premises.

"COUNT II

"The plaintiff, Francis B. Moll, Jr., complains of the defendants, South Central Solar Systems, Inc., Lee Malloy, George Bock, and each of them, jointly, concurrently and severally, and for cause of action, alleges and says:

1.

"That the plaintiff is a citizen and resident of the State of Indiana.

2.

"That in May and June of 1976, the defendants, and each of them, offered to the plaintiff a franchise for the State of Indiana without compliance with the Indiana Franchise Disclosure Law, IC 23-2-2.5-1 et. (sic) seq. (1971) (sic) and that thereafter said franchise was duly entered into.

3.

"That in the offering of said franchise the defendants committed unlawful acts under the said Indiana Franchise Disclosure Law, IC 23-2-2.5-1 et. (sic) seq. (1971) (sic). 4.

"That by reason of the said violations of the Indiana Franchise Disclosure Law, IC 23-2-2.5-1 et. (sic) seq. (1971) (sic) plaintiff has been damaged in the sum of Twenty-five Thousand Dollars ($25,000.00).

"WHEREFORE, plaintiff prays for judgment of and from the defendants in the sum of Twenty-five Thousand Dollars ($25,000.00), for his costs herein laid out and expended and for all other just and proper relief in the premises, and reasonable attorneys fees."

In their Motion for Summary Judgment or to Dismiss Plaintiff's Amended Complaint, appellees, inter alia, pleaded the July release included as Exhibit 1 in Malloy's deposition which was published at that time. Appellees also pleaded the June contract provision ² which specified that the contract was to be governed by and construed according to the laws of Kentucky and pointed out that Kentucky has no franchise act. Appellees further note that, although the choice of law provision contains a severance clause regarding any provision which contravenes a law of any other state, Ind. Code 26-1-1-105(1) establishes the parties' freedom to contract as regards choice of law matters.

On July 20, 1979, the trial court entered the following judgment from which this appeal is taken:

"JUDGMENT GRANTING SUMMARY JUDGMENT

"This cause came on to be heard on the motion of all defendants for a summary judgment pursuant to Trial Rule 56, and the court having considered the pleadings in this action, the duly published depositions, and having heard the oral statements and read the memoranda submitted by counsel, and having found that there is no genuine issue of fact relating to maintenance of any claims being made made (sic) by plaintiff to be submitted to the court and having concluded that all defendants are entitled to judgment as a matter of law, it is hereby

"ORDERED that the motion for summary judgment made by all defendants is in all respects granted, and it is further

"ORDERED AND ADJUDGED, that judgment shall be, and is hereby entered in favor of all defendants, dismissing this action with costs for defendants and against plaintiff.

"Date: July 20, 1979

/s/ Maurice O'Connor

/s/ JUDGE, Vanderburgh Circuit Court"

ISSUES

Appellant contends that the trial court erred

I. "In concluding that a purported release on behalf of a corporation operated as a release of the plaintiff's individual claims for the Indiana Franchise Disclosure Law violations or that no genuine issue of material fact existed as to said release(')s applicability(;)"

II. "In concluding the Indiana Franchise Disclosure Law did not have application to the transaction between the plaintiff and defendants or that no genuine issue of material fact existed as to said law(')s applicability;"

III. "In granting summary judgment without designating issues or claims upon which it found no genuine issues of material fact or specific findings of fact and in failing to find specific conclusions of law in support of the judgment;"

IV. "In concluding that the Court lacked personal jurisdiction over the defendants;" V. "In holding that the defendants were not subject to service of process under the Indiana Rules of Trial Procedure, Trial Rule 4.4(A)(1) and (4)."

DECISION

Issue I

This court has stated that, consonant with Ind. Rules of Procedure, Trial Rule 56(C), "(t)he granting of a motion for summary judgment is appropriate only where there is no genuine issue of material fact presented by the case and where the moving party is entitled to judgment as a matter of law." Kendrick Memorial Hospital v. Totten, (1980) Ind.App., 408 N.E.2d 130, 131. To determine whether a genuine issue exists, all materials on file will be construed liberally in favor of the opponent of the motion for summary judgment, and all doubts as to whether a genuine issue of fact exists must be resolved against the proponent of the motion. Collins v. Dunifon, (1975) 163 Ind.App. 201, 323 N.E.2d 264. Likewise, a trial court may not weigh conflicting evidence in ruling on a motion for summary judgment, id., since summary judgment may not serve as a substitute for trial where factual disputes remain. Podgorny v. Great Central Insurance Co., (1974) 160 Ind.App. 244, 311 N.E.2d 640. Even in cases where no factual dispute exists, however, summary...