Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016 Page 1 of 23

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

Tracy D. Knox

Brian E. Casey

BARNES & THORNBURG LLP

South Bend, Indiana

ATTORNEYS FOR APPELLEE

John D. LaDue

John Conway

Paul Edgar Harold

LADUE CURRAN & KUEHN LLC

South Bend, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

B&R Oil Company, Inc. and 

Atlas Oil Company

Appellants-Defendants,

v.

William E. Stoler, et al.,

Appellees-Plaintiffs

January 21, 2016

Court of Appeals Case No.

71A03-1503-PL-114

Appeal from the St. Joseph 

Superior Court 

The Honorable Jenny Pitts Manier, 

Judge

Trial Court Cause No.

71D05-1102-PL-34

Altice, Judge.

[1] This case arises out of a legal dispute between B&R Oil Company (B&R) and 

Atlas Oil Company (Atlas) (collectively, the Oil Companies) and eighteen of 

their gas station tenants (the Tenants). The Tenants claim, and the trial court 
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found, that an oral settlement agreement was reached at a November 2014 

mediation. After the mediation, but before the written agreement was finalized, 

an unrelated legal dispute arose between B&R and two of the Tenants, William 

and Kathlyn Stoler (the Stolers) and Jeffery Levy, regarding the rights of first 

refusal in their respective leases. Counsel for the Oil Companies and the 

Tenants agreed to include language in the written settlement agreement 

providing that the settlement would not release the Stolers’ and Levy’s right-offirst-refusal claims. However, the Oil Companies subsequently refused to 

execute the written agreement and insisted on a full, unconditional release of 

claims, including specifically the right-of-first-refusal claims. The Tenants filed 

a motion to enforce the settlement agreement and, after a hearing, the trial 

court entered judgment in their favor. Specifically, the trial court concluded 

that an enforceable oral settlement was reached at the November 2014 

mediation and that the settlement was limited to issues raised in the instant 

litigation. In other words, the Stolers’ and Levy’s right-of-first-refusal claims 

remained viable. 

[2] The Oil Companies now appeal and argue that the trial court erred in 

concluding that the parties reached an enforceable oral settlement agreement at 

the November 2014 mediation because neither the representatives of the Oil 

Companies nor the representatives of the Tenants present on that date had 

settlement authority. They also argue that no enforceable settlement was 

reached because the parties did not agree on all material terms. The Oil 

Companies further argue that the trial court abused its discretion by refusing to 
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permit them to cross-examine the Tenants’ counsel, John Conway, concerning 

who had settlement authority for the Tenants.

[3] We affirm.1

Facts & Procedural History

[4] Atlas is a national fuel supply, logistics, and service company. B&R is a 

regional distributor of oil and gas and an affiliate of Atlas. At the time relevant 

to this case, B&R owned numerous retail gas stations in Indiana and Michigan, 

some of which they leased to the Tenants. The Tenants were also parties to 

gasoline supply agreements entered into with B&R and Atlas. This case stems 

from a legal dispute between the Tenants and the Oil Companies concerning 

ethanol sales between 2007 and 2009. The specifics of the dispute are not 

material to the case before us, but in short, the Tenants alleged that the Oil 

Companies artificially inflated the wholesale cost of ethanol they provided to 

the Tenants. As a result, the Tenants alleged that they were deprived of 

commissions from the sale of ethanol to which they were contractually entitled. 

In 2010, the Tenants filed suit against the Oil Companies in St. Joseph Superior 

Court claiming that B&R owed them commissions for the sale of gasoline. 

[5] After three years of litigation, the parties met for court-ordered mediation in 

February 2014. In attendance on behalf of the Oil Companies were William 

 

1 We held oral argument in this matter on December 3, 2015. We commend counsel on the quality of their 

written and oral advocacy.
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Shaver, a non-lawyer, management-level employee of the Oil Companies; John 

Ortoleva, in-house counsel for the Oil Companies; and Dean Groulx, outside 

counsel for B&R. In attendance for the Tenants were attorneys Conway and 

John LaDue, and Tenants William Stoler, Craig Ferrara, and Tim Cira. 

During this mediation session, one of the Tenants settled his claims against the 

Oil Companies. Shaver signed the written settlement agreement on behalf of 

the Oil Companies. The remaining Tenants were unable to reach an agreement 

with the Oil Companies, and the litigation continued.

[6] The Oil Companies later filed a motion to sanction the Tenants for not having 

all of the Tenants physically present at the mediation. In their sanctions 

motion, the Oil Companies alleged that, unlike the Tenants, the Oil 

Companies’ party representatives were physically present at the mediation. The 

trial court granted the motion and imposed a monetary sanction. On the same 

date, however, the Oil Companies filed a motion to withdraw their request for 

sanctions. The trial court granted the motion and vacated its order imposing 

sanctions.

[7] On November 4, 2014, the parties again met to try to settle the case. Shaver, 

Ortoleva, and Groulx again attended on behalf of the Oil Companies. 

Attorneys Conway and LaDue attended for the Tenants, as well as Tenants 

Stoler, Ferrara, and Cira. The parties disagree as to the outcome of this 

settlement conference. The Tenants assert that the parties reached an 

agreement as to all material terms. Conway testified that he was never told that

anyone else from the Oil Companies needed to approve the terms of the 
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settlement. The Oil Companies claim that the parties came to an agreement on 

some issues that had previously prevented settlement, but they did not agree on 

all material terms of a settlement. Specifically, the Oil Companies assert that 

the parties did not agree on the nature and scope of the release to be executed. 

The Oil Companies further assert that the parties agreed that there would be no 

binding settlement until the agreement was reduced to writing and reviewed 

and approved by Michael Evans, the president and chief operating officer of 

Atlas. The trial court expressly rejected the Oil Companies’ version of events 

and credited that of the Tenants. 

[8] The parties agree that they reached an agreement on the following terms:

 The Oil Companies would pay Tenants a lump sum of money.

 The Oil Companies would make improvements to some of the Tenants’ 

facilities.

 The Oil Companies would fund the settlement within thirty days.

 The Oil Companies would dismiss a related arbitration proceeding 

against Jim Wegner, one of the Tenants’ witnesses and a former 

employee of the Oil Companies.

 The Tenants would dismiss the litigation with prejudice.

 Groulx would reduce the agreement to writing following the settlement 

conference.

[9] Groulx did not deliver a first draft of the written settlement agreement (the 

Written Agreement) to Conway until December 4, 2014—thirty days after the 

settlement conference. Conway contacted Groulx in the interim asking about
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his progress on drafting the Written Agreement. Groulx apologized for the 

delay and requested wiring instructions from the Tenants, which Conway 

promptly provided. Because it appeared that progress was being made toward 

finalizing the settlement, the Tenants decided to waive the settlement term 

requiring the Oil Companies to fund the settlement within thirty days.

[10] Sometime between December 4 and December 12, the Stolers and Levy 

received notice from B&R that another company, Empire Petroleum Partners, 

LLC, had agreed to purchase substantially all of B&R’s assets for $80 million. 

Because the asset purchase agreement triggered the Stolers’ and Levy’s rights of 

first refusal on the gas stations they leased from B&R, B&R sought to have the 

Stolers and Levy either waive their rights of first refusal or match the entire $80 

million purchase price. 

[11] The Stolers and Levy refused to waive their rights and, instead of matching the 

$80 million purchase price for all of B&R’s assets, requested that B&R provide 

them with a price to purchase only their respective gas stations. When B&R 

refused to do so, the Stolers and Levy brought a separate lawsuit against B&R 

seeking to enforce their rights of first refusal. That suit is currently pending in 

the St. Joseph Circuit Court.

[12] The first draft of the Written Agreement Groulx emailed to Conway on 

December 4 contained a unilateral release of all of the Tenants’ claims against 

the Oil Companies, running from the beginning of time through the “Effective 

Date” of the Written Agreement, which was listed as “December ____, 2014.” 
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Exhibit 2B. Conway communicated to Groulx that the Tenants wanted the 

release to be mutual, i.e., that the Oil Companies should also execute a general 

and unconditional release of all claims against the Tenants. Groulx declined 

this request, and in an email dated December 11, 2014 proposed to include a 

release running from the Oil Companies to the Tenants “limited to freight, and 

ethanol and motor fuel pricing issues from 2007 through 2009.” Appellant’s 

Appendix at 366. Conway responded to Groulx’s email the next day, asking for

either mutual general releases or for the Tenants’ release to also be limited to 

freight, ethanol, and motor fuel pricing from 2007 through 2009. In the same 

email, Conway made reference to the Empire asset purchase agreement, but the 

Stolers’ and Levy’s rights of first refusal were not mentioned.

[13] The Tenants subsequently accepted the draft language providing for a general 

release from the Tenants and a limited release from the Oil Companies, with 

one addition. In an email dated December 16, 2014, Conway indicated that 

“we accepted your release language but added a sentence clarifying that 

plaintiffs are not releasing any claims regarding their rights of first refusal with 

respect to the Empire transaction.” Id. at 364. This sentence, which the parties 

refer to as “the Carve Out,” reads as follows: “The parties agree that the release 

of claims does not release any claims involving the Plaintiffs’ right of first 

refusal contained in their respective leases.” Exhibit 2(B). Groulx did not object 

to the inclusion of this language in the Written Agreement. Two days later, on 

December 18, Conway had a telephone conference with Groulx, Ortoleva, and 

another of the Oil Companies’ in-house lawyers, Philip Carbone. During the 
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conversation, the attorneys agreed to include the Carve Out in the written 

settlement agreement. 

[14] Later that same day, at 4:07 p.m., Groulx emailed the final Written Agreement 

containing the Carve Out to Conway and copied Ortoleva and Carbone. In the 

same email, Groulx stated that “my client is prepared to sign and fund the 

settlement.” Appellant’s Appendix at 550. Seven minutes later, Conway 

responded: “This agreement is acceptable and I will obtain signatures.” Id. 

Twenty-three minutes later, Groulx responded: “We spoke too soon on our 

end. We need to obtain approval for the proposed changes from management 

at Atlas before we can finalize the settlement.” Id. 

[15] The next day, in an email to Carbone on which Groulx and Ortoleva were

copied, Conway wrote that the Tenants were ready to close on the settlement 

and that “[t]he resolution of the right of first refusal issue should not be tied to 

the completion of the settlement as you suggested.” Id. at 555. In an email two 

days later, Carbone told Conway that the Oil Companies would “not agree to 

move forward with the proposed settlement unless the settlement agreement 

includes provisions for the Stolers and Levy to waive the right of first refusal in 

both of their respective leases.” Id. at 554. 

[16] The Stolers and Levy declined to waive their rights of first refusal, and on 

January 26, 2015, the Tenants filed their verified motion to enforce the 

settlement agreement. The Oil Companies filed their verified response on 
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February 6, 2015. A bench trial was held on February 10, 2015, at which both 

Conway and Groulx testified.

[17] Conway testified that he first became aware of Evans’s purported involvement 

in the settlement when he received the Oil Companies’ verified response to the 

motion to enforce the settlement agreement, which was signed by Evans. 

Conway also testified that the Oil Companies’ representatives with settlement 

authority were present at the November 4 settlement conference and that an 

agreement was reached on all material terms that day. Groulx, on the other 

hand, testified that Evans, and only Evans, had settlement authority on behalf 

of the Oil Companies, and that the Oil Companies’ representatives had 

conferred with Evans by telephone during breaks in the mediation that day. 

Groulx further testified that Evans’s role had been communicated to Conway 

both before and during the mediation, and that the parties had agreed only on a 

framework for a proposed settlement in November 2014, and that Evans had 

not approved any settlement. When confronted with the facts that Evans had 

not been present at the February 2014 settlement conference and had not signed 

the agreement reached that day to settle one of the Tenants’ claims, Groulx 

claimed that he had conferred with Evans by telephone during breaks on that 

date and that Evans had approved the resulting settlement. 

[18] On March 5, 2015, the trial court entered a detailed order granting the Tenants’ 

motion to enforce the Written Agreement and setting forth special findings and 

conclusions thereon. In the order, the trial court resolved the conflict between 

Conway’s and Groulx’s testimonies in Conway’s favor, expressly finding him 
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to be a “credible witness.” Id. at 22. The trial court also listed specific reasons 

for discounting Groulx’s testimony that Evans was the only one with authority 

to enter into a settlement agreement for the Oil Companies. The trial court also 

found that Conway reasonably understood Ortoleva to be the person 

authorized to act as the Oil Companies’ agent for settlement purposes. The trial 

court further found that the parties reached an agreement as to the material 

terms of the settlement at the November 2014 mediation, and that settlement 

was later memorialized in the Written Agreement. Finally, the trial court 

found that the settlement was limited to issues raised in the instant litigation, 

namely, freight charges and ethanol and motor fuel charges from 2007 through 

2009. Thus, Stoler’s and Levy’s claims under their rights of first refusal 

remained viable. The Oil Companies now appeal.

Standard of Review

[19] At the Oil Companies’ request, the trial court entered special findings and 

conclusions thereon pursuant to Trial Rule 52. We therefore apply a two-tiered 

standard of review, first determining whether the evidence supports the trial 

court’s findings, and then whether the findings support the judgment. Infinity 

Products, Inc. v. Quandt, 810 N.E.2d 1028, 1031 (Ind. 2004). We will not disturb 

the findings or judgment unless they are clearly erroneous. Id. 

[20] “The particular clearly erroneous standard that is to be employed depends upon 

whether the appealing party appeals a negative or an adverse judgment.” 

Romine v. Gagle, 782 N.E.2d 369, 376 (Ind. Ct. App. 2003), trans. denied. “A 
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negative judgment is one entered against a party who bears the burden of proof, 

while an adverse judgment is one entered against a party defending on a given 

question.” Serenity Springs v. LaPorte Cnty. Convention & Visitors Bureau, 986 

N.E.2d 314, 319 (Ind. Ct. App. 2013) (quoting Garling v. Ind. Dep’t of Natural 

Res., 766 N.E.2d 409, 411 (Ind. Ct. App. 2002), trans. denied). In this case, the 

trial court entered judgment in favor of the Tenants, i.e., the parties bearing the 

burden of proof at trial. See OVRS Acquisition Corp. v. Cmty. Health Servs., 657 

N.E.2d 117, 125 (Ind. Ct. App. 1995) (noting that a party seeking to establish 

the validity of a contract bears the burden of proving its existence), trans. denied. 

The Oil Companies are therefore appealing an adverse judgment. Accordingly, 

“we hold the trial court’s findings clearly erroneous if they are not supported by 

substantial evidence of probative value.” Serenity Springs, 986 N.E.2d at 319. 

Even if the evidence is substantial, we will reverse the judgment if we are left 

with a definite and firm conviction a mistake has been made. Id.

[21] Additionally, to the extent that our disposition of this case turns on the 

resolution of questions of law, our review is de novo. See Zukerman v. 

Montgomery, 945 N.E.2d 813, 818 (Ind. Ct. App. 2011). Whether a contract 

exists is ultimately a question of law. Sands v. Helen HCI, LLC, 945 N.E.2d 176, 

180 (Ind. Ct. App. 2011), trans. denied. 

1. Authority

[22] “Indiana strongly favors settlement agreements and if a party agrees to settle a 

pending action, but then refuses to consummate his settlement agreement, the 
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opposing party may obtain a judgment enforcing the agreement.” Id. As a 

general matter, a settlement agreement need not be in writing to be enforceable. 

Id. “Settlement agreements are governed by the same general principles of 

contract law as any other agreement.” Vance v. Lozano, 981 N.E.2d 554, 558 

(Ind. Ct. App. 2012). 

[23] The Oil Companies’ primary argument on appeal is that no binding settlement 

agreement was reached at the November 2014 mediation because the 

individuals present did not have settlement authority. “Authority is the power 

of the agent to affect the legal relations of the principal by acts done in 

accordance with the principal’s manifestations of consent to him.” Koval v. 

Simon Telelect, Inc., 693 N.E.2d 1299, 1302 (Ind. 1998) (quoting Restatement 

(Second) of Agency § 7 (1958)). Our Supreme Court has explained that there 

are two main classifications of authority: actual authority and apparent 

authority. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). 

Actual authority is created “by written or spoken words or other 

conduct of the principal which, reasonably interpreted, causes the 

agent to believe that the principal desires him so to act on the 

principal’s account.” Scott v. Randle, 697 N.E.2d 60, 66 (Ind. Ct. 

App. 1998), transfer denied; see Restatement (Second) of Agency §§ 

7, 33 (1958). Apparent authority refers to a third party’s 

reasonable belief that the principal has authorized the acts of its 

agent, Pepkowski v. Life of Indiana Ins. Co., 535 N.E.2d 1164, 1166-

67 (Ind. 1989); it arises from the principal’s indirect or direct 

manifestations to a third party and not from the representations 

or acts of the agent, id.; Drake v. Maid-Rite Co., 681 N.E.2d 734, 

737-38 (Ind. Ct. App. 1997), reh’g denied.
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Id.

[24] We first address the Oil Companies’ argument that none of the representatives 

present at the November 2014 mediation had authority to settle on the Oil 

Companies’ behalf. Specifically, the Oil Companies argue that the only party 

with actual settlement authority was Evans, and that neither Groulx nor 

Ortoleva had apparent authority.

[25] With respect to actual authority, the trial court expressly rejected the Oil 

Companies’ claim that Evans possessed sole settlement authority. In support of 

its conclusion, the court gave several reasons for finding Groulx’s testimony to 

that effect to be implausible. First, the trial court noted that Evans was not 

present in person at the February 2014 settlement conference. Instead, Groulx, 

Shaver, and Ortoleva attended on behalf of the Oil Companies, and Shaver, not 

Evans, signed the settlement reached that day with one of the Tenants. 

Moreover, the Oil Companies later filed a motion for sanctions against the 

Tenants for violating a local rule requiring the presence of a representative with 

full settlement authority. As the trial court noted, “[i]f Groulx’s testimony is to 

be believed as to Evans’ authority, he invoked the Court’s extraordinary power 

to impose a sanction for a violation of a rule he himself was guilty of violating.” 

Appellant’s Appendix at 23. The court also noted that Groulx raised no objection 

to the Carve Out and that it was only after Groulx stated that his clients were 

ready to sign the Written Agreement that Groulx backtracked and stated that he 

needed consent from management. 
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[26] It is also noteworthy that Evans did not attend the November 2014 settlement 

conference, and unlike Ortoleva, he was not copied on any of the email traffic 

that followed. Indeed, Conway testified that he first became aware of Evans’s 

involvement when the Oil Companies filed their response to the motion to 

enforce the settlement agreement. Additionally, Evans did not appear or testify 

at the evidentiary hearing in this matter. Under these facts and circumstances, 

the trial court’s finding that Evans did not appropriate sole settlement authority 

to himself was not clearly erroneous. 

[27] Nevertheless, the Oil Companies note that the trial court made no express 

finding that anyone present at the November 2014 had actual authority to settle 

the case on the Oil Companies’ behalf. They note further that no evidence was 

presented of any words or actions of the Oil Companies that would lead 

Groulx, Ortoleva, or Shaver to believe that they had settlement authority or that 

they understood that they possessed such authority. We note, however, that 

such evidence is peculiarly within the knowledge of the Oil Companies, and 

without an admission of actual authority, the Tenants could rely only upon 

inference. By finding that Evans was not the only person with actual settlement 

authority, the trial court implicitly found that that at least one other person 

possessed such authority. Based on our reading of the trial court’s order as a 

whole, it is apparent to us that the trial court believed that at least one of the Oil 

Companies’ representatives present at the November 2014 mediation, whether 

it be Groulx, Ortoleva, or Shaver, had actual settlement authority. This 

inference was not clearly erroneous, and the Oil Companies’ arguments to the 
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contrary are simply requests to reweigh the evidence and judge witness 

credibility, which we will not do on appeal.

[28] The trial court also made an express finding that Ortoleva had apparent 

authority. Specifically, the trial court found that: 

Defendants sent Groulx, Ortoleva and Sha[v]er to the Courtordered mediation that occurred February, 2014. Ortoleva has 

not represented [the Oil Companies] in these court proceedings. 

The presence of Ortoleva and Sha[v]er at the Court-ordered 

mediation was reasonably understood by Conway, when 

considered in the light of all the evidence, as a representation by 

[the Oil Companies] that Ortoleva was a person authorized to act 

as [the Oil Companies’] agent and approve a settlement 

agreement for [the Oil Companies].

Id. at 24 (footnote omitted).

[29] The Oil Companies argue that Ortoleva’s presence at the February and 

November 2014 mediations cannot support a finding of apparent authority 

because apparent authority must arise from the direct or indirect 

communications of the principal, not the actions of the agent. The Oil 

Companies argue further that apparent authority to settle cannot arise solely 

from Ortoleva’s status as the Oil Companies’ in-house attorney. In support of 

this argument, the Oil Companies direct our attention to Koval, in which our 

Supreme Court explained that “the sole act of retaining an attorney does not 

give the attorney the implied or the apparent authority to settle or compromise 

a claim in an out of court proceeding.” 693 N.E.2d at 1301. Although 

retention of an attorney alone is not a manifestation by the client to third parties 
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that an attorney has apparent authority to settle, apparent authority may be 

conferred by other actions of the client. Id. at 1304. 

[30] The Oil Companies’ arguments on the subject of apparent authority 

misconstrue the basis for the trial court’s findings. The trial court did not base 

its finding solely on Ortoleva’s status as the Oil Companies’ in-house attorney 

or on his mere presence at the mediations. Rather, it was the actions of the Oil 

Companies in sending Ortoleva, Shaver, and Groulx to the mediations as their 

representatives that formed the basis of the trial court’s finding that Ortoleva 

was clothed with apparent authority to settle. By sending only these individuals 

to the February 2014 mediation, at which the parties were required to have 

representatives with full settlement authority present, the Oil Companies 

represented to the Tenants that the individuals present had such authority. The 

representation was bolstered when the Oil Companies filed a motion for 

sanctions against the Tenants for not having representatives with full settlement 

authority present at the February 2014 mediation. By making such a 

complaint, the Oil Companies implicitly asserted that their representatives at 

the mediation possessed such authority. In light of this sequence of events, 

when the Oil Companies sent the same representatives to the November 2014 

mediation, it was reasonable for the Tenants to believe that at least one of those 

representatives still had settlement authority. Accordingly, the trial court’s 

finding that Ortoleva had apparent authority to settle the case was not clearly 

erroneous.
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[31] The Oil Companies also argue that no binding settlement agreement could have 

been reached at the November 2014 settlement conference because the Tenants’ 

representatives lacked settlement authority. We note, however, that the Oil 

Companies did not raise the issue of the Tenants’ settlement authority in their 

response to the Tenants’ motion to enforce the settlement agreement. Nor did 

counsel raise the argument at the evidentiary hearing. During cross 

examination, counsel for the Oil Companies asked Conway, “[w]ho has 

settlement authority on your behalf? In your case, on your behalf, who has the 

authority to settle your claims?” Transcript at 52. The following exchange 

ensued:

[Tenants’ Counsel]: Objection. Mr. Conway is not a party to 

this lawsuit.

The Court: What’s the purpose of your—

[Oil Companies’ Counsel]: The point of that is the person who 

has settlement authority on his half [sic], we may not even know. 

The—the—B&R may not know who that person is, because it 

may not be somebody you deal with. The point is you deal with 

the lawyer face-to-face.

[Tenants’ Counsel]: Your Honor, I’m going to object. Whether 

the [Tenants] had settlement authority is not an issue. We’re 

conceding we had—

The Court: I think you’re making an argument rather than a 

factual point. So sustained. 
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Id.

[32] Although counsel for the Oil Companies asked about the Tenants’ settlement 

authority, he did not make it clear in his response to the Tenants’ objection that 

he sought to introduce such evidence to support an argument that there was no 

binding agreement because the Tenants lacked settlement authority. Instead, it 

appears that counsel for the Oil Companies sought to elicit such testimony 

simply to demonstrate that it is not always clear who has settlement authority in 

such negotiations. It is well-settled that “[a]n appellant who presents an issue 

for the first time on appeal waives the issue for purposes of appellate review.” 

Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d 425, 

436 n.2 (Ind. Ct. App. 2004). Because the Oil Companies did not raise the 

issue of the Tenants’ settlement authority at trial, it has been waived. 

2. Material Terms

[33] The Oil Companies next argue that even if the representatives at the November 

2014 mediation had settlement authority, no enforceable oral agreement was 

reached on that date because the parties did not reach an agreement on all 

material terms. As this court has noted, “[i]f a party cannot demonstrate 

agreement on one essential term of the contract, then there is no mutual assent 

and no contract is formed.” Schuler v. Graf, 862 N.E.2d 708, 715 (Ind. Ct. App. 

2007) (quoting Fox Dev., Inc. v. England, 837 N.E.2d 161, 165 (Ind. Ct. App. 

2005)), trans. denied. Moreover, 
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[p]arties may make an enforceable contract which obligates them 

to execute a subsequent final written agreement. However, it is 

necessary that agreement shall have been expressed on all 

essential terms that are to be incorporated in the document. In 

other words, the document is understood to be a mere memorial 

of the agreement already reached and may not contain a material 

term that is not already agreed on. 

Sands, 945 N.E.2d at 180 (citations omitted).

[34] The Oil Companies argue that the communications between Conway and 

Groulx following the November 2014 settlement conference demonstrate that 

the parties did not agree on at least one material term—the scope of the 

releases. According to the Oil Companies, the negotiations concerning the 

language of the releases amounted to continuing offers and counter-offers, 

indicating that no binding contract was formed at the November 2014 

mediation. The Oil Companies argue further that the release was clearly 

material, and they cite federal case law for the proposition that the details of a 

release are an inherently material term in a settlement agreement.

[35] The evidence presented at trial supports the Oil Companies’ claim that the 

parties continued to negotiate concerning the release language after the 

November 2014 mediation. Specifically, the first draft of the Written 

Agreement contained an unconditional, unilateral release of claims in the Oil 

Companies’ favor. The Tenants responded by asking for mutual releases. The 

Oil Companies responded by proposing that the Oil Companies would release 

claims relating to relevant pricing issues from 2007 through 2009. Conway 
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responded that the releases should be mutual, and proposed either limiting the 

scope of the Tenants’ releases in the same manner or agreeing to other language 

he proposed. Finally, Conway agreed to the limited release of the Oil 

Companies’ claims and proposed the Carve Out, and Groulx and Ortoleva 

found this language acceptable. 

[36] The fact that the parties did not immediately agree on the language of the 

Written Agreement does not conclusively establish that the parties did not reach 

an agreement on all material terms at the November 2014 mediation. Instead, 

the ongoing negotiations may simply indicate that the parties initially disagreed 

as to whether the proposed draft agreement accurately captured the material 

terms of the settlement reached at the mediation. In any event, we agree that 

the Tenants’ release was unquestionably material; as the Oil Companies note, 

the release of the plaintiff’s claims is among the most material terms in a 

settlement agreement. But the Tenants’ release of their claims was not the 

subject of the post-mediation negotiations. Rather, the parties negotiated the 

language of the Oil Companies’ release of its claims. Specifically, Groulx did 

not include any language releasing the Oil Companies’ claims in the first draft 

of the Written Agreement, and the negotiations stemmed from Conway’s

efforts to include such language. But the Oil Companies asserted no

counterclaims against the Tenants in the underlying litigation, and from our 

review of the record, it does not appear that the Oil Companies had any claims 

to bring against the Tenants. Under the facts and circumstances of this case, we 

cannot conclude that the Oil Companies’ release of apparently nonexistent 
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016 Page 21 of 23

claims is a material term. See Wolvos v. Meyer, 668 N.E.2d 671, 676 (Ind. 1996) 

(noting that “only essential terms need be included in order to render a contract 

enforceable”).

[37] Furthermore, the evidence supports a conclusion that the parties reached an 

agreement with respect to the scope of the Tenants’ release of their claims at the 

November 2014 mediation. Specifically, the trial court found that the parties 

agreed that the Tenants would release the claims asserted in the underlying 

litigation. The first draft of the Written Agreement provided that the Tenants 

would release all claims against the Oil Companies from the beginning of time 

through the Effective Date of the agreement, which was listed as “December 

____, 2014.” Exhibit 2B. Presumably, the Effective Date was to be the date the 

Written Agreement was executed. At the time the Written Agreement was first 

drafted, the Effective Date was not critical because no new claims had arisen 

following the November 2014 mediation. It was not until after the Tenants 

became aware of the Empire transaction and the dispute concerning the Stolers’

and Levy’s rights of first refusal arose that it became necessary to clarify that 

those claims had not been released. While the parties could have accomplished 

this by agreeing to an earlier Effective Date, Conway instead proposed the 

Carve Out.

2 The addition of the Carve Out prompted no objections from 

Groulx, Ortoleva, or anyone else at the Oil Companies, suggesting that the 

 

2

For this reason, we are unpersuaded by the Oil Companies’ argument that Conway’s failure to change the 

Effective Date demonstrates that the parties did not intend to be bound until the Written Agreement was 

executed.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016 Page 22 of 23

Carve Out reflected the agreement previously reached at the November 2014 

mediation.3 The Oil Companies’ arguments to the contrary are requests to 

reweigh the evidence and judge the credibility of witnesses, which we will not 

do on appeal.

3. Admission of Evidence

[38] The Oil Companies also argue that the trial court erred in refusing to permit 

them to question Conway concerning who had settlement authority for the 

Tenants. This court reviews the trial court’s rulings on the admission of 

evidence for an abuse of discretion. Decker v. Zengler, 883 N.E.2d 839, 845 (Ind. 

Ct. App. 2008), trans. denied. Accordingly, we reverse only where the decision 

is clearly against the logic and effect of the facts and circumstances presented. 

Id. 

[39] During cross examination, counsel for the Oil Companies asked Conway, 

“[w]ho has settlement authority on your behalf? In your case, on your behalf, 

who has the authority to settle your claims?” Transcript at 52. Counsel for the 

Tenants objected, arguing that Conway was not a party to the lawsuit. Counsel 

for the Oil Companies responded that the “point of that is the person who has 

settlement authority . . . we may not even know. . . . B&R may not know who 

 

3 The Oil Companies also rely on language in the Written Agreement providing that “[t]his agreement may 

be signed in one or more counterparts and when taken together shall be deemed a complete agreement” for 

the proposition that the parties did not intend to be bound until the Written Agreement was signed. Again, 

we are unpersuaded. This language says nothing about the parties’ intent to be bound; rather, it simply 

allows the parties to sign separate copies of the Written Agreement.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PL-114 | January 21, 2016 Page 23 of 23

that person is, because it may not be somebody you deal with. The point is you 

deal with the lawyer face-to-face.” Id. Counsel for the Tenants responded that 

the Tenants’ settlement authority was not at issue. The court ultimately 

sustained the objection, explaining that it believed that counsel for the Oil 

Companies was making an argument rather than a factual point. 

[40] On appeal, the Oil Companies argue that evidence concerning who had 

settlement authority for the Tenants was relevant because “[w]ithout authority 

to enter into a binding agreement for the absent [Tenants], the [Tenants] and 

counsel who participated in the November 4th meeting could not have reached a 

binding agreement.” Appellants’ Brief at 70. We note, however, that the Oil 

Companies did not make an offer of proof. As this court has noted, when the 

trial court rules that a witness may not testify on a certain subject, the 

proponent of the testimony must make an offer of proof to preserve the ruling 

for appellate review. Bedree v. Bedree, 747 N.E.2d 1192, 1196 (Ind. Ct. App. 

2001), trans. denied. An offer of proof provides this court with the information 

necessary to consider whether the trial court’s exclusion of the evidence was 

proper. Id. The failure to make on offer of proof results in waiver of the 

evidentiary issue. Id. Because the Oil Companies failed to make an offer of 

proof, their argument is waived.

[41] Judgment affirmed. 

[42] Riley, J., and Brown, J., concur.