Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Michael F. Vertesch

Greenwood, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey J. Jinks

Elizabeth R. McAleese

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Anthony L. Elrod,

Appellant-Defendant,

v.

Raymond C. Bauman, et al.1,

Appellee-Plaintiff.

January 25, 2018

Court of Appeals Case No. 

49A02-1703-PL-657

Appeal from the Marion Superior 

Court

The Honorable Patrick J. Dietrick, 

Judge

Trial Court Cause No. 

49D12-1604-PL-11727

Mathias, Judge.

1 Appellee-Defendants Nancy Davis, M.A.A.C. Properties, LLC, Madison Avenue Athletic Club, Inc., and 

Southeast Neighborhood Development Corp. did not file a brief on appeal. However, pursuant to Indiana 

Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 2 of 15

[1] Anthony L. Elrod (“Elrod”) and Raymond C. Bauman (“Bauman”) entered 

into court-ordered mediation to resolve a legal dispute between the two

erstwhile business associates. After successful mediation, the parties signed a

Mediated Settlement Agreement (the “Mediated Settlement Agreement”) 

resolving the dispute between them. Elrod, however, refused to sign or approve 

of the subsequent Agreement and Release drafted by Bauman’s counsel, which 

incorporated the terms of the Mediated Settlement Agreement but also included 

additional terms. Bauman then filed a motion to enforce the Mediated 

Settlement Agreement, which the parties treated as a motion for summary 

judgment. The trial court granted summary judgment in favor of Bauman,

concluding that the Agreement and Release was binding on Elrod. 

[2] Elrod appeals and presents three arguments, which we consolidate and restate 

as whether the trial court erred in concluding that the Mediated Settlement 

Agreement was an enforceable contract and not merely an unenforceable 

agreement to agree. We conclude that the Mediated Settlement Agreement was 

an enforceable contract and binding on the parties, but that the subsequent 

Agreement and Release were not signed or otherwise agreed to by Elrod and 

was therefore not enforceable. Accordingly, we reverse the trial court’s order 

enforcing the Agreement and Release and remand with instructions to instead 

enforce the terms of the Mediated Settlement Agreement. 

Facts and Procedural History

[3] For over thirty years, Bauman and Elrod were engaged in an ongoing business 

venture of buying, developing, and selling real estate in Indianapolis. Bauman 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 3 of 15

and Elrod were also the owners of Madison Avenue Athletic Club, Inc. and 

M.A.A.C. Properties, LLC. Bauman contributed capital to the venture, and 

Elrod managed the real estate. When the business venture sustained a loss, 

Bauman contributed additional capital. Bauman eventually decided to end the 

venture with Elrod due to ongoing losses and Elrod’s failure to provide Bauman 

with an accounting of how he managed the venture. 

[4] Accordingly, on April 4, 2016, Bauman filed a complaint seeking to appoint a 

receiver and for declaratory judgment to determine the rights and interests of 

the parties to the property and assets of the venture. On June 13, 2016, the 

parties began court-ordered mediation. After a full day of mediation, the parties 

signed the Mediated Settlement Agreement, which provides in relevant part:

Raymond Bauman (Ray) and Anthony Elrod (Tony) hereby 

stipulate and agree as follows:

1. [Elrod] will receive all right, title and interest to lots 1033 -

1035, 1037, 1039, 1041, 1045, 1047, 1049, and 1055 which are all 

lots bordered by High Street on the west and Prospect Street on 

the south. [Elrod] will also receive all right, title and interest to 

the vacated alley due north of parcel 1033-35. [Elrod] will assume 

and be responsible for all debts, mortgages and other expenses of 

those parcels. The mortgage on lot 1045 was executed by 

[Bauman]. [Elrod] will assume and pay that mortgage and 

indemnify and hold [Bauman] harmless from any nonpayment.

2. [Bauman] will receive all right, title, and interest to lots 330,

332, 336, and 340 as well as the four-plex and garage which are 

1046-1048 and 1042. Such properties are titled either in the name 

of [Bauman] and/or [Elrod] and MAAC[] Properties, Inc. 

[Bauman] will assume and be responsible for debts, mortgages 

and other expenses owing with respect to these parcels. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 4 of 15

[Bauman] will indemnify and hold [Elrod] harmless for any 

nonpayment. [Bauman] will receive all shares equaling 100% of 

MAAC Properties, Inc. 

3. The vacated alley that is due west of lot 330 shall remain in

[Elrod]’s name unless it is purchased by the purchaser of the gym 

in which case [Elrod] will transfer his interest at no additional 

cost to Madison Avenue Athletic Club, Inc. If the gym purchaser 

does not purchase the vacated alley, upon closing of that sale, 

[Elrod] will deed the vacated alley to [Bauman] so long as 

[Bauman] remains the owner of the parcels 336 and 340 Prospect 

set over to him in paragraph 2 above.

4. Madison Avenue Athletic Club, Inc. owns all right, title, and

interest to the gym property located at 306 E. Prospect. Such 

property is currently listed for sale with Ray Stuck. Each party 

agrees to cooperate with Ray Stuck in an effort to sell the 

property. Upon a sale of the gym, [Bauman] will receive the fixed 

sum of $175,000. Madison Avenue Athletic Club, Inc. shall 

execute a mortgage against the gym to memorialize this 

obligation, and the remaining proceeds shall be split on an equal 

basis. It is anticipated that payments will be made to Madison 

Avenue Athletic Club, Inc. and the parties will receive their share 

as distributions pursuant to the terms of this paragraph. Both 

parties agree that their respective ownership interest is 50/50.

* * *

6. The parties agree that there [are] only 2 mortgages against

the gym. Copies of each are attached hereto. Both mortgages 

shall be released of record by [Bauman].

7. The liquor license associated with the gym is held in the

name Madison Avenue Athletic Club, Inc. In the event it is not 

required as part of the sale the gym, [Bauman] and [Elrod] will 

market the liquor license and split any net proceeds on an equal 

basis.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 5 of 15

8. The gym and the apartments operate on a long-term lease for

parking spaces on the south side of Prospect Street. That area 

referred to as the parking lot is to be retained by the parties, 

MAAC Properties, Inc. and/or Madison Avenue Athletic Club, 

Inc. In order to be fully marketable, the parking lot requires the 

installation of an additional parking lot directly east of the 

existing parking spaces. If either party invests that sum of money 

to install the parking lot in order to make the entire parcel 

marketable, the party who incurred such expense shall be 

refunded that amount of their investment from any sale proceeds. 

Remaining sale proceeds will be split on an equal basis.

9. [Elrod] has building materials, tools and supplies located in

the basement of both of the apartment buildings and the second 

and third floor of 336 Prospect set over to [Bauman] by this 

agreement. He shall have all materials and personal property 

removed from the apartment buildings no later than October 15, 

2016. He shall remove any and all personal property building 

materials or tools from the four-plex located at 1046-1048 no 

later than August 15, 2016. All coin operated laundry machines 

in the laundry rooms and appliances in use in the individual 

apartments shall remain and are not property of [Elrod]. If not 

removed by the due date, such property shall become [Bauman]’s

property.

10. [Bauman] shall receive, as his sole property and free of any

claims by [Elrod], the real estate located at 6427 Canna Court in 

Indianapolis. There is currently a judgment lien in Cause No. 

49D07-1208-MF-031117 against [Elrod] which is lodged as a lien 

against this parcel. Upon a sale of the gym, an amount of money 

equal to the unpaid balance of that judgment shall be deducted 

from [Elrod]’s proceeds and placed into escrow. [Elrod] shall 

have 10 months from the date hereof to obtain a release of the

lien and if he does so, there will be no deduction from his gym 

proceeds and any escrow will be released. If he is unable to 

obtain a release within such time, [Bauman] shall satisfy the 

judgment from such escrowed funds. [Bauman] shall assume and 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 6 of 15

agree to pay the mortgage that is in [Elrod]’s name and 

indemnify and hold [Elrod] harmless. [Bauman] shall satisfy the 

mortgage upon the sale of this property or any interest therein.

11. [Bauman] will also receive all right title and interest to 1027

East Raymond St. in Indianapolis, 2191 Wakeland Road in 

Paragon, 3711 Farrington Dr. in Bloomington and 2236 - 2238 

Shelby St. in Indianapolis.

12. [Elrod] should receive all right title and interest to 3272

Clover Dr. in Plainfield. Such parcel is subject to a mortgage for 

which [Elrod] is solely obligated. [Elrod] will be responsible and 

assume the obligation to pay such mortgage and to indemnify 

and hold [Bauman] harmless with respect to such mortgage. 

13. [Elrod] shall manage and operate the gym until it is sold and

properly account for all income and expense. In the event either 

party contributes to such expenses, that party shall be given a 

note by Madison Avenue Athletic Club, Inc. for such loan plus 

interest at 4%.

14. The parties, either directly or through their various entities,

shall ensure the proper transfer deeds are prepared transferring 

title to properties as set forth herein and to execute any and all 

documents deemed reasonably necessary to effectuate the terms 

of this mediated agreement

15. Both parties agree to share the expenses of mediation on an

equal basis[.]

16. [Bauman]’s attorney shall prepare the definitive settlement

agreement encompassing and incorporating the terms of this 

agreement to be reviewed and executed by the parties. Upon its

execution, the parties agree to dismiss this litigation as to all 

parties.

Appellant’s App., Vol. 3, pp. 13–17 (emphases added). 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 7 of 15

[5] On June 23, 2016, the mediator filed a report with the trial court indicating that 

mediation had been successful and that the parties had reached an agreement 

on the disputed issues. Bauman and Elrod subsequently took steps to 

implement the Mediated Settlement Agreement. For example: Elrod 

surrendered the keys of the apartment complex to Bauman; Elrod surrendered 

control and management of the apartments to Bauman; Elrod worked with 

Bauman to transfer all utilities at the apartments to Bauman; Elrod surrendered 

the rents received from tenants of the apartments to Bauman, which had 

previously been tendered to Elrod; Elrod filed the necessary documents with the 

Indiana Secretary of State to reinstate the status of the Madison Avenue 

Athletic Club, in order to facilitate the sale of the gym as called for in the 

Mediated Settlement Agreement; Elrod began removing building materials, 

tools, and supplies from both the Apartments and the four-plex; Elrod listed for 

sale the property located at 1045 High Street; Nancy Davis (“Davis”), the 

owner of record of the property at 1041 High Street, listed this property for sale;

Elrod paid at least one month’s mortgage on the Clover property; and Elrod 

obtained satisfaction of the judgment lien 

[6] Pursuant to the terms of the Mediated Settlement Agreement, Bauman’s 

counsel prepared a document titled “Confidential Settlement Agreement and 

Mutual Release (“Agreement and Release”) along with the related deeds and 

other documents necessary to complete the distribution of the assets as agreed 

to under the Mediated Settlement Agreement. Bauman’s counsel sent the 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 8 of 15

documents, including the definitive settlement agreement draft to be signed. 

Elrod refused to sign the drafted agreement. 

[7] As a result, Bauman filed on July 5, 2016, an emergency motion to enforce the 

settlement agreement. The court held a hearing on this motion and ordered the 

parties to participate in a second mediation in an attempt to resolve these issues. 

This second mediation was unsuccessful. On September 27, 2016, Bauman filed 

a brief in support of his motion to enforce, which he now termed a motion to 

enforce and a motion for summary judgment. On that same date, Bauman filed 

designated evidence in support of his motion to enforce and for summary 

judgment. Elrod did not respond to this motion. 

[8] On November 1, 2016, counsel for Davis entered an appearance and requested 

an enlargement of time to respond to Bauman’s motion, claiming that she was 

the record owner of one of the properties in dispute and should have been a 

party to the mediation. Bauman filed an objection to Davis’s motion, claiming 

that both he and Elrod agreed that Davis was the legal title holder of record to 

1041 High Street and that the mediation was only intended to quiet the claims 

between him and Elrod regarding any interest or rights that they might have in 

the property, not to assign ownership of the property.

[9] On January 6, 2017, the trial court held a hearing on Bauman’s motion to 

enforce. Prior thereto, the parties submitted briefs and affidavits in support of 

their positions. Bauman argued that the Mediated Settlement Agreement was 

enforceable, and Elrod claimed that the Mediated Settlement Agreement was 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 9 of 15

an unenforceable agreement to agree. After taking the matter under 

advisement, the trial court entered findings of fact and conclusions of law on 

February 28, 2017, granting Bauman’s motion to enforce. The trial court’s 

order required Elrod to execute the Agreement and Release and to abide by the 

terms contained in the Agreement and Release. Elrod now appeals. 

Standard of Review

[10] The parties agree that the trial court’s order is one granting summary judgment 

in favor of Bauman. On appeal from a trial court’s ruling on a motion for 

summary judgment, we apply the same standard as the trial court. M.S.D. of 

Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans. denied. 

That is, we consider only those facts that the parties designated to the trial court 

to determine whether there is a genuine issue as to any material fact and 

whether the moving party is entitled to judgment as a matter of law. Id. We 

construe all factual inferences in favor of the non-moving party and resolve all 

doubts as to the existence of a material issue against the moving party. Id. The 

moving party bears the burden of making a prima facie showing that there are 

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

judgment as a matter of law. Id. Once the movant makes this prima facie

showing, the burden shifts to the non-moving party to designate and produce 

evidence of facts showing the existence of a genuine issue of material fact. Id. 

Still, the party appealing a summary judgment decision bears the burden of 

persuading this court that the grant or denial of summary judgment was 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 10 of 15

erroneous. Id. Where the facts are undisputed and the issue presented is a pure 

question of law, we review the matter de novo. Id. 

Discussion and Decision

[11] “The law is well established that a mere agreement to agree at some future time 

is not enforceable.” Wolvos v. Meyer, 668 N.E.2d 671, 674 (Ind. 1996) (citing 

Wallace v. Mertz, 86 Ind. App. 185, 156 N.E. 562 (1927)). However, parties may 

enter into an enforceable contract that requires them to execute a subsequent 

final written agreement. Id. In Wolvos, our supreme court quoted with approval 

the following language from a well-known contracts hornbook: 

It is quite possible for parties to make an enforceable contract 

binding them to prepare and execute a subsequent final 

agreement. In order that such may be the effect, it is necessary 

that agreement shall have been expressed on all essential terms 

that are to be incorporated in the document. That document is 

understood to be a mere memorial of the agreement already 

reached. If the document or contract that the parties agree to 

make is to contain any material term that is not already agreed 

on, no contract has yet been made; the so-called “contract to 

make a contract” is not a contract at all.

Id. at 674–75 (quoting 1 Arthur Linton Corbin and Joseph M. Perillo, Corbin on 

Contracts § 2.8 at 133–34 (rev. ed. 1993)). Indeed, this court has long held that 

the “‘mere reference to a more formalized contract does not void the presently

existing agreement.’” Id. at 675 (quoting McMahan Construction Co. v. Wegehoft 

Bros., Inc., 170 Ind. App. 558, 562, 354 N.E.2d 278, 281 (1976)). 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 11 of 15

[12] The question of whether an agreement is an enforceable option contract or 

merely an unenforceable agreement to agree involves two interrelated areas: (a) 

the intent to be bound and (b) definiteness of terms. Id. (citing Corbin on 

Contracts § 2.8 at 131). “Promises may be indefinite . . . . The more important 

the uncertainty, the stronger the indication is that the parties do not intend to be 

bound; minor items are more likely to be left to the option of one of the parties 

or to what is customary or reasonable.” Id. (quoting Restatement (Second) of 

Contracts § 33, cmt. f (1979)). 

[13] A court faced with this issue should examine whether the parties intended to be 

bound by the agreement or whether they intended that they would be bound 

only after executing a subsequent writing document. Id. “When one enters into 

an agreement with the understanding that neither party is bound until a 

subsequent formal written document is executed, no enforceable contract exists 

until the subsequent document is executed.” Id. (citing Foster v. United Home 

Improvement Co., 428 N.E.2d 1351, 1355 (Ind. Ct. App. 1981)). The court 

should also determine whether the option agreement lacks such essential terms 

as to render the contract unenforceable. Id. 

[14] Moreover, we note that it is the public policy of this state to encourage 

mediation and mediated settlement agreements. See Fuchs v. Martin, 845 N.E.2d 

1038, 1041 (Ind. 2006) (noting Indiana judicial policy favors mediation); 

Georgos v. Jackson, 790 N.E.2d 448, 453 (Ind. 2003) (noting that Indiana strongly 

favors settlement agreements). 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 12 of 15

[15] In support of his argument that the Mediated Settlement Agreement was not an 

enforceable contract, Elrod cites Equimart Ltd. v. Epperly, 545 N.E.2d 595 (Ind. 

Ct. App. 1989). In that case, the parties entered into a letter of intent that stated 

that they would “attempt, in good faith, to negotiate a definitive purchase 

agreement” for the sale of stock. Id. at 598. The letter of intent further provided 

that the “consummation of the transaction here contemplated . . . will be 

subject to the execution of delivery of a Final Agreement in a form reasonably 

satisfactory to the parties and their respective counsel.” Id. On appeal, we held 

that this language indicated the parties had merely agreed to agree after a period 

of exclusive negotiation, and that the letter of intent was not a binding purchase 

contract. Id. 

[16] In the present case however, the Mediated Settlement Agreement did not call 

for the parties merely to continue to negotiate. Instead, it set forth an agreement 

as to all the material issues in dispute between the parties. In fact, it specifically 

states that Elrod and Bauman “stipulate and agree” as to all of the provisions of 

the Mediated Settlement Agreement. Appellant’s App., Vol. 3, p. 13. And the 

signatures of the parties were executed immediately below language stating that 

“[t]he above is agreed to this June 13, 2016.” Id. at 17. 

[17] Elrod focuses on paragraph sixteen of the Mediated Settlement Agreement, 

which provides that “[Bauman]’s attorney shall prepare the definitive settlement 

agreement encompassing and incorporating the terms of this agreement to be 

reviewed and executed by the parties. Upon its execution, the parties agree to 

dismiss this litigation as to all parties.” Appellant’s App., Vol. 3, pp. 16–17. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 13 of 15

This, he claims, indicates that the parties did not intend to be bound unless and 

until the Agreement and Release was executed. We disagree. 

[18] Nothing in the language of the Mediated Settlement Agreement would indicate 

that the preparation and approval of the Agreement and Release was a 

condition precedent to the enforceability of the Mediated Settlement 

Agreement. To the contrary, the language of the Mediated Settlement 

Agreement specifically states that the parties had agreed to the provisions of 

that agreement. 

[19] We find the present case more akin to Block v. Magura, 949 N.E.2d 1261 (Ind. 

Ct. App. 2011). There, the parties entered into a letter of intent. But this letter, 

unlike the letter of intent in Epperly, did not refer to future negotiations or use 

conditional or contingent language. Block, 949 N.E.2d at 1267. Nor did the 

letter of intent indicate that new material terms could be included in the

subsequent, formal agreement. Instead, it stated that the subsequent formal 

agreement would “incorporate ‘the terms of this Letter of Intent,” not other 

terms. Id. The letter of intent also stated that it “confirm[ed]” the terms of the 

agreement to purchase. Id. It also stated that the parties were “willing to 

complete” the purchase and used the terms “[o]ffer made” and “accepted” to 

denote the consequence of the parties’ signatures. Id. Therefore, we concluded 

that the letter of intent, as a whole, “indicate[d] the parties’ intent to be bound, 

such that the requirement to execute a formal memorandum of their agreement 

within five days was not a condition precedent to enforceability of the 

agreement.” Id. 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 14 of 15

[20] The same is true here. The Mediated Settlement Agreement does not refer to 

future negotiation or use conditional language. Nor does the Mediated 

Settlement Agreement call for new material terms to be included in the 

subsequent Agreement and Release. To the contrary, the provision referring to 

the preparation of the Agreement and Release states that the subsequent, more 

formal agreement will “encompass[] and incorporate[] the terms of this 

agreement[.]” Appellant’s App., Vol. 3, pp. 16–17. And the signatures indicated 

that the parties had “agreed” to the terms set forth in the Mediated Settlement 

Agreement. Thus, as in Block, the language of the Mediated Settlement 

Agreement as a whole indicates the parties’ intent to be bound by the terms of 

that agreement.

[21] Elrod also argues that the Mediated Settlement Agreement is unenforceable 

because the subsequent Agreement and Release, prepared by Bauman’s 

counsel, contains “numerous and significant additional terms[.]” Appellant’s 

Br. at 27. The existence of these additional terms in the Agreement and Release, 

he argues, indicates that the Mediated Settlement Agreement is non-binding. 

Again, we disagree. Assuming that the Agreement and Release contain 

significant additional terms that were not in the Mediated Agreement, this does 

not mean that the Mediated Settlement Agreement is unenforceable. Instead, it 

simply means that Elrod is bound by the terms of the Mediated Settlement 

Agreement instead of the Agreement and Release. See Reno v. Haler, 734 N.E.2d 

1095, 1099 (Ind. Ct. App. 2000) (holding that wife was bound by terms of 

unsigned, typewritten agreement to the extent that it conformed to the terms 
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-PL-657 | January 25, 2018 Page 15 of 15

contained in handwritten notes of the mediator that both parties signed), 

adhered to on reh’g, 743 N.E.2d 1139 (Ind. Ct. App. 2001), trans. denied.

[22] We therefore conclude that the trial court erred to the extent that it ordered 

Elrod to comply with the terms of the Agreement and Release, as that 

document was not agreed to by the parties. However, Elrod is bound by the 

terms of the Mediated Settlement Agreement, which was the result of an hourslong mediation at which he was represented by counsel and which was signed 

by both parties. Accordingly, we reverse the order of the trial court enforcing 

the terms of the Agreement and Release and remand with instructions that the 

trial court enforce the terms of the Mediated Settlement Agreement.2 

Vaidik, C.J., and Crone, J., concur. 

2

 One could also view our conclusion as enforcing the terms of the Agreement and Release only to the extent 

that it merely incorporates the terms of the Mediated Settlement Agreement. See Reno, 734 N.E.2d at 1099. 

We think it better to simply state that the parties are bound by the terms of the Mediated Settlement 

Agreement they executed.