Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PL-2164 | June 13, 2018 Page 1 of 14

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Daniel J. Paul

Williams Barrett & Wilkowski, LLP

Greenwood, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Walbert W. Ferguson,

Appellant-Defendant,

v.

Teresa Green,

Appellee-Plaintiff.

June 13, 2018

Court of Appeals Case No.

49A04-1709-PL-2164

Appeal from the Marion Superior 

Court

The Honorable James B. Osborn, 

Judge

Trial Court Cause No.

49D14-1509-PL-32351

Barnes, Judge.
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Case Summary

[1] Walbert Ferguson appeals the trial court’s grant of summary judgment in favor 

of Teresa Green and the denial of his motion for summary judgment. We 

affirm in part, reverse in part, and remand.

Issue

[2] The restated issue before us is whether the trial court properly granted summary 

judgment to Green and denied it to Ferguson in a breach of contract action 

between the parties.

Facts

[3] Ferguson, who owned a trucking company, was involved in a romantic 

relationship with Green from the fall of 2010 to May 2012. During that time, 

Ferguson agreed to help Green enter the trucking business by purchasing a 

Peterbilt truck with a loan from Bank of the Ozarks and a Great Dane trailer 

with a loan from ACG Financing; in turn, Green was allowed to use the truck 

and trailer. She also apparently made some payments toward the loans used to 

purchase the truck and trailer. 

[4] On June 3, 2012, at the end of the parties’ relationship, they entered into a 

contract for Green to buy the truck and trailer from Ferguson. The loans from 

Bank of the Ozarks and ACG for the truck and trailer were not yet paid off, nor 

were they explicitly mentioned in the contract. An attorney for Green wrote 

and printed a contract, which Green then presented to Ferguson without the 

attorney present. In paragraph one of the contract, the truck and trailer were 
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identified by VIN. Next to the VIN for the truck, Ferguson handwrote “36 x 

1507.00,” and next to the VIN for the trailer he wrote “48 x 804.00.” App. Vol. 

II p. 7. Paragraph two of the contract provided:

PURCHASE PRICE. Buyer agrees to continue to pay Seller one 

thousand five hundred seven dollars ($1,507.00) per month for 

the truck, listed in 1(a) above, by cashier’s check, due on the 

seventh (7th) of each month, until such time as the balance of 

approximately forty four thousand dollars ($44,000.00) is paid in 

full, at which time Seller will transfer title of the truck to Buyer.

Buyer agrees to continue to pay Seller eight hundred four 

dollars ($804.00) per month for the refrigerated trailer, listed in 

1(b) above, by cashier’s check, due on the twenty fifth (25th) of 

each month, until such time as the balance of approximately 

twenty seven thousand dollars ($27,000.00) is paid in full, at 

which time Seller will transfer title of the refrigerated trailer to 

Buyer.

Id. at 7-8. The strikethroughs of the numerals in paragraph two were done by 

Ferguson. Ferguson would later say that he had scratched out the numerals 

because he was not entirely sure what the balance was for the truck and trailer. 

[5] Between March 2012 and February 2014, Green paid $43,788.65 in check or 

electronic fund transfers toward the truck. Through November 2012, Green 

made these payments directly to Ferguson; beginning in June 2013, Green paid 

Bank of the Ozarks directly. There was a gap between November 2012 and 

June 2013 when Green did not make payments toward the truck, except for 

possibly one for $2,600.00, which Ferguson disputes having been made. Green 
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also later claimed she paid Ferguson $4,521.00 in cash toward the truck, which 

Ferguson also disputes.

[6] On March 7, 2014, Bank of the Ozarks wrote Ferguson a letter informing him 

that it had released its lien from the truck and it had no further interest in the 

truck. Green thereafter demanded that Ferguson transfer title to the truck to 

her, but he refused to do so. Up until March 2014, Green had made regular 

payments of $810 monthly toward the trailer in a total amount of $21,060.00, 

with some of those payments having been made before the June 2012 contract. 

However, when Ferguson refused to transfer title to the truck to Green, she 

stopped making payments on the trailer. 

[7] On September 30, 2015, Green sued Ferguson, seeking specific performance to 

compel him to transfer title to the truck to her, as well as damages. Ferguson’s 

answer included a counterclaim that Green had breached the written contract 

as to both the tractor and the trailer by not making payments as required. 

Additionally, Ferguson stated a counterclaim that he and Green had entered 

into an oral contract for Green to reimburse Ferguson for credit card charges 

and other expenses he had incurred on Green’s behalf to help her begin her own 

trucking business; Ferguson later specified that these alleged expenses totaled 

$44,186.89.

[8] On January 18, 2017, Ferguson filed a motion for summary judgment as to 

Green’s claim against him and his counterclaims against her. After obtaining 

several extensions of time, Green filed her response on May 23, 2017. 
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Although only captioned as a response to Ferguson’s summary judgment 

motion, it also requested “that the Court enter summary judgment in favor of 

Buyer on Seller’s Counterclaims as well as on Buyer’s Complaint as to liability 

and damages . . . .” App. Vol. V p. 8. On June 20, 2017, Ferguson filed a 

motion for an extension of time to respond to Green’s purported cross-motion 

for summary judgment, so he could take Green’s deposition. The trial court 

originally granted this motion. However, upon Green’s motion for 

reconsideration, the trial court reversed itself and denied any extension to 

Ferguson.

[9] On September 12, 2017, the trial court granted summary judgment in favor of 

Green on her claim that Ferguson breached the written contract by not 

transferring title to the truck to her. It also concluded that Green was excused 

from further performance under the contract—i.e., she did not have to continue 

paying for the trailer—because of Ferguson’s breach of contract. The trial court 

also denied summary judgment for both parties on Ferguson’s counterclaim 

that Green breached an oral contract for repayment of expenses, finding 

genuine issues of material fact existed on that claim. 

[10] Ferguson appealed. On January 11, 2018, Green timely filed a request for an 

extension of time to file an appellee’s brief; this court granted the motion and 

extended the deadline to February 14, 2018. Green did not file a brief by this 

date. On March 20, 2018, Green filed a second motion for an extension of time 

to file a brief. Although this motion was filed after the original extended brieffiling deadline and Ferguson opposed any further extension, we exercised our 
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discretion to allow an additional period of time for Green to file a brief, until 

May 4, 2018. Still, Green has not filed a brief.1 We now proceed to decide this 

appeal.

Analysis

[11] As noted, Green has not filed an appellee’s brief. In such a case, we will not 

develop an argument on behalf of the appellee and may reverse if the appellant 

can demonstrate prima facie error. State v. Miracle, 75 N.E.3d 1106, 1108 (Ind. 

Ct. App. 2017). Prima facie error is error at first sight, on first appearance, or 

on the face of it. Id. This less stringent standard of review does not relieve us of 

our obligation to correctly apply the law to the facts in the record to determine 

whether reversal is required. Id.

[12] We review a summary judgment ruling de novo. Hughley v. State, 15 N.E.3d 

1000, 1003 (Ind. 2014). “Drawing all reasonable inferences in favor of . . . nonmoving parties, summary judgment is appropriate ‘if the designated evidentiary 

matter shows that there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law.’” Williams v. Tharp, 

914 N.E.2d 756, 761 (Ind. 2009) (quoting Ind. Trial Rule 56(C)). “A fact is 

‘material’ if 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 

 

1 After reviewing the multiple requests by Green’s counsel for extensions of time in the trial court as well as 

this court, we must express our concern over counsel’s inability to meet deadlines, and we advise him to be 

more diligent in the future.
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the truth, or if the undisputed material facts support conflicting reasonable 

inferences.” Id.

[13] A party seeking summary judgment in Indiana must “affirmatively negate” the 

opposing party’s claim. Hughley, 15 N.E.3d at 1003. “In essence, Indiana 

consciously errs on the side of letting marginal cases proceed to trial on the 

merits, rather than risk short-circuiting meritorious claims.” Id. at 1004. A 

party’s self-serving, sworn affidavit is sufficient to defeat summary judgment, 

even if it appears that party is unlikely to be successful at trial. Id. at 1005. 

A. Written Contract

[14] We first address whether the trial court correctly entered summary judgment in 

Green’s favor on her breach of contract claim against Ferguson for failing to 

transfer the truck title to her. When, as here, a trial court has entered summary 

judgment in a contract dispute, it necessarily has determined either that: 1) the 

contract is not ambiguous or uncertain as a matter of law and the trial court 

need only apply the terms of the contract; or 2) the contract is ambiguous, but 

the ambiguity may be resolved without the aid of factual determinations. 

Jenkins v. South Bend Cmty. Sch. Corp., 982 N.E.2d 343, 347 (Ind. Ct. App. 2013), 

trans. denied. When interpreting a contract, the primary goal is to determine the 

intent of the parties when they made the agreement. Celadon Trucking Servs., Inc. 

v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. App. 2017), trans. denied. Courts must 

examine the plain language of the contract, read it in context and, whenever 

possible, construe it in a way that renders every word, phrase, and term 

meaningful, unambiguous, and harmonious with the whole. Id. “Construction 
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of the terms of a written contract generally is a pure question of law.” Id. If 

contract language is unambiguous, courts may not look to extrinsic evidence to 

expand, vary, or explain the instrument but must determine the parties’ intent 

from the four corners of the instrument. Id.

[15] If, however, a contract is ambiguous, the parties may introduce extrinsic 

evidence of its meaning, and interpretation generally becomes a question of 

fact. Id. A mere disagreement about the meaning of a contract word or phrase 

does not make it ambiguous; an ambiguity arises only if reasonable people 

could differ as to its meaning. Id. Courts may properly consider all relevant 

evidence to resolve a contract ambiguity and to give effect to the intent of the 

parties when they entered into the contract. Id. Such evidence is evidence 

relating to a contract but not appearing on the face of the contract and may 

include statements between the parties or the circumstances surrounding the 

agreement. Id. “An ambiguous contract should be construed against the party 

who furnished and drafted the agreement.” Id.

[16] We readily conclude that there is an ambiguity in the contract terms with 

respect to how much Green was expected to pay for the truck and the trailer. 

The original, printed contract prepared by Green’s lawyer stated that Green was 

to pay “approximately” $44,000.00 for the truck and $27,000.00 for the trailer. 

App. Vol. II pp. 7-8. However, above this part of the contract, next to where 

the truck and trailer were identified by VIN, Ferguson wrote in for the truck “36 

x 1507.00,” and “48 x 804.00” for the trailer. Id. at 7. Thirty-six times 

$1,507.00 equals $54,252.00, and forty-eight times $804 is $38,592.00. 
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Ferguson asserts that Green actually was expected to pay closer to $54,252.00 

for the truck and $38,592.00 for the trailer and, therefore, he was not required to 

sign over the title to the truck when Green had paid only approximately 

$44,000.00 for the truck. 

[17] It is unclear whether the trial court believed the contract was unambiguous, or if 

it believed it was ambiguous but no weighing of evidence was required to 

determine the intent of the parties. The contract and designated evidence, 

however, demonstrates both that the contract is ambiguous and that weighing 

of evidence—i.e., comparison of what Ferguson and Green each thought the 

contract meant—is necessary to resolve that ambiguity. On its face, the 

contract makes no express reference to the outstanding loans for the truck and 

trailer, which Green asserted was all she had to pay. Evidence related to those 

loans is extrinsic to the contract, but no documentary evidence was designated 

regarding the loans, such as their terms and their outstanding balances when the 

contract was executed. There was no language in the contract specifying that 

either lender’s release of its lien against the truck or trailer would trigger 

Ferguson’s obligation to transfer title to Green. And, rather than repaying the 

loans directly to the Bank of the Ozarks and ACG, the contract specified that 

Green was to pay Ferguson. This language—along with saying that Green had 

to pay “approximately” $44,000.00 for the truck and $27,000.00 for the 

trailer—leaves open the possibility that Green was expected to pay more to 

Ferguson than what was merely outstanding on the loans. The trial court 

improperly concluded that there were no genuine issues of material fact and 
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that Green was entitled to judgment as a matter of law—and title to the truck—

because of the ambiguous contract language and her payment of significantly 

less than $54,252.00 toward the truck.

[18] That said, we also reject Ferguson’s argument that he was entitled to summary 

judgment against Green on this claim. The contractual ambiguities and 

questions of fact cut both ways. Although Ferguson contends that we should 

construe the contract against Green because her attorney drafted the original, 

printed version of it, that rule does not apply here because it was Ferguson’s 

handwritten additions to the contract that created or at least greatly contributed 

to the ambiguities.

[19] Ferguson also contends that, even if a court accepts Green’s interpretation of 

the contract—that she only had to pay approximately $44,000.00 for the 

truck—she breached the contract based on the clear provision that she was to 

pay $1,507.00 per month toward the truck. Putting aside questions of fact as to 

some payments Green claimed she made that Ferguson claimed were not 

actually made, it is undisputed that there was a period of several months 

between November 2012 and June 2013 when Green was not making regular 

monthly payments for the truck. Even if this did constitute a breach of 

contract, however, it does not automatically mean Ferguson had an actionable 

breach of contract claim or was entitled to breach the contract himself. To 

sustain a breach of contract action, a party must prove the existence of a 

contract, a defendant’s breach of its terms, and resulting damages. Murat Temple 

Ass’n, Inc. v. Live Nation Worldwide, Inc., 953 N.E.2d 1125, 1128-29 (Ind. Ct. 
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App. 2011), trans. denied. Damages are not presumed merely because there has 

been a breach of contract but must be supported by the evidence and 

ascertainable with reasonable certainty. Dana Companies, LLC v. Chaffee Rentals, 

1 N.E.3d 738, 748 (Ind. Ct. App. 2013), trans. denied. Moreover, if a party to a 

contract consistently makes late payments but the other party consistently

accepts such payments, does not attempt to strictly enforce the contract, and 

does not show how he or she was damaged by the late payments, that party 

may not later sustain a breach of contract action based on the late payments. 

Unishops, Inc. v. May’s Family Centers, Inc., 399 N.E.2d 760, 766 (Ind. Ct. App. 

1980). The designated evidence does not indicate how Ferguson was damaged 

by Green’s purported breach of contract in missing or belatedly making some 

payments but ultimately paying approximately $44,000.00 toward the truck, if 

indeed that was all that she owed. Ferguson has not established that he is 

entitled to judgment as a matter of law based on those missed or belated 

payments.

[20] On a final note related to the written contract, Green’s refusal to continue 

paying for the trailer after Ferguson refused to transfer title of the truck to her 

was not necessarily an actionable breach of contract on her part. When a party 

is in material breach of a contract, he or she may not maintain an action against 

the other party or seek to enforce the contract against the other party if that 

party later breaches the contract. Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d 

1042, 1048 (Ind. Ct. App. 2003). If Green’s interpretation of the contract 

ultimately prevails, it would mean Ferguson could not maintain a breach of 
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contract action against Green based on her cessation of payments for the trailer 

because it followed Ferguson’s own breach of contract for not transferring the 

truck title to her. 

[21] In sum, the intent of the parties when they executed the final version of the 

written contract, which included Ferguson’s handwritten additions, as well as 

whether Green breached the contract and caused Ferguson damages, must be 

resolved by a fact finder and not by summary judgment.

B. Oral Contract

[22] We now address Ferguson’s contention that he was entitled to summary 

judgment on his claim that Green breached an oral contract to repay him for 

expenses he purportedly paid to help her establish a trucking business. For an 

oral contract to exist, there must be an offer, acceptance, and consideration, and 

agreement to all terms of the contract. Town of Knightstown v. Wainscott, 70 

N.E.3d 450, 459 (Ind. Ct. App. 2017), trans. denied. “To be valid and 

enforceable, a contract must be reasonably definite and certain.” Id. Whether a 

certain set of undisputed facts establishes a contract is a question of law. City of 

Indianapolis v. Twin Lakes Enterprises, Inc., 568 N.E.2d 1073, 1079 (Ind. Ct. App. 

1991), trans. denied. However, where the existence and not the validity or 

construction of a contract or the terms thereof is at issue, and the evidence is 

conflicting or admits of more than one inference, it is for a fact finder to 

determine whether a contract in fact exists. Id.
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[23] Here, Ferguson acknowledges that Green designated as evidence a sworn 

affidavit stating in part:

The only agreement that related to the Truck and Trailer was the 

[written] Contract. There was no secondary agreement, written 

or otherwise, between Buyer and Seller, including, without 

limitation, any agreements that related to repayment of expenses 

and/or credit card charges arising prior to the Contract or after 

the Contract for that matter. Any and all credit charges made by 

Buyer through June of 2012 were made for the benefit of Seller’s 

Business at Seller’s Request. Any and all charges that were 

authorized by Seller for the sole benefit of Buyer were reimbursed 

even though there was never an agreement to make such 

reimbursements. Buyer has no unpaid credit card charges, 

expenses or down payments owing to Seller of any kind or nature 

whatsoever nor by way of any agreement. The sole Agreement 

between the parties is set forth in the [written] Contract.

App. Vol. V p. 38. Ferguson attempts to discredit Green’s affidavit by claiming 

that it is “self-serving.” Appellant’s Br. p. 25. Even if it is—and we are not sure 

that it is—Indiana law is clear that sworn affidavits regarding a disputed fact are 

sufficient to defeat summary judgment, regardless of whether the affidavit is 

self-serving and minimal. Hughley, 15 N.E.3d at 1003. 

[24] Ferguson also contends that Green’s attorney admitted at the summary 

judgment hearing that Green paid Ferguson $18,000.00 toward certain trucking 

expenses and that this necessarily proves the existence of a contract for Green 

to pay more than that amount. This payment also is explained in Green’s 

affidavit and does not as a matter of law establish that there was an oral 

contract for her to pay anything else. Cf. Perkins v. Owens, 721 N.E.2d 289, 292 
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(Ind. Ct. App. 1999) (holding that, for purposes of excepting oral contract for 

sale of real estate from statute of frauds requiring a written contract, partial 

payment is insufficient to constitute partial performance of alleged contract). 

Even if it was part of an agreement of some kind, Green’s payment of 

$18,000.00 does not necessarily establish all the terms of an oral contract 

between Ferguson and Green. Ferguson’s claim regarding an oral contract 

presents a literal “he said/she said” situation that will require sorting out by a 

fact finder and is inappropriate for resolution by summary judgment.

Conclusion

[25] This case is laden with questions of fact, both as to the meaning of the 

ambiguous written contract and its performance, and as to the existence of a 

separate oral contract and its performance, if there was one. As such, neither 

party was entitled to summary judgment. We affirm the denial of Ferguson’s 

motion for summary judgment, reverse the grant of summary judgment in favor 

of Green, and remand for further proceedings.2

[26] Affirmed in part, reversed in part, and remanded.

Vaidik, C.J., and Pyle, J., concur.

 

2 Given our reversal of the grant of summary judgment and remand for further proceedings, we deem it 

unnecessary to address whether the trial court improperly denied Ferguson an extension of time to respond to 

Green’s purported cross-motion for summary judgment.