Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 1 of 48

ATTORNEYS FOR APPELLANT

David M. Mattingly

Michael A. Wukmer

Mary Nold Larimore

Mark R. Alson

Robert A. Jorczak

Ice Miller, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

David L. Swider

Andrew M. McNeil

Philip R. Zimmerly

Bose McKinney & Evans, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

American Consulting, Inc. 

d/b/a American Structurepoint, 

Inc.,

Appellant-Plaintiff/Cross-Appellee,

v.

Hannum Wagle & Cline 

Engineering, Inc. d/b/a HWC 

Engineering, Inc., Marlin A. 

Knowles, Jr., Jonathan A. Day, 

Tom Mobley, and David Lancet,

Appellees-Defendants/Cross-Appellants.

May 23, 2018

Court of Appeals Case No.

49A02-1611-PL-2606

Appeal from the Marion Superior 

Court

The Honorable Heather A. Welch, 

Special Judge

Trial Court Cause No.

49D01-1503-PL-7463

Robb, Judge.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 2 of 48

Case Summary and Issues

[1] American Consulting, Inc., d/b/a American Structurepoint, Inc. (“ASI”), 

appeals the trial court’s partial summary judgment in favor of Hannum Wagle 

& Cline Engineering, Inc., d/b/a HWC Engineering, Inc. (“HWC”), Marlin A. 

Knowles, Jr., Jonathan A. Day, Tom Mobley, and David Lancet (collectively, 

the “HWC Parties”).1

[2] On appeal, ASI raises one issue, which we restate as whether the trial court 

erred in granting summary judgment to the HWC Parties on ASI’s claims for 

liquidated damages resulting from alleged breaches in employment contracts by 

former ASI employees. On cross-appeal, the HWC Parties raise two issues, 

which we restate as: (1) whether the trial court should have granted summary 

judgment to the HWC Parties on ASI’s claims regarding tortious interference

with contractual relationships; and (2) whether the trial court should have 

granted summary judgment to the HWC Parties on ASI’s claims regarding 

breach of employment contracts by former ASI employees.

[3] On ASI’s appeal, we conclude the trial court erred in granting summary 

judgment to the HWC Parties on the issue of liquidated damages, and we 

reverse that part of the trial court’s order. On the HWC Parties’ cross-appeal, 

we conclude the trial court properly denied the HWC Parties’ motion for 

 

1

 We held an oral argument in this case on December 12, 2017, at the Indiana Court of Appeals courtroom 

in Indianapolis, Indiana. We commend the attorneys for their excellent preparation and advocacy.
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summary judgment on ASI’s claims of tortious interference with a contractual 

relationship and breach of contract, and we affirm as to those counts.

Facts and Procedural History

[4] ASI is a civil engineering, architecture, planning, and design firm with offices in 

Indiana and several other states. HWC is also a civil engineering, architecture, 

planning, and design firm with offices in Indiana. ASI and HWC are 

competitors, and both provide services to public and private entities.

I. Employment at ASI

[5] In 1994, Knowles began working for ASI as a construction inspector. Over the 

years, he was promoted, and by approximately 2004, his title was Vice 

President of Sales Administration. In 2008, Knowles acquired an ownership 

interest in ASI. On December 29, 2008, Knowles and ASI executed an 

Employment, Non-Disclosure and Non-Competition Agreement (the “Knowles 

Agreement”). Knowles agreed to several restrictive covenants as a condition of 

his employment with, and his equity interest in, ASI; specifically, the Knowles 

Agreement included both a non-compete provision and a non-recruitment 

clause. The non-compete provision precluded Knowles for two years following 

his termination of employment with ASI from selling, providing, attempting to 

sell or provide, or assisting any person in the sale or provision of competing 

products or services to ASI’s customers with whom Knowles had contact on 

behalf of ASI in the two years preceding his termination. The non-compete 

provision further precluded Knowles from selling, providing, attempting to sell 
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or provide, or assisting any person in the sale or provision of competing 

products or services to any of ASI’s active prospects. In addition, the nonrecruitment clause precluded Knowles for the same two-year period from 

directly or indirectly soliciting, recruiting, hiring, or employing (or attempting 

to do the same) any ASI employee or otherwise inducing any ASI employee to 

terminate their employment at ASI. 

[6] The Knowles Agreement further stipulated that any breach of a restrictive 

covenant would “give rise to irreparable injury to [ASI].” Corrected Appendix 

to Amended Appellant’s Brief, Volume III at 205. Accordingly, the Knowles 

Agreement provided for specific remedies in the event of a breach. In part, in 

the event Knowles breached the non-compete provisions relating to the 

provision of services or solicitation of ASI clients, which resulted in the client 

terminating, withdrawing, or reducing its business with ASI, or purchasing any 

competing products or services from Knowles or a company with which 

Knowles was affiliated at the time of the breach, the Knowles Agreement 

mandated that Knowles “shall pay to [ASI] liquidated damages in an amount 

equal to forty five percent (45%) of all fees and other amounts that [ASI] billed 

to such customer during the [twelve]-month period immediately preceding such 

breach[.]” Id. Similarly, in the event Knowles violated the non-recruitment of 

ASI employees provision, “which results in an employee terminating his/her 

employment with [ASI],” the Knowles Agreement stipulated that he “shall pay 

to [ASI] liquidated damages in an amount equal to fifty percent (50%) of such 

terminating employee’s total compensation from [ASI] for the twelve (12) 
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months immediately preceding such employee’s termination of employment.” 

Id., Vol. III at 205-06.

[7] In 1998, Lancet was hired at ASI, and in 2004, he was promoted to the position 

of field manager. As a result of his promotion, on April 1, 2004, Lancet 

executed an Employment Agreement with ASI, which contained nonrecruitment and non-compete clauses. In 2007, Lancet was demoted to a

resident project representative. At the time of the demotion, Lancet believed 

that his employment agreement would be deemed invalid. Nevertheless, on 

January 31, 2007, Lancet executed certain Terms and Conditions of 

Employment with ASI (the “Lancet Agreement”). This new agreement also

included a non-recruitment clause, providing that for a period of two years 

following his termination of employment with ASI, Lancet would not solicit or 

offer employment to any ASI employee, or assist others to do the same. In the 

event that Lancet “engage[d] in conduct that violates these restrictions and 

causes an employee to terminate his/her employment with [ASI],” Lancet 

agreed to “pay to [ASI] liquidated damages in an amount equal to 100% of such 

employee’s annual salary for the preceding calendar year.” Id., Vol. III at 196. 

Lancet did not recall signing the Lancet Agreement; he claimed that he did not 

read it prior to signing and did not receive a copy of it.

[8] In 2003, Mobley was hired at ASI as an inspector. It does not appear that he 

was ever required to execute an employment agreement. In 2004, Day was 

hired at ASI as an inspector as well. He was eventually promoted to a resident 

project representative. On January 3, 2005, Day executed Terms and 
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Conditions of Employment (the “Day Agreement”) with ASI. The Day 

Agreement, like the Knowles and Lancet Agreements, included a nonrecruitment clause, providing that during his employment at ASI and for a 

period of two years thereafter, he would not solicit or offer employment to any 

ASI employee, or assist others to do the same. In the event that Day breached 

his covenant, thereby “caus[ing] an employee to terminate his/her employment 

with [ASI,]” Day agreed that he “shall pay to [ASI] liquidated damages in an 

amount equal to 100% of such employee’s annual salary for the preceding 

calendar year.” Id., Vol. III at 121.

[9] At ASI, Knowles was responsible for generating business and developing the 

company’s goodwill. His goal was to “[b]uild a relationship with a client. 

Identify a project. Help them figure out how to deliver that project or get 

funding for that project.” Id., Vol. VI at 76. Knowles was the “principal in

charge” for public clients that included the Town of Cicero, Delaware County, 

the City of Fishers, Grant County, the City of Greendale, Hamilton County, 

Hancock County, the Indiana Department of Transportation (“INDOT”), 

LaGrange County, the City of Lawrenceburg, Morgan County, the City of 

Noblesville, Orange County, and Putnam County. Id., Vol. V at 152.

II. Move to HWC

A. Knowles

[10] At the end of 2013, Knowles became dissatisfied with his employment at ASI 

and began searching for new opportunities. Knowles met with HWC’s 
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President, Edward Jolliffe, and HWC’s Executive Vice President, Terry Baker. 

Jolliffe and Baker were aware of Knowles’ experience and “stellar” reputation 

in the industry. Id., Vol. V at 218. They wanted to hire Knowles with the 

intent that he would eventually take over the company. During their initial

meetings, Knowles discussed his ASI agreement with Jolliffe and Baker, and 

they intended to honor the Knowles Agreement “by putting him in operations 

rather than running sales—being in the sales cycle.” Id., Vol. V at 220. Jolliffe 

and Baker also desired for Knowles to overhaul HWC’s transportation division, 

which was headed by Randy Hancock.

[11] On May 5, 2014, Knowles resigned from ASI. In his resignation letter, he 

informed ASI that he was “very aware of and will honor my existing 

employment contract as I have such respect for this great company and all the 

wonderful people here.” Id., Vol. III at 167. Knowles’ last day of work at ASI 

was May 14, 2014. On May 19, 2014, HWC issued a press release announcing 

its hiring of Knowles as its Vice President of Operations. HWC forwarded the 

announcement to a list of “key clients” that Knowles formulated. Id., Vol. VII

at 99.

[12] At the time Knowles left ASI, he had a list of clients with whom he had 

worked; however, he did not share this list with Jolliffe, Baker, or other HWC 

colleagues—believing that to do so would have been a violation of the Knowles 

Agreement. Ultimately, he threw the client list away “[b]ecause I was not 

supposed to have material that was [ASI’s].” Id., Vol. VI at 74. Instead, he 

relied on his memory and own personal judgment for determining whether he 
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was prohibited from contacting clients based on their status as former, current, 

or prospective clients of ASI. Based on his discussions with Jolliffe and Baker, 

it was clear that Knowles understood that “[h]e was not to call on [ASI’s] 

customers. And he was not to recruit their employees.” Id., Vol. III at 16. 

Knowles was responsible for “self-polic[ing]” his activity to ensure compliance 

with his restrictive covenants. Id., Vol. VI at 75. 

[13] Since joining HWC, it is undisputed that Knowles has been involved in 

contract negotiations and contract signings with at least the following ASI 

clients: City of Indianapolis, City of Muncie, Hamilton County, INDOT, 

Hancock County, City of Greenwood, City of Marion, City of Crawfordsville, 

Town of Cicero, City of New Albany, and City of Seymour. Although there is 

evidence indicating that Knowles was never directly involved in working with 

these clients in order to secure the projects for HWC, he did subsequently 

engage with the clients in order to finalize details and ensure the provision of 

the requested services. In addition, the undisputed evidence establishes that 

Knowles has maintained communication with a number of ASI clients since his 

departure for HWC. As a result of his position in the civil engineering industry, 

Knowles developed friendly relationships with many public officials who have 

responsibility for selecting engineering firms for public projects. Knowles has 

golfed, played poker, attended fishing trips, attended charity events, and met for 

meals and drinks with representatives of entities that ASI services. He has 

interacted with numerous officials at various industry events and conferences 

and has engaged in phone or texting conversations with some. According to 
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Knowles, spending time with clients—be it through breakfast meetings, playing 

golf, going fishing, etc.—is a necessary part of building a relationship that will 

prompt “them to want to do business with me.” Id., Vol. VI at 78. However, a 

plethora of individuals (i.e., representatives of ASI clients) with whom Knowles 

had communicated submitted declarations, averring that none of their 

interactions with Knowles included any attempt on his part to solicit work on 

behalf of HWC. 

B. Other ASI Employees

[14] Following Knowles’ departure from ASI, a number of other ASI employees 

began exploring their options for new employment as well. Shortly after 

Knowles’ departure from ASI, Clinton Sparks, an ASI employee, inquired with

Knowles about employment with HWC. When Knowles indicated that he 

could not have such a discussion with Sparks, Sparks accessed HWC’s website 

and found a list of approximately fifteen to twenty job openings. Accordingly, 

Sparks submitted his resume through HWC’s website. Hancock, as the director 

of the transportation division for HWC, reports to Knowles and is responsible 

for hiring all staff in the transportation group. When Hancock received Sparks’ 

resume, he forwarded it to Knowles and Jolliffe and indicated that it was the 

“[f]irst of perhaps many?” Id., Vol. VII at 105. Hancock asked Knowles about 

Sparks’ qualifications, and Knowles also reported to Jolliffe that Sparks is “a 

good engineer” who “knows how to make money in our business.” Id., Vol. VI

at 92. Jolliffe subsequently interviewed Sparks and extended an offer of 
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employment. Instead of informing ASI that he was transferring to HWC, 

Sparks announced his departure as a retirement.

[15] On August 11, 2014, Sparks began his job at HWC. Thereafter, he engaged in 

conversations with Hancock regarding “potential engineers.” Id., Vol. VI at 

177. Sparks reached out to Lancet at ASI and asked if Lancet “knew of 

anybody that was unhappy or had any potential candidates.” Id., Vol. VI at 59. 

In response, Lancet suggested Amber Tolle, an ASI construction inspector and 

road designer. Sparks advised Lancet to delete their correspondence “because if 

the sharks [at ASI] smell the blood who knows.” Id., Vol. VI at 45. The 

following month, Sparks met Tolle for lunch and discussed her prospects at 

HWC. Tolle “had grown unhappy with ASI during the last several years of 

[her] employment” and “did not feel like [she] was being used to [her] full 

potential.” Id., Vol. IV at 3. Because Sparks seemed so happy at HWC, Tolle 

applied. When Hancock received Tolle’s resume, he consulted with Knowles 

about her potential employment. In October of 2014, Hancock interviewed 

Tolle and advised her that HWC might have a position for her in early 2015. 

Around that time, Sparks misdirected an email with Tolle’s application

information to Knowles’ former ASI email address, which was still being 

monitored by ASI, thereby alerting ASI to possible poaching efforts by HWC 

and Knowles. On March 3, 2015, Tolle received an offer from HWC.

[16] Also within a few weeks of Knowles moving to HWC, Day advised Knowles 

that he, too, was “ready to leave [ASI] and that he was going to submit a 

[resume] to HWC.” Id., Vol. VI at 94. Upon receipt of Day’s resume, Hancock 
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conferred with Knowles regarding Day’s qualifications; Knowles offered a 

favorable recommendation. Knowles also informed Jolliffe that Day “was a 

good guy. He did a good job at [ASI].” Id., Vol. VI at 97. Jolliffe subsequently 

interviewed Day, and during the interview, Day advised Jolliffe that Lancet 

was also interested in leaving ASI for a career at HWC. On August 8, 2014, 

HWC sent an offer letter to Day. On August 11, 2014, Day submitted his 

resignation to ASI. During his exit interview, ASI did not remind Day that he 

had executed the Day Agreement, and Day testified that he was unaware that 

he was bound by any restrictive covenants. The next day, he accepted HWC’s 

offer of employment.

[17] Within a month of beginning his job at HWC, Day compiled a spreadsheet of 

potential recruits for HWC. Nine of the ten potential recruits on the list were 

ASI employees, including, in part: Lancet, Chris Holth, Mobley, Tim 

Conarroe, and Melissa Walker. Day forwarded his list of potential recruits to 

Knowles. Although Knowles instructed Day to send the list to Hancock, 

Knowles conceded that he had regular meetings with Hancock and Day as part 

of “identifying candidates to fill the needs that [HWC] would have in [its] 

inspection group.” Id., Vol. VI at 10. Hancock relied on Day’s list of potential 

employees “as a point of reference when I was trying to fill needs on our 

inspection staff.” Id., Vol. VI at 162. Furthermore, Knowles also maintained 

two working lists of potential recruits, which included ASI employees. 

Knowles forwarded these lists to Hancock, Day, and HWC’s human resources 

director.
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[18] Day contacted numerous ASI employees to gauge their interest in an HWC 

employment opportunity and subsequently forwarded the applications of his 

former ASI colleagues to HWC management. As text messages reveal, Day 

kept Knowles apprised of his efforts in recruiting ASI (and other) employees, 

and Knowles commended Day for his leadership and success in filling their 

team. In one conversation regarding the issuance of offer letters, Knowles and 

Day laughed about hearing a rumor that ASI executives had to hold an 

“impromptu war room meeting” over staff retention concerns. Id., Vol. VII at 

14.

[19] On August 22, 2014, Day advised Knowles that Holth had submitted a resume 

to HWC, and a few days later, Day notified Knowles that “[n]o one has 

reached out to Holth yet.” Id., Vol. VI at 232. Knowles instructed Day to 

remind Hancock “to touch base with [Holth].” Id., Vol. VI at 232. In March of 

2015, HWC sent an offer letter to Holth; however, it appears that Holth elected 

to remain at ASI.

[20] In the fall of 2014, Walker, an ASI construction inspector and utility 

coordinator, was working on a project with Mobley, at which time Mobley 

encouraged her to speak with Day. After nearly eight years with ASI, Walker 

had “grown unhappy”—believing that she had been “pigeon-holed in an 

administrative assistant role” despite her engineering degree. Id., Vol. IV at 10. 

Day advised her that she could submit a resume to HWC. On December 8, 

2014, Walker emailed a copy of her resume to Day for him to forward to the 

appropriate individual at HWC. The following month, Hancock invited 
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Walker for an interview and offered her a job with HWC. She accepted on 

March 9, 2015, and resigned from ASI on March 13, 2015.

[21] Day, who had also been communicating with Mobley since his departure from 

ASI, informed Knowles on September 24, 2014, that Mobley “want[ed] out” at 

ASI. Id., Vol. VI at 235. At the end of 2014, Mobley submitted a resume to 

Day, which Day forwarded to Hancock. On February 11, 2015, HWC offered 

a job to Mobley, and Mobley accepted on February 21, 2015. At the time of his 

acceptance, Mobley did not have a definite start date with HWC, so he 

continued to work at ASI. During that time, Mobley engaged in discussions

with other ASI employees about his own opportunity at HWC and encouraged

others to submit their resumes.

[22] Once Knowles left ASI, Lancet knew that it was time to “[p]olish [his] [resume] 

and hang on.” Id., Vol. VI at 141. While Lancet was still at ASI, he conversed 

with other employees regarding their dissatisfaction with their ASI 

employment, and he forwarded a list of names to Day. Lancet eventually 

applied to HWC, and he met with Jolliffe in early 2015. On February 11, 2015, 

Lancet received an offer of employment from HWC, which he accepted on 

February 18, 2015.

[23] In November of 2014, ASI employee Clinton Graham was at Day’s house 

when Day informed him that HWC “was probably going to be hiring in the 

spring of 2015.” Id., Vol. III at 233. The next month, Graham, a construction 

inspector, emailed his resume to Hancock via HWC’s website. According to 
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Graham, he wanted better wages than ASI paid, he felt neglected by ASI, and 

ASI was “losing its family feel.” Id., Vol. III at 234. Hancock offered a 

position to Graham in January of 2015, which Graham accepted on March 2, 

2015. However, at the time Graham accepted the job, no position was 

technically available at HWC, so he did not immediately resign from ASI.

[24] In February of 2015, while still working at ASI, Mobley contacted one of his 

ASI colleagues, Conarroe, to see whether Conarroe would have any interest in 

applying to HWC. Mobley indicated that at least four other ASI employees 

were ready to jump ship to HWC. The next day, Conarroe alerted his 

supervisor at ASI to the fact that Mobley was attempting to recruit ASI 

employees for HWC. This, in addition to the suspicions that were raised when 

Tolle’s HWC application was misdirected to an ASI email address, prompted 

an investigation by ASI. On March 3, 2015, ASI executives and attorneys 

interviewed Mobley and Lancet regarding their reported recruitment activities. 

During his interview, Mobley stated that Day had requested a list of potential 

ASI employees, and although he did not provide such a list to Day, he did talk 

to several employees and advised them that they could contact Day directly 

about job opportunities. Mobley identified Lancet as the ringleader in 

recruiting activities. Mobley also informed ASI executives that Lancet, Walker, 

Holth, Graham, and Tolle had all been offered positions with HWC. Lancet 

admitted during his interview that he had provided a list of potential employees 

to Day and had also had conversations with other ASI employees regarding 

their general interest in joining HWC.
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[25] ASI executives and attorneys also summoned Tolle, who had not yet started at 

HWC, to a “very hostile” meeting, during which they “interrogat[ed]” her as to 

who had recruited her to HWC. Id., Vol. III at 107. Tolle denied that anyone 

had persuaded her to join HWC; rather, she stated that her decision to leave 

was based “primarily on the unhappiness I had experienced at ASI for a few 

years.” Id., Vol. IV at 5. Similarly, on March 4, 2015, Walker, also still 

working at ASI, was subjected to an “investigation meeting.” Id., Vol. III at 12. 

Walker indicated that she “chose to work for HWC because it was right for my 

career. I did not come to HWC just because people I knew had come to 

HWC.” Id., Vol. IV at 12. Also in March of 2015, ASI executives interviewed 

Graham, who confirmed that he had discussed his move to HWC with both 

Day and Mobley; however, Graham stated that Day “did not cause me to leave 

ASI. My motivation in joining HWC was purely financial.” Id., Vol. III at 

234. On March 6, 2015, ASI terminated Mobley’s and Lancet’s employment.

III. The Present Case

[26] On March 6, 2015, ASI filed a complaint against the HWC Parties, alleging 

breach of contract by Knowles, Day, and Lancet; breach of the duty of loyalty 

by Lancet and Mobley; unfair competition against all defendants; civil 

conspiracy against all defendants; tortious interference with ASI’s contractual 

relationships; tortious interference with ASI’s business relationships; and unjust

enrichment against all defendants. ASI sought a preliminary injunction in 

addition to damages.
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[27] On September 29 and 30 and October 1, 2015, the trial court held a hearing on 

ASI’s motion for a preliminary injunction. On December 11, 2015, the trial 

court granted ASI’s request for an injunction as to Knowles, Lancet, and Day. 

The trial court denied ASI’s request for a preliminary injunction against 

Mobley.2

[28] On March 8, 2016, the HWC Parties filed a Motion for Summary Judgment, a 

brief in support of their motion, and a designation of evidence in support of the 

motion pursuant to Indiana Trial Rule 56. The HWC Parties claimed that 

“there are no genuine issues of material fact with respect to ASI’s claims” and 

requested summary judgment on all claims brought by ASI. Id., Vol. VII at 86. 

The HWC Parties later filed a designation of supplemental evidence to support 

their motion for summary judgment. On June 9, 2016, ASI filed a response in 

opposition to the HWC Parties’ summary judgment motion, along with its 

designation of evidence. On June 23, 2016, the HWC Parties filed a reply brief 

in support of their summary judgment motion, along with additional designated 

evidence.

[29] On July 7, 2016, the trial court held a hearing on the motion. During the 

hearing, ASI agreed to dismiss its claim regarding unjust enrichment as against 

 

2

 The HWC Parties appealed the trial court’s issuance of the preliminary injunction, and on November 30, 

2016, our court affirmed the trial court. See Hannum Wagle & Cline Eng’g, Inc., d/b/a HWC Eng’g, Inc. et al. v. 

American Consulting, Inc., d/b/a American Structurepoint, Inc., 64 N.E.3d 863, 882 (Ind. Ct. App. 2016). On 

May 20, 2016, the trial court dissolved the preliminary injunction as to Knowles because the two-year 

restricted time period had expired. Our court also affirmed this order in the same decision. See id. at 884. 

On August 23, 2016, the trial court dissolved the preliminary injunction as to Day.
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all defendants. On September 13, 2016, the trial court issued its Order, denying 

in part and granting in part the HWC Parties’ motion for summary judgment. 

The trial court determined that there were genuine issues of material fact as to 

whether Knowles, Day, and Lancet had breached their employment contracts 

and caused damages to ASI. However, the trial court granted summary 

judgment for the HWC Parties as to the issue of liquidated damages from any 

breach, finding that the remedies clauses contained in each of the Knowles, 

Day, and Lancet Agreements were unenforceable as a matter of law. The trial 

court denied the HWC Parties’ motion for summary judgment on ASI’s claim 

that Lancet breached his duty of loyalty but granted summary judgment as to 

Mobley. The trial court granted summary judgment to the HWC Parties on 

ASI’s claim for unfair competition. The trial court denied the HWC Parties’

claim for summary judgment on ASI’s claim of civil conspiracy with respect to 

HWC, Knowles, Day, and Lancet, but granted summary judgment on this 

count as to Mobley. For ASI’s claim that HWC had tortiously interfered with 

contractual relationships, the trial court denied the HWC Parties’ motion for 

summary judgment as to Knowles but granted summary judgment as to Day,

Lancet, and Mobley. The trial court also granted the HWC Parties’ motion for 

summary judgment on ASI’s claim for tortious interference with business 

relationships. Finally, the trial court granted the HWC Parties’ motion for 

summary judgment on ASI’s claim of unjust enrichment.

[30] The HWC Parties filed a Motion to Reconsider, which the trial court denied on 

October 3, 2016. On October 13, 2016, ASI filed a motion to certify the trial 
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court’s Order for interlocutory appeal, along with a motion for stay pending 

appeal. The trial court certified the Order for interlocutory appeal but declined 

to stay the proceedings. Following the trial court’s summary judgment ruling, 

the following counts remain: breach of contract by Knowles, Day, and Lancet; 

breach of duty of loyalty by Lancet; civil conspiracy as to HWC, Knowles, 

Day, and Lancet; and tortious interference by HWC in ASI’s contractual 

relationship with Knowles. A jury trial on the remaining counts is set to begin 

in May of 2018.

[31] On January 3, 2017, our court accepted jurisdiction over the interlocutory 

appeal. ASI has raised one issue on appeal, and the HWC Parties have raised 

two issues on cross-appeal. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

[32] Summary judgment is appropriate in cases where there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. 

Ind. Trial Rule 56(C). On appeal, we review summary judgment rulings de 

novo. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Our court “stands in 

the shoes of the trial court, applying the same standards in deciding whether to 

affirm or reverse summary judgment.” Weinreb v. Fannie Mae, 993 N.E.2d 223, 

231 (Ind. Ct. App. 2013), trans. denied. Thus, in reviewing a summary judgment 

ruling, “we must determine whether there is a genuine issue of material fact and 

whether the trial court has correctly applied the law.” Id. “A fact is ‘material’ if 
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its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a 

trier of fact is required to resolve the parties’ differing accounts of the truth, or if 

the undisputed material facts support conflicting reasonable inferences.” 

Hughley, 15 N.E.3d at 1003 (quoting Williams v. Tharp, 914 N.E.2d 756, 761 

(Ind. 2009)).

[33] The party moving for summary judgment bears the initial burden of 

demonstrating the absence of any genuine issue of fact as to a determinative 

issue. Id. Thereafter, the burden shifts “to the non-movant to ‘come forward 

with contrary evidence’ showing an issue for the trier of fact.” Id. (quoting 

Williams, 914 N.E.2d at 761-62). We must consider all of the designated 

evidence in a light most favorable to the non-moving party. Weinreb, 993 

N.E.2d at 231. “Although the non-moving party has the burden on appeal of 

persuading us that the grant of summary judgment was erroneous, we carefully 

assess the trial court’s decision to ensure that he was not improperly denied his 

day in court.” Hughley, 15 N.E.3d at 1003 (quoting McSwane v. Bloomington 

Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009)). A grant of 

summary judgment may be affirmed upon any theory supported by the 

designated materials. Haegert v. McMullan, 953 N.E.2d 1223, 1230 (Ind. Ct. 

App. 2011).

[34] Furthermore, although not required, the trial court in this case issued findings 

of fact and conclusions of law in support of its judgment. These special findings 

are not binding on appeal. Weinreb, 993 N.E.2d at 231. However, they “offer 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 20 of 48

this court valuable insight into the trial court’s rationale” and serve to “facilitate 

appellate review.” Id.3 

II. ASI’s Appeal: Liquidated Damages

[35] ASI claims the trial court erred by granting the HWC Parties’ motion for 

summary judgment with respect to the various liquidated damages provisions in 

the Knowles, Day, and Lancet Agreements. “The term ‘liquidated damages’ 

applies to a specific sum of money that has been expressly stipulated by the 

parties to a contract as the amount of damages to be recovered by one party for 

a breach of the agreement by the other, whether it exceeds or falls short of 

actual damages.” Time Warner Entm’t Co., v. Whiteman, 802 N.E.2d 886, 893 

(Ind. 2004). “A typical liquidated damages provision provides for the forfeiture 

of a stated sum of money upon breach without proof of damages.” Id.

[36] The Knowles Agreement included the following liquidated damages provisions

for breach of the non-compete or non-recruitment clauses:

[11.b.] In the event [Knowles] breaches [the non-compete 

clauses] of this Agreement and the customer to which such 

breach pertains terminates, withdraws or reduces its business 

with [ASI] or purchases any Competing Products/Services from 

[Knowles] or any entity with which [Knowles] is then employed 

or otherwise affiliated as a result of such breach (each such 

incident a “Company Customer Loss Breach”) then, with respect 

to each Company Customer Loss Breach, [Knowles] shall pay to 

 

3

 We commend the trial court for meticulously organizing the issues and thoroughly discussing the reasons 

for its decision in a detailed sixty-five-page Order, which, indeed, facilitated our review of this case.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 21 of 48

[ASI] liquidated damages in an amount equal to forty five 

percent (45%) of all fees and other amounts that [ASI] billed to 

such customer during the 12-month period immediately 

preceding such breach. . . . [ASI] and [Knowles] agree (i) that the 

damages resulting from a Company Customer Loss Breach

would be difficult to quantify with precise measurement, (ii) that 

the foregoing liquidated damages are a reasonable estimate of the 

damages [ASI] would incur as a result of a Company Customer 

Loss Breach and (iii) that such liquidated damages do not, and

are not intended to, constitute a penalty. . . . 

[11.c.] In the event [Knowles] hires or employes, or assists any 

person or entity in the hiring or employment of, any employee of 

[ASI] in violation of the restrictions set forth in [the nonrecruitment clause] of this Agreement, or otherwise engages in 

any conduct that violates [the non-recruitment section] which 

results in an employee terminating his/her employment with 

[ASI] (each such incident an “Employee Loss Breach”), then, 

with respect to each such Employee Loss Breach, [Knowles] shall 

pay to the Company liquidated damages in an amount equal to 

fifty percent (50%) of such terminating employee’s total 

compensation from [ASI] for the twelve (12) months 

immediately preceding such employee’s termination of 

employment (or, if such terminating employee was employed by 

[ASI] for less than all of the preceding twelve (12) months, an 

amount equal to fifty percent (50%) of such employee’s salary or 

compensation rate, calculated on an annualized basis, at the time 

of the termination of such employee’s employment with [ASI]).

. . . [ASI] and [Knowles] agree (i) that the damages resulting 

from an Employee Loss Breach would be difficult to quantify 

with precise measurement, (ii) that the foregoing liquidated 

damages are a reasonable estimate of the damages [ASI] would 

incur as a result of an Employee Loss Breach and (iii) that such 

liquidated damges do not, and are not intended to, constitute a 

penalty.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 22 of 48

Corrected App. to Amended Appellant’s Br., Vol. III at 205-06. The Lancet 

and Day Agreements each included the following liquidated damages 

provision:

[ASI] spends considerable time and effort selecting and training 

its employees, one of [ASI’s] most valuable assets. [ASI] and its 

customers would suffer considerable harm if its employees were 

to leave [ASI]. Accordingly, [ASI] must take steps to protect its 

investment in employees. In consideration of your employment 

with [ASI], you agree that while you are employed by [ASI] and 

for a period of two (2) years thereafter (the “Covenant Period”), 

you shall not, solicit or endeavor to entice away, provide 

information to others purposely with the intent of helping them 

solicit or entice away, knowingly offer employment to, 

knowingly employ, or offer or conclude any contract for services 

with, any person who is employed by [ASI] at the date your 

employment with [ASI] ceases. You acknowledge that if you 

engage in conduct that violates these restrictions and causes an 

employee to terminate his/her employment with [ASI], then 

immediately upon demand of [ASI], you shall pay to [ASI] 

liquidated damages in an amount equal to 100% of such 

employee’s annual salary for the preceding calendar year (or, if 

such employee was not employed by [ASI] during the preceding 

calendar year, or was employed by [ASI] for less than all of the 

preceding calendar year, an amount equal to 100% of such 

employee’s salary, on an annualized basis, at the time of the 

termination of such employee’s employment with [ASI]). You 

further agree that the foregoing liquidated damages are a 

reasonable estimate of the damages that [ASI] would incur as a 

result of such violations, and that such liquidated damages do not 

constitute a penalty . . . .

Id., Vol. III at 121 (Day Agreement), 196 (Lancet Agreement).
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 23 of 48

[37] ASI has asserted that the HWC Parties solicited at least twenty-three ASI 

clients in violation of the non-recruitment clause of the Knowles Agreement 

and that seven employees terminated their employment at ASI as a result of 

recruitment efforts in violation of the Knowles, Lancet, and Day Agreements. 

ASI proffered that, with respect to the improper recruitment of its employees, 

the Knowles Agreement calls for liquidated damages of $272,165.46; the Day 

Agreement demands liquidated damages of $238,373.68; and the Lancet 

Agreement warrants liquidated damages of $176,812.65. Regarding the alleged 

violations of the non-compete provisions in the Knowles Agreement, ASI did 

not provide an estimate of liquidated damages; however, the trial court found 

that “ASI’s revenue streams suggest the liquidated damages could be in the 

range of millions of dollars.” Id., Vol. II at 50.

[38] Generally, liquidated damages clauses are enforceable “where the nature of the 

agreement is such that damages for breach would be uncertain, difficult, or 

impossible to ascertain.” Weinreb, 993 N.E.2d at 232. Although “[w]e are 

tolerant of provisions within contracts which provide for liquidated damages[,]” 

it is well established that “contractual provisions constituting penalties” are not 

enforceable. Id.; Coffman v. Olson & Co., 906 N.E.2d 201, 209 (Ind. Ct. App. 

2009), trans. denied. Whether a contract provision providing for liquidated 

damages is an unenforceable penalty is a question of law for the court to decide. 

Art Country Squire, L.L.C. v. Inland Mortgage Corp., 745 N.E.2d 885, 891 (Ind. Ct. 

App. 2001). The primary distinction between an unenforceable penalty 

provision and an enforceable liquidated damages provision “is that a penalty is 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 24 of 48

imposed to secure performance of the contract and liquidated damages are to be 

paid in lieu of performance.” Weinreb, 993 N.E.2d at 233.

[39] “In determining whether a contract provision constitutes liquidated damages or 

an unenforceable penalty, we consider the facts, the intention of the parties, and 

the reasonableness of the stipulation under the circumstances of the case.” Art 

Country Squire, L.L.C., 745 N.E.2d at 891. The parties’ use of words such as 

“‘damages,’ ‘penalty,’ ‘forfeiture,’ and ‘liquidated damages’ are not conclusive, 

but should be considered in connection with other provisions in the contract to 

determine the nature of the provisions.” Weinreb, 993 N.E.2d at 233. “Thus, 

even though the question is one of law, it may require resolution of underlying 

factual issues.” Art Country Squire, L.L.C., 745 N.E.2d at 891. Where such is 

the case, summary judgment is inappropriate. Indiana Restorative Dentistry, P.C. 

v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. 2015). “[D]espite the 

plethora of abstract tests and criteria for the determination of whether a 

provision is one for a penalty or liquidated damages, there are no hard and fast 

guidelines to follow.” Dean V. Kruse Found., Inc. v. Gates, 973 N.E.2d 583, 592 

(Ind. Ct. App. 2012), trans. denied.

[40] In this case, the trial court determined that the liquidated damages clauses in 

each of the employment contracts are unenforceable as a matter of law because 

they constitute penalties. Specifically, the trial court found:

I. Count I – Breach of Contract Claims Against Knowles, 

Lancet, and Day

* * *
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 25 of 48

b. Marlin A. Knowles:

* * * 

2. Liquidated damages

* * * 

This Court does find . . . as a matter of law that the liquidated 

damages provisions in the Knowles Agreement are punitive and 

thus unenforceable. The purpose behind liquidated damages is to 

allow parties to come together and agree on a set monetary 

damages amount that would be likely to make the aggrieved 

party mostly whole. This figure may not adequately account for 

injuries suffered by the aggrieved party; or it could exceed them if 

the aggrieved party is able to quickly move on following such a 

breach of contract. In either case, the damages are seen as part of 

the bargained for arrangement through the contract negotiations 

and should not be sued to create unreasonable penalties that 

would constitute an unforeseen consequence of breach.

The liquidated damages provision in the Knowles [Agreement] 

provides no such certainty. The clause allows damages to 

balloon out of control in the event of multiple employee exits, as 

has been the case here, regardless of the level of Knowles’ 

involvement or the amount of actual damages suffered by ASI. 

While the Court recognizes that this allows the clause to scale up 

damages to be commiserate [sic] with the number of employees 

involved, the valuation of the damages far exceeds what ASI 

could have reasonably expected to suffer. . . .

c. Jonathon Day

* * *

2. Liquidated Damages

The liquidated damages provision in the Day Agreement would 

hold Day liable for 100% of the salary of each employee that left 

ASI as a result of Day’s alleged actions. As this Court found 

with Knowles’ Agreement, the liquidated damages provision in 

the Day Agreement is unenforceable as a matter of law. This 

provision would subject Day to a damages figure of $238,373.68. 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 26 of 48

This figure is not reasonably related to any actual damages 

incurred as a result of Day’s alleged breach based on the evidence 

provided to this court. . . . As in the Knowles [A]greement, this 

Court finds the liquidated damages provision in the Day 

Agreement to be grossly disproportionate to damages designated 

by ASI and instead serves only to be a penalty to Day to threaten 

compliance. . . .

d. [David] Lancet

* * *

2. Liquidated Damages

The liquidated damages provision in the Lancet Agreement was 

the same as the provision in the Day Agreement. For reasons 

discussed earlier, the Court similarly finds Lancet’s liquidated 

damages provision to be unenforceable as a matter of law.

Corrected App. to Amended Appellant’s Br., Vol. II at 41, 50-55, 57-58.4

[41] In general, “damages recoverable in a breach of contract case . . . are limited to 

actual damages suffered.” Merrillville Conservancy Dist. ex rel. Bd. of Dirs. v. Atlas 

Excavating, Inc., 764 N.E.2d 718, 724 (Ind. Ct. App. 2002). Thus, the purpose 

 

4

 The trial court also found that the liquidated damages provision in each Agreement was akin to a “shotgun 

clause.” Corrected App. to Amended Appellant’s Br., Vol. II at 52-53, 57. In Seach v. Richards, Dieterle & Co., 

439 N.E.2d 208 (Ind. Ct. App. 1982), we discussed that liquidated damages provisions that are triggered by 

“acts of different degrees of importance or of no importance” but “nevertheless precipitate the same result” 

constitute “shotgun clauses” that should be treated as penalties. Id. at 215-16 (citation omitted). In Seach, the 

clause at issue was triggered by a violation or breach of any provision of the non-compete clause, which 

prohibited contacting, advising, visiting, or in any way soliciting the employer’s clients. The liquidated 

damages calculation for any violation was three times the employer’s gross annual billing to any such client. 

The court held the clause was a penalty. Id. at 216. In Seach, the act triggered the damages clause. Here, 

only a given result from the act triggers the clause. See, e.g., Corrected App. to Amended Appellant’s Br., Vol. 

III at 205 (Knowles Agreement, specifcying that liquidated damages provision applies if Knowles violates the 

non-compete clause and the client terminates, withdraws, or reduces its business with ASI as a result). 

Accordingly, we reject the trial court’s characterization of these clauses as shotgun clauses.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 27 of 48

of liquidated damages is to compensate for a breach where damages “would be 

uncertain and difficult to ascertain[,]” which is why liquidated damages 

provisions typically “provide[] for the forfeiture of a stated sum of money 

without proof of damages.” Harbours Condo. Ass’n v. Hudson, 852 N.E.2d 985, 

993 (Ind. Ct. App. 2006). We recognize that there is a contradiction between 

this purpose and the requirement that there be proportionality to the actual loss. 

Id. As a result, our court has determined that although “a party who seeks to 

enforce a liquidated damages clause need not prove actual damages,” it “may 

be required to show a correlation between the liquidated damages and actual 

damages in order to assure that a sum charged may fairly be attributed to the 

breach.” Id. “Generally, we look more favorably upon a liquidated damages 

provision where it appears from all the evidence that a good faith effort was 

made by both parties to determine a reasonable amount of liquidated damages 

and that the actual amount was uncertain or difficult to ascertain at the time of 

the execution of the agreement.” Art Country Squire, L.L.C., 745 N.E.2d at 891. 

The party seeking to enforce the liquidated damages provision bears the burden 

of demonstrating “some proportionality between the loss and the sum 

established as liquidated damages.” Weinreb, 993 N.E.2d at 234 (emphasis 

added).

[42] It is well established that “where the liquidated damages are ‘grossly 

disproportionate to the loss which may result from the breach or [are] 

unconscionably in excess of the loss sought to be asserted, [we] will treat the 

sum as a[n] [unenforceable] penalty rather than as liquidated damages.” Art 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 28 of 48

Country Squire, L.L.C., 745 N.E.2d at 891 (alterations in original). However, in 

Time Warner Entm’t Co., L.P. v. Whiteman, 802 N.E.2d 886 (Ind. 2004), our 

supreme court expressed 

some unease over any decision where what appears to be the 

freely bargained agreements of the parties are set aside. Fixing 

the respective rights and expectation of the parties as to damages 

makes economic and commercial sense. Enforcing such 

provisions would seem to conform to this Court’s longstanding 

recognition of the freedom of parties to enter into contracts and 

our presumption that contracts represent the freely bargained 

agreement of the parties.

Id. at 894-95. 

[43] For several reasons, we conclude the trial court erred in finding the liquidated 

damages provisions in the Agreements were an unenforceable penalty. First, 

these were individually negotiated agreements. We interpret a contract based 

on the terms of the instrument considered in light of all the facts and 

circumstances. Prall v. Indiana Nat. Bank, 627 N.E.2d 1374, 1377 (Ind. Ct. App. 

1994). We begin analyzing contract provisions with the presumption that a 

contract is the freely bargained agreement of the parties. Dexter Axle Co. v. Baan 

USA, Inc., 833 N.E.2d 43, 49 (Ind. Ct. App. 2005). We recognize a very strong 

presumption that freely negotiated contracts are enforceable, based on the 

policy that it is in the best interest of the public for courts not to unnecessarily 

restrict the freedom to contract. Zollman v. Geneva Leasing Assocs., Inc., 780 

N.E.2d 387, 391-92 (Ind. Ct. App. 2002). When we review a contract, the intent 

of the parties is determined from the four corners of the instrument if the 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 29 of 48

language is unambiguous. Id. at 392. Here, Knowles, Day, and Lancet all 

agreed via their employment contracts with ASI that in the event they breached 

their contractual obligations, the injury arising from such breach would be 

difficult to precisely quantify and the liquidated damages provision was a 

reasonable estimate of damages ASI would incur. They each acknowledged 

that the liquidated damages provision was not intended to be a penalty, but to 

compensate ASI for losses incurred by their breach. The language in each 

Agreement is unambiguous, and clearly indicates an intent by the parties that 

the amount listed in the Agreements would represent a proportional estimate of 

the damages that would be incurred by ASI if an employee violated the 

restrictive covenants contained therein. 

[44] Second, besides the general similarities in the language of the the Agreements, 

they each had different provisions reflecting the differing relationships between 

ASI and its various employees. The Terms and Conditions of Day’s and 

Lancet’s employment included only a restriction against recruiting ASI 

employees and a provision setting the liquidated damages for a breach at 100% 

of the previous year’s salary for any employee who leaves employment with 

ASI due to Day’s or Lancet’s efforts at recruitment. Corrected App. to 

Amended Appellant’s Br., Vol. III at 121, 196. Lancet’s agreement was 

changed when his position with the company changed so that he went from 

having non-recruitment and non-compete restrictions to just a non-recruitment 

restriction. In apparent recognition of Knowles higher position in the company

and his different responsibilities, the terms of his contract were broader –
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 30 of 48

encompassing contact with both ASI employees and clients after his separation 

from employment with ASI. The amount determined to be appropriate 

liquidated damages for Knowles’ violation of the non-compete as to ASI’s 

clients was 45% of that client’s business with ASI in the previous calendar year, 

and for hiring or employing any ASI employee was 50% of the departing 

employee’s annual salary. Id., Vol. III at 205-06. Thus, the liquidated damages 

provisions were not just boilerplate language inserted mechanically into every 

ASI contract but appear to be a fair consideration of the rights and 

responsibilities of each employee, the information with which each was 

entrusted, and the damage that could be done to ASI from a particular 

employee’s breach.

[45] With respect to Knowles’ more expansive contract and therefore more 

extensive exposure to liability, the backdrop against which the contract was 

signed is important. Knowles was a twenty-year employee of ASI. He had 

risen through the ranks at the company and was ultimately an equity partner 

and a member of the board of directors. In acknowledgment that he was privy 

to ASI’s trade secrets and confidential information, and to protect ASI’s 

business relationships and goodwill, see id., vol. III at 199, Knowles signed the 

employment agreement which included the non-compete, non-recruitment, and 

liquidated damages provisions when he became an equity partner. When 

Knowles left his employment with ASI, ASI bought out his equity in the 

company at a cost of approximately $150,000. There is no indication Knowles 

was unaware of the terms of this agreement or that there was a great disparity in 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 31 of 48

bargaining power between Knowles and ASI such that he signed the contract 

unwillingly. See Nylen v. Park Doral Apartments, 535 N.E.2d 178, 184 (Ind. Ct. 

App. 1989). In fact, there is evidence Knowles was very much aware of the 

non-compete and liquidated damages provisions of his contract, as he 

specifically acknowledged them in his resignation letter to ASI. See Corrected 

App. to Amended Appellant’s Br., Vol. III at 167. Knowles was a sophisticated 

party signing an agreement which gave him an equity interest in the company 

in exchange for his promise to protect the company and its assets. Day and 

Lancet may not have had bargaining power as great as Knowles when it came 

to signing an agreement with their employer, but significantly, their agreements 

were only two pages long, and there is no indication that they were not aware 

of or did not understand the restrictions and the damages provision, or that they 

were forced upon them under duress. Cf. Weaver v. American Oil Co., 257 Ind. 

458, 464, 276 N.E.2d 144, 148 (1971) (noting a contract provision should not be 

enforced if one party can show that the other party had a “prodigious amount” 

of bargaining power it used to its advantage and the contract provision in 

question was unknown or unexplained to the lesser party).

[46] Third, the actual damages caused by the recruitment of any one ASI employee, 

let alone multiple employees as happened here, are difficult to ascertain because 

the nature of the business ASI is in is highly dependent on cultivating and 

maintaining client relationships. See, e.g., Id., Vol. VI at 76-78 (Knowles 

acknowledging that the way to secure business is to build relationships and 

therefore goodwill with clients). During the hearing, ASI indicated that it 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 32 of 48

incurred expenses in recruiting and training new employees, and that its 

employees who joined HWC had billed a total revenue of $1,047,045 for ASI in 

their last year of employment. The fact that ASI is unable to quantify the costs 

of recruiting and training new employees to replace those lost to HWC, or to 

estimate how much revenue was lost in the two years after they left does not 

mean there are no such costs. When a company has recruited and trained an 

employee, it has incurred up-front costs it hopes to recover in the future as its 

investment in the employee begins to pay off with increased skill and enhanced 

client relationships. That employee leaving gives the benefits of the company’s 

training and the relationships the employee cultivated while in the company’s 

employ to a competitor, and even if the new employee brings in revenue, it is 

impossible to know if a more experienced employee with existing client 

relationships could have brought in more. Even though a certain amount of 

employee turnover is to be expected, this does not appear to be normal courseof-business employee turnover. ASI identified seven valuable employees lost 

not just to the competitive market, but to HWC specifically. The very fact that 

ASI is unable to quantify its costs in losing existing employees and recruiting 

and training new employees shows why a liquidated damages provision is 

appropriate. 

[47] Similarly, the nature of the process of bidding for and being awarded civil 

engineering contracts shows why damages are difficult to quantify on this front. 

The evidence establishes that it is standard in this industry for one client to use 

multiple civil engineering firms, even on the same project. ASI may have lost a 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 33 of 48

contract altogether due to HWC’s interaction with an ASI client or, due to 

HWC’s interference, it may have lost a percentage of a contract it was awarded. 

It is impossible to know how the contracts would have been awarded had HWC 

not had numerous contacts with ASI’s clients in violation of the non-compete 

agreement. By their very nature, liquidated damages clauses estimate in 

advance a specific sum of money to be recovered which may ultimately exceed 

or fall short of actual damages. Time Warner, 802 N.E.2d at 893. That in 

hindsight the amount may be too high or too low does not necessarily make the 

provision a penalty for either party.

[48] Finally, we note that the trial court focused almost exclusively on the dollar 

amount the HWC Parties could be liable for based on ASI’s allegations and the 

formula laid out in the liquidated damages provisions. ASI identified seven 

employees and at least eleven clients recruited and/or solicited by the HWC 

Parties over the course of approximately one year. That is a substantial number 

of potential breaches of the restrictive covenants. However, there is a causation 

element to each liquidated damages provision. The recruitment of an ASI 

employee must have resulted in the employee actually terminating his or her 

employment with ASI in order for liquidated damages to be collected. 

Knowles’ solicitation of an ASI client must have resulted in the client actually 

terminating, withdrawing, or reducing its business with ASI in order to invoke 

the liquidated damages provision. Our supreme court has stated that “the 

Court will almost always uphold [a liquidated damages clause for violation of a 

covenant not to compete] unless the amount is grossly disproportionate to the 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 34 of 48

loss and far beyond any possible damages that could be incurred.” Raymundo v. 

Hammond Clinic Ass’n, 449 N.E.2d 276, 284 (Ind. 1983) (emphasis added). 

Because liquidated damages do not have to be (and indeed, cannot be) exact, 

but only roughly proportional to the damage anticipated to be incurred, 

consideration of factors beyond the dollar amount is important to the 

evaluation of whether a liquidated damages provisions amounts to a penalty. 

Whether or not the HWC Parties conduct caused ASI employees to leave ASI 

and/or ASI clients to terminate or reduce their business with ASI is a question 

of fact, the resolution of which will ultimately determine whether the liquidated 

damages set in the employment contracts are roughly proportionate to the 

actual damage ASI incurred by their loss as employees or clients. ASI must 

prove that causation at trial in order to be entitled to liquidated damages, but 

we cannot categorically say on summary judgment that ASI is not entitled to 

any liquidated damages. 

[49] In sum, liquidated damages in this case serve exactly the purpose for which 

they were designed because:

• These were negotiated agreements, in which the parties agreed in clear 

and explicit terms that liquidated damages were appropriate.

• The relative bargaining power of the parties was reflected in the 

agreements, in that the agreements had different provisions and different 

damages calculations depending on the employee’s tenure and position.

• The actual damages are difficult to calculate because of the widespread 

and ongoing nature of the contacts between the HWC Parties and ASI 

employees and clients.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 35 of 48

• The actual damages are difficult to calculate because ASI was required to 

seek and train multiple new people due to the HWC Parties’ targeted 

recruitment efforts.

• The actual damages are difficult to calculate because the nature of the 

business means ASI could have lost only some or all of any one client’s 

business due to HWC’s interference.

Accordingly, we hold the trial court erred in declaring the liquidated damages 

provisions are unenforceable as a matter of law, and we reverse the trial court’s 

grant of summary judgment to the HWC Parties on this issue.

III. HWC’s Cross-Appeal

A. Tortious Interference with Contractual Relationship

[50] The HWC Parties challenge the trial court’s denial of their motion for summary 

judgment on the issue of tortious interference with a contractual relationship. 

This claim by ASI “refers to HWC’s alleged strategy to offer positions to ASI

employees in order [to] weaken ASI” despite the existence of the nonrecruitment clauses in the employment contracts. Corrected App. to Amended 

Appellant’s Br., Vol. II at 59. The trial court denied summary judgment as to

the Knowles Agreement but granted it as to the Lancet and Day Agreements 

and as to Mobley.

[51] It is long recognized in Indiana “that intentional interference with a contract is 

an actionable tort, and includes an intentional, unjustified interference by third 

parties with an employment contract.” Duty v. Boys & Girls Club of Porter Cty., 23 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 36 of 48

N.E.3d 768, 774 (Ind. Ct. App. 2014). This tort is reflective of the public policy 

“that contract rights are property and, under proper circumstances, are entitled 

to enforcement and protection from those who tortiously interfere with those 

rights.” Id. Proof of tortious interference with a contractual relationship 

requires satisfaction of the following elements: “(1) that a valid and enforceable 

contract exists; (2) the defendant’s knowledge of the existence of the contract; 

(3) defendant’s intentional inducement of breach of the contract; (4) the absence 

of justification; and (5) damages resulting from defendant’s wrongful 

inducement of the breach.” Id.

[52] On cross-appeal, the HWC Parties contend that they are entitled to summary 

judgment with respect to the Knowles Agreement5 because the undisputed facts 

negate an essential element of ASI’s tortious interference claim—namely, that 

HWC was justified in recruiting ASI’s employees notwithstanding whether it 

would breach any of the employment agreements at issue. A plaintiff must do 

more than merely assert that the defendant’s conduct was unjustified in order to 

establish tortious interference with a contract. Morgan Asset Holding Corp. v. 

CoBank, ACB, 736 N.E.2d 1268, 1272 (Ind. Ct. App. 2000). Rather, in 

determining whether a defendant’s conduct was justified, our supreme court has 

previously consulted the Restatement, which 

 

5

 Although the HWC Parties also argue that the trial court should have granted summary judgment for them 

with respect to the Lancet Agreement, it appears from the trial court’s Order that it did so.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 37 of 48

recommends the consideration of the following factors: “(a) the 

nature of the defendant’s conduct; (b) the defendant’s motive; (c) 

the interests of the plaintiff with which the defendant’s conduct 

interferes; (d) the interests sought to be advanced by the 

defendant; (e) the social interests in protecting the freedom of 

action of the defendant and the contractual interests of the 

plaintiff; (f) the proximity or remoteness of the defendant’s 

conduct to the interference; and (g) the relations between the 

parties.”

Winkler v. V.G. Reed & Sons, Inc, 638 N.E.2d 1228, 1235 (Ind. 1994) (quoting 

Restatement (Second) of Torts § 767 (1977)). “[T]he weight to be given to each 

consideration may differ from case to case depending upon the factual 

circumstances.” Winkler, 638 N.E.2d at 1235.

[53] In its Order, the trial court stated:

While the Court recognizes that HWC may have made the offers 

of employment for legitimate business reasons, it gives pause to 

allow the evidence designated to grant summary judgment. 

HWC has argued that it was motivated solely by business 

interests when it was recruiting ASI employees. With the 

evidence present, the Court cannot find such as a matter of law. 

There is clearly a genuine issue of fact created by the volume of 

evidence showing that HWC officers were specifically targeting 

ASI employees. Knowles and Day both identified several targets 

at ASI to work at HWC and shared their thoughts with Jolliffe, 

Baker, and Hancock. They held frequent discussions about 

status on securing people to move. The nature of the 

communications exchanged between Knowles, Jolliffe, Baker, 

Day, and Lancet, further create a genuine issue of material fact 

as to whether HWC was motivated by the opportunity to 

severely harm ASI as a result of HWC’s expansion.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 38 of 48

Corrected App. to Amended Appellant’s Br., Vol. II at 66.

[54] We have indicated in numerous cases that the absence of justification is 

established by demonstrating “that the interferer acted intentionally, without a 

legitimate business purpose, and the breach is malicious and exclusively 

directed to the injury and damage of another.” Haegert, 953 N.E.2d at 1234-35. 

We have found that “the existence of a legitimate reason for the defendant’s 

actions provides the necessary justification to avoid liability.” Morgan Asset 

Holding Corp., 736 N.E.2d at 1272. Yet, our court has also criticized the 

“malicious standard” and has instead considered the absence of justification 

based on “whether the defendant’s conduct was fair and reasonable under the 

circumstances,” which requires analyzing the Restatement factors. Coca-Cola 

Co. v. Babyback’s Int’l, Inc., 806 N.E.2d 37, 51 (Ind. Ct. App. 2004), vacated on 

other grounds by 841 N.E.2d 557 (Ind. 2006) (summarily affirming our court’s 

decision on the tortious interference claim). In reconciling the seemingly 

different standards adopted by our courts for evaluating the absence of 

justification element, we find that the Restatement factors have been 

consistently applied in tortious interference cases. These factors—specifically, 

the nature of the defendant’s conduct, the defendant’s motive, and the interests 

sought to be advanced by the defendants—would necessarily include an 

analysis of any evidence that the defendant acted maliciously and without a 

legitimate business purpose, as well as whether the defendant acted fairly and 

reasonably under the circumstances. See Haegert, 953 N.E.2d at 1230; Coca-Cola 

Co., 806 N.E.2d at 51.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 39 of 48

[55] We agree with the trial court and ASI that there are genuine issues of material 

fact that preclude the HWC Parties’ request for summary judgment on this 

count. There is evidence that HWC may have had a legitimate business 

purpose that would have justified recruiting ASI’s employees despite the nonrecruitment clauses in the various employment contracts. Testimony indicated 

that HWC sought to expand its transportation department and had open 

positions that it needed to fill with skilled employees. For employees who had 

grown unhappy at ASI, HWC represented better pay and more opportunity for 

growth. However, there is also evidence that HWC may have specifically 

targeted its competitor’s employees for improper reasons. Knowles and Day 

maintained lists of ASI employees as potential recruits, and there was ongoing 

encouragement of efforts to recruit ASI employees. The evidence establishes 

that the HWC Parties acknowledged the impact of their actions on ASI and 

called for discretion in their recruiting efforts to prevent “the sharks [at ASI 

from] smell[ing] the blood.” Corrected App. to Amended Appellant’s Br., Vol. 

VI at 45. The HWC Parties—particularly Knowles and Day—were amused by 

ASI’s struggle to retain staff and having to hold an “impromptu war room 

meeting.” Id., Vol. VII at 14. Thus, given the numerous factors to consider, 

this task is best left to a trier of fact. We conclude that the trial court properly 

denied the HWC Parties’ motion for summary judgment on ASI’s claim of 

tortious interference with a contractual relationship by HWC.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 40 of 48

B. Breach of Contract

[56] Finally, the HWC Parties claim that the trial court should have granted its 

motion for summary judgment with respect to ASI’s breach of contract claims 

based on the Knowles, Day, and Lancet Agreements. To prevail on a breach of 

contract claim, the plaintiff must prove “the existence of a contract, the 

defendant’s breach thereof, and damages.” Gatto v. St. Richard Sch., Inc., 774 

N.E.2d 914, 920 (Ind. Ct. App. 2002). Here, the HWC Parties contend that 

they have successfully negated the element of damages such that ASI cannot 

prevail on this claim as a matter of law.

[57] Damages for breach of contract are “limited by what is reasonably foreseeable 

at the time the parties entered into the contract.” Belle City Amusements, Inc. v. 

Doorway Promotions, Inc., 936 N.E.2d 243, 249 (Ind. Ct. App. 2010). 

Additionally, “[i]t is axiomatic that a party injured by a breach of contract may 

recover the benefit of its bargain but is limited in its recovery to the loss actually 

suffered.” L.H. Controls, Inc. v. Custom Conveyor, Inc., 974 N.E.2d 1031, 1043 

(Ind. Ct. App. 2012). “[A]n award of damages for lost profits cannot be based 

upon mere conjecture or speculation.” Id. Rather, an award of damages must 

be based on “some fairly defined standard, such as cost of repair, market value, 

established experience, rental value, loss of use, loss of profits, or direct 

inference from known circumstances. The damages claimed also must be the 

natural, foreseeable, and proximate consequence of the breach.” Id. (internal 

citation omitted). “Merely alleging that [p]laintiffs have not produced evidence 

of damages is insufficient to” warrant summary judgment. Morris v. Crain, 71 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 41 of 48

N.E.3d 871, 880 (Ind. Ct. App. 2017). As movants, the HWC Parties were 

required to make a prima facie showing that ASI has not suffered damages 

before the burden shifted to ASI to come forward with evidence of damages. 

Id.

[58] In this case, the HWC Parties contend the record is devoid of any evidence that 

ASI suffered actual harm. They argue that ASI hired replacement employees 

and “still made the money it would have made off of billing the work of the 

employees who departed. Consequently, ASI didn’t lose a cent from HWC’s 

successful recruitment of these employees.” Appellees’ Brief at 37. The HWC

Parties also assert that there was not “a single instance” established where any 

ASI client withdrew, terminated, or reduced its business with ASI because of 

Knowles’ improper solicitation. Id. at 39.

[59] Regarding the loss of seven employees, ASI did not quantify the damages it 

purportedly suffered to replace them and train the new recruits; ASI did 

contend, however, that it somehow lost the $1,047,045 in revenue that the

valuable departing employees had billed in the prior year. In addition, as found 

by the trial court, ASI presented evidence that since Knowles joined HWC,

ASI’s gross revenue from Hamilton County has been declining. 

In 2013, the first full year before Knowles left, ASI achieved 

gross bookings with Hamilton County of approximately 

$258,000. Since Knowles has left ASI, the numbers have 

steadily, and drastically, decreased: approximately $194,000 in 

2014, $126,000 in 2015, and $0 to date in 2016. . . . Further, of 

the approximately $126,000 in ASI’s booked contracts in 2015 

with Hamilton County, none were for construction inspection 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 42 of 48

projects, and just $19,528 stemmed from bridge design projects, 

representing a more-than-75% decrease as compared to 2014.

Corrected App. to Amended Appellant’s Br., Vol. II at 31. ASI further alleged 

that it has suffered other “intangible damages” as a result of HWC causing a 

disruption in ASI’s operations, in addition to lost goodwill, administrative 

expenses, and “an erosion of its pipeline of . . . key clients.” Appellant’s 

Combined Response and Reply Br. at 43-44.

[60] The trial court noted

that generating business for civil engineering firms is more 

complicated than simply hanging out a shingle and selling 

services to interested parties. Projects are rarely awarded to one 

firm, and multiple firms may work in different roles on a single 

development. While merit and effective bidding play a role in 

winning contracts for these firms, relationships with clients play a 

crucial role as well by cultivating a trust in a firm’s efficacy.

Corrected App. to Amended Appellant’s Br., Vol. II at 46. Thus, the trial court 

determined that

[w]hile ASI could have provided more information regarding 

actual damages, ASI has sufficiently created a genuine issue of 

material fact by asserting it has been damaged through the 

unexpected departure of employees as well as a decrease in 

revenue from certain clients with whom Knowles was involved at 

ASI. ASI has raised sufficient evidence to at least allow this 

determination to come before a trier of fact.

Id., Vol. II at 49. We agree.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 43 of 48

[61] Indiana’s summary judgment standard “consciously errs on the side of letting 

marginal cases proceed to trial on the merits, rather than risk short-circuiting 

meritorious claims.” Hughley, 15 N.E.3d at 1004. Here, although there is 

minimal evidence of ASI’s actual losses, and there is discrepancy in whether 

ASI accurately portrayed its Hamilton County business, ASI has raised issues 

that must be resolved by a fact-finder. See id. Therefore, we conclude that the 

trial court properly denied summary judgment to the HWC Parties on the 

breach of contract claims because they did not negate the element of damages.

Conclusion

[62] Based on the foregoing, we conclude that the HWC Parties were not entitled to 

summary judgment on the matter of liquidated damages, and we reverse and 

remand that issue to the trial court for further proceedings. And because there 

are genuine issues of material fact as to ASI’s claims of tortious interference and 

breach of contract, the HWC Parties are not entitled to summary judgment on 

those issues, either.

[63] Affirmed in part and reversed in part.

Pyle, J., concurs.

Riley, J., concurs in part and dissents in part.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 44 of 48

I N T H E

COURT OF APPEALS OF INDIANA

American Consulting, Inc. 

d/b/a American Structurepoint, 

Inc.,

Appellant-Plaintiff,

v.

Hannum Wagle & Cline 

Engineering, Inc. d/b/a HWC 

Engineering, Inc., Marlin A. 

Knowles, Jr., Jonathan A. Day, 

Tom Mobley, and David Lancet,

Appellees-Defendants.

Court of Appeals Case No.

49A02-1611-PL-2606

Riley, Judge, concurring in part and dissenting in part.

[64] I agree with the majority’s decision that the HWC Parties are not entitled to 

summary judgment with respect to ASI’s claims of tortious interference and 

breach of contract. Therefore, I concur with respect to these issues. However, I 

respectfully dissent from the majority’s determination that the trial court 

erroneously granted summary judgment to the HWC Parties on ASI’s claims 

for liquidated damages.
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 45 of 48

[65] In this case, the trial court determined that the liquidated damages clauses in 

each of the employment contracts are unenforceable as a matter of law, in part, 

because the liquidated damages sought by ASI are disproportionate and not 

reasonably related to expected actual damages. Thus, the trial court concluded

that the liquidated damages provisions in each of the three employment 

agreements at issue should be considered a penalty designed to force 

compliance with the contracts. I agree.

[66] It is well established that “where the liquidated damages are ‘grossly 

disproportionate to the loss which may result from the breach or [are] 

unconscionably in excess of the loss sought to be asserted, [we] will treat the 

sum as a[n] [unenforceable] penalty rather than as liquidated damages.’” Art 

Country Squire, L.L.C. v. Inland Mortg. Corp., 745 N.E.2d 885, 891 (Ind. Ct. App. 

2001) (alterations in original). The party seeking to enforce the liquidated 

damages provision bears the burden of demonstrating “some proportionality 

between the loss and the sum established as liquidated damages.” Weinreb v. 

Fannie Mae, 993 N.E.2d 223, 234 (Ind. Ct. App. 2013), trans. denied. 

Furthermore, our court has determined that while “a party who seeks to enforce 

a liquidated damages clause need not prove actual damages,” it “may be 

required to show a correlation between the liquidated damages and actual 

damages in order to assure that a sum charged may fairly be attributed to the 

breach.” Harbours Condo. Ass’n v. Hudson, 852 N.E.2d 985, 993 (Ind. Ct. App. 

2006).
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 46 of 48

[67] I find that ASI has failed to meet its burden of establishing a correlation

between the amount of liquidated damages it seeks and any actual loss. 

Liquidated damages must be designed to compensate for the actual damages 

likely to result from a breach, not to create a burden that necessarily compels 

compliance with a contract. See Gershin v. Demming, 685 N.E.2d 1125, 1128 

(Ind. Ct. App. 1997). Regarding the employees who were allegedly recruited in 

violation of employment agreements, ASI argues that it lost seven valuable 

employees but did not otherwise specify how it had financially suffered. 

During the hearing, ASI indicated that it incurred expenses in recruiting and 

training new employees, but it did not quantify these costs. ASI also pointed 

out that its employees who joined HWC had billed a total revenue of 

$1,047,045 for ASI in their last year of employment, but ASI gave no indication 

that it was unable to find replacement employees with the same qualifications 

and billing capacity or that it expected to lose any revenue as a result of the 

HWC Parties’ recruitment efforts. Essentially, ASI’s evidence of loss amounts 

to the cost of employee turnover that may be expected in any competitive 

market. While I do not disagree that hiring seven new employees with the 

same skill set and earning potential would result in certain costs, any loss that 

may have resulted due to a breach of the employment contracts is clearly 

grossly disproportionate to the $687,351.79 sought in liquidated damages.

[68] Moreover, any argument that the liquidated damages provisions are reasonable 

is diminished by the fact that ASI has identified the same employee’s 

recruitment as a violation of multiple employment agreements. To illustrate, 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 47 of 48

ASI has indicated that it is entitled to liquidated damages of 150% of Lancet’s 

salary because he was purportedly recruited in violation of both the Knowles 

and Day Agreements. Similarly, Mobley, Clinton Graham, Melissa Walker, 

and Amber Tolle were allegedly recruited in violation of the Knowles, Day, and

Lancet Agreements; thus, ASI essentially seeks 250% of their respective salaries 

in liquidated damages from the HWC Parties. Again, this is grossly 

disproportionate to any anticipated actual loss. Moreover, to hold any of the 

above individuals accountable for paying such substantial sums of money in the 

event he breached his employment contract is a clear attempt to compel 

performance of the contract, which constitutes a penalty.

[69] As for Knowles’ purported violations of his non-compete restrictions involving 

the solicitation of ASI clients, I again find no correlation between 45% of the 

solicited client’s previously billed fees and ASI’s “pre-estimate[d] loss” for a 

breach. Merrillville Conservancy Dist. ex rel. Bd. of Dirs. v. Atlas Excavating, Inc., 764 

N.E.2d 718, 725 (Ind. Ct. App. 2002). Considering the specific facts of this 

case, especially the nature of the bidding process for civil engineering contracts, 

the award of a contract to HWC did not simultaneously equate to a loss of 

work for ASI. The evidence establishes that it is standard in the industry for 

one client to utilize multiple civil engineering firms, even on the same project. 

Both HWC and ASI provide services for public and private clients that award 

multi-million-dollar contracts, such as, for example, INDOT. The HWC 

Parties note evidence that ASI’s relevant “trailing [twelve]-month revenue with 

INDOT [totaled] approximately $5,000,000.” (Appellees’ Br. p. 18). The 
Court of Appeals of Indiana | Opinion 49A02-1611-PL-2606 | May 23, 2018 Page 48 of 48

HWC Parties also point out that HWC was awarded two contracts from 

INDOT in the year following Knowles’ departure from ASI, for both of which 

ASI was not eligible because of its other INDOT contracts. One of the INDOT 

contracts awarded to HWC was for $198,350 while the other had a cap of 

$1,000,000. Yet, based on the language of the liquidated damages provision, 

Knowles would be responsible for paying $4,500,000 (45% of $5,000,000 for 

each breach) to ASI for this client alone. This is more than double the amount 

of the contracts that HWC was awarded and in spite of evidence that ASI was 

not eligible to receive these contracts. Thus, the liquidated damages provision 

fails to set forth a reasonable estimate of ASI’s actual anticipated loss and is 

penal in nature.

[70] Accordingly, the liquidated damages clauses at issue are clearly intended to 

operate as punishment for a breach of the employment contracts rather than as 

a reasonable estimation of ASI’s actual damages. Therefore, I would hold that 

the liquidated damages clauses in each of the agreements at issue are 

unenforceable as a matter of law.6 The trial court properly granted summary 

judgment to the HWC Parties on this issue, and I would affirm in all respects.

 

6

 However, this holding would not extinguish ASI’s claim for actual damages in the event that a breach of 

contract is established. See Hahn v. Drees, Perugini & Co., 581 N.E.2d 457, 463 (Ind. Ct. App. 1991).