Court of Appeals of Indiana | Opinion 20A-PL-925 | December 9, 2020 Page 1 of 12

ATTORNEYS FOR APPELLANT

Peter J. Rusthoven

John R. Maley

J. Curtis Greene

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Daniel R. Lombard

Chicago, Illinois

Andrew W. Hull

Jason L. Fulk

Indianapolis, Indiana

Paul D. Clement

Washington, DC

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff/Defendant,

v.

International Business Machines

Corporation,

Appellee-Defendant/Plaintiff.

December 9, 2020

Court of Appeals Case No.

20A-PL-925

Appeal from the Marion Superior 

Court

The Honorable Heather A. Welch, 

Judge

Trial Court Cause No.

49D01-1005-PL-21451

Altice, Judge.
Court of Appeals of Indiana | Opinion 20A-PL-925 | December 9, 2020 Page 2 of 12

Case Summary

[1] Despite the complex history of this case, which has entered its second decade 

and culminated in this fourth appeal, the question before us is rather simple.

Did the Supreme Court mean what it said when it expressly affirmed the trial 

court’s 2017 final judgment on all issues? Or, as suggested by the State, did the 

Supreme Court carelessly use – three times in the Court’s relatively short 

opinion – the “generic ‘we affirm’ statement”, Appellant’s Reply Brief at 11, and

really intend to reverse the trial court’s judgment regarding post-judgment 

interest and remand? The answer is clear. The Supreme Court affirmed the 

trial court’s judgment in all respects, and the State’s attempt to seek an 

additional award of over $4.3 million in post-judgment interest from 

International Business Machines Corporation (IBM) based on application of a 

novel calculation “on remand” is baseless.

[2] We affirm.

Facts & Procedural History

[3] Once again, an appeal from the “seemingly never-ending saga between the 

State and IBM” has come before us. IBM v. State, 112 N.E.3d 1088, 1092 (Ind. 

Ct. App. 2018), summarily aff’d in part and vacated in part, 124 N.E.3d 1187 (Ind. 

2019), modified on reh’g, 131 N.E.3d 609 (Ind. 2019). A Cliffs Notes version of 
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the history of this case follows, drawn from the plethora of previous appellate 

opinions in this matter.

[4] In December 2006, the State of Indiana, acting on behalf of the Indiana Family 

and Social Services Administration, entered into a ten-year, $1.3 billion 

contract with IBM to modernize and improve the State’s welfare system. Less 

than three years later, the State terminated the contract citing IBM performance 

issues. The parties, in 2010, separately sued each other for breach of contract in 

Marion County Superior Court, and the actions were consolidated.

[5] The trial court, Judge David Dreyer presiding, granted partial summary 

judgment in favor of IBM for $40 million in assignment fees.1

 Then, after a sixweek bench trial in early 2012, the trial court entered final judgment on July 18, 

2012, finding no material breach on IBM’s part and awarding IBM additional 

damages from the State including, among other things, about $9.5 million in 

equipment fees. Both parties appealed and the appeal eventually made its way 

to our Supreme Court. In State v. IBM, 51 N.E.3d 150, 153 (Ind. 2016) (IBM I), 

the Supreme Court affirmed the award to IBM for assignment and equipment 

fees, totaling slightly over $49.5 million, but reversed other awards to IBM. 

The Court also reversed the trial court’s finding that IBM did not materially 

breach the contract and remanded to the trial court to “determine the amount of 

1 While the first trial was pending, the State pursued an interlocutory appeal directly to the Supreme Court

through emergency transfer concerning whether the Governor could be compelled to submit to a deposition. 

See State v. IBM, 964 N.E.2d 206 (Ind. 2012).
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fees IBM is entitled to for Change Orders 119 and 133, and for calculation of 

the parties’ damages consistent with this opinion, including any appropriate 

offsets to the State as a result of IBM’s material breach of the [contract].” Id. at 

168-69.

[6] After remand, the State sought and eventually obtained, by order of the 

Supreme Court, a change of judge.

2 Judge Heather Welch then presided and 

held a full-day hearing on damages and considered both pre- and post-hearing 

submissions. In sum, the State argued that it was entitled to over $173 million 

in damages and that the previously awarded $49.5 million in damages to IBM, 

which was upheld on appeal, along with a stipulated amount for change order 

fees, should be offset against the State’s damages. Because IBM had no amount 

due after setoff, the State argued that IBM was entitled to no post-judgment 

interest. IBM, by contrast, claimed that it was entitled to post-judgment interest 

on the damages it was awarded in 2012 that were not disturbed on appeal.

[7] On August 4, 2017, the trial court issued its judgment on remand in an 83-page 

order. The court awarded the State $128 million in total damages and offset 

that amount by the damages due IBM, which totaled $49,821,891 for 

assignment fees, equipment fees, and change order fees. Relevant for our 

purposes, the trial court rejected IBM’s request for post-judgment interest on the 

2 IBM opposed the change of judge and the trial court refused to grant it. Thus, the State filed an original 

action with the Supreme Court for a writ compelling the trial court to vacate all orders issued since 

certification of IBM I and to grant the motion for change of judge, which the Court granted. State v. Marion

Superior Court, 54 N.E.3d 995 (Ind. 2016).
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$49.5 million award dating back to 2012 and expressly determined that IBM 

was entitled to $0 in post-judgment interest. The State, on the other hand, was

awarded post-judgment interest at an 8% annual rate on the net damages award 

of $78,178,109.

[8] Both parties again appealed, posing a combined five issues for review. This 

court affirmed the trial court’s 2017 order in all respects except for the 

determination regarding post-judgment interest. IBM, 112 N.E.3d 1088. We 

concluded that IBM was entitled to post-judgment interest on the $49.5 million 

damages award entered in 2012, which had remained undisturbed on appeal, 

and we, therefore, reversed the trial court on this issue and remanded for 

calculation of the post-judgment interest due IBM based on the 2012 award. Id. 

at 1103.

[9] The Supreme Court granted transfer and addressed only the post-judgment 

interest issue, summarily affirming the other portions of our opinion. 

Specifically, in the beginning of its original opinion issued on June 26, 2019, the 

Court stated as follows:

Today we address one of the issues raised: whether IBM is 

entitled to post-judgment interest on its $49.5 million damages

award running from the date of the original judgment in 2012 or 

running from the judgment on remand. Finding that the original 

2012 judgment was not “final,” we hold that the post-judgment 

interest due to IBM runs from the judgment on remand. We 

summarily affirm the Court of Appeals on all other issues and 

affirm the trial court on all issues.
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IBM, 124 N.E.3d at 1188. 

[10] The Supreme Court expressly disagreed with our court’s analysis regarding 

post-judgment interest because we relied on a case – Beam v. Wausau Ins. Co., 

765 N.E.2d 524 (Ind. 2002) – that applied Ind. Code § 24-4.6-1-101, the default

statute dealing with post-judgment interest, rather than Ind. Code § 34-13-1-6, 

which governs interest on money judgments against the State.3

 Applying the 

correct statute, the Court explained:

Here, the relevant inquiry pursuant to Indiana Code section 34-

13-1-6 is whether there was a final decree or judgment. A final 

judgment “disposes of all issues as to all parties thereby ending 

the particular case.” Georgos v. Jackson, 790 N.E.2d 448, 451 

(Ind. 2003).

At the time of remand, all the issues were not disposed of as this 

Court’s opinion in IBM I did two things: 1) it reversed the trial 

court on the issue of whether IBM’s breach of the [contract] was 

material; and 2) remanded to the trial court to calculate 

appropriate damages as well as offsets. While IBM wants us to 

consider its suit against the State separate and apart from State’s 

suit, the two arise out of the same facts and circumstances and 

are inextricably tied. Case law is clear that a final judgment 

disposes of “all issues as to all parties.” Id. (quoting Indiana 

Appellate Rule 2(H) (emphasis added). Not all the issues as to 

all parties were resolved at the time of remand and further, what 

3 I.C. § 34-13-1-6 provides: 

Whenever, by final decree or judgment, a sum of money is adjudged to be due any person from 

the state, an execution shall not issue but the judgment shall draw interest at an annual rate of 

six percent (6%) from the date of the adjournment of the next ensuing session of the general 

assembly until an appropriation is made by law for the payment and the judgment is paid.
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was due and owed to IBM was necessarily contingent upon what 

damages were due the State for the breach. IBM could have recovered 

money from the State if the State’s damage award was less than what 

was awarded to IBM or [the] IBM award could have simply been applied 

to offset what was owed to the State. In Beam, we stated the rationale 

for awarding post-judgment interest as [o]f the date of the 

original judgment when it has not been reversed: it “compensates 

plaintiffs for the loss of money that has been determined to be 

have rightfully belonged to them throughout the time of the 

pending appeal.” Beam, 765 N.E.2d at 534. Here, there is no 

money that rightfully belonged to IBM as the amount awarded to it may 

have been and ultimately was, only an offset to what IBM owes the State.

Accordingly, looking at the statute, our case law and the facts of 

this case, post-judgment interest going back to the original 

judgment is inappropriate.

Id. at 1191 (emphases added).

[11] The Court then concluded its opinion as follows: “We hold that the postjudgment interest due to IBM runs from the judgment on remand. We 

summarily affirm the Court of Appeals on all other issues and affirm the trial 

court on all issues.” Id.

[12] IBM sought rehearing on both damages and post-judgment interest issues. The 

State opposed the petition for rehearing in all respects. Regarding postjudgment interest, the State indicated that “[t]here is no reason whatever to 

disturb the Court’s holding on this straightforward issue.” Appellee’s Appendix 

Vol. 2 at 29. The State suggested, however, that the Court “may wish to clarify

that [I.C. § 34-13-1-6]’s unambiguous terms do indeed control when IBM’s 

judgment against the State will begin to ‘draw interest.’” Id. The State noted 
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this case’s “protracted, contentious history” and advised that clarifying that 

IBM’s judgment did not start to draw interest until the adjournment of the 2018 

legislative session would “forestall any effort to lift the Court’s concluding 

statement from its statutory context” and “prevent yet further litigation and 

delay in a case that must come to a close.” Id. 

[13] On October 10, 2019, the Supreme Court granted rehearing in part and issued 

an order modifying the concluding paragraph of its opinion as follows:

We hold that the post-judgment interest due to IBM runs stems

from the judgment on remand. Under Indiana Code section 34-

13-1-6, the judgment “draw[s] interest at an annual rate of six 

percent (6%) from the date of the adjournment of the next 

ensuing session of the general assembly....” Following the 

judgment in this case on August 4, 2017, the next ensuing session 

of the General Assembly adjourned on March 14, 2018. 

Therefore, the post-judgment interest due to IBM runs from 

March 14, 2018. We summarily affirm the Court of Appeals on 

all other issues and affirm the trial court on all issues.

IBM, 131 N.E.3d at 609-10 (additions indicated by underlined text and deletion 

denoted by stricken text). Contemporaneous with entry of this order, the Court 

filed its opinion on rehearing reflecting these limited changes. See IBM v. State, 

138 N.E.3d 255, 259 (Ind. 2019). The opinion was certified on December 5, 

2019.

[14] In the end, the clarification did not prevent further litigation. Rather, on 

December 18, 2019, the State filed a Verified Motion to Enter Final Judgment 

on Remand. The State argued that the Supreme Court did not “simply affirm 
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the 2017 Judgment’s ruling on post-judgment interest” but instead devised a

new calculation that required interest on the IBM and State judgments to be 

“calculated separately, based on the different statutes, interest rates and accrual 

dates” before any setoff. Appellant’s Appendix Vol. III at 40. By the State’s 

calculations, it was owed over $4 million in additional post-judgment interest.

[15] The parties extensively briefed the issue, and the trial court held a hearing on 

February 10, 2020. Thereafter, on March 9, 2020, the trial court issued an 

order denying the State’s motion, finding that “the Supreme Court affirmed the 

[trial court’s] original damages calculation, including the offset of damages 

prior to assessing post-judgment interest, and never explicitly remanded the 

case for further consideration.” Appellant’s Appendix Vol. II at 188-89. The State 

appeals from this order.

Discussion & Decision

[16] Directly contrary to the position it stridently held for a number of years, the 

State now contends that the damage awards should be considered separately, 

with post-judgment interest calculated and added before any setoff. That is, the 

interest due the State should be based on its gross award of $128 million at a 

rate of 8% from August 4, 2017, and the interest due IBM should be based on 

its award of approximately $49.8 million at a rate of 6% from March 14, 2018. 

The State argues that this bifurcated interest determination is required by the 

Supreme Court’s recent opinion on rehearing. We cannot agree. 
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[17] In her 2017 judgment, Judge Welch unambiguously determined that IBM was 

entitled to no post-judgment interest. This resulted from IBM’s award being 

entirely offset by the State’s greater award. The net amount was then entered as 

a final judgment in favor of the State with post-judgment interest accruing on 

that amount at 8% from August 4, 2017.

[18] The trial court’s determination regarding post-judgment interest was considered 

on appeal, first in our court and then by the Supreme Court. In fact, the only 

issue that the Supreme Court chose to address on transfer was interest, 

summarily affirming the other portions of this court’s opinion. Ultimately, the 

Supreme Court expressly affirmed the trial court. Leaving little doubt in its 

affirmance, the Court stated three times that it “affirm[ed] the trial court on all 

issues.” IBM, 138 N.E.3d at 256, 257, 259.

[19] The gist of the State’s appeal is that the Supreme Court, in actuality, reversed 

the trial court on this issue and remanded. This can’t be so. A plain reading of 

the Supreme Court’s opinion, and the trial court’s order which was affirmed, 

indicates that no post-judgment interest was due IBM because its damage 

award was zeroed out by the setoff. Indeed, the Court recognized that “what 

was due and owed to IBM was necessarily contingent upon what damages were 

due the State for the breach.” Id. at 259. Because IBM’s award was less than 

what was awarded to the State in the 2017 order, IBM’s award was simply 

applied to offset what was owed to the State. To be clear, “there is no money 

that rightfully belonged to IBM as the amount awarded to it ... was, only an 

offset to what IBM owes the State.” Id.
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[20] The Court reiterated that the rationale for awarding post-judgment interest is 

that “it ‘compensates plaintiffs for the loss of money that has been determined 

to be have rightfully belonged to them ....’” Id. (quoting Beam, 765 N.E.2d at 

534). As of entry of the 2017 judgment, the only party that had money owed to 

it was the State in the amount of $78,178,109 with post-judgment interest 

accruing at 8%.

[21] The modification made by the Supreme Court to the concluding paragraph of 

its 2019 opinion did not alter the fact that the trial court’s judgment in favor of 

the State and award of post-judgment interest was affirmed in its entirety. As 

discussed above, there was no judgment due IBM and, thus, no post-judgment 

interest on IBM’s offset award. The clarification, which did not disturb the 

Court’s holding on this straightforward issue, simply made clear that any 

money judgment due IBM from the State – of which there was none – would 

draw interest, pursuant to I.C. § 34-13-1-6, at a rate of 6% from the 

adjournment of the next ensuing session of the general assembly following entry 

of judgment. In this case, that date would be March 14, 2018. Without the 

clarification, the Court’s conclusion appeared to indicate, incorrectly, that the 

date would be the date of the judgment, August 4, 2017.4

 The Court’s 

understandable effort to avoid any erroneous implication regarding the 

applicable date from which interest runs on judgments against the State has, 

4 The date was relevant in the context of the issue being reviewed by the Supreme Court because IBM had 

argued, and this court had held, that post-judgment interest on IBM’s award ran from the 2012 judgment. 
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unfortunately, led to a remarkable misinterpretation by the State and 

continuation of litigation that should have long since ended. The trial court 

properly denied the State’s Verified Motion to Enter Final Judgment on 

Remand.

[22] Judgment affirmed.

Riley, J. and May, J., concur.