Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018 Page 1 of 14

ATTORNEY FOR APPELLANT

Jon Orlosky

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Stephen J. Peters

David I. Rubin

Pamela A. Paige

Plunkett Cooney, P.C.

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

M Jewell, LLC,

Appellant-Plaintiff,

v.

Roger Bainbridge, in his capacity 

as Grant County Auditor; Sarah 

A. Melford, in her capacity as 

County Treasurer; John Lawson, 

in his capacity as a Grant 

County Commissioner; Mark E. 

Bardsley, in his capacity as a 

Grant County Commissioner;

SRI, Incorporated,

Appellees-Defendants.

October 26, 2018

Court of Appeals Case No.

18A-MI-36

Appeal from the Grant Superior 

Court

The Honorable Marianne L. 

Vorhees, Special Judge

Trial Court Cause No.

27D01-1409-MI-141

Tavitas, Judge.
Court of Appeals of Indiana | Opinion 18A-MI-36| October 26, 2018 Page 2 of 14

Case Summary

[1] M Jewell, LLC (“M Jewell”) appeals the trial court’s grant of summary 

judgment to SRI, Incorporated (“SRI”). We affirm.

Issue

[2] M Jewell raises one issue, which we restate as whether the trial court properly 

granted summary judgment to SRI on M Jewell’s third-party beneficiary claim.

Facts

[3] This case is about whether the purchasers of real estate in a tax sale are thirdparty beneficiaries of contracts between SRI and Grant County. In 1994, Grant 

County, Indiana, entered into a Services Master Agreement (“SMA”) with SRI. 

In 2010, Grant County and SRI entered into a Tax Sale Support Services 

Addendum to the SMA (“Addendum”) and a 2010 Tax Sale Workplan—Grant 

County (“Workplan”) (collectively, “Agreements”). Under the Agreements, 

SRI agreed to perform certain services related to tax sales in Grant County, 

including the preparation and mailing of notices to property owners with 

delinquent property taxes.

[4] Farmers Mutual Insurance Company of Grant & Blackford Counties (“Farmers 

Mutual”) owned property in Grant County. Farmers Mutual failed to update 

its mailing address with the Grant County auditor or treasurer, and Farmers 

Mutual accumulated delinquent property taxes. Farmers Mutual’s real estate 

was placed on a list of properties to be sold at tax sale on September 23, 2010, 

and SRI sent the notices of tax sale. Because of the erroneous address in the 
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records, the notices were returned unclaimed. Neither SRI nor the auditor’s 

office made any further attempt to notify Farmers Mutual of the tax sale or to 

locate a more accurate address. 

[5] On September 23, 2010, M Jewell purchased the real estate at a tax sale in 

Grant County for $5,508.98. M Jewell later filed a petition for an order 

directing the auditor of Grant County to issue a tax deed, which the trial court 

granted. A tax deed was issued to M Jewell in December 2011. On February 

27, 2012, Farmers Mutual filed a petition to set aside the tax deed and a motion 

for leave to pay funds into the court in the sum of $6,985.33 for the delinquent 

property taxes and interest. The trial court granted the motion for leave to pay 

funds into the court. The trial court, however, later denied Farmers Mutual’s 

motion to set aside the tax deed.

[6] Farmers Mutual appealed the trial court’s order. On appeal, this court

concluded that the trial court erred by denying the motion to set aside the tax 

deed. See Farmers Mut. Ins. Co. of Grant & Blackford Ctys. v. M Jewell, LLC, 992 

N.E.2d 751 (Ind. Ct. App. 2013), trans. denied. We noted that, under the statute 

in effect at the time, the auditor was statutorily required to research its records 

to determine a more complete or accurate address if both notices are returned 

due to incorrect or insufficient addresses. Id. at 756 (citing Ind. Code § 6-1.1-

24-4). Because the auditor and SRI failed to perform the additional research, 

we concluded that the statutory notices were not in substantial compliance and 

the tax deed was void. Id. at 759-60. We directed the trial court to grant 
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Farmers Mutual’s petition to set aside the tax deed. M Jewell was reimbursed

$6,997.50 as the statutory refund payment for the real estate.

[7] In September 2014, M Jewell filed a complaint against Roger Bainbridge, in his 

capacity as Grant County Auditor; Sarah Melford, in her capacity as Grant 

County Treasurer; John Lawson, in his capacity as a Grant County 

Commissioner; Michael Burton, in his capacity as a Grant County 

Commissioner, (collectively, “Grant County”); and SRI. M Jewell alleged in 

Count I that Grant County was negligent in conducting the tax sale and that M 

Jewell had been damaged. In Count II, M Jewell alleged that it, as the 

purchaser of real estate in a tax sale, was a third-party beneficiary of Grant 

County’s contracts with SRI and that M Jewell had suffered damages of 

$784,000.00.

1 

[8] Grant County filed a motion for summary judgment, and M Jewell filed a 

motion to dismiss Grant County as a defendant with prejudice. The trial court 

granted M Jewell’s request and dismissed M Jewell’s claims against Grant 

County with prejudice.

[9] SRI also filed a motion for summary judgment regarding M Jewell’s third-party 

beneficiary claim. SRI argued that M Jewell’s claims failed as a matter of law 

because M Jewell was not a third-party beneficiary of the contracts. SRI also 

 

1 The alleged damages were based on “a potential sale price of the property of $7,000.00 per acre” for 112.30 

acres. Appellee’s App. Vol. II p. 40. 
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argued that, even if M Jewell was a third-party beneficiary of the contracts, the 

SMA’s terms precluded the damages sought by M Jewell. Finally, SRI argued 

that M Jewell had already received the statutory refund of the purchase price at 

the tax sale plus interest and that M Jewell was not entitled to a “windfall.” 

Appellant’s App. Vol. II p. 120. M Jewell filed its response to SRI’s motion for 

summary judgment. At a hearing on the motion for summary judgment, SRI 

and M Jewell agreed that the issue was a matter of law appropriate for 

summary judgment. 

[10] The trial court granted SRI’s motion for summary judgment. Regarding the 

third-party beneficiary claim, the trial court found that, based on the language 

in the Agreements, “the intent is for SRI to provide the notices and the work 

necessary to hold the tax sale, to conduct the tax sale, and then to advise 

property owners that their property was sold in a tax sale and how to redeem 

it.” Id. at 21-22. The trial court did not find “any language that evidences an 

intent to benefit tax sale purchasers, directly or indirectly.” Id. at 22. The trial 

court noted that the “only intended beneficiaries of the SMA are Grant County 

and SRI” and that “[a]ny potential profit to a tax sale purchaser such as M 

Jewell is at best incidental to the performance of the SMA.” Id. The trial court 

found, accordingly, that M Jewell was not a third-party beneficiary of the SMA. 

[11] The trial court also found that, even if M Jewell qualified as a third-party 

beneficiary, M Jewell’s claimed damages were precluded by the “SMA’s 

limitation of liability provision.” Id. at 24. Finally, the trial court also 

determined that M Jewell’s remedy is wholly statutory, that Indiana Code 
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Section 6-1.1-24-4 “does not provide a private cause of action for M Jewell,”

and that “Grant County has made M Jewell whole by refunding to M Jewell 

the amount it bid for the tax sale purchase (plus interest).” Id. at 23, 25. The 

trial court, accordingly, granted SRI’s motion for summary judgment. M 

Jewell now appeals. 

Analysis

[12] M Jewell appeals the trial court’s grant of summary judgment to SRI. 

Summary judgment is appropriate only when the moving party shows there are 

no genuine issues of material fact for trial and the moving party is entitled to 

judgment as a matter of law. Erie Indem. Co. for Subscribers at Erie Ins. Exch. v. 

Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g denied; see also

Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the nonmoving party to rebut. Schoettmer v. Wright, 992 N.E.2d 702, 705-06 (Ind. 

2013). When ruling on the motion, the trial court construes all evidence and 

resolves all doubts in favor of the non-moving party. Id. at 706. We review the 

trial court’s ruling on a motion for summary judgment de novo, and we take 

“care to ensure that no party is denied his day in court.” Id. “We limit our 

review to the materials designated at the trial level.” Gunderson v. State, Indiana 

Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018).

[13] M Jewell and SRI agreed below that there are no genuine issues of material fact 

in this case. Rather, the issue is whether SRI is entitled to judgment as a matter 

of law on M Jewell’s third-party beneficiary claim.
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[14] M Jewell first argues that the trial court erred when it determined M Jewell was 

not a third-party beneficiary to Grant County’s Agreements with SRI. 

“Generally, only parties to a contract or those in privity with the parties have 

rights under the contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-

15 (Ind. 1996). 

One not a party to an agreement may nonetheless enforce it by 

demonstrating that the parties intended to protect him under the 

agreement by the imposition of a duty in his favor. To be 

enforceable, it must clearly appear that it was the purpose or a 

purpose of the contract to impose an obligation on one of the 

contracting parties in favor of the third party. It is not enough 

that performance of the contract would be of benefit to the third 

party. It must appear that it was the intention of one of the 

parties to require performance of some part of it in favor of such 

third party and for his benefit, and that the other party to the 

agreement intended to assume the obligation thus imposed.

Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App.

1990), reh’g denied, trans. denied). 

[15] “The intent of the contracting parties to bestow rights upon a third party ‘must 

affirmatively appear from the language of the instrument when properly 

interpreted and construed.’” Id. (quoting Freigy v. Gargaro Co., 223 Ind. 342, 

349, 60 N.E.2d 288, 291 (1945)). “However, it is not necessary that the intent 

to benefit a third party be demonstrated any more clearly than the parties’ intent 

regarding any other terms of the contract.” Id. (citing Nash Eng’g Co. v. Marcy 

Realty Corp., 222 Ind. 396, 416-17, 54 N.E.2d 263, 271 (1944)). “The intent 

necessary to the third-party’s right to sue is not a desire or purpose to confer a 
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particular benefit upon the third-party nor a desire to advance his interest or 

promote his welfare, but an intent that the promising party or parties shall 

assume a direct obligation to him.” Centennial Mortg., Inc. v. Blumenfeld, 745 

N.E.2d 268, 276 (Ind. Ct. App. 2001). We must read the contract as a whole 

when trying to ascertain the parties’ intent. OEC-Diasonics, Inc., 674 N.E.2d at 

1315. We accept an interpretation of a contract that harmonizes its provisions. 

Id. 

[16] Our supreme court last engaged in a significant analysis of third-party 

beneficiary claims in Cain v. Griffin, 849 N.E.2d 507 (Ind. 2006). In Cain, a 

customer slipped and fell in a restaurant parking lot. The customer brought a 

claim against the restaurant owners and their insurer. The trial court granted 

the insurer’s motion for summary judgment. 

[17] On appeal, our supreme court addressed the customer’s claim that she was a 

third-party beneficiary to the medical payments coverage portion of the 

insurance policy.2

 The court concluded: 

 

2

 The court analyzed the relevant part of the policy, which provided:

COVERAGE C. MEDICAL PAYMENTS

1. Insuring Agreement.

a. We will pay medical expenses as described below for “bodily injury” caused 

by an accident:

(1) On premises you own or rent;

(2) On ways next to premises you own or rent; or

(3) Because of your operations;

provided that:
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It is clear from the language of the contract that the [restaurant 

owners] intended to require [the insurer] to pay medical expenses 

for “bodily injury” to a third party—in this case, [the 

customer]—caused by an accident on the [restaurant owners’]

premises, “regardless of fault.” It is also clear that [the insurer] 

intended to assume the obligation thus imposed.

 

(1) The accident takes place in the “coverage territory” and during the 

policy period;

(2) The expenses are incurred and reported to us within one year of 

the date of the accident; and

(3) The injured person submits to examination, at our expense, by 

physicians of our choice as often as we reasonably require.

b. We will make these payments regardless of fault. These payments will not 

exceed the applicable limit of insurance. We will pay reasonable expenses 

for:

(1) First aid at the time of an accident;

(2) Necessary medical, surgical, x-ray and dental services, including 

prosthetic devices; and

(3) Necessary ambulance, hospital, professional nursing and funeral 

services.

2. Exclusions.

We will not pay expenses for “bodily injury”:

a. To any insured.

b. To a person hired to do work for or on behalf of any insured or a 

tenant of any insured.

c. To a person injured on that part of premises you own or rent that 

the person normally occupies.

d. To a person, whether or not an employee of any insured, if benefits 

for the “bodily injury” are payable or must be provided under a 

workers’ compensation or disability benefit law or similar law.

e. To a person injured while taking part in athletics.

f. Included within the “products-completed operations hazard”.

g. Excluded under Coverage A.

h. Due to war, whether or not declared, or any act or condition 

incident to war. War includes civil war, insurrection, rebellion or 

revolution.

Cain, 849 N.E.2d at 514-15. 
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Cain, 849 N.E.2d at 515. The court, consequently, held that, “as a third-party 

beneficiary,” the customer could sue the insurer “directly to enforce the medical 

payment coverage provision of the contract between” the insurer and the 

restaurant owners.3

 Id. 

[18] Here, Grant County and SRI entered into three agreements: the SMA, the 

Addendum, and the Workplan. In the SMA, the parties agreed that SRI would 

perform certain tasks detailed in an addendum for each “service program.” 

Appellee’s App. p. 47. The SMA also provided in relevant part:

5. Information To Be Provided By County. The County hereby 

agrees to provide SRI in a timely manner with all reports, data 

and information as requested by SRI and further agrees that SRI 

may rely on all such reports, data and information in performing 

the services set forth herein and in all addenda made a part 

hereof.

6. Limitation Of Liability. The County hereby agrees that in no 

event shall SRI be liable for any loss of profit or indirect, special, 

incidental or consequential damages as a result of the use by SRI 

of inaccurate, omitted, erroneous, fraudulent, or other 

insufficient information supplied to SRI by the County or its 

agents or employees under this Agreement, or by the actions, 

fault, failure or negligence of any individual not employed by or 

a principal of SRI.

 

3 The court later concluded that, although the customer could sue the insurer as a third-party beneficiary to

the medical payments coverage of the insurance contract, the insurer did not owe the customer “a duty of

good-faith dealing” and the customer could not “proceed on a tort claim against [the insurer] for failure to

deal in good faith.” Cain, 849 N.E.2d at 515.
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7. Right To Contract. SRI and the County each warrant that 

neither its execution and delivery of this Agreement, nor its 

performance of the provisions hereof is, or will constitute, a 

violation on its part of any applicable law or regulation or any 

contract, indenture or other agreement or relationship to which it 

is a party or by which it is bound, and each agrees that it will 

indemnify and save the other harmless from and against any loss, 

costs, liability, damages or expense by reason of any claim which 

may be asserted to the contrary by any third party.

Id. at 49. The Addendum describes the tax sale support services that SRI 

agreed to perform for Grant County and how SRI would be paid for the 

services. The Workplan went into greater detail regarding the tax sale support 

services SRI agreed to perform.

[19] In support of M Jewell’s argument that it is a third-party beneficiary, M Jewell 

relies on the indemnity language of the SMA, which provided: “[E]ach agrees

that it will indemnify and save the other harmless from and against any loss, 

costs, liability, damages or expense by reason of any claim which may be 

asserted to the contrary by any third party.” Id. According to M Jewell, this 

language indicates that Grant County and SRI recognized the possibility of 

third-party liability. M Jewell argues: “If there is no intent to benefit third 

parties, i.e., tax sale purchasers, and thus creates that potential for liability, then 

why is there the need to indemnify for such liability?” Appellant’s Br. p. 11. 

[20] M Jewell seems to be conflating the concepts of a claim against either Grant 

County or SRI by a third party with third-party beneficiaries to a contract. To 

qualify as a third-party beneficiary, M Jewell was required to demonstrate that 
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Grant County and SRI intended to protect tax sale purchasers under the 

agreement. It is not enough that the performance of the contract would be of 

an incidental benefit to tax sale purchasers. The language cited by M Jewell 

merely indicates an intention that the parties indemnify each other; the 

language does not indicate an intention to benefit tax purchasers under the 

Agreements. Unlike in Cain, we find no language in the Agreements expressing 

an intent that Grant County or SRI assume a direct obligation to tax sale 

purchasers. 

[21] None of the Agreements—the SMA, the Addendum, or the Workplan—

indicate an intent to benefit tax sale purchasers directly or indirectly. We 

conclude the trial court properly found that M Jewell was not a third-party 

beneficiary of the Agreements between Grant County and SRI. See, e.g., Ayres 

v. Indian Heights Volunteer Fire Dep’t, Inc., 493 N.E.2d 1229, 1235 (Ind. 1986) 

(rejecting a third-party beneficiary argument because the “contract entered into 

between the trustee and the fire department was for the benefit of the residents 

of [the township] as a whole” and the “obligation was not particularized as to 

any single resident of the township”); Giles v. Brown Cty. ex rel. its Bd. of Comm’rs, 

868 N.E.2d 478, 480 n.3 (Ind. 2007) (noting that Ayres’s “holding remains intact 

with respect to the contract law third-party beneficiary theory” and holding that 

the “Brown County Board of Commissioners entered into the contract for 

ambulance services with Columbus Regional Hospital for the benefit of Brown 

County as a whole, not for any individual resident of Brown County”). There 

are no genuine issues of material fact, and SRI is entitled to judgment as a 
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matter of law on M Jewell’s third-party beneficiary claim. The trial court 

properly granted SRI’s motion for summary judgment. 

[22] Alternatively, even if M Jewell was a third-party beneficiary, we would still 

conclude that its claim against SRI fails. We agree with the trial court’s 

conclusions that M Jewell’s remedy is statutory and that M Jewell has been 

made whole. 

[23] It is a firmly-settled general rule that a purchaser at a tax sale 

buys at his own risk, and that, if the sale proves ineffectual, he 

cannot, in the absence of an express statute, recover from the 

county the money paid by him. The payment is regarded as a 

voluntary one, and he assumes all risks; for, as in judicial sales, 

there is no warranty in tax sales. Where an action is brought to 

recover money paid on the purchase of property at a sale, the 

party asking that it be refunded must show a statute providing 

that it shall be paid back to him.

State ex rel. McKenzie v. Casteel, 110 Ind. 174, 11 N.E. 219, 222 (1887). “The 

remedy for purchasers at invalid tax sales or holders of invalid tax deeds is 

wholly statutory.” Stephenson v. Martin, 84 Ind. 160, 161 (1882). Indiana Code 

Chapter 6-1.1-25 details the refund procedure where a tax sale is declared 

invalid. See Ind. Code § 6-1.1-25-11 (discussing refunds where a tax sale is 

declared invalid after the issuance of a tax deed); Ind. Code § 6-1.1-25-10 

(discussing refunds where a tax sale is declared invalid before the issuance of a 

tax deed).

[24] It is undisputed that M Jewell received $6,997.50 as the statutory refund

payment for the real estate. See Appellant’s Br. p. 13 (conceding that “M Jewell 
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did receive funds based on the sale being invalidated pursuant to Ind. Code 6-

1.1-25-11 from the county”). Despite this payment, M Jewell claims that it is 

entitled to alleged lost profits in the amount of $784,000.00. M Jewell presents 

no statutory or common law authority that it is entitled to lost profits rather 

than the statutory refund amount. M Jewell’s proposed damages would create 

a substantial windfall, and we have held that “the award of damages should not 

create a windfall for the injured party.” Warrick Cty. v. Waste Mgmt. of Evansville, 

732 N.E.2d 1255, 1260 (Ind. Ct. App. 2000). M Jewell received the statutory 

refund of damages. We conclude that, even if M Jewell was a third-party 

beneficiary of the Agreements between Grant County and SRI, M Jewell has 

been fully compensated by its receipt of the statutory refund. Again, there are 

no genuine issues of material fact, and SRI is entitled to judgment as a matter of 

law on M Jewell’s damages claim. The trial court properly granted SRI’s 

motion for summary judgment.

Conclusion

[25] M Jewell is not a third-party beneficiary to the Agreements between Grant 

County and SRI. Even if M Jewell was a third-party beneficiary, M Jewell has 

received the statutory compensation to which it is entitled. The trial court 

properly granted SRI’s motion for summary judgment. We affirm.

[26] Affirmed.

Brown, J., and Altice, J., concur.