Court of Appeals of Indiana | Memorandum Decision 10A05-1711-PL-2713 | August 9, 2018 Page 1 of 11

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 APPELLANTS

Thomas E. Scifres

Thomas E. Scifres, P.C.

Salem, Indiana

ATTORNEYS FOR APPELLEE

TITAN TRANSFER, INC.

Darren A. Craig

Carly J. Tebelman

Frost Brown Todd LLC

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Garrell “Gary” McCutcheon Jr., 

and Melissa K. McCutcheon,

Appellants-Plaintiffs,

v.

Pavco Trucking Co. Inc., and 

Titan Transfer, Inc.,

Appellees-Defendants.

August 9, 2018

Court of Appeals Case No.

10A05-1711-PL-2713

Appeal from the Clark Circuit 

Court 

The Honorable Andrew Adams, 

Judge

Trial Court Cause No.

10C01-1505-PL-44

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A05-1711-PL-2713 | August 9, 2018 Page 2 of 11

Case Summary and Issue

[1] Garrell and Melissa McCutcheon appeal following the trial court’s grant of 

summary judgment to Titan Transfer, Inc. (“Titan”). The McCutcheons raise 

several issues on appeal which we consolidate and restate as whether the trial 

court erred when it granted summary judgment to Titan. Concluding that no 

genuine issues of material fact remained and that Titan was entitled to 

summary judgment as a matter of law, we affirm. 

Facts and Procedural History

[2] Pavco Trucking Company, Inc. (“Pavco”), operated a trucking company in 

Clarksville, Indiana. Pavco employed the McCutcheons to haul freight by 

truck. Pavco terminated the McCutcheons’ employment on February 14, 2014.

[3] On March 1, 2014, Titan and Pavco executed the Purchase Agreement which 

enumerated a number of Pavco’s assets that would be transferred to Titan in 

exchange for consideration of $40,000, an additional amount of cash equal to 

two weeks of Pavco’s payroll, and a covenant-not-to-compete. The Purchase 

Agreement provided in relevant part in Section 3:

[Pavco] represents and warrants to [Titan]:

***

(b) There are no judgments, liens, claims, actions or proceeding

[sic] against the assets being conveyed except as described herein.
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Appellant’s Appendix, Volume 2 at 87. 

The Purchase Agreement further provided in Section 11:

[Pavco] shall be responsible for all debts, obligations, leases and 

expenses of the business prior to February 28, 2014, at midnight, 

and shall indemnify and hold [Titan] harmless from any liability 

thereon. [Titan] shall be responsible for all debts, obligations and 

expenses of the business after said effective date and shall 

indemnify and hold [Pavco] harmless from any liability thereon. 

Id. at 90. 

[4] The McCutcheons filed suit against Pavco and Titan on April 27, 2015, alleging 

four claims of retaliatory discharge and wrongful termination. Id. at 19-24. 

Titan appeared in the suit and answered the complaint. Pavco did not appear. 

The McCutcheons ultimately obtained a default judgment against Pavco for 

$180,656.28. Id. at 79-80. On April 6, 2017, the McCutcheons filed 

proceedings supplemental against Titan seeking satisfaction of their default 

judgment, arguing that, as a term of the Purchase Agreement, Titan had agreed 

to assume liability for Pavco’s debts and obligations after February 28, 2014.1 

Id. at 10, 83-84. 

[5] On May 19, 2017, Titan moved for summary judgment, arguing in relevant part 

that Titan could not be held liable for any of the allegations in the 

 

1

 As of the last date in the trial court’s chronological case summary, no hearing on the McCutcheons’ 

proceedings supplemental had occurred. Appellant’s App., Vol. 2 at 15. 
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McCutcheon’s complaint because Titan had never employed the McCutcheons 

and because Titan had not assumed any liability from Pavco arising from 

Pavco’s employment of the McCutcheons. Id. at 10, 95. In support of its 

motion, Titan designated the Affidavit of Phillip Edwards, President of Titan, 

who averred that Pavco and Titan had no mutual stockholders, members of 

boards of directors, or shareholders. Id. at 121-22. Edwards also averred that 

the transfer of assets from Pavco to Titan did not involve the transfer of any 

stock. Id. at 122. In addition, Titan designated a certificate of existence from 

the Indiana Secretary of State showing that Pavco existed and was authorized 

to conduct business as of May 19, 2017. Id. at 136. The McCutcheons opposed 

Titan’s motion and also moved for summary judgment, reasserting their 

argument that, pursuant to the Purchase Agreement, Titan had assumed 

liability for Pavco’s debts and obligations after February 28, 2014, and that their 

default judgment was a debt that arose after that date. Id. at 140-52. As part of 

the evidence in support of their summary judgment filings, the McCutcheons 

designated their Affidavit in which they averred that after the transaction 

between Pavco and Titan, Titan continued to use Pavco’s phone and facsimile 

numbers, office personnel, equipment, and accounts, and that no change in 

business had occurred. Id. at 137-38. The McCutcheons also designated the 

Purchase Agreement and an article from the Shelbyville Times-Gazette 

announcing Titan’s “acquisition” of Pavco. Id. at 161-68, 178.

[6] On October 19, 2017, the trial court entered its order granting summary 

judgment for Titan, providing in relevant part:
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The McCutcheons’ claims fail against [Titan] because the events 

alleged in the [complaint] occurred while the McCutcheons were 

working for [Pavco], and the McCutcheons never worked for 

[Titan]. Although [Titan] later acquired some of Pavco’s assets, 

it did not assume any liability arising from Pavco’s employment 

of the McCutcheons.

Id. at 16. This appeal ensued. 

Discussion and Decision

[7] The McCutcheons contend that the trial court erred in concluding that Titan 

was entitled to judgment as a matter of law, arguing that Titan expressly agreed 

to assume liability for their default judgment against Pavco as part of the 

Purchase Agreement.2 

I. Standard of Review

[8] When reviewing a trial court’s grant or denial of summary judgment, we apply 

the same standard as the trial court. Travelers Cas. & Sur. Co. v. United States

Filter Corp., 895 N.E.2d 1172, 1176 (Ind. 2008). “We must decide whether 

there is a genuine issue of material fact that precludes summary judgment and, 

if not, whether the moving party is entitled to judgment as a matter of law.” Id.

(citing Ind. Trial Rule 56(C)). “We also construe the designated evidence in a 

light most favorable to the nonmoving party.” Id. 

 

2

Pavco does not participate in this appeal.
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[9] Matters of contract interpretation are particularly well-suited for de novo 

appellate review because they generally present questions purely of law. In re 

Indiana State Fair Litig., 49 N.E.3d 545, 548 (Ind. 2016). A contract may be 

construed on summary judgment if it is not ambiguous or uncertain, or if any 

ambiguity may be resolved without the aid of a factual determination. Id. “The 

meaning of a contract is a question for the factfinder, precluding summary 

judgment, only where interpreting an ambiguity requires extrinsic evidence.” 

Id.

II. Assumption of Liability

A. Asset Only Transfer 

[10] In Indiana3the general rule concerning corporate successor liability is that when 

one corporation simply purchases the assets of another, as opposed to 

purchasing the stock of another, the buyer does not assume the debts and 

liabilities of the seller. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1233 

(Ind. 1994). There are four generally recognized exceptions to the rule, namely 

where (1) there is an implied or express agreement to assume the obligation; (2) 

a fraudulent sale of assets was done in order to escape liability; (3) the purchase 

 

3

 The Purchase Agreement contained a choice of law provision dictating that the Agreement would be 

interpreted according to Tennessee law. Appellant’s App., Vol. 2 at 92. However, in their appellate briefs, 

both parties cite Indiana law only. The McCutcheons assert that Titan acknowledged in a summary 

judgment pleading that no conflict exists between Indiana and Tennessee law on contract interpretation. 

Brief of Appellant at 13 n.2. However, the McCutcheons did not include that pleading in their Appendix. 

As neither party has invoked the Purchase Agreement’s choice of law provision, we will interpret the 

Agreement according to Indiana law. 
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was actually a de facto consolidation or merger; and (4) the purchaser is a mere 

continuation of the seller. Id. It is the first of these exceptions upon which the 

McCutcheons rely, arguing that Titan expressly agreed through the Purchase 

Agreement to assume Pavco’s liability for their judgment. Brief of Appellant at 

15. The McCutcheons contend that there “is disagreement on the issue of 

whether this was simply, and solely, an ‘asset purchase,’” id. at 14, but they also 

acknowledge that the transfer of assets from Pavco to Titan did not involve the 

transfer of any stock, id. at 17. In their reply to Titan’s brief on appeal, the 

McCutcheons acknowledge that Titan did not assume all of Pavco’s debt as a 

result of the asset transfer. Appellant’s Reply Brief at 6. Thus, inasmuch as the 

McCutcheons argue that Titan assumed liability for their judgment strictly 

because of the nature of the transfer of assets from Pavco to Titan, we reject that 

argument as waived. See Reed v. Reid, 980 N.E.2d 277, 296-97 (Ind. 2012) 

(holding that failure to comply with Indiana Appellate Rule 46(A)(8) by failing 

to support a contention with cogent reasoning, citation to authority, and 

citation to the record results in waiver of the issue). 

[11] As an additional preliminary matter, we note that Winkler, which is cited by 

both parties, itself relied on Markham v. Prutsman Mirror Co., 565 N.E.2d 385 

(Ind. Ct. App. 1991), as authority for the above-referenced rule of successor 

liability and its exceptions. Winkler, 638 N.E.2d at 1233. In enunciating the 

rule and its exceptions, the Markham court also held that “[s]uccessor in assets 

liability, under these exceptions, takes place only when the predecessor 

corporation no longer exists, such as when a corporation dissolves or liquidates 
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in bankruptcy.” Markham, 565 N.E.2d at 387. However, nothing in the 

authority cited by the court in Markham for this proposition explains why this 

should be so where two corporate entities have expressly contracted for one to

assume the other’s liabilities. See id. (citing Wewoka Petroleum Corp. v. Gilmore, 

319 P.2d 285, 289 (Okla. 1957) (holding that, pursuant to state statute, 

voluntarily dissolved corporations continue to exist for purposes of being sued);

and Wilkerson v. C.O. Porter Mach. Co., 567 A.2d 598, 600-09 (N.J. Super. Law 

Div. 1989) (examining the applicability of New Jersey’s product-line theory of 

successor liability to the purchase of assets from predecessor corporation’s 

bankruptcy)). In Winkler, our supreme court did not adopt this portion of 

Markham, and we see no reason to disregard a contractual agreement made by 

two corporate entities in an arms-length transaction simply because the 

predecessor corporation continues to exist. As such, we address the issue of 

whether Titan agreed to assume Pavco’s liability for the instant judgment as 

part of the Purchase Agreement without reference to Pavco’s continued 

corporate viability. 

B. The Purchase Agreement

[12] The goal of the interpretation of contracts is to give meaning and effect to the 

intention of the parties as expressed in the language of the contract itself. U.S. 

Fidelity & Guar. Co. v. Warsaw Chem. Co., 990 N.E.2d 18, 21 (Ind. Ct. App. 

2013), trans. denied. We construe the instrument as a whole, giving effect to 

every portion, if possible. Id. Furthermore, we attempt to construe contractual 

provisions so as to harmonize the agreement. Grimes v. Crockrom, 947 N.E.2d 
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452, 455 (Ind. Ct. App. 2011). We discern the meaning of a contract by 

considering all of its provisions, not individual words, phrases, or even 

paragraphs read alone. Care Grp. Heart Hosp., LLC, v. Sawyer, M.D., 93 N.E.3d 

745, 756 (Ind. 2018). We first examine the contract language to determine 

whether it is ambiguous. Id. at 752. If the language is unambiguous, we give 

the words used their plain and ordinary meaning in the context of the whole 

contract, without substitution or addition. Id. 

[13] Both parties contend that the Purchase Agreement is unambiguous, see Br. of 

Appellant at 19-22; Appellee’s Brief at 11-14, and we agree. Pursuant to the 

plain wording of the contract, Pavco was to be responsible for all “obligations”

of the business which existed prior to February 28, 2014. Appellant’s App., 

Vol. 2 at 90. The word obligation “has many wide and varied meanings [and] 

may refer to anything that a person is bound to do or forbear from doing, 

whether the duty is imposed by law, contract, promise, social relations, 

courtesy, kindness, or morality.” Black’s Law Dictionary (10th ed. 2014). In 

addition, Pavco unambiguously warranted to Titan in the Purchase Agreement, 

“There are no . . . claims . . . against the assets being conveyed except as 

described herein.” Appellant’s App., Vol. 2 at 87. A claim may be defined as a 

cause of action. Id. The word “claim” as used in the Purchase Agreement is 

not modified by any language limiting its meaning to claims which were 

already filed. No claims against Pavco’s assets were otherwise described in the 

Purchase Agreement. Id. at 86-94. 
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[14] Reading these terms and provisions together so as to give effect to each, the 

warranty provision indicates that parties intended that no existing claims were 

being transferred from Pavco to Titan as part of the transfer of assets. A claim 

against a party falls within the general definition of “obligation” because the 

party’s legal duties are implicated by the accrual of a cause of action. The 

McCutcheons had a cause of action against Pavco as of the date of their 

termination on February 14, 2014. See Jean v. Dugan, 20 F.3d 255, 265 (7th Cir. 

1994) (applying Indiana law and holding that a claim for retaliatory discharge 

accrues upon termination of employment). Since the McCutcheons’ claim 

against Pavco was an obligation of the business that existed prior to February 

28, 2014, it fell within the obligations reserved to Pavco pursuant to the 

Purchase Agreement and for which Pavco agreed to hold Titan harmless. Any 

other reading of the Purchase Agreement would render Pavco’s warranty 

pertaining to claims meaningless and ineffective. The McCutcheons do not 

address the warranty provision pertaining to claims. Rather, they invite us to 

discern the meaning of the Purchase Agreement by concentrating solely upon 

Section 11 in isolation, see Appellant’s Reply Br. at 5, and by considering their 

action against Pavco and Titan only in its last incarnation when it was reduced 

to judgment. This invitation runs afoul of the rule of contract construction 

which requires us to discern the intent of the parties by examining the contract 

as a whole. Care Grp. Heart Hosp., 93 N.E.3d at 756. Titan did not expressly 

assume Pavco’s liability for any claim resulting from Pavco’s employment of 

the McCutcheons, and the trial court’s grant of summary judgment was proper 

because Titan was entitled to summary judgment as a matter of law. 
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Conclusion

[15] Concluding that Titan did not expressly assume liability for a claim that existed 

against Pavco prior to the effective date of the Purchase Agreement, we affirm 

the trial court’s grant of summary judgment to Titan. 

[16] Affirmed.

Najam, J., and Altice, J., concur.