Rogier v. American Testing & Engineering Corp.

Decision Date28 August 2000
Docket NumberNo. 49A02-9910-CV-707.,49A02-9910-CV-707.
Citation734 N.E.2d 606
PartiesDavid A. ROGIER, d/b/a Rogier Associates, Appellant-Plaintiff, v. AMERICAN TESTING AND ENGINEERING CORPORATION, a/k/a ATEC Associates, Inc., Appellee-Defendant.
CourtIndiana Appellate Court

Robert A. Garelick, Steven M. Crell, Cohen, Garelick & Glazier, Indianapolis, Indiana, Attorneys for Appellant.

Thomas A. Brodnik, Richard B. Kaufman, Stark Doninger & Smith, Indianapolis, Indiana, Attorneys for Appellee.


NAJAM, Judge


David A. Rogier, d/b/a Rogier Associates ("Rogier"), filed suit against American Testing and Engineering Corporation, a/k/a ATEC Associates, Inc. ("ATEC"), for breach of the parties' exclusive listing agreement to sell ATEC's business. Rogier sought recovery of his fee for the lost opportunity to make a sales presentation to the Michael Baker Corporation ("Baker") and for a commission from the sale of ATEC's business to ATC Environmental, Inc. ("ATC"). The trial court entered summary judgment in favor of ATEC, and Rogier appeals.

We affirm in part, reverse in part and remand for further proceedings.


Rogier and ATEC present several issues for our review, which we restate as follows:

1. Whether any damages resulting from Rogier's inability to make a sales presentation to Baker were unforeseeable as a matter of law.

2. Whether the parties' exclusive listing agreement conferred upon Rogier an exclusive right to sell and, therefore, the right to a commission even if he was not the procuring cause of the sale of ATEC's business to ATC.

3. Whether the parties' exclusive listing agreement was unenforceable as a matter of law.

4. Whether the parties' exclusive listing agreement lapsed as a matter of law.

5. Whether Rogier abandoned the parties' exclusive listing agreement as a matter of law.

6. Whether Rogier waived his rights under the parties' exclusive listing agreement as a matter of law.

7. Whether ATEC's conduct in excluding Rogier from its negotiations with ATC prevented him from performing his obligations under the parties' exclusive listing agreement.


Rogier is a marketing consultant experienced in the merger and acquisition of architectural, engineering, and environmental firms. ATEC is an environmental engineering firm. On April 24, 1984, the parties entered into an exclusive listing agreement in which ATEC appointed Rogier as its exclusive agent to search for a buyer for ATEC's business. The agreement reads in pertinent part as follows:

1. PRESENTATION MATERIALS. [Rogier] will help prepare a presentation report on [ATEC's] firm to include [ATEC's] goals, sales forecast, backlog, professional staff capability, and assets and income statement. [ATEC] will provide [Rogier] with company records and data for the purpose of preparing the presentation.
* * *
3. SEARCH. [Rogier] will search for a buyer or buyers.
4. APPROVAL OF BUYER. [Rogier] will obtain [ATEC's] approval of proposed buyers prior to making a presentation to the buyer.
5. PRESENTATION. [Rogier] will make a presentation to those buyers deemed acceptable to [ATEC].
6. EXCLUSIVE AGENT. [ATEC] appoints [Rogier] as the exclusive agent with an exclusive listing and all prospective buyers shall send copies of all correspondence and purchase offers to [ATEC] and to [Rogier].
7. SERVICES NOT INCLUDED. Both parties agree that [Rogier] shall function as a marketing Consultant and that [Rogier] has not and will not provide legal, accounting, securities, or investment advice. Valuation of [ATEC's] company and negotiation of the Buy & Sell Agreement shall be the responsibility of [ATEC]. [Rogier] shall not be responsible for any guarantees or warranties. [ATEC] shall rely upon [ATEC's] investigation and opinion of the Buyer.
8. METHOD OF PAYMENT. The services outlined in this agreement may result in a merger, acquisition, joint-venture, sub-contract, association, teaming or employment contract; if any such event occurs, the Buyer (the other firm or individuals) shall pay [Rogier].

Under the agreement, Rogier supplied ATEC with a merger and acquisition manual containing a form search agreement that he would execute with a buyer interested in acquiring or entering into a business combination with a firm such as ATEC. The form agreement provided that Rogier would "search for acquisition candidates which meet the [b]uyer's geographic, discipline and market goals" and "interview the [s]eller and obtain financial data." The form agreement also provided that the buyer would pay Rogier a commission on the date of closing.

From 1984 to 1989, Rogier routinely contacted ATEC with opportunities to sell the company. However, Gerald Mann, the president of ATEC, did not begin to take "active steps" to sell the business until 1990, nearly six years after signing the exclusive listing agreement with Rogier. In June of 1990, Rogier entered into a search agreement with Baker, a large engineering firm, under which Rogier agreed to search for companies that Baker could purchase. The search agreement was similar to the form agreement contained in the merger and acquisition manual Rogier had supplied to ATEC in 1984. But instead of requiring the buyer to pay a commission only on the date of closing, the Baker search agreement called for payment of a commission equal to five percent of ATEC's gross income for the year prior to the sale, with two percent to be paid immediately upon Rogier's sales presentation and an additional three percent to be paid at closing. The two percent portion of Rogier's fee was nonrefundable even if a closing did not occur; however, it could "be credited towards other seller presentations." From mid-1990 until the end of 1993, Rogier did not communicate with ATEC. The record reflects that he continued to work under the parties' exclusive listing agreement, but that ATEC was unaware he was doing so.

On or about January 21, 1994, Rogier sent written notification to ATEC that Baker was interested in acquiring an environmental engineering firm such as ATEC. Rogier requested that ATEC sign a purchase offer letter, which would serve as ATEC's authorization for Rogier to present ATEC as an acquisition candidate to Baker. After Rogier's third request, ATEC forwarded a purchase offer letter to Rogier on May 5, 1994. The letter stated in part:

If the prospective buyer is interested in making an offer to purchase our firm, we will provide you with materials describing our firm, such as brochures, financial statements, etc. so that the Buyer can make a realistic offer.

ATEC further acknowledged that Baker would be paying Rogier's commission and specifically requested that this term be included in Baker's purchase offer.

On May 26, 1994, Baker reaffirmed its interest in making an offer to purchase ATEC's business and requested that Rogier obtain five years of ATEC's financial statements, backlog report, stockholder list, and asking price "so that we can make a realistic offer[.]" In June and July of 1994, Rogier communicated with ATEC and Baker in an effort to finalize the sale of ATEC's business. However, Rogier was unable to make a sales presentation to Baker because ATEC refused to provide the necessary financial statements and other operations data. ATEC had recently sustained several million dollars in financial losses from government contracts, which Mann believed to be a temporary financial setback. Although Mann knew that ATEC was obligated to provide financial statements to all approved prospective buyers presented by Rogier, he admitted that he did not do so due in large part to his concerns that a potential buyer reviewing ATEC's financial statements might be misled into believing ATEC was financially unsound. On July 29, 1994, Baker advised Rogier that it was no longer interested in pursuing the acquisition of ATEC. Rogier's last communication with ATEC occurred on July 29, 1994, although Rogier's time records indicate that he continued to work for ATEC under the parties' exclusive listing agreement beyond that date.

In mid-1994, unbeknownst to Rogier, ATEC began its first contacts with ATC. By late 1995, ATEC had provided ATC with financial documents for purposes of a sales presentation. In 1996, ATEC sold its business to ATC, without informing Rogier of the sale and without using another broker, for a large eight-figure sum.

Rogier learned about the sale from a local business journal in June of 1996. He filed suit, alleging that ATEC had breached the parties' exclusive listing agreement by: (1) refusing to provide the necessary financial information to Baker, causing Baker to lose interest in ATEC's business and costing Rogier a multi-million dollar sales presentation fee; and (2) failing to disclose the sale of its business to ATC. Rogier sought recovery of his fee for the lost opportunity to make a sales presentation to Baker,1 as well as a commission on the sale of ATEC's business to ATC.2 ATEC moved for summary judgment, alleging that Rogier had sustained no damages from ATEC's conduct and that the parties' exclusive listing agreement was unenforceable, had terminated, or was abandoned or waived by Rogier as a matter of law. The trial court entered summary judgment in favor of ATEC. This appeal ensued.3

Standard of Review

Our analysis proceeds from the premise that summary judgment is a lethal weapon and that courts must be ever mindful of its aims and targets and beware of overkill in its use. Bunch v. Tiwari, 711 N.E.2d 844, 847 (Ind.Ct.App.1999). Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). When reviewing an entry of summary judgment, we stand in the shoes of the trial court. Sizemore v. Templeton Oil Co., 724 N.E.2d 647, 650 (Ind. Ct.App.2000). We do not weigh the evidence but will...

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